ESPN, major broadcasters, athletic conferences and WME Entertainment and IMG Worldwide are seeking dismissal of a class action lawsuit filed by 10 college athletes, claiming profits from game telecasts using their names and likenesses without their permission.
A number of athletic conferences weighed in on Wednesday morning, asking that the lawsuit be dismissed for a simple reason: The athletes don’t have a right of publicity in sporting events.
The student athletes “erroneously assume that game participants have a right of publicity with respect to broadcasts of sporting events, and to advertisements for those broadcasts,” a group of athletic conferences, including the Southeastern Conference and the Big Ten, said in a brief filed in a federal court in Tennessee. “Apart from being inherently impractical (any single participant could hold out and prevent the broadcast), plaintiffs’ position has been rejected repeatedly by controlling legal authorities.”
Broadcasters and sports licensing agencies are expected to file motions for dismissal later on Wednesday.
The athletes filed suit in October, claiming that the long list of defendants have “conspired with each other and the NCAA to promulgate, enforce, adopt, implement and/or enforce rules that are inherently anticompetitive” in forbidding the athletes from “competing in the marketplace for the value of their rights of publicity.”
The athletes include players Javon Marshall, Eric Samuels and Steven Clarke from Vanderbilt University, Sean Parker of the University of Washington, Patrick Miller of Tennessee State University, Rod Wilks, Byron Moore, Chaz Moore and Marlon Walls of the University of Tennessee and Chris Conner of the University of Maryland. They claim that a release form they are forced to sign as a condition of playing football or basketball is unenforceable. They contend that the defendants have violated antitrust and trademark laws.
In addition to the athletic conferences, ESPN is named as a defendant along with CBS, ABC, NBC and Fox. WME and IMG were named along with a series of other licensing agents.
The conferences contend that the athletes rely on the Tennessee Personal Rights Protection Act, even though it “specifies that participants have no publicity rights in broadcasts or advertisements for sporting events.” They note that courts have recognized that the right to license a sporting event vests “exclusively in the promoter or producer of the event.”
“A right of publicity arises when a person’s name, image or likeness is used to promote a product or service, not when that person simply appears in public,” the conferences’ brief states.
They also reject the athletes’ claims that they have a common law right of publicity that would cover the game broadcasts.
The case for compensating college athletes got some fuel last summer, when a federal court ruled in favor of UCLA basketball star Ed O’Bannon and 19 others in their claim that the NCAA rules violated antitrust laws in blocking them from receiving compensation for the use of their images in videogames and certain types of broadcasts.
The athletic conferences, however, said that when it came to game footage, the O’Bannon decision recognized only that there may be a limited right of publicity in at least one state of stock footage, and only if it was used for endorsements.
“The creation of a requirement that every ‘participant’ in a sporting event be convinced to transfer his or her publicity rights would impose a substantial and unwarranted burden on staging sporting events,” the conferences’ brief stated. “Potential participants would include not only players, but substitutes who never enter the game, coaches, cheerleaders, referees, medical personnel and even spectators.”
The athletic conferences argue that because athletes have no right of publicity claim to the broadcasts, that negates their other claims, including those for antitrust violations.
Update: ESPN and the broadcast networks also argue that there is no right of publicity for televised sporting events.
“Plaintiffs cannot sue based on a violation of rights they do not have,” the networks said in their brief. “Moreover, the network defendants merely purchase the rights to broadcast certain games played by college athletes. And although college athletes are subject to NCAA rules, the United States Supreme Court has described these very rules as procompetitive and critical to the viability of amateur college sports in our country.” The rules, they added, “predate even the advent of national television broadcasting.”
They also argue that the First Amendment “bars restrictions on noncommercial speech such as sports broadcasting and related advertising.”
Licensing entities named in the lawsuit — including IMG Worldwide, William Morris Endeavor and JMI Sports — argue that the Supreme Court has “conclusively resolved” the antitrust issue in the players’ lawsuit, holding that the NCAA amateurism rules do not violate the Sherman Antitrust Act.