If you open a case under eBay's money back guarantee they will almost certainly support you.
Even if the photo shows an undamaged disc, it could still have been damaged before the item was dispatched. eBay generally takes the buyer's word for the condition or arrival.
On the subject of photos, sellers can't normally change the photo after the listing has ended (because eBay hosts the picture, so the seller can't simply change it as was once possible.