In litigation very similar to one brought previously by NFL Hall of Fame member Jim Brown, another ex-professional football player has filed a lawsuit against Electronic Arts, alleging that the game maker used the likenesses of retired NFL players illegally in its Madden NFL series of videogames.
The new suit, filed by Michael E. Davis (pictured in his playing days), aka Tony Davis, was filed in the United States District Court of the Northern District of California on July 29, and is of the class action variety, seeking damages on behalf of the “approximately 6,000 retired NFL players whose likenesses were included in the ‘historic teams’ in all versions and editions of Madden” sold between July 29, 2008 and the present.
Davis, who now resides in Colorado, played six seasons in the NFL as a running back and kick returner, spending three seasons apiece with the Cincinnati Bengals (1976-1978) and Tampa Bay Buccaneers (1979-1981). The lawsuit claims EA’s use of the likenesses of retired players in its games violates Davis’ statutory and common law rights of publicity under California law, in addition to being unlawful and/or wrongful, causing EA to “be unjustly enriched.”
The lawsuit also called EA’s “commercial exploitation” of retired NFL players both “blatant and prolific.”
Davis notes that in 1979, when he played with the Bucs in his fourth year, he was 26 years old, 5’11” in height, weighed 215 pounds and wore number 27. In Madden 09, Davis claims that a halfback for the 1979 Tampa Bay team appeared, with the same age, height, weight and pro experience—the only difference being the virtual player’s number (#37). Davis claims that despite the “scrambled” jersey numbers of retired players in the games, consumers “will have no difficulty identifying who the ‘historic’ players are.”
Excluded from the class action suit are ex-NFL participants whose “virtual players’ height is not within two inches of the player’s roster height, and the virtual player’s weight is not within 10% of the player’s roster weight.”
The suit seeks actual damages, statutory damages and punitive damages for every member of the class, in addition to the “disgorgement of all profits attributable to the use of Class Members’ likenesses earned by EA.”
Grab a copy of the complaint here (PDF).
Bonus: watch Davis score the only receiving touchdown of his NFL career here (WMV).