madden“It’s fourth and long for the NFL and the clock is running out,” Paul A. Lauricella, a lawyer at the Beasley Firm, told the Legal Intelligencer.

Yesterday, Lauricella (pictured, below) was hailing a 60-page ruling from a unanimous three-judge panel of the Third Circuit that sided with the estate of sports announcer John Facenda, whose voice was known as the “Voice of God.” The court ruled that NFL Films violated Pennsylvania’s “right of publicity” statute by using Facenda’s voice in a promotional film for a John Madden video game.

Here’s past LB coverage of the case, and here’s the ruling, authored by Judge Thomas L. Ambro.

The panel, writes the Legal Intelligencer, rejected NFL Films’s argument that the “standard release” contract Facenda signed was a “complete defense,” noting that while the release gave the NFL the right to use Facenda’s voice in future film projects, it also explicitly prohibited any use that would “constitute an endorsement” of any product.

lauricella“Facenda consented to participation in films documenting NFL games, not an advertisement for a football video game,” wrote Ambro.

Though the panel also partially overturned Facenda’s lower-court victory, finding that U.S. Magistrate Judge Jacob P. Hart erred when he ruled that NFL Films had also violated the federal Lanham Act. On that claim, the panel concluded that a jury must decide the factual question of whether viewers of the Madden video game promotional film would likely be confused about whether Facenda was “endorsing” the product.

Now the only issue left to be decided on that claim is how much Facenda’s estate should be awarded in damages. That question will require discovery and a jury trial.

The NFL was repped by Debevoise lawyer Bruce P. Keller, who argued that the 22-minute film, titled “The Making of Madden,” was a documentary and was therefore a work of artistic expression entitled to First Amendment protection.