Student Athletes Lose Sixth Circuit Appeal in Marshall v. ESPN
Yesterday, the Sixth Circuit Court of Appeals issued a short opinion affirming a Tennesse district court's dismissal of claims by student-athletes.
Lead plaintiff Javon Marshall (pictured above), a Vanderbilt football player, and other college football and basketball players filed a class-action complaint alleging that television broadcasts of their games by the defendants, including by ESPN, violated their rights to control the uses of their names and images. The complaint included claims under Tennesse's statutory right of publicity, the Personal Rights Protection Act (PRPA), as well as under the Sherman Act and Lanham Act.
The Sixth Circuit called such claims a "legal fantasy." The court was particularly persuaded that the claims were "meritless" because the Tennessee statute expressly exempts "sports broadcast[s]" from the law.
The court also rejected an argument that a common law right of publicity exists in Tennessee. Tennessee courts have suggested that such a right exists and the statute itself states that its provisions are "cumulative," rather than exclusive, but the federal courts have thus far concluded otherwise. We will see if the Tennessee Supreme Court chimes in at some point to clarify this dispute -- one about which state courts have the final word. The difference matters because the common law does not have such an express exemption for broadcasts.
Nevertheless, even if a common law claim was possible, it should be rejected in the context of broadcasts, given the players consent to play in the games knowing that they were being filmed and would be televised. The players contracts with the NCAA also include permission to film and broadcast the games, as well as more troublesome assignments of the players' publicity rights to the NCAA. The underlying contracts with the players may be invalid, and certainly are overreaching, as I have argued, but the actual consent to the broadcasts seems hard to challenge. NCAA's copyrights in the broadcasts should preempt subsequent assertions of publicity rights based solely on those broadcasts.
The court disposed of the Sherman Act antitrust claim because no underlying rights in the players' names or likenesses in the context of the broadcasts exist. This raises an issue similar to that raised in the O'Bannon certiorari petition currently before the U.S. Supreme Court. Recall that in O'Bannon the Ninth Circuit found a Sherman Act violation, but in the context of videogames rather than broadcasts.
The Sixth Circuit also rejected the false endorsement claim, concluding that "ordinary consumers have more sense than the theory itself does." Consumers will not think that the appearance of the athletes playing in the broadcast games indicates endorsements of the broadcast or advertised products during the broadcasts.
The Sixth Circuit appropriately rejected the right of publicity claims here, but the decision itself raises several concerns. First, the ongoing conflict between federal courts and state courts in interpreting publicity rights, here a disagreement with Tennessee courts (and arguably with the plain language of the statute) with regard to whether a common law right of publicity exists in Tennessee. Second, a troubling prospect is raised that the athletes might have had an action in a state that does not have a specific exception for sports broadcasts. This possibility of different outcomes in different states across the country is concerning and suggests that it may be time to advocate for explicit federal intervention to address the right of publicity and provide limits that expressly preempt and harmonize state laws in the area.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.