EA loses appeal on first amendment grounds in NCAA college athlete case

Game likenesses not protected speech, rules court

The likenesses of real people in video games are not protected under the First Amendment, the U.S. 9th Circuit Court of Appeals has ruled.

The decision came as part of the ongoing Antitrust lawsuits between EA, the National College Athletic Association, and the Collegiate Licensing Company and several groups of current and former college athletes that allege the three companies used their likenesses without compensation.

EA has sought to have itself removed from the complaints on the grounds that the defendants have not provided evidence of an “antitrust conspiracy” that included EA, but has so far been unsuccessful.

Now the court has brought another verdict against the publisher, rejecting an appeal from EA, the NCAA and CLC that claimed use of the athlete’s likenesses was protected speech under the First Amendment.

“EA’s use of the likenesses of college athletes like [original plaintiff] Samuel Keller in its video games is not, as a matter of law, protected by the First Amendment," reads the court’s 2-1 majority opinion as reported by Gamasutra.

This verdict could have far-reaching implications for the game industry considering recent events like Ellen Page’s claim that Naughty Dog “ripped off” her likeness in The Last of Us.

This could open the door to future lawsuits by plaintiffs who can argue a studio used their appearance to create a character.

"The Court of Appeals confirmed that EA’s defense – the First Amendment claim – was fundamentally flawed," said Keller’s attorney Steve Berman.

"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."

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