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Case: 15-5753

Document: 124-1

Filed: 08/17/2016

Page: 1

UNITED STATES COURT OF APPEALS


FOR THE SIXTH CIRCUIT
Deborah S. Hunt
Clerk

100 EAST FIFTH STREET, ROOM 540


POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000


www.ca6.uscourts.gov

Filed: August 17, 2016

Re: Case No. 15-5753, Javon Marshall, et al v. ESPN, et al


Originating Case No. : 3:14-cv-01945
Dear Counsel:
The Court issued the enclosed Opinion today in this case.
Sincerely yours,
s/Amy E. Gigliotti
Case Manager
Direct Dial No. 513-564-7012

cc: Mr. David Erik Albright


Mr. Jeffrey L. Allen
Ms. Gail Vaughn Ashworth
Mr. Kevin T. Baine
Mr. James N. Bowen
Mr. Bradford David Box
Mr. John P. Branham
Mr. Roger G. Brooks
Mr. Yehudah Lev Buchweitz
Mr. Arthur Joseph Burke
Ms. Leane Kathleen Capps
Mr. Mark P. Chalos
Mr. Evan R. Chesler
Mr. Scott P. Cooper
Ms. Patricia J. Cottrell
Mr. Kenneth L. Doroshow

Mr. J. Wesley Earnhardt


Ms. Amy Jo Everhart
Mr. David Alexander Fardon
Ms. Jacquelyn Nicole Ferry
Mr. Thomas R Frazer III
Mr. Thomas Roe Frazer II
Mr. Robert W. Fuller III
Ms. Elizabeth O. Gonser
Mr. Samuel D. Gregory
Mr. Robert Dale Grimes
Mr. Todd Ryan Hambidge
Mr. Hal D. Hardin
Mr. Robb S. Harvey
Mr. William J. Haynes III
Mr. Thomas G. Hentoff
Mr. Jonathan P. Heyl

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Case: 15-5753

Mr. John Spaulding Hicks


Mr. Eric Hochstadt
Mr. Gregory G. Holland
Ms. Pearlynn G. Houck
Mr. Bradley G. Hubbard
Mr. John R. Jacobson
Ms. Jennifer Lindsay Jones
Mr. Walker W. Jones III
Mr. Reid D. Leitner
Mr. Samuel D. Lipshie
Ms. Caitlin Jemilha Morgan
Mr. Louis Peter Petrich
Mr. James W. Quinn
Mr. Daniel Richards
Mr. Brian E. Robison
Enclosure
Mandate to issue

Document: 124-1

Filed: 08/17/2016

Page: 2

Mr. Andrew S. Rosenman


Ms. Kelli L. Sager
Mr. James Franklin Sanders
Mr. James Isaac Sanders
Mr. John Schmidtlein
Ms. Dana Seshens
Mr. Nathan Ellis Siegel
Mr. William Scott Sims
Mr. David R. Singer
Mr. Richard Lee Stone
Mr. Andrew Jackson Thomas
Mr. Keith Throckmorton
Mr. Thomas B. Walsh IV
Mr. Walter Scott Welch III
Mr. Stephen James Zralek

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Case: 15-5753

Document: 124-2

Filed: 08/17/2016

Page: 1

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION


File Name: 16a0483n.06

FILED

No. 15-5753
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAVON MARSHALL, et al.,
Plaintiffs-Appellants,
v.
ESPN, et al.,
Defendants-Appellees.

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Aug 17, 2016


DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE


UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE

Before: BATCHELDER and KETHLEDGE, Circuit Judges; and LEVY, District Judge.*
KETHLEDGE, Circuit Judge. To state the plaintiffs theory in this case is nearly to
refute it. The theory begins with the assertion that college football and basketball players have a
property interest in their names and images as they appear in television broadcasts of games in
which the players are participants. Thus, the plaintiffs conclude, those broadcasts are illegal
unless licensed by every player on each team. Whether referees, assistant coaches, and perhaps
even spectators have the same rights as putative licensors is unclear from the plaintiffs briefs
(and, by all appearances, to the plaintiffs themselves). In any event, the plaintiffs seek to assert
claims under Tennessee law, the Sherman Act, and the Lanham Act on behalf of a putative class
of collegiate players nationwide. The defendantsvarious college athletic conferences and
television networks, among othersresponded in the district court with a motion to dismiss,
which the court granted in a notably sound and thorough opinion.

The Honorable Judith E. Levy, United States District Judge for the Eastern District of
Michigan, sitting by designation.

Case: 15-5753

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Filed: 08/17/2016

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No. 15-5753, Marshall, et al. v. ESPN, et al.


To that opinion we have little to add. The plaintiffs claim that, under Tennessee statutory
and common law, college players have a right of publicity in their names and images as they
might appear in television broadcasts of football or basketball games in which the plaintiffs
participate. But that argument is a legal fantasy. Specifically, the plaintiffs statutory claim
under the Tennessee Personal Rights Protection Act is meritless because that Act expressly
permits the use of any players name or likeness in connection with any sports broadcast.
Tenn. Code Ann. 47-25-1107(a). And the plaintiffs common-law claim is meritless, as the
district court rather patiently explained, because the Tennessee courts have never recognized any
such right and because, in the meantime, the Tennessee legislature has spoken to the issue
directly.
The plaintiffs case goes downhill from there. Their claim under the Sherman Act is that
the various defendants have engaged in a horizontal scheme to fix at zero the price of the
plaintiffs putative rights to license broadcasts of sporting events in which the plaintiffs
participate. That claim is meritless because, as shown above, those putative rights do not exist.
That leaves the plaintiffs claim under the Lanham Act, whose relevant provision bars the
unauthorized use of a persons name or likeness in commerce when doing so is likely to cause
confusion as to whether the person endorses a product. 15 U.S.C. 1125(a)(1)(A). The theory
here is that if, say, ESPN shows a banner for Tostitos at the bottom of the screen during a
football game, then consumers might become confused as to whether all the players on the
screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the
theory itself does.
The district courts judgment is affirmed.

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