Retired Football Hall-of-Famers Fight for Publicity Rights in NFL Lawsuit

Ten accomplished NFL players, including five Hall-of-Famers, have filed a lawsuit against the NFL claiming the league fails to compensate them for the use of their images in NFL Films.

The plaintiffs in the class action, seeking to represent all retired players who opt-out of an existing settlement, include Curley Culp, John Riggins, Ron Yary, Dave Casper, Tom Mack, Phil Villapiano, Willie Buchanon, Joe Kapp, Mike Bass and Roman Gabriel. Hagens Berman and the plaintiffs claim that the NFL and NFL Films profits from the use of player images in its promotional materials through NFL Films, but does not compensate players.

The suit includes several causes of action including False Endorsement under the Lanham Act; claims under New Jersey unfair competition statutes and a general claim of unjust enrichment, charging that NFL Films received revenue through unlawful violations of the right of publicity.

Two Big Wins Scored Against NCAA

Two separate cases brought against the National Collegiate Athletic Association have moved forward, following rulings in Hagens Berman’s favor.

The first case alleges that the NCAA’s limits on the number of and amount of scholarships violate federal antitrust laws, distorting the labor market for student athletes and artificially increasing the price for a college education. In that case, U.S. District Court Judge Jane Magnus-Stinson issued a ruling rejecting the NCAA’s attempt to dismiss the case.

The second case claims that video gaming giant Electronic Arts and the NCAA improperly use student-athletes’ likenesses in EA-published football video games. EA had claimed the First Amendment protected its use of the likenesses, but the District Court rejected that argument.

EA appealed to the 9th Circuit Court of Appeals, which upheld the District Court’s ruling.

Madoff Investors Suit Against JP Morgan Awaits Supreme Court Decision

When the Madoff trustee sued Madoff’s banker, JPMorgan, claiming it was complicit in the fraud, the court threw out the suit, holding that the claims belonged to the victims.

Hagens Berman then stepped in and filed suit on behalf of the victims, alleging state law claims for knowing participation in a breach of trust and fiduciary; aiding and abetting fraud, breach of fiduciary duty and conversion; and unjust enrichment. JPMorgan moved to dismiss the claims as preempted by federal law, which tosses out any state law claims of more than 50 victims, where misrepresentations are “in connection with” the purchase or sale of any securities traded on a U.S. stock exchange.

If the Madoff trustee has no standing to sue, and the victims’ individual claims are precluded by a federal law designed to stop frivolous class actions, then the victims have no recourse to recover from Madoff’s collaborators.

The lawsuit is now stayed awaiting the outcome of the first case argued before the U.S. Supreme Court in October. That case involves a similar Ponzi scheme, and the SEC has sided with the fraudsters, arguing that “in connection with” must be interpreted broadly—not because the SEC thinks that the victims should not be able to seek relief, but so that the SEC maintains the broadest powers to regulate. Many of the justices seemed skeptical. As in the Madoff Ponzi scheme, no security was purchased or sold; there was just a promise to buy and sell. Some justices asked whether the SEC intended to regulate misrepresentations in prenuptial agreements or home loan applications.

We maintain that the misrepresentation needs to be “in connection with” the actual purchase or sale. Congress never intended to preclude state law fraud claims such as those involving Ponzi schemes where no sale occurs and the investors’ money is pocketed. A Supreme Court decision is expected by July.