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Unexpected Touchdown in Electronic Art’s Legal Conundrum – the Tim Tebow Play Call

June 5th, 2013 at 9:05 AM
By Daniel Werly

Written by John Leppler:

'IMG_1082' photo (c) 2008, respiritu - license: http://creativecommons.org/licenses/by-sa/2.0/

On May 23, 2013, it was discovered that Electronic Arts Sports (EA) used Tim Tebow’s name in a play call in its NCAA Football 2010 video game, which was released in 2009 prior to Tebow’s senior season at the University of Florida. Using his name was discovered by an SB Nation reader and was verified by the company itself before being released. Pictures may be found at SB Nation’s site for the play calls, but the pictures comprise plays out of a formation called the Shotgun Twin QB Tebow. Within the formation is the handful of plays with the name ‘Tebow’ in it. 

The significance of Tebow’s name could be monumental in the current lawsuits pending against Electronic Arts. Ryan Hart, former Rutgers University Football quarterback sued the company for former collegiate student-athletes’ “likeness” in the video games. Second, Former Nebraska University Quarterback Sam Keller also sued EA, alleging EA also used former college players’ “likeness” in the video game. 

Both Hart and Keller brought causes of action on the legal theory that Electronic Arts and the NCAA have violated former college players’ ‘right of publicity,’ a tort that requires three elements to be met to have a successful claim for successful claim: 

1) There was an unauthorized use of the former college players name, image, or “likeness,”

2) The use was made for the party’s own commercial benefit who used them and

3) The unauthorized use was done without the party’s consent. 

Courts have been divided on interpreting “likeness,” in so far as determining what attributes so related to a person that when a reasonable person sees the attribute, it draws a direct inference to that individual. For instance, courts have determined that nicknames, sounds, and designs similar to a recognizable mark of a certain celebrity are all considered that celebrity’s “likeness,” and are protected under the umbrella that the ‘right of publicity’ tort provides. 

However, there is no inquiry needed with the new development in Tebow’s name. Electronic Arts used Tebow’s name in the game, in a formation where he had thrived in college. College Football enthusiasts, and anyone in the demographic market of who would purchase or play a NCAA Football video game, would all recognize Tim Tebow as a quarterback known to run the football out of the Shotgun Formation. Electronic Arts use is a blatant misappropriation of his name, and given the way EA used his name, it is reasonably recognized as Tebow’s own strategy from his past on field performance as a quarterback for the University of Florida. EA’s unauthorized use of his name, for commercial purposes (given the way they used his name—to draw attention to the ‘Shotgun formation’ set up in a package where the quarterback is set to do a quarterback sneak out of) and used his name without his consent, violated his right of publicity. 

There is little doubt this is a ‘slam dunk’ for the plaintiff in the pending lawsuits (Ryan Hart and Sam Keller.) The United States Court of Appeals for the 3rd Circuit recently reversed and remanded a motion to dismiss brought by Electronic Arts of Hart’s suit against it—on the basis of further inquiry of EA having violated college players’ right of publicity. The question may become whether Tebow will join the lawsuits, or perhaps the class action suit pending by Ed O’Bannon, a former UCLA basketball player against the NCAA, College Licensing Committee, and EA for the same reason as Hart and Keller with an additional legal issue. 

However, Tebow may consider suing on his own. There is little dispute that EA violated his ‘right of publicity.’ EAs one of the most recognized college players, measuring his market value and revenue generated off of using his name may be much easier for him than the other players (Hart and Keller, the class action Tebow may still want to join as there is an additional legal issue in that case unrelated to the ‘right of publicity’ tort..) It will be interesting to see what Tebow does moving forward in the legal saga against Electronic Arts and the NCAA

Tags: Electronic Arts, Law, NCAA, Sports, Sports Law, Tebow

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