A federal court struck down Electronic Arts’ First Amendment rights defense of artistic expression for a second time in a controversial lawsuit relating to the use of college athletes’ likenesses without their permission.
Photo courtesy of Ugur Akdemir (Unsplash.com)
The case, which may have far-reaching implications for college sports and video game makers, was originally brought against EA Sports by former Arizona quarterback Sam Keller in 2009. He alleged that the game manufacturer used his likeness without his permission, a charge that was also levied against EA Sports by Ed O’Bannon later in 2009. The cases have now been consolidated.
Although the game maker has alleged that it is protected by the First Amendment, the 9th U.S. Circuit Court of Appeals agreed with a lower court ruling that EA was not protected by free speech because the company created the likeness of Keller “in the very setting in which he has achieved renown.” The court also noted that the EA game had the “same height, weight, skin tone, hair color, hairstyle, handedness, home state, play style (pocket passer), visor preference, facial features, and school year as Keller.”
“Given that NCAA football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail,” Judge Jay Bybee wrote in the decision.
However, the dissenting opinion in the case may gave hope to those who agree that game makers can use player images under federal law. In an argument that may be used to further EA Sports’ appeal, dissenting judge Sidney Thomas wrote that the games have creative and transformative elements that “predominate over the commercial use of the athletes’ likenesses,” according to Yahoo Sports.
“We believe the reasoning in Judge Thomas’ dissent in that decision will ultimately prevail as we seek further court review,” said EA spokesman John Reseburg.
Non-disclosure agreements (NDAs) remain a critical tool for protecting sensitive business information. However, New York NDA requirements have evolved, and businesses must ensure these agreements are carefully drafted to remain enforceable. In a competitive market like New York City, NDAs are commonly used to protect proprietary information, client relationships, and strategic plans. At the same […]
How Courts Evaluate Testamentary Capacity and Undue Influence Will contests in New Jersey are difficult to win, given the strong presumption that a properly executed will reflects the testator’s intent. However, challenges based on lack of testamentary capacity and undue influence remain common, particularly where there are concerns about mental capacity or the involvement of […]
Bringing on outside investors can provide the capital and strategic support a business needs to grow. However, raising capital also introduces important legal, financial, and operational considerations. Before bringing on investors, businesses should address key legal issues to reduce risk, streamline investor due diligence, and position the company for long-term success. Early preparation signals that […]
How the Updated Law Shapes Retirement and Estate Planning The SECURE 2.0 Act of 2022 materially reshapes the required minimum distribution (RMD) landscape, extending tax deferral opportunities while accelerating distribution requirements for many beneficiaries. For high-net-worth individuals and families, these changes are not merely technical. They require a reassessment of retirement income strategies, beneficiary planning, […]
Buying Commercial Property in New Jersey: Legal Guide for Small Businesses
Small businesses considering buying commercial property in New Jersey must evaluate a range of legal, financial, and operational factors. While ownership can offer long-term value and control, it also introduces significant risks if not properly structured. This guide outlines key considerations to help New Jersey business owners make informed decisions, minimize legal exposure, and successfully […]
The SEC’s Latest Guidance on Applying Federal Securities Laws to Tokenized Securities
On January 28, 2026, staff of the U.S. Securities and Exchange Commission’s Divisions of Corporation Finance, Investment Management, and Trading and Markets issued a joint statement clarifying how existing federal securities laws apply to tokenized securities. The SEC’s “Statement on Tokenized Securities” does not establish new law, but it does provide greater clarity on the […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
