Well, this doesn’t come as a huge shock, as the Supreme Court rejects a lot more appeals then it takes on, but today they announced they wouldn’t hear Electronic Arts request to dismiss a suit filed by retired players on names and likenesses in the Madden series.
The lawsuit, which is broadly similar to the one that Electronic Arts recently settled with former college players in the NCAA Football Series of games, will now proceed to trial. Electronic Arts had sought to dismiss the case based on First Amendment free speech rights.
While the games (namely, the 2001-09 Madden games) did not featured retired players names, they used their general information (Height, Weight, Position, Skin Tone) and represented them as classic teams.
I asked J. Michael Keyes, who is an intellectual property partner at the international law firm Dorsey & Whitney, what today’s decision meant. In an email reply, he stated:
“The Court is not going to weigh in on this right of publicity case involving the use of former NFL football players’ “personas” in the wildly popular Madden NFL game series. This means that the 9th Circuit decision stands and that the former players’ claims get a fresh set of downs. On a broader level, this means that the lower courts still have little guidance as to what the proper standard is on how the First Amendment interacts with state law claims. As a group of law professors persuasively (albeit unsuccessfully) argued to the Court, there are multiple different tests used by lower federal courts and Davis would have been a perfect vehicle for the Court to provide much needed guidance,”
So, in short, today’s decision was a punt by the court, and now the players lawsuit will move forward.