A federal judge in Tennessee on Thursday tossed out a class action lawsuit filed by 10 former collegiate football and basketball players against ESPN and other broadcasters, concluding that sports broadcasts are exempt from their right of publicity claims.
U.S. District Judge Kevin Sharp wrote that the athletes had failed to allege sufficient facts to show that they were entitled to monetary compensation because they play in televised games. The suit was filed last year shortly after a federal judge, in separate litigation, concluded that the NCAA couldn’t block former UCLA basketball star Ed O’Bannon and 19 others from receiving compensation for the use of their images in videogames and certain types of broadcasts.
But Sharp noted that the NCAA wasn’t among the defendants in the latest litigation. In addition to ESPN and broadcasters ABC, Fox, CBS and NBC, the former athletes named licensing agents including WME Entertainment and IMG Worldwide. A number of sports conferences also were named, including the Big 10 and the Pac-12.
Sharp did acknowledge the ongoing debate over whether student athletes should be paid or receive some share of the sports rights bounty — but said it was not a question for this case.
“Many believe that ‘amateur’ when applied to college athletes today is a misnomer — an artificial label and anethema, placed on players, like plaintiffs, whose efforts on the court and field lead to untold riches for others, such as defendants,” Sharp wrote. “Cogent arguments have been raised that it is time student athletes share in the bounty, above and beyond any scholarships they receive. In this case, however, the court is not called upon to address the larger picture of whether, as a matter of recognition, equity of fundamental fairness, student athletes should receive ‘pay for play.'”
The networks argued that they did not create the NCAA’s amateurism rules that prohibit payment, and have no ability to eliminate them. They also challenged the effort to pursue the Tennessee right of publicity claim, pointing out that the law excludes rights claims based on sports broadcasts. And they offered an analogy of their own: “Professional athletes negotiate their compensation for playing games (including the broadcast of those games) with the producers (their teams of leagues); broadcasters purchase rights from the teams or leagues as producers.”
Sharp agreed. He wrote that the college athletes cited “no Tennessee authority for the proposition that participants in sporting events have a right to publicity under the common law” or under the state’s right of publicity statute, the Tennessee Personal Rights Protection Act. He also rejected trademark, antitrust, civil conspiracy and unjust enrichment claim.