Former college players claiming they should be reimbursed for the broadcasting of games they played in recently endured another defeat. On August 17, 2016, the Sixth Circuit dismissed their claims after the district court had done the same in 2015. The suit was filed against ESPN, CBS, NBC, and other broadcasting networks and several conferences in 2014. Javon Marshall, former Vanderbilt football player, and the proposed class of former student athletes are claiming violations of the Sherman Act, Lanham Act, and Tennessee Law.
The plaintiffs claimed that the Tennessee law provided them with a “right of publicity.” The three judge panel, in a succinct two-page opinion held that the “argument is a legal fantasy.… Specifically, the plaintiffs’ statutory claim under the Tennessee Personal Rights Protection Act is meritless because that act expressly permits the use of any player’s name or likeness in connection with any ‘sports broadcast.’”
In response to the student’s Lanham Act, which bars the use of a person’s name or likeness in commerce when it’s ‘likely to cause confusion,’ the court used a scathing analogy. The court argued that “[t]he theory here is that if, say ESPN shows a banner for Tostitos at the bottom of the screen during a football game, then consumers might become confused as to whether all the players on the screen endorse Tostitos.” The court concluded: “[s]uffice to say that ordinary consumers have more sense than the theory itself does.”
The broadcasters feared, among other things, that if the players would win, the commentators would never be able to criticize the players on air. It looks like the broadcaster can set their fear aside for now.