Former NCAA athletes prevail over EA Sports in preliminary O'Bannon appeal

David Banks

That's right, there is more than one case against EA over use of college player likenesses in video games. Could this ruling affect the O'Bannon case?

A Federal appeals court ruled in favor of a group of former college football players led by former Arizona State quarterback Sam Keller on Wednesday, ruling that EA Sports used their likenesses without permission. The court ruled that EA was not protected by the First Amendment in its creation of currently players in video game form, which does not fall into the protected category of free expression.

Keller filed his lawsuit in May 2009, at roughly the same time that former UCLA basketball player filed a similar suit against the NCAA and EA Sports. The federal court quickly consolidated the suits, as they dealt with the same subject matter, but not before attorneys for EA Sports filed a preliminary motion to have Keller's claim dismissed on First Amendment grounds. According to EA's theory, using avatars of college football players is no different than creating likenesses of other celebrities for artistic effect. Relying on a previous case which found that the makers of Band Hero overstepped their bounds while creating and using likenesses of the members of No Doubt, Judge Claudia Wilken dismissed EA's motion. EA appealed that decision to the Ninth Circuit Court of Appeals while the litigation of the underlying suit continued at the district court level. That appeal was rejected Wednesday.

The decision comes on the same day that EA is trying to extract itself from the O'Bannon litigation through another preliminary motion. With this decision now against the company and the Court of Appeals clearly in agreement with O'Bannon that player likenesses are being used, a settlement between the EA and the O'Bannon plaintiffs could be forthcoming.

From a statement released by the prevailing law firm, Hagens Berman:

"The Court of Appeals confirmed that EA's defense - the First Amendment claim - was fundamentally and fatally flawed," [Steve] Berman said. "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," said Berman. "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."

This doesn't necessarily change anything with regards to the O'Bannon case, but the signs are mounting that EA and the NCAA are in trouble.

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