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Jim Brown, the hall-of-fame football player and actor, has settled for $600,000 in an eight-year-old lawsuit against Electronic Arts, a case that had ties to the litigation that ended the NCAA Football series.
Brown sued EA in 2008 over the Madden NFL series' old practice of putting all-time-great teams — such as Brown's 1964 Cleveland Browns — into the game. Brown, and many others, were easily identifiable by their position, uniform numeral, skin color, height, weight and other features, but their names had been stripped out. Users were able to edit in the names themselves.
The first lawsuit over this practice, which was retired NFL players suing the NFL Players Association more than 10 years ago, discovered communications between the union and EA Sports in which "scrambling" players' names in the roster could get them around paying for the use of likeness. That case was settled by the union's $24 million payment to the retirees in 2009. The retired players alleged that the players' union effectively cut them out of a deal when it should have negotiated a group license at market rate for using their likenesses.
Brown then brought his own suit against EA in 2008. At one point, a federal judge ruled EA's roster practices were permissible as video games were considered "expressive works," such as a painting. In the years since, EA made the same First Amendment defense in its NCAA litigation, claims that were initially upheld but overturned on appeal. That helped force EA to the settlement table in 2013.
In early 2015, a Los Angeles court again rejected EA's First Amendment defense in denying its motion to dismiss Brown's lawsuit.
There still is one lawsuit pending against EA Sports' over unauthorized use of likenesses in the rosters of its sports video games. The retired players who sued their union, settling for $24 million in 2009, sued Electronic Arts in 2010. That case, Davis vs. Electronic Arts, alleges damages greater than $5 million.
