Federal judge rejects former NFL star’s Lanham Act claim of “false endorsement” by EA Sports

In recent months we have focused a LOT of attention on the issue of the image rights of athletes. That issue has popped up in lawsuits filed by former college football and basketball players seeking to get their hands on some of the money generated by the very popular – and lucrative – video games produced by EA Sports. Recently, a similar effort has been made by some retired NFL players looking for a cut of the cash from the NFL’s film operations.

These suits are based in several different causes of action, but they all generally boil down to the fundamental claim that the defendant is engaging in the unauthorized use of the player’s likeness in some way (even though that use often does not always identify the player by name or team or number).

In late September a new opinion was issued by a Federal District Judge in California. The case involved a former NFL player, and it’s a big one – “big” referring both to the player and the decision.  The player in question is one James “Jim” Brown.  Yes, that Jim Brown. The core of the Cleveland Browns’ offense from 1957-1965.  The player often considered the best pure running back in NFL history, who retired after just eight seasons as the NFL’s all-time leader in career rushing yards – a record which stood for more than two decades.   (He was also one helluva lacrosse player, if you didn’t already know that.)

Much like Jim Brown himself, the District Court’s opinion plowed through any opposition, but still left you begging for more.

In his suit Brown alleged that EA Sports had engaged in the unauthorized use of his likeness in two “historic” teams featured in EA’s Madden NFL games.  Those games feature the1965 Cleveland Browns team and an “All Browns” team with an unnamed running back wearing number 37 and boasting statistics “nearly identical” to Brown’s actual playing statistics.  In real life, however, Brown wore number 32.

Brown brought the following causes of action: 

  • A federal unfair competition claim under the Lanham Act alleging that the apparent use of Brown’s likeness falsely implied that he had endorsed the game; and
  • California state law claims for (a) invasion of privacy and (b) unfair business practices.

EA Sports moved to dismiss the Lanham Act claim, arguing that the First Amendment precludes the imposition of liability in this case. The judge agreed.

The judge re-affirmed that the First Amendment does generally apply to these types of video games.  It disagreed with the arguments made by Brown – and by others suing video game makers or seeking to regulate their often sexual or violent content – that these games (and other similar commercial enterprises) should be entitled to less than full First Amendment protection. Au contraire, said the judge, the implicitly creative nature of EA’s games merits full First Amendment protection.

Because they enjoy that protection, video game manufacturers can be held liable for violations of commercial statutes such as the Lanham Act only if the public interest in avoiding consumer confusion outweighs the public interest in free expression. That is judged through a two-pronged test: (1) the defendant’s use of the plaintiff’s proprietary right must be relevant to the defendant’s underlying work; and (2) the defendant’s use of the plaintiff’s proprietary right must be found to explicitly mislead consumers about the source or content of the work.

In Brown’s case, the first prong was clearly met.  As the judge observed, “The Madden games are about NFL football. Brown is a legendary NFL player: the best ever, according to some journalists. Use of a legendary NFL player’s likeness in a game about NFL football is clearly relevant.”

As to the second prong, the judge found that users of EA’s Madden games would not be “misled into thinking that Brown is somehow behind the game or sponsors the product.”  The player depicted in the game is anonymous, identified only by a jersey number and a roster position; his name is never seen on the packaging or advertising.   As the judge saw it, it would require a “leap of logic” to conclude that the depiction of a player like Jim Brown equates to endorsement by the Jim Brown.

With that the District Court stopped the great Jim Brown dead at the line of scrimmage. 

The decision doesn’t bode well for those college athletes, mentioned in earlier blogs, who are also suing EA sports for unauthorized use of their likenesses.  However, the clock hasn’t totally run out on those other cases.  In dismissing the lone federal claim advanced by Brown, the judge declined to exercise supplemental jurisdiction over the state claims – including the non-federal right of publicity claim that is the heart of so many of these lawsuits – and simply left them unanswered.

So stay tuned to see whether the judge’s punt on these state law claims may be returned for a touchdown by one of our fearless former gridiron greats (or, slam dunked, as the case may be, by a former collegiate cager).