• by Wendy Davis  @wendyndavis, May 12, 2009

A former college football star has sued Electronic Arts and the NCAA for allegedly misappropriating his likeness in video games that simulate college matches.

The lawsuit, brought by former University of Nebraska starting quarterback Samuel Michael Keller, alleges that Electronic Arts' simulations include "virtual" representations of nearly all real Division I football or basketball players. He is seeking class-action status.

Keller argues that Electronic Arts is profiting commercially from his identity. "Player names and likenesses and publicity rights are extremely valuable, intangible property," he states in the lawsuit, filed last week in federal court in the northern district of California.

Keller also alleges that the NCAA -- which prohibits the use of student names and likenesses -- wrongly approved Electronic Arts' use of students' identities in games in order to collect royalties.

In his complaint, Keller asserts that nearly all Division I athletes have counterparts in the Electronic Arts games. Those counterparts resemble the real players down to "height, weight, build and home state" as well as skin tone and hair color, according to the complaint. "In addition to the physical features, Electronic Arts even matches players' idiosyncratic equipment preferences such as wristbands, headbands, facemasks and visors," the complaint states.

While the games don't include the Division I athletes' real names, Electronic Arts allows players to upload rosters of actual names via sites like Gamerosters.com.

But it's not clear that any of those allegations will result in a courtroom victory for Keller.

Attorney Rick Kurnit, an expert in advertising and media law with Frankfurt Kurnit Klein & Selz, says that the critical question is whether or not the court thinks video games are "entertainment," which is typically protected by the First Amendment, or "commercial" speech, which is covered by the First Amendment, but to a lesser extent.

He added that at least one federal appellate court has already ruled that a celebrity whose likeness was used in a game couldn't proceed with a lawsuit against the manufacturer. In that case, the court ruled that game manufacturer had the First Amendment right to use the celebrity's image.

At least two other courts have addressed a similar issue and dismissed lawsuits against fantasy sports sites. Two years ago, the 8th Circuit Court of Appeals recently rejected Major League Baseball's argument that a fantasy sports site violated the players' right to control the use of their images. In that case, the court ruled that the site need not pay licensing fees to use publicly available statistics about baseball players.

Also, late last month a federal district court judge in Minnesota ruled that CBS Interactive could use information about football players without first getting permission from sports leagues.