By Eriq Gardner, The Hollywood Reporter
A memorandum to dismiss raises the prospect of a telecast where players can never get criticized by commentators
In an effort to dismiss a proposed class action, ESPN, CBS, Fox, ABC and NBC have outlined what would happen if a Tennessee federal judge allows college athletes to assert publicity rights on sports broadcasts.
According to a memorandum filed by the broadcasters on Wednesday, the parade of horribles includes other “performers” such as coaches, cheerleaders, referees, medical personnel, marching band members, halftime performers and even spectators from holding games hostage with compensation demands.
“If even one person or estate refused to agree to a license, the ability to broadcast the game accurately would be destroyed forever,” states the broadcasters’ legal papers.
The memorandum then suggests that if even one participant’s consent is required, “the temptation will be extreme for the last player to ‘hold out’ for vast sums, for each player to delay consenting in the hopes of being the last, for ‘star’ players to hold out at the expense of their teammates, and so on.”
But it gets even worse, in their opinion.
“Moreover, each individual would be free to try to control the message of the broadcaster — for example, by agreeing to be filmed only if the broadcaster praises their performance or disparages a rival from the other side,” says the memo. “Those scenarios would also impact the broadcast (even local cable broadcasts) of all manner of less organized sports and group performances, ranging from Little League baseball games to small-town parades and even possibly activities like school spelling bees.”
The broadcasters are looking to avoid this nightmare by convincing the judge that these athletes have no publicity rights to even proceed with the lawsuit. Since the case is in Tennessee, the lawsuit focuses on publicity rights under that state’s law. But the broadcasters argue that Tennessee’s publicity rights law is rather narrow, focused on advertising and explicitly exempting sports broadcasts.
The defendants address the landmark rulings of a judge presiding over a class action brought by athletes led by former UCLA basketball star Ed O’Bannon against the NCAA. That case was an antitrust lawsuit — not directly a publicity rights lawsuit — but nevertheless, it was premised on the idea that the NCAA is a cartel that forces student-athletes to sign release forms giving up their publicity rights and that the collegiate sports association then engages in an antitrust conspiracy with licensees to enforce a boycott of licensing with athletes.
In that case, which is now under appeal at the 9th Circuit, U.S. District Judge Claudia Wilken came to the conclusion that athletes could have publicity rights and whether they owned rights in their athletic performances depended on whether they validly transferred such rights. She also shrugged off objections that broadcasters’ First Amendment rights trumped those rights.
In the memorandum to support dismissal of the latest legal attack from college athletes, the TV networks calls the O’Bannon decision an “outlier” with the judge nodding to Minnesota as a state where athletes hold publicity rights in their performances. But the TV networks say that have O’Bannon was decided, a Minnesota judge reached the opposite conclusion in a dispute brought by former NFL players over game footage.
Besides arguing the limited nature of Tennessee’s publicity rights law, the broadcasters also rehash many arguments that have been put forward in the O’Bannon case — ones that are likely to be ruled upon soon by appeals courts. Among them is the view that legal precedent supports the position that it is the producer of a sporting event that holds exclusive rights to license the game for telecast, that state publicity rights claims are preempted by federal copyright law, and that the claims are barred by the First Amendment.
The class action brought by lead plaintiffs like former Vanderbilt University football player Javon Marshall also targets so-called “licensing defendants” including IMG Worldwide and William Morris Endeavor as well as “conference defendants” including the Southeastern Conference and the Big 10 Conference. Those classes of defendants have also submitted motions to dismiss that make similar arguments.
The case is being tried before U.S. District Judge Kevin H. Sharp.