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Brown, back in his playing days.
IT'S IN THE GAME

EA is paying up for putting the unauthorized likeness of football legend Jim Brown in the Madden NFL video games

By Mike Murphy

Jim Brown, one of the all-time greatest players in American football, today settled with video games maker Electronic Arts (EA) to the tune of $600,000, after he alleged that the company used his likeness in its Madden NFL games series without his consent.

In the Madden franchise, players are able to select historic and all-star teams, as well as contemporary football teams. This included a version of the 1965 Cleveland Browns, which included running back and Pro Football Hall of Fame member Jim Brown, who is now 80 years old.

Brown said that he refused to release his likeness for EA to use in this team, but according to a statement released by his legal team, “EA nonetheless created an avatar in the game that mimicked Brown’s height, weight, skin color, experience, team, position and ability level.” (Brown’s character in the game wore number 37, instead of his regular 32, and didn’t have his name, according to The New York Times.)

While it’s not uncommon for videogame franchises to create players, teams and even stadiums similar to real-life versions when they don’t have the rights—the Pro Evolution Soccer series has done this for years—there is some precedent to Brown’s claim. A former college football player, Sam Keller, led a lawsuit against EA that college players whose likenesses were used in its American football videogame series should be paid. EA settled the lawsuit with Keller and the other plaintiffs in 2013 for $20 million.

In the case of the college players, EA had been able to use players’ names and likenesses, rather than approximations of players, as it did with Brown. A Los Angeles court denied EA’s motion to dismiss Brown’s case last year. EA had claimed that it was the company’s First Amendment right to use his likeness, claiming it was “incidental” to the game. But the judge said that “Brown is iconic and unique,” adding that “his likeness is not merely incidental to the game,” according to Brown’s lawyers.

EA offered to settle with Brown soon after it filed briefs to appeal the court’s denial, according to Brown’s lawyers. The company wasn’t immediately available to comment on why it chose to settle now. Brown also likely made more from the settlement than most players who actually agree to appear in the Madden series, given that players selected for the cover of the game reportedly only make between $100,000-$200,000 to appear on the cover.

Correction: An earlier version of this post compared Brown’s case to a case involving former college basketball player, Ed O’Bannon and EA, instead of Sam Keller, a former college football player.