The use of athletes’ individual likenesses in video games is not Constitutionally protected by the First Amendment, a federal appeals court said Wednesday, rejecting a bid by the video game company Electronic Arts Inc. to throw out a lawsuit filed by nine former football players, who can now seek class-action status on behalf of other athletes. EA, along with the National Collegiate Athletic Association, is also a defendant in the potentially game-changing class action lawsuit filed by Ed O’Bannon alleging that athletes deserve a share of the profit generated off their image.
Last month, the NCAA announced it would not renew its football video game contract with EA, reiterating its confidence in its legal standing but asserting that the contract was not in the association’s best interest, “given the current business climate and costs of litigation.” In May, an appeals court made a similar ruling (in that case, overturning a lower court’s decision), stating that the First Amendment did not protect EA’s right to depict individual players in games; that case, filed by former Rutgers University quarterback Ryan Hart, will move forward.
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