Not Playing Games
December 8, 2009
In a case attracting national attention, on May 5, 2009, Sam Keller ("Keller") filed a class action lawsuit on behalf of current and former college football and basketball players against videogame publisher Electronic Arts, Inc. ("EA"), the National Collegiate Athletics Association ("NCAA") and Collegiate Licensing Company ("CLC") alleging violations the players' rights of publicity and other claims. Keller's allegations relate to EA's successful video game franchises NCAA Football, NCAA Basketball and NCAA March Madness.
Keller is a former college football player who played quarterback for Arizona State University (from 2003-2005) and the University of Nebraska (in 2007). Keller filed suit on behalf of ""all NCAA football and basketball players listed in the official opening-day roster of a school whose team was included in any interactive software produced by Electronic Arts, and whose assigned jersey number appears on a virtual player in the software."" EA publishes its videogames under a license from CLC, which manages the NCAA's licensing business.
Keller alleges that the NCAA's bylaws specifically prohibit the licensing of student athletes' names, pictures or likenesses, but that EA, with the tacit consent of the NCAA and CLC, has produced videogames that use athletes' images, likenesses and distinctive appearances in violation of the athletes' rights and in violation of the NCAA's own bylaws. Although the license agreements between EA and CLC explicitly prohibit the use of NCAA athlete names and likenesses in NCAA-branded videogames, Keller contends that the EA games use everything short of the athletes' names, in violation of the NCAA's bylaws and in violation of the athletes' rights of publicity.
Specifically, Keller notes that while EA games do not, out of the box, include any athletes' names, they precisely replicate each NCAA school's entire team, including logos, uniforms, mascots and stadiums. Moreover, the EA games include rosters of athletes that directly correspond to each NCAA school's roster, including: jersey numbers, positions, heights, weights, builds, skin tone, hair color, hair style, home states and collegiate year (freshman, sophomore, etc.). Keller also alleges that EA's games depict distinctive ""idiosyncratic equipment preferences"" of NCAA athletes, such as wristbands, headbands, facemasks, visors, back plates, arm sleeves, and arm-bands. According to Keller, the only detail omitted from EA's games is the real-life player's name on the jersey of the electronic equivalent.
To that end, Keller contends that EA intentionally designs the games to allow the actual players' names to be uploaded into the games, and NCAA encourages users of the games to post to EA's website screen shots, videos, and pictures depicting game play in which the uploaded players' names are visible.
Keller brings several causes of action on behalf of the entire class of NCAA athletes. First, he claims that the NCAA, CLC and EA have violated the athletes' rights of publicity under Indiana and California law (EA Sports in California and the NCAA is in Indiana). Next, Keller claims that the NCAA, CLC and EA conspired to use the athletes' names and likenesses in violation of the athletes' rights of publicity. Keller also brings a claim for breach of contract against the NCAA for consenting to EA's use of the athletes' names and likenesses. Lastly, Keller brings a claim of unfair competition against EA for producing the games, and a claim for unjust enrichment against EA and CLC.
For their part, EA, the NCAA and CLC each have filed motions to dismiss Keller's claims which, as of the date of this article, remain pending before the court. In its motion, EA claims that the videogames are protected by the First Amendment and the California Constitution as ""expressive and transformative works."" EA cites to several cases holding that videogames are constitutionally protected works and that as long as the games contain sufficient ""transformative"" content (that is, they contain sufficient independent creative elements), the First Amendment outweighs any potential right of publicity violations. EA also claims, citing recent court decisions regarding use of professional athletes' names, statistics and biographical information for online fantasy baseball and fantasy football games, that any use by EA of NCAA players' identifying content is permissible because of the strong public interest in information about sports and athletes.
The NCAA bases its motion to dismiss on the fact that the NCAA did not ""use"" the athletes' names and likeness, and points out that the only alleged ""use"" was by EA. The NCAA further notes that it prohibits all licensees, including CLC and EA, from using the athletes' names and likenesses. Similarly, CLC claims in its motion to dismiss that Keller's claims against it are barred by CLC's agreement with EA, which specifically excludes the athletes' names and likenesses.
Should the court deny EA, the NCAA and CLC's motions to dismiss, the main issue in the case will be whether EA went too far by using too much information about the athletes. That is, if Keller's allegations are true regarding the extent of EA's use of NCAA athletes' jersey numbers, positions, heights, weights, builds, skin tone, hair color, hair style, home states, collegiate year, etc., does such a combination of biographical information and non-specific likeness rise to the level of a violation of the athletes' rights of publicity?  If the court finds that EA did go too far, another issue will be whether the NCAA and/or CLC can be held liable for tacitly consenting to EA's activities, or as alleged by Keller, for conspiring do to so.
The Keller case surely will be closely watched in the industry-and it has opened up the floodgates for similar lawsuits. Shortly after Keller's case was filed, former Rutgers University quarterback Ryan Hart, joined by former University of California quarterback Troy Taylor, also filed suit against EA, CLC and the NCAA alleging similar violations. Former UCLA basketball player Ed O'Bannon filed a class action suit against EA, CLC and the NCAA regarding use of athletes' images for DVDs, TV, photos, memorabilia and advertising.  And, former University of North Carolina basketball player Byron Bishop filed a class action suit against EA, CLC and the NCAA, charging that the defendants conspired to violate the NCAA's by-laws prohibiting the for-profit use of amateur athletes by including likenesses-but not names-of current athletes in NCAA-branded games
 Interestingly, Indiana's right of publicity statute is fairly broad, and includes protection for not just names and likenesses, but also for distinctive appearances, gestures and mannerisms. This may help Keller's case, as he has included a cause of action (his leading cause of action) for violation of this statute.
 O'Bannon has filed a motion to consolidate his case with Keller's case."