Madden NFL 15 News Post

Lawsuit by Former NFL Players Against EA Allowed to Advance

03:21 PM - January 7, 2015 by RaychelSnr

It appears EA's other football game will find itself in hot water soon over the exact same issues that NCAA Football was plagued by: the use of likenesses of former players which are a little to close to reality.

In the lawsuit, former NFL players said the Madden NFL game had players with their exact characteristics, but EA had not obtained their permission to use the figures.

"We hold EA's use of the former players' likenesses is not incidental because it is central to EA's main commercial purpose - to create a realistic virtual simulation of football games involving current and former NFL teams," Circuit Judge Raymond Fisher wrote in the opinion.

"Like NCAA Football, Madden NFL replicates players' physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life - playing football for an NFL team," Fisher wrote in his commentary.

On a tangible level, this suit doesn't pose much of a risk to the Madden brand as a whole, as unlike NCAA Football, the Madden brand is both bigger and not tied to the use of likenesses in this manner to succeed. So whatever comes out of this will be a payday for players used in the game, but will not affect business as usual from going on.

We'll be following the case though, as it could reaffirm the time-old tradition of using likenesses without the names as something which is no longer a viable option. This would all but eliminate the use of non-licensed historical teams in sports games.

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Member Comments

# 21 maltliquor23 @ 01/07/15 10:55 PM

Quote:

Originally Posted by kehlis


	Except they are two completely different scenario's.

Apples and Oranges? Perhaps in title only. Look at any madden title that included classic teams. That is where this suit is based. Not in current rosters, but in classic teams that were included in previous games.

EA argued in a preliminary hearing that they should be dismissed from the NCAA suit for the following reason, "even if it was using player likenesses, it was doing so in the same way as an impressionist uses a celebrity's mannerisms to make a joke"

They are now using the same argument for their included in game historical rosters. The judge even included in his summary as stated in the article "Like NCAA Football, Madden NFL replicates players' physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life - playing football for an NFL team," This is also the same district court that ruled in the O'Bannon case. Incidentally the court found "the arguments in the current case 'materially indistinguishable' from the reasons for rejecting the request to dismiss the college case."

EA argues they are using artistic license but provided ratings, uniform numbers, height, weight, skintone that matched real players on real teams.

Per an article with IGN, classic rosters were in madden 04. This included Ferragamo's 79 Rams.
http://www.ign.com/articles/2003/07/19/madden-classics?

Please explain how this is apples and oranges. Cause here is the way i see it.

EA Created a game (NCAA series) and Particular years of madden which included classic teams
EA Created in game avatars
EA assigned those avatars to Corresponding teams
Those Avatars held characteristics similar or matching the players on the corresponding teams.
The Former NFL players on which the avatars were based were not contacted
The Former NFL players on which the avatars were based did not sign contracts
The Former NFL players on which the avatars were based did not consent to their likeness being used.
The Former NFL players on which the avatars were based did not receive compensation for their likeness being used.

The only difference here is college athletes and retired football players.

# 22 kehlis @ 01/07/15 11:03 PM

Quote:

Originally Posted by maltliquor23


	The only difference here is college athletes and retired football players.

And there you go.

If Madden loses retired players and classic teams the only loss is a massive settlement. Not a game which they can continue to make with current players. Game goes on.

NCAA lost the very players which made it's game an actual NCAA game.

Do you really not see the difference?

# 23 loccdogg26 @ 01/07/15 11:12 PM

Didn't Jim Brown sue EA before about the Madden game and lost?

# 24 kehlis @ 01/07/15 11:18 PM

Quote:

Originally Posted by loccdogg26


	Didn't Jim Brown sue EA before about the Madden game and lost?

He did, his lawsuit was thrown out and dismissed in district court before it could go to to trial.

This particular case was already okay-ed by a judge to go to trial and this particular story was about the fact that EA appealed that decision and lost so they are already way past where Brown ever got.

# 25 l8knight1 @ 01/08/15 11:38 AM

Quote:

Originally Posted by Rewmac


	Everything can be elevated to a new level. They can just remove roster sharing as step. I hope nothing like this will come to reality.

This is disconcerting. EA has already limited editing ability in rosters, and I could see roster/player creation limitations or even elimination as possibly coming in the future.

# 26 shopejay @ 01/08/15 11:46 AM

Yet another football game on the way out the door!

# 27 k9nike @ 01/08/15 12:49 PM

Its sad that all the players want is more money. Maybe I would look at it differently if I was one of them, but to have the honor to be in a game that millions play doesn't seem like a bad thing. The players that are put in the game are usually millionaires and I don't feel bad that they can't hold on to their money, I also realize EA is about making money and its crazy there lawyers didn't look at this issue before publication . NCAA game was a great game ruined by greed. Madden will be next and then no more sports games. CRAZY

# 28 BadAssHskr @ 01/08/15 01:01 PM

anything like this always feels like bad news to me. like why do we have to be taking a video game so serious.

high time to test the waters with a generic college football game, and see how well it works and can be manipulated.

# 29 jpollack34 @ 01/08/15 01:24 PM

I don't feel sorry for EA at all. They created this problem in the first place by making these licenses so important, restrictive, and as a barrier to entry. It's a self fulfilling prophecy. It's time to open up these games and forget these expensive and restrictive licenses. Open your games up to editing and modding.

I would love to see the leagues/players try go after individual users. Their most ardent fans and the ones that spend the most money are the ones that would edit and mod these games. They would be committing suicide by going after the users. You can't have your cake and eat it too EA. I would suggest you work with and alongside the community as opposed to taking away their options to edit/mod. They're the only ones that can save you in the end.

# 30 mestevo @ 01/08/15 02:40 PM

Quote:

Originally Posted by jpollack34


	I don't feel sorry for EA at all. They created this problem in the first place by making these licenses so important, restrictive, and as a barrier to entry. It's a self fulfilling prophecy. It's time to open up these games and forget these expensive and restrictive licenses. Open your games up to editing and modding. I would love to see the leagues/players try go after individual users. Their most ardent fans and the ones that spend the most money are the ones that would edit and mod these games. They would be committing suicide by going after the users. You can't have your cake and eat it too EA. I would suggest you work with and alongside the community as opposed to taking away their options to edit/mod. They're the only ones that can save you in the end.

The exclusivity agenda really doesn't apply to this case and open modding doesn't excuse violations of intellectually property and copyright law.

You also can't make a mythical moddable game and say 'they're making the content, not us!' as the creators and publishers of that game could be just as guilty for enabling the violations.

# 31 ODogg @ 01/08/15 04:21 PM

Quote:

Originally Posted by mestevo


	The exclusivity agenda really doesn't apply to this case and open modding doesn't excuse violations of intellectually property and copyright law. You also can't make a mythical moddable game and say 'they're making the content, not us!' as the creators and publishers of that game could be just as guilty for enabling the violations.

Not true, Microsoft was sued in the early days of Microsoft Word for people using their product to plagiarize and courts sides with MS that simply making something open and editable doesn't hold a company liable for user created content.

In other words if they made an open NCAA game with just random rosters and a user here on OS named Bob made up the Ohio state exactly how they are and distributed it then the ncaa nor it's players could sue EA, they'd have to sue Bob.

And if Bob wasn't profiting from his work it'd be a tough lawsuit seeing as how anyone can watch TV and figure out who plays on what team and their generation attributes after publicly known..

# 32 mestevo @ 01/08/15 04:53 PM

Quote:

Originally Posted by Big FN Deal


	I don't agree with this at all considering it's the products EA has exclusive rights to where these likeness issues seem to keep arising. I haven't looked much into this, yet it seems this "target" on EA seems to stem, in one form or another, from EA's exclusive market share in NCAA and NFL video games. I would think if there were more parity among these markets, like there once was, these issues would get resolved differently, for whatever reason. Whether that would be due to there being a more uniform way of handling likeness, it not being as financially beneficial to sue multiple companies with divided market share, there being a more artistic perception/precedent when it's done in various game by various companies or whatever. However the way it stands now, if there is an issue with likeness for those type of games, the exclusives make EA the sole target. Heavy is the head that wears/bought the crown.

Yeah, no. The lawsuit is over past use, and as far as anyone's identified this was well before exclusivity. Shoving the exclusivity agenda into this is just another way to be able to go off about the devil that EA is in the eyes of some and about how the company is responsible for all that's wrong in your world. This has nothing to do with a lack of options to litigate.

Quote:

Originally Posted by ODogg


	Not true, Microsoft was sued in the early days of Microsoft Word for people using their product to plagiarize and courts sides with MS that simply making something open and editable doesn't hold a company liable for user created content. In other words if they made an open NCAA game with just random rosters and a user here on OS named Bob made up the Ohio state exactly how they are and distributed it then the ncaa nor it's players could sue EA, they'd have to sue Bob. And if Bob wasn't profiting from his work it'd be a tough lawsuit seeing as how anyone can watch TV and figure out who plays on what team and their generation attributes after publicly known..

A word processor is a much broader tool than a video game allowing you to create others intellectual property only in that video game that is generating a revenue in part because of those features. A comparable example would be Marvel v City of Heroes. http://www.joystiq.com/2005/12/14/ma...wsuit-settled/

The complaint spawned from the ability to create characters in City of Heroes that closely resembled characters from the Marvel Universe.

Use some common sense here guys, if EA themselves aren't allowed to create players in their own game without licensing, why do you think it's legal for you to? They absolutely could send a C&D to Bob and to EA for any violations. Will/would they? Remains to be seen. Companies don't tend to invest in things that are going to encourage legal challenges because they enjoy making money.

# 33 mestevo @ 01/08/15 05:13 PM

Finally found the actual case and PDF of ruling for anyone interested: http://cdn.ca9.uscourts.gov/datastor...6/12-15737.pdf

I was wrong, the 2001-2009 games are cited as having historical teams and that is the reason for litigation. This obviously was during exclusivity, but still maintain that has much bearing if any on the discussion or the litigation.

# 34 RandyBass @ 01/08/15 05:49 PM

Quote:

Originally Posted by ODogg


	Lawyers will be the end of civilization

Yeah, because lawlessness is so good for civilization.

This may not seem like a big deal, because after all how much did Madden actually profit from these player likenesses, and how much would that amount to individually for each player? Tough to say for sure, but my guess is not much. That being said, there is a reason you can't hack into a thousand different banks and take a measly dollar.

# 35 jfsolo @ 01/08/15 06:32 PM

Quote:

Originally Posted by mestevo


	Finally found the actual case and PDF of ruling for anyone interested: http://cdn.ca9.uscourts.gov/datastor...6/12-15737.pdf I was wrong, the 2001-2009 games are cited as having historical teams and that is the reason for litigation. This obviously was during exclusivity, but still maintain that has much bearing if any on the discussion or the litigation.

I agree with you that the likeness lawsuits are tangential, at best to the exclusivity agreements, more probably, not correlated at all. Conflating all of EA's various financial, legal, and qualitative mishaps with the exclusivity deal has been a tried and true internet practice for many years now.

# 36 kehlis @ 01/08/15 06:59 PM

Why are we talking about EA's exclusive license in this thread?

# 37 SmashMan @ 01/08/15 07:01 PM

Quote:

Originally Posted by kehlis


	Why are we talking about EA's exclusive license in this thread?

Usual axe-grinding, it seems.

# 38 MajorSupreme @ 01/08/15 08:01 PM

So, I am nowhere near to being a lawyer, but where does the NFL and NFLPA fall under this? Or is this EA's problem their own to handle?

Sent from my SM-G900V using Tapatalk

# 39 kehlis @ 01/08/15 08:04 PM

Quote:

Originally Posted by Big FN Deal


	Really? lol At this point I'll just take this with a grain of salt because, agree with me or not, I have articulated why I think EA's exclusives could have merit in this discussion.

Correct me if I'm wrong with this but in this post you bring it up to say that you believe they have a bullet on their back because they are the only game in down due to the license.

Won't get into the debate on whether that bullet is why they are getting sued BUT can't debate this post:

Quote:

Originally Posted by Big FN Deal


	I don't agree with this at all considering it's the products EA has exclusive rights to where these likeness issues seem to keep arising. I haven't looked much into this, yet it seems this "target" on EA seems to stem, in one form or another, from EA's exclusive market share in NCAA and NFL video games. I would think if there were more parity among these markets, like there once was, these issues would get resolved differently, for whatever reason. Whether that would be due to there being a more uniform way of handling likeness, it not being as financially beneficial to sue multiple companies with divided market share, there being a more artistic perception/precedent when it's done in various game by various companies or whatever. However the way it stands now, if there is an issue with likeness for those type of games, the exclusives make EA the sole target. Heavy is the head that wears/bought the crown.

What then does this post have anything to do with this lawsuit which is what this thread is about?

Quote:

Originally Posted by Big FN Deal


	I get that people see things different ways but what I don't get is how others try to label it as something other than different conclusions drawn from the same facts. EA's exclusive video game licenses are a fact, they're not something people are making up and as such can be interpreted as factors in plausibly any reasonable discussion around those games.

Whether or not I agree with the post I don't see any issue bringing it up in the manner you did initially but that doesn't mean it's part of the discussion.

This second post is solely about the license and has no bearing in the conversation about this lawsuit in this manner.

Again, you want to blame it for why we have this lawsuit now? Fine.

But this isn't a place to go on tangents about it. This thread is about this particular lawsuit.

And no, I am not singling you out. I never quoted anyone or called anyone out The timing of my post was strictly coincidental that it came after yours because that's when I got home from work. Just responding to your post.

# 40 kehlis @ 01/08/15 08:06 PM

Quote:

Originally Posted by MajorSupreme


	So, I am nowhere near to being a lawyer, but where does the NFL and NFLPA fall under this? Or is this EA's problem their own to handle? Sent from my SM-G900V using Tapatalk

Nowhere. The lawsuit is about players being used in the game once they were no longer in the NFLPA and therefore aren't being compensated for being in the game.

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