We have previously reported about the burgeoning field of litigation involving the use of athletes’ images, personal information and statistics by various secondary industries, such as fantasy sports, video games and other marketing endeavors. Good news. That field continues to burgeon with the recent suit filed by several former NFL starts against (and here’s a twist) the NFL itself. Don’t bother to stay tuned for film at 11 – read on!

As the old saying goes, you can’t tell the players without a scorecard.  So let’s recap the lawsuits that are already on the books.

1996:  The NBA sues to prevent Motorola and “Stats, Inc.” from distributing information from basketball arenas in real time, alleging violations of, among other things, copyright, trademark and right of publicity (commercial misappropriation). Verdict: Motorola/Stats, Inc. win, as the United States Court of Appeals for the Second Circuit rules that the NBA does not “own” the factual information about its games.

2008:  Major League Baseball falls to C.B.C. Distribution and Marketing, a fantasy sports purveyor, when the U.S. Court of Appeals for the Eighth Circuit rules that players’ names, biographies and statistics can be freely used because they’re akin to news that’s generally available. The Court rejects the notion that names, bios and stats are subject to overall “image right” that can be claimed, and commercially marketed, by the player, team or league alone.  This opens the door for all fantasy sports providers to drop their existing marketing contracts with major sports leagues, costing those leagues millions in licensing revenues.

2008: CBS Interactive grabs a page out of C.B.C. Distribution and Marketing’s playbook and sues the NFL, seeking a declaratory judgment allowing it to use these same types of player information (names/backgrounds/ stats) in its NFL fantasy football game.   CBS files its suit in Minnesota. Why Minnesota?  Because that’s in the same 8th Circuit that was so kind to C.B.C. Distribution and Marketing.  Guess what?  It works.  The District Court rules in favor of C.B.S Interactive in April 2009. 

Meanwhile, we also have a number of games still in progress, as big-name players – presumably prevented from recouping image rights (either directly or through the leagues or player associations supposed to represent them) for the use of the names, etc., in fantasy sports – began to find new ways to try to monetize their commercial images . . .

May, 2009:  Several former college football players file a class action  lawsuit in federal court in California, alleging that EA Sports, the maker of several popular sports video games, is using their images without permission (even though the players’ real names appear nowhere in the game). This case is pending trial.

June, 2009: Several more former college players file another lawsuit against EA Sports.  They “get in the game” in a state court in New Jersey.   This case is also pending trial. 

July, 2009:  Former UCLA basketballer Ed O’Bannon (last seen selling cars outside Las Vegas) files a lawsuit against EA Sports.  Yep, still pending. 

So, let’s see, we’ve got: 

  • Lawsuits between the leagues and the fantasy sports companies, with a clean sweep by the fantasy sports companies to date;
  • Lawsuits by former college athletes against video game makers, with no resolution thus far;
  • Leagues continuing to represent their current players with regard to use of those players image rights in all manner of commercial formats.

What’s missing?   As we see, about the only permutations or combinations we haven’t seen yet involve (a) former pro players getting getting back into the action and (b) lawsuits by athlete(s) against his/her/their league. 

That’s why we’re so happy to report that former NFL’ers John Dryer, Jim Marshall, Joe Senser,  Elvin Bethea, Dan Pastorini, and Ed White have filed a class action lawsuit against their former league, alleging that their images are being used in NFL films and other products  without their permission or any compensation.  Former pro players suing their former league! Two for the price of one!

The lawsuit alleges that the NFL “trades on the ‘glory days’ of the NFL as a marketing and advertising technique”, netting the NFL big bucks while the players get nothing.  The NFL, through its NFL Films website, offers hundreds of productions for $50 each, using the names and likeness of over 450 former players in the films and for promotion purposes. According to the players, such uses constitute: “false endorsement” (a violation of the Lanham Act); appropriation of the “right of publicity” under Minnesota, California and Texas law; and violations of the common law “right of publicity” under just about every other state’s laws. The players also allege that the league has engaged in unjust enrichment at their expense. 

The players seek all damages allowed under law and equity (and, for good measure, reimbursement of attorneys’ fees and court costs). 

What’s really interesting about this one – other than the fact that the players are now biting the very hand that once fed them (even if you believe the meals were of less than adequate size and, ultimately, extremely unhealthy) – is that the players’ complaint was filed in the United States District Court for the District of Minnesota.

But wait! Isn’t that the same court that has already declined to protect the names and likenesses of NFL players from use in fantasy sports? (Sure, that suit pitted the league’s marketing arm, not the players themselves, against the fantasy sportsters, but the same basic likenesses, images, etc., were at issue.) And isn’t that in the same 8th Circuit that ruled against MLB player seeking compensation (again, through their league’s marketing arm) for use of their names and likenesses in fantasy sports as well? Yes and Yes.

So what’s the deal? Have these players simply taken one too many blows to the head?  Surely they must know that the Court will bat this one down at the line of scrimmage once again!  Perhaps, but there’s plenty of reason to think they’ll emerge victorious as well. 

First, they know that the Court will not move the case for lack of jurisdiction, having ruled in the earlier NFL case that jurisdiction in Minnesota is proper due to sufficient minimum contacts there. So that’s one major procedural matter they don’t have to worry about.

Substantively, we think that the players’ lawyers have read between the lines of the earlier NFL and MLB cases and believe that the judges in each of those earlier cases ruled for the fantasy sports companies because the information used was so factual in nature that it could be obtained anywhere.  The court essentially viewed the player names, backgrounds and statistics as “news” to which the leagues could not claim any exclusive right. That would be distinct from using commercial images in which somebody – perhaps the players, perhaps the teams, perhaps the league – could properly assert a proprietary claim.  

If the earlier courts did rest their verdicts on that side of a “commercial/noncommercial” line, it would make sense for them to do the same here. But in this latest case, the courts could easily conclude that the material in question – featuring overtly commercial use of particular players’ readily-identifiable images – is entitled to precisely the kind of protection that the broader, noncommercial, informational name/background/stats stuff did not merit.  

One thing is for sure: the younger generation of college players who have sued EA Sports will be watching these elder statesmen closely, as we’ll likely see similar results for young and old.