## Facts

- Javon Marshall and other current and former NCAA Division I football and basketball players sued broadcasters, athletic conferences, and related licensing entities on behalf of a putative nationwide class of student-athletes.
- Plaintiffs alleged defendants earned substantial revenue from live and rebroadcast game telecasts, highlights, and related programming featuring players’ names, images, and on-field performances.
- Plaintiffs alleged NCAA amateurism rules effectively prevented players from receiving compensation beyond limited permitted benefits and that defendants coordinated to maintain player compensation at “zero” (or limited to cost of attendance) for broadcast-related uses.
- The NCAA was not named as a defendant.
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

## Issues

1. Whether Tennessee’s statutory or common-law right of publicity permits college athletes to recover for the use of their names or likenesses in televised sports broadcasts.
2. Whether plaintiffs stated a Sherman Act § 1 claim based on an alleged horizontal agreement to fix at zero the price of licenses for athletes’ purported broadcast-related publicity rights.
3. Whether televised game broadcasts support a Lanham Act § 43(a) false-endorsement claim based on alleged consumer confusion.
4. Whether state-law civil conspiracy and unjust enrichment claims can proceed absent an actionable underlying right or unlawful act.

## Decision

- The district court granted defendants’ motions to dismiss and dismissed all claims with prejudice.
- The court held Tennessee’s Personal Rights Protection Act exempted uses of a name, photograph, or likeness in connection with sports broadcasts, defeating the statutory right-of-publicity claim.
- The court rejected a parallel Tennessee common-law right-of-publicity theory in the broadcast context, treating the statutory scheme and its exemptions as controlling.
- The court dismissed the Sherman Act claim for lack of antitrust injury because plaintiffs had no cognizable underlying property/publicity right in the broadcast uses allegedly subject to price-fixing.
- The court dismissed the Lanham Act false-endorsement claim because game broadcasts were not “commercial advertising or promotion” and plaintiffs did not plausibly allege likely consumer confusion.
- The court dismissed civil conspiracy and unjust enrichment claims as derivative of the failed primary theories.
- The Sixth Circuit affirmed in an unpublished disposition, agreeing the asserted publicity right in ordinary sports telecasts did not exist under Tennessee law and that the antitrust and Lanham Act theories failed for the same reasons.

## Legal Principles

- Tennessee’s Personal Rights Protection Act exempts the use of a person’s name, photograph, or likeness in connection with a sports broadcast or account, precluding statutory publicity claims for ordinary game telecasts.
- Where state law does not recognize the claimed publicity/property right in the challenged use, plaintiffs cannot establish antitrust injury premised on a conspiracy to suppress the “price” of that non-existent right.
- Lanham Act § 43(a) false-endorsement liability requires likely consumer confusion and generally targets misleading commercial promotion; televised sports game content, without more, does not plausibly imply athlete endorsement of the broadcaster or advertised products.
- Civil conspiracy and unjust enrichment claims generally fail where the alleged conduct is not independently unlawful and the plaintiff lacks an actionable underlying right.

## Conclusion

The courts held that Tennessee law does not provide college athletes a right of publicity against broadcasters for ordinary televised game broadcasts and that, without such a protectable interest, related antitrust, Lanham Act, and derivative state-law claims based on uncompensated telecasts were not legally viable.


Marshall v. ESPN, Inc., 111 F. Supp. 3d 815 (M.D. Tenn. 2015), aff’d, No. 15-5753 (6th Cir. Aug. 17, 2016)