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Courtroom showdown on Madden images

The NFL Players Association has allegedly conspired since 2001 with Electronic Arts to alter the images of thousands of retired football players in the popular Madden video games in order to avoid paying licensing fees, a lawyer for 612 of those athletes charged during a federal court hearing late last month.

The claim, leveled for the first time in a San Francisco courtroom July 24, provoked a sharp response from NFLPA attorney Jeffrey Kessler, who called the allegation “unbelievable” and “outrageous” and a last-minute “grasping at straws” to avoid having the 18-month-old case thrown out of court.

Kessler told the court during the summary judgment hearing, that in 2001 “EA said they wanted some other [retired] players. We said, we have no rights to them; therefore, what do you have to do? You have to alter their identity so it can’t be recognized. There’s nothing conspiratorial about that. That’s telling EA we have no rights to give you for them, so you have to make them — they change their uniform numbers. They left out their names. They did nothing to exploit their rights.”

But Ron Katz, counsel for the retired players, in a letter sent Wednesday to U.S. District Judge William Alsup, who requested a follow-up correspondence on the issue from both sides, responded, “That statement … was clearly a misrepresentation. In fact, there are at least 612 class members with stripped identities in the Madden 2007 PC game alone.”

By “class members,” Katz is referring to retired players who signed group licensing agreements with the NFLPA, meaning the union controlled their rights when six or more of them were used by a licensee.

The case, which is scheduled for jury trial on Sept. 22 and could result in more than $100 million in damages, to this point has largely been about whether the GLA language entitles retired players to a share of active player licensing fees. Katz argues that when retired players are used by any licensee, like EA, that automatically triggers sharing with all retired players. EA pays between $25 million and $30 million annually to the union.

The NFLPA argues the GLA language has no such trigger, and that retired players have received $30 million in licensing money through side agreements between 2003 and 2007.

Now, the plaintiffs are for the first time accusing one of the union’s licensees of participating in defrauding retired players, though Katz said he has no plans to sue EA. And he is now saying the case is about more than just whether the GLA triggers license payments, but how thousands of retired players have been directly used by EA without compensation.

Vintage teams on Madden like the 1992 49ers
have familiar players wearing unfamiliar numbers.

An EA spokesman, Jeff Brown, did not respond to questions placed by e-mail or phone over several days.

Katz, calling it his “smoking gun” document, cited a May 31, 2001, letter from LaShun Lawson, former NFLPA assistant vice president of multimedia, to Madden game producer Jeremy Strausser, which was cc’d to Doug Allen, then president of the NFLPA’s commercial arm, and Joel Linzner, the EA executive in charge of sponsorships. It was after that letter was sent, Katz wrote to Alsup, that EA started to “scramble” the images of retired players in the games.

Lawson, who now works for National Geographic Ventures, referred questions to NFLPA public relations. The letter, included as an exhibit in Katz’s letter to the judge last week, is sealed.

At issue are the 143 vintage, or “historic,” NFL teams in the Madden video games, such as the 1985 Chicago Bears or the ’92 San Francisco 49ers, in which none of the athletes in the game are identified by name or correct jersey number for the player that started at that position. In the Madden games, all the players on current NFL teams are identified by names on their jerseys as well as the correct jersey number.

There are 148 Hall of Fame players who are licensed through EA, which uses them in marketing and in all-star games on their products. But these are different from the vintage games.

Katz showed Alsup, a 49ers fan, images from the ’92 49ers in a Madden game in which a nameless, faceless tight end is depicted. Katz said the tight end in the game was Brent Jones, who started at tight end for the San Francisco team that year. “He’s got the same height. He’s got the same weight,” Katz said.

“So anybody would know that is Brent Jones,” Katz said. “It’s just a ripoff, OK? … And they are still doing this. They’re using all those players, hundreds of players. … And they are just ripping them off. Because everyone knows it is Brent Jones. And they did it with malice aforethought.”

Kessler, during a heated rebuttal in the courtroom where he charged Katz with making things up and lying to the court, said if there is an issue, it is not one that belongs to the union.

“If there’s a problem with that, which I would suggest there’s not legally, it’s a problem between some retired players and EA,” Kessler said. “There was a Supreme Court decision recently, your honor, which ruled that just mentioning the name even of a person is not a protectable licensing interest in this context. So this idea that this is some conspiracy … some smoking gun, is shocking.”

Matthew Pace, an attorney in Herrick, Feinstein’s sports practice, said both sides were exaggerating, and that the issue of whether EA is entitled to alter the images of retired players is a legal gray area. As a result, Pace predicted the judge would not throw the case out and allow it to go to trial.

Former 49er Jones, reached by telephone last week, said that children have told him that he is in the Madden vintage 49ers, but his jersey number has been changed. “For me personally, I don’t feel assaulted,” he said. But he added, “I think it’s an injustice for anyone on that team. If you are a player on the vintage 49ers, all of those guys should be compensated.”

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