Today the Supreme Court denied the NCAA's request to intervene and review the Ninth Circuit's decision in Keller v. Electronic Arts Inc.
The Keller case involves "right of publicity" claims brought by several former college football players who allege that their image and likeness appeared in Electronic Arts' NCAA Football videogame series without authorization. The plaintiffs argue that Electronic Arts, which produces NCAA Football, violated their "right of publicity" and conspired with the NCAA by using their images and likenesses in videogames, claims that the NCAA vigorously disputes.
In Keller, the Ninth Circuit recognized that videogames, like movies and books, are expressive works fully protected by the First Amendment, but ruled that the NCAA was not immune to the plaintiffs' claims because the depictions of college football players in Electronic Arts’ NCAA Football videogame series were too realistic. In its petition, the NCAA argues that the Ninth Circuit erred, and the ruling should be reversed, because it is inconsistent with core First Amendment principles and threatens to chill a broad range of speech. The plaintiffs seek to limit speech based upon the content of what Electronic Arts portrayed in its videogames. Under the Ninth Circuit's reading of the First Amendment, the maker of a videogame, movie, or other expressive work is more likely to face liability if its creation is accurate and faithful to reality—a reading the NCAA believes is fundamentally flawed.
“The Court’s action today was disappointing,” said former Solicitor General Seth P. Waxman, who represents the NCAA before the Supreme Court. “But it is extremely rare for the Court to grant a motion to intervene. The denial does not speak to the Court’s views of the merits of the NCAA’s First Amendment arguments. We will continue to press those arguments and our position in this important case more generally, as the case proceeds.”
The NCAA sought to intervene because it was not a party in the court of appeals, but it is a defendant in the trial court. Electronic Arts’ own petition for Supreme Court review of the Ninth Circuit’s decision remains pending, although Electronic Arts and the plaintiffs have notified the Supreme Court that they have tentatively agreed to a settlement. Even if Electronic Arts withdraws its petition, the NCAA will have the opportunity again to ask the Supreme Court to hear the case after trial.