Like most other fans of video games and sports, I was irritated when the deal between EA Sports and the various professional sports leagues was announced. The deal with the NFL was signed and promoted just after the competing NFL 2K5 came out with a handful of really great new features, and it seemed like common sense this must be EA trying to squeeze their competition out of the market. As it turns out, though, EA claims that it was the NFL's idea.Whoever came up with it, EA is the one who is going to be defending it. Ars Technica is reporting that two gamers are suing EA Sports for antitrust violations, which is a bold move. Their argument is, basically, that nobody really wants to buy a football game that doesn't have real teams or players in it.
At first glance, it seems odd that the NFL would want an exclusive license. One would assume that licensing their Intellectual Property rights to multiple firms is more lucrative than letting an exclusive contract go. A little deeper analysis suggests that, to the contrary, EA didn't have much to gain by getting the exclusive license and, in fact, had no power to force the NFL or NCAA to give them one.
If the plaintiffs are correct, that there's no market for a game without the players or logos, that shoots the argument that EA Sports pushed the NFL into the exclusive license in the foot. After all, if the NFL says "no", the worst EA Sports could do would be to stop producing Madden, or stop licensing the NFL's Intellectual Property. If they stop producing the game entirely, they lose huge amounts of money. If they put out the game without the real teams or players (and the suing gamers are to be believed) then there's no market for the game and it flops.
Add to that the fact that EA had a lot of money and a tremendously popular game franchise, the NFL had to have known that EA Sports would pay whatever ransom they demanded for the license. The Ars article seems doubtful that the NFL was the driving factor, but it seems unlikely that it could have been anyone else.
As to the legal issues, Antitrust is not a simple area of law, and it's impossible to say how this might shake out, but one angle to consider is that not all monopolies are illegal. For example, Intellectual Property law provides legal monopolies for the holders of copyrights, patents, and trademarks (all for different reasons). It's worth keeping in mind that if, in fact, this was a deal sought or demanded by the NFL, this supposed video game monopoly might be one that's been created, and protected by, Intellectual Property concerns.
Put another way, the only solution to the problem is to force the NFL and NCAA to license their IP to other video game companies, and that's something that it will be difficult, if not impossible, to do.
