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What Happens When a Video Game Gets a Player's Race Wrong?

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Sports Law Blog reader Scott Timmerick checks in with an interesting question (between the asterisks):

I just started playing MLB 2K8 on PlayStation 2. Facing off against the great Tampa Bay Rays and their ace Scott Kazmir, seven innings later I found myself taking pitches from Gary Glover, a (understandably) unknown relief pitcher whose 5.00 career ERA has earned him the rights to be a major league journeyman.

Anyway, since I spent some time as part of the Rays' organization, I know Gary Glover. Which is why I was surprised to find that, in MLB 2K8, he is a black man...when in real life, he is indeed quite white.

My question then, is this: Could Mr. Glover sue 2KSports for misrepresentation of any sort? Putting aside the sheer absurdity of such a lawsuit, is there any kind of precdent for this sort of thing (wrongful use of image in a video game), and would Gary have any argument?

Many thanks for your time,
Scott Timmreck

I am unaware of litigation arising from this type of issue, and I suspect Glover would not succeed in a defamation suit, for multiple reasons, including that he probably isn't harmed by the game's mistake, which was undoubtedly innocent in nature (though a reflection of not very good game development).

Also, it's possible that Glover and other big league players may have contractually waived away any right to bring such a claim in the deal between 2K Sports and both Major League Baseball and the Major League Baseball Players' Association, which together licensed the players and their respective images to 2K Sports. In fact, 2K Sports has an exclusive deal with baseball to make official Major League Baseball games, though that exclusivity does not apply to first-party publishers, such as games published by Microsoft for the X-Box 360, by Sony for the Playstations 2 and 3, and by Nintendo for the Wii. But that deal does mean that 2K Sports has no competition from Electronic Arts, arguably the most prominent third-party publisher of sports video games and which, until 2K's deal, had published a very popular baseball game called MVP Baseball.

Especially considering the lukewarm reviews for MLB 2K8, perhaps baseball should think twice about exclusive deals, particularly when a company like Microsoft does not offer its own baseball game for the X-Box 360 (unlike Sony, which offers the hit MLB: The Show for both the PS2 and PS3). Of course, baseball isn't alone in negotiating an exclusive third-party publisher deal, as the NFL and NFLPA have one with Electronic Arts, publisher of John Madden Football, NFL Tour, and NFL Head Coach. That deal with EA, however, knocked off the gaming market 2K's popular football game ESPN NFL 2K.

In fact, one might say that the comparative advantages for 2K Sports and Electronics Arts have been voided by these exclusive deals: 2K Sports can't make its excellent football game and Electronic Arts can't make its excellent baseball game, while both have exclusive rights to publish games--2K Sports with MLB 2K and EA with Madden--that some would consider inferior to those that had been published by each other prior to the exclusive third-party publisher deals.

I suppose what goes around comes around with exclusive third-party publisher deals, though probably never in the consumer's best interests.

Full post as published by Sports Law Blog on March 17, 2008 (boomark / email).