Electronic Arts Must Face Ex-Players’ Case Over Madden Games

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Electronic Arts Inc., maker of the Madden NFL video games, lost a bid to dismiss claims by former Los Angeles Rams quarterback Vince Ferragamo and thousands of other retired professional football players that the company owes them money for depicting them in its products.

Electronic Arts has faced lawsuits by amateur and professional athletes for using their likenesses and images. The company in 2013 agreed to pay $40 million to settle a lawsuit by former college athletes over use of their images in video games and canceled its college football title for last year because of legal issues.

Retired National Football League players Ferragamo, Michael Davis and Billy Joe Dupree sued EA in 2010 for using their images in historical team Madden NFL games, which were offered from about 2001 to 2009. The products featured avatars with their height, weight, positions and playing ability, though not their names. The case was brought on behalf of 6,000 former NFL players.

The U.S. Court of Appeals in San Francisco today rejected EA’s argument that the use of retired players’ images in the Madden games is protected free speech under the U.S. Constitution’s First Amendment because the likenesses were incidental to the commercial value of the products.

On the contrary, the court said the retired players’ images enhanced the value of the Madden games, noting that EA pays millions of dollars to current NFL players to use them in video games.

“Electronic Arts’s use of the former players’ likenesses was not incidental because it was central to Electronic Arts’s main commercial purpose: to create a realistic virtual simulation of football games involving current and former National Football League teams,” a three-judge panel said in a ruling.

In another case, retired NFL players were awarded $28 million in 2008 by a jury that found their union owed them royalties from licensing agreements with companies such as Electronic Arts. The players claimed they were entitled to a share of royalties from EA and other companies using names or images of football players in video games, trading cards and other products.

Electronic Arts, based in Redwood City, California, has argued that the video games contain creative elements that transform them from mere depictions of the players, and are thus protected from such lawsuits by the First Amendment.

John Reseburg, a spokesman for EA, didn’t immediately respond to e-mail and voice-mail messages seeking comment on the ruling.

“We are pleased with the ruling and look forward to moving the case forward,” Brian Henri, an attorney for the retired players, said in a phone interview.

Today’s decision upheld a ruling by a federal judge in San Francisco, who said that while video games qualify for free-speech protections, the players were depicted in their real-life role as football players and their images weren’t transformed or altered by the other elements of the game.

A different panel of the federal appeals court in 2013 rejected a bid by EA, on free-speech grounds, to block a similar lawsuit brought by former Arizona State University quarterback Sam Keller. The judges said the video games literally recreated Keller in the very setting in which he became famous.

EA’s attorneys contended that a footnote in that ruling left the door open to the First Amendment defense.

The case is Davis v. Electronic Arts, 12-15737, U.S. Court of Appeals for the Ninth Circuit (San Francisco).