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Supreme Court won't hear Madden NFL case brought by retired players

It's a setback for EA, and for anybody hoping for this legal issue to be settled

Samit Sarkar (he/him) is Polygon’s deputy managing editor. He has more than 15 years of experience covering video games, movies, television, and technology.

The U.S. Supreme Court won't consider a lawsuit regarding Electronic Arts' use of the likenesses of retired NFL players in its Madden NFL series, the court announced today.

EA had asked the Supreme Court to hear the case, Electronic Arts v. Davis, after the 9th U.S. Circuit Court of Appeals rejected the publisher's request to dismiss the lawsuit on First Amendment grounds in January 2015. The Supreme Court's denial leaves that 9th Circuit ruling in place, meaning that the retired players' case will continue in the federal appeals court.

Thousands of retired NFL athletes originally filed suit against EA in 2010, alleging that the publisher violated their state-law right to publicity by using their likenesses on historic teams in Madden titles from 2001-2009. Like the collegiate athletes who received $60 million in the settlement of a similar case, the NFL players in question did not appear in the Madden games under their real names. However, all other identifying traits — height, weight, ethnicity and the like — were true to life, and the virtual athletes were rated to perform like their real-world counterparts.

EA did not compensate these players for the use of their likenesses. Since 1994, the publisher has paid licensing fees to the NFL Players Association for the rights to use active NFL athletes' names and likenesses. Retired players currently appear in Madden's Ultimate Team mode, and are paid for it.

In the Davis lawsuit, EA argued that the use of the retired athletes' likenesses was covered under the First Amendment as "incidental" to the creation of the Madden games in question. The 9th Circuit disagreed, ruling last January that "EA's use of the former players' likenesses is not incidental because it is central to EA's main commercial purpose — to create a realistic virtual simulation of football games involving current and former NFL teams."

By deciding not to hear EA v. Davis, the Supreme Court is leaving unanswered an important legal question about how to weigh the First Amendment against claims like trademark infringement and the right to publicity, said J. Michael Keyes, an intellectual property partner at the law firm Dorsey & Whitney.

"The lower courts still have little guidance as to what the proper standard is on how the First Amendment interacts with state law claims," said Keyes. He added that the Davis case "would have been a perfect vehicle for the [Supreme] Court to provide much needed guidance" in this area, because right now "there are multiple different tests used by lower federal courts."

A representative for EA declined comment to Polygon on the Supreme Court's decision. We've asked the attorneys for Davis for comment, and will update this article with any information we receive.

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