Antitrust Law Daily Wrap Up, ADVERTISING—6th Cir.: College athletes’ publicity rights, false endorsement claims fail, (Aug 18, 2016)

By Thomas Long, J.D.

Current and former college athletes failed to state claims for false endorsement under the Lanham Act and violations of the Tennessee publicity rights statute 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 deprived the student athletes of their rights to compensation for the licensing and use their names, images, and likenesses, the U.S. Court of Appeals in Cincinnati has held. The Lanham Act claim failed because there was no likelihood that consumers would be confused as to whether the athletes endorsed products advertised during game broadcasts. The publicity rights claim failed because the Tennessee statute expressly permitted the use of players’ names and likenesses in connection with sports broadcasts. In addition, a Sherman Act claim asserted by the athletes failed because there could be no conspiracy to horizontally fix at zero the price of the athletes’ putative rights to license broadcasts of events in which they participated, because those putative rights did not exist (Marshall v. ESPN, Inc., August 17, 2016, Kethledge, R.).

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 purported 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. In June of last year, the district court dismissed the complaint for failure to state a claim. The plaintiffs appealed, and the Sixth Circuit affirmed the district court’s judgment.

The plaintiffs’ legal theory in the case depended on the idea that college football and basketball players had a property interest in their names and images as they appeared in television broadcasts of games in which they played, the appellate court stated. The plaintiffs sought to recover damages based on license fees they could have negotiated if the defendants had not unlawfully misappropriated their intellectual property.

Publicity rights; Sherman Act. First, the plaintiffs asserted that the defendants violated their right to publicity under the Tennessee Personal Rights Protection Act. However, that claim was meritless, the court said, because that statute permitted the use of players’ names and likenesses in sports broadcasts. Second, the defendants could not have violated the Sherman Act by conspiring to violate the plaintiffs’ publicity rights when those purported rights did not exist.

False endorsement. The provision of the Lanham Act cited by the plaintiffs barred the unauthorized use of a person’s name or likeness in commerce when it was likely to cause confusion as to whether a person endorsed a product. The theory, according to the court, was that if ESPN displayed a banner for a product at the bottom of the screen during a game, consumers might be confused as to whether the players in the game endorsed that product. "Suffice it to say that ordinary consumers have more sense than the theory itself does," the court said.

The case is No. 15-5733.

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. d/b/a SEC Network d/b/a Longhorn Network. Eric S. Hochstadt (Weil, Gotshal & Manges LLP) and Robert Dale Grimes (Bass, Berry & Sims PLC) for CBS Broadcasting, Inc. Arthur Burke (Davis Polk & Wardwell LLP) for National Broadcasting Co., Inc. n/k/a NBCUniversal Media, LLC.

Companies: ESPN Inc.; CBS Broadcasting, Inc.; National Broadcasting Co., Inc.

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