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Volume 24 No. 112

Marketing and Sponsorship

The Ninth U.S. Circuit Court of Appeals in S.F. yesterday "cleared the way for a group of college athletes to sue Electronic Arts Inc. for allegedly stealing their likenesses for its videogames," according to Joe Palazzolo of the WALL STREET JOURNAL. The ruling "advanced a claim" by former Arizona State QB Sam Keller and other ex-athletes who "allege EA used their attributes in its NCAA football and basketball games." EA's lawyers "argued the depiction of college players in its games amounts to expression protected by the First Amendment." Judge Jay Bybee wrote in the majority decision that to "earn that protection under California law, EA had to show its game added creative elements that transformed the avatars into something more than a 'mere celebrity likeness or imitation.'" Bybee wrote EA's use of Keller's likeness "does not qualify for First Amendment protection as a matter of law, because it literally recreates Keller in the very setting in which he has achieved renown." The ruling was the "second this year in which a federal appeals court said the company couldn't use the First Amendment as a shield against legal claims" (WALL STREET JOURNAL, 8/1). Keller said, "We knew the First Amendment was always their main argument, and now that that's been ruled on we can proceed to the next step. The momentum has definitely shifted for the better. People are starting to realize something's got to change, and I think it definitely will" (ARIZONA REPUBLIC, 8/1).

NOW WHAT? Keller attorney Steve Berman said, "We expect that when we appear before the trial court again this fall, the defendants will have a very difficult time mounting a new defense for their blatant exploitation of student-athletes." EA Senior Dir of Corporate Communications John Reseburg said that the company was "disappointed with the ruling and would 'seek further court review'" (S.F. CHRONICLE, 8/1). Keller attorney Rob Carey said, "Because we won against EA, we will be able to go against the NCAA for its looking the other way and increasing its royalty payments by using the likenesses of the students."'s Darren Rovell noted the case "can now proceed along with an identical case in New Jersey," which was brought by former Rutgers QB Ryan Hart. An appellate court there in May also "denied EA's First Amendment claim" (, 7/31). Meanwhile, ESPN's Len Elmore said the ruling will have "some impact" on college sports "depending on what the remedy is." The penalty "may ultimately bankrupt the NCAA and certainly it will force a new policy going forward as to how you televise games, how you treat players." Players may have to "negotiate individually their right of publicity." He said, "Sure, they should pay these guys. But in the long-term I hope it doesn't change the landscape of college sports" ("Closing Bell With Maria Bartiromo," CNBC, 7/31).

: The AP's Paul Elias reported the court in a separate ruling "tossed out Jim Brown's lawsuit against EA, even though Brown made similar -- but not identical -- allegations as Keller." Brown "argued that his inclusion in the Madden games suggested he endorsed the product." Brown attorney Ron Katz said that his client "filed his lawsuit alleging a violation of the Hall of Famer’s 'trademark' rather than Keller’s claim that EA violated his 'right to publicity.'" Authors, filmmakers and others are "allowed to use famous people’s 'trademarks' as long as they are creating new artwork and not seeking to profit specifically from the celebrity" (AP, 7/31).

GoDaddy CEO Blake Irving plans on "taking the company global next year," and that means motorsports sponsorships have to be "budgeted into the overall spend as GoDaddy puts an emphasis on [the] World Cup and reaching Latin American markets," according to Jenna Fryer of the AP. The company is "in the final year of its IndyCar contract with Andretti Autosport and driver James Hinchcliffe," while NASCAR driver Danica Patrick's deal "runs at least through 2014." Irving said that both are "strong GoDaddy ambassadors." Irving: "Hinch is such a great fit because he's got such a great understanding of social media, he's actually popped on social media in a way Danica hasn't. But both of them from a characteristic standpoint have made their own way, whether it was super sharp on how you get sponsors, how you position yourself and then how hard you actually race and how hard you try." Fryer noted Hinchcliffe can "negotiate with other IndyCar teams about his future" around Aug 15. Andretti Autosport would "like to have the three-time winner re-signed before the deadline, but first needs a commitment from GoDaddy." Irving "smirked when asked about GoDaddy's interest in staying in IndyCar." He said, "I would absolutely never screw up my negotiating advantage by answering that question." But Irving noted that racing is a "valuable venue and correlates with the GoDaddy message." GoDaddy also will have a "new focus on the domestic advertising campaign, which began to shift toward small businesses during last year's Olympic Games." Irving said that the ad Patrick and Hinchcliffe currently co-star in is "likely one of the last of its kind." Fryer: "Make no mistake, new leadership at GoDaddy has changed nothing about Patrick's position as its No. 1 marketer despite her struggles to reach the podium" (AP, 7/31).

In Cincinnati, Bowdeya Tweh notes people are "organizing campaigns to persuade companies including Cincinnati-based Procter & Gamble Co. to drop sponsorship of the 2014 Winter Olympics." The campaign is in response to "policies enacted in Russia deemed as anti-gay and a culture that gay-rights activists say is repressive." Other petitions are aimed at the IOC and foreign governments "to end support of the upcoming games in Russia or change its location" (CINCINNATI ENQUIRER, 8/1).

MATTER OF TRUST:'s Darren Rovell cited Repucom data as showing that the U.S. population believes suspended Brewers LF Ryan Braun is "one of the least trustworthy athletes." The data shows that among the general U.S. population, "only eight athletes are less trustworthy than Braun" -- Marion Jones, John Daly, Manny Ramirez, Lance Armstrong, Michael Vick, Metta World Peace, Pete Rose and Dennis Rodman (, 7/31).

WATER OF CHAMPIONS: The Blackhawks announced they are producing souvenir packages with actual melted ice from the United Center floor and selling them to raise money for Chicago Blackhawks Charities (Blackhawks).