The Role Of California’s Anti-SLAPP Statute In The Federal NCAA Student-Athlete Publicity Litigation.

NCAA 2On July 31, 2013, the 9th U.S. Circuit Court of Appeals upheld the lower court’s ruling that game developer Electronic Arts’ use of athletes’ likenesses in its NCAA Football and NCAA Basketball franchises (without the athletes’ permission) was not protected as free expression under the U.S. Constitution.  The lawsuit therefore proceeds.  The implications of the 9th Circuit’s decision to the athlete plaintiffs, to the defense, and to the NCAA are significant and well-publicized.  Also of interest, however, is the procedural mechanism by which Electronic Arts initially brought the Motion.

Pleadings motions in similar cases have been couched as Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6).  In this instance, Electronic Arts proceeded under the State of California’s anti-SLAPP statute.

What Is The Anti-SLAPP Statute?

Under California law, a SLAPP lawsuit (“Strategic Lawsuit Against Public Participation”) is a lawsuit brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and of petition for the redress of grievances.  California’s anti-SLAPP statute (Cal. Civ. Proc. §425.16) is designed to discourage such suits—suits that masquerade as ordinary lawsuits, but are actually brought to deter the exercise of political or legal rights, or to punish individuals for doing so.  The 9th Circuit has determined that the anti-SLAPP statute is available and can be asserted in federal court, notwithstanding that it is a product of California state jurisprudence.  Thomas v. Fry’s Elecs., Inc. 400 F.3d 1206 (9th Cir. 2005).

Electronic Arts in essence maintained that the NCAA litigation was legal action that threatened to chill EA’s constitutional rights to free expression through its video games, without legitimate countervailing merit to the claims.

The 9th Circuit’s Anti-SLAPP Analysis In The NCAA Litigation.

Courts evaluate an anti-SLAPP motion in two steps.  First, the defendant must make a prima facie showing that the plaintiff’s suit arises from an act by the defendant in furtherance of the defendant’s right to free speech under the U.S. or California Constitution.  Second, the Court must evaluate whether the plaintiff has established a “reasonable probability” that plaintiff will prevail on his or her claim.

Applying this analysis, the Ninth Circuit found for the plaintiffs.  As to the first prong, there was no reasonable dispute that Electronic Arts’ video games qualified for First Amendment protection, and that plaintiffs’ complaint was directed to the content of those games.  Upon the second prong, however, the Court determined that plaintiffs had established a reasonable probability of success on their claims.  The wholesale incorporation of the plaintiff athletes’ likenesses into the videogames, the Court ruled, went beyond Constitutionally-protected free speech and violated the athletes’ rights of publicity (i.e. the right to control the use and exploitation of their own personas).  The Motion was therefore denied.