A federal judge from the District of Minnesota has dismissed with prejudice a claim brought by several former National Football League players, who alleged that the league was violating antitrust laws by constraining the sale of their images and likenesses.
In a strongly worded opinion, the court wrote that the plaintiffs “have utterly failed to make out a claim for violation of the antitrust laws, and no amount of legal tongue- twisting will turn their claims into antitrust claims.”
The court found similarities between the instant case and Dryer v. Nat’l Football League, 09cv2182 (D. Minn. filed Aug. 20, 2009), which is currently pending.
“As in Dryer, the plaintiffs are former professional football players who seek to represent a class of similarly situated individuals,” wrote the judge. “Here, they contend that the defendants are violating the antitrust laws by allegedly constraining the sale of their images and likenesses.
“The allegations in Dryer are that the players have common-law and statutory rights of publicity in their own images. The Dryer plaintiffs want the NFL to pay for the use of video footage featuring their images in NFL Films’ promotional videos. Here, the former players contend that by not allowing them the rights to game films and images from the games in which they played, the defendants are monopolizing the market for former players’ likenesses, in violation of the Sherman Act, 15 U.S.C. § 1 et seq.”
The plaintiffs relied heavily on the landmark case American Needle, Inc. v. NFL, 130 S. Ct. 2201, 176 L. Ed. 2d 947 (2010), claiming that the ruling bolstered their claim.
“American Needle involved allegations by a former licensee of NFL team merchandise that the NFL and its member teams conspired to illegally restrain trade by agreeing that NFL Properties could license all NFL-related merchandise, including individual team logos and so forth, to a single entity,” recounted the judge. “The lower courts found that the NFL could not conspire with itself. Am. Needle, Inc. v. New Orleans La. Saints, 496 F. Supp. 2d 941, 943 (N.D. Ill. 2007); Am. Needle, Inc. v. Nat’l Football League, 538 F.3d 736, 744 (7th Cir. 2008). The Supreme Court disagreed, finding that actions by the NFL and its teams could constitute concerted action in violation of the Sherman Act. Am. Needle, 130 S. Ct. at 2216.
“But other than the holding that the NFL and its teams might, in some instances, be capable of concerted action in violation of the Sherman Act, American Needle does not support the plaintiffs’ contentions here in the least.
“First, American Needle involved intellectual property that each team owned separately from the NFL: team logos, team colors, and the like. As the court stated, NFL Properties’ ‘licensing decisions are made by the 32 potential competitors, and each of
them actually owns its share of the jointly managed assets.’ 130 S. Ct. at 2214. Thus, ‘at least with regards to its marketing of property owned by the separate teams,’ the NFL’s actions could be subject to the Sherman Act.
“Here, unlike in American Needle, the intellectual property involved is historical football game footage, something that the individual teams do not separately own, and never have separately owned. Rather, the NFL owns the game footage, either alone or in conjunction with the teams involved in the game being filmed. These entities must cooperate to produce and sell these images; no one entity can do it alone.
“Indeed, the Supreme Court recognized as much, stating that its decision was only that teams in the NFL could not be treated as a single entity under the Sherman Act ‘when it comes to the marketing of the teams’ individually owned intellectual property.’ Id. at 2217. Thus, the plaintiffs’ assertion at the hearing that the Supreme Court has determined that the NFL and its teams can ‘act in concert for the purpose of marketing their collective intellectual property’ is fundamentally incorrect. The NFL and its teams can conspire to market each teams’ individually owned property, but not property the teams and the NFL can only collectively own. Thus, the plaintiffs have in the first instance failed to establish any concerted action that is illegal under the Sherman Act.”
The court went on to note that some restraint may be “essential if the product is to be available at all.” Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Oklahoma, 468 U.S. 85, 101, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984).
“The plaintiffs do not explain what market might exist in game footage that features only that footage to which any player can claim to be individually entitled: a single player’s image without any NFL logos or marks. The market is for game footage featuring many players, wearing NFL logos and treading fields replete with NFL marks. The plaintiffs cannot and do not contend that they own or should own the footage itself. Thus, the Rule of Reason compels the conclusion that, even if there is concerted action to restrain trade in the plaintiffs’ images, that agreement ‘is necessary to market the product at all’ and is therefore not illegal. Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 23, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979).”
The court then explored why the Sherman Act lacks applicability in the instant case.
The plaintiffs argued that the “relevant market” is the market of “footage of NFL games and players.” Furthermore, they suggested that the consumers in that market are the NFL and television networks.
“But the plaintiffs do not explain how the NFL can be both a consumer and a trade- restrainer at the same time. Moreover, the alleged ‘restraints’ about which the plaintiffs complain arise because the NFL owns a copyright in the game footage. A copyright is nothing more than legal authorization to restrain trade in that intellectual property.”
The court compared the plaintiffs’ request to an actor in a film selling “his or her image from the film for his or her own purposes.”
“(S)o, for example, Tom Cruise could sell the portions of the ‘Mission: Impossible’ franchise that feature him and Paramount Pictures could not restrain him from doing so. The mere fact that the copyright in the ‘Mission: Impossible’ franchise is owned by a single entity and the copyright in historical NFL game footage is owned collectively is simply irrelevant to the rights conferred by the copyright.
“If the NFL is refusing to pay the plaintiffs for the use of their images in it’s copyrighted material, then the plaintiffs may have a claim for a violation of their right of publicity (as in the Dryer case). But this is a royalties issue, not an antitrust issue. The plaintiffs have utterly failed to make out a claim for violation of the antitrust laws, and no amount of legal tongue-twisting will turn their claims into antitrust claims. What they have are claims for royalties, not claims for antitrust.”
Gene Washington, Diron Talbert, and Sean Lumpkin, on behalf of themselves and all others similarly situated v. National Football League, et al.; D.Minn.; Civil No. 11-3354 (PAM/AJB), 2012 U.S. Dist. LEXIS 89401; 2012-1 Trade Cas. (CCH) P77,926; 6/13/12
Attorneys of Record: (for plaintiffs) Brian C Gudmundson, Charles S Zimmerman, J Gordon Rudd, Jr, LEAD ATTORNEYS, Zimmerman Reed, PLLP, Minneapolis, MN; Daniel E Gustafson, LEAD ATTORNEY, Gustafson Gluek PLLC, Mpls, MN; Daniel – NA S Ward, Thomas – NA J Ward, LEAD ATTORNEYS; Mark J Feinberg, Shawn D Stuckey, LEAD ATTORNEYS, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN; Robert A Stein, LEAD ATTORNEY, Bob Stein LLC, Minnetonka, MN; Shawn M Raiter, LEAD ATTORNEY, Larson King, LLP, St Paul, MN; James J Pizzirusso, Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC; Michael P Lehmann, PRO HAC VICE, Hausfeld LLP, San Francisco, CA. (for defendants) Aaron D Van Oort, LEAD ATTORNEY, Daniel J Connolly, Faegre Baker Daniels LLP, Mpls, MN; Derek Ludwin, Gregg H Levy, LEAD ATTORNEYS, PRO HAC VICE, Covington & Burling LLP, Washington, DC.
