SBD/February 11, 2011/Marketing and Sponsorship

Attorney For Sports Unions Can Argue On Behalf Of Sam Keller In EA Trial

The Ninth Circuit Court of Appeals will allow an attorney representing the major sports unions to argue for five minutes next week on behalf of Sam Keller, a former college football QB suing Electronic Arts and the NCAA for allegedly using his image in video games without his permission. The five minutes will be taken out of the 20 minutes allotted to Keller. The unions hired Paul Clement of King & Spalding LLP to argue on their behalf. The court had previously turned Keller down once in his effort to have the unions argue their support for him, but at that time he was arguing to supplement his time, not replace it. 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 appellate level is the lower 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. The appellate court arguments are scheduled for Tuesday.

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