Retired NFL players can sue over video game

Three retired National Football League players won the right from a federal appeals court in San Francisco today to go ahead with a lawsuit against Redwood City-based Electronic Arts Inc. for using their likenesses in video games.

A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected the game maker’s argument that it was protected from the lawsuit under a First Amendment free-speech doctrine known as “incidental use” because its employment of the images was minimal.

Circuit Judge Raymond Fisher wrote:

“We hold 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.”

Realistic avatars representing former players were used by EA between 2001 and 2009 in a set of video games that enabled users to replay historic NFL games. The historic games were part of EA’s Madden NFL series.

The game company also uses current NFL players in other games in the series and pays those players millions of dollars each year in licensing fees, according to the court. But EA did not get permission from the retired players or pay them anything for the historic games.

The lawsuit alleging violation of the players’ right to commercial use of their images was filed in federal court in San Francisco in 2010 by retired St. Louis Rams quarterback Vince Ferragamo, Tampa Bay Buccaneers running back Tony Davis and Dallas Cowboys tight end Billy Joe Dupree.

They are seeking to have the case certified as a class action on behalf of an estimated 6,000 former NFL players who appeared on more than 100 historic teams in various editions of Madden NFL.

The appeals court upheld a 2012 ruling in which U.S. District Judge Richard Seeborg of San Francisco also rejected EA’s argument and refused to dismiss the lawsuit. If today’s ruling is not successfully appealed further, the case will go back to Seeborg’s court for trial.

Electronic Arts General Counsel Jacob Schatz said in a statement:

“We’re disappointed with the panel’s decision. … We believe in the First Amendment right to create expressive works — in any form — that relate to real-life people and events, and will seek further court review to protect it.”

The company could appeal to an expanded 11-judge panel of the circuit court or to the U.S. Supreme Court.

In a related lawsuit filed by former college football players, the appeals court last year rejected a broader First Amendment claim in which Electronic Arts argued its use of the likenesses was protected because the games were a form of creative expression.

That ruling paved the way for a $40 million settlement between EA and the former college players in federal court in Oakland. In its appeal in the retired NFL players’ case, Electronic Arts unsuccessfully sought to argue that the “incidental use” doctrine created an exception to last year’s broad ruling.

The doctrine had not been addressed in the previous case. In the historic NFL games, EA did not identify the avatars by name, but made the players readily identifiable by giving information about their position, years in the NFL, height, weight, skin tone and relative skill level in different aspects of the sport.

The company stated publicly it was dedicated to “creating the most true-to-life NFL simulation experience as possible,” the court noted.

In a guide to its 2006 edition of the Madden NFL series, the game maker said:

“The players do not have their actual names, but you can edit them if you want optimum realism.”