Court Finds Complaint Wanting in Dismissing Retired NFL Players’ Suit

Dec 7, 2007

A federal judge from the Northern District of California has granted the National Football League Players Association’s motion to dismiss a case in which it was sued for violations of California’s unfair competition law, breach of contract, breach of fiduciary duty, unjust enrichment and restitution, and accounting.
In so ruling, the court found that the plaintiffs failed to plead injury in fact. Thus, they lacked standing to pursue claims under California’s unfair competition law. The plaintiffs also have failed to allege the terms of the contract on which they base their claims for breach of contract, and what terms within those contracts the defendants allegedly breached. Finally, the plaintiffs have also not pleaded a claim for breach of fiduciary duty, and have failed to plead facts to support their claim for unjust enrichment.
The defendant NFLPA serves as the union for NFL players. Nearly all active NFL players give the NFLPA the right to market their names and images pursuant to the NFLPA’s collective bargaining agreement with the league. The National Football League Players Incorporated, doing business as Players Inc., is a subsidiary of the NFLPA, which is responsible for marketing and licensing. Players Inc. purports to market active and retired players by licensing their images for purposes such as trading cards, video games, television and radio programming, personal appearances, autograph signings, internet sites, and events.
The plaintiffs — Bernard Paul Parrish, Herbert Anthony Adderley, and Walter Roberts III — are retired professional football players. Retired NFL players are given the opportunity to join the NFLPA by paying annual dues. The NFLPA allegedly promotes a “Retired Players Group Licensing Program” in which the NFLPA offers third parties the right to license the images, likenesses, and names of retired players.
The plaintiffs alleged that defendants have unfairly competed and wrongfully interfered with retired players’ licensing opportunities. They allege that the NFLPA and Players Inc. dominate the market for licensing the names and likenesses of current and former NFL players, and that the NFLPA’s licensing agreements, including one with Topps for trading cards, require exclusive dealing with the NFLPA. The plaintiffs allege that the NFLPA has another exclusive licensing deal with Electronic Arts, producer of a professional football-themed videogame. The defendants allegedly held themselves out as the only avenue for licensing the names and images of retired NFL players. The plaintiffs also alleged that Players Inc. diverted licensing revenue to the NFLPA, and that the defendants have not distributed revenue from licensing in an equitable manner.
The defendants moved to dismiss the complaint on July 6, 2007.
The court ultimately granted the defendants’ motion lamenting that “time and again in the briefs and at the hearing, plaintiffs argued they had alleged a key element. On examining the complaint, however, the actual allegations did not nearly go so far. Sometimes those key elements were absent altogether. Plaintiffs’ smoke-and-mirrors approach to pleading is unconvincing.”
Bernard Paul Parrish et al v. National Football League Players Association et al; N.D. Cal. No. C 07-00943 WHA; LEXIS 68355; 9/6/07
Attorneys of Record: {for plaintiffs) Noel Scott Cohen, Ronald Stanley Katz, LEAD ATTORNEYS, Manatt Phelps & Phillips, LLP, Palo Alto, CA; Ryan S. Hilbert, LEAD ATTORNEY, Manatt Phelps & Phillips, Palo Alto, CA; Claire Elise Goldstein, Weil, Gotshal & Manges, LLP, Redwood Shores, CA. (for defendants) Elizabeth A. Maley, Jeffrey L. Kessler, LEAD ATTORNEYS, Christopher Hurd, David G. Feher, David L. Greenspan, Eamon O’Kelly, Eric Laufgraben, Jeffrey S. Rugg, Marc Edelman, Molly Donovan, Dewey Ballantine LLP, New York, NY; Bruce S. Meyer, Weil Gotshal & Manges LLP, New York, NY; Jane Marie Guthrie, Dewey Ballantine, East Palo Alto, CA; Joseph Richard Wetzel, Weil Gotshal & Manges LLP, Redwood [*2] Shores, CA; Kenneth L. Steinthal, Weil Gotshal & Manges, New York, NY.


Articles in Current Issue