Former athletes win lawsuit vs. Electronic Arts; what does it mean for O’Bannon?

The Ed O’Bannon lawsuit is still waiting on a possible class certification, so a ruling on whether current and/or former athletes will eventually be entitled to compensation for the use of their name, image and likeness remains a ways off.

But a ruling in a separate case involving former athletes could hint at what’s ahead for O’Bannon. Reuters reports that the 9th U.S. Circuit Court of Appeals ruled against Electronic Arts in a lawsuit over the use of the likenesses of former college players, including former Arizona State and Nebraska quarterback Sam Keller (pictured), in its NCAA Football video game franchise. The decision, as made by a 2-1 vote, claims EA did not deserve protection for free expression under the First Amendment and paves the way for athletes to sue the company.

“Given that NCAA football realistically portrays college football players in the context of college football games, the district court was correct in concluding that EA cannot prevail,” wrote Judge Jay S. Bybee.

EA, the NCAA and Collegiate Licensing Company are co-defendants in the O’Bannon suit, and plaintiffs claim the images, likenesses and/or names of athletes are used without proper compensation. Both EA and the NCAA have recently sought dismissal from the case. The NCAA also, in a clear CYA move, ended its licensing agreement with EA Sports for the NCAA Football franchise. EA will continue to make the video game, just without the NCAA name on the front.

But the Keller case could indicate a settlement is coming sooner or later -- at least from EA. Michael McCann of Sports Illustrated explains:

EA losing Keller case in 9th Cir. key: this is the circuit where O’Bannon is being litigated.. (1/2, h/t @slmandel ). http://t.co/XdbTqfpD9a

— Michael McCann (@McCannSportsLaw) July 31, 2013

Makes EA much more likely to offer O’Bannon great settlement terms. Very possible EA & O’Bannon settle leaving NCAA & CLC as defendants 2/2.

— Michael McCann (@McCannSportsLaw) July 31, 2013

Whether the NCAA and CLC would follow suit remains to be seen, but McCann’s tweets, and the fact that the NCAA is fighting over amateurism and bylaws, indicate it’s not likely.