EA, Madden In Retired Players’ Crosshairs?

When news first broke last year of smoking-gun evidence that the NFL Players Association advised Electronic Arts to scramble the likenesses of retired players as part of the popular Madden video game series, our first thought was that EA would be joined to the pending litigation filed by a class of former players against the NFLPA.
Apparently, the players have opted instead to take a second bite at the legal apple.
According an entry from former NFL player Bernie Parrish on former NFL player Dave Pear’s official blog, suit will be filed against Electronic Arts, and possibly John Madden personally, for the efforts to use historical players without properly compensating them for their names and likenesses. (Toupee tips to SportsBusiness Daily and Cleveland.com.)
Parrish was the initial named plaintiff in the class action against the union, but the judge removed Parrish based on evidence that he has a vendetta against the union.
Parrish apparently is now focusing his “get off my lawn"-style ire toward Madden.
“Madden knows that the ugly truthful litigation is coming and is probably factoring that into his retirement,” Parrish writes. “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?’”
So Madden retired from broadcasting because he fears he’s going to be sued by former players who don’t like the fact that they didn’t get paid for the presence of their digitized selves in a video game?
(Man, and I thought I came up with some crazy-ass theories.)
Parrish also claims that the players likely will use different lawyers than those who handled the case against the NFLPA, a strong hint as to the existence of a disagreement between the lawyers and the class members as to the question of whether EA and/or Madden should have been joined to the first lawsuit, which resulted in a $28.1 million verdict against the players’ union.
Parrish specifically wants each of the retired players who’ll eventually receive $13,000 each (if the verdict against the NFLPA survives on appeal) to contribute $1,000 to the war chest for potential litigation against EA and Madden.
Though we seriously doubt that Madden has any personal responsibility to the former players, EA could be in some trouble. Given the potential allegation that EA, on the advice of the NFLPA, intentionally made basic superficial changes to the data regarding former players in an effort to avoid compensating them, EA could be on the hook for the money that arguably should have been paid to the players on the historical teams.
That said, the available damages could be an issue. Theoretically, the players will be “made whole” via the award received from the NFLPA, if the verdict is upheld. So anything obtained from EA would potentially be a windfall.
And with no award of compensatory damages, it will be impossible to recover punitive damages against EA.
So, yeah, if the players were going to pursue EA or Madden at all, they should have added them to the NFLPA lawsuit.
That said, it’s possible that the trial lawyers hired by EA would have helped to dilute whatever combination of evidence and witness testimony and attorney demeanor that contributed to the runaway verdict imposed against the union.
There’s also another potential problem with an attack on EA and Madden -- the statue of limitations. We’ll delve into that issue if/when a suit is ever filed.