EA Suffers Setback in Madden NFL Lawsuit From Retired Players

US Supreme Court rejects EA's proposal to revive the case under a First Amendment defense.

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Back in January 2015, a judge ruled that Electronic Arts must face a Madden lawsuit from former players who claimed their likenesses were used in the games without permission and compensation. The company vowed to fight the suit and asked for it to be heard before the United States Supreme Court, the highest court in the land. On Monday, the Supreme Court rejected EA's bid to revive its defense in the case, which centered around elements of free speech, according to a report today from Reuters. The top court ruled that the January 2015 decision will stand, allowing the lawsuit to continue.

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Madden NFL games released from 2001 to 2009 allowed users to play with historical teams. Players names were not used, but things like their positions and attributes were. For its part, EA argued this should have been protected free speech under the First Amendment, but the Supreme Court didn't see it that way.

"The appeals court rejected EA's argument that its use of the likenesses was 'incidental,' and thus protected under the First Amendment of the U.S. Constitution, which guarantees free speech," Reuters reported.

Here is a line from the unanimous three-judge decision, written by circuit judge Raymond Fisher:

"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."

An EA representative declined to comment.

One of the players involved in the lawsuit, former Los Angeles Rams quarterback Vince Ferragamo, claimed that the Madden NFL series featured the exact likenesses, including characteristics, of retired players. However, Ferragamo claims EA did not obtain permission for their use.

This case is similar to one from 2013, when a court ruled against EA in a suit brought forward by former Arizona State University QB Sam Keller concerning the NCAA Football series. He claimed that EA used college athletes' likenesses without compensating the players. EA ended up paying out $60 million to settle the case, and the NCAA Football series was put on hold.

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