Appeals court hears arguments in college athletes' lawsuit against EA Sports, NCAA

A group of former college athletes sued video game maker Electronic Arts and the NCAA – college athletics’ governing body. The athletes argue that game companies should pay them when their likenesses appear in video games. One federal judge said the athletes have a case, but Electronic Arts and the NCAA appealed. Tuesday in Pasadena, a federal appeals court heard arguments from both sides.

Electronic Arts makes millions of dollars from its NCAA Football video game. The company shares royalties with the NCAA, but the athletes whose images appear in the game get nothing, because they’re amateurs.

The prospect of paying them has become a First Amendment case that hinges on the word “expressive.” If a published work is “expressive” – like a film, a comic book or a biography – the courts have held that the First Amendment allows for the use of names and likenesses of real people.

"For example, if you wanted to do a film like 'The King’s Speech' or 'The Social Network' you can do that and be protected under the First Amendment,” explained attorney Kelli Sager, who represents Electronic Arts.

"Similarly, these video games use likenesses of real athletes, use them in their expressive work – a video game," Sager said after presenting her arguments to a three-judge panel of the Ninth Circuit Court of Appeals.

If the college athletes prevail, Sager says, that could end the use of many peoples’ images in lots of published works. The Motion Picture Association of America even weighed in to suggest it would threaten movie production.

But attorney Steve Berman, who represents the athletes, said that comparing this video game to other creative works is a scare tactic. "If you’re using the name Gandhi in an expressive film about the revolution there, that is protected; it’s expressive," Berman said. "This game is not expressive."

Berman said Electronic Arts markets the realism of its college sports games, and in the period his lawsuit covers, the company has used the names of about 29,000 college athletes. He says that with this case, those athletes are beginning to stand up for their rights.