Student-athletes' right of publicity claims can ground antitrust claims

In re NCAA Student-Athlete Name & Likeness Licensing Litigation, No. C 09-1967 (N.D. Cal. Oct. 25, 2013) 

Plaintiffs, current and former college athletes, sued the NCAA; they also sued Collegiate Licensing Company and Electronic Arts, but settled those claims.  This decision concerned only the antitrust plaintiffs, not the pure right of publicity plaintiffs (whose allegations are that the NCAA misappropriated their names, images, and likenesses in direct violation of statutory and common law rights of publicity).  The antitrust plaintiffs, by contrast, alleged that the NCAA violated antitrust law law by conspiring with EA and CLC to restrain competition in the market for the commercial use of their names, images, and likenesses.        

The NCAA required student-athletes to sign releases in order to be eligible to compete.  The releases relinquished all of their righst to the commercial use of their images in perpetuity.  In reliance on these allegedly “purposefully misleading” forms and on its bylaws, the NCAA sold or licensed student-athletes’ identities to third parties like CLC and EA.  As a result of a price-fixing conspiracy/group boycott, student-athletes couldn’t receive compensation for the commercial exploitation of their identities after they stopped competing, allegedly interfering with their ability to compete in the market for the acquisition of “group licensing rights” for student-athletes’ identities in game broadcasts, rebroadcasts, and videogames.  The proposed class definition now covers student-athletes whose names, images, and likenesses were featured specifically “in game footage or in videogames” (down from an initial proposal covering apparel, highlight films, and other NCAA-branded merchandise). 

The court first rejected the NCAA’s argument that precedent barred the antitrust claim.  Turning to the specific publicity rights issues, the NCAA argued that the First Amendment, and California statutory law, barred any assertion of a right of publicity in the use of student-athlete identities in game broadcasts.  This was relevant because their antitrust claims depended, in part, on the existence of a “group licensing” market for such broadcasts/rebroadcasts.  Because of the recent terrible ruling on publicity rights in this litigation, the NCAA couldn’t make this argument for videogames, so the antitrust claims for that market remained.

Although the California statute provides that an individual has no right of publicity in the “use of [his or her] name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account,” that only covers California law.  Plaintiffs aren’t barred from licensing their publicity rights in any other state that recognizes the right of publicity, and the NCAA didn’t show that every other state has the same limits. 

Also, the First Amendment was not a limit.  “Neither the Supreme Court nor the federal courts of appeals have ever squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts.”  Zacchini didn’t provide clear guidance for a balancing test, but other cases have allowed related claims.  Pooley v. Nat’l Hole-In-One Ass’n89 F. Supp. 2d 1108 (D. Ariz. 2000), held that the First Amendment did not bar a professional golfer’s right-of-publicity claim against a company that used footage of him to promote its fundraising events, because of the “strictly commercial” purpose.  The original broadcast may have been protected, but not its “subsequent unauthorized reproduction.” Dreyer v. NFL, 689 F. Supp. 2d 1113 (D. Minn. 2010), involving NFL Films’ promotional videos, “also held that use of footage of an athlete’s past accomplishments is not entitled to First Amendment protection when it is done exclusively for commercial purposes.” 

Whether a use is primarily commercial involves a highly fact-specific analysis.  Though it’s a question of law, it can’t always be decided at the pleading stage.  The plaintiffs provided only general descriptions of the broadcasts and rebroadcasts in which they asserted publicity rights; the complaint mentioned live game broadcasts, rebroadcasts of “classic games,” highlight films, and “‘stock footage’ sold to corporate advertisers,” but offered scant details about each.  Still, construing the complaint in the light most favorable to plaintiffs, it was plausible that at least some of the footage, particularly promotional highlight films and stock footage sold to advertisers, was used “primarily” for commercial purposes.  If the NCAA re-raised the issue on summary judgment, plaintiffs would need to submit evidence that the relevant broadcast footage, including both archival games and live broadcasts, was used primarily for commercial purposes.

Finally, the court rejected the NCAA’s copyright preemption argument because plaintiffs weren’t seeking to protect their own copyrights but rather to license commercial uses of their images; persona isn’t copyrightable so §301 doesn’t apply; and the underlying claims were based principally on an injury to competition, not simply misappropriation.  “Intellectual property rights do not confer a privilege to violate the antitrust laws.”