Wednesday, August 17, 2016

6th Circuit rejects college players' Lanham Act, ROP claims

Marshall v. ESPN, No. 15-5753 (6th Cir. August 17, 2016)

Plaintiffs claimed that, as college football and basketball players, they had publicity rights in their names and images as used in TV broadcasts.  “Whether referees, assistant coaches, and perhaps even spectators have the same rights as putative licensors is unclear from the plaintiffs’ briefs.”  Tennessee’s right of publicity statute, however, explicitly excluded any “sports broadcast,” and Tennessee refused to recognize any common-law right of publicity.  This also killed a Sherman Act claim, since there could be no conspiracy to control a non-existent right.

Plaintiffs’ Lanham Act claims failed because—well:

The 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. Suffice it to say that ordinary consumers have more sense than the theory itself does.

But honestly, is this theory (which was justly rejected) any more ridiculous than the theory that consumers might think that a fast food restaurant endorsed a movie about beauty queens?  That consumers might think that Jose Cuervo had partnered with a whiskey company because both used red wax seals among many other packaging devices?  That Budweiser might have endorsed a parody ad for Budweiser Oily?  And, if we have nothing but common sense to guide us here, on what basis exactly is the players’ theory so easily distinguishable from those successful claims that it doesn’t even reach plausibility?


  1. The claim is not plausible because college ball players are not marketplace actors. They're simply students playing a sport that is, relative to all college games played, only very, very rarely televised.

  2. By that logic, I take it you think pro players -- who are market actors and endorse all the time -- could bring a plausible claim under similar circumstances. That seems wrong to me.

  3. No, that doesn’t follow.

    Consumers have a far different perception of college athletes than of professional athletes. The former are seen as talented academic-amateurs still growing into adulthood while the latter are talented adults who've chosen their life path of playing a sport for money. That difference makes the false association or endorcement analysis not comparable.

    Some relatively few professional athletes who're the top stars in their sports are paid to endorse products. With the exception of golfers, the percentage of athletes in any one of the major, televised sports who have national endorsement deals is very low. Those few who do are, admittedly, players in the "product" marketplace. But the majority remainder are in the very narrow marketplace of simply providing services to their sports league -- they are not, and are not perceived by consumers to be -- in the marketplace of providing television coverage of sporting events. Moreover, consumers have learned that when a professional athlete endorses a product he or she does so as an individual, not when in league play as part of a team.

    My take is that even professional athletes do not have a plausible false association or endorsement claim based on commercials being shown during their televised games.

  4. Ok, but then your initial reason--they're college players--isn't the reason. More significantly: how did consumers learn that players endorse as individuals? How do you know they have this perception that college and pro players differ so greatly in endorsements? Who taught them these things? It's not as if we have a class on endorsement relationships in school, though perhaps it should be part of media education. The plaintiffs in these cases are trying to teach them otherwise.

    [Separately, college players aren't endorsers only because of the NCAA rules; there are interesting examples of people getting around that., as well as questions about how well consumers understand the rules. If I were pursuing this theory, by the way, I would point out that it's perfectly possible for a team to endorse, and it might be the case that all the members of the team together agreed to endorse something, as the players' associations routinely do. And the players' associations only started doing that in the past decade or so; markets can change.]

    I'm not disagreeing with the conclusion. It's the ipse dixit of the reasoning in endorsement cases--this is plausible, this isn't--that bugs me.

  5. I think the reason the college athletes’ claim was not plausible is because they’re not marketplace participants, nor seen to be, and the pro athletes’ claim is not plausible because the market in which consumers know the vast majority participate is athletic services – not the production of televised sporting events. So, you’re right, different rationales [the first being responsive to your blog post question, the second responsive to your comment].

    A televised sporting event is an entertainment show – with celebrity color commentators, play by play experts, team mascots, and on-field interviews with players, coaches, game officials, team owners, and league management [all of whom are well-known to sports fans]. Even the venue is another “character” in the show [the fabled history of Boston Garden, Fenway Park, Madison Square Garden and other famous stadiums, the teams’ cheerleaders and dance teams, the half-time show, the hanging jerseys of retired players, the Twelfth Man and other fan-based plots]. Televised sporting events are reality entertainment shows. It is, I think, patently implausible that a consumer of all that entertainment would associate a particular participant of the game being broadcast with any of the various products being advertised during the show. I think it’s that simple.