The Brandr Group, LLC v. Electronic Arts Inc.

Background

Electronic Arts removed this action from San Mateo Superior Court. The Brandr Group alleged that Electronic Arts was interfering with its contractual relationships with certain colleges and student athletes by soliciting participation in the upcoming EA Sports College Football video game. The Brandr Group said its agreements gave it exclusive authority over certain “Group Licensing Programs” involving the combined use of a school’s intellectual property and the names, images, and likenesses of at least three student athletes from one sport or six student athletes from multiple sports.

The Brandr Group asserted claims for tortious interference with contract, violation of California’s statutory and common-law rights of publicity, violation of California’s Unfair Competition Law, and declaratory relief. It sought a temporary restraining order blocking Electronic Arts from soliciting its unidentified clients, interfering with its contractual rights, or using its clients’ names, images, and likenesses without authorization. The Brandr Group argued that a June 30 date for schools to enter agreements threatened to exclude it from negotiations and could drive it out of business. Electronic Arts opposed the request.

Legal standard

A temporary restraining order is emergency relief that can temporarily block conduct while the court considers a preliminary injunction. The court applied the four familiar requirements for preliminary relief: the plaintiff must show a likelihood of success on the merits, likely irreparable harm without relief, a favorable balance of hardships, and consistency with the public interest. The plaintiff must make a clear showing on each required element.

Discussion

Irreparable harm. The court first held that The Brandr Group had not shown an immediate threat of harm. Electronic Arts submitted declarations explaining that June 30 was a target date allowing game designers time to render school intellectual property, not a deadline after which schools could no longer participate. Schools could still opt in or out after that date. Electronic Arts also had not yet contacted student athletes, and it expected that eligible students might not be identified until 2024. The game itself was not expected to be released until summer 2024.

The court also held that the alleged harm was not shown to be irreparable. It characterized the potential loss of licensing revenue, compensation, or a single opportunity connected to the unreleased game as financial and speculative. The Brandr Group had not adequately explained why any resulting loss could not be calculated and compensated through money damages. The court rejected the argument that tortious interference claims or unauthorized use of student athletes’ names, images, and likenesses automatically establish irreparable harm. It also found insufficient evidence that Electronic Arts’ conduct would destroy The Brandr Group’s broader business or goodwill.

The court distinguished a Ninth Circuit case involving a data-analytics company that showed its entire business depended on access to data and that it lacked a viable alternative. The Brandr Group had not shown that its entire business depended on brokering a deal for this single video game.

Likelihood of success. The court separately found that The Brandr Group had not shown a likelihood of success or serious questions on the merits. The court examined sample agreements with a university and student athletes. Those agreements defined a “Group Licensing Program” as a licensing or sponsorship program using student athletes’ attributes together with university trademarks or logos. The agreements also stated that the student-athlete agreement did not restrict individual name, image, and likeness agreements or group agreements that did not involve the university’s intellectual property.

The court concluded that the agreements appeared focused on co-branded licensing opportunities in which school and student rights were licensed together. The Brandr Group had not explained why Electronic Arts’ separate agreements with schools and individual students would necessarily qualify as such a program. The record instead suggested that the school and student rights were not licensed together or made dependent on each other. The court also noted that The Brandr Group had not established that it actually possessed an exclusive right to the schools’ intellectual property or the students’ names, images, and likenesses. The court stated that the plain language of the agreements could not be overcome by The Brandr Group’s view that group negotiations would create greater value.

Disposition

The court DENIED the application for a temporary restraining order. It also ADVANCED the telephonic case management conference to August 15, 2023, and ordered the parties to submit a joint case management statement by August 8, 2023. The order did not finally decide the underlying claims.