The 6Th U.S. Circuit Court of Appeals has affirmed a district court’s decision to dismiss a lawsuit brought by ten former college athletes, who claimed that the networks and conferences profited from their names and likenesses without their permission.
In so ruling the panel of judges called the plaintiffs’ argument — that “under Tennessee statutory and common law, college players have a ‘right of publicity’ in their names and images as they might appear in television broadcasts of football or basketball games in which the plaintiffs participate … a legal fantasy.”
The plaintiffs, led by former Vanderbilt safety Javon Marshall, initially filed their claim in 2014, naming ESPN, CBS, NBC, ABC, Fox and the Southeastern Conference and others as defendants.
While acknowledging that “college basketball and football, particularly at the Division I and FBS levels, is (a) big business where the plaintiffs’ efforts on the court and field lead to untold riches for others,” the district judge concluded that insufficient evidence had been put forth to “establish that the plaintiffs are entitled to compensation for performing in televised games.”
That would be too broad an ask.
“The court is not called upon to address the larger picture of whether, as a matter of recognition, equity or fundamental fairness, student athletes should receive ‘pay for play.’ Nor is it the court’s task to pass on the wisdom of the NCAA’s eligibility rules that bar compensation, or whether those rules capture reality, given the present nature and environment of college sports. The court expresses no opinion on those issues.
“Rather, the court’s sole task is to determine whether the present plaintiffs have alleged sufficient facts or stated a viable claim that they are entitled to monetary compensation because they play in televised games. The court finds that the plaintiffs have not done so under any of the theories that they set forth.”
The plaintiffs appealed, but found little relief from the 6th Circuit.
“Specifically, the plaintiffs’ statutory claim under the Tennessee Personal Rights Protection Act is meritless because that Act expressly permits the use of any player’s name or likeness in connection with any ‘sports broadcast,’” wrote the panel.
“And the plaintiffs’ common-law claim is meritless, as the district court rather patiently explained, because the Tennessee courts have never recognized any such right and because, in the meantime, the Tennessee legislature has spoken to the issue directly.
“The plaintiffs’ case goes downhill from there. Their claim under the Sherman Act is that the various defendants have engaged in a horizontal scheme to fix at zero the price of the plaintiffs’ putative rights to license broadcasts of sporting events in which the plaintiffs participate. That claim is meritless because, as shown above, those putative rights do not exist.
“That leaves the plaintiffs’ claim under the Lanham Act, whose relevant provision bars the unauthorized use of a person’s name or likeness in commerce when doing so ‘is likely to cause confusion’ as to whether the person endorses a product. 15 U.S.C. § 1125(a)(1)(A). The theory here is that if, say, ESPN shows a banner for ‘Tostitos’ at the bottom of the screen during a football game, then consumers might become confused as to whether all the players on the screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the theory itself does.”
Javon Marshall, et al. v. ESPN, et al.; 6th Cir.; Case No. 15-5753; 8/17/16
John Parker Branham, Stephen J. Zralek, Bone, McAllester & Norton, PLLC, Nashville, TN, Patrick D. McMurtray, McMurtray Law Firm, PLLC, Christiana, TN, Richard Manson, Manson, Jones & Whitted, Ronald A. Stewart, Stewart, Johnson, Conner & Manson, LLP, Nashville, TN, for Plaintiff.
Daniel Alexander Richards, Evan R. Chesler, Roger G. Brooks, Joe Wesley Earnhardt, Stefan H. Atkinson, Cravath, Swaine & Moore LLP, New York, NY, Joel D. Eckert, Samuel David Lipshie, Bradley Arant Boult Cummings LLP, Nashville, TN, Eric S. Hochstadt, James W. Quinn, Yehudah L. Buchweitz, Weil, Gotshal & Manges, New York, NY, Robert Dale Grimes, Jeffrey P. Yarbro, Bass, Berry & Sims, Nashville, TN, Arthur Burke, Dana Meredith Seshens, James W. Haldin, Davis, Polk & Wardwell, New York, NY, Kelli L. Sager, Nathan E. Siegel, Levine Sullivan Koch & Schultz, LLP, Carl R. Metz, John E. Schmidtlein, Kevin T. Baine, Thomas G. Hentoff, Williams & Connolly, Washington, DC, Hal D. Hardin, Nashville, TN, Andrew J. Thomas, David R. Singer, Jenner & Block LLP, Los Angeles, CA, Kenneth L. Doroshow, Jenner & Block, LLP, Washington, DC, Richard L. Stone, W. Scott Sims, Sims Funk, PLC, Nashville, TN, D. Erik Albright, Gregory G. Holland, Smith Moore Leatherwood LLP, Greensboro, NC, David Alexander Fardon, Harwell, Howard, Hyne, Gabbert & Manner, P.C., Nashville, TN, Jonathan P. Heyl, Smith Moore Leatherwood LLP, Charlotte, NC, Andrew S. Rosenman, Britt Marie Miller, Mayer Brown LLP, Chicago, IL, Jay Scott Bowen, William V. Parsons, III, Shackelford Bowen Zumwalt & Hayes, Nashville, TN, Richard J. Favretto, Mayer Brown LLP, Washington, DC, Amy D. Fitts, Polsinelli P.C., Kansas City, MO, Caitlin J. Morgan, Leane K. Capps, Polsinelli PC, Dallas, TX, J. Gregory Grisham, Reid Daniel Leitner, Leitner, Williams, Dooley, and Napolitan, Nashville, TN, Jacquelyn Ferry, James N. Bowen, John R. Jacobson, Riley, Warnock & Jacobson, Nashville, TN, Jennifer L. Jones, Sarah Kroll—Rosenbaum, Scott P. Cooper, Proskauer Rose, LLP, Los Angeles, CA, Bradford David Box, Rainey, Kizer, Reviere & Bell, P.L.C., Jackson, TN, Bradley G. Hubbard, Brian E. Robison, Robert C. Walters, Gibson, Dunn & Crutcher, LLP, Dallas, TX, John S. Hicks, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN, Amy J. Everhart, Everhart Law Firm PLC, Nashville, TN, Daniel M. Mayeda, Louis Peter Petrich, Leopold, Petrich & Smith, Los Angeles, CA, Maria A. Spear, Everhart Law Firm PLC, Nashville, TN, Samuel D. Gregory, W. Scott Welch, Walker W. Jones, III, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jackson, MS, Robb S. Harvey, Todd Ryan Hambidge, Waller, Lansden, Dortch & Davis, LLP, Gail Vaughn Ashworth, Wiseman Ashworth Law Group PLC, Nashville, TN, Grant Kojis Schmidt, M. Brett Johnson, Thomas M. Melsheimer, Thomas B. Walsh, IV, Fish & Richardson, P.C., Dallas, TX, Aubrey B. Harwell, Jr., James Franklin Sanders, James Isaac Sanders, Neal & Harwell, Nashville, TN, Mark W. Merritt, Robert W. Fuller, Robinson Bradshaw & Hinson, P.A., Charlotte, NC, for Defendants.
