In re NCAA Student-Athlete Name and Likeness Licensing Litig.

Facts

Defendant is a video game developer that creates college football and basketball video games that allow users to control avatars representing college football and basketball players during simulated games. One of these games was NCAA Football. In this game, the real college football players on college rosters were represented by corresponding avatars that wore the same jersey number, played the same position, had the same height, weight, build, skin color, hair color, and home state. Defendant determined these characteristics by sending college equipment managers questionnaires about the players. Defendant created realistic depictions of the college stadiums, coaches, and fans. The game differed from reality in that the players’ names were not displayed on their jerseys and the home towns listed were not accurate. Users of the game could obtain and upload rosters from third parties that allowed the player names to appear on the jerseys. Plaintiff was the starting quarterback for Arizona State University in 2005 and then the University of Nebraska in 2007. In the 2005 version of the game, the avatar for Arizona State University’s quarterback wore Plaintiff’s number and had the same physical and athletic characteristics as Plaintiff did. In the 2008 version, the University of Nebraska quarterback now had those characteristics, although the jersey number did not match Plaintiff’s as he had changed it shortly before the season started. Defendant did not have Plaintiff’s permission to use his likeness and did not compensate him for it. Plaintiff filed a putative class action in federal court on the basis that Defendant was violating his right of publicity under California law. The trial court denied Defendant’s claim of a First Amendment defense and Defendant appealed.