The Right of Publicity and College Sports Broadcasting

Napier

College Athletes Living in Poverty

In a study conducted by the National College Players Association, based on a comparison between the 2011 national poverty line and Football Bowl Subdivision Series (FBS) room and board portions of full athletic scholarships, at least 85% percent of FBS players live below the poverty line.[1] Similarly, Shabazz Napier, now playing for the Portland Trail Blazers, said during his time at the University of Connecticut that there were nights in college where he was hungry and did not have the money for food.[2]

Why College Athletes Are Not Being Paid

There are not many businesses more lucrative than college sports, so why is this happening? One issue is a legality preventing college players from benefitting financially from their participation in college athletics—the inability to receive compensation for the televised broadcast portrayals of their likenesses.[3] The right of publicity, which varies depending on the state and whether the claim is statutory or common law-based in nature, protects a person from the unconsented use of his or her likeness, for commercial purposes.[4] The idea is simple: you cannot use someone else’s name or image, without their permission, to make money. So why can this idea not be applied to television broadcast?

An important court decision that lends some guidance came down in August 2016 at the hands of the Sixth Circuit Court of Appeals.[5] Javon Marshall, a former football player at Vanderbilt University, along with several other former college athletes, filed a lawsuit against ESPN, CBS, NBC, ABC, Fox, and eight NCAA athletic conferences.[6] Marshall and the other athletes alleged violations of their Tennessee statutory and common law rights of publicity.[7] All claims were denied.[8]

A big reason for the denial of the statutory claims was the choice of venue. Tennessee, whose law applied because the original suit was brought in Tennessee federal district court, clearly states that no right of publicity violation can arise from the use of an individual’s name, photograph, or likeness in connection with a sports broadcast.[9]

With respect to the common law claims, the plaintiffs relied on the only common law right of publicity claim heard by the Supreme Court, which held that a performer’s right was violated where he was secretly filmed doing a “human cannonball” routine and that footage was broadcast on Ohio television.[10] The District Court rejected similarities between the cases, and noted that Zacchini does not stand for the existence of a right of publicity whenever anyone performs in an event produced by someone else.[11] The Court, did, however, acknowledge that the First Amendment’s protection against right of publicity claims is not unlimited.[12]

Upon appeal, the Sixth Circuit Court of Appeals affirmed the District Court’s decision as to the statutory and common law rights of publicity claims.[13] The decision was largely based on Tennessee’s law, as applied to not only the statutory claim, but the common law claim as well: “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.”[14]

Future Options for College Athletes

It seems that the choice of venue played a huge role in the denial of these claims. Were these claims brought in a different jurisdiction, say, California, which applies the right of publicity more broadly, perhaps the result would have been different.[15] Rulings from these jurisdictions may be college athletes’ last hope at being compensated for the portrayal of their likenesses in television broadcast, as the Supreme Court seems unwilling to weigh in on the issue.

Author Biography:

Jason Rozbruch is a first-year student at Fordham University School of Law. Prior to attending Fordham Law, Jason attended the University of Michigan, where he graduated with a major in History and a minor in the Afroamerican & African Studies Honors Program.

[1] Huma, Ramogi, and Ellen J. Staurowsky, E.d.D. “The Big Price of Poverty in Big Time College Sport.” Ncpanow.org. Accessed March 26, 2017. http://www.ncpanow.org/research/body/The-Price-of-Poverty-in-Big-Time-College-Sport.pdf.

[2] Sherman, Rodger. “Shabazz Napier: ‘We Have Hungry Nights’.” SBNation.com. April 07, 2014. http://www.sbnation.com/college-basketball/2014/4/7/5591774/shabazz-napier-uconn-basketball-hungry-nights.

[3] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292 (6th Cir. Aug. 17, 2016).

[4] See e.g., N.Y. Civ. Rights Law §§ 50, 51 (LexisNexis2017) (stating that a person’s right of publicity is violated, when, without his or her consent, that person’s name, portrait, picture, or voice is used in trade or advertising).

[5] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[6] See id.

[7] See id.

[8] See id.

[9] Tenn. Code Ann. § 47-25-1107 (LexisNexis 2017).

[10] Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977).

[11] See Marshall v. ESPN Inc., 111 F. Supp. 3d 815, 828-29 (M.D. Tenn. 2015).

[12] See id. at 828.

[13] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[14] Id. at *5.

[15] See generally White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) (holding Samsung liable for violating Vanna White’s right of publicity where they produced a commercial with a robot wearing clothing similar to her and spinning the Wheel of Fortune).

Shooting for Equality: USWNT Stars File Wage Discrimination Complaint

USWNT

The Players’ Cause of Action

It is not often that members of one of the most successful teams in a country make significantly less than their unsuccessful counterparts. However, this is exactly the case with the two United States national soccer teams. In their Equal Employment Opportunity Commission (EEOC) complaint[1] against the United States Soccer Federation (USSF), five stars from the women’s team Alex Morgan, Carli Lloyd, Megan Rapinoe, Becky Sauerbrunn and Hope Solo stated that despite producing higher revenues than the men’s national team, the women’s team received four times less than the men’s squad.[2] The complaint was officially filed on March 29st by prominent sports law attorney, Jeffrey Kessler.

Solo, the team’s starting goaltender, describes the frustration:

“We are the best in the world, have three World Cup Championships, four Olympic Championships, and the [U.S. Men’s National Team] USMNT get paid more just to show up than we get paid to win major championships.”

One example of this is that the U.S. Women’s National Team (USWNT) made only $2 million for their dominant World Cup title run, while the USMNT made $9 million the year before they even appeared in the World Cup. Another example of the compensation disparity is shown by merit pay. USWNT players receive $1,350 per match only if they win their game. On the other side, USMNT receive $5,000 for a loss in a similar match and can make up to $17,625 for a win.[3] The EEOC complaint calls for these discrepancies to be changed and has the potential to be a turning point for equal pay in women’s sports.

Merits of the EEOC Complaint

The EEOC complaint came as a result of the expiration of Collective Bargaining Agreement (CBA) between the USSF and the USWNT in 2012. In 2013, the two parties signed a Memorandum of Understanding (MOU), while details of the new CBA were being finalized. The women’s players union terminated the MOU because they believed its provisions, including compensation, were unfair.[4] The USSF, who believes that the MOU contained a no strike clause, filed a lawsuit against the union to determine whether or not the move was legal.[5] A Chicago court is expected to rule on whether this matter in June.[6]

The lawsuit over the MOU heightened tensions between the USSF and USWNT and spurred the USWNT to fight back and file this EEOC complaint. While arguments over the CBA led to the EEOC complaint, the lawsuits have no effect on each other’s outcomes. The EEOC examines claims of discrimination off of merit and federal law states under Title VII of the Civil Rights Act of 1964 which states that it is illegal to discriminate against an employee because of race, color, religion, sex, national origin, age, disability or genetic information.[7] The EEOC will look towards the Equal Pay Act passed in 1963[8], which was created out of “concern for the weaker bargaining position of women” and meant to protect employees from discrimination. The Act states that employers cannot use a CBA to protect itself for a violation of unequal pay and therefore the Chicago court’s ruling will have no effect on the EEOC complaint.[9]

The complaint addresses all of the fctors that the USWNT believes they have in their favor. After citing specific instances of their recent success, the USWNT’s complaint broke down the compensation discrepancies into four categories: (1) Friendlies, (2) World Cup, (3) Olympics, and (4) Sponsor Appearances and Ticket Revenue.[10] The complaint then goes into detail of the wage discrepancies between the USWNT and the USMNT in each of these categories.[11] The complaint concludes by stating that there are “no legitimate, non-discriminatory reasons for the gross disparity of wages” that they have shown and the team has been discriminated against solely because of their gender.[12]

The EEOC will need to determine if this is indeed true. There is no current schedule for this complaint, but the EEOC states that its average investigation took 10 months in 2015.[13] If the USWNT does prevail, they should have a lucrative outcome. When discrimination is found, the EEOC tries to put the victim in the same position they would have been in had the discrimination not occurred.[14] The employer is also required to stop any discriminatory practices and take steps to prevent discrimination in the future.[15] Finally, if the discrimination is found to be intentional, the USWNT may also receive compensatory and punitive damages of up to $50,000 per person.[16]

A Boycott of the Olympics?

While there is no current timetable for the EEOC complaint, it could cause immediate problems for the USSF. While the case awaits investigation, CBS’ Jim Axelrod has speculated that the USWNT may boycott the Olympics in August to give them leverage in their current negotiations.[17] This is problematic because the USSF’s annual report stated that they projected the USWNT to bring in $5 million in profits, while the USMNT is expected to have a net loss of $1 million.[18] The USSF may opt to work towards a settlement in order to avoid this boycott.

The reigning World Cup champion USWNT have a strong case after producing more revenue last year than the USMNT. The team will likely use its continued success and the upcoming Olympics as leverage to push the USSF to give the players equal pay as their male counterparts. While the USSF can try to make the case that the men’s soccer is a more popular sport that draws larger crowds and has the potential to generate more revenue, it seems that the numbers are on the side of the USWNT. Only time will tell how this case will evolve and whether the USWNT will receive the equal pay that it deserves. One thing is for certain though: this case will be monumental for the future of compensation in women’s sports.

Author Biography:

Andrew Washburn is a first-year student at Fordham University School of Law. Prior to attending Fordham Law, Andrew attended Fordham’s Gabelli School of Business and graduated with a degree in Business Administration with a Concentration in Management.

[1] http://big.assets.huffingtonpost.com/EEOCCharge.pdf

[2] Mary Pilon, US women’s soccer players sue over pay gap, Poltico (Mar. 31, 2016, 8:01 PM),

http://www.politico.eu/article/us-womens-soccer-players-sue-over-pay-gap/

[3] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[4] U.S. Soccer Federation sues women’s national team union over CBA, The Inquirer (Feb. 4, 2016, 3:50 PM), http://www.philly.com/philly/blogs/thegoalkeeper/US-Soccer-Federation-sues-womens-national-team-over-CBA.html#xdu8IqD3r1qAAx0v.99

[5] Lester Munson and Adrrienne Lawrence, Unwrapping the USWNT’s equal-pay filing and what it means, ESPN W. (Apr. 6, 2016), http://espn.go.com/espnw/voices/article/15138438/unwrapping-uswnt-equal-pay-lawsuit-means

[6] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[7] Civil Rights Act of 1964 § 703(a), 42 U.S.C. § 2000e-2(a) (2012).

[8] The Equal Pay Act of 1963, 29 U.S.C. § 206-(d).

[9] Id.

[10] http://big.assets.huffingtonpost.com/EEOCCharge.pdf

[11] Id.

[12] Id.

[13] U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employees/process.cfm

[14] U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employees/remedies.cfm

[15] Id.

[16] Id.

[17] USSF Refutes Women’s Players’ Wage Complaint, Says Players Accepted CBA Terms, SBD (Apr. 1, 2016), http://www.sportsbusinessdaily.com/Daily/Issues/2016/04/01/Leagues-and-Governing-Bodies/US-Soccer.aspx?hl=uswnt&sc=0

[18] Mary Pilon, US women’s soccer players sue over pay gap, Poltico (Mar. 31, 2016, 8:01 PM),

http://www.politico.eu/article/us-womens-soccer-players-sue-over-pay-gap/