An error with an image in Madden NFL 13 has one NFL star agitated to no end. New York Giants player Marcus Thomas was upset when he noticed that an in-game photo of a different Marcus Thomas was in his profile. That Marcus Thomas played for the Denver Broncos three years ago and looks nothing like the New York Giants star.

Obviously the Marcus Thomas who was supposed to be pictured in the game wasn't too happy about it and took to Twitter:

Concerned about the on-going negotiations between the NFL Players Association and the NFL, one analyst offers his worst-case scenarios on the impact of EA Sports' next Madden Football game.

Wedbush Morgan analyst Michael Pachter is saying that as much as half of Madden's sales could be lost if a lockout cancels the entire NFL season. Keep in mind that that is a worst-case scenario. Pachter is the only analyst willing to offer a prediction on this.

"If the season is only delayed a week or two and fans aren't alienated, there would be only a very small impact," Pachter told The Hollywood Reporter earlier this week. "If delayed through Thanksgiving, the impact would be far greater."

While that's an extreme prediction and probably not very likely, Electronic Arts COO John Schappert is not taking any chances. He says that the company has planned on "the most conservative assumption, meaning no season."

Some Green Bay Packers team members - including linebacker Clay Matthews - are honoring active Wisconsin National Guard members currently serving overseas with the help of a controller. A number of players are challenging soldiers in online games of Call of Duty and Guitar Hero. Wisconsin Guard members are playing at a USO Center in Basra, Iraq.

The event is part of the ongoing Operation Fan Mail, the "game day military family recognition program" where a nominated family is saluted on Lambeau Field prior to the singing of the national anthem.

More details can be found at search.channel3000.com.

Drew Brees of the New Orleans Saints and Visa have teamed up to create the sequel to a NFL-themed financial education video game.

Entitled Financial Football 2.0, the game uses a football format and forces players to answer multiple choice financial management questions of varying degrees of difficulty to advance the football. The game has three settings for Rookie (ages 11-14), Pro (ages 14-18) and Hall of Fame (ages 18+). Players can choose from 42 offensive plays, including run or pass options. There are also defensive plays, where players must answer a defensive financial question to stop the opponent.

According to a press release:

"It would have been great to learn more about personal finance when I was in school," said Brees, the Super Bowl XLIV MVP. "I've enjoyed working with Visa to help create and launch Financial Football, providing today's students with the opportunity to learn about the financial world in ways that were never available to me when I was younger." 

In litigation very similar to one brought previously by NFL Hall of Fame member Jim Brown, another ex-professional football player has filed a lawsuit against Electronic Arts, alleging that the game maker used the likenesses of retired NFL players illegally in its Madden NFL series of videogames.

The new suit, filed by Michael E. Davis (pictured in his playing days), aka Tony Davis, was filed in the United States District Court of the Northern District of California on July 29, and is of the class action variety, seeking damages on behalf of the “approximately 6,000 retired NFL players whose likenesses were included in the ‘historic teams’ in all versions and editions of Madden” sold between July 29, 2008 and the present.

The U.S. Supreme Court is scheduled to hear the case of American Needle v. NFL next week and perhaps give the NFL broader protection against antitrust lawsuits.

At the heart of the case is an exclusive deal that the NFL has with Reebok as the official seller of hats,. jerseys and clothes using team insignias. American Needle lost its right to sell those items when the league reached the deal with Reebok in 2000.

Where this impacts the videogame industry is the exclusive license that Electronic Arts has with the NFL as the sole purveyor of an NFL-branded videogame with the Madden NFL series. According to a Reuters article:

A broad ruling could insulate professional sports leagues from antitrust claims over video-game licenses, television rights, franchise relocation and even player salaries. Only Major League Baseball is exempt from antitrust laws now.

In the past, the court has kept a tight rein on antitrust suits, and legal analysts say that the mere fact that the court has agreed to hear the case means it could be sympathetic to the NFL's claims for broader protection.

The case for the NFL, according to brief it filed:

“A sports league produces a single entertainment product, a structured series of athletic competitions leading to a championship, that no member club could produce on its own."

However, American Needle countered with:

“The teams are separately owned and controlled profit- making enterprises. They are actual and potential competitors in numerous areas, including the licensing of intellectual property.”

Electronic Arts has come out on the side of the NFL for obvious reasons, and the antitrust protection for the NFL could ensure EA's deal from outside interference as long as the NFL sees fit to continue the contract.

Late last year, NFL retirees won a massive $28 million verdict against their former union, the NFLPA, when a federal court jury in San Francisco decided that the old time players' images had been used in EA's popular Madden series without their authorization.

Following an appeal, the retirees accepted a just slightly less massive $26.25 million settlement. Although EA was not a defendant in the case, there has been talk by at least one militant former NFL player that a similar suit against the publisher may be in the offing.

It's very clear that, despite the big settlement dollars, hard feelings linger among the retirees. One of the more outspoken ex-players, former Oakland Raider Dave Pear, bitterly notes that EA has licensed realistic weather for Madden, but won't pay to use former players, who no longer appear in the game. Pear writes:

Retired players are so sick and tired of getting ripped off every time they turn around. We recently came across an article that Electronic Arts was partnering with The Weather Channel to pay them for weather statistics to make Madden Football X more “realistic” – but they DON’T want to pay the retired football players themselves for their stats in order to make the game more “realistic”. I wonder when they’re planning on screwing around with the weather so they won’t have to pay for that either...

Gamers who purchased a copy of Madden from August, 2005 onward may be eligible to join a class action suit against publisher Electronic Arts.

Pecover vs. EA (all GP coverage here) is currently proceeding in the U.S. District Court for the Northern District of California. The suit alleges that EA's exclusive licensing deal with the NFL and NFL Players Association created a monopoly situation which EA exploited by substantially raising the retail price for a copy of Madden.

In a story broken recently by GamePolitics, an expert witness hired by the plaintiffs theorized that EA's exclusive NFL/NFLPA license may have cost consumers nearly a billion dollars. Lawyers for EA have disputed that claim in court documents.

In a press release issued on Friday, Hagens Berman Sobol Shapiro, the law firm representing consumers in the case, provides a link where Madden buyers can learn more about the suit and potentially join as additional plaintiffs.

Lead attorney Steve Berman, quoted in the press release, pulled no punches in his assessment of EA's position regarding Madden:

There is nothing wrong with good, strong competition in a free market, but we believe EA rigged the game to take advantage of consumers.

EA knows that the demand for these games is based on how realistically the players and teams are portrayed. When EA signed into exclusive agreements it knowingly killed the only competing game of comparable quality, [Take-Two's] NFL 2K5.

Although EA's exclusive licensing deal with the NFL and NFL Players Association has outraged some gamers and even sparked a class-action lawsuit, it appears that, while negotiating with league, the game publishing giant neglected to wrap up the mobile device rights for NFL games.

By way of example, BitMob points out that Gameloft has released NFL 2010 this month for iPhone/iPod Touch. Screenshots for the $7.99 App Store download clearly show actual NFL team and player names. The game appears to be available for non-Apple phones as well.

It seems quite puzzling that EA would let development rights for any platform slip away, particularly for the popular Apple platforms.  

-Doug Buffone, ECA intern

A University of Michigan economics professor estimates that Electronic Arts collectively overcharged Madden buyers between $701 million and $926 million during the years 2006 through 2009.

Dr. Jeffrey MacKie-Mason made his claim in a document filed last week with the U.S. District Court in San Francisco. Mackie-Mason was brought into the case as an expert witness by attorneys representing Geoffrey Pecover and Jeffrey Lawrence. The pair of gamers are named plaintiffs in a class-action suit alleging that EA used its exclusive licensing deal with the NFL to eliminate Take Two Interactive's competing NFL 2K series. The suit charges that EA then exploited the resulting competitive vacuum to dramatically raise the retail price of Madden.

While MacKie-Mason acknowledges that his estimates are based on incomplete data, he writes:

I provide this information for the limited purpose of allowing the Court to assess in rough terms the burden on Electronic Arts in relation to the magnitude of potential damages... Under California's antitrust statute, it is my understanding that these damages would be trebled.

MacKie-Mason arrived at the eye-popping figures using an estimated overcharge percentage that ranged from 50% to 66% for the 30.04 million units of Madden sold during the 2006-2009. He writes:

When Take-Two was able to compete unhindered, Madden NFL's competitive price was in the range of $19.95 to $29.95. I assume for this exercise that these would have been Madden's prices but for the alleged [monopolistic] acts.

Based on Mackie-Mason's estimate, attorneys for the plaintiffs have requested additional data for Madden sales going back to 2001. In a response, attorneys for EA agreed to supply as many of the requested documents as they could locate, but were unsparing in their assessment of Mackie-Mason's analysis:

EA respectfully submits that Dr. MacKie-Mason's analysis is fundamentally flawed on multiple levels. Indeed, Dr. MacKie-Mason's estimated magnitude of damages is nothing more than pure fiction - it has no basis in fact or law...

As GamePolitics reported last month, U.S. District Court Judge Vaughn Walker ruled that the plaintiffs' monopoly suit could go forward, but limited the scope of the case to claims arising in California and Washington, D.C. where Pecover and Lawrence reside.

DOCUMENT DUMP: Read Dr. MacKie-Mason's estimate here... Read EA's response here...

Old school NFL players, angered by their uncompensated depiction in EA's best-selling Madden series, have won a huge victory against their former union in the case.

The Associated Press reports that National Football League Players Association has settled the lawsuit filed by NFL retirees for a whopping $26.25 million. GamePolitics readers will recall that in November, 2008 a federal court jury awarded the players $28.1 million, with 3/4 of that figure representing punitive damages. Jurors were clearly appalled by e-mails which showed that NFLPA officials conspired with EA to obscure the identities of retired players depicted on Madden's classic teams.

The NFLPA promptly appealed the verdict, but has now settled for an amount equal to 93% of the jury award. In other words, the NFLPA has capitulated. Attorney Ron Katz, who represents the retired players, praised new NFLPA president DeMaurice Smith and called the settlement "a real step to a reconciliation" with the union.

A formal announcement of the deal will come this morning in Washington, D.C. Former Packers and Cowboys DB Herb Adderley, a named plaintiff in the class action suit, is scheduled to speak, according to ESPN.

With the NFLPA suit resolved, the question now looming is whether the retired players will pursue legal action against EA for use of their unlicensed images in Madden. Although a key entity in the NFLPA suit, EA was not a named defendant. However, militant NFL retiree Bernie Parrish said in April that the retro players were looking into suing both EA and John Madden once the NFLPA case was over. Toward that end Parrish urged the establishment of a legal war chest. We note that former NFL player Dave Pear wrote on his blog yesterday:

We all need to put $1,000 into a war chest so we can continue our battle for justice and vindication! Bernie, please let me know where to send the money once we receive a check.

Kotaku reports that "legacy" teams from past NFL seasons will no longer be included in any version of EA's best-selling Madden football game.

An unnamed EA spokesperson told Kotaku's Stephen Totilo that the decision was not entirely due to last year's class action suit in which NFL retirees won a staggering $28 million judgment against their former union, the NFLPA. While EA wasn't a defendant in the landmark suit, evidence at the trial showed that the NFLPA conspired with EA to "scramble" the identities of retired players so as to avoid individual licensing issues.

More recently, militant NFL retiree Bernie Parrish has been making noises about suing EA and John Madden himself over the use of the old players' images. The EA rep told Totilo:

[To say that the decision was based on the lawsuit] wouldn't be entirely accurate, because we haven't had legacy teams in Madden next-gen ever, and it was just a matter of getting some consistency across the entire franchise.

However, Fourth and Goal, a site dedicated to the interests of NFL retirees, has a different view on the news:

You’ve got to think that once the union was pounded with the $28.1M verdict the folks at EA Sports got more than a little nervous. After all, it was their company that produced the game and their employees that communicated with the union to scramble the images.

His days of calling NFL games on T.V. may be done, but John Madden's just-announced retirement might not be as idyllic as he had hoped.

According to a report on the blog of former Oakland Raiders lineman Dave Pear, NFL retirees are planning to sue both Madden and Electronic Arts, publisher of the best-selling pro football game which bears the former coach's name.

GamePolitics readers may recall that retired players won a staggering $28 million verdict against the National Football League Players Association last fall when evidence showed that the union suggested to EA that identities of retired players on historical teams be "scrambled" to avoid paying them royalties. E-mails revealed in the trial also showed that the NFLPA acted to block Take-Two Interactive from acquiring rights to former NFL players, thus preserving EA's monopoly position with regard to pro football games.

But militant NFL retiree Bernie Parrish, who was deeply involved in last year's win against the NFLPA, writes that EA and Madden himself are squarely in the players' legal sights:

The retired NFL players who were used in Madden EA video games will be suing Madden and EA for using us in those games without compensating us. Madden’s agent Sandy Montag boasts he and Madden collected over $100,000,000 in royalties while paying the retired NFL players used in those games absolutely nothing. Madden knows that the ugly truthful litigation is coming and is probably factoring that into his retirement. I doubt he wants to answer all those fans who will be asking, “Why, John Madden? Why did you screw all those retired players over, you seemed like such a friendly, good-natured buffoon?”...

No deals are going to be made because John Madden is moving his act to his home office where he will continue to screw over the retired players without having to face the fans around the country. Madden and Montag plan to continue licensing Madden without compensating retired players...

A non-gaming case currently before the United States Supreme Court stands to have a massive impact on the video game industry.

The case is American Needle vs New Orleans Saints, et al. Should the Supreme Court find in favor of plaintiff American Needle, an apparel manufacturer, EA's exclusive NFL licensing deal and Take-Two's third-party exclusive with Major League Baseball could be found in violation of federal antitrust (i.e., monopoly) statutes. Such a determination would free other publishers to make games based on the NFL and MLB.

SCOTUSblog, which tracks happenings before the Supreme Court, reports on the case:

The NFL used to license American Needle to sell hats that bore the logos, the names or other insignia of pro football teams... But, in 2000, the NFL opted to solicit bids for an exclusive license to produce caps and other headwear.  Reebok won the bidding, and in 2001 got an exclusive ten-year license.  American Needle’s license was not renewed. So it sued the NFL, all of its teams, NFL Properties, and Reebok.

American Needle’s case was thrown out by lower courts... “The [Supreme] Court has stated, on more than one occasion,” American Needle asserted, “that application of the Sherman Act to professional sports teams is wholly consistent with Congressional inent...”

What happened to American Needle in relation to apparel is essentially what happened to Take-Two in regard to its excellent NFL2K series when EA scored its exclusive license with the NFL in 2004.

Attorneys for EA are clearly tracking the American Needle case. The phrase "American Needle" appears nine times in a transcript of arguments made by attorneys last November in Pecover vs. Electronic Arts, a class-action suit which alleges that consumers were hurt by EA's NFL exclusive (see: Spirited Courtroom Argument Highlights Madden Monopoly Case).

SCOTUSblog reports that the Supreme Court has requested government lawyers to weigh in on the case.

The recent class action lawsuit in which retired NFL players won a $28 million judgment from the National Football League Players Association continues to yield a treasure trove of information concerning the inner workings of EA's best-selling Madden franchise.

For example, transcripts of court testimony which were unsealed this week by the U.S. District Court in San Francisco show that NFL star Brett Favre's decision to retire from the Green Bay Packers in early 2008 almost got him dropped from the cover of Madden 2009.

EA exec Joel Linzner, who was called as a witness at the NFLPA trial, testfied about the dilemma which Favre's on again-off again retirement caused for EA:

Q: ...Madden NFL Game. And, in fact, that's been a very successful game for EA, correct?

 

JL: Yes, over 20 years.

 

Q: 20 years. In fact, the 2009 version was the 20th anniversary edition, right?

 

JL: It's the 20th of the Madden NFL series, that's correct.

 

Q: Right. And you chose to put on the cover of that a retired player at the time, right?

 

JL: Uhm, well, Brett Favre at the time we decided to put him on the cover was not retired, had not announced his retirement. He subsequently announced his retirement. We thought about replacing him to have an active player. But the logistics of making the packages are kind of complicated, and we decided to stay with Brett Favre. And I think as most people subsequently know, he revoked his retirement and is currently an active player with the New York Jets. 

Linzner also testified about EA's deal with Madden 2004 cover athlete Michael Vick, who was later arrested and jailed for animal cruelty. Hit the jump for more official testimony about Madden cover athletes Vick and Donovan McNabb.

Yesterday, GamePolitics broke the news that Madden publisher Electronic Arts paid the National Football League Players Association more than $35 million in licensing fees during 2007.

We asked a couple of financial gurus to comment on the eye-popping figure, which is buried within a massive document filed by the NFLPA with the U.S. Department of Labor.

Wedbush-Morgan financial analyst Michael Pachter told GP:

The [Madden licensing] deal is likely a guarantee of around $50 million total, and $35 million [going] to the players makes sense. The old deal was around $15 million per year, and I know that it went up substantially when renewed in 2005.
 
[EA sells] around 5.5 million copies a year, so they're burdened with [about] $9/unit in licensing. That's reasonable, on par with the royalty paid to the console manufacturers.

So, Mike, yesterday GP speculated that the league would get at least as much as the NFLPA from EA. Are you saying we were wrong and that the NFLPA actually gets more than the NFL?

Most definitely.

 

The product is the players, and the league used to get most of the money. The reason the royalty went up was the players, not the league. The league looks at the game as a marketing tool, but the players want to be paid for their likenesses.

Meanwhile, analyst Doug Creutz of Cowen and Company termed the $35 million paid by EA to the NFLPA "a gigantic number," adding:

I’d estimate Madden generates $350-400 million in revenue for EA annually.

The Pittsburgh Steelers will win Super Bowl XLIII by a score of XXVIII - XXIV.

At least, that's the word from EA Sports. The publisher used its best-selling Madden NFL 2009 to predict the outcome of today's big game.

An EA Sports press release says that the game will be close:

Holding off a fourth quarter comeback by the Cardinals, the Steelers bring the Vince Lombardi trophy back to the Steel City for the second time in the past four years and for a sixth time in franchise history, setting an NFL record.

GP: So, GamePolitics readers, who do you think will win? Leave a comment with your prediction of the final score...