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1 Docket No In the Supreme Court of the United States of America ELECTRONIC ARTS, INC., a Tulania Corporation; NATIONAL COLLEGIATE ATHLETIC ASSOCIATION Petitioner, v. Matt LAUER, individually and on behalf of all others similarly situated; Al ROKER Respondent, ON A WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR RESPONDENT COMPETITION PROBLEM FOR THE TULANE MARDI GRAS SPORTS LAW COMPETITION, 2014 Anonymous Number: 8

2 Table of Contents Table of Contents,....ii Table of Authorities iv Issues Presented Short Answers Statement of the Case... 1 Summary of the Argument... 3 Standard of Review..5 Argument.5 I. EA VIOLATED LAUER AND ROKER S RIGHTS OF PUBLICITY BY USING THEIR LIKENESSES AND BIOGRAPHICAL INFORMATION FOR COMMERCIAL ADVANTAGE, AND ITS REPRESENTATIONS WERE NOT SUFFICIENTLY TRANSFORMATIVE TO MERIT FIRST AMENDMENT PROTECTION....5 A. The Transformative Use test is the most accurate way to balance individuals rights of publicity against First Amendment protections....7 i. The Rogers Test.8 ii. The Transformative Use Test...9 B. Under the Transformative Use test, EA s use of Lauer and Roker s likeness in NCAA Football was not sufficiently transformative to warrant First Amendment protection II. THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT CORRECTLY REVERSED SUMMARY JUDGMENT BECAUSE THE NCAA S AMATEURISM AND ELIGIBILITY BYLAWS ARE SUBJECT TO FACTUAL SCRUTINY UNDER THE SHERMAN ACT, AND ARE NOT IMMUNE TO ATTACK UNDER THE ACT AS A MATTER OF LAW A. The NCAA s erroneous assertion that its amateurism and eligibility bylaws are immune from challenge under the Sherman Act is based upon inapplicable dicta from a factually and legally distinguishable Supreme Court opinion...16 ii

3 B. Even if Regents is applicable, modern decisions indicate that the NCAA s amateurism and eligibility bylaws are inappropriate for disposition as matters of law C. The NCAA s anticompetitive conduct in denying Lauer and Roker rightful compensation for the use of their biographical information and likeness in NCAA Football violates the Sherman Act Conclusion iii

4 Table of Authorities STATUTES 15 U.S.C. 1 (2012)...16 UNITED STATES SUPREME COURT CASES Anderson v. Shipowners Ass n of Pac. Coast 272 U.S. 359 (1926)...22 Cooper Indus. Inc., v. Leatherman Tool Grp. 532 U.S. 424 (2001)...5 Nat l Soc y of Prof l Eng rs v. United States 453 U.S. 679 (1978)...17 NCAA v. Bd. of Regents 468 U.S. 85 (1984) UNITED STATES COURT OF APPEALS CASES Cardtoons, L.C. v. Major League Baseball Players Ass n, 95 F.3d 959 (10th Cir. 1996)...8 C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)...8 Collegiate Licensing Company, 724 F.3d 1268 (9th Cir. 2013)...9 Comedy III Prod., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (4th Cir. 2007)...9 ETW Corp. v. Jiren Publishing,, Inc., 332 F.3d at 915 (6th Cir. 2003) 8 Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013)...5 Law v. NCAA 134 F.3d 1010 (10th Cir. 1998).23 McFarland v. Miller, 14 F.3d 912, 919, 923 (3d Cir.1994) 5 iv

5 Rogers v. Grimaldi, 875 F.2d 994, 996 (2d Cir. 1989)....8 Smith v. NCAA 139 F.3d 180 (3d Cir. 1998), vacated on other grounds, 525 U.S. 459 (1999)...20 Tanaka v. Univ. of S. Cal. 252 F.3d 1059 (9th Cir. 2001)...16 UNITED STATES DISTRICT COURT CASES American Amusement Machine Assn. v. Kendrick, 244 F.3d 572, 577 (C.A ) 14 Gaines v. NCAA 746 F.Supp. 738 (M.D. Tenn. 1990)..20 Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658, 664 (D.N.J. 2010) 5 In re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. C CW, 2013 WL , at *1 (N.D. Cal. Oct. 25, 2013) In re NCAA I-A Walk-On Football Players Litigation 398 F.Supp.2d 1144 (W.D. Wash. 2005) Keller v. Electronic Arts and National Collegiate Athletic Association, No. 09 cv 01967, 2010 WL (N.D.Cal. Feb. 8, 2010) STATE COURT CASES Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003)...7 Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 313 (Cal. Ct. App. 2001).5 Kirby v. Sega of America, 50 Cal. Rptr. 3d 607 (Cal. Ct. App., 2006)...9 No Doubt v. Activision Publishing Inc., 122 Cal. Rptr. 3d 39, 401 (Ct. App. 2011) Winter v. DC Comics, 69 P.3d 473 (Cal. 2003)... 9 v

6 SECONDARY MATERIALS Daniel E. Lazaroff, The NCAA in its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329 (2007)..19 James R. Kyper, Dustin R. Marlan, When does the Right of Publicity trump video game maker s First Amendment rights?, 18 No. 11 Cyberspace Law. 9 (December, 2013)....7 Joseph Gutmann, It s in the game: Redefining the transformative use test for the video game arena, 31 Cardozo Arts & Ent. L.J. 215, 218 (2012).....8,14 Leslie E. Wong, Our Blood, Our Sweat, Their Profit: Ed O'bannon Takes on the NCAA for Infringing on the Former Student-Athlete's Right of Publicity, 42 Tex. Tech L. Rev. 1069, (2010)...6 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev (1990)....9 Restatement (Third) of Unfair Competition, 49 cmt. b (1995)....6 William C. Holmes & Melissa H. Mangiaracina, Antitrust Law Handbook 2:8 (2013)...16 vi

7 ISSUES PRESENTED I. Should EA s use of Lauer and Roker s likenesses and biographical information be protected by the First Amendment when its representations were not sufficiently transformative to outweigh the athletes rights of publicity? II. Did the US Court of Appeals for the Fourteenth Circuit correctly conclude that allegations of anticompetitive conduct implicating the NCAA s amateurism and eligibility bylaws are valid claims under the Sherman Act, and not barred as a matter of law, when it overturned the District Court s erroneous grant of summary judgment to the NCAA and EA? SHORT ANSWERS I. No. EA violated Lauer and Roker s rights of publicity by using their likenesses in NCAA Football, and under the Transformative Use test, the video game is not sufficiently transformative to merit First Amendment protection. II. Yes. Allegations of anticompetitive conduct resulting from the NCAA s promulgation of bylaws impacting amateurism and eligibility are valid Sherman Act claims and are not barred as a matter of law. STATEMENT OF THE CASE Electronic Arts, Inc. s ( EA ) NCAA Football is a video game that presents actual college athletes who were on the National Collegiate Athletic Association (NCAA) football teams that year as digital avatars. R. at 14. Each year, a new version of NCAA Football is released so game users can simulate playing NCAA football in a realistic setting that imitates the actual games played that year. R. at 14. EA achieves this realistic setting by carefully depicting the athletes with the correct personal characteristics (height, weight, athletic ability), accessories (helmet, visor, wristband), physical abilities (speed and agility, throwing arm, passing accuracy), 1

8 and biographical details (place of origin). R. at 15. EA also replicates brand placement, university logos, and uniform designs. R. at 14. EA s intent in creating this heightened realism in NCAA Football video games is to allow users to experience the excitement and challenge of college football. R. at 14. This hyper-realism is designed to meet the consumer demand to play as their favorite players; thus, directly resulting in increased sales and profits for EA. R. at 15. Game users can alter the default settings by editing each avatar s physical characteristics and attributes. R. at 15. Users also directly influence the games outcome through their own playcalling and control the avatar s movements through hand-held controllers. R. at 15. In addition, users can upload actual current and former football team rosters from a third party through the Teambuilder feature so the athletes real names correspond with their digital avatar. R. at 15. Although EA itself does not have the athletes names available, EA takes no action to prevent users from uploading rosters, and in fact, makes it easy for users with the Teambuilder feature. R. at 16. Despite producing nearly identical virtual athletes, EA does not compensate the reallife NCAA Football players for the use of their likeness, nor does EA ask the players for their consent before incorporating their likeness into the video game. R at 15. In NCAA Football 2004, NCAA Football 2005, NCAA Football 2006, and NCAA Football 2009, EA created digital avatars of college athletes Matt Lauer and Al Roker. R. at 15. Specifically, in NCAA Football 2006, the virtual quarterback for the Ole Tulania Football team hailed from Florida, stood six feet and two inches tall, weighed 197 pounds, wore Lauer s jersey number (number 13), sported a left wrist band, and a helmet visor. R. at 15. In addition, the virtual Ole Tulania Quarterback s speed and agility rating, passing accuracy rating and arm strength all reflected actual footage of Lauer during his 2005 season. R. at 15. 2

9 After a motion to join their complaints, Lauer and Roker brought suit against EA and the NCAA in the United States District Court for the District of Tulania on two issues. R. at 14. First, that EA misappropriated their likeness and identities for commercial purposes in connection with four of EA s NCAA Football video games, and second, the NCAA harmed competition in violation of the Sherman Act by enforcing its amateurism and eligibility bylaws to the effect of denying compensation to Lauer and Roker for their appearance in NCAA Football. R. at 14. EA answered and filed an instant motion arguing that the First Amendment to the United States Constitution protects NCAA Football as an expressive work and filed a motion to dismiss on the second issue. R. at 14. On the first issue, the Honorable Lee Gifford held that the First Amendment protected the work under the transformative use test and granted EA s Motion for Summary Judgment. On the second issue, the Honorable Lee Gifford held that the amateurism and eligibility bylaws were not per se anticompetitive and granted EA s Motion to Dismiss. R. at 14. Lauer and Roker then appealed the District Court s Order granting Summary Judgment and Motion to Dismiss to the United States Court of Appeals for the Fourteenth Circuit. R. at 3. On the first issue, the Honorable Circuit Judges Couric, Guthrie, and Curry reversed the District Court s Order granting Summary Judgment and held that Lauer and Roker s images were not so transformed as to be shielded by the First Amendment. R. at 10. On the second issue, the Honorable Circuit Court judges found it unjust to uphold the District Court s Motion to Dismiss and thus reversed. R. at 13. EA s appeal is now before this Court. SUMMARY OF THE ARGUMENT In NCAA Football, EA violated Lauer and Roker s rights of publicity. Under the test as outlined in Gionfriddo v. Major League Baseball, EA (1) used the players likenesses; (2) for the purposes of a commercial advantage; (3) without their consent; and (4) in a manner that resulted 3

10 in unjust pecuniary gain. EA argues that the First Amendment protects its violation of the players rights of publicity in NCAA Football as expressive speech. In order to balance the individuals rights of publicity against First Amendment protections, this Court should use the Transformative Use test, under which the court examines (1) whether the player s identity is sufficiently transformed, (2) the context within which the digital avatar exists, and (3) the ability of users to change the avatar s appearance. In this case, EA did not sufficiently transform the players identities, since the avatar versions found in the video game wear the same jersey numbers and accessories, closely replicate the athletes physical characteristics including height and weight, and share the actual players biographical information. Second, the digital avatars participate in their sport in exact replications of the contexts that the actual players did so. Finally, as other courts have found, the ability to change the avatars appearance alone should not allow EA to defeat the individuals rights of publicity. For these reasons, the Court should find that EA s use of the player s likenesses in NCAA Football was not sufficiently transformative to merit First Amendment protection. On the second issue, the United States Court of Appeals for the Fourteenth Circuit correctly reversed summary judgment for several reasons: First, the framework of analysis upon which the NCAA relies for its assertion that its amateurism and eligibility bylaws are immune from challenge under the Sherman Act is based upon dicta from an inapplicable Supreme Court opinion. Second, even if the bifurcated framework of analysis does apply in this case, challenges to the NCAA s amateurism and eligibility bylaws should be adjudicated on the merits, rather than disposed of as a matter of law. Finally, should this case proceed to adjudication on the merits, the NCAA regulations denying student-athletes rightful compensation run afoul of the 4

11 Sherman Act. For these reasons, the Court of Appeals correctly reversed the District Court s erroneous grant of summary judgment to the NCAA. STANDARD OF REVIEW I. The Supreme Court of the United States hears this appeal de novo. Application of the de novo standard of review places this Court under no obligation to defer to any legal conclusions adopted by the court below. Cooper Indus. Inc., v. Leatherman Tool Grp., 532 U.S. 424, 436 (2001). ARGUMENT I. EA VIOLATED LAUER AND ROKER S RIGHTS OF PUBLICITY BY USING THEIR LIKENESSES AND BIOGRAPHICAL INFORMATION FOR COMMERCIAL ADVANTAGE, AND ITS REPRESENTATIONS WERE NOT SUFFICIENTLY TRANSFORMATIVE TO MERIT FIRST AMENDMENT PROTECTION. Under applicable Fourteenth Circuit law, individuals have the exclusive right to profit from their own notoriety, since unauthorized use potentially harms the value of their brand and deprives them of the compensation they are owed. See McFarland v. Miller, 14 F.3d 912, 919, 923 (3d Cir.1994). As a New Jersey District Court held: Underlying this right is the theory that a celebrity has the right to capitalize on his persona, and the unauthorized use of that persona for commercial gain violates fundamental notions of fairness and deprives the celebrity of some economic value in his persona. Because celebrity status often translates to economic wealth, the unauthorized use of one s persona harms the person both by diluting the value of the name and depriving that individual of compensation. Hart v. Electronic Arts, Inc., 740 F.Supp.2d 658, 664 (D.N.J. 2010) (internal citations omitted). A prima facie claim for violating one's right of publicity requires the showing of four elements: (1) the use of one's identity; (2) for purposes of a commercial advantage; (3) without consent; and (4) in a manner that causes monetary harm. See Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 313 (Cal. Ct. App. 2001). Importantly, a plaintiff can satisfy the 5

12 fourth element upon showing unjust pecuniary gain by the defendant. See Restatement (Third) of Unfair Competition, 49 cmt. b (1995). Lauer and Roker s likenesses are found in NCAA Football 2004, NCAA Football 2005, NCAA Football 2006, and NCAA Football 2009 in violation of their rights of publicity. R. at 15. Specifically, Lauer points to NCAA Football 2006, in which EA, lists the... virtual player quarterback as hailing from Florida..., standing six (6) feet and two (2) inches tall, weigh[ing] one hundred ninety-seven (197) pounds..., and the virtual player dons Lauer s jersey number, a left wrist band, and a helmet visor. Finally, Lauer s speed and agility rating... passing accuracy rating [and] arm strength all reflect actual footage of Lauer during his 2005 season.[1] Id. As one commentator noted, On the field and on the court, players are not only identified by their name and face, but also by the colors they wear, the number on their jersey, and the style in which they play. A player's jersey number is something that is unique to each player on a team. Oftentimes during a game, commentators will chose to use the players' numbers instead of their names while giving a play-by-play that number can become so inextricably linked to a player that it essentially becomes part of his persona, or his identity. If a fan, or even a gamer, saw an athlete wearing the colors and number of his favorite player, it would not be unreasonable for that fan to assume that he was, in fact, that player-or at least that he was representing himself as such. Leslie E. Wong, Our Blood, Our Sweat, Their Profit: Ed O'bannon Takes on the NCAA for Infringing on the Former Student-Athlete's Right of Publicity, 42 Tex. Tech L. Rev. 1069, (2010). Despite not using their names, EA clearly intended the virtual players to represent Lauer and Roker. These representations increased EA s profits, since [EA s] heightened realism in NCAA Football video games translates directly into increased sales and revenues for EA. R. at 15. Further, EA did not acquire Lauer or Roker s consent, and effectively caused monetary harm by capitalizing on their images without compensation. In fact, at the Appellate level, EA conceded 6

13 for purposes of the motion to dismiss and appeal that they violated Lauer s and Roker s rights of publicity. Since Lauer and Roker have met their prima facie burden, the Court must consider whether any affirmative defenses apply. Here, EA argues that in spite of violating Lauer and Roker s rights of publicity, the First Amendment shields it from liability because NCAA Football is a protected work. R. at 4. Under the First Amendment, certain types of speech are entitled to protection regardless of whether rights of publicity are violated. Here, the parties dispute whether NCAA Football constitutes expressive work, which is protected, or speech made for commercial purposes, which is not afforded the same protections under the First Amendment. Lauer and Roker, in opposition to EA s contention that the video games constituted expressive works, argued that NCAA Football was commercial speech and therefore was not entitled to protection. R. at 4. While Lauer and Roker do not concede that the video game was expressive speech, they proceed in light of the Circuit Court s holding that EA s NCAA Football video games are expressive works entitled to First Amendment protections. R. at. 17. A.The Transformative Use test is the most accurate way to balance individuals rights of publicity against First Amendment protections. When a person alleges his or her identity has been misappropriated, the right of publicity must be balanced against First Amendment justifications. Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003) (quoting Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 416 (9th Cir. 1996). Courts have developed several balancing tests to determine whether the rights of publicity in a given scenario are sufficient to overcome First Amendment protections. The two most common balancing tests are the trademark-based Rogers test, and the copyright-based Transformative Use test. James R. Kyper, Dustin R. Marlan, When does the Right of Publicity 7

14 trump video game maker s First Amendment rights?, 18 No. 11 Cyberspace Law. 9 (December, 2013). i. The Rogers test The Rogers test, which originated in the Second Circuit case of Rogers v. Grimaldi, is disfavored by the majority of courts because it fails to adequately protect individuals rights of publicity. In Rogers, the famous dancer Ginger Rogers sued the producers of a movie for featuring an italian dancer that mimicked his real-life persona. 875 F.2d 994, 996 (2d Cir. 1989). The court fashioned a two-part test to determine whether the movie was protected under the First Amendment. Id. at 999. The first prong of the test states that the title of a work is not protected if it has no artistic relevance to the original work. Id. The second prong of the test states that even if there is relevance, there is still no protection if the work explicitly misleads as to the source or the content of the work. Id. The Rogers test is disfavored by the majority of courts because it does not represent the original purpose of the right of publicity. Joseph Gutmann, It s in the game: Redefining the transformative use test for the video game arena, 31 Cardozo Arts & Ent. L.J. 215, 218 (2012). The Rogers test fails to account for the fact that a work can be a complete imitation even if there is no overt deception present in the work. Id. Therefore, a work that has no redeeming creative value on its own could still easily pass the Rogers test. Id. For this reason, most courts, including the District Court and Circuit Court in this case, have concluded that the Rogers test is not the appropriate test for cases such as this one. See C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007); ETW Corp. v. Jiren Publishing,, Inc., 332 F.3d at 915 (6th Cir. 2003); Cardtoons, L.C. v. Major League Baseball Players Ass n, 95 F.3d 959 (10th Cir. 1996). 8

15 ii. The Transformative Use test This Court should apply the Transformative Use test, which is the majority approach, and more effectively balances the right of publicity and First Amendment protections in the context of video games. See Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013); Keller v. Electronic Arts and National Collegiate Athletic Association, No. 09 cv 01967, 2010 WL (N.D.Cal. Feb. 8, 2010); Collegiate Licensing Company, 724 F.3d 1268 (9th Cir. 2013); Winter v. DC Comics, 69 P.3d 473 (Cal. 2003); Kirby v. Sega of America, 50 Cal. Rptr. 3d 607 (Cal. Ct. App., 2006). The Transformative Use test is based on the concept articulated by Judge Pierre Leval in a 1990 law review article on copyright law s fair use doctrine. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev (1990). Leval explained transformative use as one that employs the subject in a different manner or for a different purpose from the original. Id. at Leval proposed that courts look at the purpose and character of the use as well as the nature of the original work to determine whether a particular use was transformative. Id. Leval s article led the Fourth Circuit to formulate the first balancing test based on how transformative a work is. Comedy III Prod., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (4th Cir. 2007). The rationale behind the test is that works containing significant transformative elements are especially deserving of First Amendment protection and are less likely to interfere with economic interests protected by the right of publicity. Id. at 809. Thus, under the Transformative Use test, a work is only given First Amendment protection if it is considered to be significantly transformative. Id. In the context of video games, there is a three step analysis to determine whether a digital avatar is sufficiently transformative to warrant First Amendment protection. Hart, 717 F.3d at The court examines (1) whether the celebrity s identity is sufficiently 9

16 transformed, (2) the context within which the digital avatar exists, and (3) the ability of users to change the avatar s appearance. Id. The goal of this analysis is to determine whether the sum and substance of the work is the replication of the likeness or the defendant s own expression. Id. Because the Transformative Use test has been adapted to specifically fit the video game context, and accurately balances rights of publicity with First Amendment protections, this court should use test to balance the parties interests. B. Under the Transformative Use test, EA s use of Lauer and Roker s likeness in NCAA Football was not sufficiently transformative to warrant First Amendment protection. In 2013, the Third and Ninth Circuits both used the transformative use test to hold that EA could not invoke the First Amendment as a defense to the athlete s right of publicity claims. Hart, 717 F.3d at 141; Keller, 724 F.3d at In Hart, the NCAA Football 2006 video game featured a Rutgers digital quarterback that wore Hart s jersey number and matched Hart in height, weight, appearance, play style, and biographical information. Hart, 717 F.3d at 145. Hart asserted that EA violated his right of publicity by including his unauthorized likeness in the video game. Id. In applying the transformative use test, the Third Circuit Court of Appeals focused solely on the digital avatar representing Hart in NCAA Football. Id. at 166. First, the Court reasoned that Hart s identity was not sufficiently transformed because both Hart s physical characteristics and accessories were closely replicated by the digital avatar. Id. Second, the Court reasoned that the context in which Hart s identity was placed was not transformative because it merely replicated the reality of college football. Id. The Court stated: The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game. This is not transformative; the various digitized sights and sounds in the video game do not alter or transform the Appellant s identity in a significant way. 10

17 Third, the Court reasoned that the ability of users to alter the digital avatars appearance on its own was not deserving of First Amendment protection because it would open the door for video game companies to avoid liability by merely adding a customization feature. Id. at 167. Furthermore, if a user significantly alters an avatar, the avatar no longer represents the player and is no longer at issue under this analysis. Id. Therefore, the Third Circuit found that the avatar was not significantly transformed to satisfy the Transformative Use test and held that the First Amendment did not protect EA s misappropriation of Hart s likeness. Id. at 169. Likewise, the Ninth Circuit also adopted the Transformative Use test in Keller v. Electronic Arts. Keller, 724 F.3d at In Keller, the virtual starting quarterback for Arizona State in NCAA Football 2005 looked just like the team s actual quarterback that year, Samuel Keller. Id. at Keller filed a complaint seeking compensation for EA s violation of his right of publicity. Id. In applying the Transformative Use test, the court explained that it was extending the reasoning of the California Court of Appeals in No Doubt v. Activision Publishing Inc. Id. at In No Doubt, the video game Band Hero allowed users to choose from a variety of avatars, including avatars representing members of No Doubt, to simulate performing as a rock band. No Doubt v. Activision Publishing Inc., 122 Cal. Rptr. 3d 39, 401 (Ct. App. 2011). In holding that the avatars were not transformative, the No Doubt court reasoned that the virtual avatars were mere replicas of the band members doing the same activity that made them famous- performing in a rock band. Id. at 411. Accordingly, the Keller Court concluded that although the video game contained creative elements as a whole, EA did not significantly transform Keller s likeness for purposes of the Transformative Use test: Users manipulate the characters in the performance of the same activity for which they are known in real life playing football in this case, and performing in a rock band in Band Hero. The context in which the activity occurs is also similarly realistic real 11

18 venues in Band Hero and realistic depictions of actual football stadiums in NCAA Football. Keller, F.3d at Also, like Hart, the court reasoned that the ability to alter the player s likeness does not constitute transformative use. Id.. at The court explained that customization is insignificant when the primary attraction of the game is for fans to be able to play as their favorite players. Id. at Therefore, the Ninth Circuit held that EA s video game did not sufficiently alter Keller s identity to defeat Keller s right of publicity claim. Id. at Like the Hart and Keller courts, this court should apply the Transformative Use test to determine that EA s use of Lauer and Roker s likeness in NCAA Football was not sufficiently transformative to overcome their rights of publicity. First, this Court must examine whether the EA sufficiently transformed Lauer and Roker s identity. In NCAA Football, the quarterback for Ole Tulania shares many of Lauer s characteristics. For example, the virtual starting quarterback for Ole Tulania wears the same jersey number, is the same height and weight, hails from the same state, and wears the same accessories as the real-life Lauer. R. at 15. Lauer s avatar also has his speed, agility rating, and passing accuracy. R. at 15. The Hart Court reasoned that this close replication of physical characteristics and accessories was not sufficient to transform the athlete s identity. Following this reasoning, this Court should also recognize that EA depicted Lauer exactly as he was in real life: the starting quarterback for Ole Tulania. EA s precise replication of Lauer s physical and nonphysical attributes was done to attract game users who are drawn to the specific and familiar qualities exhibited by their favorite athlete. R. at 15. Therefore, this Court should hold that EA s goal of authenticity defeats any creative transformation of Lauer s identity. Second, this Court must look at the context within which Lauer and Roker s digital avatars exists. The Keller court recognized that the NCAA Football game setting is identical to 12

19 the venue where the athlete performed during his collegiate career: on the football field. R. at 15. Likewise, the Hart court reasoned that the context in which the athlete s avatar was placed was not transformative because it merely simulated college football. Hart, 717 F.3d at 166. In this case, Lauer s likeness is also used on the football field in college stadiums in which he actually played. Therefore, this Court should recognize that NCAA Football is designed and intended by EA to replicate Lauer s life in the same environment that he built his reputation and hold that the context in which the avatars are placed is not particularly transformative. Third, the ability of game users to customize Lauer and Roker s likeness alone does not change the imitation status of the game. The Keller court reasoned that the changeability of avatars means little when the appeal of the game is for fans to be able to play as their favorite players. Keller, F.3d at Following this reasoning, this Court should also recognize that EA intends NCAA Football to be used in its base version where the avatars closely replicate their real-life counterparts. R. at 15. Even if alternate characteristics are available, the main source of profit for EA is still the avatars in their original form as it meets the demand of consumers who want to play as their favorite college athlete. R. at 15. The Hart court also reasoned that allowing a multi-billion dollar video game publisher to evade a right of publicity claim merely because users can change the athletes would disrespect the integrity of the right of publicity. Hart, 717 F.3d at 167. Therefore, this Court should also hold EA responsible for repackaging the likenesses of Lauer and Roker into video games for significant commercial gain and not allow them to avoid the claim based on a feature that is subordinate to the overall goal of creating a realistic portrait of the athletes. In addition, the users ability to directly influence the outcome of the game does make NCAA Football transformative. As Judge Posner observed, all work is interactive, The better it 13

20 is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the readers own. American Amusement Machine Assn. v. Kendrick, 244 F.3d 572, 577 (C.A ). Here, game users control the actions of the avatar and have power over the direction it takes. R. at 15. However, the fact that the outcome of each game is uncertain is a very real part of life for athletes. See Joseph Gutmann, It s in the game: Redefining the Transformative Use Test, 31 Cardozo Arts & Ent. L.J. at 237.When college athletes step onto the football field, they too do not know whether they will win or lose, and are capable of achieving both outcomes. Id. Therefore, regardless of whether the avatar s actions and the outcome of the game are controlled by the game user, this does not change EA s misappropriation of Lauer and Roker s likeness to create the avatar itself. The other creative aspects of EA s NCAA Football are inapplicable in the determination of whether Lauer and Roker s avatars are transformative. As the Hart court noted, the sole focus of the transformative use test is on how aspects of EA s work altered the athlete s identity. Hart, 717 F.3d at 145. Like the Hart court that solely looked at Hart s digital avatar, this Court should focus its analysis on avatar itself. The Circuit Court found that the various digitized sights and sounds in the video game do not alter or transform Lauer and Roker s likeness in any significant way. R. at 7. To hold otherwise would fail to recognize that First Amendment protection applies only where a likeness is so transformed that it has become primarily the defendant s own expression rather than the celebrity s image. Therefore, for the reasons above, this Court should affirm the Circuit Court holding that the player s images have not been sufficiently transformed to invoke First Amendment protection. 14

21 In conclusion, this Court should affirm the Circuit Court's holding that EA violated Lauer and Roker s right of publicity. EA s realistic representations of Lauer and Roker capitalizes upon the fame of these college athletes and directly results in commercial gain for EA. EA s use of Lauer and Roker s likeness is nothing more than a literal imitation of the real-life athletes, the avatars play in the same college football stadiums in which they earned their reputation, and the ability of game users to alter the athletes is subordinate to EA s overall goal of creating hyperrealistic avatars. Therefore, this Court should hold that, as a matter of law, EA failed to transform its depictions of Lauer, Roker, and other similarly situated college athletes in a sufficient manner to satisfy the Transformative Use test. II. THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT CORRECTLY REVERSED SUMMARY JUDGMENT BECAUSE THE NCAA S AMATEURISM AND ELIGIBILITY BYLAWS ARE SUBJECT TO FACTUAL SCRUTINY UNDER THE SHERMAN ACT, AND ARE NOT IMMUNE TO ATTACK UNDER THE ACT AS A MATTER OF LAW. The Fourteenth Circuit correctly overturned the District Court s grant of summary judgment to the NCAA because the NCAA s bylaws concerning amateurism and eligibility are subject to factual scrutiny under the Sherman Act, and not immune from attack under the Act as a matter of law, for several reasons. First, the bifurcated framework of analysis upon which the NCAA relies for its assertion that its amateurism and eligibility bylaws are immune from challenge under the Sherman Act is rooted in inapplicable dicta from a legally distinct Supreme Court opinion. Second, even if the bifurcated framework of analysis does apply in this case, such application results in a finding that antitrust claims concerning the NCAA s amateurism and eligibility bylaws should be adjudicated on the merits, rather than disposed of as a matter of law. Finally, although not entirely relevant at the present stage of litigation, the facts of the instant matter reveal that, should this case proceed to adjudication on the merits, the anticompetitive and 15

22 monopsonistic NCAA regulations denying student-athletes rightful compensation run afoul of the Sherman Act. For these reasons, the Court of Appeals correctly reversed the District Court s erroneous grant of summary judgment to the NCAA. A. The NCAA s erroneous assertion that its amateurism and eligibility bylaws are immune from challenge under the Sherman Act is based upon inapplicable dicta from a factually and legally distinguishable Supreme Court opinion. The Court of Appeals correctly rejected the NCAA s reliance upon non-mandatory dicta when it overturned the District Court s grant of summary judgment on Lauer and Roker s Sherman Act antitrust claims. Lauer and Roker brought the instant suit pursuant to Section 1 of the Sherman Act, which states, in relevant part, that [e]very contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce...is declared to be illegal. 15 U.S.C. 1 (2012). In order to make a showing of anticompetitive conduct under Section 1 of the Sherman Act, the plaintiff must establish (1) that there was a contract, combination, or conspiracy; (2) that the agreement unreasonably restrained trade under either a per se rule of illegality or a rule of reasoned analysis; and (3) that the restraint affected interstate commerce. Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1062 (9th Cir. 2001). Courts determine whether conduct has an anticompetitive effect via one of three frameworks of analysis. See William C. Holmes & Melissa H. Mangiaracina, Antitrust Law Handbook 2:8 (2013). Per se analysis is applied where practices, analyzed on their face, can be seen as patently and inherently anticompetitive and, therefore, illegal. Id. Rule of reason analysis, on the other hand, is a far more flexible and nuanced manner of assessing anticompetitive conduct based upon a balancing of factors and is employed to assess conduct that is not necessarily facially anticompetitive. Id. Finally, quick look analysis exists in the middle-ground, requiring increased factual scrutiny of purportedly anticompetitive conduct, but not to the level 16

23 required in rule of reason analysis. Id. Regardless of the mode of analysis employed, courts hearing allegations of Sherman Act violations must consider the challenged conduct s impact on competitive conditions in order to form a judgment about the competitive significance of the [conduct] Nat l Soc y of Prof l Eng rs v. United States, 453 U.S. 679, 690 (1978). The Court of Appeals correctly rejected the NCAA s reliance upon non-mandatory dicta in overturning the District Court s grant of summary judgment to the NCAA. Relying upon a flawed reading and application of the Supreme Court s decision in NCAA v. Bd. of Regents, 468 U.S. 85 (1984), the NCAA argues that its amateurism and eligibility bylaws are wholly immune from all judicial scrutiny under the Sherman Act, and that it therefore possess carte blanche to engage in patently anticompetitive practices without fear of challenge. This argument is flawed for several reasons. First, Regents never contemplates, much less endorses, eschewing standard antitrust scrutiny in the context of NCAA amateurism and eligibility bylaws. In fact, the opinion never analyzes amateurism and eligibility bylaws in any meaningful way. Instead, the case addresses the packaging and sale of college football broadcasting rights. Regents, 468 U.S. at 92. Prior to the beginning of the 1982 college football season, the NCAA established a series of ground rules with two carrying television networks specifying, inter alia, broadcast schedules and compensation guidelines through the 1985 season. Id. at 93. The NCAA s broadcasting rules, in effect, established a fixed pricing schedule that would govern all payments between the two carrying networks and the colleges whose games were broadcast by the networks. Id. The rules further barred all NCAA members from making any broadcast arrangement that did not accord with the rules the NCAA had negotiated. Id. When a collection of top-flight college football programs attempted to sell broadcast rights to their games to other networks, the NCAA 17

24 threatened to take disciplinary action against members who deviated from the rules it had established. Id. at 94. The colleges who had attempted in vain to sell their own broadcast rights subsequently brought suit against the NCAA for violating Section 1 of the Sherman Act by engaging in horizontal price fixing, or, illegally restraining both the price and output of college football. Id. at 99. The Supreme Court agreed with the colleges challenging the NCAA, finding that, under the rule of reason, the NCAA s market constraints were a paradigmatic example of the types of restraints on trade that the Sherman Act attempted to eliminate. Id. at 107, 120. Nowhere in the opinion, however, does the Supreme Court create any meaningful law purporting to insulate any NCAA bylaw from scrutiny under the Sherman Act. The NCAA s decision to rely upon Regents in the instant case is equal parts puzzling and unavailing. First, as noted above, the NCAA s actions were declared patently anticompetitive in decisions from the District, Appellate, and Supreme Court levels. Regents, 468 U.S. at 96, 120. Second, the NCAA apparently relies upon dicta from the case to support its assertion that amateurism and eligibility bylaws are, by definition, not subject to scrutiny under the Sherman Act. In particular, the NCAA cites Justice Stevens observations that the NCAA should be afforded ample latitude to maintain the revered tradition of amateurism, and, to a lesser extent, Justice Stevens fleeting remark that athletes must not be paid to suggest that the NCAA should receive a reprieve from compliance with the Sherman Act in the context of those rules concerning amateurism and eligibility, while more commercial regulations should be subjected to standard Sherman Act analysis. Id. at 102, 120. This erroneous conclusion that a dichotomous structure for analyzing NCAA bylaws exist is inappropriate given that Justice Stevens pronouncements on the issue were made in the form of dicta and are devoid of any mandatory authority. Several leading sports law scholars have criticized such a reading of 18

25 Regents, especially when it is employed in the context of challenges by student-athletes to the NCAA s eligibility bylaws. For example, Daniel E. Lazaroff, Director of the Loyola Sports Law Institute and Leonard Cohen Chair in Law and Economics at Loyola Law School of Los Angeles, sharply criticizes this interpretation of Regents, stating that some read Regents as creating [t]he foundation for a dichotomous antitrust approach to the NCAA s conduct...despite the fact that economic restraints on student-athletes were not even before the Court. Daniel E. Lazaroff, The NCAA in its Second Century: Defender of Amateurism or Antitrust Recidivist, 86 Or. L. Rev. 329, 340 (2007). Finally, nuanced analysis of the Regents decision reveals that, far from advocating for amateurism and eligibility bylaws to be excused from Sherman analysis as a matter of law, the Supreme Court endorsed a context- and fact-specific approach to assessing the conduct of the NCAA. Rejecting a formalistic approach to analyzing antitrust claims against the NCAA that was overly reliant upon a strict level of Sherman analysis, the Court eschewed per se and rule of reason analysis and instead elected to focus on the key inquiry of whether or not the challenged restraint enhances competition. Regents, 468 U.S. at 104. Thus, the assertion by the NCAA that Regents calls for anything less than full analysis of an antitrust claim against the NCAA misreads the opinion. Indeed, the Supreme Court s factintensive inquiry necessarily forecloses dispensing with antitrust claims as matters of law. In sum, Regents provides no support for the NCAA s argument that it should receive carte blanche to engage in anticompetitive conduct concerning amateurism and eligibility and points, instead, to the conclusion that such restraints on trade should be adjudicated on their merits, not decided as matters of law. 19

26 B. Even if Regents is applicable, modern decisions indicate that the NCAA s amateurism and eligibility bylaws are inappropriate for disposition as matters of law. Even if the flawed interpretation of Regents suggesting a dichotomous framework of analysis subjecting amateurism and eligibility bylaws to weakened scrutiny is to be applied, the modern application of such a framework adopted by several recent judicial decisions suggests that challenges to amateurism and eligibility bylaws should not be addressed as matters of law, and should instead proceed to full factual analysis. Although Justice Stevens writing in Regents concerning the ample latitude that should be afforded to amateurism and eligibility bylaws is dicta, numerous courts in the wake of Regents applied this pronouncement as law, resulting in a line of cases wherein antitrust challenges to the NCAA s amateurism and eligibility bylaws were dismissed as matters of law at the pleading stage. See, e.g., Smith v. NCAA, 139 F.3d 180, 186 (3d Cir. 1998), vacated on other grounds, 525 U.S. 459 (1999) (applying the Regents dichotomy and holding that because the NCAA s rules concerning transferring between member institutions pertained to amateurism and eligibility, they are not subject to antitrust scrutiny); Gaines v. NCAA, 746 F.Supp. 738, 744 (M.D. Tenn. 1990) (applying the Regents dichotomy and dismissing a former student-athlete s antitrust challenge to the NCAA s rules concerning participation in professional sports league drafts because such rules implicate amateurism and eligibility and should not be considered under federal antitrust law). However, this antiquated, outmoded, and erroneous approach to adjudicating antitrust suits concerning the NCAA s amateurism and eligibility is rapidly giving way to a more modern rule that better effectuates the principles of the Sherman Act. More recent decisions, including one opinion from only approximately three months ago, have found that current and former studentathletes can state valid antitrust claims in challenging the NCAA s amateurism and eligibility 20

27 bylaws. For example, in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. C CW, 2013 WL , at *1 (N.D. Cal. Oct. 25, 2013), approximately 25 current and former NCAA athletes brought suit against the NCAA, EA, and the Collegiate Licensing Company, alleging that the defendants conspired to restrain competition in the market for the commercial use of [the plaintiffs ] names, images, and likenesses in a series of video games. The NCAA subsequently moved to dismiss the claim under Federal Rule of Civil Procedure 12(b)(6), employing Regents to argue that the plaintiffs challenges to the NCAA s rules concerning student-athlete compensation are barred because compensation is an element of amateurism and eligibility. Id. at *4. The court rejected the NCAA s motion, holding that the plaintiffs had stated a valid Sherman Act claim. Id. at *10. The court further rejected the applicability of Regents, stating that the case did not address the impact of the NCAA s horizontal restraints on student-athletes. Indeed, none of the parties or amici curiae who participated in [Regents] represented the interests of student-athletes. Id. at *6. Thus, the court declined to dismiss the plaintiffs antitrust claim as a matter of law and instead prudently chose to allow the litigation to proceed for adjudication on the merits. Id. at *10. Other recent cases have similarly established the validity of antitrust claims concerning the NCAA s amateurism and eligibility bylaws, and have rejected the NCAA s oft-employed litigation strategy of attempting to have these challenges dismissed as a matter of law. See, e.g., In re NCAA I-A Walk-On Football Players Litigation, 398 F.Supp.2d 1144, 1149 (W.D. Wash. 2005) (rejecting the applicability of Regents and ruling against the NCAA s motion to dismiss a challenge to its eligibility bylaws as a matter of law). Thus, modern decisions reflect that, even if the Regents dichotomy continues to be applied, challenges to the NCAA s amateurism and eligibility bylaws should not, as a matter of law, be dismissed and should instead be treated as 21

28 valid Sherman Act claims worthy of the sharpening of the issues that coincides with consideration of the claims on the merits in an adversarial environment. Thus, Lauer and Roker s claims in the instant matter should proceed. C. The NCAA s anticompetitive conduct in denying Lauer and Roker rightful compensation for the use of their biographical information and likeness in NCAA Football violates the Sherman Act. Although the question presented by the Supreme Court in this matter is largely procedural and full consideration of the merits of the case is not appropriate at this stage of litigation, even a brief analysis of the claims at bar reveal that the NCAA has engaged in anticompetitive conduct that violates the Sherman Act. In denying Lauer and Roker their rightful compensation based on the appearance of their biographical information and likeness in NCAA Football, as well as engaging in a horizontal price fixing scheme and group boycott, the Defendants violated the Sherman Act. Although compensation for student-athlete appearances in video games is a relatively new and unsettled area of the law, counsel from several other related decisions reveals that the type of denial of compensation in which the NCAA is currently engaged is inconsistent with antitrust jurisprudence. For example, the Supreme Court has historically been hostile to trade associations overstepping boundaries and asserting marketrestraining control on entire industries. For example, the Supreme Court s holding in Anderson v. Shipowners Ass n of Pac. Coast, 272 U.S. 359, (1926), established that combinations of competitors to govern employment terms and conditions for an entire industry ran afoul of the Sherman Act. This holding, when applied to the facts at bar, holds that associations such as the NCAA should be barred from imposing regulations that work to prevent its membership from compensating student-athletes. Such restrictions artificially control the market for prized high school athletes, resulting in an anticompetitive restriction that runs afoul of the Sherman Act. 22

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