—By Joey Lomicky, Communications Consultant, Xcel Energy

As a Nebraska alum, former (okay, okay, current) sports gaming addict and First Amendment connoisseur, I’ve been intrigued by the high-profile class action lawsuit filed by ex-Cornhusker quarterback Sam Keller, which has recently resurfaced in the news. In fact, there’s a good chance this case may find its way to the U.S. Supreme Court.

Keller, on behalf of all college athletes depicted in EA Sports’ NCAA simulation games dating back more than a decade, argues that the NCAA and EA Sports (Electronic Arts) owe him and other college athletes an undetermined sum of money for profiting off their likenesses.

Because NCAA amateurism rules prohibit the endorsement of products by college athletes, the players’ names are not used in the video games. But, because the games aim to simulate the college football experience and thus look so real, the players’ images are often easily identifiable. Keller’s argument rests on the fact that the game incorporates each team’s roster using generic names, but with accurate depictions of the players’ athletic attributes, characteristics and images (uniform number, hair styles and skin tone and home state) without paying a dime to the players the images depict.

Electronic Arts claims that free speech rights permit the use of the athletes’ images. But Keller and his supporters argue that the video games in question are not protected by the First Amendment because the company is using the likenesses of college athletes for purely commercial gain.

Since the lawsuit was filed in 2009, in which the U.S. District Court in the Northern District of California refused to grant EA Sports free speech protection and dismiss the lawsuit, EA Sports and the NCAA have appealed and the lawsuit now sits before Ninth Circuit Court of Appeals in Pasadena, Calif. According to some, it may ultimately land in the U.S. Supreme Court. 

Several Hollywood studios, media companies and other organizations such as the Comic Book Defense Fund fear that the court’s ruling, if allowed to stand, will harshly stifle artistic expression.

Keller – sort of a “bad boy”  by  Nebraska standards, who was known for donning a head beanie, a visor, and a sleeve to cover up his massive tribal tattoo (not depicted in the game, unfortunately) – never really lived up to the hype during his one season at Nebraska after transferring from Arizona State in 2007. Though he had a great arm and won the starting quarterback’s job before suffering a season-ending injury, he was quickly passed up by NFL teams and is now out of football.  

Meanwhile, the question before the courts: Has Electronic Arts violated these amateurs’ rights of publicity, which prevents the commercial use of someone’s likeness without personal consent? If you enjoy watching sports, playing video games or following First Amendment law as much as I do, keep an eye on this case over the next few months as it might be a game-changer in more ways than one.