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Weil Secures Sixth Circuit Victory for CBS in Student-Athlete “Name, Image and Likeness” Class Action

On August 17, Weil won another major victory for CBS in a putative nationwide class action lawsuit filed against a host of college athletic conferences, networks, and licensors, relating to the broadcast of college sports games, when the U.S. Court of Appeals for the Sixth Circuit issued a unanimous opinion affirming the lower court’s dismissal of all of plaintiffs’ claims.

Plaintiffs, current and former student-athletes who played National Collegiate Athletic Association (NCAA) Division I college football or basketball, alleged that CBS and its co-defendants profited from the broadcast and use of those student-athletes’ names, images and likenesses without permission. Plaintiffs’ claims included causes of action for violations of Tennessee’s right of publicity statute, the Sherman Act, and the Lanham Act.

In June 2015, in a landmark decision, the U.S. District Court for the Middle District of Tennessee granted the defendants’ motion to dismiss with prejudice. The court ruled that there was no right of publicity for participants in sporting events under Tennessee law, and with respect to Plaintiffs’ antitrust claims, the court rejected Plaintiffs’ claim that the broadcast contracts that purportedly transfer student-athletes’ names, images, and likenesses are the unreasonable restraint of trade, and rejected Plaintiffs’ allegations of antitrust injury or reduced competition, noting that “undoubtedly, there is stiff competition among the conferences to secure air time for games, [and] among the networks to broadcast those games…and Plaintiffs’ allegations suggests as much.” With respect to the Lanham Act claims, the court held that broadcasting sporting events does not propose a commercial transaction, but rather depict real events and distribute desired speech, and there was no confusion about what the student-athletes depicted in the broadcasts are doing. All remaining claims were dismissed as linked to the primary claims.

Plaintiffs subsequently appealed.

In a 3-0 opinion, the Sixth Circuit hailed the district court’s decision as “notably sound and thorough” and noted “we have little to add”, calling plaintiffs’ theory “legal fantasy” and “meritless”, and highlighting that plaintiffs’ purported “right of publicity” simply does not exist.

The Weil team was led by litigation partners Jim Quinn, Yehudah Buchweitz, and Eric Hochstadt, and assisted by litigation associates Jessie Mishkin, Joseph Adamson, Kevin Kramer, Tracy Ederer, Cameron Bonk, and Joy Dineo.