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From Antitrust Law Daily, June 5, 2015

College athletes’ antitrust, publicity rights, false endorsement claims fail

By Linda O’Brien, J.D., LL.M.

In an action by current and former college athletes against television networks, licensing businesses, and member conferences of the National Collegiate Athletic Association (NCAA) for engaging in a conspiracy with the NCAA to implement rules that deprive the student athletes of their rights to compensation for the licensing and use their names, images, and likenesses, the plaintiffs’ Sherman Act, right of publicity, and Lanham Act false endorsement claims were dismissed by the federal district court in Nashville, Tennessee (Marshall v. ESPN, Inc., June 4, 2015, Sharp, K.).

Background. The NCAA is a nonprofit organization of approximately 1,200 educational institutions that organizes athletic programs in many of those institutions in the United States. The NCAA negotiates media contracts with television and sports networks and licensing and marketing businesses of member conference football and basketball games in the United States. In order to participate in NCAA sports, student athletes are required to sign a form that allows the NCAA to use the student athlete’s name or picture to generally promote NCAA events, activities, or programs.

In October 2014, Javon Marshall and nine other current and former members of the football or basketball teams in one of the NCAA conferences filed a putative class action complaint against television and sports networks, licensing and marketing businesses, and ten member conferences of the NCAA, alleging that the defendants engaged in a conspiracy with the NCAA to implement rules that deprive the student athletes of their rights to compensation for the licensing, use, and sale of their names, images, and likenesses, in violation of the Sherman Act and Lanham Act. The defendants moved to dismiss all of the plaintiffs’ claims.

Right of publicity. The plaintiffs failed to set forth a plausible claim for relief either under common law or the Tennessee Personal Rights Protection Act (TPRPA). The TPRPA created an inheritable property right for individuals who use their names and likenesses in a commercial manner. According to the court, the plaintiffs cited no state authority for the proposition that participants in sporting events have a right to publicity. The court rejected the plaintiffs’ argument that In re NCAA Student Athlete Name and Likeness Litigation, 37 F.Supp.3d 1126 (N.D. Cal. 2014) affirms that college athletes have a recognizable right of publicity related to sport broadcasts. In that case, the court statements about the right of publicity in sports broadcasts were clearly dicta, and the plaintiffs in In re NCAA Student Athlete conceded that Tennessee recognizes no right of publicity in sports broadcasts, the court noted.

Additionally, the TPRPA provides that only the use of an individual’s name, photograph, or likeness in connection with an advertisement infringes on the persona. The TPRPA also specifically states that “[i]t is deemed a fair use and no violation of an individual’s rights shall be found, for purposes of this part, if the use of a name, photograph, or likeness is in connection with any news, public affairs, or sports broadcast or account.” Thus, the statute clearly confers no right of publicity in sports broadcasts, or with respect to advertisements in connection with such a broadcast, the court found.

The plaintiffs’ argument that the broadcast of an entire sporting event was not protected by the First Amendment was rejected. The court in NCAA Student Athlete said that the First Amendment did not guarantee an unlimited right to broadcast an entire college football or basketball games. However, this did not correspondingly establish a right of publicity by athlete participants when entire games were broadcast.

Sherman Act. The court found that the student athletes failed to state a viable unreasonable restraint of trade claim that they were entitled to compensation for playing in televised games. The plaintiffs’ complaint alleged that the athletic conferences, broadcasters, and licensing entities conspired with the NCAA to implement rules that were anticompetitive by prohibiting student athletes from competing in the marketplace for the value of their rights to publicity and creating an environment that exploited student athletes in the name of amateurism. The court noted that the NCAA was not a defendant in the present case, and the plaintiffs’ arguments were countered by a series of cases that determined that most NCAA regulations were justifiable means of fostering competition among amateur athletic teams and therefore procompetitive.

To have standing to pursue an antitrust claim, an aggrieved party must have suffered an injury-in-fact. In this case, the basis of the plaintiffs’ claim was that they had a right to be paid for appearing in television broadcasts of games. Since the plaintiffs did not have a right to publicity in sports broadcasts under state law, they could not plead any antitrust injury by a purported conspiracy to deny them the ability to sell non-existent rights, the court determined.

False endorsement. Finally, the plaintiffs failed to adequately allege likelihood of confusion to set forth a false endorsement claim under the Lanham Act. According to the court, the plaintiffs’ complaint alleges that they played in college football or basketball games that were shown on television and that advertisements appeared in the broadcast of the games. The plaintiffs failed to allege specific facts indicating when their images were used and by whom. In the court’s view, the broadcasts showed the players playing their sport and there was no confusion about what they were doing. Therefore, their Lanham Act claim was subject to dismissal.

The case is No. 3:14-01945.

Attorneys: John Parker Branham (Bone, McAllester & Norton, PLLC) for Javon Marshall. Daniel Alexander Richards (Cravath, Swaine & Moore LLP) and Joel D. Eckert (Bradley Arant Boult Cummings LLP) for ESPN Inc., and ABC, Inc. Eric S. Hochstadt (Weil, Gotshal & Manges) and Robert Dale Grimes (Bass, Berry & Sims) for CBS Broadcasting, Inc. Arthur Burke (Davis, Polk & Wardwell) for National Broadcasting Company, Inc. Carl R. Metz (Williams & Connolly) for Fox Broadcasting Co. Andrew J. Thomas (Jenner & Block LLP) for IMG College, LLC.

Companies: ESPN Inc.; ABC, Inc.; CBS Broadcasting, Inc.; National Broadcasting Company, Inc.; Fox Broadcasting Co.; IMG College, LLC

MainStory: TopStory Antitrust TennesseeNews

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