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I'm not sure why Electronic Arts even bothered to appeal this case. It seems fairly obvious that if you use a professional athlete's likeness in a game, retired or not, you have to pay them for it.
It also indicated the retired players were incidental to the product. The court disagreed stating that they were instead central to the commercial purpose, which was to “create a realistic virtual simulation of football games involving current and former NFL teams.” EA appealed, but the United States Supreme Court has declined to hear the case. The Court's choice means that the Ninth District ruling stands and EA’s first amendment argument is now dismantled.
It also indicated the retired players were incidental to the product. The court disagreed stating that they were instead central to the commercial purpose, which was to “create a realistic virtual simulation of football games involving current and former NFL teams.” EA appealed, but the United States Supreme Court has declined to hear the case. The Court's choice means that the Ninth District ruling stands and EA’s first amendment argument is now dismantled.
