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ABC and ESPN Win Appeal Affirming Dismissal of Putative Class Action Suit Seeking Pay for Student Athletes

On August 17, 2016, a panel of the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of a putative class action suit against Cravath clients ABC, Inc. and ESPN, Inc., and other broadcasters, athletic conferences and licensing entities, brought by former NCAA football and basketball players. Plaintiffs claimed that college athletes should be paid for broadcasts and asserted right‑of‑publicity, Lanham Act, federal antitrust and related state law claims.

The panel, consisting of Circuit Judges Alice M. Batchelder, Raymond M. Kethledge and Judith E. Levy (sitting by designation from the United States District Court for the Eastern District of Michigan) upheld the June 2015 ruling by the United States District Court for the Middle District of Tennessee (see prior announcement here). The panel adopted Chief Judge Kevin H. Sharp’s “notably sound and thorough opinion,” which held that (i) no right of publicity in sports broadcasts exists under Tennessee statutory and common law; (ii) because plaintiffs have no cognizable publicity rights, their Sherman Act claims must fail; (iii) plaintiffs’ false endorsement claims under the Lanham Act must be dismissed because sports broadcasts are not commercial speech regulated by the Act and, in any event, plaintiffs failed to allege sufficient facts demonstrating likelihood of confusion; and (iv) plaintiffs’ tagalong common law claims must be dismissed because the predicate claims were legally deficient.

The Cravath team included partners Evan R. Chesler (who argued the appeal), Roger G. Brooks and J. Wesley Earnhardt and associates Daniel A. Richards, Christopher J. Gessner, Isaac D. Chaput and David Kumagai. The case is Marshall, et al. v. ESPN Inc., et al., No. 14‑cv‑01945 (M.D. Tenn.), No. 15‑5753 (6th Cir.).