First Amendment Does Not Bar Suit by NCAA Former Player

Electronic Arts, Inc.’s use of likenesses of former NCAA football players in NCAA Football are too close to the real athletes to be protected by the First Amendment, a California federal court found.

A former NCAA quarterback brought a case against the NCAA and Electronic Arts (EA) alleging that, by incorporating his likeness into video games, the NCAA and EA violated his right to publicity and were unjustly enriched.

EA argued that its depiction of Sam Keller, a former starting quarterback for Arizona State University and the University of Nebraska football teams, was “protected by the First Amendment inasmuch as it contains significant transformative elements” that did not derive from his fame. The court found that in the game, “the quarterback for Arizona State University shares many of Plaintiff’s characteristics,” including wearing “the same jersey number, is the same height and weight and hails from the same state.” Based on these facts, the court found there is no “transformative use” of Keller’s image.

EA also argued that Keller’s NCAA image was a matter of public interest and therefore Keller had no right of publicity. The court found the use of the image was different than using historical facts or reporting on an actual football game. Instead, it allowed consumers to control the virtual players on a simulated football field. Thus, it was more than just a recitation and discussion of a player’s information.

Keller also alleged that both the NCAA, which licensed his image to EA, and EA were “unjustly enriched” by the licensing of his image for the video game. The NCAA argued that it was entitled to license Keller’s image because he gave the NCAA a perpetual license in return for being able to play NCAA sports. The court denied the motion to dismiss this count.

Finally, EA argued that the case was barred under California’s Strategic Lawsuits Against Public Participation (SLAPP) statute because the case arose from protected public issue activities. The court found that Keller made a sufficient showing of his probability of success on the merits of his claims, so the SLAPP statute defense is not available.

Keller v. Electronic Arts, Inc. and National Collegiate Athletic Association, ND Calif. No. C 09-1967, issued February 8, 2010.