Former professional football players who opted out of a settlement with the National Football League (NFL) over claims of publicity rights violations had their new lawsuit thrown out of a Minnesota federal court.
The case originated from a class action brought by former professional football players who challenged the NFL’s use of video footage for NFL Films productions. Most of the original plaintiffs resolved their claims with a $42 million settlement deal, which established a fund for the benefit of the former players and appointed a licensing agency to assist those players in exploiting their publicity rights.
Three players – John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White – opted out of the earlier settlement and filed their own suit alleging, among other things, that their publicity rights were violated. They argued that the videos – footage of plaintiffs playing in actual football games – were meant to promote the NFL brand and as commercial speech were entitled to minimal First Amendment protection.
But U.S. District Court Judge Paul A. Magnuson disagreed. The films “are essentially compilations of clips of game footage into theme-based programs describing a football game or series of games and the players on the field,” he explained. That the productions generated substantial goodwill for the NFL is not itself dispositive of whether the productions are advertising, the court went on to explain.
In fact, the court found the “productions themselves are not advertising,” as television networks paid the NFL for the right to air those productions and other advertisers had to pay to have their ads inserted into the production broadcasts.
Moreover, the court found that the films tell the story of a football game, or a football team, and in a sense “a history lesson of NFL football.” “The only way for NFL Films to tell such stories is by showing footage of the game – the plays, the players, the coaches, the referees, and even the fans. The NFL is capitalizing not on the likenesses of individual players but on the drama of the game itself, something that the NFL is certainly entitled to do.”
“While the NFL certainly reaps monetary benefits from the sale and broadcast of these productions, the use of any individual player’s likeness – the productions’ display of footage of plays involving an individual player – is not for commercial advantage but because the game cannot be described visually any other way,” the court said.
As noncommercial speech, the films are entitled to First Amendment protections that trump the plaintiffs’ publicity rights, the court concluded. In addition to finding that the footage satisfied an exception for newsworthy events or matters of public interest, the court found that the plaintiffs explicitly or impliedly consented to the NFL’s use of game footage by participating in interviews with the film crew.
To read the decision in Dryer v. NFL, click here.
Why it matters: In approving the November 2013 settlement, the judge indicated that the deal was fair and reasonable in large part because the chance the lawsuit would succeed on the merits was “slim at best.” The decision of these three plaintiffs to opt out and take their chances on a separate lawsuit proved unwise, as the court resoundingly rejected their publicity, copyright, and Lanham Act claims, in large part because the productions at issue were not commercial speech.