EA Invokes First Amendment in NCAA and Madden Cases

Video game publisher Electronic Arts has invoked Fist Amendment arguments as it tries to get a panel of three judges to throw out a lawsuit that is linked to the way the company has used the likeness and image of football players in its series of NCAA titles.

Sam Keller, who was a quarterback for Arizona State, and other players from the NCAA joined forces to sue the publisher for the, they say, unlawful way it used their images to promote its games without entering into an agreement with them.

The lawyers who are representing Electronic Arts have argued that, “As applied by the district court, the test arguably would not protect any expressive work that uses a person’s actual name or realistic likeness, including films like Forest Gump, The Aviator, and Boys Don’t Cry.”

The arguments are pretty much the same ones used in an earlier stage of the court battle, when a judge from a lower court ruled that suit can go ahead because the issue at its center was not one linked to free expression and the First Amendment.

The court also heard arguments in a related case, in which Jim Brown, a player for the Cleveland Browns, sued Electronic Arts for using his likeness in the Madden NFL series.

Earlier a judge had said that the Madden games are “expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment,” but the lawyers for the player say that the precedent on which the ruling was based is not solid.

The NCAA and Madden franchises are crucial to publisher Electronic Arts and much of their success is based on allowing players to choose teams and players that are very close to real life and bring them to virtual glory.

It's not clear when the Ninth Circuit court of appeal will rule on the video-game-related cases.