group of retired players recently filed a class action suit (Dryer et al. v.
National Football League) against the NFL claiming infringement and
unauthorized use of their identities and likenesses to promote the NFL and sell
NFL-related products without compensation.
is yet another in a long list of cases brought by former athletes from the NFL,
MLB, and NCAA seeking limits on the right to exploit players' likenesses. In
fact, just last year, a number of retired NFL players won a class action
lawsuit against the NFL Players Association, arguing that the union conspired
with Electronic Arts to use their likenesses in the Madden video game series
without proper compensation, in which the retired players earned a $26 million
time around, the league itself, not the union, is being sued by retired players
who are challenging the exploitation of their images, names and likenesses in
connection with the promotion of the league and the packaging, advertising and
sales of products distributed by NFL Films–a division of NFL Properties which
produces feature films, commercials, television programs, and documentaries on
side is now preparing to do battle over both the scope (how broad) and term
(how long) of the rights the players granted the NFL in the standard form
player contracts and the corresponding collective bargaining agreements. The
case will no doubt hinge on good old fashioned contract analysis and whether
the NFL's exploitation of the players' likenesses falls squarely within the
four corners of the documents. According to the players' lawyer, "During
[the players'] time in the league the players' contracts gave the NFL authority
to use their names and pictures for publicity and promotion in news, television
and motion pictures, but they included no perpetuity clauses." The
players' attorney also stated that beginning in 1993, the NFL's collective
bargaining agreement with the NFL Players Association altered the standard form
player contract to contain broader rights to use the players' names, images, and
likenesses, apparently plugging the loophole.
court's contract analysis will have its own share of intricacies. First, the
statute of limitations for right of publicity violations and other
contract-based claims will bar a considerable amount of the alleged
infringements and possibly reduce the amount of the "fair share of the
revenue the NFL has earned", which the players demand in their complaint.
Second, the provisions granting the NFL a license to the players' images,
names, and likenesses may not have expired when the individual contracts
themselves expired, as the plaintiffs claim, since the license grants
incorporated therein may have been perpetual or drafted to survive any
termination or expiration of the contract.
court will also have to address another thorny issue. Specifically, even if the players granted the
NFL a perpetual license to their likenesses, was that grant broad enough to
encompass distribution across platforms and media, such as the internet,
wireless devices, and other technologies that did not exist at the time the
grants were made? This is an especially
tricky issue because the grants were made in connection with what amounts to
the players' employment or services agreements with the league.
We will keep an eye out for developments in this
case which, regardless of its outcome, will likely provide useful and
interesting guidance on drafting similar license grants in the future.