NFL publicity rights class action settlement is approved

Posted on: June 8th, 2015 by Steve Larson
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FootballThe Eighth Circuit affirmed Minnesota federal judge Donald Magnuson’s approval of a $42 million settlement between the NFL and nearly 25,000 former pro football players over the use of players’ likenesses in NFL-sponsored TV shows.  The Eighth Circuit found that the lower court did not abuse its discretion in approving the settlement.

Six former players had argued that the deal was unfair because it did not provide for a direct financial payment to each class member, but rather provided for payment to a third-party charity organization.  However, the three-judge Eighth Circuit panel said the financial payment to the non-profit group Common Good was not the only benefit for class members, as the settlement called for the establishment of a licensing agency, described as “one-stop shopping” for parties looking to purchase publicity rights of former NFL players.

“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,” wrote Circuit Judge Kermit E. Bye in the published 33-page opinion. “The settlement agreement passed the district court’s scrutiny, and we find no evidence whatsoever that the court failed to fulfill its duty to serve as a guardian for the rights of the absent class members.”

The Eighth Circuit said district court judge Magnuson was correct to factor in the monumental task of resolving the players’ publicity rights claims, given the tens of thousands of class members who reside in different states, played at different times and had different contracts.

“Undoubtedly, each party would have obtained competent and qualified (and expensive) experts to provide an evaluation on what each player’s appearance during the varying NFL Films’ videos was worth, but given the speculative endeavor of such a task, the effort to reach an amount of damages for each class member — to be persuasive — would have been substantial,” the panel stated. “Multiplying that for the nearly 25,000 class members upgrades it to Herculean.”

Barring further appeal, Thursday’s ruling by the Eighth Circuit brings an end to a long-running case first brought by former Los Angeles Rams player and actor Fred Dryer and two others in 2009.  The players took issue with dozens of NFL Films productions, most profiling a single game or season using game footage and interviews. U.S. District Judge Paul A. Magnuson sided with the league, finding the half-hour episodes were not commercial speech and thus entitled to full First Amendment protection. The plaintiffs had claimed the shows were advertisements that enhanced the NFL’s brand, but the judge ruled the productions were actual content.

The case is James Marshall et al v. National Football League et al., case number 13-3581, in the U.S. Court of Appeals for the Eighth Circuit.