On Wednesday, the Court of Appeals for the Ninth Circuit affirmed a lower court's ruling that gaming giant Electronic Arts, Inc. cannot use the physical likeness of collegiate athletes without compensating them for it. This ruling has the potential to bring with it a sea of change to both the gaming industry and collegiate sports.
The initial lawsuit was brought by former NCAA athlete and Arizona State quarterback Samuel Keller to stop EA from using his physical likeness without pay. For years now, EA has used avatars in place of actual collegiate athletes. These avatars have the exact same height, weight, skin tone, hair color and style, handedness, home state, play style (in the case of Keller it was "pocket passer"), visor preference, facial features, school year and jersey number as the actual player they are standing in for. The avatars play in digital reconstructions of real college stadiums. Every year, EA sends highly specific questionnaires to college equipment managers to get details on their rosters. In short, EA does just about everything to make the college football game experience as realistic and as up to date as possible.
Keller claimed that his likeness is his own intellectual property through the right to publicity doctrine. Essentially, he argues that his image and his physical likeness are the result of countless hours in the gym and on the field. If anyone is going to profit from it, it should be him.
EA argued that their use of these avatars was artistic. Under the First Amendment, expression and speech is usually not limited if it is transformative, such that it is "more than a mere celebrity likeness" or if it is done through factual reporting. That means that one's likeness can be reproduced if the artist has added something to it or modified it in a way that makes it his or her own expression. Also, biographical information, factual reports, and in sports, highlight tapes and statistics are fair game.
However, the Ninth Circuit astutely pointed out that EA does not use the player's likenesses in these ways. EA recreates collegiate athletes in their games — same appearance, same tendencies, same stadiums, same hometown, and same jersey number. The court found that this was only an uncompensated appropriation of the collective result of Keller's years of hard work. Further, because the avatars are controlled by gamers, the avatars can hardly be said to be factual reports or reference sources on the players. Thus, EA sports can no longer base the likenesses of their digital athletes on college players without pay.
So what does this mean for the future of gaming and college sports?
First, it means that unless the NCAA significantly alters their amateurism rules to allow for payment, EA cannot base their famous NCAA game franchises on those athletes going forward. That means future NCAA games will have to be based on former college players or fictional ones.
Most importantly, it could mean that sometime in the near future, both EA and the NCAA would be on the hook for all of the past royalty fees that are owed to college athletes used in the games. Ultimately, it could be just one more signal that the times are a-changing for amateurism in the NCAA.
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