June 27, 2022

Volume XII, Number 178

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June 27, 2022

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Sixth Circuit Rejects College Athletes’ “Legal Fantasy”

The Sixth Circuit issued a short tongue-lashing this week, calling claims by former college athletes in Marshall v. ESPN, “a legal fantasy.”  Former basketball and football players brought a putative class action against college athletic conferences and TV networks, claiming a right to the licensing of their names and images in the television broadcast of their college sports games.  Without licenses from every player, the plaintiffs argued, those broadcasts are illegal.

“To state the plaintiffs’ theory in this case is nearly to refute it,” the unanimous panel held.  The players grounded their claims in Tennessee state law on rights of publicity.  But the Sixth Circuit ruled that Tennessee law does not recognize a “right of publicity” for the players in this context.  The Tennessee statute contains an express exemption for “sports broadcast,” and the Court suggested that the statute is exclusive.  The Court further concluded that there is no common law claim recognized in Tennessee courts.

Based on the holding that no such licensing rights exist in this context, the Court also rejected a Sherman Act claim alleging a price-fixing scheme to fix the price of those rights at zero.  A false endorsement claim under Lanham Act received similar cursory treatment.  Plaintiffs alleged that defendants created a false perception that the athletes endorsed products being advertised during broadcasts.  But, “[o]rdinary consumers have more sense than the theory itself does,” the panel explained.

This case turned on exceptions in Tennessee state law to rights of publicity.  Whether such claims could remain viable under the law of other states is not addressed by the panel, although the opinion suggests courts will remain skeptical.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume VI, Number 232
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About this Author

Lauren S. Kuley Appellate & Supreme Court Attorney Squire Patton Boggs Cincinnati, OH
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Lauren Kuley is co-chair of the Appellate & Supreme Court Practice. She leads complex appeals and critical motions practice in courts nationwide. She simplifies complex issues and develops creative arguments to curtail legal disputes and overturn bad outcomes. Deploying this strategy, Lauren has argued and won reversals of significant verdicts on appeal and obtained dismissal of high-stakes claims at the pleading stage in federal courts. In the US Supreme Court, Lauren authored the briefs leading to a unanimous reversal for a Fortune 500 company. Lauren previously served in the Ohio...

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