Gridiron.Com v. National Football League Player's, 99-6837-CIV.

• Decision Date: 11 July 2000
• Docket Number: No. 99-6837-CIV.,99-6837-CIV.
• Citation: 106 F.Supp.2d 1309
• Parties: GRIDIRON.COM, INC., a Florida Corporation, Plaintiff, v. NATIONAL FOOTBALL LEAGUE, PLAYER'S ASSOCIATION, INC., a Virginia Corporation, and National Football League Players, Inc., a Virginia Corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

106 F.Supp.2d 1309

GRIDIRON.COM, INC., a Florida Corporation, Plaintiff, v. NATIONAL FOOTBALL LEAGUE, PLAYER'S ASSOCIATION, INC., a Virginia Corporation, and National Football League Players, Inc., a Virginia Corporation, Defendants.

No. 99-6837-CIV.

United States District Court, S.D. Florida.

July 11, 2000.

Alexander Theodore Sarafoglu, Morgan Lewis & Bockius, Miami, FL, Keith Olin, Morgan Lewis & Bockius, Miami, FL, for Gridiron.com, Inc., a Florida, corporation.

Jillian Elisabeth Marcus, Weil Gotshal & Manges, Miami, FL, Valerie Greenberg Itkoff, Weil Gotshal & Manges, Miami, FL, Edward Soto, Weil Gotshal & Manges, Miami, FL, for National Football League Players Association, Inc., a Virginia Corporation.

Jillian Elisabeth Marcus, Weil Gotshal & Manges, Miami, FL, Valerie Greenberg Itkoff, Weil Gotshal & Manges, Miami, FL, Edward Soto, Weil Gotshal & Manges, Miami, FL, for National Football League Players, Inc., a Virginia Corporation.

OMNIBUS ORDER

DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon:

1. Defendants', National Football League Players Association, Inc. ("NFLPA") and National Football League Players, Inc. Motion for Summary Judgment, filed herein on May 26, 2000;

2. Plaintiff's, Gridiron.com, Inc. Motion for Summary Judgment, filed herein on May 30, 2000;

3. Defendants' Motion for Leave to File an Amended Counterclaim Withdrawing Defendants' Claim for Monetary Damages, filed herein on July 5, 2000; and

4. Plaintiff's Unopposed Motion to Vacate Order, filed herein on July 7, 2000.

The Court has carefully reviewed the motions and is otherwise fully advised in the premises.

I. BACKGROUND

Plaintiff operates a domain of Internet websites devoted to professional football. Defendant NFLPA is the recognized union for National Football League ("NFL") Players. NFL Players, Inc. is a for-profit subsidiary of the NFLPA, engaged in the business of licensing intellectual property rights of NFL Players.

This action revolves around Plaintiff's contracts with over one hundred and fifty (150) NFL players and whether these contracts and Plaintiff's website violate the NFL Players Contract and Group Licensing Assignment (GLA), signed by 97% of the players. The NFL Players Contract states in pertinent part: "Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images on products that are sold at retail or used as promotional or premium items." The GLA states in pertinent part: "Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images in conjunction with or on products that are sold at retail or used as promotional or premium items."

Plaintiff received a "cease and desist" letter from the NFLPA, which stated that the website violated the aforementioned agreements. Plaintiff then filed this action for Declaratory Judgment, seeking this Court to find that their domain of websites does not violate Defendants' licensing rights. Defendants counterclaimed, seeking declaratory relief that the websites violate its licensing rights, damages for tortious interference with contracts and injunctive relief.

The Court notes that Plaintiff and Defendants have stated that there does not exist any genuine issues of material fact in dispute. Plaintiff filed this Motion for Summary Judgment, arguing that they are not infringing on the NFLPA's rights under the agreements, specifically that NFL Players have an individual right to their own image, the features of the websites do not fall within the definition of a group licensing program, and the content on the websites are protected by the First Amendment. Defendants file their Motion for Summary Judgment, arguing that NFL Players can assign their publicity rights and the website and Gridiron Player Agreements clearly violate Plaintiff's group licensing rights. Additionally, Defendants seek an injunction.¹

II. DISCUSSION

A. Summary Judgment Standard

The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548.

After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed.R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted." Anderson, 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202.

B. License Infringement

The contract in dispute is the GLA between the NFLPA and NFL Players. The contract was drafted in New York. Under New York Law, when interpreting a contract, "the intent of the parties governs." Forbes v. Cendant Corporation, 205 F.3d 1322, 2000 WL 232069 (2nd Cir. 2000); American Express Bank Ltd. v. Uniroyal, Inc., 164 A.D.2d 275, 562 N.Y.S.2d 613, 614 (1st Dep't 1990). The intent is inferred from the plain meaning of the language employed in the contract. Id.; See Andy Warhol Found. For the Visual Arts., Inc. v. Federal Ins. Co., 189 F.3d 208, 215 (2d Cir.1999); Air Products and Chemicals, Inc. v. The Louisiana Land and Exploration Company, 806 F.2d 1524 (11th Cir.1986).

This action hinges on whether Plaintiff's websites and contracts with NFL Players violates the Players' existing contracts with Defendants, which states in pertinent part: "Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images on products that are sold at retail or used as promotional or premium items." Plaintiff's websites utilize the images of over 150 NFL players. NFL Players who have signed the NFLP and GLA licensing agreements, are also under a contractual agreement with Gridiron. The Gridiron Player Agreement states in pertinent part:

(a) any and all forms of electronic programming and services including, without limitation, the Website and any other online, Internet and web-based interactive programming, broadcasts or services (e.g., online screens, web pages, chat sessions, bulletin boards and mailboxes), but excluding television and radio, whether accessed by computer, cable or satellite television, or by other forms of electronic distribution now known or hereafter developed ("Gridiron Services"); (b) any and all products to be sold by Gridiron in, on, through or from any form of electronic distribution (excluding television and radio) now known hereafter developed ("Gridiron Products"); and (c) any and all forms of advertising, promotion and public relations in any and all media (including television and radio) for the purpose of advertising and/or promoting the Gridiron Services or the Gridiron Products.

Soto Affidavit, Exhibit 4. In exchange for the Players entering into Gridiron's Player Agreement, Plaintiff made payments of cash and warrants to buy stock in Plaintiff's parent company. Soto Affidavit.

Plaintiff argues that the word product in the GLA is ambiguous, and should be interpreted against the drafter. The determination of whether a term is ambiguous is a question of law to be answered by the Court. Pantone, Inc. v. Esselte Letraset, Ltd., 878 F.2d 601, 605 (2nd Cir.1989). The contract that the parties wish for the Court to interpret is the NFLPA's GLA. This contract is between the NFLPA and the NFL Players. The NFLPA is the exclusive representative of the players, with the authority to bind them. See Allen Affidavit at ¶ 10. Players can choose not to be bound by the provisions of the GLA, by crossing out paragraph 4(b) of the standard NFL Player Contract before signing. Id. at ¶ 15. Defendant NFLPA and the NFL Players were involved in collective bargaining agreements ("CBA"), and the word "product" was used in the CBA's to include products of an electronic type, including Internet...