You could have predicted this play from the very beginning of the legal game. Fox, NBC and CBS along with WME, IMG and ESPN want to see a potentially sprawling legal action filed over two months ago by 10 college football and basketball players tossed. A filing in federal court earlier this week requested “an Order granting the Network Defendants’ Motion and dismissing all allegations and claims against the Network Defendants.” (read it here)
“In further support of the grounds for dismissal submitted by the other Defendants, the Licensing Defendants amplify and add that the United States Supreme Court has already conclusively resolved the antitrust issue in the Complaint, inasmuch as it held that the NCAA’s amateurism rules, which Plaintiffs allege are anti-competitive, do not violate the Sherman Act and, in fact, are pro-competitive,” added WME, IMG Worldwide and others in a separate motion of their own filed in Nashville on December 10 (read it here).
The main thrust of the October 3 suit by the college athletes was that the networks and others “have profited from the broadcast and use of Student Athletes’ names, likenesses and images without the Student Athletes’ permission.” The complaint came as a judicial ruling that the NCAA can’t deny players some degree of payment from the use of their likeness – a ruling currently being appealed by both sides. In this case, plaintiffs Javon Marshall, Steven Clarke, Patrick Miller, Chaz Moore, Rod Wilks, Marlon Walls, Chris Conner, Byron Moore, Sean Parker and Eric Samuels want a jury trial and judgment that could see a payout of megabucks.
Not so fast said ESPN, ABC, CBS, NBC, Fox and others this week.
“Plaintiffs’ claims against the Network Defendants are fatally flawed,” said the memo of law that the networks submitted in support of the motion (read it here). “Most critically, Plaintiffs’ asserted ‘right of publicity’ does not exist. Tennessee law expressly holds that participants in sporting events have no rights of publicity in the broadcasts of those events.”
“So does the law of every other state to address the issue,” they added in the case assigned to U.S. District Judge Kevin Sharp. In fact, they think it would turn the broadcasting of college games into a logistical nightmare.
“To hold otherwise would mean chaos for sports broadcasting, among other effects. Not only would sports broadcasters have to obtain the consent of every athlete in every game prior to its broadcast, but, by Plaintiffs’ logic, they also would be required to obtain the consent of anyone else who might appear on the broadcast, including coaches, referees, cheerleaders and fans.”
The networks want the plaintiffs to pay for the cost of the suit. The self-described licensing defendants want the same and the dismissal to be “with prejudice” AKA forever.
Guess the ball is in the plaintiffs’ court now.
The licensing defendants are repped by a legion of lawyers led by W. Scott Sims of Nashville’s Sim Funk, PLC and Richard L. Stone and David Singer of Jenner & Block LLP’s LA and NYC offices for WME and IMG Worldwide. The network defendants also have individual lawyers in Nashville, D.C., LA and NYC with Evan Chesler of NYC’s Cravath, Swaine & Moore is leading one of the teams of attorneys. John Parker Branham of Nashville offices of Bone, McAllester & Norton PLLC is leading the legal team from the plaintiffs.