8th Circuit Upholds NFL Likeness Class Action Settlement

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The 8th Circuit U.S. Court of Appeals has upheld a decision by a lower federal court, which approved a class action settlement over the NFL’s use of the likenesses of former players.

Former NFL football players filed a class action lawsuit in 2009, saying that they objected to the NFL using their likenesses unless they were compensated. The players said that NFL Films, which is the filmmaking company for the NFL, “has used the names, images, likenesses, and identities of former NFL players in its various videos to generate revenue and promote the NFL.”

Such films, the players claim, have helped the NFL earn a substantial amount of money and improve the league’s brand.

In 2013, a NFL class action settlement was reached in which it was agreed that the NFL would pay $42 million over eight years into a non-profit organization called the Common Good Entity, which is “dedicated to supporting and promoting the health and welfare of retired players and other similarly situated individuals.”

The NFL also agreed to set up a licensing agency, and that it would pay $100,000 worth of media value to that licensing agency every year until 2021. The licensing agency is supposed to be a “one-stop shop” for anyone who wants “to purchase the publicity rights of former NFL players.”

There were 25,000 former players who made up the class members in this class action settlement. However, six players objected to the settlement being approved by a federal judge because they believe he abused his discretion by ruling the the NFL player class action settlement fair, reasonable and adequate when it didn’t include any direct financial payment for the players.

They argued that the class action settlement merely allowed the NFL to give what should be their proceeds to a third-party charity.

However, the appellate court disagreed with the six players and sided with the lower court.

“Here, the financial payment to the third-party organization is not the only, or perhaps even the primary, benefit of the settlement agreement,” Circuit Judge Kermit Bye wrote on behalf of the three judge panel.

“All class members receive a direct benefit from the settlement: the opportunity to license their publicity rights through the established licensing agency, as well as the payments by the NFL to the licensing agency. If the players’ publicity rights are as valuable as appellants claim, the players should be able to realize the value of their publicity rights through the licensing agency,” Judge Bye added.

The panel used “the traditional four-factor analysis” to determine if the class action settlement was in fact fair, reasonable, and adequate.

The appellate court acknowledged that the NFL is financially stable and would be able to continue litigation if needed. However, the court said that continuing the lawsuit would be too great a burden, and those who objected to the terms of the class action settlement were less than 10 percent of the 25,000 member class. In addition, the value of the terms established in the settlement exceeded the merits of the allegations brought by the players.

The appealing players are represented by Michael V. Ciresi and Jan M. Conlin of Ciresi Conlin LLP and Eric John Magnuson and Thomas C. Mahlum of Robins Kaplan LLP.

The settling players are represented by Daniel E. Gustafson of Gustafson Gluek PLLC.

The NFL Player Likeness Class Action Lawsuit is James Marshall et al v. National Football League et al., Case No. 13-3581, in the U.S. Court of Appeals for the Eighth Circuit.