IP Law Daily, TRADEMARK—S.D.N.Y.: Football merchandise class action lawsuit against NFL dismissed, (Jul 16, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

Plaintiff alleged that the NFL had made deals to give its partially-owned entity a vertically-integrated manufacturer and marketer dominance in the NFL paraphernalia market.

The federal district court in New York City has dismissed a putative class action alleging that the NFL and its affiliates engage in an illegal scheme to market its branded merchandise. A marketer of sports-branded items to consumers was unable to show an antitrust injury, and therefore, lacked antitrust standing. The judge dismissed the lawsuit but granted leave to replead. Upon ruling that antitrust injury was not plausibly pleaded, the court found it unnecessary to reach the class action issues and other dismissal arguments asserted by the defendants (Casey’s Distributing, Inc. v. National Football League, No. 1:22-cv-03934-ALC (S.D.N.Y. July 14, 2025)).

Background. A significant source of income for the professional athletics industry is the licensure of athletic teams' trademarks, logos, and other intellectual property for emblazonment upon apparel, souvenirs, and other consumer goods which are marketed to team devotees and enthusiasts. For the sport of American football, the highest professional level is the National Football League (NFL), which consists of 32 teams in various localities. In addition to regulating the sport, the NFL operates as a cartel to jointly license its teams' intellectual property (and that of the NFL itself) to manufacturers and other purveyors through NFL affiliate National Football League Properties, LLC (NFLP). The licensees sell their products to wholesalers, retailers, and/or consumers.

In 2015, the NFLP instituted an Online Distribution Policy (ODP) whereby retailers who sell NFL-licensed products via third-party online marketplaces (TPOMs) must be preapproved to do so by NFLP.

Casey’s Distributing, Inc. (Casey's) sells licensed hard goods and apparel, including but not limited to NFL-licensed products. Prior to the 2015 NFLP policy, Casey's had purchased its NFL products from NFLP-licenses sources. In 2017, Casey's began to sell NFL products on Walmart.com (Walmart), a NFL-approved TPOM. Casey's Walmart.com sales continued to grow until 2019, when Fanatics, Inc. (Fanatics), a NFLP-approved manufacturer, supplier, distributor, and retailer in which the NFL held an equity stake, agreed with Walmart to be the exclusive NFL products seller on Walmart's TPOM. Similar arrangements gave Fanatics exclusivity on the Amazon.com TPOM. As a result, Casey's was compelled to discontinue marketing its products through Walmart and Amazon. Additionally, another NFLP-approved vendor from which Casey's had purchased NFL-branded items demanded that Casey's discontinue marketing such items through Amazon, even though that vendor itself sold its NFL-branded goods through Amazon.

In 2022, Casey's filed a putative class action lawsuit against the NFL, NFLP, all of the NFL member teams, and Fanatics, alleging violations of the Sherman Act, alleging a conspiracy to give Fanatics exclusivity in marketing NFL-branded products. This conspiracy, the complaint alleged, reduced the number of sources from which Casey's could profitably purchase NFL-branded items, and excluded Casey's from high-volume online markets in which Casey's could profitably resell those items to consumers. The defendants all moved to dismiss the complaint.

Antitrust injury. The court found that Casey's did not plausibly plead antitrust injury. The refusal by the defendants to continue to sell NFL-branded items to Casey's may well have harmed Casey's, but that alleged practice did not necessarily harm competition itself. The monopoly, which existed before NFLP enforced it upon Casey's, is a legal monopoly, inasmuch as trademark registrants have the right to enforce their intellectual property and control who does or does not use it. The NFLP's ODP was a scheme for intellectual property holders to control the use of their trademarks and logos. Casey's concededly never applied to NFLP for approval as a vendor of NFL-branded products.

Furthermore, although consumers who purchase NFL-branded products from unapproved sellers in the putative class Casey's seeks to represent, "there is no adequate allegation that consumers, in general, would be forced to pay higher prices as a result of the scheme."

The Case is No. 1:22-cv-03934-ALC.

Judge: Carter Jr., A.

Attorneys: John G. Balestriere (John G. Balestriere, Attorney at Law) for Casey's Distributing, Inc. Bart Harper Williams (Proskauer Rose LLP) for National Football League, Inc.

Companies: Casey's Distributing, Inc.; National Football League, Inc.

Cases: Trademark NewYorkNews