8 Year Old NFL Player Lawsuit Against Electronic Arts Gets Court Blessing To Proceed

In July 2010, former football players Tony Davis, Vince Ferragamo, Billy Joe Dupree and Sam Keller filed a lawsuit against Electronic Arts Inc. The initial Complaint alleged that Electronic Arts had been unlawfully using their likenesses, and other retired NFL players’ likenesses, in the popular “Madden NFL” video game franchise.

Over 8 years later, the sports dispute is still pending. However, on August 17, the judge assigned to the case moved it along a bit by denying Electronic Arts’ motion for summary judgment and also denying the plaintiffs’ motion to certify a class that would have otherwise allowed them to proceed with a class action case.

Electronic Arts doesn’t convince court with expert survey.

Electronic Arts hired an expert to conduct a survey to see whether consumers could associate the Madden NFL avatars with any real person. The survey showed that the vast majority of consumers failed in making an association.

Only 1%-2%  of the respondents correctly matched the avatars to the plaintiffs in the case. On this ground, Electronic Arts sought to have the court find that there is no doubt that the avatars are not “identifiable” under the law. The court disagreed.

“Whatever probative value that survey may have, it does not serve to eliminate a triable issue of fact as to identifiability,” stated the court. “Although a fact-finder may very well conclude that avatars are not sufficiently identifiable to support plaintiffs’ claims, the present record does not allow for such a finding to be made as a matter of law.”

Plaintiffs fail to convince court of commonality to certify a class.

While the plaintiffs succeeded in defeating Electronic Arts’ motion for summary judgment, they took a loss on their efforts to certify as a class. It was their 2nd attempt to obtain class certification.

The court held that the plaintiffs failed to point to any significant common issues of law or fact that bear on each former NFL player’s potential claim for misappropriation of his identity.

“While the players’ individual claims would all arise in the common context of the Madden game, the overlap in the evidence needed to prove each claim would be limited to matters of general background and would be largely uncontested,” wrote the court. After that, each player would need to independently prove that there is an avatar used that is sufficiently identifiable to him in order to prevail on a right of publicity claim.

“Whether each player has a claim or not turns on the specific characteristics of that player’s identity and whether he can be identified by virtue of how those characteristics have been reflected in his avatar,” added the court. Thus, certifying a class was considered improper.