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NCAA video games ruling hits points in SLU prof’s article

Attorney Colleen Jones told a federal judge last September that a Saint Louis University professor’s research was “absolutely 100 percent on point” in a high-profile lawsuit over the use of college athletes’ likenesses in video games.

An appeals court decision Wednesday in the California lawsuit against Electronic Arts Inc. proved Jones right.

Jones had been arguing on behalf of Electronic Arts in its unsuccessful attempt to get research from Saint Louis University assistant Professor Anastasios Kaburakis and his co-authors before it was approved for publication. The company sought the study as it defended itself from a lawsuit brought by former Arizona State University quarterback Sam Keller.

In its 2-1 Wednesday ruling, the 9th U.S. Circuit Court of Appeals said EA wasn’t protected against Keller’s suit because its “NCAA Football” games, which use athletes’ height, weight, hair color and skin tone, though not their names, “literally creates Keller in the very setting in which he has achieved renown.”

An article by Saint Louis University assistant Professor Anastasios Kaburakis and four co-authors published earlier this year in Journal of Issues in Intercollegiate Athletics made a similar point.

The researchers surveyed 422 students at four NCAA-member universities. Nearly half the students identified avatars in slideshows of EA’s “NCAA Football” as particular nationally known marquee players, even though the players’ names aren’t used in the video games.

“The results paint a picture of a college football video game experience which exists as a virtual mirror image of the ‘real’ college football world, containing not only the officially-licensed and easily recognizable marks and logos of the NCAA and its members, but also the recognizable, but unlicensed, likenesses of college football players,” the article says.

The article also delved into an issue the appeals court addressed in a separate opinion upholding the dismissal of a lawsuit by former National Football League player Jim Brown over the use of his likeness in EA’s “Madden NFL.”

Brown, a former Cleveland Browns running back, accused the company of false endorsement based on the unauthorized use of his likeness.

Whether video-game players see student athletes’ participation in video games as an endorsement is important for false endorsement claims, the article said.

The survey found that 15 percent of respondents were uncertain and 10 percent were under the impression athletes were in fact endorsing the products.

Kaburakis, who teaches in SLU’s John Cook School of Business, was out of the country and not available for an interview. His co-authors were Galen Clavio and Patrick Walsh of Indiana University, David A. Pierce of Ball State University, and Heather Lawrence-Benedict of Ohio University.

The appeals court cases are Keller v. Electronic Arts, 10-15387, and Brown v Electronic Arts, 09-56675.

Bloomberg News contributed information to this report.

With assistance from David McLaughlin in New York, Clea Benson in Washington and Michael B. Marois in Sacramento