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Volume 21 No. 1
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Judge: EA using First Amendment as sword in case

A federal appeals court judge last month cast skepticism on Electronic Arts’ First Amendment argument that it has the rights to use the avatars of college football players without their permission.

Electronic Arts is battling two appeals court lawsuits brought by former college quarterbacks who are suing, claiming their rights of publicity were infringed upon by their use in EA’s college video games (a similar third case has been brought by NFL hall of famer Jim Brown).

“The First Amendment is a wonderful and a highly protective shield but it should not be used as a sword,” said Judge Thomas Ambro of the 3rd U.S. Circuit Court of Appeals. “And here it’s being used as a sword.” His three-judge panel last month heard an appeal from former Rutgers quarterback Ryan Hart, whose earlier lawsuit against EA was dismissed by a lower court.

That is in contrast to a similar case brought by former Arizona State University quarterback Sam Keller, whose case against EA has not been dismissed by a lower court. In the Keller case, EA appealed the lack of a dismissal to the 9th U.S. Circuit Court of Appeals, which is expected to rule in the coming months.

EA’s core argument is that the video games are protected speech, but Ambro strongly suggested that he agreed with Hart’s contention that such a claim may be too sweeping.

“It’s a much lower threshold that you need to get over in order to say that you’re protected by the First Amendment,” Ambro said.

EA’s outside counsel responded, “I would disagree that we’re using it as a sword.

“Some of the core principles that emanate from the First Amendment is there does not need to be a discernible message,” said Elizabeth McNamara of Davis Wright Tremaine.

Hart’s and Keller’s counsel, Michael Rubin of Altshuler Berzon, has argued in both cases that the games are not worthy of First Amendment protection in part because they are not artistic nor do they carry any message. He argues they merely capitalize on the fame of his clients to sell video games.

Notably, the transcript of the Hart appeals court session was filed last week in the Keller case by the professional players unions as an addendum to their earlier friend of the court brief. The unions are concerned that if Keller loses, EA could argue it does not need to pay the pros for their inclusion in video games. In oral arguments this year at the 9th Circuit, an EA outside counsel made that argument.