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EA Sports loses appeal in Keller lawsuit

The SportsXchange

In what could have a far-reaching impact on college sports, a federal appeals court Wednesday agreed with a lower court that EA Sports used the images of former college athletes without their permission in its NCAA football and basketball games.

The 9th U.S. Circuit Court of Appeals decision could result in further legal action against the video game maker from other former college athletes whose likenesses were used in the games without compensation.

Former Arizona State and Nebraska quarterback Sam Keller filed the lawsuit in 2009, arguing that EA used his likeness without permission.

The game manufacturer argued that the First Amendment protected the use of player likenesses in its football games. But by a 2-1 vote, the court said 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."

"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 S. Bybee wrote in the decision, ESPN reported.

EA also tried to have the case dismissed by arguing that players' statistics used in games were relevant to the public interest. The court rejected that claim differentiating EA from a media outlet. "EA is not publishing or reporting factual data."

Keller's attorney said the NCAA is now in the players' crosshairs.

"Today's ruling, combined with the NCAA's decision not to renew its license, speaks volumes about the actions of the defendants," Steve Berman, managing partner of the firm that represented Keller, told CBSSports.com. "We are confident that EA and the NCAA made millions of dollars at the expense of student-athletes by improperly taking property belonging to the athletes and the athletes alone."

Former UCLA basketball player Ed O'Bannon filed a similar lawsuit in July 2009.

"From the standpoint of the lawsuit, the implications are quite significant," Rob Carey, another attorney representing Keller told CBSSports.com. "It is a separate lawsuit but it's in the same district and the same precedent will apply in the O'Bannon case."

A federal appeals court also is hearing another lawsuit filed by former Rutgers quarterback Ryan Hart.

EA has used the First Amendment defense previously when a helicopter manufacturer said the game maker used a likeness without its permission in the game "Battlefield 3." An appeals court has not rendered a decision in that case yet.

EA did win one battle Wednesday when the court rejected an appeal by former NFL star Jim Brown to reinstate his lawsuit, which said EA used his likeness in the Madden NFL game.

The court said Brown's likeness was "artistically relevant to the games and that there were no alleged facts to support the claim that Electronic Arts explicitly misled consumers as to Brown's involvement with the games."
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