Why it matters: On June 4, 2015, a district court judge for the Middle District of Tennessee dismissed the putative class action lawsuit brought against various broadcasters, college athletic conferences and licensors by eight current and former college student athletes who claimed, among other things, that the defendants were profiting off of the use of the student athletes' names, images and likenesses without permission in violation of Tennessee's right of publicity laws. In dismissing the lawsuit with prejudice, the judge ruled in relevant part that there is no right of publicity under Tennessee statutory or common law for participants in sporting events.

Detailed discussion: On June 4, 2015, District Court Judge Kevin H. Sharp of the Middle District of Tennessee dismissed with prejudice a putative class action lawsuit brought by eight current and former National Collegiate Athletic Association (NCAA) football bowl subdivision players and Division 1 college basketball players against "a host of conferences, networks, and licensors" including ESPN, CBS, ABC, NBC, Fox, the Pacific-12 Conference and the Big 12 Conference, to name just a few. The student athlete plaintiffs had alleged in their suit that the defendants "profited from the broadcast and use of those student athletes' names, likenesses and images without permission" in violation of Tennessee's right of publicity statute. The student athlete plaintiffs also alleged various claims against the defendants under the federal antitrust laws, the subject of numerous cases at present, including in the Ninth Circuit in O'Bannon v. NCAA, but we focus here on the state statutory and common-law right of publicity claims.

Judge Sharp began his analysis with a discussion of the NCAA and its rules. Though not named in the suit as a defendant, the court noted that the student athletes alleged the NCAA to be part of the conspiracy and thus "tacitly" conceded that "any discussion of the alleged unlawfulness must acknowledge [the NCAA's] existence and the role it plays in college sports." The court reviewed that NCAA rules dictate that intercollegiate sports are limited to "amateur" athletes, who may lose their amateur status if, in relevant part, they use their athletic skill (directly or indirectly) for pay "in any form." Relevant to the student athlete plaintiffs' right of publicity claims, in order to participate in NCAA sports, student athletes are required to sign a form that allows the NCAA to use the student athlete's name or picture "to 'generally promote' NCAA championships or other NCAA events, activities or programs." The student athlete plaintiffs further alleged that the defendants and the NCAA have multi-billion-dollar contracts, yet "the student athlete receives nothing or, at most, the cost of attendance" and the restrictive NCAA and Conference rules "have deprived student athletes from realizing the commercial value of their images."

Judge Sharp then turned to a review of the applicable law, acknowledging that Sixth Circuit precedent holds that "Tennessee's common law … embodies an expansive view of property. Unquestionably, a celebrity's right of publicity has value. It can be possessed and used. It can be assigned, and it can be the subject of a contract." Further, "Tennessee's common law acknowledges a 'property right in the use of one's name, photograph or likeness.' " In addition to this common-law right of publicity, the judge noted that the Tennessee legislature enacted the Tennessee Personal Rights Protection Act (TPRPA) in 1984, which "was intended to 'create an inheritable property right for those people who use their names or likenesses in a commercial manner, such as an entertainer or sports figure—someone who uses his or her name for endorsement purposes.' "

Judge Sharp agreed with the defendants' claim that the TPRPA governed over any common-law right of publicity precedent because courts in Tennessee had previously ruled the TPRPA and common law to be "co-extensive," and the Tennessee Supreme Court had ruled that, in the event of a conflict between any statute and common law, " 'the provisions of the statute must prevail.' " Further, the judge found it persuasive that the Student Plaintiff Athletes were unable to cite to any "case from any court in Tennessee that recognizes a right of publicity in connection with sports broadcasts." Judge Sharp found this to be "unsurprising," because a review of case law from other federal and state courts found that "virtually all courts in jurisdictions that have decided the matter under their respective laws" have come to the same conclusion. The student athlete plaintiffs had cited to a 2014 Northern District of California case, In re NCAA Student Athlete Name and Likeness Litig., as support for this argument, but the court deemed that case to be the "sole exception" and easily differentiated it as "no help" to the student athlete plaintiffs, stating that "[t]he only value that case has for present purposes … is that there might be a right of publicity under Minnesota law for sports broadcast, itself a dubious proposition given a more recent interpretation of that state's case law." The judge noted that the In re NCAA Student Athlete case involved the sole issue of "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 likenesses" and that that court specifically did not address the student athletes' rights of publicity other than, as noted above, to make a dicta statement about players domiciled in Minnesota possibly being able to make a claim under that state's right of publicity laws. More importantly, the judge pointed out that the plaintiffs in the In re NCAA Student Athlete case had specifically conceded with respect to players domiciled in Tennessee that "Tennessee recognizes no right of publicity in sports events."

Judge Sharp next stated that the student athlete plaintiffs "fared no better" under the TPRPA, which provides in relevant part that "[i]t is deemed a fair use and no violation of an individual's rights shall be found … if the use of a name, photograph, or likeness is in connection with any news, public affairs or sports broadcast or account." The court pointed to this language as "clearly" conferring "no right of publicity in sports broadcast, or with respect to any advertisement if the advertisement is in connection with such a broadcast."

Judge Sharp thus dismissed the student athlete plaintiffs' right of publicity claims (the first and second causes of action in their complaint) with prejudice because "Plaintiffs' allegations do not set forth a plausible claim for relief, either under common law or the TPRPA."

After next reviewing the student athlete plaintiffs' federal antitrust claims and dismissing those with prejudice as well, the judge concluded with a somewhat rueful statement that showed great sympathy for the student athlete plaintiffs but emphasized that his hands were tied: "College basketball and football, particularly at the Division I and FBS levels, are big business. Of that there can be little doubt. Many believe that 'amateur' when applied to college athletes today is a misnomer—an artificial label and anathema, placed on players, like Plaintiffs, whose efforts on the court and field lead to untold riches for others, such as defendants. Cogent arguments have been raised that it is time student athletes share in the bounty, above and beyond any scholarships they may receive. 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.' 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. The Court expresses no opinion on those issues. 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. The Court finds that Plaintiffs have not done so under any of the theories they set forth."

The student athlete plaintiffs filed an appeal to the Sixth Circuit on July 1, 2015. We will await the outcome and report back.

Click here to see the 6/4/15 opinion in Javon Marshall, et al. v. ESPN Inc., et al., No. 3:14-01945 (M.D. Tenn.).