Dallas tight end Billy Joe DuPree, Tampa Bay Buccarneers tackle Anthony Davis, and Green Bay quarterback Vince Ferragamo haven’t played NFL football in many years, at least in the real world. All three of these men have played most recently in Madden NFL games as parts of classic team rosters in EA’s ubiquitous football franchise. These players however never agreed to let EA use their respective likenesses in the game and in 2010 they filed a class action lawsuit against the publisher seeking compensation in the form of damages, profits made from the use of their likenesses, and attorney’s fees for 6,000 retired NFL players.
This is neither the first nor the last time that EA will be sued by athletes over likeness rights. What’s unique about this case according to a Gamasutra report is that it will actually go to court.
Since the U.S. Supreme Court ruled that video games are speech protected by the First Amendment in June 2011, EA has been able to deflect similar lawsuits. EA had lawsuits filed by former Rutgers quarterback Ryan Hart, as well as another by Arizona State QB Sam Keller and other college players, over likenesses used in the NCAA Football series thrown out claiming that its First Amendment rights to free expression overruled player publicity rights. Former NFL player Jim Brown of the Cleveland Browns and NCAA basketball coach Bill Russell filed similar lawsuits as well. U.S. District Judge Freda L. Wolfson of New Jersey and others all sided with EA and threw out the lawsuits.
A California court however has dismissed EA’s motion to dismiss and will allow DuPree, Ferragamo, and Davis’ class action case to go to court. Depending on the outcome, EA may need to start paying out massive royalty fees to players in both college and professional sports.
This is a sticky issue. Historic teams in Madden NFL, while statistically accurate to the accusing players, don’t replicate those players’ likenesses or team numbers. The game’s character editor meanwhile fixes that in a jiffy; if Barry Sanders isn’t in the game, just go ahead and make a character on the Lions squad with the number 20 that happens to just look exactly like him and has high running stats. Just because EA provides the tools to recreate a player’s exact appearance doesn’t necessarily mean that it’s making a “calculated and underhanded attempt” to feature those players in its games, as this lawsuit puts it. A California court may disagree however.