A Meaningless Settlement Keeps a Clipboard Quarterback in the Game

Twenty-seven million dollars is a lot of money. But it's not significant. Not in the case of the Madden monopoly lawsuit. In fact, I'm struck by how meaningless all of the terms are in its settlement.

Pecover vs. Electronic Arts generated enormous populist sympathy when it was filed in 2008 because it sought to nullify the exclusive license EA Sports had to make NFL video games—the deal that martyred NFL 2K5. The Madden Exclusive—let's go ahead and make it a proper noun—is hated like no other by hardcore gamers, whether they buy or even play sports video games, because of how blatantly it came to demonstrate consumer powerlessness.

However quixotically, Pecover at least took up a lance against that, to great applause. People just didn't know what they were really cheering for.

To reread comments on this case and its incremental developments is to see many expecting that a victory would return NFL 2K, or something like it, to shelves. This was bootstrapped to the idea that Madden's exclusive license amounted to illegal price fixing, allowing EA Sports to sell games for 70 percent over the $19.99 pricetag for which NFL 2K5 sold eight years ago.

2K5 is revered as much for its quality as it is its price, making it both King Arthur and Robin Hood. But if it was giving to the poor, the money wasn't coming from EA. Sega, then the game's publisher, elected to price NFL 2K5 at less than half the cost of a triple-A title in 2004, much less one with that kind of licensing.

It was purely a sales strategy, and given the vast majority of games priced above $20 in that year, it could hardly be taken to establish the market value for a title, licensed or otherwise. It's not like Madden was a $20 game when it went up against NFL 2K, and then jacked its pricetag to $50 when it was in the clear.

Further, unless you expect a nationalized industry of American football video games, no court or law could compel the creation of an alternative to Madden NFL. Even with the opportunity to obtain a license, a publisher would have to judge it a worthy investment. And development and publishing costs are much different today.

Friday's settlement makes all of that a moot point.

The agreement doesn't even dent the private deal that prohibited direct competition for the past eight years. In the proposed settlement, EA Sports has agreed not to strike exclusive pacts with college or minor league American football licensors—games in which no publisher other than EA Sports has shown any interest for 10 years.

As for Madden and the NFL? Untouched.

It doesn't matter that Electronic Arts will pay $27 million to establish a fund to pay—what do we call them, "victims"?—who bought American football titles over the past seven years. Not when they're getting a $1.95 rebate for every Madden NFL game bought and summarily declared crappier than NFL 2K5 between now and 2005. Not when the size of the fund is less than 1 percent of EA's market capitalization, even with a stock price at a 12-year low.

The most meaningful outcome of the Pecover settlement, I'd argue, is one that is emotionally symbolic. It still keeps NFL 2K, the ultimate clipboard quarterback, on the theoretical sideline. A court ruling that actually nullified EA's exclusive license with the NFL, for whatever reasons, would turn expectant, longing gazes to a Take-Two Interactive leadership that appears unwilling to meet them.

True, 2K Sports has a current-generation football engine, thanks to All-Pro Football 2K8. That was also a title developed before the current regime took control of the parent company. Since then, it has shed underperforming titles—particularly in sports—and publicly declared its focus to be on games it owns fully. Not games dependent on third-party licensing, in other words.

Pecover's monetary and contractual obligations might be pointless but the outcome still did everyone a big favor. It allows a claim of victory over Electronic Arts—even a pricetag attached to it—and preserves the mythological ideal of NFL 2K without requiring it, or anything like it, to compete in a drastically changed marketplace. Hell, if I worked at EA Tiburon, I'd want NFL 2K back on shelves, because a monopoly on the NFL market means a monopoly on reading Twitter spew and message board anger, too. Anything would beat the annual comparison to sports video gaming's dead boyfriend.

For now, thanks to Pecover vs. Electronic Arts, NFL 2K can still be the backup in the pristine jersey, unjustly benched with so much to prove, and no chance to prove it.

Not that anyone, deep down, really wants it to.

A Meaningless Settlement Keeps a Clipboard Quarterback in the Game
