Gamers launch class action lawsuit against EA for its exclusive license on Madden & NCAA games, allege the license led to overcharging

Electronic Arts is being sued for its exclusive license on Madden, NCAA & Arena Football League games from the past several years (presumably starting with Madden ’06 & NCAA ’06). 

If you purchased certain Electronic Arts brand football video games between January 1, 2005 to the present you may be eligible to join the lawsuit!

Thanks to Peyton Hillis & online voters, we will actually get to see a Browns player grace the Madden cover in 2012. Amazing. I was starting to think the only way that would happen is if EA Sports was so desperate for new ideas it started using kickers (Phil Dawson) or longsnappers (Ryan Pontbriand) as the face of its NFL game.

EA will probably defeat the claim against it b/c antitrust cases often force the plaintiff to put on quite an impressive amount of evidence proving the game developer truly closed competition in the market.  This civil suit standard is technically called a preponderance of the evidence (51%), which sounds relatively easy but is usually not the case in the land of antitrust litigation (this regards competition & fairness in the marketplace). 

While most gamers obviously wish other vendors like 2K Sports & Midway could make NFL games to compete with EA, it’s not like EA runs the entire videogame universe & is going Tony Soprano, telling all other game developers they’d better not think about making a football game or there’s going to be trouble.  In fact, those Blitz: The League pro football games came out, & no one is stopping another game developer from following in Midway’s footsteps and making its own unlicensed game using retired NFL players or players not part of the NFLPA (NFL Players Association). 

Midway featured former all-pro linebackers Lawrence Taylor & Bill Romanowski’s likenesses/voices as “Quintin Sands” & “Bruno Battaglia” in its Blitz games with fictional teams to overcome EA Sports’ exclusive license with the NFL.  I’m sure few people think those types of games are anywhere near as good to play as the Madden games, & I’d agree with that.  Still, those games got released & the first Blitz game obviously did some business or else Midway would’ve have bothered to make a sequel.  This may make proving competition was closed a tough sell, but more power to ’em! 

The great thing about this lawsuit is that it may make EA & the NFL think twice about pursuing another exclusivity license when the current one expires in 2012 (assuming it’s not renewed beforehand or extended further by a season-long NFL lockout in real life).  Lawsuits are bad press, & paying legal fees to defend yourself gets old fast.  Plus, most gamers hate this exclusive arrangement, so it’s a black eye for EA & the NFL.

Imagine if the NFL just lets the deal with EA run out, how great would that be?  This would finally mean diversity in the marketplace again, taking us back to the glory days of 2004!  Who remembers the joy of having your choice of:
1) arguably one of the best editions of Madden ever – Madden 2005, &
2) NFL 2K5.

Madden ’05 debuted the hit stick, & still let athletic QBs run & throw the ball accurately 70 yards down the field.  This wasn’t an extremely realistic passing attack, but was a blast to play.  That “big play” offensive model came off the heels of the Michael Vick-friendly Madden ’04 title.  Some Madden enthusiasts, including myself, still regard Madden ’04 as the most fun copy of Madden ever.

On the flip side in 2004 you had NFL 2k5, which had the fantastically low $19.99 MSRP & featured a relatively authentic ESPN broadcast presentation for the time.  Some people even thought this was a better game than the Madden edition that year.  I wouldn’t go that far, but who cares?  The point is Madden had some legit competition back then, & all was right with the world.

What does this mean for 2012 & beyond?  Video games are logically better when developers know another game has the chance to beat them in a competitive genre if each developer doesn’t bring its A game. 

So do we really need a class action lawsuit to get a better football video game?  It’s pretty clear that having multiple NFL videogames released each year would be the real victory for gamers, and we don’t necessarily need a judgment & court order to do that if the NFL takes action. 

All the NFL would have to do is decide exclusive licenses are too much of a hassle & make sure it can get more money collectively from all the football game developers than it could make from EA alone.  Once that happens, diversity in the marketplace returns, and it’s a touchdown dance for the consumer.

As for this lawsuit, EA will probably win b/c other football titles do exist.  Even if EA loses, most class-action plaintiffs will probably only get like 75 cents or a free download of “NFL Labor Dispute 2014” or whatever new idea EA rolls out in a demo the year this case is resolved.  “Labor Dispute 2014” could be like the ill-fated “Head Coach” EA series, where you attend meetings, run an office, fill out paperwork, manage a schedule…basically an awful, boring football RPG every 14-year old Madden fan will put down in favor of finishing his homework.

Whether EA wins or loses, the lawyers are probably still getting paid…so we can all look forward to that.

Here’s the details from the web page link that was emailed to members of the class action:

GEOFFREY PECOVER and ANDREW OWENS v. ELECTRONIC ARTS INC.
U.S. District Court (N.D. Cal. – Oakland Div.)
Case No. 08-cv-02820 CW

 

If You Purchased Certain Electronic Arts Brand Football Video Games
Between January 1, 2005 to the Present
You May Be a Class Member.

 

 

Membership as a class member in the Electronic Arts Litigation is the result of a lawsuit filed in the U.S. District Court, Northern District of California, Oakland Division (Case No. 08-cv-02820 CW).

What Is This Class Action About?

The class action lawsuit alleges violations of California’s antitrust and consumer protection laws in connection with the sale of certain football video games. Plaintiffs, purchasers of Electronic Arts’ football video games, claim that Defendant Electronic Arts entered into a series of exclusive licenses with the National Football League (NFL), National Football League Players’ Association (NFLPA), National Collegiate Athletics Association (NCAA), and Arena Football League (AFL), which Plaintiffs claim foreclosed competition in an alleged football video game market. Plaintiffs allege that this series of exclusive licenses caused customers who purchased certain football video games to be overcharged. 

Defendant Electronic Arts has denied any liability and all allegations of misconduct. The Court has not decided whether the Defendants did anything wrong, and this Notice is not an expression of any opinion by the Court about the merits of any of the claims or defenses asserted by any party to this litigation.

Who Are Class Members?

The Class includes all persons who, during the period January 1, 2005 to the present, purchased the Madden NFL, NCAA Football, or Arena Football League brand video games published by Electronic Arts with a release date of January 1, 2005 to the present. Excluded from the class are purchasers of software for mobile devices, persons purchasing directly from Electronic Arts, persons purchasing used copies of the relevant football video games, and Electronic Arts’ employees, officers, directors, legal representatives, and wholly or partly owned subsidiaries or affiliated companies.

What Should I Do? (Getting Further Information)

If you believe that you may be a class member (see above “Who Are Class Members”), you should get more detailed information about the class action and its potential effect on you and your rights. Further information can be obtained by going to the following website: http://www.easportslitigation.com. Additional information about the lawsuit may be obtained from Plaintiffs’ Counsel website at http://www.hbsslaw.com, or by calling Plaintiffs’ Counsel at 1-206-623-7292.

To Remain a Class Member

If you are a class member and you do nothing, you will be bound by the court’s rulings in the lawsuit, including any final Settlement or Judgment.

To Exclude Yourself from the Class(Deadline to Request Exclusion: June 25, 2011)

If you are a class member and you want to exclude yourself from the class and keep your right to sue Defendant, you must take further action before June 25, 2011. By that date, you must request exclusion in writing to this address:

Electronic Arts Litigation Exclusion
P.O. Box 8090
San Rafael CA 94912-8090

Or submit a request for exclusion electronically at the following website: www.easportslitigation.com

For further information about excluding yourself from the class go to the following website:
www.easportslitigation.com

Please do not telephone or address inquiries to the Court.
April 6, 2011. By Order of the U.S. District Court (N.D. Cal. – Oakland Div.).

Why do achievements / trophies not exist on the Nintendo Wii? Another victory for Sony’s PS3 & Microsoft’s XBOX 360

Do you enjoy letting your friends know you just unlocked the toughest PS3 trophy or XBOX 360 achievement for Call of Duty: Black Ops or another game everyone is playing?  It’s sort of like that saying about whether the tree falling in the forest really makes a sound if no one is around to hear it.  Accomplishing something difficult or unique in your game just isn’t that cool if none of your friends know about it.  I’ve always been puzzled as to why this same system-wide trophy concept is not available for the Nintendo Wii – perhaps it makes too much sense?! 

Nintendo has historically been very invested in their own ideas, not usually offering a response to what its competitors are creating until it’s really forced to do so by significant consumer demand for change (remember mild console flops like the GameCube, & major ones like the Virtual Boy that forced Nintendo to go in other directions).

Here’s a great article by IGN.com‘s Craig Harris from late 2009 about why Nintendo really needs to offer an achievement/trophy system for the Wii:

“Wii Need Achievements”

Nintendo was late to the online party, & now seems disinterested in offering system-wide accomplishments. It's getting to the point where 3rd-party games are almost pointless to play on the Wii. It's looking more & more like the only Wii games worth buying are those made by Nintendo.

Late last week I came home to my roommate playing Cars Race-o-Rama on the PlayStation 3. This game, released a couple of months ago, is not good – our official review of Cars Race-o-Rama put the game at a 5 out of 10. He wasn’t casually checking it out, either – he was deep into the game’s progression, almost to the point of beating it completely. The conversation went like this:

Me: You’re playing Cars Race-o-Rama.
Him: Yep.
Me: You’re playing Cars Race-o-Rama just to get the trophies, aren’t you?
Him: Yep.

This word-for-word dialogue was essentially the catalyst for this editorial. It’s been something that’s been on my mind for months now: love the idea or despise it, Nintendo is missing a huge opportunity by dismissing persistent online accounts that track individual game accomplishments. The fact that a gamer in my household was playing a crappy game just to get credit for it is a testament to the need for this feature on Wii.

For those who haven’t been following what’s been going on outside of the Nintendo camp, Sony’s Trophies are essentially the PlayStation 3 version of Xbox 360’s Achievement system. When players hit certain accomplishments in games – completely determined by the developer and unique to the game in question — they’re rewarded with a “token” that’s noted in their user account. These badges of honor are not just accumulated as a rating or score, but they can also be viewed by other players, either on the system or through a web page.

PlayStation 3’s Trophy web list is pretty snazzy.

The most significant innovation in this generation is easily motion control, and we have Nintendo and its Wii remote to thank for getting this ball moving; both Microsoft and Sony are playing catch-up in this regard, but they’re at least making some headway to out-do what Nintendo has done to change the playing field.

But arguably Innovation Number Two has to be the creation of accumulative achievements, and it was Microsoft that set this standard with the debut of the Xbox 360. Like Wii and its motion control, the Achievement system was something that started from Day One of the system’s debut and it is a standard that hasn’t changed since it began back in 2005. Since Microsoft made the move other companies have followed. Individual games have incorporated the “achievements” idea into their designs as an alternative checklist of what’s been completed. Even World of Warcraft has embraced achievements as a standard part of its experience, which will reportedly be rolled into a persistent account using its Battle.Net system.

Xbox 360’s online user game list can be pulled up by anyone.

Sony chose to add Trophies partway through the life of the PlayStation 3, so it’s had some growing pains to worry about; since it wasn’t available from the start, many early games do not have support for Trophies. But as of January 2009, Trophy support is a mandatory inclusion for all PlayStation 3 games, both in retail and in digital distribution.

The whole idea of an Achievement Score or a Trophy collection really is just a way for gamers to show off how much they play videogames. Some people call it an “e-penis,” and just like a regular penis, the bigger it is the more powerful and important you feel, right?

Some may dismiss the idea of an accumulative gamer score, and that’s perfectly fine — if a game can’t stand on its own, no amount of trophy hunting can make it any better. However, it’s hard to ignore the sense of gratification that’s felt when you’ve hit a certain milestone in a particular game, and a rewarding “Bing!!” is followed by the badge of honor that notes your accomplishment. Even if you were playing the most dreadfully designed game, that little token of acknowledgement is a wonderful release of endorphins that makes the awful experience a bit more pleasant.

Personally, even I’ve been known to play a game well past completion just to score as many Achievements and Trophies the design has to offer. An immensely fun game is made even better if there’s more to shoot for, and it’s sort of a driving force to grab all there is in a game just to prove to yourself, as well as the entire world, that it was one of your most favorite experiences on the console.

Now, this isn’t a commentary of which achievement system is better – Greg Miller chimed in with his choice last week, and Charles Onyett claims both are dumb. No, my point is how Nintendo is losing out by looking the other way. Nintendo tends to focus on its own innovations and only be reactive to strategies when it’s absolutely required – online support, for example, is in the Wii, but it’s certainly not an absolute integral part of the Wii experience in the way that Microsoft and Sony have embraced it.

It just flabbergasts me to see Nintendo taking such a blase attitude towards the growing support and backing for the system-wide, persistent accomplishments. At the Electronic Entertainment Expo this year, I asked Shigeru Miyamoto if Wii Sports Resort’s “stamps” was Nintendo’s way of addressing achievements, and possibly a taste of things to come for Wii gamers. According to Miyamoto, “I’m not a big fan of using the carrots to motivate people to play,” he said. “I want people to play because they enjoy playing and want to play more.”

Wii Sports Resort clearly had a team that understands the idea of Achievements.

My roommate’s Cars Race-o-Rama play session is evidence that gamers will play even the lousiest of games if there’s a carrot dangled in front of their nose. One of the biggest issues with Wii third-party support is the lack of enthusiasm to play anything that’s not made by Nintendo. However, Miyamoto makes a good point – but it’s a point from the perspective of someone whose games are seen as the best of the system’s best: of course people are going to play your games, Mr. Miyamoto.

But look at the rest of the system’s offerings: even the greatest third party games are being overlooked because, well, they’re not made by Nintendo; Zack & Wiki is a fantastic example of a game that’s one of the best the Wii has to offer, and yet failed to attract any sort of number on the sales level. We may never know for certain, but if Nintendo’s Wii had some sort of online persistence that not only touted to friends and colleagues that they were playing it but also awarded players with stamps that added to their gamer presence, perhaps we’d see more players tracking down a copy of Zack & Wiki. Sort of a virtual word of mouth…without saying a word.

Again, even the worst games would get played (bought, even) if there were an incentive to boot it up.

Later in the year, Miyamoto once again addressed the issue of Achievements and Trophies, this time taking a much more defensive position. At a roundtable discussing New Super Mario Bros. Wii, when asked if the Stars system in New Super Mario Bros., where certain accomplishments are rewarded with star badges in the user’s game profile, Miyamoto stated “playing the game in a certain way and have something that unlocks is something we’ve been doing for years.” He went on to note that he’s not familiar with what Microsoft’s doing because “I don’t have a lot of time to look at what other people are doing.” That, Mr. Miyamoto, is very telling.

New Super Mario Bros. Wii’s star system is a nice try, but oh so dull.

Wii developers have added in-game achievements in their projects for years — Retro Studios, for example, incorporated “tokens” into Metroid Prime 3: Corruption, and then brought that idea back for the Metroid Prime and Metroid Prime 2: Echoes ports for Metroid Prime Trilogy. But those achievements are locked down to the games, so while there is a sense of satisfaction in securing these awards, it’s only a personal one with very little opportunity to show it off.

It is, admittedly, a technical hurdle if an achievement system was added to the Wii this late in the game. Just like Sony’s growing pains by incorporating the idea more than a year after the PlayStation’s release, if Nintendo started with its system now we’d see similar problems, which most notably would be the early lack of support due to a slow push to a standard. And with Nintendo’s current “no patching games after release” policy on Wii, existing games couldn’t even be updated with the feature outside of re-issuing a brand new disc with the support. And while the enticement of achievements might be a good drive for gamers to double-dip, I’m sure many players would have a hard time paying full price a second time just to get the badges.

But the Wii at least has the basics for an achievement system – it just needs to pull the trigger to get it done. While there’s no way of “logging in” with user accounts in the current Wii firmware, the Wii can be linked to an online account via Club Nintendo and the Wii Shop Channel. And at the very least, as the Message Board and Nintendo Channel prove, the Wii records which games are being played and how long gamers have been playing them. There’s a basic foundation here for a full-on accomplishment system, but Nintendo needs to take it one step further.

Returning to Wii Sports Resort for a second, the “Stamp” system isn’t just a good start, it’s also a great name if Nintendo ever decides to embrace the idea of persistent achievements. My passport is “stamped” every time I enter a country, and I see my document booklet as a partial, personal achievement record: I’ve entered Japan, I got my stamp on September 17th, 2009. If anything, I’m on board with the “Stamp” naming structure.

Just look at what’s happening in Microsoft and Sony’s corner with its persistent accounts. Players can post their badges on Facebook and MySpace. They can check out friend’s scores on their iPhone.

Do I expect Nintendo to surprise us all in 2010 with a brand new firmware update that opens up an achievement standard on Wii? Not at all. I personally believe that those at Nintendo R&D, or the decision makers that call the shots on system wide features, don’t understand the importance something seemingly insignificant as an “e-penis” gamer score.

But there’s no doubt in my mind that the Wii system and random third-party games would be treated a lot more seriously with an achievement system in place.