In the case of Hart v. EA Sports, the United States Court of Appeals for the Third Circuit has ruled that the First Amendment does not trump a student-athlete’s right to publicity, overturning the District Court’s decision. As Rick Karcher writes on the Sports Law Blog, “this is a highly significant and ground-breaking decision by the Third Circuit in favor of college players.” In addition, the significance of the decision is magnified by the fact that the same issue is on appeal in the Ninth Circuit in the case of O’Bannon v. NCAA.
Although EA Sports claims that its use of the images of student-athletes is transformative, and thus protected by the First Amendment, EA’s games are so popular because they are so realistic. In its decision, the Third Circuit wrote:
In NCAA Football, Appellee seeks to create a realistic depiction of college football for the users. Part of this realism involves generating realistic representations of the various college teams — which includes the realistic representations of the players…. Indeed, as the District Court recognized, “it seems ludicrous to question whether video game consumers enjoy and, as a result, purchase more EA-produced video games as a result of the heightened realism associated with actual players.”
As stated in the O’Bannon Complaint, “…heightened realism in NCAA videogames translates directly into increased sales.”