Free speech -- at least in the world of video games -- took a hit Wednesday in the ongoing battle regarding player likenesses.
A circuit court of appeals rejected game manufacturer Electronic Arts' claim that its use of player likenesses in its football game is protected by the First Amendment in a lawsuit brought by former quarterback Sam Keller. The move is seen as significant in the case going forward, at least as it applies to a Keller's suit brought against EA and the NCAA.
Keller was a former Arizona State and Nebraska quarterback.
The Keller and more-recognized O'Bannon lawsuits were originally separate cases before they were consolidated. Keller's was filed first in 2009. He maintained that EA uses player likenesses without permission.
"From the standpoint of the lawsuit the implications are quite significant," Rob Carey, a partner in the Seattle-based firm that is representing Keller, told CBSSports.com. "It is a separate lawsuit but it's in the same district and the same precedent will apply in the O'Bannon case."
The appeals court voted 2-1 in favor of Keller. The decision stated that the Arizona State quarterback in the 2005 EA game had the "same height, weight, skin tone, hair color, hairstyle, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.
“In the 2008 edition, the virtual quarterback for Nebraska has these same characteristics, though the jersey number does not match, presumably because Keller changed his number right before the season started.”
Dissenting judge Sidney Thomas wrote the "sheer number of virtual actors [in the game] and ... any evidence as to the personal marketing power of Sam Keller," are mitigating factors in favor of EA.
EA claimed that the First Amendment protected its right to publish the game. EA had first lost the appeal in district court before being defeated in the Ninth Circuit Court of Appeals. The ruling on the First Amendment claim had gone on for two years. Carey said one of the next steps now is to apply for class certification. Earlier, the NCAA had decided not to renew its license with EA Sports.
"Today's ruling, combined with the NCAA's decision not to renew its license, speaks volumes about the actions of the defendants,” said Steve Berman, managing partner of Hagens Berman Sobol Shapiro, who is representing Keller. "We are confident that EA and the NCAA made millions of dollars the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone."
Keller filed his action in May 2009 against the NCAA, EA and Collegiate Licensing Co. (CLC). Two months later, O'Bannon filed a similar class-action suit. In January 2010, a district court granted a motion to consolidate several cases against the three entities.
Here is a timeline of the player likeness legal action.