In the continuing battle by athletes against video game manufacturer Electronic Arts, football players went 1-1 in results from the Ninth Circuit U.S. Court of Appeals.

On behalf of a class of college athletes featured in EA’s NCAA Football video game (the court noted the decision applied with equal force to the basketball players featured in a separate game), Samuel Keller got the game ball with his argument that the plaintiffs’ right of publicity trumped the First Amendment.

Keller – a starting quarterback for Nebraska and Arizona State – argued that by featuring an avatar at his position, wearing his jersey and number, with the same height, weight, skin tone, hair color, hair style, handedness, home state, play style (pocket passer), visor preference, facial features, and school year, EA illegally used his likeness without his permission in violation of California state law.

EA responded with an anti-SLAPP counterclaim, arguing that Keller’s suit was a strategic lawsuit against public participation and that the company had a First Amendment right to make use of publicly available information for the game.

The Ninth Circuit called a flag on the play.

Reviewing four affirmative defenses raised by EA – the “transformative use” test, the Rogers test, the “public interest” test, and the “public affairs” exemption – the court said each one failed to reach the end zone.

Under the “transformative use” test, the three-judge appellate panel said Keller’s likeness did not “contain significant transformative elements” to satisfy the standard, as “Keller is represented as ‘what he was: the starting quarterback for Arizona State’ and Nebraska, and ‘the game’s setting is identical to where the public found [Keller] during his collegiate career: on the football field.” EA argued that the focus should be on the transformative elements of the game as a whole and not just Keller’s likeness, and pointed to the ability of users to alter the characteristics of the avatars. But the court noted that the company “elected to use avatars that mimic real college football players for a reason. If EA did not think there was value in having an avatar designed to mimic each individual player, it would not go to the lengths it does to achieve realism in this regard. Having chosen to use the players’ likenesses, EA cannot now hide behind the numerosity of its potential offenses or the alleged unimportance of any one individual player.”

Next, the court declined to take EA’s suggestion to adopt the test used for false endorsement claims under the Lanham Act from a Second U.S. Circuit Court of Appeals decision, Rogers v. Grimaldi. The panel said the test was more appropriate in the context of Lanham Act suits, not right of publicity disputes. “The right of publicity protects the celebrity, not the consumer,” the court wrote.

EA’s other two defenses – the “public interest” test and the “public affairs” exemption – both are aimed at protecting the reporting of factual information, the Ninth Circuit explained. One problem, the court said: “EA is not publishing or reporting factual data. EA’s video game is a means by which users can play their own virtual football games, not a means for obtaining information about real-world football games.”

Finding none of the defenses applicable, the court affirmed the denial of EA’s motion to strike Keller’s complaint. A dissenting judge contended that the majority engaged in “excessive deconstruction” and should have focused on a “more holistic examination” of the transformative work instead of confining its inquiry to a single athlete’s likeness.

In a second decision released the same day, the same three-judge panel evaluated a Lanham Act claim brought by retired professional football player Jim Brown against EA over the use of his likeness in the Madden NFL video game series.

Given the setting of an alleged Lanham Act violation, the court applied the Rogers test and found that “Brown’s likeness was artistically relevant to the games” and “that there were no alleged facts to support the claim that Electronic Arts explicitly misled consumers as to Brown’s involvement with the games.” Therefore, public interest in free expression outweighed public interest in avoiding consumer confusion, the court concluded.

Under the first prong of the Rogers test, the court found Brown’s likeness artistically relevant to the Madden NFL games. “EA prides itself on the extreme realism of the games,” the panel noted, and given the importance of including Brown’s likeness to realistically re-create the Cleveland Browns teams he played on, “it is obvious that Brown’s likeness has at least some artistic relevance to EA’s work.”

But the unanimous panel said Brown failed to present evidence that EA “explicitly misled” consumers as required by the second half of the Rogers test. A consumer survey demonstrating that a majority of the public believes that identifying marks cannot be included in products without permission didn’t help his argument as the use of a mark alone does not satisfy the requirement, the court said.

Brown also pointed to written materials accompanying the game highlighting the inclusion of “Fifty of the NFL’s greatest players and every All-Madden team.” But “nothing in EA’s promotion suggest that the fifty NFL players who are members of the All Madden, All Millennium team endorse EA’s game. EA’s statement is true and not misleading.” Changes made to the game and comments made by EA officials also failed to meet the evidentiary standard. “The factual support Brown offers is simply of the wrong type,” the court wrote.

“As expressive works, the Madden NFL video games are entitled to the same First Amendment protection as literature, plays, or books. Brown’s Lanham Act claim is thus subject to the Rogers test, and we agree with the district court that Brown has failed to allege sufficient facts to make out a plausible claim that survives that test,” the panel concluded.

However, the court emphasized that its findings only related to the Lanham Act claim and noted that its ruling may have been different had it evaluated state causes of action, such as Brown’s right to publicity.

To read the decision in Keller v. Electronic Arts, click here.

To read the decision in Brown v. Electronic Arts, click here.

Why it matters: The publicity rights of athletes are a hot topic this summer, with the Third U.S. Circuit Court of Appeals reaching a similar decision under facts nearly identical to those in Keller. It held that EA did not satisfy the transformative use test in a suit brought by a former college quarterback alleging violation of his right of publicity. With the courts reaching parallel outcomes, the battle between the First Amendment and publicity rights doesn’t seem destined for the U.S. Supreme Court – yet. However, as demonstrated by the results of the Brown case, a court’s determination on these types of matters will hinge critically on the nature of the plaintiff’s claims and the facts to support them.