Q&A with Michael McCann: Implications of 9th Circuit denying EA Sports’ appeal
By Ryan Krasnoo
A panel of judges on the 9th Circuit Court of Appeals in California affirmed a U.S. District Court decision in Keller v. EA Sports on Wednesday, agreeing with the lower court that the video game manufacturer could not use of former athletes’ likenesses without consent or compensation. Former Arizona State quarterback Sam Keller led the lawsuit against EA, which wasn’t affiliated with the Ed O’Bannon case but could impact the landmark lawsuit against the NCAA. In the Keller case, the court ultimately ruled that EA was not protected by the First Amendment while portraying players in video-game form.
Campus Union caught up with SI legal expert Michael McCann to find out what the ruling means and how it could potentially impact the O’Bannon case.
SI.com: What impact does this decision have on the Ed O’Bannon v. the NCAA case?
Michael McCann: This is a very significant decision because the Keller case was held in the same federal circuit as the O’Bannon case. The Keller decision creates precedent that the judge in the O’Bannon case, Claudia Wilken, will have to follow. This helps O’Bannon as it relates to EA because Electronic Arts cannot successfully argue that players in games reflect the artwork of the video-game programmer more than the players themselves.
SI.com: How will EA respond to this decision?
MM: EA has said it will appeal this decision, but an appeal is unlikely to succeed. However, EA now has greater motivation to offer O’Bannon more attractive settlement terms than it did before, because the O’Bannon legal team can use this positive Keller decision as leverage. If O’Bannon and EA settle their dispute, then EA will no longer be part of the O’Bannon case, leaving the case with two defendants — the NCAA and the Collegiate Licensing Company — instead of three.
SI.com: How does the Keller decision relate to the Ryan Hart case in the U.S. Court of Appeals for the 3rd Circuit?
MM: The Keller decision is consistent with the U.S. Court of Appeals decision in the Ryan Hart case. Both courts agree that players in video games are actually renditions of players in real life, and that players should be compensated for being in the games.
SI.com: Will the U.S. Supreme Court get involved in this case?
MM: The U.S. Supreme Court is unlikely to take a case where different federal circuit courts agree that the avatars of these players are renditions of the actual players. Since only two Courts of Appeals have opined on this, and since they both agree, it’s unlikely that the Supreme Court will take this type of case on appeal.
SI.com: How will this decision impact consumers who enjoy playing college sports video games?
MM: If EA settles with O’Bannon, it is very possible that EA would make video games with former college teams and use actual players who no longer have eligibility in college. If EA were to make college games with current players and use their real names, it would require changes to the NCAA rules related to amateurism. If O’Bannon wins his case against the NCAA or if the NCAA settles, it’s very possible that college players could monetize their images and likenesses, which would enable EA to make games with real players and real names.