U.S. top court rejects EA Sports' appeal over Madden videogame

[March 22, 2016] By Lawrence Hurley

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday rejected Electronic Arts Inc's bid to revive its free speech defense in a lawsuit filed by former NFL players who accused the videogame maker of using their likenesses in the popular Madden NFL series without permission or proper compensation.

The high court left in place a January 2015 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that rejected the company's free speech claims and said the lawsuit could move forward.

The Madden NFL videogame, first launched in 1993 and regularly updated, allows players to simulate National Football League games by controlling the teams. The videogame includes realistic depictions of the football players.

Lawyers for the former NFL players noted in court papers that EA pays a license fee to use the likenesses of players currently in the league but offered no equivalent fee to the former players depicted in versions of the game made between 2001 and 2009 that allowed the user to play using popular teams from the past.

The appeals court rejected EA's argument that its use of the likenesses was "incidental," and thus protected under the First Amendment of the U.S. Constitution, which guarantees free speech.

"EA's use of the former players' likenesses is not incidental, because it is central to EA's main commercial purpose - to create a realistic virtual simulation of football games involving current and former NFL teams," Circuit Judge Raymond Fisher wrote for the unanimous three-judge appeals court panel.

The appeals court upheld a 2012 ruling by U.S. District Judge Richard Seeborg allowing the case to proceed against EA, which is based in Redwood City, California.

In 2013, the appeals court issued a similar ruling in a lawsuit against EA on behalf of college athletes whose likenesses were used in video games. EA later reached a $40 million settlement of claims brought in the college case on behalf of Sam Keller, a former Arizona State University quarterback who was briefly under contract with the NFL's Oakland Raiders, and other football and basketball players.

Four former NFL players were named as plaintiffs in the lawsuit that the Supreme Court was asked to consider, including quarterback Vince Ferragamo, who helped lead the Los Angeles Rams to the Super Bowl following the 1979 season.

The other plaintiffs were Keller, former Dallas Cowboys tight end Billy Joe DuPree and former Cincinnati Bengals and Tampa Bay Buccaneers running back Tony Davis.

The case is Electronic Arts v. Davis, U.S. Supreme Court, No. 15-424.

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