Electronic Arts Sports Games AI Difficulty Adjustment Class Action
By Stephen Sharbaugh, GW 3L
(Editor’s Note: The following appears in Esports and the Law)
Artificial Intelligence (“AI”) has exponentially grown across the globe over the past decade. The ability of AI to collect huge sums of information and dissect that into a clear image or idea cannot be understated. AI is being used across various industries, including the video game industry. Electronic Arts, Inc. (“EA”) uses different forms of AI, coined Dynamic Difficulty Adjustment (DDA) and Adaptive Difficultly, in its games. While maybe intended to enhanced gamers’ experiences, these AI technologies are now the impetus of a class action lawsuit, Zajonc et al. v. Electronic Arts Inc., filed on November 9, 2020, claiming EA failed to disclose the impact of its AI technology on its users.
EA is widely known for its sports-simulation video games. Its most popular sports video game franchises are Madden NFL (Football), FIFA (Soccer), and NHL (Hockey). These video game franchises are some of the best-selling games in the world. For example, FIFA has over 33 million gamers worldwide, in more than 50 countries. Similarly, as of October 2020, Madden NFL 20 had about 8 million gamers on the PlayStation platform alone and NHL had about 2.5 million gamers in the U.S. across both the Xbox and PlayStation platforms. Unfortunately for EA, having such a vast number of users means more gamers qualify to be part of the ‘class’ in the class action suit (the class action lawsuit defines the “class” as all purchasers of the three above-referenced video game franchises from November 9, 2016 to the present).
In this matter, a group of similarly situated consumers of the EA sports games (referenced above) sued EA for its lack of disclosure in regard to its AI technology’s impact on in-game outcomes. The complaint, alleging consumer fraud and unjust enrichment, also defines a subclass of harmed persons: gamers who purchased a “Player Pack” from any of the EA sports games’ Ultimate Team mode. UT mode, available in Madden NFL, FIFA, and NHL, is the most popular mode among gamers. In UT, gamers are able to complete challenges and play online against others to build a customized team to their liking. In order to improve their customized teams, gamers can receive “player packs,” which allow gamers to receive randomized “player cards” to add to their customized teams. EA previously disclosed that in the quarter ending December 31, 2019 alone, it generated nearly $1 billion in revenue from in-game transactions, which included revenues from “player packs.” The randomized “player packs” closely represent attributes of real-life players in each sport (a player pack is made up of individual ‘player cards). Additionally, “player cards” are added to the UT mode, throughout the sport’s season, to represent high level performances of the real-life players. Thus, a real-life player may have three to four different “player cards” with varying attributes, giving UT mode an almost unlimited number of ways to introduce new “player cards” with improved attributes.
Although “player packs” can be purchased or awarded through in-game currency, these packs can also be purchased using real money. These “player packs” are typically purchased for the purpose of garnering better “player cards” for a gamer’s customized team in the hopes of having a better chance to succeed in online play and other in-game challenges. Gamers have hope only because these “player packs” do not guarantee receiving better “player cards” than a gamer currently possess; it is merely a gamble (a game of chance).
At the heart of the fraud case is the inclusion of EA’s AI mechanisms, DDA and Adaptive Difficultly. Specifically, the gamers claim that the “player packs” are misleadingly advertised, leading the gamers to believe a purchase might positively impact their winnings. Gamers allegedly perceive that solely a combination of skill and great “player cards” will ensure success. The gamers further claim that the AI technology adjusts in-game difficulty and, thus, the outcome of games played in UT mode. This, in turn, diminishes the value of the “player packs.”
In sum, the AI technologies are allegedly purposed with keeping gamers more engaged by not allowing the game to be too difficult or too easy. By keeping these gamers engaged, the complaint states that EA is able to more effectively market its “player packs” to gamers and as a result, make more money. While a gamer may try to improve his or her own skill in the game, purchasing “player packs” are seemingly a quicker and easier option to potentially improve their game outcomes.
The complaint pleads that these AI mechanisms deprive gamers of the benefit of both their purchase of the Madden NFL, FIFA, and NHL video games and their in-game purchases. Even for gamers who choose to not purchase “player packs,” the complaint maintains that games with these AI mechanisms, that can affect in-game outcomes, are less valuable than ones without such mechanisms. The complaint requests that EA disclose the presence and potential impact of DDA and Adaptative Difficultly in its marketing campaigns to avoid misleading purchasers. The complaint also requests that EA pay restitution to restore funds to gamers who have been unlawfully deceived in their purchases.
Ultimately, video game companies should be wary of how they utilize AI technologies. If such companies use similar adaptative difficultly mechanisms to the EA sports games, then it should ensure that it effectively discloses the presence of such AI technologies and its impact on game outcomes to its purchasers.
