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Supreme Court rejects EA defense in Madden suit

Lawsuit brought by former pros used in games without permission can now proceed as publisher faces familiar setback

The US Supreme Court has already ruled that video games enjoy protections of free speech, but today it acknowledged some limits to that. As reported by Reuters, the high court today rejected Electronic Arts' free speech defense in a lawsuit filed by former NFL players upset their likenesses were used in Madden NFL games without their permission or compensation.

From 2001 to 2009, Madden NFL entries featured the ability to play with historical teams that did not have the players' names, but replicated their specific attributes and positions within the team. EA claimed that distinction made their inclusion incidental to the appeal of the game and protected as free speech under the First Amendment, but the Supreme Court was unswayed as it affirmed a previous appeals court ruling.

This particular fight is one EA has been losing for years. A lower court originally ruled against the publisher and allowed the suit to proceed in 2012. Last year, the appeals court unanimously ruled against EA, with a circuit judge writing in the decision, "EA's use of the former players' likenesses is not incidental, because it is central to EA's main commercial purpose - to create a realistic virtual simulation of football games involving current and former NFL teams."

EA also paid $40 million to settle a similar lawsuit brought by college athletes after losing another appeals court battle.

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