# No Cut of the Broadcast: Marshall v. ESPN and the Limits of an Athlete's Right of Publicity

> The Sixth Circuit held that college athletes have no right of publicity in the televised broadcasts of their own games, calling the claim a legal fantasy under Tennessee law.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/marshall-v-espn-college-athletes-broadcast-publicity/


When ten former college football and basketball players tried to claim a slice of the billions that flow through televised college sports, they framed it as a right-of-publicity case: the networks, they said, were selling their names and images without consent. In *Marshall v. ESPN, Inc.*, 668 F. App'x 155 (6th Cir. 2016), the United States Court of Appeals for the Sixth Circuit disagreed in blunt terms, affirming dismissal of the suit and describing the athletes' theory as a "legal fantasy." The decision did not resolve the larger national fight over paying college athletes, but it shut a particular door firmly: under Tennessee law, a player has no right of publicity in the live broadcast of the game he plays.

## At a glance

- **Case:** *Javon Marshall, et al. v. ESPN, Inc., et al.*, No. 15-5753 (6th Cir.); 668 F. App'x 155 (6th Cir. Aug. 17, 2016). District court below: *Marshall v. ESPN*, 111 F. Supp. 3d 815 (M.D. Tenn. 2015).
- **Court:** Sixth Circuit Court of Appeals, affirming Chief Judge Kevin H. Sharp of the Middle District of Tennessee.
- **Posture:** Appeal from dismissal of a putative class action under Rule 12(b)(6); affirmed.
- **Holding:** College athletes have no statutory or common-law right of publicity in the broadcasts of their games. Tennessee's Personal Rights Protection Act expressly exempts sports broadcasts, no Tennessee common-law right of publicity exists, and the derivative antitrust and Lanham Act theories fail without an underlying right.
- **Significance:** A leading appellate statement that participation in a televised athletic event does not give the participant a publicity interest in that broadcast.

The plaintiffs—led by former Vanderbilt defensive back Javon Marshall, joined by players from Washington, Tennessee, Tennessee State, and Maryland—sued ESPN, CBS, NBC, ABC, Fox, the major athletic conferences, and licensing firms including IMG College and Learfield. They sought a share of broadcast and licensing revenue on the theory that televising their performances misappropriated their names, images, and likenesses. The district court dismissed the complaint with prejudice in June 2015, and the Sixth Circuit affirmed.

## Why the Tennessee statute controlled

The first and most decisive problem was statutory text. Tennessee's Personal Rights Protection Act protects against unauthorized commercial use of an individual's name, photograph, or likeness, but it carves out a specific exception: the statute does not apply to the use of a name or likeness "in connection with any sports broadcast." The athletes were complaining about precisely that use—their appearances in live game broadcasts. The exemption therefore removed the conduct from the statute's reach before any balancing of interests could begin.

This kind of express carve-out reflects a longstanding accommodation between publicity rights and the press. Live coverage of a public sporting event is treated as news and entertainment, not as the appropriation of a performer's commercial identity to sell an unrelated product. The Tennessee legislature wrote that accommodation directly into the statute, leaving the courts little room to maneuver. As the panel put it, the claim was "meritless" because the statute "expressly exempts" sports broadcasts.

## No common-law right to fall back on

Recognizing the statutory obstacle, the plaintiffs argued in the alternative that Tennessee recognizes a common-law right of publicity broad enough to capture broadcasts even where the statute does not. The Sixth Circuit rejected that too. As the court explained, the Tennessee courts have never recognized such a freestanding common-law right, and where a legislature has spoken directly to a subject, courts are especially reluctant to invent a parallel common-law cause of action that would swallow the statute's deliberate exemption.

That reasoning matters beyond Tennessee. Plaintiffs often plead statutory and common-law publicity theories together, hoping a court will read the common law more generously than a narrowly drafted statute. *Marshall* illustrates the opposite instinct: when the legislature has built in an exemption, courts treat that choice as a considered policy judgment, not a gap to be filled. The athletes could not use the common law to undo what the statute had expressly excluded.

## The derivative claims collapse

Because the athletes had no underlying property or publicity interest in the broadcasts, their remaining theories had nothing to stand on. The Sherman Act antitrust claim depended on the premise that the defendants had conspired to deprive the players of compensation they were owed for the use of their identities. With no right to that compensation in the first place, there was no protected interest the alleged conspiracy could have restrained.

The Lanham Act false-endorsement claim fared no better. False endorsement requires a likelihood that consumers would believe the plaintiff sponsored or endorsed the defendant's product. The court found it implausible that ordinary viewers would think an athlete's appearance in a game broadcast signaled his endorsement of the network or its advertisers. Seeing a player on the field during a televised game communicates that he played in the game—not that he vouches for the broadcaster. The civil-conspiracy and unjust-enrichment theories, tied to the same absent right, fell with the rest.

## Open questions

- **What about uses outside live broadcasts?** *Marshall* concerned game telecasts. It did not address video games, trading cards, or merchandise, where courts have sometimes found publicity interests that survive First Amendment and newsworthiness defenses.
- **How does this interact with the NIL era?** The case predates the broad shift toward letting college athletes profit from their names, images, and likenesses. *Marshall* limits a litigation theory; it does not speak to compensation regimes created by statute, conference rule, or contract.
- **Would a different state's law change the outcome?** Many states recognize broader common-law publicity rights, but most also treat live sports coverage as protected expression. The specific Tennessee broadcast exemption made this an easy case; elsewhere the First Amendment analysis would do more of the work.

## Implications

- **Live game broadcasts are treated as news.** Participating in a public, televised athletic event generally does not give the participant a publicity stake in the broadcast of that event.
- **Statutory exemptions are decisive.** Where a right-of-publicity statute expressly excludes sports broadcasts or newsworthy uses, that text usually ends the inquiry, and courts will not graft on a broader common-law right.
- **Derivative claims need a live underlying right.** Antitrust, Lanham Act, and unjust-enrichment theories built on a publicity interest collapse if the publicity interest does not exist.
- **Publicity law is not the path to revenue sharing.** Athletes seeking a cut of broadcast money have generally had to look to antitrust theories about labor markets and to NIL reforms, not to misappropriation of likeness in the telecast itself.
- **Plead the strongest forum.** Because publicity law is state-specific, the choice of governing law can be outcome-determinative; Tennessee's broadcast carve-out doomed this complaint at the threshold.

## Frequently asked questions

**Did Marshall v. ESPN decide whether college athletes can ever be paid for their names and images?**
No. The case decided only that these particular plaintiffs had no right of publicity in the live broadcasts of their games under Tennessee law. It did not address pay-for-play, scholarships, or the licensing of names, images, and likenesses in video games or merchandise, which later NIL developments reshaped separately.

**Why did the Tennessee statute defeat the claim?**
Tennessee's Personal Rights Protection Act expressly exempts the use of a person's name, photograph, or likeness in connection with a sports broadcast. Because the athletes complained about exactly that use, the statute removed it from the right of publicity by its own terms.

**Could athletes in another state have won?**
Possibly different reasoning, but most states treat live sports broadcasts as protected news and entertainment, and many recognize broadcast or newsworthiness exemptions. The First Amendment also weighs heavily against publicity claims over factual coverage of public events.

## Authorities and sources

- Sixth Circuit opinion, *Javon Marshall v. ESPN*, No. 15-5753 (Justia): https://law.justia.com/cases/federal/appellate-courts/ca6/15-5753/15-5753-2016-08-17.html
- District court opinion, *Marshall v. ESPN*, 111 F. Supp. 3d 815 (M.D. Tenn. June 4, 2015) (PDF): https://business.cch.com/ald/MarshallESPN642015.pdf
- Docket, *Marshall v. ESPN Inc.*, No. 3:14-cv-01945 (CourtListener): https://www.courtlistener.com/docket/4383698/marshall-v-espn-inc/
- Analysis, "Student Athletes Lose Sixth Circuit Appeal in Marshall v. ESPN" (Rothman's Roadmap to the Right of Publicity): https://rightofpublicityroadmap.com/news_commentary/student-athletes-lose-sixth-circuit-appeal-marshall-v-espn/
- Analysis, "The Right of Publicity and College Sports Broadcasting" (Fordham IP, Media & Entertainment Law Journal): https://www.fordhamiplj.org/2017/09/20/right-publicity-college-sports-broadcasting/