                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0483n.06

                                           No. 15-5753                                  FILED
                                                                                   Aug 17, 2016
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

JAVON MARSHALL, et al.,                            )
                                                   )
       Plaintiffs-Appellants,                      )
                                                   )
                                                          ON APPEAL FROM THE
v.                                                 )
                                                          UNITED STATES DISTRICT
                                                   )
                                                          COURT FOR THE MIDDLE
ESPN, et al.,                                      )
                                                          DISTRICT OF TENNESSEE
                                                   )
       Defendants-Appellees.                       )


       Before: BATCHELDER and KETHLEDGE, Circuit Judges; and LEVY, District Judge.*

       KETHLEDGE, Circuit Judge. To state the plaintiffs’ theory in this case is nearly to

refute it. The theory begins with the assertion that college football and basketball players have a

property interest in their names and images as they appear in television broadcasts of games in

which the players are participants. Thus, the plaintiffs conclude, those broadcasts are illegal

unless licensed by every player on each team. Whether referees, assistant coaches, and perhaps

even spectators have the same rights as putative licensors is unclear from the plaintiffs’ briefs

(and, by all appearances, to the plaintiffs themselves). In any event, the plaintiffs seek to assert

claims under Tennessee law, the Sherman Act, and the Lanham Act on behalf of a putative class

of collegiate players nationwide. The defendants—various college athletic conferences and

television networks, among others—responded in the district court with a motion to dismiss,

which the court granted in a notably sound and thorough opinion.



*
 The Honorable Judith E. Levy, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 15-5753, Marshall, et al. v. ESPN, et al.


        To that opinion we have little to add. The plaintiffs claim that, under Tennessee statutory

and common law, college players have a “right of publicity” in their names and images as they

might appear in television broadcasts of football or basketball games in which the plaintiffs

participate. But that argument is a legal fantasy. Specifically, the plaintiffs’ statutory claim

under the Tennessee Personal Rights Protection Act is meritless because that Act expressly

permits the use of any player’s name or likeness in connection with any “sports broadcast.”

Tenn. Code Ann. § 47-25-1107(a). And the plaintiffs’ common-law claim is meritless, as the

district court rather patiently explained, because the Tennessee courts have never recognized any

such right and because, in the meantime, the Tennessee legislature has spoken to the issue

directly.

        The plaintiffs’ case goes downhill from there. Their claim under the Sherman Act is that

the various defendants have engaged in a horizontal scheme to fix at zero the price of the

plaintiffs’ putative rights to license broadcasts of sporting events in which the plaintiffs

participate. That claim is meritless because, as shown above, those putative rights do not exist.

That leaves the plaintiffs’ claim under the Lanham Act, whose relevant provision bars the

unauthorized use of a person’s name or likeness in commerce when doing so “is likely to cause

confusion” as to whether the person endorses a product. 15 U.S.C. § 1125(a)(1)(A). The theory

here is that if, say, ESPN shows a banner for “Tostitos” at the bottom of the screen during a

football game, then consumers might become confused as to whether all the players on the

screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the

theory itself does.

        The district court’s judgment is affirmed.




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