Sports Frenzy: Athletes Attempt to Get Their Share of Video Game Sales

If you have ever seen a dog-pile, then you already have a good image of what this lawsuit looks like. Everyone is jumping in while the people on the bottom of the pile are trying to crawl their way out.

It began in 2009 with Sam Keller, former Nebraska football player, filing suit against the NCAA, Electronic Arts Inc. (“EA”), and the Collegiate Licensing Company (“CLC”) for the use of his likeness in video games, photos, and promotions. Specifically, EA contracted with NCAA to produce sports video games based on college teams. The agreement has always been that no names of players are used, but EA takes extensive efforts to make players look and play like specific college athletes. There is a player made by EA who has the same hair color, facial features, play style, and home state as Keller, and he is not the only one.

That same year Ed O’Bannon, former UCLA basketball player, filed a similar class action anti-trust suit. The two cases were consolidated in 2010, and in 2011 Oscar Robertson, Tate George, Ray Ellis, and Bill Russell joined the suit, prompting O’Bannon to seek class-action status. More athletes joined the fray in 2013 from Arizona, Vanderbilt, Clemson, and Minnesota.

A similar problem faces professional athletes. In a separate action Jim Brown, NFL legend, filed in the Central District of California against EA complaining that EA used his likeness in Madden NFL without his permission. Again EA did not use his name, but it is commented that his likeness is more discernible than that of Keller.

Both cases went before the Ninth Circuit in August 2013, but despite the similar facts, the case rulings came out different. In Keller’s case, In re: NCAA Student-Athlete Name & Likeness Licensing Litigation (“In re NCAA”), the court denied EA’s motion to strike, meaning the lawsuit will proceed, while in Brown’s case, Brown v. Electronic Arts (“Brown v. EA”), the court dismissed his last claim against EA, bringing the federal lawsuit to an end.

The difference in outcomes can be accounted for in the difference of applicable law. In re NCAA was brought under California publicity law while Brown v. EA was brought under federal trademark law, Section 43(a). In Brown v. EA the standard Brown had to meet was much stricter; he had to prove the use of his likeness by EA had “no artistic relevance whatsoever” or even if there was artistic relevance, EA mislead consumers to believe Brown endorsed the use of his likeness. The court found it hard to believe there was “zero” artistic relevance, when Brown’s image was clearly related to football, and despite surveys showing that consumers believed Brown’s permission was required for his likeness to be used by EA, the court demanded evidence of “explicit misleading.”

In In re NCAA, the standard under California publicity law is more accommodating. The standard is transformative use. To grant a motion to strike the defendant must prove it made transformative changes as a matter of law, meaning no one could reasonably conclude the likenesses were not transformative. Here, the “zero” tolerance standard was working against EA.

The Ninth Circuit itself commented on the difference in outcomes. It reasoned that the difference in standards was due to the different rights protected. Federal trademark law sought to protect First Amendment rights, which favors the defendant, while California publicity law sought to protect rights in one’s person, which favors the plaintiff.

Even though Brown’s federal case was dismissed, he still has the same California publicity causes of action as Keller and his lot. (His state claims were dismissed without prejudice, allowing him to take them up in state court.)

For Keller, in September 2013, EA and CLC submitted a settlement. This settlement would leave NCAA as the only defendant. EA also announced it was suspending its latest version of the college football video game because, as EA’s general manager, Cam Weber, stated, EA felt stuck in the middle of the NCAA and unhappy student-athletes. Still plowing ahead, EA renewed three-year contracts with more than 150 colleges, conferences, and bowl games for a new video game called “College Football,” simply removing “NCAA” from the title. As Ellen Staurowsky, a professor of sports management at Drexel University, stated, this may be a lawsuit of historic nature as student-athletes challenge “a system of inequality that does not fairly compensate revenue-producing athletes for their contributions to a multibillion-dollar industry.”

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* Lindsey M. Chessum is a third year law student at Wake Forest University School of Law. She has a Bachelor’s in Economics & Business and a Bachelor’s in Philosophy from Westmont College. She spent nearly two years in the stock market industry prior to law school, and upon graduation in 2014, Ms. Chessum plans to return to California to practice business law.