Retired football players seek class certification against video game company

SAN FRANCISCO — To prove someone profited off your likeness, is it necessary to show that the average customer can recognize your identity easily or is it sufficient to just show that it’s possible to infer your identity on closer inspection?

That was the question a federal judge grappled with at a Thursday hearing as three retired NFL players attempted to certify a class action against Electronic Arts Inc.

The plaintiffs allege players that make up the rosters for “historic teams” included in versions of the John Madden game produced before the year 2010 were based on real athletes, including themselves. Davis v. Electronic Arts Inc. 10-CV3328 (N.D. Cal., filed Sept. 29, 2010).

Early versions of the game allegedly included the actual names of the plaintiffs, but the statute of limitations on those games has expired. The plaintiffs say later versions of the game continued to use the same “player attributes” as the prior games, allowing fans to recognize they are still the same players, even though their names and likenesses were removed.

The plaintiffs’ argument is that Electronic Arts — the video game company that created the John Madden football franchise — took the names off the historical players, changed their jersey numbers and altered physical appearances in later versions of the game, but anyone playing the game could tell that the players were identical to the players on that same historical team in the prior version of the game.

Brian Douglas Henri, a partner with the Henri Law Group who represents the plaintiffs, wrote in court documents that Electronic Arts wanted its users to still be able to play with historical athletes and that a user guide that was released after the game gave instructions on how to edit the players to give them the correct names and jersey numbers.

U.S. District Judge Richard Seeborg of San Francisco seemed to find that argument compelling.

“There’s a certain wink wink nod nod,” Seeborg said. “We can’t do this, but you may want to play it that way, so go ahead.”

R. James Slaughter, a partner with Keker, Van Nest & Peters LLP, who represents Electronic Arts, said that product was a third party user guide. But later in the hearing he admitted that the publishing company had a licensing agreement with Electronic Arts.

Slaughter went on to argue that a survey the video game company conducted proved that the average Madden player couldn’t identify each plaintiff when presented with the avatar allegedly associated with him.

Henri contended that wasn’t the point. The users didn’t have to be able to identify each player, as long as they were interested in the fact that the players were historically accurate. He added that the survey didn’t include all the available information in the game and that users would have been able to identify the players if given those additional details.

“There’s some question about the survey,” Seeborg agreed.

Slaughter said it would also be impossible to prove damages because quantifying how many users allegedly purchased the game due to the inclusion of historical players was impossible and he wasn’t convinced anyone actually bought it for that reason.

“Ninety-eight percent of the content in these games is about the current teams,” he said. “We eliminated the feature and it didn’t affect sales one bit.”