NFL Players Want Class Cert in EA Games Fight

     SAN FRANCISCO (CN) — Electronic Arts returned to federal court over its Madden NFL video game, this time asking a federal judge to bar retired NFL players from moving forward with a right-of-publicity class action.
     “The plaintiffs are asking what no federal court has ever done, which is to certify a nationwide right-of-publicity class action,” EA attorney R. James Slaughter said at a motion to certify hearing Thursday. “This court shouldn’t be the first.”
     Michael Davis, Vince Ferragamo and Billy Joe Dupree sued EA in 2010 on behalf of 6,000 retired NFL players, objecting to the use of avatars that closely resembled them in “Madden 2009” — a game that allowed players to pit “historical teams” against one another.
     For instance, the game includes a 1979 Los Angeles Rams team, for which Ferragamo played quarterback. The game depicts the Rams’ quarterback as an avatar with identical characteristics to Ferragamo — 26 years old, 6 feet 3 inches tall, and weighing 207 pounds.
     U.S. District Judge Richard Seeborg refused to dismiss the case in 2012, and the Ninth Circuit affirmed his ruling last year.
     On Thursday, lawyers battled over whether Seeborg should certify a nationwide class based on California’s right-of-publicity laws.
     Brian Henri, who represents the athletes, argued as a matter of course that the class should be certified in the Northern District, where EA maintains its legal and business affairs departments and made its player-licensing decisions.
     “You say that as if it’s a given,” Seeborg said, skeptical that a game that is made and sold nationwide should be subject to one state’s jurisdiction. “If you’re selling the game in other parts of the country, where is the wrong occurring?” he asked.
     “The last event that triggered liability would be the place of the wrong. That would be the publication — which occurred in California,” Henri said. “Where conduct emanated from California and the defendant is a California corporation, that is sufficient to say California laws should apply.”
     Not so, EA attorney Slaughter said.
     “The last event that’s occurring is the sale,” he argued. “It’s not the intention to violate a right, it’s whether that right was actually violated. It’s the actual use, not the intention to make a use, and the only evidence before the court is that the game was designed in Florida and manufactured and sold throughout the United States.”
     Slaughter also said that the class shouldn’t be certified because its members aren’t ascertainable.
     “They need to figure out a way to ascertain who is in the class and they haven’t done that,” he told Seeborg. “No matter what law applies, identifiability is a core element of a right-of-publicity claim and the plaintiffs must prove that each avatar in the game is readily identifiable as a plaintiff.”
     Seeborg brought up EA’s consumer survey, noting that users didn’t seem to be able to recognize the avatars as certain players.
     “If you don’t know who Vince Ferragamo is, it doesn’t much matter if you can identify him in a game,” he said. “Let’s say there’s a class member that nobody cares about and is a poor soul with no fans. How is that person a class member?”
     Henri said it doesn’t matter whether avatars are immediately recognizable to gamers, and that EA’s own databases can be used to accurately identify the players, famous or not.
     Besides, he added, “It’s very clear they misappropriated the commercial interest of the class members in their video games.”Seeborg didn’t indicate how or when he’d rule on the matter.

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