September 22, 2014

NFL on Defense Against Retirees in Right of Publicity Lawsuit

by Stites & Harbison, PLLC

The NFL just can't catch a break this week. Forty retired football players sacked the NFL with lawsuits, alleging injury as a result of the NFL's unauthorized use of their identities. The complaints, which were all filed in the U.S. District Court for the District of Minnesota, claim that the NFL used the retired players' names, images, symbols, and likenesses for the purpose of promoting the NFL, selling NFL-related merchandise, and otherwise generating income for the NFL and the NFL's member teams. The retirees claim that they have never been compensated by the NFL for use of their identities.

Bobby Abrams
Former NFL player Bobby Abrams is one of many plaintiffs who filed suit against the NFL.

Specifically, the players allege that the NFL "produce[s] commercial and promotional films highlighting the NFL's past, utilizing raw footage of former players taken from their voluminous archive of filmed professional football games and related events, and developing brand new promotional and marketing products based on that footage." The players allege that the NFL broadcasts "hundreds of hours" of film and productions featuring the retired players each year without their permission and without compensation.

4 Nflfilms Case Study1

The retirees are also fired up over the fact that the NFL prohibits them from using their own identities as players to promote themselves commercially or otherwise profit. The allegations state that, "[if] a player attempts/attempted to promote himself or his business by showing footage of himself as a player, the NFL would immediately order him to cease. The NFL does, in certain circumstances, allow such promotional uses by retired players, but only if a player pays the NFL exorbitant sums for the right to do so. Even then, the player is at the mercy of the NFL, which maintains the ability to withdraw its permission at any time, for any reason or for no reason at all."

The retired players brought a claim for false endorsement under the Lanham Act, a claim for a violation of the state right of publicity, and a claim for unjust enrichment. The players seek damages and also seek to prohibit the NFL from broadcasting, distributing or disseminating any product using their names, images, symbols, and/or likenesses.

These lawsuits take a play out of an old playbook. As early as 2009, retired players have been bringing the NFL to the line of scrimmage over publicity rights. In 2009, John Dryer et al. filed a class action, and in 2011, three more class action suits were filed against the NFL. We will have to see whether the recently filed suits play out like a replay on ESPN Classic.

To illustrate what the retirees are talking about, we've included a clip of an NFL film: