Six former NFL players have filed a class action against the NFL, targeting the use of names, images, and likenesses of those players by the league, through NFL Films.
According to the Minneapolis Star Tribune, the named plaintiffs and proposed class representatives are Hall of Fame defensive end Elvin Bethea, former Oilers and Raiders quarterback Dan Pastorini, former Vikings defensive end Jim Marshall, former Vikings tight end Joe Senser, former Vikings and Chargers guard Ed White, and former Rams defensive end Fred Dryer.
If certified, the class will consist of "[a]ll persons who played professional football for any NFL member team, who are retired or no longer active, and whose name, voice, image, likeness, or other indicia of identity has been used by the NFL to promote the NFL or any of its member teams, sell products or services, orotherwise to increase the brand awareness or obtain revenue for the NFL or any of its member teams.”
In English, the class primarily will consist of all former players who at any time showed up in an NFL Films production.
The complaint, filed Thursday in a Minnesota federal court, asserts various state and federal legal theories arising from the contention that the NFL uses footage of old games, via NFL Films, to market the league. (A web site has been created in connection with the lawsuit, which includes a link to the complaint.)
We haven’t researched the law on this one yet, but the obvious front-line defenses and/or issues are as follows.
First, many of the players signed away these rights when they signed contracts to play pro football. Though the plaintiffs contend that the right to use the images, names, and likenesses expired when the individual contracts expired, the law might conclude otherwise.
Second, playing football is an inherently public activity. So, at the risk of being incredibly simplistic on this point, the players have no greater right to their presence in NFL Films footage than celebrities who are videotaped in public places by TMZ.com.
Third, various past and present Collective Bargaining Agreements might control this situation.
Fourth, and perhaps most importantly, many of these rights likely have long since expired under the applicable statutes of limitations. The battle in this regard could center on whether the ongoing use of the names and likenesses constitutes a continuing violation of the law.
Regardless of the arguments advanced by the league and the manner in which they’re processed, it’s a fascinating attempt by retired players to shake some money out of pockets much deeper now than they were when most of the retired players were playing.
The filing also comes at a time when the league and the NFLPA are engaged in a tug-o-war for the hearts and minds of the retired players. This case could be a big factor in that effort.