The Ninth Circuit Court of Appeals rejected a preemptive appeal by EA Sports Wednesday, affirming a prior ruling by Judge Claudia Wilken that allowed former NCAA athletes to proceed in their suit against the video game giant for using player likenesses. A three-judge panel split, 2-1, in favor of the former players, refusing to adopt EA's argument that the use of player avatars is protected by the First Amendment.
Wednesday's ruling is the first by an appellate court in the O'Bannon matter, and regardless of the eventual outcome of the case, the Ninth Circuit is almost certainly going to have the final say on the lawsuit. Given that district court judges often take their cues from appellate decisions, the language used by the Ninth Circuit Wednesday could also provide Judge Wilken with her template for lower-court rulings going forward.
What they were arguing
Back in 2010, former Arizona State and Nebraksa quarterback Sam Keller filed suit against EA Sports for allegedly using his likeness in its NCAA Football games. The suit paralleled one later filed by former UCLA basketball player Ed O'Bannon, and the court eventually combined the two suits into one piece of litigation. While now commonly known as the O'Bannon case, the suit technically remains under Keller's name on the federal docket.
EA Sports quickly filed a motion to dismiss the lawsuit on the grounds that the suit was meant to prevent the company from exercising its First Amendment freedom of expression. EA argued that, even if it was using player likenesses, it was doing so in the same way as an impressionist uses a celebrity's mannerisms to make a joke.
Somewhat surprisingly, there is some precedent for this: EA relied on, among other things, a previous decision which threw out a lawsuit filed by musicians Edgar and Johnny Winter against DC Comics for creating half-human, half-worm characters called "Edgar and Johnny Autumn." In that case, the court found that the likenesses were in service of a creative purpose and denied the Winters' claim.
Judge Wilken didn't buy EA's argument, however, and relied on another venerable video game franchise in reaching her decision: Guitar Hero. Back in 2011, No Doubt was featured in Activision's Band Hero reboot. While No Doubt's members had signed an agreement with Activision for limited use of their likenesses, Activision went beyond the scope of that agreement and allowed players to choose No Doubt avatars as their own, to sing and dance and presumably make cell phone commercials and play drums while nearly naked. No Doubt sued, and Activision claimed the First Amendment protected its activity. The California Court of Appeals found that there was no creative expression in depicting celebrities doing exactly the same thing that made them celebrities.
It didn't take much for Judge Wilken to extend the logic to this case, and two of the three judges deciding the appeal at the Ninth Circuit agreed: depicting college football players playing college football requires almost no creative license, and the freedom of such expression is outweighed by the celebrity's rights to their own likeness.
Three things we learned
1. The debate over whether EA uses player likenesses is pretty much over.
The court took as fact that player likenesses were used in EA Sports' games. In fact, at least for purposes of this hearing, EA didn't really argue that it wasn't. From the court's opinion:
In NCAA Football, EA seeks to replicate each school's entire team as accurately as possible. Every real football player on each team included in the game has a corresponding avatar in the game with the player's actual jersey number and virtually identical height, weight, build, skin tone, hair color, and home state. EA attempts to match any unique, highly identifiable playing behaviors by sending detailed questionnaires to team equipment managers. Additionally, EA creates realistic virtual versions of actual stadiums; populates them with the virtual athletes, coaches, cheerleaders, and fans realistically rendered by EA's graphic artists; and incorporates realistic sounds such as the crunch of the players' pads and the roar of the crowd.
EA's game differs from reality in that EA omits the players' names on their jerseys and assigns each player a
home town that is different from the actual player's home town. However, users of the video game may upload rosters of names obtained from third parties so that the names do appear on the jerseys. In such cases, EA allows images from the game containing athletes' real names to be posted on its website by users.
EA's decision to concede the likeness issue and focus on the First Amendment argument is largely tactical. The company's motion to dismiss wasn't focused on the avatars, and an argument over likenesses would be confusing and irrelevant, two things EA did not want in this proceeding.
Still, the Ninth Circuit went out of its way to detail the similarities between actual players and EA avatars, in a way that can be repeated by the lower court or any other appeal panel examining the issue.
2. Every player is a star.
Throughout the O'Bannon case, the NCAA and EA have argued that the value of player likenesses did not extend past superstar players.
The argument is fairly straightforward: Heisman Trophy-winner Johnny Manziel is more famous, and has more value in his likeness, than a fourth-string freshman offensive guard at Tulane. Gamers might forgive a discrepancy in the likeness of the unknown guard, but making Manziel a 6'6 statuesque pocket passer would draw howls of discontent. If that is the case, they argue, then superstars have value that the backup does not possess.
In one footnote, the Ninth Circuit laid bare the faulty logic at the heart of EA's argument:
Judge Thomas argues that the "sheer number of virtual actors," the absence of "any evidence as to the personal marketing power of Sam Keller," and the relative anonymity of each individual player in NCAA Football as compared to the public figures in other California right-of-publicity cases all mitigate in favor of finding that the EA's First Amendment rights outweigh Keller's right of publicity....[T]he fact is that EA elected to use avatars that mimic real college football players for a reason. If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard. Having chosen to use the players' likenesses, EA cannot now hide behind the numerosity of its potential offenses or the alleged unimportance of any one individual player.
If nobody cared that the fourth-string guard had the same height, weight, year, home state, ethnicity, skin tone, and haircut as his video game doppelganger, then why would EA Sports go to such lengths to make sure it was correct? If it's in the game, it's obviously important to EA Sports that it be in the game, and the only rationale for that level of detail is that the detail itself has value.
3. Nobody likes the NCAA.
Judge Sidney Thomas was the dissenter from the three-judge panel, writing that EA has a protected First Amendment right to produce avatars identical to other players using publicly-available information. At one point, Judge Thomas compares EA's use of freely available information to produce likenesses of real players to fantasy baseball, which the Eighth Circuit has previously held to be protected by the First Amendment. It's a nuanced, well-reasoned argument that EA could use as the basis of a future summary judgment.
But even Thomas thinks the NCAA is the purveyor of an exploitive scheme sapping the life force out of young men and converting it into piles of filthy lucre while hiding behind the veil of "amateur athletics":
The issue of whether this structure is fair to the student athlete is beyond the scope of this appeal, but forms a significant backdrop to the discussion. The NCAA received revenues of $871.6 million in fiscal year 2011-12, with 81% of the money coming from television and marketing fees. However, few college athletes will ever receive any professional compensation. The NCAA reports that in 2011, there were 67,887 college football players. Of those, 15,086 were senior players, and only 255 athletes were drafted for a professional team. Thus, only 1.7% of seniors received any subsequent professional economic compensation for their athletic endeavors.
And participation in college football can come at a terrible cost. The NCAA reports that, during a recent five-year period, college football players suffered 41,000 injuries, including 23 non-fatal catastrophic injuries and 11 fatalties from indirect catastrophic injuries.
The majority isn't much easier on the NCAA. Rather, it takes Thomas' aside about the unfairness of the college football system and bludgeons one of the NCAA's oft-used arguments against O'Bannon with it:
Judge Thomas commendably addresses the fairness of this structure, but setting fairness aside, the fact is that college athletes are not indefinitely bound by NCAA rules. Once an athlete graduates from college, for instance, the athlete can capitalize on his success on the field during college in any number of ways. EA’s use of a college athlete’s likeness interferes with the athlete’s right to capitalize on his athletic success once he is beyond the dominion of NCAA rule.
Both the NCAA and EA have previously argued that the rules prohibiting athletes from using or selling their likenesses end when the player's college career ends, and that players can sell their likeness to the highest bidder as soon as they leave school. While the majority acknowledges this, it also clearly believes that the presence of an erstwhile purchaser of those rights instead getting them for free could limit that market.
What happens next?
Had EA prevailed, it would have been dismissed from the O'Bannon case. As it is, it remains a defendant in the lower court matter, where it just filed another motion to be dismissed. The O'Bannon litigation has shifted away from video games and toward the real source of college sports largesse: television rights.
Compared to the hundreds of millions of dollars the NCAA and conferences are reaping from new TV deals, the EA Sports case is pocket change. Prospects of the entire O'Bannon matter settling are not promising, but the chance of the video games component reaching a settlement have never been better.
As for the NCAA, there is always the chance that a different appellate panel will reach different decisions, but Mark Emmert and company have to be wary of the language used by the Ninth Circuit Wednesday. When even your legal bedfellows are decrying your organization as predatory and unfair, your defense has an uphill battle.