EA's First Amendment defense a no-go in NCAA student-athlete likeness antitrust litigation.

In the NCAA student-athlete likeness antitrust litigation, EA Sports argued that its use of player likenesses is protected speech under the First Amendment. The court shot down this argument, basically saying that EA Sports did not change the likenesses enough to qualify as protected speech. Instead, the court said that the likenesses were directly replicated in the game. The players' class action complaint seeks damages and relief for players whose game likeness does not differ more than 10 percent from their real-life attributes (height, weight, etc.).

It is not surprising that the First Amendment argument was unsuccessful. I played the NCAA Football video games throughout my youth, and the game's success hinges on its use of accurate player likenesses. Year-to-year, the actual gameplay does not change much. The reason people keep buying the game is the updated rosters for every major college football team and its ability to create a virtual proxy for real-life football.