By Joe Palazzolo
A federal judge on Wednesday shot down an antitrust lawsuit accusing the National Football League of exploiting retired players.
The 2011 lawsuit — filed by Gene Washington (Vikings, Broncos), Diron Talbert (Redskins) and Sean Lumpkin (Saints) — alleged that the NFL illegally trades on historic footage of retired players in promotional films and other products. The three ex-players represented a purported class of retirees seeking compensation.
The NFL monopolizes the market for the retired players’ likenesses, while prohibiting them from using their own identities as players to promote themselves commercially, the lawsuit alleged.
Senior U.S. District Judge Paul A. Magnuson, in dismissing the lawsuit, wondered whether such a market even existed.
Plaintiffs do not explain what market might exist in game footage that features only that footage to which any player can claim to be individually entitled: a single player’s image without any NFL logos or marks. The market is for game footage featuring many players, wearing NFL logos and treading fields replete with NFL marks. Plaintiffs cannot and do not contend that they own or should own the footage itself. Thus, the Rule of Reason compels the conclusion that, even if there is concerted action to restrain trade in Plaintiffs’ images, that agreement “is necessary to market the product at all” and is therefore not illegal.
“What they have are claims for royalties, not claims for antitrust,” the judge concluded.
Gregg Levy, a partner at Covington & Burling LLP who represented the NFL, said the opinion confirmed that “antitrust laws do not limit the NFL’s ability to market and sell intellectual property, including historical game footage, that the member clubs own collectively.”
A lawyer for the retired players, Charles Zimmerman, said Judge Magnuson had recognized significant publicity rights of former players, even if he didn’t find any antitrust violations. Mr. Zimmerman said no decision had been made on whether to appeal Wednesday’s ruling.