Contractual Issues Intellectual Property NCAA Violations

Former Student-Athletes File Lawsuit To Protect Their Rights of Publicity: Recap of Marshall v. ESPN (filed 10/3/14)

Ten former college football and basketball players, mostly residents of Tennessee, filed a class action lawsuit on October 3, 2014 in the United States District Court for the Middle District of Tennessee, Nashville Division. The plaintiff athletes, having played football and/or basketball for Vanderbilt University and The University of Tennessee, among other schools, seek to recover damages from the major television networks, licensing companies, and college athletic conferences that they allege were unjustly enriched by misappropriating their names, images, and likenesses in advertisements and broadcasts without their consent.

The Complaint names defendants in three classes. The “Broadcast Defendants” include ESPN, CBS, NBC, ABC, and FOX. The “Conference Defendants” include the ACC, Big Ten, Big 12, Pacific-12, Conference USA, Big East, and Ohio Valley Conference. Finally, the “Licensing Defendants” include IMG Worldwide, IMG College, Big Ten Network, CBS Collegiate Sports Properties, JMI Sports, TeleSouth, T3 Media, SEC Network, Longhorn Network, Learfield Sports, LLC, and William Morris. The Complaint references the NCAA, which the plaintiffs allege to have colluded with the named defendants in “conspir[ing] to fix the amount Student Athletes are paid for the licensing, use, and sale of their names, images, and likenesses at zero or, at most, a portion of the cost of attendance[.]”

The Complaint states seven causes of action in total. In the First and Second causes of action, the former student-athletes claim violations of their rights of publicity. The Fifth cause of action states a claim of false endorsement in violation of Section 43(a) the Lanham Act (15 U.S.C. § 1125(a)). The common law has historically worked to protect individuals’ rights of publicity, with variations in jurisdiction. The Lanham Act, enacted in 1946, is federal law that protects trademarks; it also gives individuals a cause of action for false affiliation and false endorsement.

Section 43(a)(1)(A) of the Lanham Act states:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term name, symbol, or device, or any combination thereof . . . , which-

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . . shall be liable in a civil action by any person who believes that her or she is or is likely to be damaged by such act.

The defendants’ use of images of the athletes playing their sports in advertisements and promotions certainly can be said to sound of false endorsement in light of the statutory provision. However, the defendants will likely argue that they were validly affiliated with the athletes due to their mandated agreement to Part IV of Form 08-3a. The plaintiffs are alleging a willful, conspired contractual arrangement between the defendants and the NCAA to restrict their ability to profit in the fair market from their publicity rights. The defendants are certain to forcefully contest this claim.

The initial hurdle for the athletes to overcome, and the so-called “linchpin of [d]efendants’ unlawful conduct,” is the waiver that all student-athletes are required to sign in order to participate: Form 08-3a. Part IV of Form 08-3a reads as follows: “You authorize the NCAA [or a third party acting on behalf of the NCAA (e.g., host institution, conference, local organizing committee)] to use your name or picture to generally promote NCAA championships or other NCAA events, activities or programs.”

The plaintiffs contend that Form 08-3a is unenforceable and thus, they never “legally assigned their publicity rights to Defendants, the NCAA, or third parties acting on behalf of the NCAA.” In determining this issue, the court will consider several things including whether the term is unconscionable, consideration given to the plaintiffs, and any forfeiture that would result if enforcement were denied.

Marshall and the nine other former student-athlete plaintiffs have opened the door for a potentially massive group of former student-athletes that may have had their rights of publicity violated. The District Court’s ultimate decision on the enforceability of Form 08-3a has glaring implications on whether this group can succeed in their lawsuit for disgorgement of profits and monetary damages.

U.S. District Judge Claudia Wilken ruled in August that the NCAA can’t enforce rules that prevent member schools and conferences from offering student-athletes a limited share of the revenues generated from the use of their names, images and likenesses in addition to a full grant-in-aid. This ruling bodes well for a finding that Form 08-3a is indeed unenforceable. The trend is moving in favor of allowing student-athletes to profit from their public images. This lawsuit has the potential to provide a great leap to former, current, and future student-athletes in achieving that goal.


Complaint can be found here: