A group of retired NFL players and Electronic Arts Inc. (EA) settled a lawsuit this past week regarding the use of the players’ likeness in the Madden football games in the United States District Court for the Northern District of California.

While EA licensed current players’ image, the “historic teams” rosters in the game featured retired players whose images EA had not been authorized to use. While the game did not include the retired players’ names, the players in the game possessed other attributes that could serve as identifying characteristics.

The judge in the case rejected class certification for the roughly 6,000 former NFL players in the case. Class liability could not be found because of the individuality of each player’s identity.

The suit was initially brought in 2010. EA moved to dismiss the case, arguing that it quieted speech and that its use of the players’ likenesses was transformative, incidental and in the public interest. The motion to dismiss was rejected and EA appealed to the Ninth Circuit. The court analogized this case to its ruling in Keller v. Electronic Arts Inc. (holding that EA’s use of players’ likeness in another of its video games, NCAA Football, was not transformative) and found these two cases to be indistinguishable. The Ninth Circuit, therefore, affirmed the lower court’s rejection of EA’s motion to dismiss.

After being denied cert in the Supreme Court, a trial back in California was set for September of this year until the parties reached a deal.

Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: bloque interactivo, NFL Hall of Fame quarterback Joe Montana, left, plays the XBox 360 “EA Sports Madden 13” video game with EA Sports Executive Vice President, Andrew Wilson at the Microsoft Xbox 360 E3 2012 Media Briefing in Los Angeles Monday, June 4, 2012 (cropped), CC BY-SA 2.0.