The decision forces video game maker, EA, along with NCAA, to now prove they did not use the likenesses of actual college athletes in NCAA-branded video games, said lead attorney Rob Carey with Hagens Berman. “EA tried to hide under the First Amendment but the court recognized similarities between real athletes and the game were just too great to be ignored.”

EA did not at this juncture dispute claims made by plaintiff Samuel Keller, former quarterback for Arizona State University. Instead, the company unsuccessfully sought a defense under the First Amendment. Judge Wilken rejected the gaming company’s argument along with NCAA’s, citing that allegations made by Mr. Keller have merit.

EA reported revenue of $1.24 billion during the third quarter ending Dec. 31, 2009 this week. The gaming company also confirmed its decision to discontinue the development of NCAA Basketball video games, telling Game Informer magazine, “we're currently reviewing the future of our NCAA Basketball business."