Broadcasters Amicus 1

Case No.
09-cv-01967-CW (NC)

BRIEF IN SUPPORT OF DEFENDANT
NCAAS MOTION TO CERTIFY

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ERWIN CHEMERINSKY
UNIVERSITY OF CALIFORNIA, IRVINE
SCHOOL OF LAW
401 East Peltason Drive, Educ 1095
Irvine, CA 92697
echemerinsky@law.uci.edu
Telephone: (949) 824-7722
Fax: (949) 824-7336

LEVINE SULLIVAN KOCH & SCHULZ, LLP
NATHAN SIEGEL (Pro Hac Vice pending)
nsiegel@lskslaw.com
1899 L Street, N.W., Suite 200
Washington, DC 20036
Telephone: (202) 508-1184
Fax: (202) 861-9888

CELESTE PHILLIPS, Cal. Bar No. 100066
cphillips@lskslaw.com
25 Bulkley Avenue
Sausalito, CA 94965
Telephone: (415) 331-1100
Fax: (415) 331-1195

Attorneys for Amici Curiae

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
In re NCAA Student-Athlete Name &
Likeness Licensing Litigation

Case No. 09-cv-01967 CW (NC)
BRIEF AMICUS CURIAE OF A&E
TELEVISION NETWORKS, LLC,
ABC, INC., CBS CORPORATION,
DISCOVERY COMMUNICATIONS,
LLC, FOX BROADCASTING
COMPANY, NBCUNIVERSAL
MEDIA, LLC, THE REPORTERS
COMMITTEE FOR FREEDOM OF
THE PRESS, AND TURNER
BROADCASTING SYSTEM, INC. IN
SUPPORT OF DEFENDANT NCAAS
MOTION TO CERTIFY PURSUANT
TO 28 U.S.C. 1292(b) THE COURTS
ORDER RESOLVING CROSS
MOTIONS FOR SUMMARY
JUDGMENT
Case4:09-cv-01967-CW Document1047-1 Filed05/02/14 Page1 of 28

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Case No. 09-cv-01967-CW (NC)


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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 2
I. STATE LAW DOES NOT RECOGNIZE A RIGHT OF
PUBLICITY FOR PARTICIPANTS IN TEAM SPORTING EVENTS........ 3
A. State Law Uniformly Recognizes That The Right
To License A Team Sporting Event For Broadcast
Vests Exclusively In The Producer Of The Game ................................ 3
B. No States Law Recognizes A Licensing Or
Similar Right Vested In Every Performer In A Sporting Event ........ 9
1. Every Case on Point Has Rejected
Plaintiffs Asserted Right of Publicity ........................................ 9
2. Both Practical and Policy Considerations
Overwhelmingly Preclude the Recognition
of the Asserted Rights Under State Law ................................... 12
II. THE FIRST AMENDMENT BARS THE
RECOGNITION OF A RIGHT OF PUBLICITY
FOR PARTICIPANTS IN A GAME BROADCAST ................................... 15
A. The First Amendment Permits Producers
To Exclusively License Broadcasting Rights
Because The State Has An Important Interest In
Incentivizing The Creation Of Sporting Events .................................. 17
B. The First Amendment Would Bar The Assertion
Of A Right Of Publicity By Game Participants Given
The Fundamentally Different Balance Of Interests ............................ 18
1. Rights of Publicity in Game
Broadcasts Would Not Materially
Incentivize Individual Athletes to Compete ............................. 18
2. A Right of Publicity in Game Broadcasts Would
Have a Substantial Chilling Effect on Constitutionally-Protected
Speech About Matters of Public Interest .................................. 20
CONCLUSION ........................................................................................................ 23


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TABLE OF AUTHORITIES
Page(s)
Cases
Alston v. NCAA,
Case No. 4:14-cv-01011-CW (N.D. Cal.) .......................................................... 19
Baltimore Orioles, Inc. v. Major League Baseball Players Association,
805 F.2d 663 (7th Cir. 1986) ............................................................ 10, 11, 18, 19
C.B.C. Distribution & Marketing v. Major League Baseball
Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) ........................................ 15
CBS Interactive Inc. v. NFL Players Assn,
259 F.R.D. 398 (D. Minn. 2009) .................................................................. 21, 22
Couch v. Telescope Inc.,
611 F.3d 629 (9th Cir. 2010) ................................................................................ 1
Ditullio v. Boehm,
662 F.3d 1091 (9th Cir. 2011) ...................................................................... 22, 23
Dora v. Frontline Video, Inc.,
15 Cal. App. 4th 536 (1993) ............................................................................... 22
Dryer v. NFL,
689 F. Supp. 2d 1113 (D. Minn. 2010) ............................................................... 12
Ettore v. Philco Television Broad.,
229 F.2d 481 (3d Cir. 1956) ......................................................................... 11, 22
Gautier v. Pro-Football, Inc.,
304 N.Y. 354 (1952) ............................................................................... 10, 11, 22
Gionfriddo v. Major League Baseball,
94 Cal. App. 4th 400 (2001) ............................................................................... 22
Haelen Labs., Inc. v. Topps Chewing Gum, Inc.,
202 F.2d 866 (2d Cir. 1953) ................................................................................. 2

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KTSP-TAFT Television & Radio Co. v. Ariz. State Lottery Commn,
646 F. Supp. 300 (D. Ariz. 1986) ................................................................. 5, 6, 9
Landham v. Lewis Galoob Toys, Inc.,
227 F.3d 619 (6th Cir. 2000) .............................................................................. 21
Matthews v. Wozencraft,
15 F.3d 432 (5th Cir. 1994) .......................................................................... 12, 22
Montana v. San Jose Mercury News, Inc.,
34 Cal. App. 4th 790 (1995) ............................................................................... 22
Montgomery v. Montgomery,
60 S.W.3d 524 (Ky. 2001) .................................................................................. 12
Natl Exhibition Co. v. Fass,
143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955) ......................................................... 4, 17
Natl Football League v. Alley, Inc.,
624 F. Supp. 6 (S.D. Fla. 1983) ........................................................ 10, 11, 20, 22
Northwestern Univ. & College Athletes Players Assn (CAPA),
No. 13-RC-121359 (Natl Labor Relations Bd. March 26, 2014)...................... 19
Okla. Sports Props., Inc. v. Indep. Sch. Dist. No. 11,
957 P.2d 137 (Okla. Civ. App. 1998) ................................................................... 5
Pittsburgh Athletic Co. v. KQV Broad. Co.,
24 F. Supp. 490 (W.D. Pa. 1938) ................................................................ 3, 5, 17
Post Newsweek Stations-Conn., Inc. v. Travelers Ins. Co.,
510 F. Supp. 81 (D. Conn. 1981) .................................................................. 5, 7, 9
Ray v. ESPN, Inc.,
Case No. 13-1179-CV (W.D. Mo. April 8, 2014) .............................................. 11
Reese v. BP Exploration (Alaska) Inc.,
643 F.3d 681 (9th Cir. 2011) ................................................................................ 1
Rudolph Mayer Pictures v. Pathe News,
235 A.D. 774 (N.Y. App. Div. 1932) ................................................................... 3
Sw. Broad. Co. v. Oil Center Broad. Co.,
210 S.W.2d 230 (Tex. Civ. App. 1947) ............................................................ 4, 5

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Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 (1975) ............................................................................................ 18
Twentieth Century Sporting Club v. Transradio Press Serv.,
165 Misc. 71 (N.Y. Sup. Ct. 1937) ................................................................... 3, 5
United States v. Kilbride,
584 F.3d 1240 (9th Cir. 2009) ............................................................................ 21
Wisconsin Interscholastic Athletic Association v. Gannett Co.,
658 F.3d 614 (7th Cir. 2011) .......................................................................passim
Zacchini v. Scripps-Howard Broad. Co.,
1975 WL 182619 (Ohio Ct. App. J ul 10, 1975) ................................................... 8
Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562 (1977) .....................................................................................passim
Statutes
28 U.S.C. 1292(b) .............................................................................................. 10, 22
CAL. CIV. CODE 3344(d) ....................................................................................... 11
IND. CODE ANN. 32-36-1-1(c) ......................................................................... 11, 12


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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Certification of an interlocutory appeal may be authorized where an order
(1) involves a controlling question of law, (2) as to which there is substantial
ground for difference of opinion, and (3) an immediate appeal . . . may
materially advance the ultimate termination of the litigation. There is likely to
be little dispute that the first and third factors are satisfied, because the Courts
summary judgment ruling held that whether the right of publicity asserted by
Plaintiffs in live game broadcasts exists, or is barred by the First Amendment,
are both dispositive questions. Dkt. 1025 at 15. This brief will therefore focus
on the second factor.
Factors the Ninth Circuit has identified as relevant to assessing the second
factor include, but are not limited to whether (1) novel and difficult questions
of first impression are presented, (2) there exists a sufficient number of
conflicting and contradictory opinions, and (3) reasonable jurists might
disagree on an issues resolution. Reese v. BP Exploration (Alaska) Inc., 643
F.3d 681, 688 (9th Cir. 2011); Couch v. Telescope Inc., 611 F.3d 629, 633, 634
(9th Cir. 2010) (internal marks and citations omitted). Here, all three criteria are
satisfied.
1

1
This brief only addresses the issue of asserted rights of publicity in live game broadcasts, and is
not intended to weigh in on any other issues presented by this case. With respect to the right of
publicity, these amici strongly support the NCAAs position that in the context of whole game
broadcasts such a right is not recognized as a matter of state law, and in any event would be
barred by the First Amendment. At times, the grounds that amici set forth for reaching those
conclusions may differ somewhat from the approach the NCAA advocates. Such distinctions
between the positions of all the parties and amici reinforce the conclusion that there are
substantial grounds for differences of opinion regarding how to best resolve the important issues
presented here.

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ARGUMENT
Team sporting events have been broadcast on radio, television, and now
the internet since the 1920s. The right of publicity was first formally recognized
in 1953, although its antecedents long predate that. See Haelen Labs., Inc. v.
Topps Chewing Gum, Inc., 202 F.2d 866, 868-69 (2d Cir. 1953). Yet no party
nor the Court has ever identified a single jurisdiction in that ninety-year time
span that has recognized a right of publicity enjoyed by the participants in a live
broadcast of a team sport, or any re-broadcast. That is because the asserted right
of publicity does not exist, and for very good reasons.
In their summary judgment briefs the parties principally addressed
whether the First Amendment would bar such a right, if it were to exist. While
amici agree that the First Amendment would preclude the asserted right of
publicity, and address that issue in Part II of this brief, it is not necessary to
reach that question because state law precludes the assertion of such a right in
the first place. For at least eighty years state law has consistently recognized a
proprietary right to license the broadcast of a team sporting event that vests
exclusively in the producer of the event. By contrast, no state law has ever,
recognized an analogous right of every participant in the event to control the
live broadcast of their individual image and/or performance
And that is for good reasonthe right of publicity simply does not fit and
cannot be logically extended to the circumstance of the broadcast of a sporting
event. If each participant in a game with hundreds of performers had the
exclusive right to license their individual appearance in the game, then by
definition there could be no exclusivity in the game as a whole. Respectfully,
amici submit that the Courts analysis conflates the very different way the law

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treats producers and performers of athletic events, and erroneously treats them
as one and the same.
I. STATE LAW DOES NOT RECOGNIZE A RIGHT OF PUBLICITY
FOR PARTICIPANTS IN TEAM SPORTING EVENTS
A. State Law Uniformly Recognizes That The Right To License A Team
Sporting Event For Broadcast Vests Exclusively In The Producer Of
The Game.
In an era when radio was king, the Pittsburgh Pirates entered into
contracts with a group of radio broadcasters granting them the exclusive right to
broadcast play-by-play accounts of Pirates games. But in 1938, a competing
broadcaster executed a clever scheme. It stationed multiple observers outside of
Forbes Field who could see over the outfield fence. Those observers then
relayed play-by-play descriptions of the action to the broadcaster, enabling it to
offer its own competing broadcast of the entire game, almost in real time. The
Pirates successfully obtained an injunction barring the practice. Pittsburgh
Athletic Co. v. KQV Broad. Co., 24 F. Supp. 490 (W.D. Pa. 1938).
The court reasoned that the Pirates, having made the investment to
acquire[] and maintain[] a baseball park, [and] pay[] the players who
participate in the game, had a property right to sell[] exclusive broadcasting
rights to companies which value them. Id. at 492. It further held the clubs
proprietary right could be legally enforced through a claim for unfair
competition against the renegade broadcaster. Id. It pointed to prior decisions
from New York courts enjoining essentially the same scheme to offer competing
broadcasts of Brooklyn Dodgers games from outside Ebbets Field, as well as a
boxing match held at Yankee Stadium. See Twentieth Century Sporting Club v.
Transradio Press Serv., 165 Misc. 71 (N.Y. Sup. Ct. 1937); Rudolph Mayer
Pictures v. Pathe News, 235 A.D. 774 (N.Y. App. Div. 1932).

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Twenty years later, another entrepreneur tested a different tactic to try to
offer unlicensed radio broadcasts of then-New York Giants baseball games
(now, of course, the San Francisco Giants). The radio station simply listened to
the authorized play-by-play radio broadcast of a game, and then repeated what
happened in a slight delayed broadcast of its own. A New York trial court held
that practice also constituted unfair competition. Natl Exhibition Co. v. Fass,
143 N.Y.S.2d 767 (N.Y. Sup. Ct. 1955). As in the Pirates case, the court
reasoned that the Giants at great expense . . . is employing a large number of
the most highly skilled players or performers who have been and are available,
and, at great expense, has provided and is providing a park with facilities, and
therefore enjoyed a property right to exclusively license the teams games for
radio and television broadcast. Id. at 770.
Indeed, by the 1950s the principle that the entity responsible for putting
on a sporting event (which this brief refers to as the producer)
2
enjoys a
proprietary right to exclusively control the broadcast of the entire game was so
well-established that an aspiring broadcaster who had not contracted for such
rights tested yet another novel approach. High school football was already king
in small town, post-war Texas, and public school districts were offering
exclusive broadcasting contracts for radio and subsequently television. A
broadcaster purchased tickets to a high school game and, without permission,
transmitted its own, competing play-by-play radio account from inside the
stadium.
None of the parties to the case appeared to contest that private entities that
sponsor football games, as well as their exclusive broadcast licensees, hold a

2
As discussed elsewhere in this brief, the term producer is used by a number of cases in this
sense, and is used here for ease of reference. The term is of course not intended to literally apply
to every person or entity in any field of entertainment who may call themselves a producer.

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valuable right to broadcast a description of the action of an athletic contest.
Sw. Broad. Co. v. Oil Center Broad. Co., 210 S.W.2d 230, 232 (Tex. Civ. App.
1947) (citing both Pittsburgh Athletic Co. and Twentieth Century Sporting
Club). But the defendant broadcaster argued that because a high school district
is a public entity, it may not purport to grant exclusive broadcasting rights by
selectively admitting only its licensee broadcasters into a public stadium. The
Texas Court of Appeals rejected the argument, holding that even though the
District is a quasi-municipal corporation, it has a right to seek to make a profit
out of the games played on its premises. We can see no good reason why it
should not have the same freedom of action as a private person or corporation
putting on the games. Id. at 233. The Court also noted, presciently, that
[w]ith the coming into general use of television, it may be that more revenue
might be realized from this right than from the admission fees. Id.
Subsequently, other local broadcasters have mounted essentially the same
legal challenge asserting a First Amendment theory, arguing that state-controlled
athletic bodies may not purport to offer exclusive broadcasting rights. However,
each such challenge has been rejected on the grounds that the State has the same
proprietary licensing rights as a private team. See, e.g., Okla. Sports Props., Inc.
v. Indep. Sch. Dist. No. 11, 957 P.2d 137, 139 (Okla. Civ. App. 1998) (the First
Amendment does not preclude a public high school district, operating in its
proprietary capacity, from charging fees for the rights to broadcast high school
football games); Post Newsweek Stations-Conn., Inc. v. Travelers Ins. Co., 510
F. Supp. 81, 85-86 (D. Conn. 1981) (First Amendment did not preclude the City
of Hartford, operating in its proprietary capacity, from enforcing licenses
granted by the International Skating Union for the right to televise the World
Figure Skating Championships); see also KTSP-TAFT Television & Radio Co. v.

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Ariz. State Lottery Commn, 646 F. Supp. 300 (D. Ariz. 1986) (state entity may
grant exclusive broadcasting rights for state lottery drawings).
The most comprehensive and recent treatment of this issue is the Seventh
Circuits opinion in Wisconsin Interscholastic Athletic Association v. Gannett
Co., 658 F.3d 614 (7th Cir. 2011) (WIAA), discussed extensively in this
Courts ruling. But amici submit that WIAA is manifestly inconsistent with the
right of publicity asserted by the Antitrust Plaintiffs. Indeed, far from endorsing
such a right, the decision embraced the inherently contradictory proposition that
exclusive rights to license sporting events for broadcast are vested in the entity
that sponsors the game. On the strength of that proposition, WIAA held that the
producer of entertainment is entitled to charge a fee in exchange for consent to
broadcast . . . the producer of the entertainmentthe NFL, FIFA, or the
NCAAnormally signs a lucrative contract for exclusive, or semi-exclusive,
broadcast rights for the performance. Id. at 624, 628 (emphasis added). And in
so holding, the Court made it clear that tournament games are a performance
product of WIAA that it has the right to control. Id. at 616 (emphasis added).
In short, WIAA confirms more than eight decades of jurisprudence holding
that the producer of a team sporting event has the exclusive right to control who
may broadcast the entire game. But what is equally important about WIAA is its
treatment of the Supreme Courts decision in Zacchini v. Scripps-Howard
Broadcasting Co., 433 U.S. 562 (1977). The Seventh Circuit relied on that case
for the proposition that it is the producer of a football game that has the right to
exclusively license it for broadcast and that it was, therefore, the high school
football association, not the athletes who played in the games, that was in the
same position as was Zacchini when he performed his human cannonball act.
Id. at 616.

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WIAAs reading of Zacchini is correct. So understood, the case simply
reflects the extension of long-standing broadcasting law vesting rights in
producers, to the less common situation where the producer and performer
of an entertainment event are one and the same person. Notably, not only
WIAA, but other cases on point have construed Zacchini the same way. The
court in Post Newsweek Stations reached this conclusion with respect to the
International Skating Union, treating it as equivalent to Zacchini, and not the
individual figure skaters performing in the tournament the ISU sponsored. Post
Newsweek Stations, 510 F. Supp. at 84 (It is clear that the ISU has a legitimate
commercial stake in this event, and they, like Zacchini, are entitled to contract
regarding the distribution of this entertainment product.).
Indeed, Zacchini reflects the same rationale first articulated in the
Pittsburg Pirates case (which Zacchini cited) that inherently only applies to a
team or league: to incentivize the producers of an event to invest the effort to
make them available to the public. 433 U.S. at 576 (the protection provides an
economic incentive for him [Zacchini] to make the investment required to
produce a performance of interest to the public) (emphasis added). The Court
further noted that depriving Zacchini of compensation for a television broadcast
of his entire act was similar to preventing [him] from charging an admission
fee. Id. at 575-76.
As applied to team sports, it is the producer of the event (e.g., a team,
league or school) that charges an admission fee, not every offensive lineman,
cheerleader, or band member who performs in a game. Put another way, the
analogue in this case to the entire act discussed in Zacchini would be an entire
NCAA football game as a wholenot the entire act of each offensive
lineman, a construct that is difficult to even define and is certainly without

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precedent. Of course, Zacchini at times refers to promoters and participants
interchangeably, but that is because the entire context of the dispute was about a
plaintiff who was both. Id. at 575.
The litigation history of Zacchini confirms that reading. During the
course of the litigation through the Ohio courts the nature of the claim was
variously described, but most often was treated as one analogous to unfair
competition. Zacchinis claim was originally filed as a complaint for generic
unlawful appropriation, while the Ohio Court of Appeals sustained the
complaint on the grounds that it stated claims for common-law conversion and
copyright infringement. See Zacchini v. Scripps-Howard Broad. Co., 1975 WL
182619 (Ohio Ct. App. J ul 10, 1975).
The Ohio Supreme Court chose instead to characterize the claim as one
asserting a right to the publicity value of his performance, 433 U.S. at 565, an
essentially sui generis cause of action that the Ohio courts have not since found
to be actionable. Importantly, the United States Supreme Court emphasized that
whatever its label might be, this state-law theory was different from, and
considerably narrower than, a claim for unauthorized use of anothers name for
purposes of trade that defines what is typically referred to as the right of
publicity to control the use of ones image or likeness for commercial purposes.
Id. at 573 n.10, 576. Thus, regardless of how Ohio courts characterized the
claim, they all, under somewhat different labels, treated Zacchini as raising
essentially the same unfair competition cause of action courts had previously
vested in the producers of team sporting events, not in the athletes or other
participants on the field and in the stadium. That is why Zacchini has been
construed by lower courts to be directly relevant to subsequent cases asserting
First Amendment rights of access to state-sponsored sporting events. In both

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Zacchini and the access cases, courts balanced the asserted right of an event
producer to control the live broadcast of the event against the asserted First
Amendment right of a news organization to broadcast the event without the
producers permission. See e.g., WIAA, 658 F.3d 614 (athletic association could
control exclusive rights to stream high school football games); Post Newsweek
Stations, 510 F. Supp. 81 (International Skating Union may exclusively license
right to broadcast skating competition); see also KTSP-TAFT Television, 646 F.
Supp. 300. None of those cases, including Zacchini, involve claims by
individual members of a team or other collective entity who participated in a
sports game produced by someone else.
In short, state law has consistently vested exclusive broadcasting rights in
the producers of entertainment, not individual participants in a team sport.
B. No States Law Recognizes A Licensing Or Similar Right
Vested In Every Performer In A Sporting Event
By contrast, no state has ever recognized a right of publicity that may also
be asserted by every participant in a team sporting event. To the contrary,
several cases have explicitly rejected the theory, while generally applicable
state-law principles underlying the right of publicity preclude its assertion.
1. Every Case on Point Has Rejected Plaintiffs Asserted Right of
Publicity
At least four cases have, to some degree, considered the assertion of a
right of publicity in live game broadcasts and/or rebroadcasts by members of the
teams that competed. All four concluded that no such right could be asserted
under principles that would necessarily apply to the creation of any such right by
the student athletes, and all without finding it necessary to address the First
Amendment. At a minimum, these cases demonstrate the existence of a
sufficient number of conflicting and contradictory opinions that establish the

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existence of substantial grounds for disagreement for purposes of 28 U.S.C.
1292(b).
In Gautier v. Pro-Football, Inc., 304 N.Y. 354 (1952), a quarter century
before Zacchini, the New York Court of Appeals considered a similar claim by
another circus act performer, an animal trainer. Instead of performing at a state
fair like Zacchini, the trainers performance was part of the halftime show at a
Washington Redskins football game that was broadcast on television. The
trainer brought a claim under New Yorks misappropriation statute. The Court
held that because the trainers performance was merely one element of a
broadcast of a newsworthy event (the football game), it was not a commercial
use actionable under the statute. Id. at 359. The Court further suggested that by
voluntarily appearing at a game the trainer knew was being televised, any claim
would in any event be waived. Id. at 360.
Thirty years later, the district court in National Football League v. Alley,
Inc., 624 F. Supp. 6 (S.D. Fla. 1983) reached the same conclusions with respect
to the athletes who compete in a professional football game. It held that Miami
Dolphins players have no right of publicity in the broadcasts of Dolphins games,
because game broadcasts do not use their images to promote any commercial
product and are presentation[s] having a current or legitimate public interest.
Id. at 10 (citation omitted). It also suggested that any of the players objections
would be waived by playing in the game. Id. A few years later, in Baltimore
Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th
Cir. 1986), the Seventh Circuit held that any publicity claims of Major League
Baseball players in the telecasts of their game were preempted by the Copyright
Act.

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Finally, one other case addressed the potential assertion of a right of
publicity by a team of football players in the context of a different claim. In
Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir. 1956), the
Third Circuit considered a claim by a boxer whose 1936 match was rebroadcast
on television fifteen years later. The boxers specific complaint was that the
contract he signed for movie rights in 1936 with a non-party could not extend to
television, because it did not exist then.
In a decision the Third Circuit virtually declared to be sui generis, it held
the boxer could pursue a claim for unfair competition. More importantly,
however, sixty years ago the Court appeared to recognize that its decision might
one day be misconstrued to support the very theory asserted in this case. It thus
declared that if there be telecasts of an intercollegiate football game, the
players, knowing or having reasonable grounds to know that the contest was
being telecast, would be presumed to have waived any right to compensation for
their performances by participating in the contest. Id. at 487.
3

While the grounds for these decisions vary, their unanimous, consistent
results demonstrate why no right of publicity for participants in a team sporting
event could be coherently established. The principle that non-commercial or
newsworthy programs cannot give rise to publicity claims, relied upon by cases
like Gautier and Alley, are applicable to both statutory and common-law rights
of publicity in all states. See, e.g., Cal. Civ. Code 3344(d); Ind. Code Ann.

3
Today the right of publicity claim in Ettore would almost certainly be preempted by the modern
Copyright Act. Indeed, just last month a Missouri federal district court held that a similar claim
by a boxer arising out of a re-broadcast of a match on ESPN Classic was preempted. Ray v.
ESPN, Inc., Case No. 13-1179-CV (W.D. Mo. April 8, 2014). Indeed, copyright preemption is
yet another reason why the type of publicity right asserted by the student athletes has not been
recognized. See generally Baltimore Orioles, 805 F.2d at 674-79.

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32-36-1-1(c); Matthews v. Wozencraft, 15 F.3d 432, 439 (5th Cir. 1994);
Montgomery v. Montgomery, 60 S.W.3d 524, 529 (Ky. 2001).
Although this Courts summary judgment ruling stated that Plaintiffs have
the burden of demonstrating that they have cognizable rights of publicity under
state law, Dkt. 1025 at 15, Plaintiffs have not pointed to a single authority
establishing such a right. The Court itself pointed to only one state, Minnesota,
and speculated that its law might recognize a cause of action because one case
potentially permitted recovery for at least certain kinds of broadcast footage.
Id. at 27 (citing Dryer v. NFL, 689 F. Supp. 2d 1113, 1123 (D. Minn. 2010)).
But the reasoning of Dryer supports the conclusion that no state, including
Minnesota, would sustain a publicity action for live game broadcasts, and that
any such theory would be barred by the First Amendment. Dryer did not
specifically address any states law, but stands for the proposition that only the
context of commercial speech provides a basis for a publicity claim.
4
But this
Court has already held that game broadcasts are not commercial speech.
In short, numerous relevant authorities support the conclusion that
participants in a team sporting event do not have a right of publicity in the
broadcast of an entire game.
2. Both Practical and Policy Considerations Overwhelmingly
Preclude the Recognition of the Asserted Rights Under
State Law
Recognizing the right of publicity asserted here would not only be
inconsistent with eighty years of well-established precedent vesting the
exclusive right to license a game for broadcast in the producer, it would
correspondingly invite both legal and practical chaos. By definition, if more

4
This Courts decision denying the NCAAs motion to dismiss construed Dryer the same way.
Dkt. 876 at 19-20.

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than one person or entity owns a right, it is not exclusive, and the exclusivity
needed for the broadcast to be licensed could be secured only through numerous
theoretical underlying licenses.
Compounding this difficulty, it would be problematic to definitively
establish who would qualify as a performer in any particular game. The
Courts ruling only addresses athletes, but there are many other categories of
performers who may contribute to the appeal of a game broadcast to the
viewing public. Some examples include coaches, cheerleaders, referees,
medical personnel, marching band members, halftime performers, as well as any
other person who appears on television and might try to assert, frivolously or
not, that they were identifiable for a sufficient period of time to qualify as a
participant for this purpose. The mix would vary for each particular game, and
it would be difficult to predict who the performers are in advance because no
one knows exactly what will happen at a football or basketball game. No sound
construction of any states law requires the identification, and then obtaining the
consent of, each of these individuals before telecast rights are granted.
Similarly, while it is at least logical to compare the entire act referenced
in Zacchini to the production of an entire game as a whole, the analogy to
Zacchini breaks down entirely if one tries to apply it to the television
performance of any particular participant in an event like a college football
game. Many performers (including athletes on the bench) never appear on
television at all, and those that do almost never have their entire act (whatever
that might mean) broadcast. That is because a game broadcast is a highly
creative, informative, and selective presentation of what actually occurs on the

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field and in the stadium, replete with commentary, analysis, replays, sideline
reports, human interest feature stories, etc.
5

Finally, the Courts assumption that some of the practical impediments to
broadcasting games will be eliminated because athletes will transfer their
publicity rights to schools is speculative, in part because there may be no lawful
to way to assure that will happen without committing the very antitrust
violations that the present system of forced transfer is alleged to entail.
Moreover, no precedent suggests that a personal intellectual property right
should be recognized on the assumption that the market will ensure that it can
never be asserted, because to actually assert it would produce chaos.
More broadly, the Courts observation does not address the categories of
non-athletes who are depicted in game broadcasts and might seek to assert the
same rights, nor does it address athletes in less organized sports or analogous
activities. For example, WIAA notes that the internet streaming contracts at
issue in that case also granted rights to stream school activities such as spelling
bees. 658 F.3d at 623. But the Seventh Circuit did not in any way suggest that
its intent was to apply Zacchini to vest potential exclusive rights to the
publicity value of the performances in every sixth grader in the school district.
Yet the position of the Plaintiffs, and arguably the rationale of this Courts
ruling, would require exactly that. In fact, the Courts analysis would appear to

5
It bears mentioning that Zacchini actually concerned a nightly news broadcast, not an
entertainment program featuring circus acts. Thus, the most direct analogy to a football game
would be something like a news report featuring a 15-second clip of a winning field goal kick,
where that was the placekickers only appearance in the game that day. If Zacchini really
applies to an individual athletes entire act, then the kicker could successfully sue the
television station for violating his right of publicity. Surely no court would sustain that theory,
and indeed this Court has made clear that news coverage of games would not be actionable. Dkt.
1025 at 19. But that could only be so if the performances of individual players are not subject to
any right of publicity, regardless of whether someones entire act is depicted.

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essentially call into question the telecasting of amateur sports altogether, be it
Little League baseball or high school football, because any athlete of any age
whose image appeared on television might claim a right to similar compensation
and even assert analogous antitrust violations by the governing sporting
authority. Amici respectfully submits that no state would construe its law to
require that result.
Finally, amici recognize that Plaintiffs have at times argued that any
references to publicity rights in broadcasting contracts confirms the existence of
such rights. That reasoning has long been rejected. Licensing and other
provisions of contracts are routinely drafted broadly in order to avoid exposure
to costly litigation, and it is well settled-that such provisions do not speak to
whether underlying legal rights do or do not exist.
For example, the Eighth Circuits decision in C.B.C. Distribution &
Marketing v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th
Cir. 2007) arose because a distributor of fantasy baseball games had for nine
years entered into an agreement with the Major League Baseball Players
Association to license publicity rights in players names and statistics. After the
players association switched to a competitor, a lawsuit ensued. The Court held
that the First Amendment precluded any publicity rights with respect to the
fantasy games, regardless of the prior license. Id. at 823-24.
II. THE FIRST AMENDMENT BARS THE RECOGNITION OF A
RIGHT OF PUBLICITY FOR PARTICIPANTS IN A GAME
BROADCAST
The distinction between the producer of a sporting event and its participants
is also at the heart of the First Amendment issue raised by Plaintiffs state-law
theories. Amici agree with the Courts ruling that Zacchini, WIAA and other
authority establish that the First Amendment does not preclude the producer of a

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sporting event from entering into exclusive broadcasting deals. But the First
Amendment would preclude the assertion of an analogous right of publicity by
every individual participant in the same event, because the balance of the interests
presented by the two scenarios are entirely different.
Amici agree with the Courts First Amendment analysis in a number of
important respects: broadcasts of NCAA games are non-commercial speech that
are protected by the First Amendment, Dkt. 1025 at 23-24, and game broadcasts,
like most forms of protected speech, are not absolutely protected by the First
Amendment in all respects. Indeed, as discussed in Part 1 of this brief, Zacchini
and WIAA both hold that no one has a First Amendment right to broadcast an
entire game without the permission of the games producer.
Moreover, amici agree with the Courts observation that the First
Amendment also recognizes a distinction in this regard between broadcasting
entire games and reporting news about the same game. For the latter, the
permission of a producer is not required. Dkt. 1025 at 19. Furthermore, amici
agree that the case law discussed on pages 22-23 of the Courts ruling, though
instructive, does not directly address the fact pattern of an entire game broadcast
because those cases all involved news, historical material, or fantasy game
content. Finally, whether the First Amendment bars the athletes asserted right
of publicity is indeed a novel question, Dkt. 1025 at 16, though we think that is
in large part because no state law has recognized it. Importantly, the multiple
approaches the parties and different amici and this Court have taken to try to
resolve that novel and impactful question reinforce that this matter should be
certified for interlocutory appeal.
Critically, amici respectfully disagree with the Courts conclusion that
[t]here is no principled reason why the First Amendment would allow the

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NCAA to restrict press access to college football and basketball games (via
exclusive licensing agreements) but, at the same time, prohibit student-athletes
from doing the same (via right-of-publicity actions). Id. at 20. There are
fundamental differences of constitutional magnitude between the state interests
implicated by the two propositions, and indeed as previously discussed, the
distinction between the two has been at the heart of sports broadcasting law for
decades. At a minimum, reasonable jurists can differ about the significance of
that distinction.
A. The First Amendment Permits Producers To Exclusively License
Broadcasting Rights Because The State Has An Important Interest
In Incentivizing The Creation Of Sporting Events
Turning first to the producer side of the ledger, beginning with the
Pittsburgh Pirates case courts have recognized producer broadcasting rights
because they incentivize producers to undertake the investment to organize
teams and sponsor sporting events in the first place, which in turn benefits the
public interested in such events. See, e.g., Natl Exhibition Co., 143 N.Y.S.2d at
770 (Broadcast rights incentivize and reward the Giants for produc[ing]
National League championship games, plaintiff, at great expense); Pittsburgh
Athletic Co., 24 F. Supp. at 492 (recognizing the Pirates broadcasting rights
because they made the investment to acquire[] and maintain[] a baseball park,
[and] pay[] the players who participate in the game). In Zacchini, the Court
addressed whether this incentive rationale was a sufficiently weighty state
interest to override the First Amendment rights asserted by the defendant news
station. 433 U.S. at 573-79 After balancing the interests on both sides, the
Court held that it was.
The Court emphasized that the specific, narrow state-law theory asserted
by Zacchini functioned much like copyright law, which incentivizes the creation

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of expressive works by authorizing its producers to exclusively license them to a
single publisher. Id. Limitations on the First Amendment rights of other to
publish an entire work are therefore justified because the net result will be the
creation of more expression and events of interest to the public. Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151 (1975). Zacchini also considered
the defendant television stations competing free speech interests, but concuded
that because the only question presented by the asserted publicity right was
who gets to do the publishing, the balance favored Zacchini. 433 U.S. at 573.
B. The First Amendment Would Bar The Assertion Of A Right Of
Publicity By Game Participants Given The Fundamentally
Different Balance Of Interests
1. Rights of Publicity in Game Broadcasts Would Not Materially
Incentivize Individual Athletes to Compete
The incentive underpinnings of Zacchini are simply not present here as
there is no evidence that absent recognition of publicity rights , athletes would
stop playing sports. In the end, to the extent that athletes incentive to compete
is tied to compensation, that compensation is a function of the organizational
structure of the sport in which they participate. It is not derivative of the never-
before-legally-recognized assertion of publicity rights in a broadcast.
In professional sports, athletes typically can and do bargain for a portion of
their employers overall revenue, including television revenue, and that is what
provides the monetary incentive to perform. Dkt. 898-15 at 5, 88. Those
revenue-sharing formulas are not dependent upon the recognition of any right of
publicity in live broadcasts. Id. In fact, in the Baltimore Orioles case the
Seventh Circuit explicitly observed that the publicity rights the major league
baseball players asserted in broadcasts were unnecessary, noting that they seek
a judicial declaration that they possess a rightthe right to control the telecasts

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of major league baseball gamesthat they could not procure in bargaining with
the Clubs. Baltimore Orioles, 805 F.2d at 679.
Turning to the polar opposite segment of the athletic world, athletes who
are minors and compete in sports such as Little League baseball and high school
basketball are almost never compensated at all, even though the games in which
they compete appear on television, radio or the internet with increasing
frequency. That too has nothing to do with rights of publicity, but reflects social
policies favoring pure amateur status for minors, which are embodied in the
rules governing those sports.
Collegiate athletes occupy a unique, hybrid status, because NCAA rules
permit athletic scholarships and proscribe any other compensation. It is not the
case, however, that professional athletes earn their compensation by reaping
rewards from exercising ephemeral rights of publicity in game broadcasts that
student-athletes are denied. Instead, it is a function of the structure of the sport
in which they participate.
It is no secret that there is a larger controversy currently being waged in
both the courts of law and public opinion regarding whether NCAA student-
athletes should receive any form of compensation beyond athletic scholarships.
Notably, several more recently-filed cases directly challenge whether the
NCAAs amateurism structure as a whole is consistent with antitrust or labor
laws. See, e.g., Dkt. 1023 (filing recent decision in Northwestern Univ. &
College Athletes Players Assn (CAPA), No. 13-RC-121359 (Natl Labor
Relations Bd. March 26, 2014)); Alston v. NCAA, Case No. 4:14-cv-01011-CW
(N.D. Cal.). Those cases are not premised upon assertions of publicity rights,
but instead focus on the structure of collegiate sports. Simply put, the status of

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publicity rights in game broadcasts is not the reason that collegiate athletes
receive only athletic scholarships.
Amici want to make clear that they take no position whatsoever on the
question of whether some or all NCAA student-athletes should receive
compensation beyond athletic scholarships, or any of those other legal disputes.
Rather, amici submit that potentially overturning almost a centurys worth of
sports broadcasting law is simply not an appropriateor constitutionalmeans
of addressing that fundamental question. At a minimum, it is clear that the
states interest in incentivizing the creation of an event that was at the heart of
the balance in Zacchini would not be furthered by recognizing the rights asserted
by Plaintiffs in this case.
2. A Right of Publicity in Game Broadcasts Would Have a
Substantial Chilling Effect on Constitutionally-Protected
Speech About Matters of Public Interest
Turning to the other side of the balance, as previously discussed vesting
exclusive rights in numerous disparate participants in an event such as a football
game would pose substantial practical and legal obstacles to obtaining the
necessary rights to broadcast a game at all. The chilling effect on the
availability of speech would therefore be far greater than enforcement of the
producer-right at issue in Zacchini.
Moreover, even if those practical barriers to producing a game broadcast
could be overcome, the recognition of personal rights of publicity in this context
would be inconsistent with core First Amendment values. Regardless of
whether in theory a group licensing market might emerge, as a legal matter a
right of publicity is a personal right that vests in a single individual; it is not a
collective right owned in the first instance by a players union. Alley, 624 F.
Supp. at 10. The raison detre of the right of publicity is to afford each person

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the personal right to negotiate the terms upon which their image may be
displayed. Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 624 (6th Cir.
2000) (The right of publicity is designed to reserve to a celebrity the personal
right to exploit the commercial value of his own identity.). There is no state
interest served by granting numerous different participants the right to attempt to
exercise censorial control over a constitutionally-protected game broadcast.
The Courts ruling further suggests that even if one state were to recognize
a right of publicity in game broadcasts, that could suffice to create a group
licensing market because national broadcasters could not risk being subject to
liability in even a single state. Even when dealing with constitutionally
unprotected speech such as obscenity, courts have expressed concern about
permitting the standards of a single local community to effectively dictate the
ground rules for disseminating speech nationally. See, e.g., United States v.
Kilbride, 584 F.3d 1240, 1254 (9th Cir. 2009). Given that game broadcasts
indisputably constitute constitutionally protected speech about matters of
immense public interest, amici submit that the lowest-common-denominator
approach to publicity rights that the Plaintiffs advocate is yet another factor
demonstrating that the balance of the interests presented in this case sharply tilts
in favor of applying the First Amendment, and provides another compelling
reason for certifying an interlocutory appeal.
Finally, an athletes relationship to a football game is qualitatively
different than a human cannon ballers relationship to his own one-man show.
While Zacchinis act was the sum and substance of the whole show, a football
game is itself a newsworthy event that involves much more than the sum of
individual performances by each of the 22 athletes who may occupy the field
on any given play. CBS Interactive Inc. v. NFL Players Assn, 259 F.R.D. 398,

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419 (D. Minn. 2009) (there is no dispute that both professional baseball and
professional football . . . are closely followed by a large segment of the public);
Alley, 624 F. Supp. at 10 (telecast of NFL game was a presentation having a
current or legitimate public interest (citation omitted)). Unlike Zacchini, a
football player chooses to voluntarily take part in a newsworthy event that will
take place regardless of whether that athlete participates.
This is significant because it is well-settled that the First Amendment bars
persons who participate in newsworthy events from claiming a property or
privacy right in the depiction of those events in the media. See, e.g., Matthews,
15 F.3d at 439 (a name cannot be appropriated by reference to it in connection
with the legitimate mention of public activities); Gionfriddo v. Major League
Baseball, 94 Cal. App. 4th 400, 406 (2001) (Plaintiffs games were played
before thousands of spectators and plaintiffs knew their performances were
being covered by the media.); Montana v. San Jose Mercury News, Inc., 34
Cal. App. 4th 790, 795 (1995) (When J oe Montana led his team to four Super
Bowl championships in a single decade, it was clearly a newsworthy event);
Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 542 (1993) (Publication of
matters in the public interest . . . is not ordinarily actionable.). Indeed, it is
telling that three of the four cases rejecting rights of publicity for football
players (Gautier, Alley, and Ettore) held or suggested that appearing in a
newsworthy game would itself preclude the assertion of a claim. While those
decisions were grounded in state law, the First Amendment requires the same
result.
For all the foregoing reasons, amici respectfully submit that the NCAAs
motion at a minimum presents genuinely debatable legal issue[s] of first
impression that warrant certification pursuant to 28 U.S.C. 1292(b). Ditullio

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v. Boehm, 662 F.3d 1091, 1096 (9th Cir. 2011). Moreover, the issues presented
by the Courts summary judgment ruling call into question settled expectations
regarding the broadcasting of sporting events. The ruling therefore has the
potential to affect matters well beyond the confines of this case, regardless of the
outcome of any trial proceedings here. Appellate review of these significant
issues at his juncture would therefore be especially warranted.
CONCLUSION
For the foregoing reasons, amici respectfully request that the Court grant
the NCAAs Motion to certify the Courts summary judgment ruling for
interlocutory appeal.

.DATED: May 2, 2014

ERWIN CHEMERINSKY*

LEVINE SULLIVAN KOCH & SCHULZ,
LLP

NATHAN SIEGEL*
CELESTE PHILLIPS

By: /s/ Celeste Phillips

CELESTE PHILLIPS

Attorneys for Amici Curiae

* Pro Hac Vice pending


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