Joshua P. Fershee from the University of North Dakota School of Law reads the same blogs we do. He noticed that we had some fun with the Cullen Loeffler story about the Vikings long snapper and his brethren not being represented in the Madden video game and e-mailed us. He offered up a legal perspective he wrote via a link from the almost-too-hot for the Internet "Business Law Prof Blog." Fershee, who says he worked in the video game industry before heading to law school, had this to say in his post:
It got me to think, though, about whether Loeffler would have a legitimate complaint if he really cared. After all, his union, the NFL Players Association (NFLPA), is responsible for such licensing. According to the current collective bargaining agreement (CBA) (pdf), Article V – Union Security, provides:
Section 4. NFLPA Player Group Licensing Program: The NFL recognizes that players have authorized the NFLPA to act as their agent in a Group Player Licensing program (defined below) for their benefit.. . . . Group Player Licensing shall be defined as the use of a total of six or more NFL players’ names, signatures facsimiles, voices, pictures, photographs, likenesses and/or biographical information on or in conjunction with products (including, but not limited to, trading cards, clothing, videogames, computer games, collectibles, internet sites, fantasy games, etc.) . . . .
The NFL Player Contract, which is Appendix C to the CBA, provides that each player “assigns to the NFLPA and its licensing affiliates, if any, the exclusive right to use and to grant to persons, firms, or corporations (collectively “licensees”) the right to use his name, signature facsimile, voice, picture, photograph, likeness, and/or biographical information (collectively “image”) in group licensing programs.” The contract then reproduces the definition of group licensing from the CBA.
The contract continues:
In consideration for this assignment of rights, the NFLPA will use the revenues it receives from group licensing programs to support the objectives as set forth in the Bylaws of the NFLPA. The NFLPA will use its best efforts to promote the use of NFL player images in group licensing programs, to provide group licensing opportunities to all NFL players, and to ensure that no entity utilizes the group licensing rights granted to the NFLPA without first obtaining a license from the NFLPA . . . . This paragraph shall be construed under New York law without reference to conflicts of law principles.
Which brings me to this: did the NFLPA really use its “best efforts” under New York law to help Loeffler and his similarly situated brethren appear in the game? Although New York law is not clear about what “best efforts” means, some view it to mean “do everything possible” to obtain the outcome; others think is means something more like “must at least try.” (Click here for a good, quick summary.) Regardless, it seems to me that it does require at least some attempt.
Obviously, this does not mean that long snappers and punters should be on the cover of marketing materials or featured parts of advertising. EA would simply say no. But shouldn’t players who are part of every game be more of a priority for the NFLPA than practice squad players who may never, ever see the field in a live game? Shouldn’t they matter to EA, whose early slogan was, “If it’s in the game, it’s in the game?” Perhaps long snappers were a part of the negotiation and EA did say no. But if I were Loeffler or another long snapper, I'd want to know if the NFLPA even asked about including me. After all, the NFLPA’s best efforts in that regard were the consideration for assigning group licensing rights. They could at least ask.
While some of the legal speak goes beyond us, there are some interesting practical issues raised. DeMaurice Smith is the Executive Director of the NFLPA. Sounds like it's his move. He is welcome to e-mail us if there is to be a third post about long snappers in video games.
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