The National Collegiate Athletic Association (“NCAA”), has asked the U.S. Supreme Court to permit it to intervene so it may file a cert petition seeking review the Ninth Circuit’s decision in In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir.), petition for cert. filed, 82 U.S.L.W. 3137 (U.S. Sept. 23, 2013)(No. 13-377) (petition filed by Electronic Arts (“EA”)). Prior to that filing, only EA had participated in the appeals process, even though this litigation was brought against EA, the NCAA, and the College Licensing Company. The NCAA had been relying on EA to pursue the appeals process, but that changed in late September, when EA reached a proposed settlement with the plaintiffs. The question presented in the NCAA’s petition seeks to clarify the extent to which the First Amendment freedom of expression precludes right-of-publicity tort claims. In this case, the claims of plaintiffs, former NCAA college football players, centered on the production of NCAA college football video games. Plaintiffs allege that the defendants violated, and conspired to violate, their right-of-publicity under California law. The Ninth Circuit affirmed the district court’s denial of defendants’ motion to dismiss on First Amendment grounds. NCAA’s motion and petition urge that the Ninth Circuit’s application of the “transformative-use” defense—which is essentially a balancing test that affords First Amendment protection where a likeness is sufficiently transformed—was inconsistent with the First Amendment and thus improper. Repeatedly characterizing the balancing of the First Amendment against right-of-publicity claims as “splintered” among the federal courts, NCAA asks the Supreme Court to endorse the test set forth in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), under which the First Amendment protects use of name or likeness unless it amounts to an unauthorized use that is unrelated to the expression at issue.
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NCAA asks court to decide First Amendment defense to “right-of-publicity” claims.
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