According to The Wall Street Journal, a federal appeals court recently said that Electronic Arts, Inc. (EA) can be sued by a former college football player who alleges that the video game designer stole his likeness for its NCAA football series. The 2-1 decision by the U.S. Court of Appeals for the Third Circuit reversed a lower court which decided that the depiction of college athletes in the video game was protected by the First Amendment right to free speech.
In 2009, Ryan Hart, record-setting quarterback for the Rutgers University football team, sued EA alleging that it violated his right of publicity by using his likeness in the 2004-2006 installments of the game. The quarterback in the game had the same number, height, weight, helmet visor, and left wrist band as Hart did.
In order for Electronic Arts to earn a First Amendment shield, the company would have to prove that it significantly transformed Hart’s identity. The majority of the appeals court said that Electronic Arts had not proved this.
NCAA players are not allowed to profit from their celebrity, but Electronic Arts pays the Collegiate Licensing Co. to use school and team names, uniforms and fight songs in its video games.
The Ninth Circuit of the U.S. Court of Appeals is considering a separate lawsuit filed by Sam Keller, a former Arizona state quarterback, and other previous players.