Barnett v. National Football League
Filing
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COMPLAINT against National Football League ( Filing fee $ 350 receipt number 4056137) assigned to Judge Donovan W. Frank per Master List referred to Magistrate Judge Arthur J. Boylan, filed by Fred Barnett. (Attachments: # 1 Civil Cover Sheet) (jz)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Fred Barnett, on behalf of himself and all
others similarly situated,
Court File No. _____________
Plaintiff,
v.
CLASS ACTION COMPLAINT
National Football League,
Defendant.
Plaintiff Fred Barnett on behalf of himself and all others similarly situated, by and
through his attorneys, Zimmerman Reed, PLLP for this Class Action Complaint against
Defendant National Football League (“NFL”), state as follows:
NATURE OF ACTION
1.
Plaintiff is a retired NFL football player. Plaintiff brings this class action on
behalf of himself and all retired NFL players similarly situated who have suffered injury
as a result of Defendant NFL’s unauthorized use of their identities, including but not
limited to their names, images, and likenesses, to promote the NFL, sell NFL-related
products, and otherwise generate revenue for the NFL and its member teams.
2.
For years, Defendant has earned substantial revenue by making promotional
films and selling products featuring the identities of retired NFL football players,
including Plaintiff. Defendant trades on the “glory days” of the NFL as a marketing and
advertising technique to convey authenticity, enhance the NFL’s brand awareness and
increase its revenue. The retired players who created these glory days, however, have
gone almost completely uncompensated for this use of their identities.
3.
Defendant’s commercial exploitation of retired players is not only prolific, it
is blatant. One need look no further than Defendant’s NFL Films website to see the
names of over 450 retired players being used to advertise and sell videos promoting the
NFL.
4.
Defendant’s conduct has violated, and continues to violate the Lanham Act,
Plaintiff’s right of publicity and common laws regarding unjust enrichment. As a result
of these violations, Plaintiff now brings this class action seeking compensation for
Defendant’s past unauthorized use of the identities of retired NFL football players and to
stop this egregious misconduct going forward.
PARTIES
Plaintiff
5.
Plaintiff Fred Barnett is a retired NFL football player and resident of Philadelphia,
Pennsylvania. Mr. Barnett played wide receiver for eight seasons in the NFL for two
professional teams. He played for the Philadelphia Eagles from 1990-95 and for the
Miami Dolphins from 1996-97. Mr. Barnett also attended Arkansas State University,
where he starred for the football team, eventually becoming a third-round pick in the
NFL. Mr. Barnett was a Pro Bowl selection in 1992. In 1994, Mr. Barnett’s teammates
voted him the Ed Block Courage Award recipient for his dedication to humanitarian
efforts. The NFL has used, uses, and threatens to use in the future, Mr. Barnett’s name,
image, and/or likeness for its own commercial benefit without authorization.
Defendant
6.
Defendant NFL is a tax-exempt association under 18 U.S.C. § 501(c)(6) with its
headquarters located at 280 Park Avenue, New York, NY 10017. The NFL as a company
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operates several business wings through which it, in part, carried out the misconduct
described herein. These include, but are not limited to the NFL itself and doing business
as NFL Properties, both located at 280 Park Avenue, New York, NY 10017; NFL
Enterprises, also located at 280 Park Avenue, New York, NY 10017; NFL Films, located
at 1 NFL Plaza, Mount Laurel, NJ 08054, and NFL Network, located at 10950 Wash
Boulevard, Culver City, CA, 90232. Each of these business divisions operates under the
exclusive control of the NFL itself. The NFL is one of the largest entertainment entities
in the world with 2008 revenue totaling an estimated $6.9 billion.
JURISDICTION AND VENUE
7.
This Court has subject matter jurisdiction over the present action pursuant to
28 U.S.C. § 1331 because this action arises under the Lanham Act, 15 U.S.C. § 1525.
The Court has jurisdiction over Plaintiff’s state and common law claims under 28 U.S.C.
§ 1967 because those claims are so related to the federal claims that they form part of
same case or controversy. This Court also has jurisdiction pursuant to 28 U.S.C.
§ 1332(d) because one or more Class members is a citizen of a state different than the
state of Defendant’s citizenship, there are more than 100 class members, and, on
information and belief, the aggregate amount in controversy exceeds the jurisdictional
amount of $5 million.
8.
Venue in this Court is proper pursuant to 28 U.S.C. § 1391, certain putative class
members reside in Minnesota, the causes of action for certain putative class members
arise, in part, in Minnesota, and the NFL transacts business within Minnesota. In
addition, the NFL has consented to venue in this district through its ongoing litigation of
related claims here since 2009.
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FACTUAL BACKGROUND
The NFL’s Use of Retired Players’ Identities to Earn Revenue
9.
The NFL’s past is a key part of Defendant’s present marketing and revenue-
generation efforts.
10.
One of the key ways the NFL markets itself is by using its NFL Films division to
trade on its past to sell products, enhance its present brand and generate revenue.
11.
NFL Films is the commercial filmmaking wing of the NFL and specializes in
creating commercial and promotional films highlighting the NFL’s past and featuring
retired NFL players as the stars.
12.
According to NFL Films’ own website, its explicit “function” is, “To promote the
National Football League and preserve its history for generations of future fans. To
show the game, the passion and the visceral nature of the game from a player’s
perspective.” (emphasis added). NFL Films, “launch[ed] pro football into the motion
picture business.”
13.
Sports Illustrated has called NFL Films, “the most effective propaganda organ in
the history of corporate America.” The New York Times has said that NFL Films “has
grown for nearly four decades into one of the great movie studios in the country… While
Dreamworks or Warner puts out more blockbusters, NFL Films is as innovative as any of
them.” Filmmaker John Frankenheimer said of NFL Films, “What NFL Films has done
for me is to make me emotionally involved with teams I never cared about. Even if it’s a
team I never heard of, I can’t turn it off.”
14.
The NFL Films website further touts the promotional mission of its films:
Unforgettable images. Raw emotion. Epic struggles. Often, these
moments only come across on the big screen: part of a screenplay,
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performed by actors on a Hollywood back lot. NFL Films creates these
same moments without re-takes, scripts or sets… just world-renowned
filmmakers fusing the visceral world of pro football and the romance of
celluloid.
A super slow-motion sequence of a quarterback launching a spiral through
a gray November sky. A receiver in full stride leaps to make a mid-air
catch. A defender pulls him to the ground and brings the scene to an
abrupt end. The play happens instantly. The moments last a lifetime.
Stunning cinematography. Exclusive all-access sound. Stirring orchestral
music. Poignant storytelling. These hallmarks define the NFL Films
style… often imitated but never equaled.
NFL Films productions aren’t just seen, they’re felt.
15.
Of course, the nameless “quarterback”, “receiver” and “defender” NFL Films
describes as starring in its promotional, revenue-generating films are not nameless. They
are retired NFL Players and Defendant uses their names, images, and likenesses in its
films to promote itself, sell products, and make money.
16.
One NFL team owner, Robert Kraft of the New England Patriots, explained the
commercial value of NFL Films: “The film library, the asset base that’s there, the
programming… it’s sort of like Beatles music or Beethoven’s symphonies or Brahms.
When you and I aren’t here anymore, people will still love to watch it because of the
quality of it and the uniqueness and the appeal.”
17.
NFL Films productions are not broadcasts, re-broadcasts, or basic accounts of
NFL games. As the NFL makes clear, “Full game prints are not available from NFL
Films or any other source. It is impossible to obtain a copy of an entire NFL game.”
Rather, NFL Films productions are promotional film productions with scripts, music,
editing, direction and production completely independent of the play and production of
the games themselves. The NFL makes this distinction clear. Rather than simply
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showing game footage, “NFL Films goes back and looks at the story of the game. NFL
Films is interested in the struggle, not the strategy of the game. Through editing, music
and writing, NFL Films gives fans a perspective of the game that perhaps they were not
aware of when they watched the broadcast on network television.”
18.
The advertising and promotional intent of NFL Films has been confirmed by the
NFL itself. In 1977, NFL commissioner Pete Rozelle wrote to NFL Films founder Ed
Sabol, congratulating him for “fulfilling our original goal for NFL Films – to operate it as
a sound business entity, but primarily as a promotional vehicle to glamorize the game
and present it in its best light.” (emphasis added).
19.
The NFL disseminates the works of its NFL Films division several ways. By way
of example only, the NFL broadcasts NFL Films features on its own NFL Network, and
for years has licensed productions to cable television stations such as ESPN, ESPN
Classic, HBO, and major non-cable networks. The NFL also sells NFL Films movies
directly to consumers in catalogs, over the Internet, and at retail outlets.
20.
The NFL has realized substantial revenues from NFL Films, including but not
limited to fees paid by networks to air the films, revenue from advertisements run during
the broadcast of the films, sales of the films as individual products, and from the revenue
generated by the realized promotional effect of the films on the NFL’s brand and
marketability.
21.
Using its NFL Network alone, the NFL broadcasts “hundreds of hours” of NFL
Films productions and other programming featuring retired NFL players each year. As
the NFL describes it, “As a year-round channel, NFL Network will draw heavily on the
resources of NFL Films and its new 200,000 square foot television and film studio
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complex as well as its immense film library to produce hundreds of hours of original and
class programming including, NFL Films Presents and NFL Films Presents – Game of
the Week in HD, Playbook, College Football Sunday, Football America, Point After, and
Film Session.” “With more than 100 million feet of film in its library, NFL Films is the
backbone of NFL Network.”
22.
The NFL also sells hundreds of different NFL Films productions directly to
consumers, nationally and internationally, at retail outlets, in catalogs and over the
Internet at www.nflfilms.com, www.nflshop.com and through Warner Home Video at
www.profootballdvd.com. In addition to selling NFL Films, the NFL licenses NFL Films
and the identities of retired NFL Players for numerous other commercial purposes.
23.
The NFL Films website currently offers hundreds of productions available for
purchase for $50 each. The NFL uses the names of specific retired NFL players to
promote many of the films for sale. On the “Special Order Catalog” portion of the NFL
Films website alone, the NFL uses the specific names of over 450 retired NFL players to
promote and sell NFL Films productions. The NFL uses the names, images, and
likenesses of these and hundreds of more retired NFL players on the packaging,
advertising, and sales descriptions of other NFL Films productions and products available
elsewhere.
24.
For example, the NFL sells an entire line of NFL Films productions under the
heading “History”. This includes films for sale such as “The Fabulous Fifties, Volume
II”. The NFL’s sales description for this film states, “Includes Bobby Layne, the ‘Alley
Oop’ pass, Ollie Matson, Dallas Texans/Baltimore Colts.” Other films include, “NFL’s
Greatest Moments of the Last 25 Years”, and “Sensational 60’s”, for which the sales
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description reads, “Bucky Pope, Greg Cook, Joe Namath, George Halas, and Don
Meredith.”
25.
The NFL also creates an entire line of NFL Films productions for each team
purporting to highlight their “complete history.” Instead of being historical pieces,
however, the productions portray only the most positive aspects of a franchise through
the years to paint it and the NFL in the most positive light possible. For instance, NFL
Films produced and distributed a production called “The Complete History –
Philadelphia Eagles” in 1994. Plaintiff Barnett appears as a performer in the production.
The NFL also creates an entire line of NFL Films productions for each team, for each
year. Regardless of the team’s performance, the productions paint the season in the most
positive, promotional light possible. NFL Films produced and distributed “Video
Yearbook” productions for the Philadelphia Eagles throughout the 1990’s. Plaintiff
Barnett was the team’s starting wide receiver from 1990-95 and as such appears regularly
in these promotional films.
26.
In addition to television broadcast and video sales, the NFL pervasively uses the
Internet to broadcast and feature NFL Films productions containing the names, images,
and likenesses of retired players on its website and on affiliated websites.
27.
Congress has taken note of the NFL’s use of NFL player identities for
promotional purposes. In 2008, Congresswoman Linda Sanchez of California held a
congressional hearing to receive testimony and analyze the widely-reported physical and
economic plight of retired NFL players. Her findings illustrated the dire situation many
NFL alumni face, while NFL continues to use their likenesses to generate revenue.
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28.
Congresswoman Sanchez found that, “half of all players retire because of injury,
sixty percent of players suffer a concussion, at least one quarter of players suffer multiple
concussions and nearly two-thirds suffer an injury serious enough to sideline them for at
least half of a football season.” She also found, “The evidence suggests that the vast
majority of [retired] players needing [health] benefits do not receive them. What is even
more troubling is that through projects such as NFL Films, the NFL continues to profit
off those very same players who are denied benefits.” (emphasis added).
29.
The NFL has disseminated and to this day disseminates NFL Films and other
utilizations of the identities of Plaintiff and members of the Class in all fifty states and
around the world on multiple television stations, including but not limited to, the NFL
Network, ESPN, ESPN Classic, and HBO, and via the Internet. The NFL has earned
substantial revenue from these uses of Plaintiff’s identity and has caused damage to
Plaintiff and members of the Class in all of those jurisdictions.
30.
On information and belief, the NFL has sold, and to this day sells, NFL Films
productions and other utilizations of the identities of Plaintiff and members of the Class
to all fifty states and around the world. The NFL has therefore caused damage to
Plaintiff and members of the Class in all of those jurisdictions.
31.
The NFL has used the names, images, and likenesses of Plaintiff and members of
the Class commercially on the Internet, to promote the NFL’s brand, to sell products, and
to otherwise increase the NFL’s revenue as an independent entity and on behalf of its
thirty-two member clubs.
32.
Plaintiff and all members of the Class whom the NFL has used to generate
revenue are readily identifiable because they are portrayed by name, image, uniform,
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number, and other unique indicia. In addition, on information and belief, the NFL has
digitized its entire NFL Films library and archives so that Plaintiff and class members
may be searched for and isolated by year, game, team, and even player name.
Plaintiff’ Publicity Rights Are Extremely Valuable
33.
The NFL is eminently aware of the extremely high value of the names, images
and likenesses of its players and takes extreme measures to restrict access and
dissemination of NFL player footage and images in any form. For instance, the NFL
restricts media, including local news outlets, to showing only 45 seconds per day of
footage of NFL players shot at league or team facilities in any fashion. This includes
non-playing situations such as news conferences, interviews and practice-field reports. If
a media outlet shows any footage on its website, the NFL requires the outlet to provide
links to both www.nfl.com and to the player’s NFL team’s website. The NFL bars nonaffiliated media outlets from selling any Internet advertising connected to the
presentation of NFL player footage on non-NFL affiliated websites.
34.
The NFL restriction of player images and footage is not limited to current players.
If a media outlet, such as a local news station, wishes to use footage of retired players as
part of reporting the news, it must pay the NFL steep fees.
35.
The NFL’s intent in restricting public access to the names, images and identities
of its players is to drive fans and revenue to NFL owned and affiliated outlets to view
NFL images, footage and programming. As one team spokesman, the Washington
Redskins’ Chris Helein, informed the Washington Post, "There are a number of reasons
for [barring videographers], but it's basically a content issue[.] I won't hide . . . the fact
that the NFL and everything that surrounds it is valuable content”.
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36.
NFL spokesman Greg Aiello further confirmed the substantial commercial value
of footage of NFL players – wholly apart from the historical or newsworthy value of any
broadcast of NFL games. According to Aiello, the NFL restricts media access to players
because:
We're trying to balance protection of our business assets with the equally
important need to receive extensive news media coverage and
communicate with as many fans as possible on a regular basis. We have
no interest in controlling or limiting what news Web sites do, except
limiting the use of video that undermines our own Internet operations. We
have important business interests on the Internet, and we have to be
careful about that.
37.
It is in part because of this extremely high value that the NFL created its own
NFL Network in 2003 to drive and capture fans seeking programming related to
professional football. As the NFL describes it, “NFL Network is a melting pot of
gridiron greats from the NFL’s past, present and future that will sate the voracious
appetites of millions of football fans across the country.”
38.
Further evidence of the great value of NFL players’ likenesses is found in the
standard player contract for NFL players. The NFL’s standard player contracts require
active players to grant the NFL the authority to use the players’ names, images, and
likenesses to publicize and promote the NFL. Of course, any such assignments do not
apply to retired players, as their player contracts are, by definition, no longer in force.
39.
By commercializing the names, images, and likenesses of its players, both active
and retired, the NFL has become one of the largest entertainment conglomerates on the
planet, raking in an estimated $6.9 billion in 2008 alone.
40.
The NFL did not begin earning billions of dollars in revenue overnight. It began
earning revenue gradually over many years with the support and sacrifice of the players
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who played the game. Those now-retired NFL players, as a group, suffer severe physical
maladies and disabilities as a result of the sacrifices they made to make the NFL what it
is today. There is thus an overwhelming interest in compensating these players for the
commercial use of their names, images and likenesses by the NFL.
41.
By his present Complaint, Plaintiff and members the Class seek nothing more
than to obtain their fair share of the revenues the NFL has earned, and will earn, by its
use of retired players’ identities. Plaintiff therefore brings this action to provide longawaited resolution for the players that made and continue to make professional football
the most popular sport in America.
CLASS ACTION ALLEGATIONS
42.
Plaintiff realleges all previous paragraphs as if fully stated herein.
43.
Plaintiff brings this class action on behalf of himself and all others similarly
situated, for all claims alleged herein, pursuant to all applicable provisions of Rule 23(a),
23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure.
44.
The Proposed Class which Plaintiff seeks to represent is composed of:
All 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, or
otherwise to increase the brand awareness or obtain revenue for the NFL
or any of its member teams.
45.
Alternatively, should it be found that any of Plaintiff’s state law claims could not
be certified on a national basis, Plaintiff seek statewide subclasses (or groups of statewide
subclasses) for these same persons.
46.
Plaintiff specifically excludes from the Class the NFL and any related entities, all
subsidiaries or affiliates of the NFL; any entity in which the NFL has a controlling
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interest; and any and all of the NFL’s employees, affiliates, legal representatives, heirs,
successors or assignees.
47.
Plaintiff also specifically excludes from the Class the Judge and Magistrate
assigned to this case and any member of their immediate families.
48.
As shown below, this class action satisfies all requirements under Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure, including but not limited to the elements
commonly referred to as numerosity, commonality, typicality, adequacy and superiority.
a. Numerosity. Consistent with Rule 23(a)(1) of the Federal Rules of Civil
Procedure, the proposed Class “is so numerous that joinder of all members is
impracticable.” On information and belief, based on information obtained from news
reports in the public media and investigation of counsel, the number of members of the
proposed Class is believed to exceed 10,000.
b. Commonality. Consistent with Rule 23(a)(2) of the Federal Rules of Civil
Procedure, the proposed Class shares “common questions of law or fact.” Defendant
has engaged in a common course of misconduct toward Plaintiff and members of the
proposed Class, including but not limited to using Plaintiff’s name, image, and
likenesses to promote the NFL commercially and to sell NFL-related products. This
common course of misconduct, resultant injury to Plaintiff and the members of the
Class and the remedies available to all such persons demonstrate the propriety of class
certification.
c. Typicality.
Consistent with Rule 23(a)(3) of the Federal Rules of Civil
Procedure, the claims of the proposed Class Representative is, “typical of the claims …
of the class.” Plaintiff and all members of the proposed Class who have had their
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identities used by the NFL for commercial or promotional purposes have suffered
damages as a result of the NFL’s wrongful acts and misconduct. The Named Plaintiff’s
factual and legal claims arise out of the same uniform misconduct perpetrated by
Defendant in a similar manner against the members of the Class. Thus, the evidence
and legal theories underlying Plaintiff’s claims are identical to those underlying the
claims of all members of the putative Class.
d. Adequacy.
Consistent with Rule 23(a)(4) of the Federal Rules of Civil
Procedure, Plaintiff “will fairly and adequately protect the interests of the class.”
Plaintiff has no adverse or conflicting interests to the proposed Class members.
Plaintiff has retained competent counsel experienced in complex, class action litigation
that possess the necessary financial resources to adequately and vigorously litigate this
class action.
49.
Predominance. Consistent with Rule 23(b)(3) of the Federal Rules of Civil
Procedure, common questions of law and fact predominate over individual issues.
Common questions include but are not limited to the following:
•
Did the NFL use Plaintiff’s identity?
•
Did the NFL use Plaintiff’s name, image, or likeness to advertise and promote
the NFL and otherwise for its advantage or economic gain?
•
Did the NFL have Plaintiff’s consent to use Plaintiff’s name, image, or
likeness for commercial gain?
•
Are Plaintiff and the Class entitled to relief for false endorsement under
§ 43(a)(1)(A) of the Lanham Act?
•
Are Plaintiff and the Class entitled to relief under Pennsylvania laws
protecting right of publicity?
•
Are Plaintiff and the Class entitled to relief under other state common and
statutory law protecting the right of publicity?
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•
•
50.
Are Plaintiff’s claims barred in whole or in part by any of Defendant’s
affirmative defenses?
Did Plaintiff suffer damage as a result of the NFL’s use of his name, image,
and likeness?
Superiority.
Consistent with Rule 23(b)(3) of the Federal Rules of Civil
Procedure, a class action is a superior method of resolving this action. The prosecution
of separate actions by individual Class members would create the risk of inconsistent or
varying adjudications with respect to individual Class members, which would establish
incompatible standards of conduct for the party opposing the Class and would lead to
repetitious trials of the numerous common questions of law and fact. Plaintiff knows of
no difficulty of any kind that would make a class action in this case unmanageable.
51.
The Class also satisfies the requirements of Fed. R. Civ. P. 23(b)(2) because, as
set forth herein, Defendant has acted and/or refused to act on grounds that apply
generally to Plaintiff and members of the Class, thereby warranting appropriate injunctive
and/or declaratory relief respecting the Class as a whole.
52.
Proper and sufficient notice of this action may be provided to Class members
through actual notice to former NFL players tracked by the NFL, among other methods.
53.
Plaintiff and members of the Class have suffered harm and damages as a result of
Defendant’s wrongful conduct as alleged herein. Absent representative action, Plaintiff
and the members of the Class will continue to suffer losses thereby allowing Defendant’s
violation of law to proceed without remedy, and allowing Defendant to retain the
proceeds of its ill-gotten gains.
CAUSES OF ACTION
FIRST CAUSE OF ACTION
(False Endorsement, § 43(a) of the Lanham Act, 15 U.S.C. § 1125)
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54.
Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
55.
§ 43(a)(1)(A) of the Lanham Act states:
(1) Any person who, on or in connection with any goods or services, or
any container for goods, uses in commerce any word, term, name, symbol,
or device, or any combination thereof…, which(A)
is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person…
shall be liable in a civil action by any person who believes that he or she is
or is likely to be damaged by such act.
56.
Defendant NFL uses the actual names of retired NFL players in promotional
films, on its website to promote the League, and on its NFL Films website catalog,
among other places, to identify and solicit sales of its NFL products.
57.
Defendant NFL also uses the names, images, and likenesses of thousands of
retired NFL players in its NFL Films productions, among other places, for the explicit
purpose of promoting the NFL, increasing its brand awareness, and driving revenue to the
NFL through product sales and consumer favor of the NFL over competing entertainment
options.
58.
The NFL uses the actual names of retired NFL Players in connection with product
descriptions and does so for the purpose of advertising and selling specific NFL Films
video and other products. The NFL also uses the names, images, and likenesses of
Plaintiff and members of the Class in connection with promoting the NFL as a specific,
consumable entertainment product.
59.
The identities of the individual retired players the NFL uses to promote and sell
itself and its products are recognizable to persons who consume Defendant’s products.
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Otherwise, the NFL would not select the individual players it does when promoting itself
and its products. In addition, pro players wear uniforms, numbers, and name plates,
making them readily recognizable to consumers.
60.
The NFL’s motivation in producing NFL Films and featuring the names, images,
and likenesses of retired NFL players is purely economic. The motivation is to sell NFL
products, increase the NFL’s brand power by trading on its past, and drive consumers to
spend money on the NFL and its member teams instead of other entertainment options.
61.
NFL Films, and other uses featuring the names, images, and likenesses of retired
NFL football players, are not simply news, historical, or entertainment pieces. They are
promotional pieces intended to portray the NFL, as an entertainment option, in the most
positive light possible. At no point in any NFL Films production is the NFL criticized or
shown in less than a favorable, promotional light.
62.
NFL Films may not be standard 30-second television advertisements, but they are
intended to, designed to, and do serve the same promotional purpose. Similar to
“infomercials,” NFL Films are intended to focus consumers on the drama and intrigue of
the NFL as a consumable entertainment product. Plaintiff and members of the Class are
the uncompensated stars of these promotional films.
63.
Plaintiff and members of the Class have legally protectable trademarks in their
names, images, and likenesses. Plaintiff and members of the Class own these trademarks
outright. Any assignment of such rights made, for example, in their standard player
contracts, expired with the expiration of such contracts.
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64.
The NFL’s use of the names, images and likenesses of Plaintiff and members of
the Class in its promotional NFL Films productions and other products is likely to create
confusion concerning Plaintiff’s sponsorship or approval of those goods or services.
65.
As a direct and proximate result of Defendant’s misconduct, Plaintiff and
members of the Class have suffered injury.
SECOND CAUSE OF ACTION
(Misappropriation of Right of Publicity, Pennsylvania Common Law)
66.
Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
67.
The NFL has made use and continues to make use of the identities of Plaintiff and
members of the Class, for advertising purposes and for purposes of trade without first
having obtained consent.
68.
The NFL has knowingly and intentionally used and continues to use the identities
of Plaintiff and members of the Class, including but not limited to their names, images,
and likenesses, to advertise for and promote the NFL and to solicit purchases and sell
products with revenue benefiting the NFL and its member organizations.
69.
As a direct and proximate result of the NFL’s improper, unauthorized use of their
identities, Plaintiff and members of the Class have suffered injury.
THIRD CAUSE OF ACTION
(Violations of Right of Publicity, Pennsylvania Consolidated Statutes
Title 42 § 8316)
70.
Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
71.
The NFL has made use and continues to make use of the identities of Plaintiff and
members of the Class, for advertising purposes and for purposes of trade without first
having obtained written consent.
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72.
The NFL has knowingly and intentionally used and continues to use the identities
of Plaintiff and members of the Class, including but not limited to their names, images,
and likenesses, to advertise for and promote the NFL and to solicit purchases and sell
products with revenue benefiting the NFL and its member organizations.
73.
As a direct and proximate result of the NFL’s misappropriation of their identities,
Plaintiff and members of the Class have been injured in an amount to be proven at trial,
and are entitled to an injunction preventing further violations of their rights.
FOURTH CAUSE OF ACTION
(Violations of State Right of Publicity Statutory and Common Laws)
74.
Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
75.
Plaintiff and members of the Class have been, and continue to be, injured in all
fifty states as a result of the NFL’s misappropriation of their rights by use of the Internet,
television and by other means.
76.
In addition to claims under the statutory and common laws of the states in which
they reside, Plaintiff also asserts claims under the statutes and common laws of all other
states where his rights, and the rights of members of the Class, were violated.
77.
Defendant has violated Arizona common law protecting the right of publicity.
78.
Defendant has violated Alabama common law protecting the right of publicity.
79.
Defendant has violated California common law protecting the right of publicity.
80.
Defendant has violated California Civil Code § 3344.
81.
Defendant has violated Connecticut common law protecting the right of publicity.
82.
Defendant has violated Florida common law protecting the right of publicity.
83.
Defendant has violated Florida Statute § 540.08.
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84.
Defendant has violated Georgia common law protecting the right of publicity.
85.
Defendant has violated Hawaii common law protecting the right of publicity.
86.
Defendant has violated Illinois Rev. Stat. ch. 765 § 1075.1 et seq.
87.
Defendant has violated Illinois common law protecting the right of publicity.
88.
Defendant has violated Indiana Code § 32-26.
89.
Defendant has violated Kentucky Rev. Stat. §391.170.
90.
Defendant has violated Kentucky common law protecting the right of publicity.
91.
Defendant has violated Massachusetts Gen. Laws Ann. Ch. 214, § 3A.
92.
Defendant has violated Michigan common law protecting the right of publicity.
93.
Defendant has violated Minnesota common law protecting the right of publicity.
94.
Defendant has violated Mississippi common law protecting the right of publicity.
95.
Defendant has violated Missouri common law protecting the right of publicity.
96.
Defendant has violated Nebraska Rev. Stat. § 20-202.
97.
Defendant has violated New Jersey common law protecting the right of publicity.
98.
Defendant has violated New York Civil Rights Law § 51.
99.
Defendant has violated North Carolina common law protecting the right of
publicity.
100.
Defendant has violated Ohio Rev. Code Ann. § 2741.01 et seq.
101.
Defendant has violated Ohio common law protecting the right of publicity.
102.
Defendant has violated Oklahoma Stat. tit. 12, § 1448, 1449.
103.
Defendant has violated Rhode Island Gen. Laws § 9-1-28, 9-1-28.1(a)(2).
104.
Defendant has violated Tennessee Code Ann. § 47-25-1102 et seq.
105.
Defendant has violated Texas common law protecting the right of publicty.
20
106.
Defendant has violated Texas Property Code § 26.011.
107.
Defendant has violated Utah Code Ann. § 45-3-1 et seq.
108.
Defendant has violated Utah common law protecting the right of publicity.
109.
Defendant has violated Virginia Code § 8.01-40.
110.
Defendant has violated Washington Rev. Code § 63.60.010 et seq.
111.
Defendant has violated Wisconsin common law protecting the right of publicity.
112.
Defendant has violated Wisconsin Statute § 995.50(2)(b).
113.
As a direct and proximate result of the NFL’s unlawful conduct, Plaintiff and
members of the Class have been injured in each of these states.
FIFTH CAUSE OF ACTION
(Unjust Enrichment)
114.
Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
115.
Defendant has been unjustly enriched by obtaining money through unlawful
means and at the expense of Plaintiff.
116.
Under common law principles of unjust enrichment, Defendant should not be
permitted to retain the benefits conferred by such ill-gotten income.
117.
Plaintiff seeks disgorgement of all of monies Defendant has obtained or derived
from the unauthorized use of Plaintiff’s identity for promotional or commercial purposes.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all others similarly situated,
prays for relief against Defendant and respectfully asks the Court to:
1.
Certify a plaintiff Class as defined herein;
2.
Appoint Plaintiff Fred Barnett as Class Representative;
21
3.
Appoint Plaintiff’s counsel Zimmerman Reed, PLLP as Lead Class
Counsel;
4.
Award Plaintiff all damages allowed by law;
5.
Award Plaintiff equitable and injunctive relief as allowed by law;
6.
Grant Plaintiff declaratory relief as allowed by law;
7.
Award Plaintiff costs and attorneys’ fees as allowed by law;
8.
Grant such other or further relief as allowed by law and as the Court
deems appropriate.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury.
Dated: July 5, 2011
ZIMMERMAN REED, P.L.L.P.
By: s/ J. Gordon Rudd, Jr.
Charles S. Zimmerman MN 120054
J. Gordon Rudd, Jr. MN 222082
Brian C. Gudmundson MN 336695
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: 612.341.0400
Facsimile: 612.341.0844
Email: charles.zimmerman@zimmreed.com
Email: gordon.rudd@zimmreed.com
Email: brian.gudmundson@zimmreed.com
ATTORNEYS FOR PLAINTIFF AND
THE CLASS
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