The issue of whether the NCAA can restrain athletes from licensing their names and images in TV game telecasts and video games could be taken up by the U.S. Supreme Court soon, but in the meantime, ESPN, CBS, Fox, ABC and NBC scored a success at the 6th Circuit Court of Appeals on Wednesday.
Unlike the O’Bannon case, which deals mostly with antitrust issues, this one was fought in Tennessee by athletes including former Vanderbilt University football player Javon Marshall who claimed a violation of their publicity rights on the part of broadcasters. Filed in Oct. 2014, the putative class action lawsuit was rejected by a judge less than nine months later.
Today’s short opinion by 6th Circuit judge Raymond Kethledge perhaps bolsters the sentiment in some legal quarters that Tennessee was a poor forum for athletes to fight this battle.
“The plaintiffs claim 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,” writes Kethledge. “But that argument is a legal fantasy. 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.’”
The federal appeals court dismisses an antitrust claim premised on an alleged restraint of publicity rights because “those putative rights do not exist” and further rejects the way that the athletes aimed to assert violations under the Lanham Act.
“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,” states the opinion. “Suffice it to say that ordinary consumers have more sense than the theory itself does.”
The appeals court doesn’t get into some of the other objections to holding broadcasters accountable to athletes. Those range from how federal copyright law arguably preempts publicity rights under state statutes to whether the First Amendment dooms athlete claims. The NCAA has asked the Supreme Court to examine the latter issue, but the high court if it chooses to wade in, may prefer to focus on the topic of whether restraints are permissible for the purpose of boosting amateurism.