Broadcasters Amicus 1

Case No. 09-cv-01967-CW (NC)

BRIEF IN SUPPORT OF DEFENDANT NCAA’S MOTION TO CERTIFY

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ERWIN CHEMERINSKY UNIVERSITY OF CALIFORNIA, IRVINE SCHOOL OF LAW 401 East Peltason Drive, Educ 1095 Irvine, CA 92697 [email protected] Telephone: (949) 824-7722 Fax: (949) 824-7336 LEVINE SULLIVAN KOCH & SCHULZ, LLP NATHAN SIEGEL (Pro Hac Vice pending) [email protected] 1899 L Street, N.W., Suite 200 Washington, DC 20036 Telephone: (202) 508-1184 Fax: (202) 861-9888 CELESTE PHILLIPS, Cal. Bar No. 100066 [email protected] 25 Bulkley Avenue Sausalito, CA 94965 Telephone: (415) 331-1100 Fax: (415) 331-1195 Attorneys for Amici Curiae

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

In re NCAA Student-Athlete Name & Likeness Licensing Litigation

Case No. 09-cv-01967 CW (NC)

BRIEF AMICUS CURIAE OF A&E TELEVISION NETWORKS, LLC, ABC, INC., CBS CORPORATION, DISCOVERY COMMUNICATIONS, LLC, FOX BROADCASTING COMPANY, NBCUNIVERSAL MEDIA, LLC, THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AND TURNER BROADCASTING SYSTEM, INC. IN SUPPORT OF DEFENDANT NCAA’S MOTION TO CERTIFY PURSUANT TO 28 U.S.C. § 1292(b) THE COURT’S ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT

Case4:09-cv-01967-CW Document1047-1 Filed05/02/14 Page1 of 28

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION ..................................................................................................... 1

ARGUMENT ............................................................................................................. 2

I. STATE LAW DOES NOT RECOGNIZE A RIGHT OF PUBLICITY FOR PARTICIPANTS IN TEAM SPORTING EVENTS........ 3

A. State Law Uniformly Recognizes That The Right To License A Team Sporting Event For Broadcast Vests Exclusively In The Producer Of The Game ................................ 3

B. No State’s Law Recognizes A Licensing Or Similar Right Vested In Every “Performer” In A Sporting Event ........ 9

1. Every Case on Point Has Rejected Plaintiffs’ Asserted Right of Publicity ........................................ 9

2. Both Practical and Policy Considerations Overwhelmingly Preclude the Recognition of the Asserted Rights Under State Law ................................... 12

II. THE FIRST AMENDMENT BARS THE RECOGNITION OF A RIGHT OF PUBLICITY FOR PARTICIPANTS IN A GAME BROADCAST ................................... 15

A. The First Amendment Permits Producers To Exclusively License Broadcasting Rights Because The State Has An Important Interest In Incentivizing The Creation Of Sporting Events .................................. 17

B. The First Amendment Would Bar The Assertion Of A Right Of Publicity By Game Participants Given The Fundamentally Different Balance Of Interests ............................ 18

1. Rights of Publicity in Game Broadcasts Would Not Materially Incentivize Individual Athletes to Compete ............................. 18

2. A Right of Publicity in Game Broadcasts Would Have a Substantial Chilling Effect on Constitutionally-Protected Speech About Matters of Public Interest .................................. 20

CONCLUSION ........................................................................................................ 23


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TABLE OF AUTHORITIES

Page(s)

Cases

Alston v. NCAA, Case No. 4:14-cv-01011-CW (N.D. Cal.) .......................................................... 19

Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th Cir. 1986) ............................................................ 10, 11, 18, 19

C.B.C. Distribution & Marketing v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) ........................................ 15

CBS Interactive Inc. v. NFL Players Ass’n, 259 F.R.D. 398 (D. Minn. 2009) .................................................................. 21, 22

Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010) ................................................................................ 1

Ditullio v. Boehm, 662 F.3d 1091 (9th Cir. 2011) ...................................................................... 22, 23

Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993) ............................................................................... 22

Dryer v. NFL, 689 F. Supp. 2d 1113 (D. Minn. 2010) ............................................................... 12

Ettore v. Philco Television Broad., 229 F.2d 481 (3d Cir. 1956) ......................................................................... 11, 22

Gautier v. Pro-Football, Inc., 304 N.Y. 354 (1952) ............................................................................... 10, 11, 22

Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001) ............................................................................... 22

Haelen Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) ................................................................................. 2


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KTSP-TAFT Television & Radio Co. v. Ariz. State Lottery Comm’n, 646 F. Supp. 300 (D. Ariz. 1986) ................................................................. 5, 6, 9

Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619 (6th Cir. 2000) .............................................................................. 21

Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) .......................................................................... 12, 22

Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995) ............................................................................... 22

Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001) .................................................................................. 12

Nat’l Exhibition Co. v. Fass, 143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955) ......................................................... 4, 17

Nat’l Football League v. Alley, Inc., 624 F. Supp. 6 (S.D. Fla. 1983) ........................................................ 10, 11, 20, 22

Northwestern Univ. & College Athletes Players Ass’n (CAPA), No. 13-RC-121359 (Nat’l Labor Relations Bd. March 26, 2014)...................... 19

Okla. Sports Props., Inc. v. Indep. Sch. Dist. No. 11, 957 P.2d 137 (Okla. Civ. App. 1998) ................................................................... 5

Pittsburgh Athletic Co. v. KQV Broad. Co., 24 F. Supp. 490 (W.D. Pa. 1938) ................................................................ 3, 5, 17

Post Newsweek Stations-Conn., Inc. v. Travelers Ins. Co., 510 F. Supp. 81 (D. Conn. 1981) .................................................................. 5, 7, 9

Ray v. ESPN, Inc., Case No. 13-1179-CV (W.D. Mo. April 8, 2014) .............................................. 11

Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681 (9th Cir. 2011) ................................................................................ 1

Rudolph Mayer Pictures v. Pathe News, 235 A.D. 774 (N.Y. App. Div. 1932) ................................................................... 3

Sw. Broad. Co. v. Oil Center Broad. Co., 210 S.W.2d 230 (Tex. Civ. App. 1947) ............................................................ 4, 5


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Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975) ............................................................................................ 18

Twentieth Century Sporting Club v. Transradio Press Serv., 165 Misc. 71 (N.Y. Sup. Ct. 1937) ................................................................... 3, 5

United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009) ............................................................................ 21

Wisconsin Interscholastic Athletic Association v. Gannett Co., 658 F.3d 614 (7th Cir. 2011) .......................................................................passim

Zacchini v. Scripps-Howard Broad. Co., 1975 WL 182619 (Ohio Ct. App. Jul 10, 1975) ................................................... 8

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) .....................................................................................passim

Statutes

28 U.S.C. 1292(b) .............................................................................................. 10, 22

CAL. CIV. CODE § 3344(d) ....................................................................................... 11

IND. CODE ANN. § 32-36-1-1(c) ......................................................................... 11, 12


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MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Certification of an interlocutory appeal may be authorized where an order

(1) “involves a controlling question of law,” (2) “as to which there is substantial

ground for difference of opinion,” and (3) “an immediate appeal . . . may

materially advance the ultimate termination of the litigation.” There is likely to

be little dispute that the first and third factors are satisfied, because the Court’s

summary judgment ruling held that whether the right of publicity asserted by

Plaintiffs in live game broadcasts exists, or is barred by the First Amendment,

are both dispositive questions. Dkt. 1025 at 15. This brief will therefore focus

on the second factor.

Factors the Ninth Circuit has identified as relevant to assessing the second

factor include, but are not limited to whether (1) “novel and difficult questions

of first impression are presented,” (2) there exists “a sufficient number of

conflicting and contradictory opinions,” and (3) “reasonable jurists might

disagree on an issue’s resolution.” Reese v. BP Exploration (Alaska) Inc., 643

F.3d 681, 688 (9th Cir. 2011); Couch v. Telescope Inc., 611 F.3d 629, 633, 634

(9th Cir. 2010) (internal marks and citations omitted). Here, all three criteria are

satisfied.1

1 This brief only addresses the issue of asserted rights of publicity in live game broadcasts, and is not intended to weigh in on any other issues presented by this case. With respect to the right of publicity, these amici strongly support the NCAA’s position that in the context of whole game broadcasts such a right is not recognized as a matter of state law, and in any event would be barred by the First Amendment. At times, the grounds that amici set forth for reaching those conclusions may differ somewhat from the approach the NCAA advocates. Such distinctions between the positions of all the parties and amici reinforce the conclusion that there are substantial grounds for differences of opinion regarding how to best resolve the important issues presented here.


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ARGUMENT

Team sporting events have been broadcast on radio, television, and now

the internet since the 1920s. The right of publicity was first formally recognized

in 1953, although its antecedents long predate that. See Haelen Labs., Inc. v.

Topps Chewing Gum, Inc., 202 F.2d 866, 868-69 (2d Cir. 1953). Yet no party

nor the Court has ever identified a single jurisdiction in that ninety-year time

span that has recognized a right of publicity enjoyed by the participants in a live

broadcast of a team sport, or any re-broadcast. That is because the asserted right

of publicity does not exist, and for very good reasons.

In their summary judgment briefs the parties principally addressed

whether the First Amendment would bar such a right, if it were to exist. While

amici agree that the First Amendment would preclude the asserted right of

publicity, and address that issue in Part II of this brief, it is not necessary to

reach that question because state law precludes the assertion of such a right in

the first place. For at least eighty years state law has consistently recognized a

proprietary right to license the broadcast of a team sporting event that vests

exclusively in the producer of the event. By contrast, no state law has ever,

recognized an analogous right of every participant in the event to control the

live broadcast of their individual image and/or “performance”

And that is for good reason—the right of publicity simply does not fit and

cannot be logically extended to the circumstance of the broadcast of a sporting

event. If each participant in a game with hundreds of “performers” had the

exclusive right to license their individual appearance in the game, then by

definition there could be no exclusivity in the game as a whole. Respectfully,

amici submit that the Court’s analysis conflates the very different way the law


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treats producers and performers of athletic events, and erroneously treats them

as one and the same. I. STATE LAW DOES NOT RECOGNIZE A RIGHT OF PUBLICITY

FOR PARTICIPANTS IN TEAM SPORTING EVENTS A. State Law Uniformly Recognizes That The Right To License A Team

Sporting Event For Broadcast Vests Exclusively In The Producer Of The Game.

In an era when radio was king, the Pittsburgh Pirates entered into

contracts with a group of radio broadcasters granting them the exclusive right to

broadcast play-by-play accounts of Pirates games. But in 1938, a competing

broadcaster executed a clever scheme. It stationed multiple observers outside of

Forbes Field who could see over the outfield fence. Those observers then

relayed play-by-play descriptions of the action to the broadcaster, enabling it to

offer its own competing broadcast of the entire game, almost in real time. The

Pirates successfully obtained an injunction barring the practice. Pittsburgh

Athletic Co. v. KQV Broad. Co., 24 F. Supp. 490 (W.D. Pa. 1938).

The court reasoned that the Pirates, having made the investment to

“acquire[] and maintain[] a baseball park, [and] pay[] the players who

participate in the game,” had a “property right” to “sell[] exclusive broadcasting

rights to companies which value them.” Id. at 492. It further held the club’s

proprietary right could be legally enforced through a claim for unfair

competition against the renegade broadcaster. Id. It pointed to prior decisions

from New York courts enjoining essentially the same scheme to offer competing

broadcasts of Brooklyn Dodgers games from outside Ebbets Field, as well as a

boxing match held at Yankee Stadium. See Twentieth Century Sporting Club v.

Transradio Press Serv., 165 Misc. 71 (N.Y. Sup. Ct. 1937); Rudolph Mayer

Pictures v. Pathe News, 235 A.D. 774 (N.Y. App. Div. 1932).


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Twenty years later, another entrepreneur tested a different tactic to try to

offer unlicensed radio broadcasts of then-New York Giants baseball games

(now, of course, the San Francisco Giants). The radio station simply listened to

the authorized play-by-play radio broadcast of a game, and then repeated what

happened in a slight delayed broadcast of its own. A New York trial court held

that practice also constituted unfair competition. Nat’l Exhibition Co. v. Fass,

143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955). As in the Pirates case, the court

reasoned that the Giants “at great expense . . . is employing a large number of

the most highly skilled players or performers who have been and are available,

and, at great expense, has provided and is providing a park with facilities,” and

therefore enjoyed a “property right” to exclusively license the team’s games for

radio and television broadcast. Id. at 770.

Indeed, by the 1950s the principle that the entity responsible for putting

on a sporting event (which this brief refers to as the “producer”)2 enjoys a

proprietary right to exclusively control the broadcast of the entire game was so

well-established that an aspiring broadcaster who had not contracted for such

rights tested yet another novel approach. High school football was already king

in small town, post-war Texas, and public school districts were offering

exclusive broadcasting contracts for radio and subsequently television. A

broadcaster purchased tickets to a high school game and, without permission,

transmitted its own, competing play-by-play radio account from inside the

stadium.

None of the parties to the case appeared to contest that private entities that

sponsor football games, as well as their exclusive broadcast licensees, hold “a 2 As discussed elsewhere in this brief, the term “producer” is used by a number of cases in this sense, and is used here for ease of reference. The term is of course not intended to literally apply to every person or entity in any field of entertainment who may call themselves a “producer.”


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valuable right” to “broadcast a description of the action of an athletic contest.”

Sw. Broad. Co. v. Oil Center Broad. Co., 210 S.W.2d 230, 232 (Tex. Civ. App.

1947) (citing both Pittsburgh Athletic Co. and Twentieth Century Sporting

Club). But the defendant broadcaster argued that because a high school district

is a public entity, it may not purport to grant exclusive broadcasting rights by

selectively admitting only its licensee broadcasters into a public stadium. The

Texas Court of Appeals rejected the argument, holding that “even though the

District is a quasi-municipal corporation, it has a right to seek to make a profit

out of the games played on its premises. We can see no good reason why it

should not have the same freedom of action as a private person or corporation

putting on the games.” Id. at 233. The Court also noted, presciently, that

“[w]ith the coming into general use of television, it may be that more revenue

might be realized from this right than from the admission fees.” Id.

Subsequently, other local broadcasters have mounted essentially the same

legal challenge asserting a First Amendment theory, arguing that state-controlled

athletic bodies may not purport to offer exclusive broadcasting rights. However,

each such challenge has been rejected on the grounds that the State has the same

proprietary licensing rights as a private team. See, e.g., Okla. Sports Props., Inc.

v. Indep. Sch. Dist. No. 11, 957 P.2d 137, 139 (Okla. Civ. App. 1998) (the First

Amendment does not preclude a public high school district, operating in its

“proprietary capacity,” from charging fees for the rights to broadcast high school

football games); Post Newsweek Stations-Conn., Inc. v. Travelers Ins. Co., 510

F. Supp. 81, 85-86 (D. Conn. 1981) (First Amendment did not preclude the City

of Hartford, operating in its “proprietary capacity,” from enforcing licenses

granted by the International Skating Union for the right to televise the World

Figure Skating Championships); see also KTSP-TAFT Television & Radio Co. v.


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Ariz. State Lottery Comm’n, 646 F. Supp. 300 (D. Ariz. 1986) (state entity may

grant exclusive broadcasting rights for state lottery drawings).

The most comprehensive and recent treatment of this issue is the Seventh

Circuit’s opinion in Wisconsin Interscholastic Athletic Association v. Gannett

Co., 658 F.3d 614 (7th Cir. 2011) (“WIAA”), discussed extensively in this

Court’s ruling. But amici submit that WIAA is manifestly inconsistent with the

right of publicity asserted by the Antitrust Plaintiffs. Indeed, far from endorsing

such a right, the decision embraced the inherently contradictory proposition that

exclusive rights to license sporting events for broadcast are vested in the entity

that sponsors the game. On the strength of that proposition, WIAA held that “the

producer of entertainment is entitled to charge a fee in exchange for consent to

broadcast . . . the producer of the entertainment—the NFL, FIFA, or the

NCAA—normally signs a lucrative contract for exclusive, or semi-exclusive,

broadcast rights for the performance.” Id. at 624, 628 (emphasis added). And in

so holding, the Court made it clear that “tournament games are a performance

product of WIAA that it has the right to control.” Id. at 616 (emphasis added).

In short, WIAA confirms more than eight decades of jurisprudence holding

that the producer of a team sporting event has the exclusive right to control who

may broadcast the entire game. But what is equally important about WIAA is its

treatment of the Supreme Court’s decision in Zacchini v. Scripps-Howard

Broadcasting Co., 433 U.S. 562 (1977). The Seventh Circuit relied on that case

for the proposition that it is the producer of a football game that has the right to

exclusively license it for broadcast and that it was, therefore, the high school

football association, not the athletes who played in the games, that was in the

same position as was Zacchini when he performed his human cannonball act.

Id. at 616.


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WIAA’s reading of Zacchini is correct. So understood, the case simply

reflects the extension of long-standing broadcasting law vesting rights in

producers, to the less common situation where the “producer” and “performer”

of an entertainment event are one and the same person. Notably, not only

WIAA, but other cases on point have construed Zacchini the same way. The

court in Post Newsweek Stations reached this conclusion with respect to the

International Skating Union, treating it as equivalent to Zacchini, and not the

individual figure skaters performing in the tournament the ISU sponsored. Post

Newsweek Stations, 510 F. Supp. at 84 (“It is clear that the ISU has a legitimate

commercial stake in this event, and they, like Zacchini, are entitled to contract

regarding the distribution of this entertainment product.”).

Indeed, Zacchini reflects the same rationale first articulated in the

Pittsburg Pirates case (which Zacchini cited) that inherently only applies to a

team or league: to incentivize the producers of an event to invest the effort to

make them available to the public. 433 U.S. at 576 (“the protection provides an

economic incentive for him [Zacchini] to make the investment required to

produce a performance of interest to the public”) (emphasis added). The Court

further noted that depriving Zacchini of compensation for a television broadcast

of his “entire act” was “similar to preventing [him] from charging an admission

fee.” Id. at 575-76.

As applied to team sports, it is the producer of the event (e.g., a team,

league or school) that charges an admission fee, not every offensive lineman,

cheerleader, or band member who performs in a game. Put another way, the

analogue in this case to the “entire act” discussed in Zacchini would be an entire

NCAA football game as a whole—not the “entire act” of each offensive

lineman, a construct that is difficult to even define and is certainly without


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precedent. Of course, Zacchini at times refers to “promoters” and “participants”

interchangeably, but that is because the entire context of the dispute was about a

plaintiff who was both. Id. at 575.

The litigation history of Zacchini confirms that reading. During the

course of the litigation through the Ohio courts the nature of the claim was

variously described, but most often was treated as one analogous to unfair

competition. Zacchini’s claim was originally filed as a complaint for generic

“unlawful appropriation,” while the Ohio Court of Appeals sustained the

complaint on the grounds that it stated claims for common-law conversion and

copyright infringement. See Zacchini v. Scripps-Howard Broad. Co., 1975 WL

182619 (Ohio Ct. App. Jul 10, 1975).

The Ohio Supreme Court chose instead to characterize the claim as one

asserting a “right to the publicity value of his performance,” 433 U.S. at 565, an

essentially sui generis cause of action that the Ohio courts have not since found

to be actionable. Importantly, the United States Supreme Court emphasized that

whatever its label might be, this state-law theory was different from, and

considerably narrower than, a claim for “unauthorized use of another’s name for

purposes of trade” that defines what is typically referred to as the right of

publicity to control the use of one’s image or likeness for commercial purposes.

Id. at 573 n.10, 576. Thus, regardless of how Ohio courts characterized the

claim, they all, under somewhat different labels, treated Zacchini as raising

essentially the same unfair competition cause of action courts had previously

vested in the producers of team sporting events, not in the athletes or other

participants on the field and in the stadium. That is why Zacchini has been

construed by lower courts to be directly relevant to subsequent cases asserting

First Amendment rights of access to state-sponsored sporting events. In both


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Zacchini and the access cases, courts balanced the asserted right of an event

producer to control the live broadcast of the event against the asserted First

Amendment right of a news organization to broadcast the event without the

producers’ permission. See e.g., WIAA, 658 F.3d 614 (athletic association could

control exclusive rights to stream high school football games); Post Newsweek

Stations, 510 F. Supp. 81 (International Skating Union may exclusively license

right to broadcast skating competition); see also KTSP-TAFT Television, 646 F.

Supp. 300. None of those cases, including Zacchini, involve claims by

individual members of a team or other collective entity who participated in a

sports game produced by someone else.

In short, state law has consistently vested exclusive broadcasting rights in

the producers of entertainment, not individual participants in a team sport.

B. No State’s Law Recognizes A Licensing Or Similar Right Vested In Every “Performer” In A Sporting Event

By contrast, no state has ever recognized a right of publicity that may also

be asserted by every participant in a team sporting event. To the contrary,

several cases have explicitly rejected the theory, while generally applicable

state-law principles underlying the right of publicity preclude its assertion. 1. Every Case on Point Has Rejected Plaintiffs’ Asserted Right of

Publicity At least four cases have, to some degree, considered the assertion of a

right of publicity in live game broadcasts and/or rebroadcasts by members of the

teams that competed. All four concluded that no such right could be asserted

under principles that would necessarily apply to the creation of any such right by

the student athletes, and all without finding it necessary to address the First

Amendment. At a minimum, these cases demonstrate the existence of a

sufficient number of conflicting and contradictory opinions that establish the


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existence of substantial grounds for disagreement for purposes of 28 U.S.C.

1292(b).

In Gautier v. Pro-Football, Inc., 304 N.Y. 354 (1952), a quarter century

before Zacchini, the New York Court of Appeals considered a similar claim by

another circus act performer, an animal trainer. Instead of performing at a state

fair like Zacchini, the trainer’s performance was part of the halftime show at a

Washington Redskins football game that was broadcast on television. The

trainer brought a claim under New York’s misappropriation statute. The Court

held that because the trainer’s performance was merely one element of a

broadcast of a newsworthy event (the football game), it was not a commercial

use actionable under the statute. Id. at 359. The Court further suggested that by

voluntarily appearing at a game the trainer knew was being televised, any claim

would in any event be waived. Id. at 360.

Thirty years later, the district court in National Football League v. Alley,

Inc., 624 F. Supp. 6 (S.D. Fla. 1983) reached the same conclusions with respect

to the athletes who compete in a professional football game. It held that Miami

Dolphins players have no right of publicity in the broadcasts of Dolphins games,

because game broadcasts do not use their images to promote any commercial

product and are “‘presentation[s] having a current or legitimate public interest.’”

Id. at 10 (citation omitted). It also suggested that any of the players’ objections

would be waived by playing in the game. Id. A few years later, in Baltimore

Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th

Cir. 1986), the Seventh Circuit held that any publicity claims of Major League

Baseball players in the telecasts of their game were preempted by the Copyright

Act.


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Finally, one other case addressed the potential assertion of a right of

publicity by a team of football players in the context of a different claim. In

Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir. 1956), the

Third Circuit considered a claim by a boxer whose 1936 match was rebroadcast

on television fifteen years later. The boxer’s specific complaint was that the

contract he signed for movie rights in 1936 with a non-party could not extend to

television, because it did not exist then.

In a decision the Third Circuit virtually declared to be sui generis, it held

the boxer could pursue a claim for unfair competition. More importantly,

however, sixty years ago the Court appeared to recognize that its decision might

one day be misconstrued to support the very theory asserted in this case. It thus

declared that “if there be telecasts of an intercollegiate football game, the

players, knowing or having reasonable grounds to know that the contest was

being telecast, would be presumed to have waived any right to compensation for

their performances by participating in the contest.” Id. at 487.3

While the grounds for these decisions vary, their unanimous, consistent

results demonstrate why no right of publicity for participants in a team sporting

event could be coherently established. The principle that non-commercial or

newsworthy programs cannot give rise to publicity claims, relied upon by cases

like Gautier and Alley, are applicable to both statutory and common-law rights

of publicity in all states. See, e.g., Cal. Civ. Code § 3344(d); Ind. Code Ann. §

3 Today the right of publicity claim in Ettore would almost certainly be preempted by the modern Copyright Act. Indeed, just last month a Missouri federal district court held that a similar claim by a boxer arising out of a re-broadcast of a match on ESPN Classic was preempted. Ray v. ESPN, Inc., Case No. 13-1179-CV (W.D. Mo. April 8, 2014). Indeed, copyright preemption is yet another reason why the type of publicity right asserted by the student athletes has not been recognized. See generally Baltimore Orioles, 805 F.2d at 674-79.


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32-36-1-1(c); Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir. 1994);

Montgomery v. Montgomery, 60 S.W.3d 524, 529 (Ky. 2001).

Although this Court’s summary judgment ruling stated that Plaintiffs have

the burden of demonstrating that they have cognizable rights of publicity under

state law, Dkt. 1025 at 15, Plaintiffs have not pointed to a single authority

establishing such a right. The Court itself pointed to only one state, Minnesota,

and speculated that its law might recognize a cause of action because one case

potentially permitted recovery for “at least certain kinds of broadcast footage.”

Id. at 27 (citing Dryer v. NFL, 689 F. Supp. 2d 1113, 1123 (D. Minn. 2010)).

But the reasoning of Dryer supports the conclusion that no state, including

Minnesota, would sustain a publicity action for live game broadcasts, and that

any such theory would be barred by the First Amendment. Dryer did not

specifically address any state’s law, but stands for the proposition that only the

context of commercial speech provides a basis for a publicity claim. 4 But this

Court has already held that game broadcasts are not commercial speech.

In short, numerous relevant authorities support the conclusion that

participants in a team sporting event do not have a right of publicity in the

broadcast of an entire game. 2. Both Practical and Policy Considerations Overwhelmingly

Preclude the Recognition of the Asserted Rights Under State Law

Recognizing the right of publicity asserted here would not only be

inconsistent with eighty years of well-established precedent vesting the

exclusive right to license a game for broadcast in the producer, it would

correspondingly invite both legal and practical chaos. By definition, if more

4 This Court’s decision denying the NCAA’s motion to dismiss construed Dryer the same way. Dkt. 876 at 19-20.


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than one person or entity owns a right, it is not exclusive, and the exclusivity

needed for the broadcast to be licensed could be secured only through numerous

theoretical underlying licenses.

Compounding this difficulty, it would be problematic to definitively

establish who would qualify as a “performer” in any particular game. The

Court’s ruling only addresses athletes, but there are many other categories of

“performers” who may contribute to the appeal of a game broadcast to the

viewing public. Some examples include coaches, cheerleaders, referees,

medical personnel, marching band members, halftime performers, as well as any

other person who appears on television and might try to assert, frivolously or

not, that they were identifiable for a sufficient period of time to qualify as a

participant for this purpose. The mix would vary for each particular game, and

it would be difficult to predict who the “performers” are in advance because no

one knows exactly what will happen at a football or basketball game. No sound

construction of any state’s law requires the identification, and then obtaining the

consent of, each of these individuals before telecast rights are granted.

Similarly, while it is at least logical to compare the “entire act” referenced

in Zacchini to the production of an entire game as a whole, the analogy to

Zacchini breaks down entirely if one tries to apply it to the television

“performance” of any particular participant in an event like a college football

game. Many “performers” (including athletes on the bench) never appear on

television at all, and those that do almost never have their “entire act” (whatever

that might mean) broadcast. That is because a game broadcast is a highly

creative, informative, and selective presentation of what actually occurs on the


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field and in the stadium, replete with commentary, analysis, replays, sideline

reports, human interest feature stories, etc.5

Finally, the Court’s assumption that some of the practical impediments to

broadcasting games will be eliminated because athletes will transfer their

publicity rights to schools is speculative, in part because there may be no lawful

to way to assure that will happen without committing the very antitrust

violations that the present system of forced transfer is alleged to entail.

Moreover, no precedent suggests that a personal intellectual property right

should be recognized on the assumption that the market will ensure that it can

never be asserted, because to actually assert it would produce chaos.

More broadly, the Court’s observation does not address the categories of

non-athletes who are depicted in game broadcasts and might seek to assert the

same rights, nor does it address athletes in less organized sports or analogous

activities. For example, WIAA notes that the internet streaming contracts at

issue in that case also granted rights to stream school activities such as spelling

bees. 658 F.3d at 623. But the Seventh Circuit did not in any way suggest that

its intent was to apply Zacchini to vest potential exclusive “rights to the

publicity value of the performances” in every sixth grader in the school district.

Yet the position of the Plaintiffs, and arguably the rationale of this Court’s

ruling, would require exactly that. In fact, the Court’s analysis would appear to

5 It bears mentioning that Zacchini actually concerned a nightly news broadcast, not an entertainment program featuring circus acts. Thus, the most direct analogy to a football game would be something like a news report featuring a 15-second clip of a winning field goal kick, where that was the placekicker’s only appearance in the game that day. If Zacchini really applies to an individual athlete’s “entire act,” then the kicker could successfully sue the television station for violating his right of publicity. Surely no court would sustain that theory, and indeed this Court has made clear that news coverage of games would not be actionable. Dkt. 1025 at 19. But that could only be so if the performances of individual players are not subject to any right of publicity, regardless of whether someone’s “entire act” is depicted.


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essentially call into question the telecasting of amateur sports altogether, be it

Little League baseball or high school football, because any athlete of any age

whose image appeared on television might claim a right to similar compensation

and even assert analogous antitrust violations by the governing sporting

authority. Amici respectfully submits that no state would construe its law to

require that result.

Finally, amici recognize that Plaintiffs have at times argued that any

references to publicity rights in broadcasting contracts confirms the existence of

such rights. That reasoning has long been rejected. Licensing and other

provisions of contracts are routinely drafted broadly in order to avoid exposure

to costly litigation, and it is well settled-that such provisions do not speak to

whether underlying legal rights do or do not exist.

For example, the Eighth Circuit’s decision in C.B.C. Distribution &

Marketing v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th

Cir. 2007) arose because a distributor of fantasy baseball games had for nine

years entered into an agreement with the Major League Baseball Players’

Association to license publicity rights in players’ names and statistics. After the

players’ association switched to a competitor, a lawsuit ensued. The Court held

that the First Amendment precluded any publicity rights with respect to the

fantasy games, regardless of the prior license. Id. at 823-24. II. THE FIRST AMENDMENT BARS THE RECOGNITION OF A

RIGHT OF PUBLICITY FOR PARTICIPANTS IN A GAME BROADCAST

The distinction between the producer of a sporting event and its participants

is also at the heart of the First Amendment issue raised by Plaintiffs’ state-law

theories. Amici agree with the Court’s ruling that Zacchini, WIAA and other

authority establish that the First Amendment does not preclude the producer of a


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sporting event from entering into exclusive broadcasting deals. But the First

Amendment would preclude the assertion of an analogous right of publicity by

every individual participant in the same event, because the balance of the interests

presented by the two scenarios are entirely different.

Amici agree with the Court’s First Amendment analysis in a number of

important respects: broadcasts of NCAA games are non-commercial speech that

are protected by the First Amendment, Dkt. 1025 at 23-24, and game broadcasts,

like most forms of protected speech, are not absolutely protected by the First

Amendment in all respects. Indeed, as discussed in Part 1 of this brief, Zacchini

and WIAA both hold that no one has a First Amendment right to broadcast an

entire game without the permission of the game’s producer.

Moreover, amici agree with the Court’s observation that the First

Amendment also recognizes a distinction in this regard between broadcasting

entire games and reporting news about the same game. For the latter, the

permission of a producer is not required. Dkt. 1025 at 19. Furthermore, amici

agree that the case law discussed on pages 22-23 of the Court’s ruling, though

instructive, does not directly address the fact pattern of an entire game broadcast

because those cases all involved news, historical material, or fantasy game

content. Finally, whether the First Amendment bars the athletes’ asserted right

of publicity is indeed a novel question, Dkt. 1025 at 16, though we think that is

in large part because no state law has recognized it. Importantly, the multiple

approaches the parties and different amici and this Court have taken to try to

resolve that novel and impactful question reinforce that this matter should be

certified for interlocutory appeal.

Critically, amici respectfully disagree with the Court’s conclusion that

“[t]here is no principled reason why the First Amendment would allow the


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NCAA to restrict press access to college football and basketball games (via

exclusive licensing agreements) but, at the same time, prohibit student-athletes

from doing the same (via right-of-publicity actions).” Id. at 20. There are

fundamental differences of constitutional magnitude between the state interests

implicated by the two propositions, and indeed as previously discussed, the

distinction between the two has been at the heart of sports broadcasting law for

decades. At a minimum, reasonable jurists can differ about the significance of

that distinction. A. The First Amendment Permits Producers To Exclusively License

Broadcasting Rights Because The State Has An Important Interest In Incentivizing The Creation Of Sporting Events

Turning first to the producer side of the ledger, beginning with the

Pittsburgh Pirates case courts have recognized producer broadcasting rights

because they incentivize producers to undertake the investment to organize

teams and sponsor sporting events in the first place, which in turn benefits the

public interested in such events. See, e.g., Nat’l Exhibition Co., 143 N.Y.S.2d at

770 (Broadcast rights incentivize and reward the Giants for “produc[ing]

National League championship games, plaintiff, at great expense”); Pittsburgh

Athletic Co., 24 F. Supp. at 492 (recognizing the Pirates’ broadcasting rights

because they made the investment to “acquire[] and maintain[] a baseball park,

[and] pay[] the players who participate in the game”). In Zacchini, the Court

addressed whether this incentive rationale was a sufficiently weighty state

interest to override the First Amendment rights asserted by the defendant news

station. 433 U.S. at 573-79 After balancing the interests on both sides, the

Court held that it was.

The Court emphasized that the specific, narrow state-law theory asserted

by Zacchini functioned much like copyright law, which incentivizes the creation


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of expressive works by authorizing its producers to exclusively license them to a

single publisher. Id. Limitations on the First Amendment rights of other to

publish an entire work are therefore justified because the net result will be the

creation of more expression and events of interest to the public. Twentieth

Century Music Corp. v. Aiken, 422 U.S. 151 (1975). Zacchini also considered

the defendant television station’s competing free speech interests, but concuded

that because the only question presented by the asserted publicity right was

“who gets to do the publishing,” the balance favored Zacchini. 433 U.S. at 573. B. The First Amendment Would Bar The Assertion Of A Right Of

Publicity By Game Participants Given The Fundamentally Different Balance Of Interests 1. Rights of Publicity in Game Broadcasts Would Not Materially

Incentivize Individual Athletes to Compete The incentive underpinnings of Zacchini are simply not present here as

there is no evidence that absent recognition of publicity rights , athletes would

stop playing sports. In the end, to the extent that athletes’ incentive to compete

is tied to compensation, that compensation is a function of the organizational

structure of the sport in which they participate. It is not derivative of the never-

before-legally-recognized assertion of publicity rights in a broadcast.

In professional sports, athletes typically can and do bargain for a portion of

their employers’ overall revenue, including television revenue, and that is what

provides the monetary incentive to perform. Dkt. 898-15 at 5, 88. Those

revenue-sharing formulas are not dependent upon the recognition of any right of

publicity in live broadcasts. Id. In fact, in the Baltimore Orioles case the

Seventh Circuit explicitly observed that the publicity rights the major league

baseball players asserted in broadcasts were unnecessary, noting that “they seek

a judicial declaration that they possess a right—the right to control the telecasts


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of major league baseball games—that they could not procure in bargaining with

the Clubs.” Baltimore Orioles, 805 F.2d at 679.

Turning to the polar opposite segment of the athletic world, athletes who

are minors and compete in sports such as Little League baseball and high school

basketball are almost never compensated at all, even though the games in which

they compete appear on television, radio or the internet with increasing

frequency. That too has nothing to do with rights of publicity, but reflects social

policies favoring pure amateur status for minors, which are embodied in the

rules governing those sports.

Collegiate athletes occupy a unique, hybrid status, because NCAA rules

permit athletic scholarships and proscribe any other compensation. It is not the

case, however, that professional athletes earn their compensation by reaping

rewards from exercising ephemeral rights of publicity in game broadcasts that

student-athletes are denied. Instead, it is a function of the structure of the sport

in which they participate.

It is no secret that there is a larger controversy currently being waged in

both the courts of law and public opinion regarding whether NCAA student-

athletes should receive any form of compensation beyond athletic scholarships.

Notably, several more recently-filed cases directly challenge whether the

NCAA’s amateurism structure as a whole is consistent with antitrust or labor

laws. See, e.g., Dkt. 1023 (filing recent decision in Northwestern Univ. &

College Athletes Players Ass’n (CAPA), No. 13-RC-121359 (Nat’l Labor

Relations Bd. March 26, 2014)); Alston v. NCAA, Case No. 4:14-cv-01011-CW

(N.D. Cal.). Those cases are not premised upon assertions of publicity rights,

but instead focus on the structure of collegiate sports. Simply put, the status of


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publicity rights in game broadcasts is not the reason that collegiate athletes

receive only athletic scholarships.

Amici want to make clear that they take no position whatsoever on the

question of whether some or all NCAA student-athletes should receive

compensation beyond athletic scholarships, or any of those other legal disputes.

Rather, amici submit that potentially overturning almost a century’s worth of

sports broadcasting law is simply not an appropriate—or constitutional—means

of addressing that fundamental question. At a minimum, it is clear that the

state’s interest in incentivizing the creation of an event that was at the heart of

the balance in Zacchini would not be furthered by recognizing the rights asserted

by Plaintiffs in this case. 2. A Right of Publicity in Game Broadcasts Would Have a

Substantial Chilling Effect on Constitutionally-Protected Speech About Matters of Public Interest

Turning to the other side of the balance, as previously discussed vesting

exclusive rights in numerous disparate participants in an event such as a football

game would pose substantial practical and legal obstacles to obtaining the

necessary rights to broadcast a game at all. The chilling effect on the

availability of speech would therefore be far greater than enforcement of the

producer-right at issue in Zacchini.

Moreover, even if those practical barriers to producing a game broadcast

could be overcome, the recognition of personal rights of publicity in this context

would be inconsistent with core First Amendment values. Regardless of

whether in theory a “group licensing market” might emerge, as a legal matter a

right of publicity is a personal right that vests in a single individual; it is not a

collective right owned in the first instance by a players’ union. Alley, 624 F.

Supp. at 10. The raison d’etre of the right of publicity is to afford each person


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the personal right to negotiate the terms upon which their image may be

displayed. Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 624 (6th Cir.

2000) (“The right of publicity is designed to reserve to a celebrity the personal

right to exploit the commercial value of his own identity.”). There is no state

interest served by granting numerous different participants the right to attempt to

exercise censorial control over a constitutionally-protected game broadcast.

The Court’s ruling further suggests that even if one state were to recognize

a right of publicity in game broadcasts, that could suffice to create a group

licensing market because national broadcasters could not risk being subject to

liability in even a single state. Even when dealing with constitutionally

unprotected speech such as obscenity, courts have expressed concern about

permitting the standards of a single local community to effectively dictate the

ground rules for disseminating speech nationally. See, e.g., United States v.

Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009). Given that game broadcasts

indisputably constitute constitutionally protected speech about matters of

immense public interest, amici submit that the lowest-common-denominator

approach to publicity rights that the Plaintiffs’ advocate is yet another factor

demonstrating that the balance of the interests presented in this case sharply tilts

in favor of applying the First Amendment, and provides another compelling

reason for certifying an interlocutory appeal.

Finally, an athlete’s relationship to a football game is qualitatively

different than a human cannon baller’s relationship to his own one-man show.

While Zacchini’s act was the sum and substance of the whole show, a football

game is itself a newsworthy event that involves much more than the sum of

individual “performances” by each of the 22 athletes who may occupy the field

on any given play. CBS Interactive Inc. v. NFL Players Ass’n, 259 F.R.D. 398,


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419 (D. Minn. 2009) (“there is no dispute that both professional baseball and

professional football . . . are closely followed by a large segment of the public”);

Alley, 624 F. Supp. at 10 (telecast of NFL game was a “‘presentation having a

current or legitimate public interest’” (citation omitted)). Unlike Zacchini, a

football player chooses to voluntarily take part in a newsworthy event that will

take place regardless of whether that athlete participates.

This is significant because it is well-settled that the First Amendment bars

persons who participate in newsworthy events from claiming a property or

privacy right in the depiction of those events in the media. See, e.g., Matthews,

15 F.3d at 439 (“a name cannot be appropriated by reference to it in connection

with the legitimate mention of public activities”); Gionfriddo v. Major League

Baseball, 94 Cal. App. 4th 400, 406 (2001) (“Plaintiffs’ games were played

before thousands of spectators and plaintiffs knew their performances were

being covered by the media.”); Montana v. San Jose Mercury News, Inc., 34

Cal. App. 4th 790, 795 (1995) (“When Joe Montana led his team to four Super

Bowl championships in a single decade, it was clearly a newsworthy event”);

Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 542 (1993) (“Publication of

matters in the public interest . . . is not ordinarily actionable.”). Indeed, it is

telling that three of the four cases rejecting rights of publicity for football

players (Gautier, Alley, and Ettore) held or suggested that appearing in a

newsworthy game would itself preclude the assertion of a claim. While those

decisions were grounded in state law, the First Amendment requires the same

result.

For all the foregoing reasons, amici respectfully submit that the NCAA’s

motion at a minimum presents “genuinely debatable legal issue[s]” of “first

impression” that warrant certification pursuant to 28 U.S.C. § 1292(b). Ditullio


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v. Boehm, 662 F.3d 1091, 1096 (9th Cir. 2011). Moreover, the issues presented

by the Court’s summary judgment ruling call into question settled expectations

regarding the broadcasting of sporting events. The ruling therefore has the

potential to affect matters well beyond the confines of this case, regardless of the

outcome of any trial proceedings here. Appellate review of these significant

issues at his juncture would therefore be especially warranted.

CONCLUSION

For the foregoing reasons, amici respectfully request that the Court grant

the NCAA’s Motion to certify the Court’s summary judgment ruling for

interlocutory appeal.

.DATED: May 2, 2014

ERWIN CHEMERINSKY* LEVINE SULLIVAN KOCH & SCHULZ, LLP NATHAN SIEGEL* CELESTE PHILLIPS By: /s/ Celeste Phillips CELESTE PHILLIPS Attorneys for Amici Curiae * Pro Hac Vice pending


Documents

Broadcasters Amicus 1