It’s happened to many a gamer. A video game’s difficulty gradually rises or suddenly escalates. Advancing to a high level, reaching a benchmark or obtaining a top score seems impossible. Maybe the gamer searches online for tips or cheats. Maybe the gamer takes a break and comes back later. Or maybe the gamer gets frustrated enough to fork over more cash.
In short, the game becomes too hard.
A new federal lawsuit asserts that Electronic Arts unlawfully increases its sports games’ difficulty in order to induce gamers into paying the video game publisher additional money.
In Zajonc v. Electronic Arts, a trio of California-based gamers—Jason Zajonc, Danyael Williams and Pranko Lozano—have sued EA for deceptive practices, false advertising and related claims under California law. Their case, which they hope becomes certified as a class action, concerns the 2017 to 2021 versions of Madden, FIFA and NHL. The trio is represented by, among others, California consumer rights attorney Jack Fitzgerald. EA has yet to answer the complaint in court, and has until early next year to do so.
The lawsuit contends that EA dupes many gamers through “utilizing one or more artificial intelligence technologies that adjust game difficulty dynamically.” EA, the plaintiffs charge, neglects to tell consumers about these technologies or their impact on games. Relying on “heuristic prediction and intervention to adaptively change the difficulty of matches, and influence or even dictate the outcomes,” EA keeps gamers “more engaged”—almost as if EA knowingly exploits an addiction.
EA’s purported motivation is profit. After buying the base game, gamers are invited to purchase loot boxes, which EA terms “player packs.” These packs unlock a player card, among other in-game assets or loot, which can then be used to enhance a gamer’s team. Sometimes the player card is a retired star. Other times it’s a more ordinary player. The gamer doesn’t know what he or she will get. It’s a gamble of sorts.
As asserted by the plaintiffs, EA “deprives gamers who purchase player packs of the benefit of their bargains.” EA allegedly does so by tweaking the difficulty level to diminish the impact of a superior player. “This [triggers] a self-perpetuating cycle,” the complaint charges, “since difficulty adjusting mechanisms make gamers believe their teams are less skilled than they actually are, leading them to purchase additional player packs in hopes of receiving better players and being more competitive.”
Worse yet, the plaintiffs insist, gamers become victims of EA’s version of reality. EA markets many of its sports video games as replicating actual sports to the greatest extent possible. For example, EA describes FIFA as featuring “unrivaled authenticity” with the “most authentic ever representation of the league.” Likewise, players depicted in EA games are intended to mirror their real-life counterparts. This underscores EA Sports’ famous slogan: It’s in the game.
Under this line of reasoning, gamers are led to believe they are purchasing a game “where the outcome of matches depends solely on the gamer’s competence and the strength of the players on his or her team, as compared to his or her opponent’s competence and team strength.” The plaintiffs accuse EA of secretly modifying gameplay features to frustrate gamers and tempt them into buying one player pack after another.
The case is before Judge Joseph Spero, the Chief Magistrate Judge of the federal district court in San Francisco. Judge Spero is also presiding over a minor league players’ pay class action against Major League Baseball.
EA—which faces a separate lawsuit over whether loot boxes violate California’s prohibition against slot machines—has not yet answered the complaint. The company’s answer is due on Dec. 1, though both sides recently expressed in a joint petition that, with Judge Spero’s blessing, EA’s deadline be extended to Jan. 11, 2021.
EA will surely deny the core allegation. The company will likely contend that gamers are aware that difficulty levels change within games. Such a phenomenon has been around since the days of the Atari 2600.
EA could also point out that gamers have options within games to make them easier. Likewise, gamers aren’t required to purchase player packs in order to play the base game or to take advantage of many of its features.
Further, EA could insist that gamers aren’t provided assurances that buying player packs guarantees any particular results. The company might assert that player packs are designed not to make a game “easier” or “harder” but to allow a gamer to play with a game-altering asset.
EA is also poised to cite its user agreement. It mandates that aggrieved gamers turn to arbitration, rather than the courts, and compels them to relinquish potential class-action rights.
The initial case management conference—where both sides’ attorneys will meet with Judge Spero (most likely by Zoom) and discuss the case—is currently scheduled for Feb. 12, 2021.
