Retired NFL players’ lawsuit against EA’s Madden series can go forward, court says (Update)

A lawsuit brought in 2010 by thousands of former NFL players against Electronic Arts will proceed, now that an appeals court has rejected EA’s argument to have the case thrown out.

The case, Davis et al. vs. Electronic Arts, Inc., resembles the lawsuit that former college football players brought against and settled with EA in 2013, effectively canceling the NCAA Football series in the process. In this case, it involves the editions of Madden NFL from 2001 to 2009 that had featured “classic” teams from the league’s history.

Those players, like the NCAA Football players, did not appear under their own name or uniform numeral, but all other identifying traits such as height, weight, ethnicity and position were consistent. The players also were rated to perform like their real-world counterparts, and the editable rosters allowed gamers to put in players’ real names and numerals themselves. Electronic Arts did not pay to license these players’ likenesses.

Old-timers do currently appear in the game through its “Ultimate Team” mode but they are paid for that appearance.

This case follows an earlier lawsuit in which retired NFL players sued their own union after getting their hands on communications between EA Sports and the union, showing how they would scramble identifying traits in the roster to avoid having to pay for the likenesses. In 2008, the players eventually won a $28 million judgment, settled for $26 million, and turned their attention to Electronic Arts.

In the current case, Electronic Arts had sought to have the case dismissed because the use of the former players’ likenesses should have been considered “incidental” and protected by the First Amendment. The 9th U.S. Circuit Court of Appeals rejected that claim.

“We hold 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,” wrote Circuit Judge Raymond Fisher.

The same panel had allowed the lawsuit brought by former quarterback Samuel Keller, later joined by the former UCLA basketball star Ed O’Bannon, to proceed in 2013. That led to Electronic Arts settling the case for $40 million.

Polygon reached out to an Electronic Arts representative for comment, and will update this story with any reply received.

Update: An EA spokesperson provided the following statement.

We’re disappointed with the panel’s decision. We believe in the First Amendment right to create expressive works — in any form — that relate to real-life people and events, and will seek further court review to protect it.