First Amendment defense ruled out in Keller suit vs. EA
Former Arizona State and Nebraska quarterback Sam Keller moved an important step closer Wednesday to winning a class-action lawsuit over impermissible use of college-athlete likenesses in video games.
The 9th Circuit U.S. Court of Appeals in California ruled 2-1against Electronic Arts and the NCAA, affirming a district court ruling that EA had no First Amendment defense in using the athletes’ likenesses.
“It’s been a long, long time coming,” Keller said of the case, originally filed in 2009. “We knew the First Amendment was always their main argument, and now that that’s been ruled on we can proceed to the next step. The momentum has definitely shifted for the better. People are starting to realize something’s got to change, and I think it definitely will.”
Judge Jay Bybee wrote in the appeals court majority decision that “EA’s use does not qualify ... as a matter of law because it literally recreates Keller in the very set-
ting in which he has achieved renown.”
In his dissent, Judge Sidney Thomas said EA’s “NCAA Football” video games are transformative and qualify for First Amendment protection. “I would not punish EA for the realism of its games and for the skill of the artists,” Thomas wrote, demonstrating “how little of NCAA Football is driven by the particular likeness of Sam Keller or any of the other plaintiffs.”
The case has been sent back to trial in a Northern District Court in California. EA plans to appeal Tuesday’s ruling.
Keller, 28, lives in Scottsdale and is the offensive coordinator at Scottsdale Saguaro High School. He played at ASU from 2003-05, then transferred and was Nebraska’s quarterback in 2007.
“It’s never been about me,” Keller said. “Somebody had to step up and do this, and I did. I took a ton of heat for it. But if it’s right and if you believe in it, it will work out the way it’s supposed to. It was never about me or a settlement or making a killing. It’s a class-action lawsuit (if so certified in court) that applies to thousands.
“I just want to see that the end product is right for the college athletes that came before me, for me and the ones that played when we did and especially for the ones to come. That’s where it’s most important.”
The NCAA announced this month that it will not sign a new licensing contract with EA Sports for the “NCAA Football” video game. The current contract expires in June 2014.
“We are confident in our legal position regarding the use of our trademarks in video games,” the NCAA said in a release. “But given the current business climate and costs of litigation, we determined participating in this game is not in the best interests of the NCAA.”
Keller interprets that decision as a sign that the “writing was on the wall” in his favor. “And now they don’t have the First Amendment argument.”
Robert Carey and Leonard Aragon are Phoenix attorneys for Keller. Steve Berman of Seattle argued the appeals case for the Hagens Berman Sobol Shapiro law firm.
“It obliterates (EA’s) defense,” Carey said. “It’s tremendously significant. That’s why (pro) players associations and Screen Actors Guild and major media corporations are putting in friend-of-court briefs. If we had lost, you could have made a digital Tom Cruise or digital actress and just changed the name, made it just like them and not had to pay them anything. They (EA) are going to have come up with something else.”
The antitrust lawsuit against the NCAA and EA, with lead plaintiff Ed O’Bannon, is a separate case that now includes University of Arizona football players Jake Fischer and Jake Smith. There is overlap between the cases, although Carey said they could be divided. Former ASU football player Craig Newsome is part of the O’Bannon lawsuit.
“The O’Bannon part of the case has gotten way ahead of us,” Carey said. “You can’t try these two theories together. One is a theft of property (Keller), and the other is impairment of market power (O’Bannon). They’re just too far apart in concept and time-wise.”