Retired Players' Antitrust Claim Against NFL Is Dismissed

A federal judge dismissed an antitrust action brought on behalf of retired professional football players who accused the National Football League of monopolizing the market for DVDs, videos and films featuring the plaintiffs' names and likenesses. Washington v. National Football League, 11-3354. In June 2012, District Judge Paul Magnuson of the U.S. District Court for the District of Minnesota rejected the notion that the NFL had violated the Sherman Act.

“Plaintiffs have utterly failed to make out a claim for violation of the antitrust laws, and no amount of legal tongue-twisting will turn their claims into antitrust claims,” the Judge Magnuson wrote, dismissing the case with prejudice. “What they have are claims for royalties, not claims for antitrust.”

Gregg Levy, a partner based in Covington & Burling's Washington, DC, office, issued a statement following the ruling: “The court's opinion confirms that the antitrust laws do not limit the NFL's ability to market and sell intellectual property, including historical game footage that the member clubs own collectively.” Levy represents the NFL, various related entities and its 32-member teams ' all named in the complaint.

Michael Hausfeld of Hausfeld in Washington, DC, lead counsel for the players, didn't return a call for comment.

The named plaintiffs ' Gene Washington, Diron Talbert and Sean Lumpkin ' filed suit on behalf of a class that encompasses all players who retired before March 11, 2011, whose names and likenesses the NFL has used during the past four years to generate revenue. Gene Washington was a wide receiver for the Minnesota Vikings and the Denver Broncos from 1967 to 1974; Talbert played defensive tackle for the Los Angeles Rams and the Washington Redskins from 1967 to 1980; and Lumpkin played for the New Orleans Saints from 1992 to 1996.

“For years, the NFL has earned substantial revenue by making promotional films and selling products featuring the identities of retired NFL football players, including Plaintiffs,” the complaint stated. “The retired players who created these glory days, however, have gone almost completely uncompensated for this use of their identities.”

The complaint cited three examples:

1. Toby Wright, who played for the Los Angeles Rams (later the St. Louis Rams) and the Washington Redskins, attempted to use his identity to promote a sports bar and a training facility, but the NFL told him he had to pay $100,000 for the use.
2. Jan Stenerud, who played for the Kansas City Chiefs and other teams, wanted to market a kicking tee in 1980, but the NFL prohibited him from using any image displaying the team's uniform or colors.
3. Brad Benson, a former New York Giants player, wanted to use a photograph of himself in uniform while marketing an import car dealership in New Jersey, but the NFL demanded that he remove the advertisement.

The plaintiffs relied largely on the U.S. Supreme Court's 2010 ruling in American Needle Inc. v. NFL, 130 S. Ct. 2201 (2010), in which the court said that a football team couldn't escape liability for antitrust violations simply because it was part of the league. (Justice John Paul Stevens wrote for the unanimous court that decisions by the National Football League Properties (NFLP) “regarding the teams' separately owned intellectual property constitute concerted action. Thirty-two teams operating independently through the vehicle of the NFLP are not like the components of a single firm that act to maximize the firm's profits. The teams remain separately controlled, potential competitors with economic interests that are distinct from NFLP's financial well-being.”) But District Judge Magnuson rejected any similarity to American Needle, which involved intellectual property that each team owned for its own logos and colors. “Here, unlike in American Needle, the intellectual property involved is historical football game footage, something that the individual teams do not separately own, and never have separately owned,” he wrote.

Judge Magnuson said the case was instead similar to Dryer v. NFL, 09-2182, brought in 2009, in which players seek compensation for the NFL's use of their names and likenesses in game footage in violation of their publicity rights and the Lanham Act, the federal trademark law. The case, brought by the same lawyers as the antitrust action, is pending before Judge Magnuson.

In a motion to dismiss, the Washington NFL defendants pointed to the Dryer case for the same reason. “This complaint is brought by the same seven law firms that represent the Dryer plaintiffs; it challenges the same conduct challenged in Dryer, and it seeks certification of essentially the same class for which certification is sought in Dryer,” the firms wrote. “If there is any claim alleged here, it is not an antitrust claim.”

A federal judge dismissed an antitrust action brought on behalf of retired professional football players who accused the National Football League of monopolizing the market for DVDs, videos and films featuring the plaintiffs' names and likenesses. Washington v. National Football League, 11-3354. In June 2012, District Judge Paul Magnuson of the U.S. District Court for the District of Minnesota rejected the notion that the NFL had violated the Sherman Act.

“Plaintiffs have utterly failed to make out a claim for violation of the antitrust laws, and no amount of legal tongue-twisting will turn their claims into antitrust claims,” the Judge Magnuson wrote, dismissing the case with prejudice. “What they have are claims for royalties, not claims for antitrust.”

Gregg Levy, a partner based in Covington & Burling's Washington, DC, office, issued a statement following the ruling: “The court's opinion confirms that the antitrust laws do not limit the NFL's ability to market and sell intellectual property, including historical game footage that the member clubs own collectively.” Levy represents the NFL, various related entities and its 32-member teams ' all named in the complaint.

Michael Hausfeld of Hausfeld in Washington, DC, lead counsel for the players, didn't return a call for comment.

The named plaintiffs ' Gene Washington, Diron Talbert and Sean Lumpkin ' filed suit on behalf of a class that encompasses all players who retired before March 11, 2011, whose names and likenesses the NFL has used during the past four years to generate revenue. Gene Washington was a wide receiver for the Minnesota Vikings and the Denver Broncos from 1967 to 1974; Talbert played defensive tackle for the Los Angeles Rams and the Washington Redskins from 1967 to 1980; and Lumpkin played for the New Orleans Saints from 1992 to 1996.

“For years, the NFL has earned substantial revenue by making promotional films and selling products featuring the identities of retired NFL football players, including Plaintiffs,” the complaint stated. “The retired players who created these glory days, however, have gone almost completely uncompensated for this use of their identities.”

The complaint cited three examples:

1. Toby Wright, who played for the Los Angeles Rams (later the St. Louis Rams) and the Washington Redskins, attempted to use his identity to promote a sports bar and a training facility, but the NFL told him he had to pay $100,000 for the use.
2. Jan Stenerud, who played for the Kansas City Chiefs and other teams, wanted to market a kicking tee in 1980, but the NFL prohibited him from using any image displaying the team's uniform or colors.
3. Brad Benson, a former New York Giants player, wanted to use a photograph of himself in uniform while marketing an import car dealership in New Jersey, but the NFL demanded that he remove the advertisement.

The plaintiffs relied largely on the U.S. Supreme Court's 2010 ruling in American Needle Inc. v. NFL , 130 S. Ct. 2201 (2010), in which the court said that a football team couldn't escape liability for antitrust violations simply because it was part of the league. (Justice John Paul Stevens wrote for the unanimous court that decisions by the National Football League Properties (NFLP) “regarding the teams' separately owned intellectual property constitute concerted action. Thirty-two teams operating independently through the vehicle of the NFLP are not like the components of a single firm that act to maximize the firm's profits. The teams remain separately controlled, potential competitors with economic interests that are distinct from NFLP's financial well-being.”) But District Judge Magnuson rejected any similarity to American Needle, which involved intellectual property that each team owned for its own logos and colors. “Here, unlike in American Needle, the intellectual property involved is historical football game footage, something that the individual teams do not separately own, and never have separately owned,” he wrote.

Judge Magnuson said the case was instead similar to Dryer v. NFL, 09-2182, brought in 2009, in which players seek compensation for the NFL's use of their names and likenesses in game footage in violation of their publicity rights and the Lanham Act, the federal trademark law. The case, brought by the same lawyers as the antitrust action, is pending before Judge Magnuson.

In a motion to dismiss, the Washington NFL defendants pointed to the Dryer case for the same reason. “This complaint is brought by the same seven law firms that represent the Dryer plaintiffs; it challenges the same conduct challenged in Dryer, and it seeks certification of essentially the same class for which certification is sought in Dryer,” the firms wrote. “If there is any claim alleged here, it is not an antitrust claim.”