It isn’t just former college football players upset with video-game maker Electronic Arts for using their likenesses in games without getting paid for it: A federal appeals court judge has just given another lawsuit against EA the go-ahead, this one brought by former NFL players who are ticked off that EA used their avatars in the Madden NFL series without proper compensation.

The 9th U.S. Circuit Court of Appeals agreed with a district court that had rejected EA’s attempt to get the lawsuit thrown out, reports the Associated Press.

The court said EA’s argument that the use of players’ likenesses was only incidental, and therefore protected by the First Amendment, wouldn’t fly far. Because out of all the faces a computer program could pick to use on a football player, what are the odds that it would just happen to resemble a real life person who played that position?

“We hold EA’s use of the former players’ likenesses is not incidental because it is central to EA’s main commercial purpose – to create a realistic virtual simulation of football games involving current and former NFL teams,” Circuit Judge Raymond Fisher wrote in the opinion.

Players including former Los Angeles Rams quarterback said the Madden game has players with their exact characteristics and is using those faces without their permission.

EA said in a statement that it’s disappointed by the ruling.

“We believe in the First Amendment right to create expressive works – in any form – that relate to real-life people and events, and will seek further court review to protect it,” the company said.

A similar lawsuit brought against EA by former Arizona State University quarterback Sam Keller resulted in a $40 million settlement last year to resolve allegations that the company had swiped likenesses’ and used them in video games without permission.

The court’s ruling yesterday seems to be in line with that case, as the court again said EA hadn’t made much of an effort to change the players’ likenesses in the Madden NFL games.

“Like NCAA Football, Madden NFL replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team,” Fisher wrote.

NFL players’ lawsuit vs. video-game maker allowed to advance [Associated Press]

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