College Athletes Suffer Legal Setback In Marshall v. ESPN; Is Plaintiffs' Poor Choice Of Forum To Blame?

In a widely overlooked antitrust decision from earlier this month, the U.S. District Court for the Middle District of Tennessee recently dismissed the claims of eight former college football players in Marshall v. ESPN -- one of the many spin-off publicity rights and antitrust lawsuits to O’Bannon v. National Collegiate Athletic Association. The plaintiffs’ loss in Marshall can be largely attributed to their poor choice of forum. Tennessee’s right-of-publicity statute is uniquely tough on the televised use of athletes’ likenesses. Meanwhile the U.S. District Court for the Middle District of Tennessee is one of the toughest federal courts in which to bring a Sherman Act claim against college sports entities.

In contrast with Judge Wilken's generally favorable decision for the plaintiffs in O’Bannon v. NCAA, the court in Marshall held that the eight college football-player plaintiffs do not have any cognizable publicity rights in the televised use of their likenesses under Tennessee state law. This is because Tennessee's statutory right of publicity explicitly states that "[i]t is deemed a fair use and no violation of an individual's rights shall be found ... if the use of a name, photograph, or license is in connection with ... [a] sports broadcast or account."

Additionally, the district court in Marshall held the football-player plaintiffs cannot state an antitrust claim against the college sports industry’s collective restraints on athlete compensation because of numerous circuit-specific amateurism defenses. This is not surprising as it has been repeatedly explained in academic literature that federal courts based in the Third and Sixth circuits have adopted a uniquely broad level of deference to the NCAA’s amateurism rules. Because the U.S. District Court for the Middle District of Tennessee lies within the Sixth Circuit, prior decisions from cases such as Bassett v. NCAA, 528 F.3d 426 (6th Cir. 2008) and Gaines v. NCAA, 746 F.Supp. 738 (M.D. Tenn. 1990) foster significant deference to the status quo in college sports.

The main lesson that should be learned from the Marshall ruling is that plaintiffs’ lawyers need to be very careful when selecting where to challenge the restrictive practices of college sports entities. Because defendants in Marshall encompassed most U.S. states, there was absolutely no reason for lawyers in Marshall to choose to sue in the U.S. District Court for the Middle District of Tennessee, or to argue exclusively a violation of Tennessee’s right of publicity statute. From a purely antitrust perspective, the U.S. District Court for the District of Kansas or the U.S. District Court for the Western District of Oklahoma would have made for more reasonable forums based on favorable past precedent involving antitrust challenges against the NCAA. Similarly, with respect to the right of publicity claims, the plaintiffs in Marshall perhaps should have argued the violation of a publicity rights statute based on the law of a state other than Tennessee. Indeed, many other states do not include an express statutory carve-out for the use of likenesses in televised sports broadcasts.