Ex-NFL players settle with video game maker

Three former NFL players settled with video game maker Electronic Arts on Tuesday, resolving a suit originally brought to determine who is allowed to profit from a professional athlete's digital likeness.

Filed nearly a decade ago, the case never saw trial due to various denied motions including one for summary judgment on behalf of Electronic Arts. Davis v. Electronic Arts Inc. 10-CV3328 (N.D. Cal., filed Sept. 29, 2010).

According to court filings the settlement will see former NFL players and plaintiffs Michael "Tony" Davis, Vince Ferragamo and Billy Joe DuPree enter into a confidential non-class settlement agreement and dismiss their individual claims against Electronic Arts .

The settlement would not impede any potential class action.

"On those individual cases it's normally relatively small amounts that are awarded because you've got hundreds of thousands of players on any one game's roster," commented Jon King of Concord who previously worked on a similar case involving the likenesses of college athletes in video games.

"Just doing the math of the number of players involved in the game," King said, "it's not going to be life changing." The only way to win higher awards in sports media cases is through a class action, he said.

In a May 2018 attempt to certify a classn, the plaintiffs argued players who make up the rosters for "historic teams" featured in copies of Madden football games made before 2010 were based on real athletes, themselves included.

While the statute of limitations on those games has expired, plaintiffs argued later versions of the game used altered versions of their likenesses, featuring different names and jersey numbers to avoid legal trouble.

Plaintiffs' attorney Brian D. Henri, a partner with Henri Law Group, wrote in court documents that a third-party company that had a licensing agreement with Electronic Arts released a user guide intended to help players edit the likenesses to give them the historically accurate names and jersey numbers.

In support of an August 2018 motion for summary judgment, Electronic Arts surveyed more than 1,200 people who played Madden video games. According to the motion, surveyed individuals were shown the likenesses of the players involved in the suit and could only identify them correctly between 1 to 3% of the time.

James R. Slaughter of Keker, Van Nest & Peters, Electronic Arts' attorney at the time, wrote, "These results are not surprising. In deposition, plaintiffs could not identify themselves, their teammates, their fellow class representatives, or other retired players. In sum, the only record evidence establishes that the avatars plaintiffs claim depict them are not readily identifiable as them."

The attorney representing Electronic Arts at the time of the settlement was Austin Tighe of Feazell & Tighe.