Video games made national headlines on Monday when the Supreme Court announced that it would let stand a decision made in January from a lower court that would make EA face a lawsuit from former NFL players.
EA is currently facing a lawsuit from a variety of former NFL players, including legendary quarterback Vince Ferragamo, over the inclusion of historic teams in the Madden franchise whose rosters consist of unnamed players whose attributes and physical appearances closely resemble actual NFL veterans. Under the current licensing model, EA pays licensing fees in order to be able to use the likeness of current NFL players, but does not pay anything to be able to use the likeness of retired players. Nevertheless, EA published versions of Madden from 2001 to 2009 that let gamers use famous NFL teams and players from the past.
EA argued that since they refrained from using former players actual names the inclusion of these characters should be protected under free speech as the use of the likenesses was ‘incidental.’ However, a unanimous three-judge decision disagreed. Raymond Fisher wrote of their decision: “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.”
This isn’t the first time EA has run into trouble with issues regarding the use of professional athlete’s likenesses in one of their titles. In 2013 the appeals court ruled against EA’s NCAA Football Series and EA eventually settled out of court for around $60 million to thousands of college athletes whose likenesses’ were depicted in the series. The settlement led to the cancellation of the next-generation revamp of the series that was due in 2014 and the eventual discontinuation of the franchise.