The Sixth Circuit issued a short tongue-lashing this week, calling claims by former college athletes in Marshall v. ESPN, “a legal fantasy.” Former basketball and football players brought a putative class action against college athletic conferences and TV networks, claiming a right to the licensing of their names and images in the television broadcast of their college sports games. Without licenses from every player, the plaintiffs argued, those broadcasts are illegal.
“To state the plaintiffs’ theory in this case is nearly to refute it,” the unanimous panel held. The players grounded their claims in Tennessee state law on rights of publicity. But the Sixth Circuit ruled that Tennessee law does not recognize a “right of publicity” for the players in this context. The Tennessee statute contains an express exemption for “sports broadcast,” and the Court suggested that the statute is exclusive. The Court further concluded that there is no common law claim recognized in Tennessee courts.
Based on the holding that no such licensing rights exist in this context, the Court also rejected a Sherman Act claim alleging a price-fixing scheme to fix the price of those rights at zero. A false endorsement claim under Lanham Act received similar cursory treatment. Plaintiffs alleged that defendants created a false perception that the athletes endorsed products being advertised during broadcasts. But, “[o]rdinary consumers have more sense than the theory itself does,” the panel explained.
This case turned on exceptions in Tennessee state law to rights of publicity. Whether such claims could remain viable under the law of other states is not addressed by the panel, although the opinion suggests courts will remain skeptical.