Sam Keller, a former college football QB suing Electronic Arts and the NCAA for allegedly using his image in video games without his permission, told a California appeals court in a filing yesterday that it was “critical” for the major sports unions to be given time to argue at the oral arguments next Tuesday. The unions, according to the filing, within the last two weeks hired Paul Clement of King & Spalding LLP to argue on their behalf if the court grants them the right to speak. The court has already turned Keller down once in his effort to have the unions argue their support for him. Now Keller is arguing he will give up one quarter of his allotted 20 minutes to the unions, rather than the unions having supplemental time. The case is closely watched because were Keller to win, it would change the economics of the sports video gaming industry. EA argues its games are works of art and protected by the first amendment, so it need not pay fees to athletes like those within the NCAA games. Keller’s case continues to wind its way through the District court level. What is at issue at the Ninth Circuit Court of Appeals is the district court’s denial of EA’s motion to dismiss the case. EA appealed that ruling. The unions are the MLBPA, NBPA, NFLPA, NHLPA and MLSPU. They filed a friend of the court brief on Keller’s behalf in November. “EA ... devoted an entire, nine-page section of its Reply Brief to the Professional Players’ Associations’ brief,” Keller wrote yesterday. “It is clear that EA believes that the Court will take [their] arguments seriously and that they are critical to the outcome of the case."
