Affirming a district court decision, the Ninth U.S. Circuit Court of Appeals found that a video game company violated the publicity rights of former National Football League players by depicting them in its video games.

Electronic Arts has faced a host of cases over its sports-themed video games in which college and professional players have sought compensation for the use of their images in the popular games. In the latest court opinion, three retired NFL players sued EA for violating their publicity rights in the Madden NFL game series.

The Madden series features all current players from all 32 NFL teams, for which EA paid annual licensing fees in the millions of dollars. Over an eight-year period, the series also included certain particularly successful or popular “historic teams,” such as the 1979 Super Bowl runner-up Los Angeles Rams.

However, EA did not obtain a license to use the likenesses of the former players on those historic teams. Although the players were not identified by name or photograph, each was accurately described by position, years in the league, height, weight, skin tone, and relative skill level.

The defendant responded with an anti-SLAPP statute case and raised five defenses under the First Amendment. Relying heavily on an August 2013 decision in a similar case brought by college athletes challenging the NCAA Football game series, the federal appellate panel made quick work of four of EA’s arguments.

EA’s use of the images did not satisfy the requirements for a “transformative use,” the court wrote, as “Madden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing for an NFL team.”

The public interest defense and public affairs exemption under California state law also failed. While the games contain some factual data, it is a game, not a reference source or publication of facts about professional football, the court said. The panel further rejected the defendants’ attempt to extend the right of publicity test adopted by the Second Circuit in Rogers v. Grimaldi.

Finally, the panel turned to the video game maker’s final contention: that its use of former players’ likenesses was protected under the First Amendment as an “incidental use.” Considering a number of factors, the Ninth Circuit was again unmoved by EA’s argument.

“[T]he former players’ likenesses have unique value and contribute to the commercial value of Madden NFL. EA goes to substantial lengths to incorporate accurate likenesses of current and former players, including paying millions of dollars to license the likenesses of current players,” the panel wrote. “Having acknowledged the likenesses of current NFL players carry substantial commercial value, EA does not offer a persuasive reason to conclude otherwise as to the former players.”

In addition, “the former players’ likenesses are featured prominently in a manner that is substantially related to the main purpose and subject of Madden NFL – to create an accurate virtual simulation of an NFL game,” the court said. “EA has stated publicly it is dedicated to ‘creating the most true-to-life NFL simulation experience as possible . . . . We want to accurately deliver an amazing NFL experience in our game.’ Accurate depictions of the players on the field are central to the creation of an accurate virtual simulation of an NFL game.”

To read the opinion in Davis v. Electronic Arts, click here.

Why it matters: While a blow to EA, the loss could not have been a surprise for the video game maker. In addition to the California federal court’s ruling in the NCAA litigation, the Third Circuit in another NCAA case reached a similar outcome, holding that EA did not satisfy the transformative use test in a suit brought by a former college quarterback. However, the company issued a statement indicating that it intends to continue the legal fight. “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,” the company said.