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Volume 20 No. 42
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NCAA blasts unions over filing in EA suits

Editor's note: This story is revised from the print edition.

Attorneys for Electronic Arts were scheduled to square off in a California federal appeals court last Friday against counsel for former college quarterback Sam Keller and NFL legend Jim Brown over the right to use their and other athletes’ images in video games, a long-running issue that predates their lawsuits.

EA, Keller and Brown, however, are not the only powerful sports interests battling in these cases. The NCAA last week filed a brief attacking the major professional players unions for a lengthy filing they submitted on behalf of Keller and Brown, who have separate but related lawsuits against the video game maker.

The players associations contend that if Brown and Keller were to lose their cases, such an outcome could harm the value of the currently lucrative licensing deals the unions have with EA.

“EA’s argument, if accepted by this court, would provide a massive commercial windfall to EA, effectively eliminate the right of publicity in the context where it is most often — and most importantly — invoked, and jeopardize long-settled expectations and the future value of [union] group licensing agreements,” warned the brief from the NFL Players Association, MLB Players Association, NHL Players’ Association, National Basketball Players Association and MLS Players Union.

The unions contend that if EA can take Keller’s image and use it without paying him, it could open the door for doing the same thing with pro athletes.

The NCAA, which licenses EA to use the NCAA and related trademarks, blasted back last week.

“The professional games marketed by EA … operate under express licenses from the Players Associations for which EA pays royalties in the games as well as in marketing and promotion associated with the game,” the NCAA wrote. “The NCAA respectfully requests that this court disregard the players associations’ unfounded and incorrect factual assertions regarding the use of student-athlete name, image or likeness.”

EA is appealing a district court ruling not to dismiss the Keller case, while Brown’s counsel is appealing a lower court’s dismissal of his case. Brown’s case is somewhat different in that he is suing under a right of publicity law, different from Keller’s more purely commercial case. But both involve EA using their images in video games without paying them.

The cases had previously been argued before the 9th Circuit, but the arguments were rescheduled after one of the judges, Pamela Rymer, died.