SBD/June 27, 2013/Marketing and Sponsorship

Court Denies EA Motion In Ryan Hart's Suit Over Alleged Improper Use Of Images

EA contends that the use of Hart's image is protected under the First Amendment
The Third Circuit Court of Appeals yesterday turned down a motion from EA to have the full court hear its appeals of a recent adverse ruling in favor of former Rutgers QB Ryan Hart suing over the alleged improper use of his image. A three-judge panel last month overturned a lower court decision dismissing Hart’s case against EA. Hart alleges his image was used in the video game maker’s products without his permission and the case is set now to proceed in the lower court. EA earlier this month filed a petition to have the case heard before the whole circuit court, known as an en banc appeal. Several major media companies filed briefs supporting EA’s appeals, including Dow Jones, ESPN and Advance Publications. Advance is the corporate parent company of THE DAILY. The Third Circuit notice turning down the appeal noted two judges, Thomas Ambro and Julio Fuentes, supported the appeal. The motion did not say how many judges turned down the appeal. The court’s website lists 25 judges. EA, which contends the use of Hart’s and other collegians’ images in its videogames are protected by the First Amendment, could appeal to the Supreme Court. It also could await the outcome of two similar cases brought against it by Pro Football HOFer Jim Brown and former Arizona State QB Sam Keller, currently pending in the Ninth Circuit Court of Appeals (Daniel Kaplan, Staff Writer).

WHO HAS THE UPPER HAND? HBO's Bryant Gumbel said Judge Claudia Ann Wilken of the U.S. District Court for Northern California over the next month "may prove to be the most important person in all of sports." Wilken is "expected to rule whether former college player Ed O'Bannon's case against the NCAA can go forward as a class action suit. If it does, she'll also decide whether it can involve only past players or, as the NCAA fears most, current players as well." Gumbel added, "Since the case, at its core, involves the NCAA's right to make money off of athletes without paying them, the stakes are enormous. A trial alone would involve not just arguments over amateurism and education but also those of taxation and compensation, issues that are central to the multi-billion dollar industry that college sports has become. Ultimately Wilken's judgment, whatever it is, will not bring an end to big-time college athletics as we know it, but it could at last lead to partial compensation for those who have been enriching others, but sharing in none of the rewards. At the very least, Judge Wilken can send tremors through an exploitative system that’s badly in need of change and for fans of real fairness, that day can't come soon enough" ("Real Sports," HBO, 6/25).

PAY FOR PLAY: ESPN's Brock Huard said the issue of athlete compensation is a "slippery slope." He added, "Do I think the NCAA owes me one single penny for my years in school? I don't. This is not preaching with some silver spoon in my mouth and just ramming it down, this is just my opinion and the sentiment I feel for most student-athletes. When I travel around college football, athletes are not overly burdened. I don't get a sense of being exploited. ... This is such a massive undertaking for people to say, 'Just blow the NCAA up, it's crooked, it's bureaucratic, it's a mess.' I think that's way, way too naive." Huard: "When the model was built for the NCAA, they had no idea ... it would turn into the billion dollar enterprise it has become and I think because of that, it's got issues to deal with" ("College Football Live," ESPN2, 6/24).
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