A couple of recent court cases touch on issues we’ve discussed recently regarding the licensing of image and other trademark-type rights claimed to be held by athletes and sports leagues.
Licensing of NFL Apparel
The big news is that the United States Supreme Court has agreed to hear oral argument in a case involving the National Football League’s ability to engage in exclusive licensing of its merchandise. The case is an appeal by a company called American Needle of an adverse decision in the United States Court of Appeals for the Seventh Circuit. For some 20 years American Needle (along with a number of competitors) had been licensed by the NFL to produce and sell caps bearing NFL logos. But then the NFL decided to enter into an exclusive marketing deal with only one company. After Reebok was awarded the exclusive deal, American Needle challenged the right of the NFL to strike such an exclusive deal. American Needle lost the last round in the Seventh Circuit.
Sports law experts are watching the case because, in a separate petition for Supreme Court review, the NFL itself had asked the Court to broaden the antitrust exemption the NFL currently enjoys. The relief the NFL sought could affect not only all aspects of the NFL’s operation, but also the status and operation of other major professional sports leagues. Since the Supremes appear to have granted only American Needle’s petition for cert, and not the NFL’s, it’s not clear whether the NFL’s requested relief will be fair game when the case is presented. But we’ll be watching to see whether the Court makes any pronouncements that might shed light on how it would rule in other areas regarding licensing of team or player trademarks or image rights.
While the American Needle case involves an overtly commercial use of these trademarks, there is an outside chance that the Court could make a broader pronouncement about the licensing of these rights generally which would affect the ongoing lawsuits by CBS Interactive and Yahoo against the NFL regarding the use of player images and information in fantasy sports. We’d rate this as "highly unlikely" but may attend the oral argument nonetheless.
Use of College Football Player Image Rights in Video Games
More former college football players are stepping up in the pocket to file suit against Electronic Arts for that company’s use of their likenesses in its "NCAA Football" video game. We previously discussed the lawsuit filed by former Nebraska and Arizona State quarterback Sam Keller. That case was filed in the United States District Court for the Northern District of California. Now former Rutgers quarterback Ryan Hart has filed a similar action in a state court in Somerville, NJ. He is joined in this lawsuit by former University of California quarterback Troy Taylor.
So, while college football players may or may not attend class, at least a few former players might become part of a class action lawsuit.