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New Plaintiff Added To Class-Action Player Likeness Suit Against EA, NCAA
New Plaintiff Added To Class-Action Player Likeness Suit Against EA, NCAA
December 17, 2010 | By Kyle Orland

December 17, 2010 | By Kyle Orland
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Knoxville attorney Gordon Ball has expanded a class-action antitrust lawsuit against the National Collegiate Athletic Association and Electronic Arts for using college players likenesses for commercial gain without permission.

The suit [PDF], originally filed in California last July on behalf of UCLA basketball player Ed O'Bannon, now also includes former Tennessee Volunteer Bobby Maze as a named defendant, according to a report from Knoxville's Metro Pulse.

On behalf of all NCAA division 1 football and basketball players, Maze and O'Bannon take issue with the fact that NCAA member schools' require them to sign away the rights to commercial use of their image in perpetuity, even after they graduate. The suit allege this "blatantly anticompetitive and exclusionary" practice violates antitrust statutes.

"The NCAA, without advising its student-athletes, has taken ... purposefully ambiguous language as a license to develop an array of multi-media revenue streams for itself without providing any compensation whatsoever to the former athletes," the suit reads.

Electronic Arts is noted as a "co-conspirator" in the suit, for illegally licensing the plaintiffs' images from the NCAA for its its college basketball and football games, specifically in those games' "Classic Teams" features.

While the suit notes that specific player names are notably not used in these games, it points out that "all of EA Sports' NCAA-related video games use photographic-like realism in depiction of all aspects of [players'] visual presentation," and that "even uniquely identifiable idiosyncratic characteristics of real-life players appear in their video game virtual counterparts."

The suit closely resembles another class-action filed last year by former Arizona State University Sam Keller over similar misuse of player likenesses. In that case, EA argued a first amendment right to base its game characters on real athletes, a right the judge eventually denied. The Keller case is still working its way through the courts.

Last September, a judge dismissed another similar suit brought against EA by former NFL player Jim Brown, over a player with his likeness being used in the Madden games. A judge in that case agreed with EA's first amendment arguments.


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Comments


Dustin Mellen
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Good grief, people sure can be possessive about their "likeness". Personally, I think copyright is a systemically flawed concept and EA shouldn't be sued for using someone's likeness. If you want to split hairs, I'm sure that any character you make to realistic specifications will invariably bear the likeness of someone on this earth. There are billions of opportunities to make it look like someone that lives or once lived, accidentally. How can you be held accountable for that?

Mark Stewart
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This is not about copyright. Copyright protects creative works. This is about whether or not the wording in the agreement violates federal anti-trust laws. Anti-trust laws are a well-intentioned, but flawed attempt to reduce consolidation of industries into oligopolies, or small numbers of providers limiting consumer choice. The plaintiff lawyers seem to be saying that the agreement prevents players from being able to shop the rights to their own portrayal to other would-be developers/publishers of videogames. Because the players are portrayed in the game and are the big selling point of the game, their likenesses are being used for commercial gain. All persons have a Right of Publicity that enables them to control how their likeness is used for commercial gain. The plaintiffs claim that the agreement goes too far in forcing the players to make a long-term forfeiture of their Right of Publicity with regard to the use of their likeness as a college athlete.



The real problem here is anti-trust laws. They don't really work the way they were intended and the market can usually fix oligopolistic and monopolistic situations on its own, so long as government does not place any artificial barriers to market entry. Whenever possible, we should favor the invisible hand of market forces over government intervention. The players entered into these agreements, and they should be held to them. If they don't like the agreement, don't sign. Go to school some other way - ROTC, student loans, GI Bill, whatever.


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