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Volume 21 No. 2

Law and Politics

Athletes, individually or through their unions, receive tens of millions of dollars annually from licensing their images to video game makers, most notably Electronic Arts. The NFL Players Association alone normally takes in about $35 million annually in such money.

EA, however, told a federal appeals court recently that it has no legal obligation to pay athletes for the use of their images as avatars in video games because of First Amendment protections.

“[Electronic Arts] doesn’t have to go to anybody to use the names and likenesses of players in games,” the company’s outside counsel, Kelli Sager, told a three-judge panel of the 9th U.S. Circuit Court of Appeals on July 13, responding to a question of whether the company could simply take a player and put him on the cover of the video game box without payment. “What they have chosen to do [is sign] licensing agreements that bring them other things … including cooperation, including use of materials, having assistant coaches review the games — those are things you can get by contract you can’t get otherwise.”

NFL hall of famer Jim Brown and former Arizona State quarterback Sam Keller are both suing EA for using their images without payment. While the cases are separate, and they involve a college player as opposed to a former professional player, Sager’s position during both sets of oral arguments was the same: Because a video game is akin to a movie or a book, the company has free rein to use the images.

It’s no different, she contended, than the filmmakers who made “The Social Network,” who did not have to pay Facebook founder Mark Zuckerberg for depicting him in the movie about the creation of his company.

The players unions are concerned about that tact. They also question why EA would make such an argument, because a competitor could duplicate what the company does without paying the licensing fees.

The unions had requested time to address the judges during the oral arguments, but the court turned down those requests.

“If EA’s absolutist construction of the First Amendment were adopted, not only would [the union] relationships be threatened, but as EA must also realize, its gaming competitors would be able to target EA’s customers by making similar games without obtaining licenses either,” said Michael Rubin, an attorney for Altshuler Berzon, which represented the unions in a brief filed on behalf of Keller and Brown.

The NFLPA, MLB Players Association, NHL Players’ Association, National Basketball Players Association and MLS Players Union have all backed Keller and Brown.

“If EA has its way, it could argue in the next case that it has the First Amendment right to recreate the virtual likenesses of any athlete or any celebrity for use in its games without a license,” Rubin said.

EA maintains it does not plan to do that.

“We have excellent, long-standing relationships with many sports leagues and players associations,” an EA spokesman said in response to questions about the court testimony. “We don’t expect that those relationships — which also provide us with promotional opportunities and insights and assistance that help us make authentic games — will be affected.”