Court rejects EA's First Amendment appeal in likeness lawsuit

U.S. court of appeals strikes down claim that practice of using an athlete's likeness was protected under the First Amendment.

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A United States court of appeals today rejected EA and NCAA's latest appeal over the use of collegiate athletes' likeness in the publisher's games.

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The 2-1 ruling from the Ninth Circuit Court of Appeals dismissed EA's claim that the practice of using an athlete's likeness was protected under the First Amendment.

The case was originally filed in May 2009 by former Arizona State University and University of Nebraska starting quarterback Sam Keller.

Keller and his legal team, Hagens Berman Sobol Shapiro LLP, contend that EA's NCAA games use athletes' likenesses, including accurate depictions of height, age, and weight, without permission.

"Today’s ruling, combined with the NCAA's decision not to renew its license, speaks volumes about the actions of the defendants," attorney for Keller Steve Berman said in a statement. "We are confident that EA and the NCAA made millions of dollars at the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone. This ruling will give us a chance not only to recover the value of the images for the college athletes, but also to punish EA and the NCAA for intentionally profiting off of things they knew were off limits to them."

In a separate ruling today, EA prevailed against former Cleveland Browns running back Jim Brown in a similar case on that grounds that his likeness was "artistically relevant" to the games. The NFL Hall of Famer had been alleging that EA was illegally profiting from his likeness and identity due to the publisher's inclusion of a physically and statistically similar running back on its "All Browns Team" of Cleveland football greats.

"We're pleased with the outcome regarding Jim Brown’s likeness, but equally disappointed with the ruling against First Amendment protection in the Keller case," an EA representative told GameSpot. "We believe the reasoning in Judge Thomas' dissent in that decision will ultimately prevail as we seek further court review."

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