US Court of Appeals tosses EA's First Amendment claim over player likenesses in NCAA games

The Ninth US Circuit Court of Appeals ruled today that EA cannot use the First Amendment as a defense to justify using student-athletes likenesses in video games without their permission.

According to the ruling against Electronic Arts and the NCAA, the case will be remanded back to the trial court where the case will proceed against all defendants.

The case was originally filed on May 5, 2009, in US District Court in Northern California, by Sam Keller, a former starting quarterback for Arizona State University and University of Nebraska.

Keller and his attorneys at Hagens Berman Sobol Shapiro LLP claim that EA’s NCAA games use the athletes’ likenesses, accurately depicting the height, age, weight and other information, without permission.

“The Court of Appeals confirmed that EA’s defense – the First Amendment claim – was fundamentally and fatally flawed,” said Steve Berman, managing partner of Hagens Berman.

“We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student-athletes.

“Today’s ruling, combined with the NCAA’s decision not to renew its license, speaks volumes about the actions of the defendants. We are confident that EA and the NCAA made millions of dollars at the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone.

"This ruling will give us a chance not only to recover the value of the images for the college athletes, but also to punish EA and the NCAA for intentionally profiting off of things they knew were off limits to them.”

A status call on the case is scheduled for September 5.

The suit alleges EA Sports knowingly used the likenesses of real NCAA players for its college basketball and football game, but under invented names, and claims the two companies conspired to deny players due royalties.

The NCAA recently chose not to renew its relationship with EA Sports following a successful monopoly lawsuit spearheaded by the same law firm. The chief attorney in the case against EAs aid this was a move designed to evade responsibility.

EA Sports signed up with the CLCinstead.