Retired Football Players Allowed to Advance in Lawsuit Over EA's 'Madden NFL'

Madden NFL Football Video Game Still

On Tuesday, the 9th U.S. Circuit Court of Appeals refused to end a lawsuit over Madden NFL, the popular football video game series published by Electronic Arts.

The lawsuit was brought by retired NFL players including former Tampa Bay Buccaneers running back Michael "Tony" Davis and former Los Angeles Rams quarterback Vince Ferragamo, who allege the game company has violated their likenesses through the use of avatars in a realistic virtual simulation of football games involving current and former NFL teams.

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The dispute is the latest struggle between publicity rights and the First Amendment — and anyone who believes the latter will always triumph is mistaken. In a win for the former football stars, as well as Hollywood actors, a federal appeals court ruled today that EA had not shown a probability of prevailing on any of its fair use or public interest defenses.

The outcome might be surprising to those who followed former Panama dictator Manuel Noriega's courtroom loss last year to Activision over his inclusion in Call of Duty. In that case, a Los Angeles Superior Court judge decided that Noriega wasn't a central part of the game and that Activision's First Amendment right to free expression outweighed Noriega's right of publicity.

In a dispute over one of its billion-dollar franchises, EA wasn't as lucky.

EA puts up several affirmative defenses in the dispute over Madden NFL, and in an anti-SLAPP motion, argued that it was likely to prevail in the lawsuit.

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The first defense put up by EA was that the use of athlete likenesses was transformative. Using the same logic that provided victory for former college athletes who sued EA over a college football game, the 9th Circuit rejects that argument. "Like NCAA Football, Madden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life — playing football for an NFL team," writes 9th Circuit Judge Raymond Fisher.

EA also attempted a defense that was premised on an exemption in the publicity rights statute for the publication of matter in the public interest. But the 9th Circuit hardly thinks of the game as being similar to the types of journalistic enterprise found in a documentary or newspaper photograph. "Like NCAA Football, although Madden NFL contains some factual data about current and former NFL teams and players, it is 'a game, not a reference source' or a 'publication of facts' about professional football," continues Judge Fisher.

The game publisher also tried to apply a test commonly used in trademark cases — that its use of the former players had artistic relevance to its work, but the 9th Circuit says the test designed to address the risk of consumer confusion wasn't appropriate for a publicity rights claim.

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Finally, EA argued that the avatars were merely an incidental use. If the latest case makes its mark as precedent, it might be here. The 9th Circuit weighs the value, significance, purpose and duration of the use of the former players and comes away with a sense that the players' likenesses are worth something. Judge Fisher decides that "the former players’ likenesses have unique value and contribute to the commercial value of Madden NFL" and that "the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL."

As a result, the 9th Circuit affirms the lower court's decision to deny EA's motion to strike. The opinion not only reiterates what the same appellate circuit said last year in a similar case involving college athletes — something that could be disconcerting to TV broadcasters who are now facing legal heat — but also underscores some of the ways that publicity rights can gain an edge over First Amendment rights, best illustrated up until now by No Doubt singer Gwen Stefani's victory over a game that used her avatar. And that will come as a relief to members of SAG-AFTRA. In an amicus brief, the actors' guild wrote:

"Although this case involves athletes, SAG-AFTRA members are potentially affected by its outcome. If allowed unchecked, EA’s infringing use of the athletes’ personas opens the door for others to freely circumvent the statutory and common law right of publicity of any individual in the future. The result can be ruinous to performers’ careers and financial interests."

Below is today's full decision from the 9th Circuit. The case could be appealed to the U.S. Supreme Court. If not, it will proceed back at a district court.

Twitter: @eriqgardner