ABC and ESPN Win Dismissal of Putative Antitrust Class Action Suit

On June 4, 2015, Chief Judge Kevin H. Sharp of the U.S. District Court for the Middle District of Tennessee granted Cravath’s motion on behalf of ABC, Inc. and ESPN, Inc. to dismiss a putative class action brought by 10 former NCAA football and basketball players asserting right‑of‑publicity, Lanham Act, federal antitrust and related state law claims against various broadcasters, athletic conferences and licensing entities. Among other rulings, Judge Sharp 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. All claims against all defendants were dismissed in their entirety and with prejudice.

The Cravath team included partners Evan R. Chesler, Roger G. Brooks and J. Wesley Earnhardt and associates Daniel A. Richards, Amber Jordan and Isaac D. Chaput. The case is Marshall, et al. v. ESPN Inc., et al., No. 14‑cv‑01945 (M.D. Tenn.).