The following are all BGG posts made about the new release Railways of England and Wales (designed by Martin Wallace and published by FRED in June, 2009) made within minutes of each other on May 26, 2009:
Bruce Murphy:
“Sounds nifty. Added to the magic autobuy list.
Just out of curiosity, wasn't there supposed to be a Wallace boycott of FRED?”
Breno Kummel:
My guess is that this was well under way before Martin Wallace got pissed off at FRED. Or maybe he decided not to be pissed off at FRED anymore.
Martin Wallace:
Still pissed off with FRED. This was already in the pipeline - contract already signed. Did ask for design to be returned but FRED declined.
Martin
Larry Levy:
Thanks, Martin. It's a shame--the game sounds very interesting.
June 24, 2009
Keith,
As far as I can see FRED are no longer selling Mordred, neither are Funagain. This leads me to believe that you have no copies left. As you have already paid for 77 that leaves 139 unpaid for. The charity that the game is supporting would find this money very useful in the next four weeks, as the World Transplant Games are being held in August. At $33 per copy that makes an outstanding amount of $4587. I would appreciate it if you could wire the money for the remaining copies immediately to the following bank:
Julia Wallace
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Yours
Martin Wallace
From: Keith Blume
To: Martin Wallace
Cc: Rick Soued
Sent: Thursday, July 02, 2009 7:35 PM
Subject: Re: Mordred
Martin,
In answer to your June 18 and June 24 emails, here is the accounting we owe you for the remaining 139 Mordred: 5 were damaged beyond repair in transit; 113 were sold and 21 remain unsold in our warehouse in Kentucky. They remain unsold because you cut us off from further sales efforts of Mordred in February when you specifically told us that you would make arrangements to pick up the remaining stock of the game at that time. Thus we owe you $3,729 for the 113 which have been sold (113 times $33). This Mordred "crisis" and urgency is strictly of your own making. Had you followed up at any time in the past 4 months, as you said you would, this situation would not be so urgent, as you suddenly have decided it is, in the present. We only got involved in the sales of Mordred to help you out, as a favor to you. We got nothing besides headaches and nuisance out of this gesture of help to you. At no time have you ever even said "thank you" for our efforts on your behalf. Not one expression of gratitude whatsoever. And now you seem to think that you have some right to bully us and threaten us "publicly" as well, for doing you a favor? You contend that we have "questionable business ethics" and then you threaten us in this way?
I do not see a need to threaten you, but as we are accounting for everything here, I would like to include our request for the Brass files that we have paid for, but yet in an e-mail from Amanda on May 20th, apparently you saw fit to remove those files from her possession and have them returned to you. According to item 5 in our Brass contract (highlighted here) we have paid for the Brass files. You have taken our property without permission. If you choose to keep these files (refusing our request for something we have paid for), the 1,000 pounds will be deducted from future royalties.
5. LICENSEE will pay LICENSOR a royalty of 6% of the net sales income (gross revenue excluding sales discounts, sales taxes and returns) for all units sold by LICENSEE.
Upon signature of this agreement, LICENSEE will pay to LICENSOR a non-returnable advance on royalties of 1,000 British pounds plus an additional 1,000 British pounds for the existing art/print/computer production files for the game. This advance will be credited against the first royalties earned under this agreement. The advance is non-returnable even if the GAME is never marketed.
For well over two years now, you have owed us a game design. You have acknowledged this debt to us in several emails dating back to 2006 and 2007, as well as in emails you sent to us earlier this year in February. You have been paid $5,000 (you actually said 5,000 pounds, shall we hold you to that?) for this new game design. When we asked about this still again in February, 2009, you told us to "sue you" for the $5,000 you thus owe us. We have determined that the far more reasonable, practical and fair approach is just to deduct the $3,729 we owe you for helping you with Mordred from that $5,000, leaving a balance of $1,271 that you still owe us.
Given that you have irresponsibly and unethically retained the $5,000 for work you never did and that you clearly never intend to do, you may use that money you have taken from us to pay the TSUK charity that you now suddenly claim has an urgent need--one that you have neglected to address for many, many months.
We will deduct the remaining $1,271 (this is assuming that you will return our Brass files to us) from upcoming royalties we owe you for Brass and ROEW as they come due. In the meantime, as dictated by you in February, we are continuing to await your instructions as to the disposition of the remaining 21 unsold Mordred that are in our Kentucky warehouse. You will need to reimburse us in advance for the packaging, shipping and storage of those units before we release them to you.
Yours,
Keith
hide details Jul 3 |
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Martin,
Please find my responses below.
Keith,
For the exchange below, Wallace’s remarks are in black italics and
Blume’s responses are in purple
I'm still rather amazed that you, or anybody else in FRED or Funagain,
FRED and Funagain are two very separate entities and have been for over two years now. I recognize that at the time we first started working on projects together in 2006, including the game design we had prepaid you for, FRED was a division of Funagain, but this has not been the case since May of 2007. I do not work for, nor do I in any way represent, Funagain. Funagain long ago turned over the Mordred money it collected to FRED. Funagain did not publish Age of Steam, FRED/Eagle Games did. To that end, your issues are with us and have nothing to do with Funagain, a situation you need to acknowledge.
are not able to comprehend that the reason why I'm so upset is that FRED went ahead and published one of my designs without my permission, and without even checking with me first - despite being in regular email contact about other projects.
The USPTO apparently saw it differently. Only after the USPTO ruling did we contract to publish Age of Steam. We did not get your permission because this was settled in a court and the ruling was unambiguous. In a similar vein, you must recognize that by creating a more streamlined Age of Steam design for Mayfair you were moving into the space that RRT was specifically designed to address. You certainly did not review this with us before you sold Mayfair these rights, even though they quite clearly infringe on the game (RRT) that Eagle paid you for and produced as well. We think you have no more right to be pissed off at us than we do to be pissed off at you for your potentially-infringing sale of the rights of this "light" AoS version to Mayfair. We opted to let this go when we first spoke to you about this in early 2007 because we felt it was more productive to focus on working together with you instead of working against each other. And yet when the roles were reversed in late 2008 and early 2009, you chose to go public with insults and accusations against us, and just recently, at the time of the release of Railways of England and Wales, when you could have stayed silent, you opted to publicly say that you were still pissed off at us, potentially damaging the sales of that product as well.
Brass - have you asked me for the files? Cannot seem to find an email to that effect. Anyway, were they not sent to you for the second edition? Do you not have them backed up?
In the previous e-mail we have asked you for the files, so consider that my on-going
request for the Brass files. Amanda edited the files for the second printing per our request. We were not provided with core files and did not feel the need to request the core files as we expected Amanda to be able to provide us with access to them as needed. Furthermore, we licensed the worldwide rights to Brass from you and yet, before this issue with Age of Steam ever came up, we learned from Pegasus, of all people, that Kosmos had been offered by you the rights to Brass 2, a lighter, more streamlined version of Brass. So once again, you put us into a situation where we licensed (or bought) a game from you, and then you offered a similar, or more accessible, version of the same game to another company without ever even mentioning this possibility to us. And these two instances occurred before we contracted with John Bohrer to produce Age of Steam. Do you really persist in contending that you are "amazed" at our behavior? Or that we have no right to be even more "pissed off" at you than you (publicly) state you are with us?
The deal with Eagle was £5000 upfront and a further £5000 when the design was completed.
We have no record of this. Our understanding when we bought into Eagle was that you had been paid 5000 pounds to deliver a third game, period. In the 2006 and 2007 email copies that we have between you and Glenn Drover and Jeff DeBoer, you confirm this obligation and you make no mention of further fees owed to you. Only in February 2009 did you begin to contend that you were owed more money. Glenn Drover has unequivocally told us that you were paid in full for this third design. There is no question--as you have made very clear--that you were paid 5000 pounds from us/Eagle to produce a third game and it is also equally clear, based on public statements about FRED that you have made—that you do not want anything to do with us or this third game. This certainly does not render the 5000 pounds you were paid to be "fictitious". Simply put, you were paid 5000 pounds by us/Eagle and you have done nothing to earn that money. As such, that 5000 pounds needs to be returned to us. We did not start off collecting the Mordred money thinking that this circumstance would arise. But it has arisen. We are not going to pay you still another $3,700 on top of the 5000 pounds you already owe us just because you have decided that you want nothing more to do with us. The 5000 pounds is a clear debt to us that has been acknowledged by you, so to now say it is "fictitious" is clearly not true. Your 5000 pound debt to us is just as real as the Mordred money we owe to you. And we will not pay that Mordred money to you until you pay us back the 5000 pounds or some other reasonable settlement is made. We have given you a fair, reasonable and expedient way to discharge part of the debt you owe us by paying that portion of it to the TSUK charity. You are clearly not "losing 5000 pounds on a deal because Eagle went bust." Eagle did not go bust, and you certainly know that given that you have been doing business with Eagle as a brand under FRED for the past three years. And you have not lost anything. You simply need to pay back the 5000 pounds you received from us/Eagle to design a game that, because of the present circumstances largely initiated by you, neither of us wants to continue to be a party to. Here are two other alternatives that we would consider to resolve this situation: 1) Submit the matter to the U.S. National Arbitration Forum or some such similar entity for resolution; 2) You agree, unambiguously and in writing, that we/FRED are authorized to deduct the 5000 pound advance we have paid you against all future royalties for Brass and for ROEW until such time as the 5000 pounds is paid back. Once we have this is in writing we will release the $3,700 +/- Mordred money to your bank account.
If you have another suggestion as to how to move forward, we will consider it, but at present, this is where we are; a 5000 pound debt you owe to us for a design not delivered, and a $3700 balance owed by us to you for Mordred. I assure you that I am at least as disappointed as you are with how things have turned out. You approached us with Brass as a last option when other companies did not have an interest in supporting you (or at least that game). We did support you, and as a print partner helped get Brass published. After that, we licensed Railways of England and Wales, followed shortly by licensing Brass outright. Shortly thereafter you and Rick worked extensively on the details of how to execute the Treefrog line. After agreeing in principal that we would fund that line, you opted to walk away from that proposal. My feeling (and it is just that, a feeling) is that you have always thought of us as a last option, not as a partner. We have paid our royalties and license fees to you accurately (as you have verified with Pegasus) and in a timely manner. Our actions have not prevented you from selling, nor getting published, the train game that you licensed to Mayfair against our best interests. And yet, in spite of all of this past history, you have chosen to deride us in a public forum on more than one occasion. This is a small industry with small margins and everyone who wishes to succeed in this industry needs to work hard to make it. Yet around midnight, on the eve of a national holiday here, I am futzing around with an e-mail, arguing with someone who not more than a year ago was at least a colleague if not a friend. Let’s work through this, and while we may not do any new projects together, we can make the existing ones as successful as possible and move on from here, focused on going forward.
Keith
hide details Jul 6 |
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For the exchange below, Wallace’s remarks are in black italics and
Blume’s responses are in purple
Keith,
Let's try to stick to the facts.
The USPTO decided in Bohrer's favour only because neither I nor Mayfair were prepared to pay the massive legal costs to fight the case. John had free legal support. The decision granted Bohrer the title trademark, which is not the same as the rights to the design. Any intelligent person can see that I designed the game and that I should have been involved in the negotiations over a reprint. The fact that at no point did you contact me about the game beforehand only leads me to believe that you knew I would not be happy about the deal.
These are not "facts" at all. They are strictly your opinions. And in our opinion, your opinions are not accurate. At the least, one certain fact is that we/FRED are the successors in interest to a contract wherein you, Martin Wallace, unequivocally sold the rights to "Age of Steam/Eagle Games variant" to Eagle Games for 10,000 pounds; SoE for 10,000 pounds; and a third game ("unnamed" per the contract)--for 5,000 pounds.
I took Brass 2 to Essen last year with the intention of presenting it to FRED. I chose not to when I became aware that FRED was going to reprint AoS. I think under the circumstances that was reasonable behaviour on my part.
This does not square at all with what Pegasus was told by Kosmos. It is curious that you bring this up for the first time 9 months later.
Mayfair approached me about the rights to Age of Steam at a time when Eagle were no longer trading.
Eagle Games suspended "normal" business for only three months--May, June and July, 2006--and even during that time Glenn was contactable. So are you saying that you sold the rights to Mayfair in one of those three months then? Even if this is true, you had sold the rights to virtually the same game once already, to Eagle.
What was I meant to do, turn down offers for the game while waiting to see if Railroad Tycoon was reprinted?
That's exactly what you should have done, and in fact Railroad Tycoon was very much still in print at the time, and Eagle Games was back in business, under the FRED name, in early August, 2006. By even bringing this matter up at all you are clearly acknowledging that you realize that you were bound to do so--contractually, and certainly ethically.
It's highly unusual for a company to pay the full amount for a game that has not been designed yet. I was paid £10,000 for Struggle of Empires and £10,000 for Railroad Tycoon. I was paid half of this amount to start work on a design with the balance to be paid on completion. I think Glenn may be a little forgetful on this point.
I would suggest that it is unusual for a game company to pay 5,000 pounds for a game that hasn't been designed period. Glenn doesn't believe he is forgetful on this point at all. In addition, in over two years of discussion with you about a third "unnamed" game, you have never produced anything related to it to us -- other than telling us you owed us this third game -- and never once (until Feb. 2009) did you contend that you were owed more money for it. Regardless, the fact remains that you were paid by us/Eagle for work you have never done, and given that you have terminated your relationship with us, we want the money you were paid to be returned to us.
The fact that you cc these messages to Rick Soued is enough to confirm that FRED and Funagain are still closely tied.
You included Rick on the start of this thread, and I do not see how Rick being cced on these e-mails ties FRED to Funagain -- but that is not really the issue at hand. While Rick might be the one and only link between FRED and Funagain, that certainly does not mean that Funagain and FRED are tied in any other way, nor that this issue has anything whatsoever to do with Funagain--it does not.
The money owed for Mordred is not my money. It legally belongs to the TSUK, which is a registered charity. You cannot use somebody else's money as a bargaining chip.
This is not "someone else's money", Martin. We had a verbal agreement with you, Martin Wallace personally, to help you with the sales of Mordred. We have no relationship whatsoever with TSUK. And you, Martin Wallace personally, owe FRED/Eagle 5,000 pounds for money you took for something you did not do. We offered to let you offset some of what you owe us by having you apply the TSUK money to the debt. We also offered to have you tell us in writing to apply the future Brass and ROEW royalties to this debt, and then we will pay you the TSUK money, an eminently fair proposal which you did not even bother to comment on.
You have not recently asked me for the Brass files. I was under the impression that you already had them from the first reprinting. I do not get involved in the technicalities of data files, so was not aware of what arrangements you had made with Amanda.
I don't see how this matters. We paid for the files, why did you take them?
I am willing to make the following deal. In return for the outstanding Mordred money and you sending the remaining copies by airmail to my home address, which should be done this coming week, I will provide the Brass files and regard your reprinting of Age of Steam as fulfilling my requirement to provide a further design to Eagle.
We have already paid you for the Brass files, it is specifically in the contract between us. And equally clearly, we are already party to a contract for and have paid you for "Age of Steam/Eagle Games variant". As to Age of Steam, we paid John Bohrer, the owner of Age of Steam property, for the license to publish that game.
We also paid for the shipping of Mordred from Ludo Packt to Essen and then to the U.S. You told us to stop selling Mordred and that you would arrange the pickup for the remaining copies -- that was four months ago. We agreed to your request then and the situation is still the same now--you will need to make and pay for arrangements for you to get the remaining Mordred copies. This ceased to be our problem or concern when you, arbitrarily and unilaterally, cut off your relationship with us for no good reasons whatsoever last February.
I know you are going to argue that you already have a contract for Age of Steam but the counter-argument is that you do not have one for Railroad Tycoon. Either way that you look at it you have printed more of my designs then you have contracts for, so therefore one of them was printed without a contract.
Incorrect. As stated previously, we are already party to a contract for and have paid you for "Age of Steam/Eagle Games variant". Please note that, per this contract, we own all "rights, title, interest of any nature, trademarks, trade names, and logos" to "Age of Steam/Eagle Games variant" in "all channels of any nature" and in "all places and territories of any nature." Eagle Games did not just pay to "print your design", we bought every aspect there is of "Age of Steam/Eagle Games variant”. I would also point out to you that the only "Age of Steam" logo in existence at the time this contract was signed was the logo that you contested our right to use last January.
In addition, we paid a substantial sum to John Bohrer, the owner of the game Age of Steam, for the license to publish that game.
I am not prepared to submit to arbitration on the grounds that a) it will take far too long for a decision to be made, and b) if there are any costs involved I will not be able to meet them, and so will be in exactly the same position as the case with the USPTO.
Perhaps this is true, but perhaps it is not. We do not think that this is a long or expensive procedure. Regardless, I think you need to be far more willing to work with us on the other proposals we have made. You caused and precipitated the present problems we are having. You owe us considerably more than we owe you. You will need to come up with some reasonable proposal(s), certainly not the "deal" you proposed above, or you will need to accept one of our far more reasonable counter-proposals. In addition to owing us the 5,000 pounds, you have also effectively taken and are withholding files (for Brass) that we own, and you have stopped us from selling Mordred and yet you expect us to air-mail the remaining copies back to you at our expense. Our only asset in hand is the money we owe you for Mordred. We await your reasonable response. I wouldn't recommend rushing off to make public statements. You have already targeted us with false negative statements previously. Given that your actions are hardly above reproach in this matter, I think it would be better for all of us if we work toward a fair solution to this situation without threatening further public statements.
Keith
Date: Tue, Jul 7, 2009 at 12:54 PM
Subject: Eagle contract
To: Keith Blume
Keith,
Could you please confirm that you have a copy of the contract I made with Eagle by sending a copy to myself. Unless you are able to do so I can only presume that you do not have one and that the contractual claims you have been making regarding Age of Steam are not backed by any evidence.
Yours
Martin
July 7, 2009
Hi Martin,
You may presume whatever you want. I think it would be wise for you to presume that the language I sent you is directly from the contract. In the meantime, I wrote an e-mail to you early yesterday that addresses issues and needs answers from you. Hopefully we can work through and resolve the issues that divide us in a constructive way. For our part, we are trying to determine what a reasonable course of action might be now that it has come to light that you do not have a copy of the contract that is the basis for our legal relationship with regard to Age of Steam. We need to consider some of your previous statements—public and otherwise—in light of that knowledge. I will get back to you about the contract after we have given the matter due consideration.
Keith
July 11, 2009
Dear Martin—
Your recent emails have prompted us to take a serious look at the Purchase Agreement that you signed with Eagle in March, 2005, which was assigned to FRED pursuant to a sale of substantially all of Eagle’s assets in August, 2006. Upon looking more closely at that Agreement, we decided that we needed to seek legal counsel as well.
Upon further close review and counsel, it is our well-considered opinion that you are in serious breach of the contract that is that Agreement, in more ways than one. Perhaps the most serious violation you have committed is that you had absolutely no right to contract with Mayfair games to produce what has turned out to be their June, 2009 release called Steam. On this point, the contract could not be more clear. The purchase that Eagle made from you is for “all right, title and interest in and to the board game Age of Steam Eagle Games variant and all its iterations …including all of its rights, ideas, concepts, and rules.” For the sum of 10,000 British Pounds Sterling you sold to Eagle all iterations, rights, ideas, concepts and rules and to further clarify what that meant, this language was added: “The parties hereto understand and covenant that the rights to Age of Steam—Eagle Games Variant described in this agreement and transferred herein to Eagle shall be solely Eagle’s property without claim by Sellers except that the parties understand and agree that Sellers shall maintain the right to publish, manufacture, and sell the board game, Age of Steam, in its current form, with its current publisher or published by the Sellers in its current form and in no other form or [by no other] publisher.” (emphasis and italics added)
The purpose of this language was very clear. You were not permitted, at any subsequent time, to re-design and sell or publish, still another version of any sort of Age of Steam (except for literally the same version that had been previously published). However, only one year later in 2006, you willfully ignored this covenant, thereby breaching this Agreement, when you sold to Mayfair a very similar variant and version of Age of Steam (which you and Mayfair initially even called Age of Steam 3).
You had no right to do this, and yet you did it anyway. You are now responsible for redressing the subsequent damages to us caused by this willful breach on your part.
Similar language is also included in this Agreement for the game Struggle of Empires for which Eagle also paid you 10,000 British Pounds Sterling for all “rights, ideas, concepts,” etc. It is our understanding that you are currently contracted with Phalanx Games and Mayfair Games and will soon produce a game called “Rise of Empires”. It will be necessary for you to deliver a production sample copy of this game, complete with all rules, to us so that we might determine if this production represents still another breach of contract by you similar to the one for Age of Steam above. Please provide such a sample and rules to us within 10 days from receipt of this letter.
Please note that the Agreement is also very clear in that you warranted that you were the owner of all trademarks (which by further definition in this Agreement included “logos”); and that you had no obligation to any other person or entity which had “rights or interests” with regard to these logos; including all of those logos related to Age of Steam which Eagle Games then purchased from you. And yet in February, 2009, you accused FRED/Eagle in at least one very public, written forum, and also privately, of stealing and misusing the very same “Age of Steam” logo that Eagle had purchased from you (for no small sum) by virtue of this Agreement in 2005. We now hold you responsible for the damage done by your publically-written and flagrantly wrong comments which were meant by you to cause harm, embarrassment and public humiliation of us in February of 2009.
You have committed still another flagrant and obvious breach of this Agreement as well. By the terms of this Agreement, by your own admission, and by that of Glenn Drover, the former President and CEO of Eagle Games, you have been paid 5,000 British Pounds Sterling “as and for the sole consideration for…a boardgame created by the Sellers and all its iterations including but not limited to the…ideas, concepts and rules of the game.” This is, of course, the so-called “third game” aka the “unnamed product”. As confirmed by both you and Glenn Drover, you were paid this 5,000 British Pounds Sterling consideration for this unnamed product in 2005. The contract is equally clear this is the full and total sum that you were due to be paid. There is absolutely no mention that you will receive an additional 5,000 British Pounds Sterling after you submit a complete and acceptable game to Eagle, as you have been contending for the past several months. You have already been paid in full, long since, the entire sum of 5,000 British Pounds Sterling specified in the Agreement for a game that you have yet to submit to us. Furthermore, the language of the Agreement is equally clear that “delivery of such unnamed product…shall be on or by December 31, 2006” and that “the parties also agree that Eagle shall have first right of refusal on all designs created by Sellers during the term of this agreement” [i.e. through December 31, 2006, or as extended due to failure to comply, one assumes.] Partners of Eagle and FRED were in written communication with you on various occasions in mid to late 2006 and early 2007 reminding you of this obligation, which you continue to acknowledge to this day, and yet you have never performed upon this obligation. In fact, according to Glenn Drover, throughout the remainder of 2005 (10 months) and through the first half of 2006, you submitted only one design to Eagle, which they rejected. This was in spite of the fact that clearly you were producing other designs in that same time period and since--as your ludography clearly shows. Eagle did have a “disruption” of its “normal business” in May, June and July of 2006, but at no point did it ever “go out of business”, and in fact it still existed (and exists today) when substantially all of its assets were purchased by FRED (dba Funagain at that time), in August of 2006. You received and answered email from FRED representatives and from Glenn Drover in November, 2006 specifically related to your outstanding obligation to produce this game design—an obligation which you accepted and acknowledged at that time, and in the present as well. In short, you have been paid the sum of 5,000 British Pounds Sterling to design a game for Eagle/FRED which you have failed to design/produce. It is well beyond the date when that game was to be submitted. You have frequently breached your contractual obligation to submit all of your designs for first refusal to Eagle/FRED. It is now, and has been for some time, your responsibility to, at the very least, refund the full 5,000 British Pounds Sterling to Eagle/FRED that you received for services that you have essentially not even attempted to render.
Recently, in spite of the contract you executed with FRED for the game Brass, wherein, for the sum of 1,000 British Pounds Sterling you sold the “art/print/computer production files for that game” to FRED, you have, on more than one occasion, denied FRED access to those files, going so far as to remove them from the custody of Solid Colour, LTD and its Director, Amanda Cummings, who had held those files for use by FRED, with the express instruction and purpose of withholding them from FRED. You are asked to deliver those files, undamaged and entirely useable, within the next 48 hours, to me, Keith Blume, on behalf of FRED, which owns those files and has paid you good and valid consideration for the same.
As you know, venue for this Agreement is clearly specified as the State of Illinois. We are fully prepared to hire counsel and file a breach of contract suit against you in the State of Illinois. This is likely to be an expensive suit for you to defend, and any defense will be to no avail—given that the issues and the text of the Agreement are short and that it is very clear that they will resolve in our favor. For our part, we would prefer not to litigate these matters, and we would, unlike you, generally prefer to not air our grievances with you in public, nor attempt to humiliate and demean you—as you have done to us. In the past we have valued your abilities as a designer, and we know that many in the gaming community still do. Our intent is not to diminish your reputation as a designer in the eyes of the game community public, but rather it is to encourage you, without forcing us resort to litigation against you, to make a reasonable restitution of what you owe us as a result of the many breaches you have caused of this Agreement and the misguided public statements you have made about us as well.
To that end, we are prepared to offer you the following remedies in an effort to resolve the above issues. Please know that should you fail to accept and agree to these remedies (which we consider to be settlement-type compromises of a more-than-fair nature under the circumstances), within the next 10 days, that we will not hesitate to retain counsel in Illinois and bring suit against you. We want to make it perfectly clear that we have no intention of filing a suit against Mayfair Games in this matter, they are not at fault here. The suit would be filed only against you, and we will seek FULL remedies PLUS all allowed punitive damages resulting from your various breaches -- and not just the partial remedies and compromises represented by the following:
1) You will agree to surrender 50% of the initial compensation (deposits, advances, fees, royalties, etc.) that you have received and/or are due from Mayfair and any other company that has licensed the game, for selling them the rights, license to print, etc. for the game which has resulted in STEAM (and all of the clones, expansions and iterations of it both in existence and contemplated). This is to be true now and ongoing indefinitely, i.e. we want to arrange matters so that Mayfair, and any other appropriate parties (at minimal or no cost or additional expense to them) will send 50% of all royalties (and statements) due to you, directly to us from this point on. We will also need to get a copy of your complete contract with Mayfair within the next 10 days as well.
2) You will refund the 5,000 British Pounds Sterling (calculated at March, 2005 currency conversion rates, 1.9235USD = 1 Pound), i.e. $9,617, that you received from Eagle/FRED for designing the “unknown name” third game which you never designed nor submitted, within the next ten days. We will allow you to partially offset this sum by applying the $3,729 that we owe you from the past sales of Mordred. (As an aside, in the next 10 days, you will also need to make the arrangements we have discussed for you to have the remaining stock of Mordred picked up from our warehouse and shipped to you--all at your expense, and paid in advance.) We have also told you that we would allow this $9,617 refund (net of the Mordred credit) to be used as an offset to all future royalties we might owe to you for Brass and for Railways of England and Wales, until such credit to us expires as a result of sales of those two games. You must recognize, however, that all future royalties, especially in light of the advances we have already made to you, may be insufficient to cover your debt to us, and that ultimately you may still owe us a remainder of the debt not covered by the application of future royalties to this debt. You will agree in advance to discharge that debt within 30 days of written request from us in the future when/if (in our sole opinion) it is ascertainable that the royalties are insufficient to cover the remaining debt.
3) You will, as mentioned above, surrender the Brass art/graphics/computer files to me, Keith Blume, immediately.
4) You will supply us with two prototype copies of your so-called “Brass 2” variation/expansion of Brass that you have been circulating and you will give FRED/Eagle the first right of refusal to produce the worldwide version of this game. The contract for this would be modeled after the Brass contract we already have with you. Please consider this to be compensation for the derogatory remarks you have made and public humiliation you have caused us and continue to threaten us with; as well as a show of thanks from you for us helping you with Brass, Mordred, advice on Treefrog, finishing the ROEW design with no help from you, and the general positive support we, as Eagle Games, Funagain and FRED Distribution have shown you for over ten years—frequently with no acknowledgment or gratitude shown by you whatsoever.
5) You will get a production sample copy and rules of Rise of Empires to us within 10 days.
6) You will write several retractions for us to be entered onto the Boardgamegeek site within the next 10 days. We will work with you on the text of these retractions and we will approve a draft of each of them before they are entered onto the BGG site, or any other places we deem appropriate. At the least there will be a retraction of your February Age of Steam thread where you called us “stupid” amongst other things, and wherein you hold forth at some length about how you would no longer be doing business with us, etc. In addition, there will need to be a specific retraction of the recent Railways of England (ROEW) thread you posted contending you were still “pissed off” at us. We will need for you to withdraw that and tell people that you support this game—your own design of course—and that they should enjoy it and the rest of the ROTW series with your blessing. We will also want (at least) a third thread posted on the FRED company link at BGG supporting our work with you in the past and the future. Finally we will want a statement from you to be posted in Board Game News that covers much of the same ground as the above three BGG threads as well. There may be the need of posting further threads by way of “damage control” necessitated by comments you have made, and we want your assurance that you will cooperate with us in making those statements as requested by us. Our intent here is not in any way to embarrass you. We want these statements/retractions to be upbeat and positive and not recriminatory in any way. We are not the least bit interested in diminishing your reputation, in fact quite the opposite is true given that we are somewhat reliant on your ongoing positive reputation. But we will tolerate no more derogatory public comments from you of any sort about FRED/Funagain/Eagle, etc. given that they were unfounded to begin with and continue to be so. We want the public perception to be that “all is forgiven between us” and that we will all live happily ever after from now on.
It is unfortunate that things have reached this state between us, Martin. We were not looking for this to happen but we have had next to no control over the various actions you have taken, and not taken, and statements that you have made, that bring us to this point. Please have no doubt, however, that we will immediately seek legal redress of your various breaches, and legal restitution to the fullest extent, should you fail to agree to the reasonable list of requests and settlements that we have made above. We look forward to your prompt reply, so that we can move ahead expeditiously with the resolution of these matters.
Sincerely—
Keith Blume, Managing Director, FRED Distribution, Inc.
July 13, 2009
Dear Keith,
I am happy to consider your proposals if you can meet the following conditions:
1. provide full copies of all contracts that existed between Eagle and myself,
2. remit the money outstanding for Mordred. Once again, this is charity money. Those people who purchased the game did so on the understanding that the money would be passed on to the charity in question.
I am also happy to provide the necessary files for Brass if you can meet the following contractual requirements:
1. you need to seek my permission, in writing, to sublicense the game, as per contract.
2. You need to send me the ten free copies of Brass, as per contract. I have no record of any such games being sent to me.
3. You need to send nine copies of Railways of England and Wales to add to the one you have already sent, as per contract.
I'm sure once you have met these requirements we can sort the various issues out in an amicable manner.
Yours
Martin
July 15, 2009
Dear Martin,
We really do not believe you are in a position to impose conditions on us, quite the opposite in fact. You called us "stupid" in a very public forum in February, and yet you did not even retain a copy of this critical contract? You tell us that we have "questionable business ethics" and yet you willfully breached this contract barely a year after you signed it--at great financial benefit to yourself? And you say that we have "low morals" and yet you take and withhold the Brass files that we have paid you for? We will need to see immediately some convincing retractions of your February and May emails on BGG's Age of Steam and ROEW threads as well as the other retractions we asked you for before we send you a copy of the contract, which we will do promptly upon seeing these retractions, provided they are sincere.
2. remit the money outstanding for Mordred. Once again, this is charity money. Those people who purchased the game did so on the understanding that the money would be passed on to the charity in question.
The people who bought the Mordred game were buying a board game they wanted to buy for fair market value, they were not making a charitable contribution. Perhaps you felt that you were going to make a personal charitable contribution of the proceeds, and we are still suggesting that you can do so. The problem is that before this situation ever came up, you personally defaulted on a $9,617 obligation to us, which you now owe us. We are not about to send you $3,729 personally, which is precisely what you asked us to do, when you already owe us at least $9,617. You will need to subtract the $3,729 from what you owe us and make that donation yourself from the money you have already taken from us. You will also need to agree in writing to allow us to credit the $5,888 difference that you will continue to owe us against all future Brass and ROEW royalties.
I am also happy to provide the necessary files for Brass if you can meet the following contractual requirements:
1. you need to seek my permission, in writing, to sublicense the game, as per contract.
Per your July 14, 2008 e-mail you gave us the approval for Pegasus to do their edition of Brass. On February 25, 2009 we informed you in writing that QWG was going to license the Dutch and French editions of the game later in 2009. Given that we did inform you of our intent to sublicense to QWG and that you did not respond to us (though you did respond to other points in the same email) and given that your consent could not be "unreasonably withheld" anyway, per the terms of our contract with you, we proceeded ahead. Thus we have already complied with the contract between us as to sub-licensing and we do not intend to do so again at this time.
2. You need to send me the ten free copies of Brass, as per contract. I have no record of any such games being sent to me.
I had requested that these games be sent to you from JKLM many months ago. We have had no reason to think that this had not already been taken care of. Now aware of the situation because you have informed us of this for the first time herein, I will make arrangements to get your copies to you ASAP.
3. You need to send nine copies of Railways of England and Wales to add to the one you have already sent, as per contract.
Your copies will be sent to you very soon. As you know, this game only just recently arrived in the U.S. three weeks ago.
I'm sure once you have met these requirements we can sort the various issues out in an amicable manner.
So we have already met your first requirement above and we will meet your other two when we ship out the sample copies of the two games to you within a matter of days. We would appreciate it if you would act just as quickly on the items we have asked for. For instance, we want you to immediately send us the Brass files you have taken and withheld from us. Then we will also look forward to resolving the rest of the issues between us quickly and amicably indeed. Your prompt good faith in complying with our requests above, and the requests made in our July 12 email to you, will be appreciated.
Keith
July 16, 2009
Hi Keith,
If you really want the Brass files then you are going to have to pay for the outstanding copies of Mordred and ship the remaining copies back to my address in the UK at your expense. That's my final position. I would suggest that you make a decision quickly as from the 25th July I will be out of the country for six weeks.
Yours
Martin
FRED further notes:
This is the first time that Martin told FRED he was leaving for 6 weeks on July 25. We knew nothing whatsoever of his planned six week holiday until July 16, when we received this email. Before that date, our lawsuit against Martin was already being prepared since it seemed very unlikely (given his previous intransigent, belligerent and unreasonable attitude) that he was going to comply with the various requests we made in our July 11 letter to him. In that letter, we gave him 10 days to respond to our requests for settlement, or to face a lawsuit. On July 20, ten days later, the lawsuit was filed and he was served on July 22, twelve days later.
Martin immediately displayed a copy of the complaint on his Warfrog website and a day later issued a libelous and false public statement that we had fraudulently added pages to the 3/7/05 Agreement at issue. You can still look up the copy of the Complaint on the Warfrog website, but there is much more information concerning the rest of what followed in further documents which follow here on this site.
Glenn Drover Responds to Wallace’s Claims in the FRED Lawsuit
This excerpt is from the Board Game News website in late July, 2009:
In late July 2009, U.S. game publisher FRED Distribution filed a lawsuit against UK designer Martin Wallace, claiming that Wallace had breached the terms of a contract he had signed with Eagle Games in 2005, FRED having taken ownership of Eagle Games in 2006. The specific claims are that (1) Steam, a Wallace design published by Mayfair Games in 2009, is an unauthorized iteration of the “Age of Steam-Eagle Games Variant” that Eagle purchased all rights to in 2005 and (2) Wallace was paid £5,000 for a game design that was promised but never delivered.
Shortly after a news item about this lawsuit was posted on BGN on July 23, Wallace posted the following note in a BoardGameGeek thread:
I do not want to make too many comments about the case but there is one very important issue which people should be aware of. I do not have an original copy of the contract as it was lost during a house move. The contract included with the summons is a copy of a fax that I sent from a friends fax machine, Jane Longden. It seems that even FRED do not have an original copy of the contract. Note that the second and third pages of the contract do not have her name as a header. The reason is that these pages were not part of the original contract. They have been added subsequently by FRED. No designer would ever sign up to the clauses in those two pages.
Make of that what you will.
I asked Glenn Drover, who used to head Eagle Games, to comment on Wallace’s claim and he issued the following statement:
I was the Founder, President, and CEO of Eagle Games at the time the March 7th, 2005 Purchase Agreement was signed between Eagle Games and Martin Wallace. That Agreement with Martin Wallace is the subject of the breach of contract suit filed by FRED Distribution against Martin Wallace on July 20, 2009. The Agreement bears my signature, as well as Martin Wallace’s. The copy of that Agreement, which is attached to the Complaint, and has been posted by Martin Wallace to his website, is identical to the Agreement that I sent to Martin Wallace on March 4th, 2005. Martin Wallace subsequently signed and faxed that Agreement to me (signature pages only) on March 7th, 2005.
I have recently accessed the laptop that I used at Eagle Games and that contains archived e-mails between Martin Wallace and I pertaining to the negotiation and execution of this Agreement. I am providing these e-mails to Boardgame News and to both parties involved in the dispute.
(Note: For reference I have entered dates above the e-mails as needed. The e-mails are in Windows Outlook, and in some cases the dates are not referenced in the body of the e-mail.)
With regard to the payments made by Eagle Games to Martin Wallace, and what was purchased: Martin was paid 25,000 GBP (3,000 prior and 22,000 upon signature of the agreement) in exchange for outright ownership of the designs and mechanics for Struggle of Empires (which I wanted to utilize in Conquest of the Empire II), a simplified/ streamlined design based on the Age of Steam design (which I initially used in Railroad Tycoon: The Boardgame and planned to potentially use for other non-licensed games), and a product to be named later (Martin was to give Eagle ‘first right of refusal’ on all games until we accepted one). The 25,000 GBP was the complete payment for these three games. There was no additional payment envisioned or discussed.
Glenn Drover
July 27, 2009
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I've just been dragged into this and I'm not liking what I've seen. I'm not a party to the lawsuit, but had unique access to critical documents and communications that Mr. Wallace conveniently lost.
This entire affair is unfortunate. I think that Mr. Wallace showed extremely bad judgement in airing his dirty laundry to the public rather than trying to work out a solution. Apparently he felt that trying to damage the reputation of a publisher that he worked with was a good tactic, even though they had tried to work with him to solve the problem that he created when he sold a design that did not belong to him.
It also seems at the very least unethical that Mr. Wallace would have sold a design to the good people at Mayfair that he had already sold to Eagle. (Quite convenient that he 'lost' the contract). The substantial check that he was sent was not so easily lost. Glenn Drover 8/6/09
FRED isn't some big faceless company, they're just a few people like Martin trying to make a living in this business by providing boardgame fans with good games to play. It seems like many of Martin's 'fans' feel like he's being oppressed, and have said some pretty nasty things in these forums as well as in emails to FRED. The truth is that Martin is the one who has acted unethically by selling a design that doesn't belong to him to Mayfair, and by wrongfully accusing the good people who work at FRED of forging documents, and flat out lying about the intent of the agreement by claiming that he never sold the rights to the design.
I'm here to tell you that he needed alot of money at that time (way more than a boardgame designer usually gets paid)... so I tried to find a way to justify paying him that much. The only way that I could was to purchase the rights to the design (the simplified Age of Steam) so that we could use it in future games, as well as Struggle of Empires, and a third game to be named later.
The emails and the agreement itself all show this pretty clearly, so if this does go to court, I don't like Martin's chances. ...and as for FRED, they're only trying to protect the assets that they own. If Martin had any sense, he'd stop trying to win some PR battle on BGG and try to work things out. Posted by Glenn Drover 8/14/09
But it's quite alright for Martin to post and accuse FRED of falsifying the contract? What do you think that does to FRED's business and the public's perception of their company? What do you think Martin's intentions were when presenting that argument on the internet and not in a court of law, with proof to back his claims up?
Perhaps Glenn is responding to all and sundry on this website because he feels, being in a position of having insider knowledge of the situation, that they are being unfairly attacked.
And honestly, it makes absolutely no sense to me for FRED to have doctored up a contract. They make more money selling board games than they do on lawsuits over $10,000 and 15,000 pounds. But does that mean, if their position is true, that they should simply give these payments to Martin as a gift? Why, "for the good of the gaming hobby"? Posted by Erin O’Malley 8/16/09
Hello neighbor (Assuming you still live in Plainfield, IL like I do!). I remember driving past EAGLE GAMES nearly every day.
Anyway, I work with professionals who write contracts for a living and still get confused over what they thought was in the contract vs. what was said verbally etc. etc.
Mr. Wallace is a game designer first and foremost. I wouldn't be suprised if his memory and/or understanding of past events was in fact different from factual reality. That doesn't necessarily make him unethical. It's quite possible neither party is being deceptive or dishonest here and both are instead fighting for the truth as they genuinely believe it to be.
As you yourself have pointed out, a contract generally doesn't get written just once. It goes through multiple emails, iterations, modifications, and in many cases they are vastly different from each other. Add several years onto things and its quite reasonable people who don't read/write contracts for a living don't entirely remember which details were or weren't in the final contract or exactly what they meant (Since those who DO do it for a living can't seem to keep things straight either). Now add to all that the possibility that no lawyer representing Mr. Wallace directly was involved at the time nor did one explain all the legal ramifications in the short and long term (or did one?)
I do agree this is a matter that should have been resolved privately and, even at this point, certainly outside of the courtroom.
Posted by Jeff T on 8/15/09
Hi Neighbor,
Your post is spot on. It is incredibly difficult to remember what was agreed to a while ago. That's supposed to be the purpose of contracts... to keep track for us.
You're also right on about the fact that interpretations of what is agreed upon can be very different. To this end the email thread leading up to the agreement is a great indicator of the intent of the parties (and is in this case).
So my problems with how Martin has acted include:
1) 'Losing' the contract and forgetting the terms when he thought no one would know any better, and then reselling a game that he didn't own. (While I don't know the first part for sure, it seems pretty convenient. The second part is a fact and the crux of the matter).
2) When he was contacted by FRED about the issue, instead of working with them to solve it, he threatened to ruin their reputation on BGG, which he then attempted to do. (This is what has me really angry with him and why I posted here. I hate that his bad action was having the desired effect).
If you're ever up for some gaming, send me an email: gdrover1@comcast.net
Cheers,
Glenn posted by Glenn Drover on 8/18/09
DorianGray wrote:
Alright how in anyone imagination is $10,000 a LOT of money according to FRED? I read the court summons on the Warfrog site. Martin needs 10x that to live on. This is going to be settled in the UK courts or US ones.
I feel really sorry for Martin Wallace, he's been completely ripped off by everyone on the block like Winsome Games, Eagle Games, and now FRED. Martin isn't the smartest businessman on the block - he's just a game designer with a passion.
And all these Sharks take advantage of him and rip him to pieces for it. Dorian Gray 8/16/09
O.K. one more...
* It wasn't $10,000... it was 25,000 GBP (or $50,000 at the time). That is a ton of money in anyone's book.
* The 'Sharks' are the ones that have paid Martin good money for boardgame designs (!).
They treated him well (I know I did). Then the 'Sharks' risked alot of money producing, shipping, and marketing Martin's designs so that they could make a living doing what they loved and hopefully feed their kids. Martin's investment is mainly his time. He risks little and gets paid by the 'Sharks' as a result of their investment and sweat.
After this, the 'Sharks' won't make this mistake again. Glenn Drover 8/18/09
I feel really sorry for Martin Wallace, he's been completely ripped off by everyone on the block like Winsome Games, Eagle Games, and now FRED. Martin isn't the smartest businessman on the block - he's just a game designer with a passion.
And all these Sharks take advantage of him and rip him to pieces for it. D. Gray 8/16/09
A few months ago, I shared the same sentiment. Since then, Martin has gone public with accusations questioning the honesty and ethics of his former business partners that he apparently can’t prove (“the dog ate his homework”). Then, another credible person has come forward in response, a person who I imagine is offended by the very public and very damning accusation.
I’m inclined to begin to question Martin’s ethics rather than just his business sense. At this point, if I were a boardgame publisher, I certainly wouldn't deal with him on a handshake...
Posted by Peirce Ostrander 8/17/09
My two cents are that both parties have flaws and have behaved badly at times in the last several years. I don't think this necessarily makes them deserving of contempt.
For me, apologies and explanations go a long way. If Martin Wallace settles with FRED out of court and publicly says "it was a stupid and false thing to say and FRED has been basically fair with me," it would repair both FRED's reputation and his own.
If FRED were to explain the rationale that went in to their pricing, or apologize for their sloppiness with print jobs, I'd say "well, at least they were honest about it."
In any case, duking it out in court, as well as in the court of public opinion, is just making both of them seem less ethical and honest.
Ben Smith 8/20/09
FRED has not duked it out in public, Martin has. FRED did not publicise the suit, Martin did. FRED did not publish the charges, Martin did. FRED did not claim that the contract was falsified, Martin did. I could go on and then on some more, but the pattern doesn't change. FRED has (wisely) remained entirely silent on the entire affair. Martin and his associates have not. J.C. Lawrence 8/20/09