Antitrust Law Daily Wrap Up, ADVERTISING NEWS: Retired NFL players take settlement challenge to High Court, (Nov 18, 2015)

By Greg Hammond, J.D.

Three retired professional football players are asking the U.S. Supreme Court to review a decision by the U.S, Court of Appeals in St. Louis, which affirmed the approval of a class settlement involving claims the National Football League (NFL) used retired NFL players’ names, images, and likenesses without the players’ authorization (Marshall v. National Football League, Dkt. 15-645).

In August 2009, a group of retired NFL players brought an action alleging that the NFL had earned substantial revenue by making promotional films and selling products featuring the names, images, and likenesses of retired players without the players’ authorization. Specifically, they brought claims for false endorsement, appropriation and violation of right of publicity, as well as unjust enrichment. After months of negotiations, the parties reached a settlement, providing: (1) the establishment of a licensing agency to assist former NFL players in marketing their publicity rights with the support of the NFL; and (2) up to a $42 million payout by the NFL for the benefit of the class. The U.S. Court of Appeals in St. Louis affirmed the decision by the federal district court in Minneapolis approving the class action settlement.

Three retired NFL players—including James Lawrence Marshall, John Michael Senser, and Dante Anthony Pastorini—have now petitioned the Supreme Court for review of the appellate court decision, arguing: (1) the appellate court’s decision endorsing a settlement agreement that provides no guarantee of a benefit to readily identifiable class members in exchange for releasing their claims violates the foundational principles of aggregate litigation; and (2) the decision has created a split in the circuit courts on the fiduciary duties of district courts to value class members’ claims prior to granting approval of settlement agreements.

The questions presented are: (1) whether a Federal Rule of Civil Procedure 23(b)(3) class settlement that provides no guaranteed benefit to readily identifiable class members in exchange for the release of their damages claims satisfies the requirement of Rule 23(e)(2) that a settlement binding class members must be “fair, reasonable, and adequate”; and (2) whether Rule 23(e)(2) and principles of aggregate litigation require the district court, as a fiduciary, to evaluate the potential value of the damages claims released by class members.

Attorneys: Eric J. Magnuson (Robins Kaplan LLP) and Michael V. Ciresi (Ciresi Conlin LLP) for petitioners.

Companies: National Football League

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