A California court has dismissed Electronic Arts' motions to dismiss and strike the lawsuit filed against it by NFL retirees, who accuse the publisher of using their likenesses without consent.
EA attempted to prevent the suit from going to court by arguing that it could use the former NFL players' likenesses without compensation under California law and the First Amendment -- the U.S. Supreme Court ruled last June that video games, like books and other media, are expressive works and qualify for First Amendment protections.
Several professional football players, representing a proposed class of 6,000 retired NFL players, filed the lawsuit against EA in 2010, alleging that the publisher engaged in a "calculated and underhanded attempt" to featured players' likenesses in its popular Madden NFL franchise without paying them royalties.
They argue that the "historic teams" featured in the games present virtual players with physical attributes, stats, and positions identical to real-life retired players. While the names and numbers on the virtual players' jerseys are different, users can edit them to match their real-life counterparts.
EA recently convinced a court to dismiss a separate but comparable lawsuit, in which the company was sued for using college players' likenesses without permission in its NCAA Football titles. The publisher also argued then that its First Amendment right to free expression overruled the publicity rights of players, and the court agreed.
With this latest decision, the NFL retiree case will go forward to court. The players (Tony Davis from the Tampa Bay Buccaneers, Vince Ferragamo from the Los Angeles Rams, and Billy Joe DuPree from the Dallas Cowboys) are suing EA for damages, all of its profits related to the use of retired players' likenesses, and attorney's fees.