Marshall v. Espn Inc.

111 F. Supp. 3d 815 (2015)

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Nature of the Case

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Facts

Ps are eight former college football players and two former college basketball players. Ds are more than two dozen separate entities that fall into three camps. The assorted athletic conferences, specifically the Atlantic Coast Conference, Big East Conference, Inc., Big 12 Conference. The networks, specifically, ESPN Inc., CBS Broadcasting Inc., NBCUniversal Media, LLC, ABC, Inc., Fox Broadcasting Company, Big Ten Network, LLC, SEC Network, and Longhorn Network. The licensing agencies, specifically, Outfront Media Sports, Inc. (f/k/a CBS Collegiate Sports Properties, Inc.), IMG Worldwide, LLC, IMG College, LLC, William Morris Endeavor Entertainment, LLC, JMI Sports LLC, Learfield Sports LLC, T3 Media, Inc., and TeleSouth Communications, Inc. Ps complaint states that student-athletes have been foreclosed from the market for the licensing, use, and sale of their names, images, and likenesses. Ps allege that Ds’ collective actions exclude Student-Athletes from the marketplace of their own names, images, and likenesses has caused the unlawful result of fixing the amount that current and former Student-Athletes are paid for the licensing and sale of their names, images, and likeness at zero or, at most, their cost of attendance. Ps claim that the use of Student Athletes' names, images, and likenesses is unauthorized because Student-Athletes have not legally assigned their publicity rights to Ds, the NCAA, or third parties acting on behalf of the NCAA. Ps claim the Broadcast Defendants refuse to negotiate or enter into contracts with Student-Athletes. In so doing, they have adopted and implemented the restrictive bylaws and rules of the NCAA and Conference Defendants. In accordance with NCAA rules, intercollegiate sports are limited to the participation of 'amateur' athletes. According to the rules student-athletes should be protected from commercial exploitation by professional and commercial enterprises. A Student-Athlete may lose his or her amateur status if he or she uses their athletic skill (directly or indirectly) for pay in any form in that sport. In order to participate in NCAA sports, Student-Athletes are required to sign a 'Form 08-3a,' that 'allows the NCAA to use the Student Athlete's name or picture to `generally promote' NCAA championships or other NCAA events, activities or programs.' By an amazing coincidence, 'Student-Athletes desiring to extend their athletic careers beyond high school are left with no comparable alternative to accepting a scholarship from an FBS football or Division I basketball school.' Both the National Football League (NFL) and the National Basketball Association (NBA) prohibit high school players from entering their leagues directly after high school. In order to play at a competitive level, Student-Athletes have little or no choice but to accept a scholarship and sign Form 08-3a, making the Form 'a contract of adhesion and unenforceable.' Ps claim that the NCAA and Ds have 'multi-billion dollar agreements,' yet 'the Student-Athlete receives nothing or, at most, the cost of attendance.' While the NCAA 'purports to protect Student-Athletes from commercial exploitation, it has conspired with Ds to create an anticompetitive market where Student-Athletes are powerless to realize the commercial value of their names, images, and likenesses.' A basketball scholarship at the University of Kentucky is worth approximately $12,000 per year, yet the basketball team consisting of no more than 13 scholarship players, generated approximately $23 million dollars in revenue in 2012. Approximately 50% of NCAA football and men's basketball players are left without a college degree. The average FBS football student-athlete has a fair market value of $456,612 'above and beyond' the value of their scholarship, and the average men's basketball player has a fair market value of $1.06 million over four years, not including his scholarship. Ps allege a statutory violation of the right of publicity under Tenn.Code Ann. § 47-25-1105 (First Cause) and a violation of the right to publicity under Tennessee common law (Second Cause); the Third Cause, also against all Ds, alleges a civil conspiracy; the Fourth Cause, again against all Ds, alleges a violation of Section 1 of the Sherman Antitrust Act; the Fifth Cause, against only the Licensing and Network Defendants, alleges false endorsement in violation of Section 43(a) the Lanham Act; and the Sixth Cause, against all Ds, alleges unjust enrichment; and the Seventh Cause seeks an accounting as to all Ds. Ds moved to dismiss.