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  • EA’s short-lived deletion of Colin Kaepernick’s name from Madden 19 could become a relevant fact in his collusion grievance
By Michael McCann
August 03, 2018

Could the deletion of Colin Kaepernick’s name from a song that appears in Madden 19 help Kaepernick prove that he was a victim of NFL collusion?

Madden 19, the latest edition of EA’s best-selling John Madden Football video game franchise, will be available to consumers on August 10. EA says that it will update the game on August 6 to correct an error first noticed by author Jean Clervil while seeing an advanced copy of the game. On Thursday, Clervil tweeted, “bad enough @Kaepernick7 still not signed, but now they even edit his name out in this year’s @EAMaddenNFL during @BigSean verse, smh.”

As Clervil explained, EA removed reference to Kaepernick in YG’s song “Big Bank”. The removal was similar to how the company eradicated curse words from Big Bank and other songs that appear on the game. Such a coincidence seemingly denigrates Kaepernick, as it equates his name with that of a curse word.

In the non-edited version of “Big Bank”, Big Sean sings the following lyrics:

Feed me to the wolves, now I lead the pack and s---
You boys all cap, I'm more Colin Kaepernick
I'm rare as affordable health care (oh God)
Or going to wealth from welfare (Goddamn)

EA’s correction will restore the phrase “I’m more Colin Kaepernick” to the song. EA has apologized to Kaepernick, YG and Big Sean. The company attributes the scrubbing of Kaepernick’s name to an “unfortunate mistake.” The mistake, as EA explains it, stems from the fact that Kaepernick won’t appear in the game as a player because he remains unsigned and is not identified as an available free agent. EA says it “messed up” in construing the absence of Kaepernick as an available avatar to mean that the video game publisher was also barred from using Kaepernick’s name in any published songs.

NFL
EA Sports Calls Taking Colin Kaepernick's Name Out of Madden 19 Song 'Unfortunate Mistake'

As EA acknowledges, there was no legal reason to exclude Kaepernick’s name in a song. The songs that appear on Madden 19 contain references to various people and things. It is well within the basic rights of intellectual property law for songs to mention public figures without the need for those persons to grant consent or be compensated. EA, the second-largest gaming company in the Americas and Europe, and one that generated more than $5.1 billion in revenue in fiscal year 2018, is well aware of that. EA claims that it simply, and innocently, fumbled on Kaepernick.

One complicating factor for EA in its explanation is that Kaepernick’s name was also removed from the lyrics of a song that appeared in Madden 18, which was released in August 2017, and yet a playable avatar for Kaepernick was available in that game. As reported by Mike Florio and others, the song “Bars of Soap” by Mike WiLL Made-It is edited by EA to remove “like Kaepernick” from the line "She be hopin’ that I take a knee like Kaepernick, yes."

The same mistake two years in a row arguably seems less like a fumble and more like a play.

Potential legal remedies for YG and Big Sean

There are several legal angles to this controversy, and they center on contractual rights.

First, consider YG, Big Sean and the music companies (4Hunnid Records, CTE World and Def Jam Recordings) involved in the publishing of the song “Big Bank” and its accompanying album, “Stay Dangerous”. These parties could conceivably argue that EA, and possibly the NFL, violated the terms of the license to publish “Big Bank” on Madden 19. It’s worth noting that Big Sean tweeted on Thursday that “nobody” from his “team” approved the change. He also expressed outrage about the implication of scrubbing Kaepernick’s name. Big Sean says the decision implies that EA regards Kaepernick, who he regards as a “gift”, as akin to an obscenity.

If the artists and record companies proceeded with a legal argument, they would contend that the removal of Kaepernick’s name breached the conditions for song editing as specified in the relevant licensing contracts. Licensing contracts normally contemplate how music is used and the degree to which songs can be altered upon publication; whether removal of Kaepernick’s name was legally permissible depends on the wording of the licensing contracts. These parties could also consider a claim for tortious interference with prospective economic advantage. An assertion of tortious interference would proclaim that misuse of “Big Bank” damages the song’s reputation in the eyes of consumers and artists. Such misuse could potentially interfere with the song and album’s sales, as well as damage opportunities for licensing deals connected to other products.

These are very much theoretical legal arguments. In reality, potential legal arguments are unlikely to materialize in the form of a lawsuit. While EA can be rightfully criticized for making a mistake, it’s worth noting that EA immediately moved to apologize and also correct its mistake. Such behavior not only exhibits a responsible and sensible response, but since the mistake lasted so briefly—and will be fixed before the game is released—EA’s response would make it more difficult for YG and Big Sean to show they have been meaningfully damaged.

In fact, it could even be argued that media attention now being devoted to the song “Big Bank” and the “Stay Dangerous” album—an album that, coincidentally, is being released today—could boost sales and provide more money to those with a financial stake in the song and album.

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Why White House Rescinding Invitation to Eagles Could Boost Colin Kaepernick’s Collusion Case

Potential legal remedies for Kaepernick

EA’s short-lived deletion of Kaepernick’s name from Madden 19 could become a relevant fact in Kaepernick’s collusion grievance.

Since October 2017, Kaepernick has pursued a collusion grievance against the NFL. Per Article 17 of the collective bargaining agreement, Kaepernick must convince a neutral arbitrator (University of Pennsylvania law professor Stephen Burbank) by a clear preponderance of the evidence that two or more teams, or the league and at least one team, conspired to deprive Kaepernick of the right to sign with a team. Kaepernick will need to produce evidence. Whether such evidence is an owner or general manager’s admission during sworn testimony, a suspicious text exchange between player personnel directors on two teams, an implicating audio recording of two head coaches or one of many other kinds of possible evidence, it must verify Kaepernick’s claim that there is a conspiracy to keep him out of the NFL.

Mark Geragos, Ben Meiselas and other attorneys for Kaepernick have advanced a theory that owners agreed to exclude Kaepernick because of those owners’ fear of President Donald Trump. Trump has been a staunch critic of Kaepernick and other NFL players who kneel during the playing of the national anthem. Owners are aware that Trump wields enormous power and influence as President, and that Trump has repeatedly chastised NFL owners over this particular controversy.

This theory is not merely conjecture. In fact, it is grounded in actual events: As revealed in leaked tapes of an October 2017 meeting in New York City involving owners, league officials and players, a number of owners openly worry over what Trump could do to the league as an expression of his hostility toward kneeling players. In June, the President disinvited the Super Bowl LII champion Philadelphia Eagles from the White House because of his ongoing frustration over NFL players and the national anthem. Also, during his political rallies, Trump has frequently ridiculed NFL commissioner Roger Goodell and other NFL officials over their handling of the national anthem controversy.

Kaepernick’s attorneys have used the arbitration discovery process to depose Goodell and a group of owners and team executives. The attorneys have done so to ascertain whether there have been any communications between and among the league and teams about Kaepernick, who has been a free agent since March 2017. The discovery process also empowers Kaepernick’s attorneys to request records from the league and teams. Although most federal courts—and especially those in New York, where the NFL is headquartered—restrict or prohibit  private arbitrators from formally “subpoenaing” records from third parties, Burbank will likely do everything within his power to ensure that both Kaepernick and the NFL have legitimate opportunities to obtain available evidence from each other and from other parties who are in possession of relevant records.

With that in mind, Kaepernick’s attorneys might demand from the NFL and EA any records—including contracts, emails and minutes and notes from meetings—related to their communications on the selection and presentation of music in Madden 19. They will seek similar records related to Madden 18 and the exclusion of Kaepernick from the “Bars of Soap” song in that game. Kaepernick’s attorneys know from the emails revealed in Ed O’Bannon’s case against the NCAA that EA was directed by the NCAA’s licensing agent to remove players’ names before publication of the March Madness video games. For a similar phenomenon to have occurred in the context of Kaepernick and Madden games is plausible.

To be clear, even if the NFL and EA “colluded” on keeping Kaepernick’s name out of theses games, that alone would not constitute collusion for purposes of the CBA. Remember, EA is not a party to the CBA. It is a licensee that enjoys a contractual relationship with the NFL, NFLPA and various musicians and recording companies for the use of intellectual property in Madden games. As mentioned above, Kaepernick must show a conspiracy between at least two teams or the league and at least one team.

Still, if league officials are revealed to have directed or encouraged their EA counterparts to remove Kaepernick from the game’s music, Kaepernick would gain at least circumstantial evidence that the league has sought to erase him from not only video games but the league itself.

• Question or comment? Email us at talkback@themmqb.com.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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