Settlement reached for EA Sports and O'Bannon/Keller, pending court approval.
9/27/2013 4:07:00 PM
Yesterday, the sad, but expected, news came out from EA Sports that there would be no NCAA Football game released next year and, possibly, ever again. Not terribly long after that, word came out that a settlement had been reached between EA Sports and the parties involving Sam Keller and Ed O'Bannon. The terms of the settlement have not been revealed to the public due to the issue of the court still having to approve the deal, which is expected to go through.
Now, the important part of this is that this does not absolve the NCAA at all as they will still have to defend themselves. All this means is that EA Sports has effectively removed themselves from the equation altogether and will now get to see the case on the sidelines instead of up close and personal on the battlefield of the courtroom itself.
Attorneys representing student athletes who claim Electronic Arts (EA) (NASDAQ: EA) illegally used student-athletes’ likenesses in the company’s popular NCAA Football video games confirmed they have reached a proposed settlement.
The settlement covers claims made in the Keller and O’Bannon case against EA along with the Alston and Hart cases, but must be approved by the court. The amount and other terms are confidential pending a court filing.
“I can say that we are extraordinarily pleased with this settlement, whose terms we will be proud to present to the court and to the public,” said Steve Berman, managing partner of Hagens Berman and lead attorney in the Keller litigation. “When we began this case in 2009, we were venturing into a new application of the law, with little precedent, while facing monumental legal hurdles.”
EA and attorneys for the student-athletes reached the settlement after the United States Court of Appeals ruled in favor of the proposed class in an attempt by EA to dismiss the case. The ruling remanded the case to U.S. District Court, allowing attorneys for the plaintiffs to seek class certification.
“When we filed the case, we felt very strongly that EA’s appropriation of student-athletes’ images for a for-profit venture was wrong, both in a legal sense and from a more fundamental moral perspective,” Berman added “These guys were busting their butts on the field or the court trying to excel at athletics, oftentimes to help win or maintain scholarships so they could get an education.”
“Students agreed that by being student-athletes that they could not exploit their personal commercial value, an agreement they lived up to,” Berman added. “The same cannot be said about the NCAA or its partner Electronic Arts.”
Berman noted that the settlement with EA will allow attorneys to focus on claims against the NCAA, who has not settled. “We hold that the NCAA intentionally looked the other way while EA commercialized the likenesses of students, and it did so because it knew that EA’s financial success meant a bigger royalty check to the NCAA.”
“We are looking forward to presenting our case against the NCAA to a jury at trial,” Berman added. “We believe the facts will reveal a startling degree of complicity and profiteering on the backs of student athletes.”
The cases drew national attention because the case revolved, in part, on whether EA’s videogames and representations of the player-athletes were protected under the First Amendment as artistic impression.
In the ruling by the Ninth Circuit, Judge Jay Bybee -- writing for the majority -- said that EA’s use of Keller’s image “does not qualify for First Amendment protection as a matter of law because it literally recreates Keller in the very setting in which he has achieved renown.”
Judge Claudia Wilken in the US District Court for Northern California must grant preliminary approval of the settlement before ultimately approving the deal.
On July 17, 2013, the NCAA announced it would not renew its licensing agreement with EA, citing legal concerns. EA announced today that it would not produce its college football game next year