9th Circuit Keeps NFL Ex-Player Licensing Class Action Alive

Refusing to reinvent the wheel, the 9th U.S. Circuit Court of Appeals relied heavily on a case involving former college athletes in upholding a lower court’s decision to reject an anti-SLAPP motion filed by EA Sports in an NFL ex-player licensing class action lawsuit.

SLAPP refers to a strategic lawsuit against public participation, and Electronic Arts Inc. argued that it had several First Amendment defenses for the use of players’ likenesses and that the appeals court had erred in its ruling in Keller v. Electronic Arts. The judges borrowed heavily from that opinion and only updated it for one novel defense.

In both cases, a player had filed a class action lawsuit alleging that EA Sports had profited from using their likeness in one of their video games without paying them. In the Keller case, later settled, the 9th Circuit focused on the potential tests required for a First Amendment test: whether EA had “transformed” the likeness into a new entity, whether the effort was to prevent consumer confusion or whether the game acted as a reference.

The court decided that Electronic Arts and its Madden games failed all of those tests. Citing Keller, the 9th Circuit opinion noted that the title “is a means by which users can play their own virtual football games, not a means for obtaining information about real-world football games.” It also failed the consumer confusion test because of California’s right of publicity: the very fact that the statistics and attributes matched those of ex-players from the NFL made the justices’ cases for them.

So if the game is a way to create value for people who buy it, the 9th Circuit found that EA’s licensing fees paid to the NFL players’ union mean that current athletes’ likenesses are very valuable. “EA does not offer a persuasive reason to conclude otherwise as to the former players.” In addition, the justices noted that “EA includes only a small number of particularly successful or popular historic teams” and advertises their inclusion.

The licensing class action lawsuit filed by former NCAA quarterback Sam Keller was settled for $40 million recently.

The former NFL players are represented by class action attorneys from Henri Law Group, Bartko Zankel Bunzel & Miller, Thomas Whitelaw & Tyler LLP and Feazell & Tighe LLP.

The NFL Ex- Player Licensing Class Action Lawsuit is Michael Davis, et al. v. Electronics Arts Inc., Case No. 12-cv-15737, in the 9th U.S. Circuit Court of Appeals.