Retired NFL players sue NFL Players, Inc. over Madden games


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A suit brought by retired NFL players not only alleges they're due money for Electronic Arts' use of their likenesses and career stats, but also that their own union brokered a below-market deal as a favor to EA, helping it secure exclusive NFL rights for its Madden franchise.

Via Ars Technica and GamePolitics, former Buffalo Bills defensive back Jeff Nixon has written an open letter to John Madden (also a Hall of Famer and former Oakland Raiders coach) which details some documents discovered in this suit. Nixon alleges the plaintiffs have communication between the a union official and an EA developer cc'd to another union official, in which everyone agreed to scramble retired players' likenesses to keep from paying them, beginning with Madden NFL 2002. The players may not be identifiable visually, or by number, but they still have the same height, weight, years of service and performance characteristics, making them wink-and-nod identifiable.

The reason for the scrambling? Take-Two apparently was going after retired players' image permissions for a game that never got off the ground. Nixon alleges EA and the NFLPA's marketing unit, NFL Players Inc., rushed to lock down a contract that secured the most valuable retired players' rights for below-market payments, and says he has an email (jump) admitting this.

Writes Nixon:

When a substantial competitor to EA [Take-Two] began to emerge for use of retired players, EA and Defendants rushed to enter into a contract locking up the most valuable retired players’ rights in exchange for payments that were admittedly below market. [NFL Players Inc]’s Senior Vice-President, Clay Walker, admitted as much in the following email:

“Take Two [the EA competitor] went after retired players to create an “NFL” style video game after we gave the exclusive to EA. I was able to forge this deal with [the Pro Football Hall of Fame] that provides them with $400K per year (which is significantly below market rate) in exchange for the HOF player rights. EA owes me a huge favor because that threat was enough to persuade Take Two to back off its plans, leaving EA as the only professional football videogame manufacturer out there.”

Ars Technica also pointed out another email dug up by the suit:

An e-mail sent November 1, 2007, is equally plain in its language. Andrew Feffer, executive vice president and chief operating officer of the NFLPA wrote to EA Sports' representative Paul Cairns that "Clay and Joe's negotiation of these discounted terms was a significant contribution to EA as you more than likely would have paid in excess of $1 million for these rights without their involvement and assistance." In other words, you saved a cool million because you had people negotiating who weren't hoping to strike the best deal for the players.

As for the agreement to scramble players' likenesses, Nixon's letter also says this is from LaShun Lawson, the VP of multimedia for NFL Players, Inc., to EA producer Jeremy Strauser, cc'd to Doug Allen, then president of NFL Players Inc.

“For all retired players that are not listed... their identity must be altered so that it cannot be recognized. Regarding paragraph 2 of the License Agreement between Electronic Arts and Players Inc, a player’s identity is defined as his name, likeness (including without limitation, number), picture, photograph, voice, facsimile signature and/or biographical information. Hence, any and all players not listed... cannot be represented in Madden 2002 with the number that player actually wore, and must be scrambled."

The lawsuit goes to trial next month in San Francisco.

The question is what did the union get out of this? They had to have some kind of motivation for going out of their way to secure the deals for EA. If they were, then EA and the union could both go down in this.

Edit: Turns out they aren't suing EA, but NFL Players, Inc. Can someone change the title to show that?

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