The Man, the Myth, the Legend, John Madden.

There is a class action lawsuit, filed on July 29th, 2010 by one Michael E. Davis (aka Tony Davis) on behalf of all retired NFL players that EA is allegedly using their likenesses without permission. At first I didn’t care about this because it’s football and I personally would rather eat glass than watch that sport. But as I read the article, I found myself moderately interested in the situation.

Davis’ lawsuit states that EA has used these likenesses on their “historic teams” but that this use is unauthorized. As any of us that play EA’s sports games (be they Madden or any other licensed title), we know that they include stats on the players and things like experience, position, etc. As consumers and sports fans, we not only appreciate this information, we pretty much require it. While the lawsuit acknowledges that EA pays the NFL Players Union each year for the rights to current players and teams, they have no such agreement regarding retired players. Instead, the game uses placeholders of a sort. Their vital stats, bio information, and positions match real players, but their names and numbers are changed. On this basis, I think Davis might actually have some grounds for complaint, since he played back in 1979, before licensing one’s likeness for a video game was even a dream in someone’s fevered imagination.  As such, it’s quite likely that these older players didn’t have any weird clauses in their contracts that would allow for this sort of thing, unless they somehow gave up rights for their likeness to their team and the team somehow gave them up to EA.  Further, the lawsuit claims that the Players Association specifically forbade EA from using retired players’ likenesses, although the way this is worded in the lawsuit it’s clear that they don’t actually know if that discussion took place.

If the games still looked like this, we wouldn't have a problem. Curse you, progress!

The part of this that bothers me is that the suit claims that the ability to modify rosters, including numbers and names, allows players to create historically accurate teams and that this is a violation of their rights.  While I can understand his complaint here, I’m not sure I can endorse it.  The removal of this tool would take a great deal of customization from the game, and that sort of thing is part of what players buy these games for.  Sure, you could modify it to make the roster realistic.  You could also modify it with your friends’ names if you were so inclined.  I’m not sure EA should be held responsible for what an end-user does with their product (I guess I’d have to read an End User License Agreement on this score, but I’m sure it protects EA more than the consumer).  Unfortunately, this is a trend that has been in our culture for some time now.  That’s why a hair drier has a tag on it warning you not to play with it in the tub.  Any reasonable person won’t do that, but apparently some idiot did and either they survived and sued or their family did.

I can't tell you how fun this looks. No really, I can't. I've haven't played a football game since Joe Montana for Genesis.

It will be interesting to see what comes of this.  In the end, we may lose the entire “historic team” aspect of games unless a broad contract can be drawn up with the players unions.  EA isn’t going to go through these old teams and ask for permission from each player individually.  Until and unless we see the contracts the players had with their teams, what the league’s rights are (many of the pro leagues control almost every aspect of their sport anyway), and figure out what the players association actually said to EA, everything is speculation.  I personally don’t want to see the historic teams disappear, nor do I want to see it left up to the user to create these teams from scratch (since they’d also have to figure out game performance stats as well as physical traits).  I may hate football, but this sort of thing could affect every sports game EA produces.