Judge Shrugs Off Survey Showing Very Few Gameplayers Can Identify 'Madden NFL' Avatars

Electronic Arts loses its latest bid to defeat a lawsuit by retired NFL players, but the game publisher has escaped a class action.

For a whopping eight years, Electronic Arts has been fighting a lawsuit brought by retired NFL players who contend the game company has violated their likenesses through the use of avatars in a realistic virtual simulation of football games. Given this marathon case, perhaps it's understandable that EA has grown so sensitive about rights, it recently admitted to messing up when scrubbing Colin Kaepernick from the soundtrack of Madden NFL 19. Nevertheless, EA continues to get closer and closer to trial.

The latest came on Friday when a California federal judge rejected EA's bid for summary judgment in the lawsuit led by former Tampa Bay Buccaneers running back Michael "Tony" Davis and former Los Angeles Rams quarterback Vince Ferragamo based on a survey of 1,253 adults who played football video games. On the other hand, the case seemingly won't be proceeding as a class action.

First, though, some background.

Back in 2015, the 9th Circuit Court of Appeals refused to let EA's First Amendment arguments overcome the athletes' claims that their images and other distinguishing features had been misappropriated via a since-abandoned feature in Madden NFL that allowed gameplayers to use "historical" teams. It represented a win not only for the plaintiffs, but also for performers in Hollywood as SAG-AFTRA was one of the groups filing an amicus brief in support of the suing athletes. Celebrities wish to protect what makes them famous, too.

The Supreme Court then refused to review the case — which disappointed some legal observers who hoped the high court would weigh in on standards on how to balance the First Amendment and rights of publicity.

Still, there's been an open question about whether avatars in Madden NFL are identifiable. Game graphics may have progressed over the years, but give your average game-player a screenshot of an avatar in the game, and could that individual identify which athlete is being shown?

Turns out: No.

Of the 1,253 people surveyed, who all said they played video games, fewer than one percent could identify Davis' avatar and fewer than two percent could identify Ferragamo's. More than 90 percent couldn't even make a guess.

"These results are not surprising," stated EA in a summary judgment brief. "In deposition, Plaintiffs could not identify themselves, their teammates, their fellow class representatives, or other retired players."

Then again, as the plaintiffs argued, perhaps the survey was flawed. The game certainly gives its users other contextual clues.

U.S. District Court Judge Richard Seeborg agrees.

"Whatever probative value that survey may have, it does not serve to eliminate a triable issue of fact as to identifiability," he writes in Friday's decision. "Plaintiffs continue to point to the facts that have supported their case from the outset: EA unquestionably marketed the “historical” teams as providing players the ability to engage in realistic recreations of the actual teams, players have been able to “edit” the “scrambled” jersey numbers to reflect actual player numbers, and various physical and performance characteristics of actual players were reflected in the avatars at issue. Plaintiffs proffer evidence that members of the public in fact took advantage of those features. Although plaintiffs have not submitted any survey of their own, the evidence to which they point is sufficient to defeat summary judgment."

Seeborg adds that EA made efforts to render the avatars as generic to some degree.

"A reasonable inference is that EA was trying to have it both ways," states the decision. "[I]t wanted its customers to believe they could have genuine reenactments of games with representations of the actual players, while simultaneously hoping to remove enough identifying features that the former players could not claim a license was legally required."

Here's the summary judgment denial, which also gets into a separate but interesting discussion around copyright preemption, whether plaintiffs likenesses are "fixed" and the judge's response to EA's argument that videogames can be copyrighted so the right of publicity claims are usurped by federal law. It might be true that videogames are copyrightable, responds the judge, but EA hasn't shown that copyright extends to game play.

EA doesn't completely lose the game of litigation. In a separate decision, Seeborg has denied class certification for a second time after examining commonality and discussing the issue of identifiability in a different context.

"Under the proposed class definition, each class member would be an individual 'whose actual name appears in the software, or in EA’s design database(s),'" writes the judge. "EA, however, would not be liable for merely listing players’ names in its software and/or databases, where they are not displayed to persons playing the game. For a player to prevail, he must show there is an avatar used in the game that is sufficiently identifiable as him to constitute a misappropriation. Even assuming one player succeeds in showing that game users readily identify him (perhaps because there are particularly distinctive aspects to his identity captured in the avatar and contextual information), it would not follow that all or any of the other players named in the software or databases necessarily also are identifiable. Rather, each and every avatar alleged to represent a particular player will have to be examined to determine if it is an appropriation of that specific player’s identity within the meaning of the common law tort."

This is potentially an important point that could make publicity-rights class actions a tough one.

The judge adds, "Whether each player has a claim or not turns on the specific characteristics of that player’s identity and whether he can be identified by virtue of how those characteristics have been reflected in his avatar. EA’s potential liability to any former NFL player simply cannot be determined on a class-wide basis."