Judge Tosses NFL Publicity Rights Class Action Lawsuit

Last Friday, a publicity rights class action lawsuit filed by former NFL players was tossed out of Minnesota federal court by the presiding judge. He ruled that the NFL Films use of game footage in their productions was considered non-commercial speech and based on this ruling, the judge dismissed the three former players’ complaints they insisted on pursuing after opting out of last year’s $42 million publicity rights class action settlement.

The plaintiffs in question, John Frederick Dryer, Edward Alvin White and Elvin Lamont Bethea, were three of nearly two dozen former NFL players who were part of the original NFL publicity rights class action lawsuit filed in 2009. This group of plaintiffs accused the National Football League of illegally profiting from the names and images of former NFL players.

In November 2013, both parties agreed to a $42 million publicity rights class action settlement, which was then approved by the court and subsequently established a settlement fund for retired players and a publicity rights agency. However, not all the Class Members were satisfied with this settlement, leading over 2,000 former NFL players, including Dryer, White, and Bethea, to opt out of the NFL settlement fund.

Dryer, White, and Bethea were concerned about dozens of half-hour episodes by NFL Films, which profiled a single game or season by using players’ game footage and interviews in the productions and argued the “use of video footage of them playing football violates their publicity rights, causes consumer confusion, and unjustly enriches the NFL.” U.S. District Judge Paul A. Magnuson disagreed with the plaintiffs’ arguments and sided with the NFL, stating the NFL Films half-hour episodes were considered commercial speech and thus protected under the First Amendment.

According to Judge Magnuson’s memorandum on the publicity rights class action lawsuit, the NFL Films’ half-hour productions were comparable to NFL history lessons, which needed to utilize the footage in question to fully tell the stories. The judge went on to state, “The NFL is capitalizing not on the likenesses of individual players but on the drama of the game itself, something that the NFL is certainly entitled to do. This is not commercial speech; it is capitalism.” Therefore, while the league is profiting from these videos, the NFL is not necessarily profiting from the former players’ images or names.

Additionally, the court found that the NFL Films productions featuring Dryer, White, and Bethea only showed them for a few seconds or minutes depending on the segment. Their names were not used in the commentary and the judge ruled that the only way a viewer would know it was either of the three plaintiffs is if the consumer knew the former players’ jersey numbers.

The thousands of Class Members opting out of the $42 million publicity rights class action settlement objected to it on the grounds that there was no guarantee that the Class Members would directly benefit from settlement plan.

Judge Magnuson warned the objecting Class Members that they did not have a high chance of gaining an infringement rights verdict if they proceeded with further litigation. The judge even went as far as to compare the dissenting former NFL players to “children denied dessert,” when he approved the publicity rights class action settlement fund earlier this year.

The players are represented by Jeffrey S. Gleason, Michael V. Ciresi, Jan M. Conlin, Thomas C. Mahlum and Aaron R. Fahrenkrog of Robins Kaplan Miller & Ciresi LLP, Robert A. Stein of Bob Stein LLC and Thomas J. Ward of Ward & Ward PLLC.

The NFL Publicity Rights Class Action Lawsuit is John Frederick Dryer, et al. v. National Football League, Case No. 0:09-cv-02182, in the U.S. District Court for the District of Minnesota.