Welcome to the Mock Trial Kickoff!
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Are you ready?
Electronic Arts Inc. v. Keller
(A California Supreme Court
Appeal)
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“Video games are entitled to the full
protections of the First Amendment,
because “[l]ike the protected books, plays,
and movies that preceded them, video
games communicate ideas—and even
social messages—through many familiar
literary devices (such as characters,
dialogue, plot, and music) and through
features distinctive to the medium (such as
the player’s interaction with the virtual
world).”
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
“Such rights are not absolute, and states may
recognize the right of publicity to a degree
consistent with the First Amendment. Zacchini v. ScrippsHoward Broad. Co., 433 U.S. 562, 574–75 (1977). In this case, we must
balance the right of publicity of a former college
football player against the asserted First
Amendment right of a video game developer to
use his likeness in its expressive works.”
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
The History
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Electronic Arts, Inc., = (EA)
NCAA = National Collegiate
Athletic Association (“NCAA”)
football or basketball players
“Samuel Keller was the starting quarterback for Arizona
State University in 2005 before he transferred to the
University of Nebraska, where he played during the
2007 season.
Electronic Arts, Inc., (EA) is the producer of the NCAA
Football series of video games, which allow users to
control avatars representing college football players as
those avatars participate in simulated games. In NCAA
Football, Electronic Arts, Inc (EA) seeks to replicate
each school’s entire team as accurately as possible.”
http://a.espncdn.com/photo/2006/0822/ncf
_u_keller_275.jpg
“Electronic Arts game differs from reality in that EA omits the
players’ names on their jerseys and assigns each player a
home town that is different from the actual player’s home
town. However, users of the video game may upload rosters
of names obtained from third parties so that the names do
appear on the jerseys. In such cases, EA allows images from
the game containing athletes’ real names to be posted on its
website by users. Users can further alter reality by entering
“Dynasty” mode, where the user assumes a head coach’s
responsibilities for a college program for up to thirty seasons,
including recruiting players from a randomly generated pool
of high school athletes, or “Campus Legend” mode, where
the user controls a virtual player from high school through
college, making choices relating to practices, academics, and
social life.”
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
“Objecting to this use of his likeness, Keller filed a
putative class-action complaint in the Northern District of
California asserting, as relevant on appeal, that EA violated
his right of publicity under California Civil Code § 3344 and
California common law.2 EA moved to strike the complaint
as a strategic lawsuit against public participation (“SLAPP”)
under California’s anti-SLAPP statute, Cal. Civ. Proc. Code
§ 425.16, and the district court denied the motion.”
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
“2 There are actually nine named plaintiffs, all former National Collegiate
Athletic Association (“NCAA”) football or basketball players:
1.
2.
3.
4.
5.
6.
7.
8.
Keller, Edward O’Bannon, Jr. (UCLA)
Byron Bishop (University of North Carolina)
Michael Anderson (University of Memphis)
Danny Wimprine (University of Memphis)
Ishmael Thrower (Arizona State University)
Craig Newsome (Arizona State University)
Damien Rhodes (Syracuse University)
Samuel Jacobson (University of Minnesota)
EA’s NCAA basketball games are also implicated in this appeal. Because
the issues are the same for each plaintiff, all of the claims are addressed
through our discussion of Keller and NCAA Football.”
Not exacting - Bulleted for emphasis.
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
“Finally, as a qualitative matter, the publicity rights of
college athletes are remarkably restricted. This consideration
is critical because the “right to exploit commercially one’s
celebrity is primarily an economic right.” Gionfriddo v.
Major League Baseball, 114 Cal. Rptr. 2d 307, 318 (Cal. Ct.
App. 2001). NCAA rules prohibit athletes from benefitting
economically from any success on the field. NCAA Bylaw
12.5 specifically prohibits commercial licensing of an NCAA
athlete’s name or picture. NCAA, 2012–13 NCAA Division
I Manual § 12.5.2.1 (2012). Before being allowed to compete
each year, all Division I NCAA athletes must sign a contract
stating that they understand the prohibition on licensing and
affirming that they have not violated any amateurism rules.
In short, even if an athlete wished to license his image to EA,
the athlete could not do so without destroying amateur status.
Thus, an individual college athlete’s right of publicity is extraordinarily
circumscribed and, in practical reality, nonexistent.”
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/31/10-15387.pdf
http://www.usatoday.com/story/sports/ncaaf/2013/08/19/ea-sports-lawsuit-samkeller-supreme-court-ncaa/2675019/
Questions Before This Court
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Questions before this
court:
1.
2.
3.
Did EA violate Keller’s right of publicity under California
Civil Code § 3344 and California common law by using his
likeness as part of the NCAA Football video series?
Was EA’s NCAA Football video series transformative enough to
qualify for First Amendment protection as a matter of law?
Given the nature of NCAA Bylaw 12.5, specifically prohibiting
commercial licensing of an NCAA athlete’s name or picture; if
Keller’s complaint is upheld at the California Supreme Court,
should any putative damages be awarded to Keller and those
listed in the class action law suit; or should the decision of an
injunction be sufficient?
Groups, Assignments,
Submissions and conduct
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The Groups before the California Supreme Court:
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Attorney’s for Electronic Arts Inc.,
Plaintiffs - Appellees
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Attorney’s for Samuel Michael KellerDefendant-Appellant
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California Supreme Court – 7 Needed
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Group Assignments:
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2.
3.
All group members are to read the case before the
first group meeting next Wedensday.
Each time the group meets, they will receive a new
worksheet. Assignments need to be made from
those worksheets and divided up among the group.
Each member is responsible for doing their part.
Each time the group meets, members are expected
to bring their completed assignments with them for
review and discussion.
Group Assignments:
4.
5.
Assignments need to be found, read, interpreted
and ready to be shared and discussed with the
group.
Each group member must participate in the
mock trial either as a participant or support. No
exceptions will be allowed.
What are Worksheets?
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Worksheets are given to each group each time the
group meets.
On the worksheet, there will be many legal questions
and passages pertaining to the case.
These sections must be divided up among group
members for the week.
When the group meets again, these sections are
discussed in detail by those assigned to them.
This is an extremely important facilitation of the
meeting.
Rules of Conduct:
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Attorneys are not to converse with the justices or the
opposing side regarding this case.
Only group members are allowed to attend meetings-no
comingling of groups. Members can be removed.
Bribery of any kind is not acceptable.
You are to conduct yourself in a professional manner at
all times prior to and during the trial.
Claiming someone else's work as your own could get
your expelled from the case and classroom.
Professional dress is expected at the time of the mock
trial.
Professional manners and courtesy towards others is
always expected.
Development of Case Study:
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ATTORNEYS:
Research & Discovery
Questions and
considerations (from
worksheets)
Development of the
argument
Final outline for court
presentation
JUSTICES:
• Research & Discovery on
all issues in the matter.
• Questions and
considerations
• Discussion of all claims
• Written Opinion
regarding each claim
• Written questions to be
asked during trial.
Each individual judge is responsible for the following:
A opinion based on legal
research regarding each
claim made by the
Plaintiff.
A listing of each
reference to accompany
your personal research
All discovery and
research documentation
 (Each individual needs
to write their name on
their own work prior to it
being distributed to
others.)
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ATTORNEYS:
 Each individual attorney is responsible for
the following:
If you participated in the trial: The
introduction used for your opening
statements, all argument information
outlined and rebuttal notes.
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All discovery and research documentation
from every individual. Each individual needs
to write their name on their own work prior
to it being distributed to others. .
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A listing of each reference to accompany
your personal research.
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What’s Expected from you during each group
meeting:
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Attendance (Includes being on time and
staying until the group is finished meeting for
the day.)
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Participation in meaningful group discussion.
Brining your research to each group meeting to
share with members of the group.
Being Prepared for the meeting and not relying
on others to “carry you” though it.
Group Leaders
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Group Leader Criteria:
Each group will have a group leader.
These individuals will be responsible for making sure that the
group stays on task. They will be responsible for the following:
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Attending every meeting
Facilitate the meetings
Keep role of the group
Track assignments of individuals
Keep the group meetings on task and focused
Schedule and hold at least one outside meeting for their
group.
Report on their groups progress after each meeting to the
instructor either via e-mail or in person. Report any issue
that arises and needs instructor attention.
Group Leader Template
Group Leaders can be removed for the
following reasons:
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Failure to attend group meetings.
Failure to keep group on task
Failure to schedule and hold outside meeting with
group.
Failure to report group progress to instructor on a
regular basis.
Failure to support overall group effort, i.e., failure to
do their part!!!
Complaints from team members of poor performance
or lack of performance.
If a group leader is removed, they do not receive
points as a group leader
Oral Argument
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Oral argument
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Presiding Justice – Brief Statement of the case
Appellees – Plaintiffs - For Electronic Arts Inc.,- ORAL
ARGUMENT – approx. 20 minutes in length
Appellant - Defendant For Samuel Michael Keller- ORAL
ARGUMENT - approx. 20 minutes in length
Appellees – Plaintiffs For Electronic Arts Inc- Rebuttal – 5
minutes
Appellant - Defendant Samuel Michael Keller- Rebuttal- 5
minutes
Deliberations by Justices– approx. 10-15 minutes
Opinion given by Justices – 7 minutes
Use of charts:
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Presenting
Your Case:
You may choose to use
any of the following
methods for presenting
and illustrating your case:
 Charts & Graphs
 Photos
 Handouts
Submission to the Justices only
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Charts must be professional
looking in nature.
No tattered paper or hand
drawn charts! They must be
computer generated!
Use charts that are readable
from up to 20 feet away.
They must be able to stand-up
on their own. Use of a
cardboard backing is
preferred!
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Points Involved
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Research Points: 50
This research does include a manifold of cases pertaining to the trial.
Research includes no less than 10 sources of quality cases and articles coming
from the law library, Lexis-Nexis, case law, legal journal reviews, Wall Street
Journal, Washington Post, New York Times, primary sources, etc.
Participation Points: 25
Participation Defined: Includes researching and reading your
assignments, preparation of those assignments, i.e., ready to discuss what you
have found with the group, active discussion of the cases, voicing ideas and
concerns, supporting the group by actively contributing to the development of
the argument and being a team player. Being on time to the meetings. Staying
with the group until the work is complete for that meeting. Showing
professional conduct at all times.
Mock Trial Points: 25
Mock Trial Points Defined: Not everyone can participate in the Mock
Trial’s due to time constrains alone. However, these points define your overall
support of your colleagues during the trial. Being on time to the trial,
participating, assisting with the rebuttal, being supportive of the team, all are
looked upon as part of these points. Not showing up to the mock trial not only
will result in a loss of points, but will have devastating effects on your overall
grade for this project.
Grading
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Evaluation Forms
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Evaluations sheets are given
to each member of the group
following the conclusion of
the mock trail. These forms
are confidential in nature and
scope, and not shared with
anyone. On this form, you
give yourself and your peers
a grade. The third and final
score comes from your
instructor.
Your grade will be a
blended grade based
on the following
three inputs:

Grading:
1. Self score
2. Group score
(Group Members
individual score)
3. Instructor
score
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NOTE: These
scores are not
disclosed to
anyone.
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Name
Joe Student
Ins. Score
79
89
100
95
95
70
70
Total
598
Average
Grade
85.428
57
B
MOCK TRIAL SCHEDULE
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Mock Trial Kick-Off- Wednesday, October 16th
Mock Trial Meeting #1-Wednesday, October 23
Mock Trial Meeting #2 – Wednesday, October 30
Mock Trial Meeting #3 – Friday, November 6th
Mock Trial Meeting #4- Wednesday, November 13th
Dress Rehearsal – November November 20th
Mock Trial Rehearsal/Meeting #5- Groups meet outside
Class rehearsal – December 2nd
MOCK TRIAL– Wednesday, December 4 th @ 11:00– FCC Law Library
 You are required to be at the library no later than 10:40 am.
Professional dress ONLY
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