Judge dismisses opt-outs’ case against NFL

December 12, 2014 by

FootballA Minnesota federal judge dismissed the claims of three former NFL players who were suing for violation of their publicity rights.

The Judge ruled the use of game footage in NFL Films productions was noncommercial speech and dismissing what was a putative class action before a $42 million settlement the plaintiffs opted out of.

The three former players were part of the nearly two dozen ex-players who filed a class action in 2009 accusing the league of profiting off their names and images. The court approved a settlement in that case in November, which created a fund for retired players and a publicity rights licensing agency, but more than 2,100 players opted out of the deal, including these three former players.

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.

“This contrast matters,” Judge Magnuson wrote. “The NFL does not pay television networks to broadcast NFL Films productions. Rather those networks pay the NFL for the right to air those productions.”

Judge Magnuson compared the productions to a “history lesson” of NFL football, which needed game footage to tell its stories. While the shows make money for the league, giving it a commercial motivation for the depictions, the players’ likenesses are used because there is no other way to visually depict a game, according to the opinion.

“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,” the judge wrote. “This is not commercial speech; it is capitalism.”

The court described the productions featuring the three players, saying that even episodes featuring them most prominently only show them for a few minutes, sometimes only for seconds at a time. The only way viewers would know that some of the films depicted the players was if they knew the players’ team numbers.

Even if the episodes were commercial speech, Judge Magnuson held the players had not established their state law publicity rights claims because the productions qualified for the laws’ newsworthiness exception. The judge further held the players consented to the use of the game footage, giving post-retirement interviews for the shows without objecting to the footage.

“Through their own words and actions, plaintiffs consented to, and even encouraged, NFL Films’ use of game footage in which they appeared,” Judge Magnuson wrote.

Categories: Class Actions of Interest


Steve Larson
An experienced trial lawyer who handles both hourly and contingent fee cases, Steve has expertise in class actions, consumer cases, antitrust litigation, securities litigation, corporate disputes, intellectual property disputes, unfair competition claims, employment matters, and disputes involving family wealth. Steve regularly represents individuals and businesses in federal and state court and has obtained class-wide recovery in multiple class actions. A veteran practitioner, Steve's clients value his creative approach to resolving complex litigation matters.

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