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In a major win for ESPN, CBS, Fox, ABC and NBC, a Tennessee federal judge on Thursday dismissed a proposed class-action lawsuit that targeted the billions of dollars reaped over college athletics.
The lawsuit was brought last October by 10 former athletes on behalf of themselves and others similarly situated and looked to leverage a California federal judge’s decision that the NCAA had violated antitrust laws by restraining amateur athletes from licensing their names and images in TV game telecasts and video games. In Tennessee, the athletes looked to go the next step by arguing that their unrestrained rights of publicity under state law had been infringed by the broadcasters.
Today, Judge Kevin Sharp ruled that participants in sporting events don’t have publicity rights under common law in Tennessee and further concluded that the suing athletes have not adequately pleaded they’ve been deprived of any fundamental right.
The judge also threw out claims that the defendants — which also included IMG Worldwide and William Morris Endeavor — violated the Sherman Antitrust Act, false endorsement under the Lanham Act and other causes of action.
Sharp does however acknowledge that college basketball and football are big business and there’s “cogent arguments” that student athletes should share in the financial success of the games they play.
“In this case, however, 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,'” he writes. “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.
“Rather, the Court’s sole task is to determine whether present Plaintiffs have alleged sufficient facts or stated a viable claim that they are entitled to monetary compensation because they play in televised games,” he continues. “The Court finds that Plaintiffs have not done so under any of the theories that they set forth.”
In defending the lawsuit, the broadcasters argued that a ruling in plaintiff’s favor would radically disrupt sports broadcasts and mean that anybody who considers themselves a “performer,” from cheerleaders to marching band members, could hold games hostage with compensation demands. The defendants threw up First Amendment objections to the prospect that anyone unhappy with a broadcast message might have the potential to assert publicity rights.
Sharp is dubious that athletes have a right of publicity related to sports broadcasts, and if there is such a thing, whether it survives First Amendment scrutiny. He points to other court decisions over the years such as the NFL’s courtroom victory over its former players regarding the use of old game footage. The California judge who decided the NCAA had violated antitrust laws is the “sole exception,” he notes, but that ruling only goes so far as to suggest “there might be a right of publicity under Minnesota law” and the issue in that case was “whether the NCAA violated federal antitrust law by conspiring to restrain competition in the market for the commercial use of the players’ names, images and likeness.”
In looking at Tennessee’s law protecting an individual’s name, photograph or likeness, the judge says it’s telling that the statute explicitly addresses advertising and has a fair use clause for the use of a likeness in connection with news, public affairs or a sports broadcast. He also addresses plaintiff’s arguments that the sports broadcasts incorporated product pitching. “However, they do not plead specific facts which show that any of their names, images, or likenesses have been used in any advertisement, nor do they specify which Defendant(s) created and placed the advertisement, or in what medium it was placed,” he writes.
The judge also adopts the broadcasters’ reading of Zacchini v. Scripps-Howard Broadcasting Co., the only time that the issue of publicity rights has been addressed by the U.S. Supreme Court. In that case, a man named Hugo Zacchini, who performed a human cannonball act, sued a local Ohio TV station, arguing that he’d have no incentive to perform if TV broadcasters could show his entire act without consent. “Unlike the situation here, Mr. Zacchini was not only a performer, he was also the producer of his one-man show,” writes the judge in a passage that will probably please Hollywood studios even beyond the college sports context. “It is a mistake, the Court believes, to read Zacchini as supporting a right of publicity by anyone who performs in an event produced by someone else.”
The decision also addresses the constitutional issues of due process and equal protection, and Sharp draws the lines very tight in practically any class action asserting a publicity rights claim. “It is difficult to perceive how a facially neutral statute that creates exemptions for news, public affairs and sports broadcasts singles out a specific class, and Plaintiffs do not suggest how that could be so.”
If there’s anything the broadcasters don’t get, it’s the judge stopping short of determining whether the publicity rights claims are preempted under the Copyright Act — a wonky and much-debated area of law.
The ruling also figures to be appealed. The decision also doesn’t foreclose similar lawsuits in other states where publicity right statutes are different. Perhaps those will come from more seasoned attorneys who won’t get flagged by the judge for not following notice requirements and will have the foresight to ask for the opportunity to amend their lawsuit to cure deficiencies. The lawyers representing the athletes in this case fell short and the judge has granted a motion to dismiss with prejudice.
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