Marshall v. ESPN Inc., 3:14–01945.

• Decision Date: 08 June 2015
• Docket Number: No. 3:14–01945.,3:14–01945.
• Citation: 111 F.Supp.3d 815
• Parties: Javon MARSHALL, Steven Clarke, Chris Conner, Patrick Miller, Byron Moore, Chaz Moore, Sean Parker, Eric Samuels, Marlon Walls, and Rod Wilks, individually and on behalf of all others similarly situated, Plaintiffs, v. ESPN INC.; CBS Broadcasting, Inc., National Broadcasting Company Inc.; ABC, Inc.; Fox, Inc.; IMG College, LLC; Atlantic Coast Conference; Big Ten Conference ; Big 12 Conference ; Pacific–12 Conference; Southeastern Conference ; Conference USA; Ohio Valley Conference; Big East Conference ; IMG Worldwide, Inc.; IMG College, LLC; Big Ten Network Services, LLC; CBS Collegiate Sports Properties, Inc.; JMI Sports LLC; Telesouth Communications, Inc., T3 Media, Inc.; ESPN Inc. d/b/a Sec Network ; Southeastern Conference d/b/a Sec Network ; ESPN Inc. d/b/a Longhorn Network; IMG College, LLC d/b/a Longhorn Network; Learfield Sports LLC; and William Morris Endeavors, LLC, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

111 F.Supp.3d 815

Javon MARSHALL, Steven Clarke, Chris Conner, Patrick Miller, Byron Moore, Chaz Moore, Sean Parker, Eric Samuels, Marlon Walls, and Rod Wilks, individually and on behalf of all others similarly situated, Plaintiffs,

v.ESPN INC.; CBS Broadcasting, Inc., National Broadcasting Company Inc.; ABC, Inc.; Fox, Inc.; IMG College, LLC; Atlantic Coast Conference; Big Ten Conference ; Big 12 Conference ; Pacific–12 Conference; Southeastern Conference ; Conference USA; Ohio Valley Conference; Big East Conference ; IMG Worldwide, Inc.; IMG College, LLC; Big Ten Network Services, LLC; CBS Collegiate Sports Properties, Inc.; JMI Sports LLC; Telesouth Communications, Inc., T3 Media, Inc.; ESPN Inc. d/b/a Sec Network ; Southeastern Conference d/b/a Sec Network ; ESPN Inc. d/b/a Longhorn Network; IMG College, LLC d/b/a Longhorn Network; Learfield Sports LLC; and William Morris Endeavors, LLC, Defendants.

No. 3:14–01945.

United States District Court, M.D. Tennessee, Nashville Division.

Filed June 8, 2015.

John Parker Branham, Stephen J. Zralek, Bone, McAllester & Norton, PLLC, Nashville, TN, Patrick D. McMurtray, McMurtray Law Firm, PLLC, Christiana, TN, Richard Manson, Manson, Jones & Whitted, Ronald A. Stewart, Stewart, Johnson, Conner & Manson, LLP, Nashville, TN, for Plaintiff.

Daniel Alexander Richards, Evan R. Chesler, Roger G. Brooks, Joe Wesley Earnhardt, Stefan H. Atkinson, Cravath, Swaine & Moore LLP, New York, NY, Joel D. Eckert, Samuel David Lipshie, Bradley Arant Boult Cummings LLP, Nashville, TN, Eric S. Hochstadt, James W. Quinn, Yehudah L. Buchweitz, Weil, Gotshal & Manges, New York, NY, Robert Dale Grimes, Jeffrey P. Yarbro, Bass, Berry & Sims, Nashville, TN, Arthur Burke, Dana Meredith Seshens, James W. Haldin, Davis, Polk & Wardwell, New York, NY, Kelli L. Sager, Nathan E. Siegel, Levine Sullivan Koch & Schultz, LLP, Carl R. Metz, John E. Schmidtlein, Kevin T. Baine, Thomas G. Hentoff, Williams & Connolly, Washington, DC, Hal D. Hardin, Nashville, TN, Andrew J. Thomas, David R. Singer, Jenner & Block LLP, Los Angeles, CA, Kenneth L. Doroshow, Jenner & Block, LLP, Washington, DC, Richard L. Stone, W. Scott Sims, Sims Funk, PLC, Nashville, TN, D. Erik Albright, Gregory G. Holland, Smith Moore Leatherwood LLP, Greensboro, NC, David Alexander Fardon, Harwell, Howard, Hyne, Gabbert & Manner, P.C., Nashville, TN, Jonathan P. Heyl, Smith Moore Leatherwood LLP, Charlotte, NC, Andrew S. Rosenman, Britt Marie Miller, Mayer Brown LLP, Chicago, IL, Jay Scott Bowen, William V. Parsons, III, Shackelford Bowen Zumwalt & Hayes, Nashville, TN, Richard J. Favretto, Mayer Brown LLP, Washington, DC, Amy D. Fitts, Polsinelli P.C., Kansas City, MO, Caitlin J. Morgan, Leane K. Capps, Polsinelli PC, Dallas, TX, J. Gregory Grisham, Reid Daniel Leitner, Leitner, Williams, Dooley, and Napolitan, Nashville, TN, Jacquelyn Ferry, James N. Bowen, John R. Jacobson, Riley, Warnock & Jacobson, Nashville, TN, Jennifer L. Jones, Sarah Kroll–Rosenbaum, Scott P. Cooper, Proskauer Rose, LLP, Los Angeles, CA, Bradford David Box, Rainey, Kizer, Reviere & Bell, P.L.C., Jackson, TN, Bradley G. Hubbard, Brian E. Robison, Robert C. Walters, Gibson, Dunn & Crutcher, LLP, Dallas, TX, John S. Hicks, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, TN, Amy J. Everhart, Everhart Law Firm PLC, Nashville, TN, Daniel M. Mayeda, Louis Peter Petrich, Leopold, Petrich & Smith, Los Angeles, CA, Maria A. Spear, Everhart Law Firm PLC, Nashville, TN, Samuel D. Gregory, W. Scott Welch, Walker W. Jones, III, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jackson, MS, Robb S. Harvey, Todd Ryan Hambidge, Waller, Lansden, Dortch & Davis, LLP, Gail Vaughn Ashworth, Wiseman Ashworth Law Group PLC, Nashville, TN, Grant Kojis Schmidt, M. Brett Johnson, Thomas M. Melsheimer, Thomas B. Walsh, IV, Fish & Richardson, P.C., Dallas, TX, Aubrey B. Harwell, Jr., James Franklin Sanders, James Isaac Sanders, Neal & Harwell, Nashville, TN, Mark W. Merritt, Robert W. Fuller, Robinson Bradshaw & Hinson, P.A., Charlotte, NC, for Defendants.

MEMORANDUM

KEVIN H. SHARP, District Judge.

This is a putative class action brought by current and former Student Athletes who played National Collegiate Athletic Association ("NCAA") football (at the Football Bowl Subdivision "FBS" level) or Division I college basketball. Named as Defendants are a host of conferences, networks, and licensors who allegedly profited from the broadcast and use of those Student Athletes' names, likenesses and images without permission. Pending before the Court are Motions to Dismiss (Docket Nos. 214, 218 & 226) filed on behalf of all Defendants. The Court heard oral arguments on those Motions on April 13, 2015, and, for the reasons that follow, will grant the Motions.

I. Background

Plaintiffs are eight former college football players (three each from Vanderbilt University and the University of Tennessee, and one each from the University of Washington and the University of Tennessee, Chattanooga) and two former college basketball players (one each from Tennessee State University and the University of Maryland Eastern Shore).

Defendants are more than two dozen separate entities that fall into three camps. The assorted athletic conferences, specifically the Atlantic Coast Conference, Big East Conference, Inc., Big 12 Conference, The Big Ten Conference, Inc., Conference USA, Ohio Valley Conference, Pac–12 Conference, and Southeastern Conference (collectively, the "Conference Defendants"), manage athletic competition among teams and sell the rights to broadcast conference games. The networks, specifically, ESPN Inc., CBS Broadcasting Inc., NBCUniversal Media, LLC, ABC, Inc., Fox Broadcasting Company, Big Ten Network, LLC, SEC Network, and Longhorn Network (the "Network Defendants")¹ , purchase media content, including college sports from content owners, or produce it internally, and then telecast that content to television viewers. The licensing agencies, specifically, Outfront Media Sports, Inc. (f/k/a CBS Collegiate Sports Properties, Inc.), IMG Worldwide, LLC, IMG College, LLC, William Morris Endeavor Entertainment, LLC, JMI Sports LLC, Learfield Sports LLC, T3 Media, Inc., and TeleSouth Communications, Inc. (collectively, the "Licensing Defendants"), offer brand development and management and act as a conduit in licensing college teams' intellectual property.

Plaintiffs have filed a 194–paragraph, 39–page Complaint, the essence of which is that they "and other similarly situated current and former FBS football and NCAA Division I basketball Student Athletes ... have been foreclosed from the market for the licensing, use, and sale of their names, images, and likenesses [.]" (Docket No. 1, Complaint ¶ 4). The Complaint alleges:

5. Defendants' collective action of excluding Student Athletes from the marketplace of their own names, images, and likenesses has caused the unlawful result of fixing the amount that current and former Student Athletes are paid for the licensing and sale of their names, images, and likeness at zero or, at most, their "cost of attendance." ^[2]

6. Defendants' use of Student Athletes' names, images, and likenesses is unauthorized because Student Athletes have not legally assigned their publicity rights to Defendants, the NCAA, or third parties acting on behalf of the NCAA.

* * *

8. Broadcast Defendants have conspired to fix the amount Student Athletes are paid for the licensing, use, and sale of their names, images, and likenesses at zero or, at most, a portion of the cost of attendance, by colluding with the NCAA and Conference Defendants. Broadcast Defendants, to their own commercial advantage, refuse to negotiate or enter into contracts with Student Athletes. In so doing, Broadcast Defendants have adopted and implemented the restrictive bylaws and rules of the NCAA and Conference Defendants.

9. Licensing Defendants have conspired to fix the amount Student Athletes are paid for the licensing, use, and sale of their names, images, and likenesses at zero or, at most, a portion of the cost of attendance, by colluding with the NCAA and Conference Defendants. Licensing Defendants refuse to negotiate or enter into contracts with Student Athletes. In so doing, Licensing Defendants have adopted and implemented the restrictive rules and bylaws of the NCAA and Conference Defendants.

10. The conspiracy between and among the Broadcast Defendants, Licensing Defendants, Conference Defendants and the NCAA has created a marketplace resembling a plantation type arrangement where Defendants financially benefit in the collective amount of billions of dollars, while Student Athletes, the driving force of college sports, receive nothing more than their cost of attendance. This conspiracy has created an anticompetitive marketplace in which all Defendants commercially exploit the substantial value of each Student Athletes' images.

(Id. ¶¶ 5–6 & 8–10, internal parenthetical omitted).

Though the NCAA is alleged to be a part of the conspiracy, it not named as a Defendant in this action. Nevertheless, Plaintiffs' tacitly concede that any discussion of the alleged unlawfulness must acknowledge it existence and the role it plays in college sports.

According to the Complaint, the NCAA was founded in 1906³ and "is an unincorporated association consisting of more than 1,200 colleges, universities, and athletic conferences" in the United States and "serves as the governing body of its member schools and athletic conferences." (Id. ¶ 76). The fundamental purpose of the NCAA is to:

maintain intercollegiate athletics as an integral part of the education program and the athlete as an integral part of the educational program and the athlete as a part of the student body and, by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.

(Id. ¶ 97).

In accordance with NCAA rules, intercollegiate sports are limited to participation of "amateur" athletes:

Student-athletes shall be

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