Just a few days after big news in the NCAA student-athlete likeness case, EA has suffered a defeat related to its other football game, Madden NFL. This time, it's a group of retired players nipping at the publisher's heels.

In January 2015, the Ninth District court ruled that EA’s first amendment defense for including retired players in its games wasn’t acceptable. EA built a case claiming that using their likenesses was a transformative work – a new intellectual product built upon one created and owned by someone else.

It also indicated the retired players were incidental to the product. The court disagreed stating that they were instead central to the commercial purpose, which was to “create a realistic virtual simulation of football games involving current and former NFL teams.”

EA appealed, but the United States Supreme Court has declined to hear the case. The Court's choice means that the Ninth District ruling stands and EA’s first amendment argument is now dismantled.

The case was originally brought in 2010 by former players Vince Ferragamo, Michael Davis, and Billy Joe Dupree. It was later certified as a class action including 6,000 players featured in Madden NFL games released between 2001 and 2009.

A similar case brought against the NFL Players Association was settled for $28 million. In that matter, the players asserted that the union did not act in their best interest and that they were entitled to some of the royalties earned using their likenesses.

The Supreme Court is not required to give a reason it decides not to hear a case. The judicial body only hears a small fraction of the petitions it receives.

[Source: Supreme Court via Law360, Polygon]

Our Take

There is often fuzziness where state and federal law intersect, and that is certainly the case here. Scholars were hopeful that the Supreme Court would take the case as it would provide some clarity on these matters. However, that will have to wait for another case, as the Ninth District ruling now stands.