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That includes hundreds of players who have worn a Scarlet Knights jersey since the 2004 season (New Jersey has a 6-year statute of limitations in such cases).
“Whoever is on that team has a case. It doesn’t matter if you’re the guy running down on kickoffs,” attorney Timothy McIlwain told CLIFFVIEW PILOT.
“If you’re in the game, you should get compensated,” the lawyer added, unwittingly echoing EA’s “It’s in the game” motto.
EA argues in court papers that the NCAA Football games are “expressive works” entitled to full First Amendment protection.
Similar actions have been filed in California, but in those cases the defendants were the National Collegiate Athletic Association, McIlwaine said (California’s statute of limitations is four years).
“They are basically attacking the messenger instead of the person producing the work,” he told CLIFFVIEW PILOT. “It’s like having Wonder Bread stealing your recipe and you end up suing the people who stock the shelves.
EA SPORTS game screen shot from papers filed in U.S. District Court of NJ
“We’re suing the person making the product and making money off the product, not the person downstream.”
McIlwain, of McKenna, McIlwain LLP, says Rutgers was “up and coming” when a video game appeared featuring a quarterback who was as tall and heavy as Hart, held and threw the ball the same — and even wore a red jersey with his number — among other similarities.
The player is 6-foot-2 and 197 pounds, same as Hart, wears the same left wrist band and helmet visor as him, and is from Hart’s home state: Florida. What’s more, once fans download player rosters through an EA application, his name appears on the back of the jersey.
That, Hart insists, is exploitation. If he owned and used that same likeness, he contends, he would have collected a huge chunk of the $4 billion he claims EA raked in by using his image.
EA Sports had the case moved from state to federal court. A district court judge then ordered McIlwaine and his partners to refile their case with more evidence of their claims. The additional proofs include Rutgers game footage the lawyers claim was used to make the video game. The video includes several other Scarlet Knights they say were also included.
Now that the material has been filed, U.S. District Court Judge Freda L. Wolfson has allowed the case to proceed. However, she dismissed Hart’s claim that EA violated his “right of publicity.”
Still, the judge conceded, Hart could have a case.
New Jersey’s right of publicity “signifies the right of an individual, especially a public figure or celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit,” Wolfson wrote in her 21-page opinion.
At the same time, the judge rejected Hart’s claim of “unjust enrichment,” as well as his charge that EA, the NCAA and the Collegiate Licensing Company (the NCAA‘s licensing arm) conspired to exploit him, and that he was a victim of consumer fraud.
It wasn’t all one-sided, however. Wolfson said EA’s First Amendment defense didn‘t hold water, and predicted it wouldn’t if Hart succeeds in getting an amended complaint to trial.
Other athletes have won similar cases, including a group of retired NFL stars who collected a $26 million settlement after suing the players union for letting EA use their identities in “Madden NFL” without giving them a nickel.
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