first amendment coalition

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Case No. 09-cv-01967 CW (NC) SMRH:423016721.5 BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF

DEFENDANT NCAA’S MOTION TO CERTIFY PURSUANT TO 28 U.S.C. §1292(b)

SHEPPARD MULLIN RICHTER & HAMPTON LLP KENT R. RAYGOR, Cal. Bar No. 117224 VALERIE E. ALTER, Cal. Bar No. 239905 1901 Avenue of the Stars, Suite 1600 Los Angeles, California 90067-6055 Telephone: (310) 228-3700 Facsimile: (310) 228-3701 Email: [email protected]

[email protected] Attorneys for Amicus Curiae FIRST AMENDMENT COALITION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

In re NCAA Student-Athlete Name & Likeness Licensing Litigation

Case No. 09-cv-01967 CW (NC) BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF DEFENDANT NCAA’S 28 U.S.C. §1292(b) MOTION TO CERTIFY COURT’S MAY 11, 2014 ORDER RESOLVING CROSS MOTIONS FOR SUMMARY JUDGMENT Judge: Honorable Claudia Wilken Date: June 5, 2014 Time: 2:00 p.m. Crtrm.: 2, 4th Floor

Exhibit A, Page 4

Case4:09-cv-01967-CW Document1042-1 Filed05/02/14 Page1 of 16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i Case No. 09-cv-01967 CW (NC) SMRH:423016721.5 BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF


TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1

II. INTEREST OF FIRST AMENDMENT COALITION .................................................... 1

III. THE COURT SHOULD CERTIFY ITS SUMMARY JUDGMENT ORDER FOR INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b) .................... 2

A. Standard For Granting Certification Pursuant To Section 1292(b)................. 2

B. The Summary Judgment Order Involves Controlling Questions Of First Amendment Law. ............................................................................................ 4

C. Interlocutory Appeal Is Appropriate For Controlling First Amendment Issues That Are Novel, Complex And In Need Of Early Resolution. ............ 5

D. Certification Pursuant To Section 1292(b) Is Especially Warranted Due To The Chaotic Conditions That Will Be Caused By Implementation Of The Court’s Summary Judgment Order. ......................................................... 8

IV. CONCLUSION ............................................................................................................. 12

Exhibit A, Page 5


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ii Case No. 09-cv-01967 CW (NC) SMRH:423016721.5 BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF


TABLE OF AUTHORITIES

Page(s) Cases

American-Arab Anti-Discrimination Committee v. Reno 70 F.3d 1045 (9th Cir. 1995) ................................................................................................... 12

Arizona v. Ideal Basic Industries (In re Cement Antitrust Litigation) 673 F.2d 1020 (9th Cir. 1982) ................................................................................................... 3

Baker & Getty Financial Services, Inc. v. National Union Fire Insurance Company 954 F.2d 1169 (6th Cir. 1992) ................................................................................................... 2

Batt v. City of Oakland 2006 U.S. Dist. LEXIS 77087 (N.D. Cal. Oct. 11, 2006) ......................................................... 5

Citizens United v. Federal Election Commission 558 U.S. 310 (2010) ................................................................................................................ 11

Couch v. Telescope Inc. 611 F.3d 629 (9th Cir. 2010) ................................................................................................. 3, 8

Dombrowski v. Pfister 380 U.S. 479 (1965) ................................................................................................................ 11

Elrod v. Burns 427 U.S. 347 (1976) ................................................................................................................ 12

Kuehner v. Dickinson & Co. 84 F.3d 316 (9th Cir. 1996) ....................................................................................................... 2

New York Times v. Sullivan 376 U.S. 254 (1964) ................................................................................................................ 11

Reese v. BP Exploration (Alaska) Inc. 643 F.3d 681 (9th Cir. 2011) ................................................................................................. 3, 8

Union Carbide Corp. v. U.S. Cutting Serv., Inc. 782 F.2d 710 (7th Cir. 1986) ................................................................................................... 12

United States v. Real Property & Improvements Located at 2441 Mission Street 2014 U.S. Dist. LEXIS 47135 (N.D. Cal. April 4, 2014) ......................................................... 3

Washington Post Co. v. Keogh 365 F.2d 965 (D.C. Cir. 1966) ................................................................................................ 12

Yeager v. Cingular Wireless, LLC 2010 U.S. Dist. LEXIS 35954 (E.D. Cal. Mar. 12, 2010) ......................................................... 3

Exhibit A, Page 6


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

iii Case No. 09-cv-01967 CW (NC) SMRH:423016721.5 BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF


TABLE OF AUTHORITIES (continued)

Page(s) Zacchini v. Scripps-Howard Broadcasting Co.

433 U.S. 562 (1977) ...................................................................................................... 5, 6, 7, 8

Statutes

28 U.S.C. § 1292(b) ...................................................................................................... 2, 3, 5, 8, 12

Exhibit A, Page 7


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-1- Case No. 09-cv-01967 CW (NC) SMRH:423016721.5 BRIEF OF AMICUS CURIAE FIRST AMENDMENT COALITION IN SUPPORT OF


I.

INTRODUCTION

Amicus curiae the First Amendment Coalition submits this amicus brief in support of

NCAA’s motion for certify the Court's April 11, 2014 Order Resolving Cross-Motions For

Summary Judgment (ECF Doc. No. 1025) ("Summary Judgment Order") for interlocutory review.

First Amendment Coalition specifically addresses the potentially catastrophic First Amendment

implications of the Summary Judgment Order.

In denying NCAA a First Amendment defense to plaintiffs’ Sherman Act claim, the Court

assumed in Footnote 10 of the Summary Judgment Order that no “individual student-athlete would

be able to prevent a broadcaster from televising his team’s games merely by withholding his

consent,” and that “individual student-athletes would have to transfer their rights of publicity to

some representative entity.” Respectfully, there is no basis for these assumptions, and it is likely, if

not certain, that student-athletes will be free to negotiate individually for publicity rights.

The uncertainty created by such a scenario—do broadcasters have the right to televise a

particular game, or do they not?—will cause the NCAA, networks, and associated businesses to

censor their protected speech. Such self-censorship is anathema to the First Amendment, and must

be addressed as early as possible. Given the gravity of the First Amendment issues at stake, First

Amendment Coalition respectfully requests that the Court certify the Summary Judgment Order for

interlocutory review.

II.

INTEREST OF FIRST AMENDMENT COALITION

Amicus curiae the First Amendment Coalition is a nonprofit organization dedicated to First

Amendment freedoms and government transparency. The exercise of these rights—the right to

know what government is doing, to criticize government policy, and to hold elected officials Exhibit A, Page 8


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



accountable for their actions (or inaction)—is essential to a self-governing democracy that serves the

public interest (rather than special interests).

The First Amendment Coalition, founded in 1988, works to protect these rights through

multiple programs, including a free legal consultation service, educational and information services,

and public advocacy. When necessary, the First Amendment Coalition also goes to court, filing

test-case litigation in its own name and filing amicus briefs in cases raising important First

Amendment and government-access issues, such as the instant litigation. The First Amendment

Coalition receives funding from contributions, foundation grants, and members. The organization's

offices are in San Rafael, California.

III.

THE COURT SHOULD CERTIFY ITS SUMMARY JUDGMENT ORDER FOR

INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. § 1292(b)

A. Standard For Granting Certification Pursuant To Section 1292(b).

A district court may certify an order for interlocutory review when:

. . .[A] district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b) (emphasis added).

The question (or questions) of law posed by the case need not be dispositive to qualify as

controlling. See Kuehner v. Dickinson & Co., 84 F.3d 316, 319 (9th Cir. 1996). Rather, an issue is

controlling where “the resolution of an issue . . . on appeal could materially affect the outcome of

the litigation in the district court.” Baker & Getty Financial Services, Inc. v. National Union Fire

Insurance Company, 954 F.2d 1169, 1172 n.8 (6th Cir. 1992) (internal quotation marks and citations Exhibit A, Page 9


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



omitted). See also Arizona v. Ideal Basic Industries (In re Cement Antitrust Litigation), 673 F.2d

1020, 1026 (9th Cir. 1982) (“[A]ll that must be shown in order for a question to be ‘controlling’ is

that resolution of the issue on appeal could materially affect the outcome of litigation in the district

court.”).

“To determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b),

courts must examine to what extent the controlling law is unclear.” Couch v. Telescope Inc., 611

F.3d 629, 633 (9th Cir. 2010). The controlling law is unclear where “the circuits are in dispute on

the question and the court of appeals of the circuit has not spoken on the point, if complicated

questions arise under foreign law, or if novel and difficult questions of first impression are

presented.” Id. Moreover, “[a] substantial ground for difference of opinion exists where reasonable

jurists might disagree on an issue’s resolution, not merely where they have already disagreed.”

Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011).

The final consideration is whether an interlocutory appeal will materially advance the

ultimate termination of the litigation. This “is closely related to the question of whether an issue of

law is ‘controlling’ in that the [district court] should consider the effect of a reversal . . . on the

management of the case.” United States v. Real Property & Improvements Located at 2441 Mission

Street, 2014 U.S. Dist. LEXIS 47135 at *12 (N.D. Cal. April 4, 2014) (internal quotations omitted).

See also Yeager v. Cingular Wireless, LLC, 2010 U.S. Dist. LEXIS 35954 (E.D. Cal. Mar. 12, 2010)

(same).

In the First Amendment Coalition’s view, the First Amendment stands as a bar to the Court’s

summary judgment decision regardless of whether the (federal) antitrust or (state) right-of-publicity

issues have been correctly decided. The First Amendment is a legally discrete and controlling issue

that, with all respect, the Court got wrong. Because the First Amendment issue satisfies all the

requirements of Rule 1292(b), and because the ongoing harm to First Amendment interests uniquely

Exhibit A, Page 10


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



counsels in favor of the earliest possible judicial resolution, the Court should certify its Summary

Judgment Order for interlocutory review.

B. The Summary Judgment Order Involves Controlling Questions Of First Amendment

Law.

NCAA and amici (Fox Broadcasting Company and Big Ten Network, LLC) have

argued that plaintiffs cannot establish a violation of Section 1 of the Sherman Act without

first showing that NCAA’s “amateur play” rules operate to prevent them from selling things

of value—so-called publicity or “NIL” (name, image, likeness) rights—that are, legally

speaking, theirs to sell. Although the First Amendment Coalition takes no position on

whether the plaintiffs, or some of them, have legally cognizable property rights—and further

abstains on the question whether NCAA’s practices with respect to those rights constitute an

antitrust violation—the First Amendment Coalition agrees with NCAA that it is plaintiffs’

burden to show that the plaintiffs possess these rights.

The First Amendment clearly allocates this burden to plaintiffs, not NCAA. Whatever one’s

view of the merits of NCAA’s First Amendment arguments, there can be no question that a decision

recognizing or conferring NIL interests on plaintiffs implicates—and in a serious and direct way—

the First Amendment. It implicates the First Amendment rights of television networks, cable

companies, radio stations and many others. Under the best of circumstances, they will, going

forward, face the legal uncertainty of indeterminate tort liability for the programming they produce,

while millions of viewers (whose First Amendment rights are also implicated), as a result, will

likely have to pay more money for less complete coverage of fewer NCAA games.

These are not trivial consequences, as discussed further below. And before they can be set in

motion by this Court, plaintiffs at the very least have to meet their burden of showing that the

Exhibit A, Page 11


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



publicity rights in question exist under the common law and statutory law of the relevant states.1 If

it turns out that the rights do not exist, the predicate for plaintiffs’ antitrust claims collapses.2 More

important for amicus’ purposes, the First Amendment argument must prevail because, by

hypothesis, there will be no interests on plaintiffs’ side of the constitutional scale to balance against

the substantial First Amendment interests.

The First Amendment issue is front, center and controlling in this case. The Court should

certify its summary judgment ruling for interlocutory appeal so that the issue can be resolved now.

See Batt v. City of Oakland, 2006 U.S. Dist. LEXIS 77087 at *7 (N.D. Cal. Oct. 11, 2006)

(“Summary judgment has been held in this Circuit to be a controlling question of law under section

1292(b); thus, a controlling question of law has been raised.”).

C. Interlocutory Appeal Is Appropriate For Controlling First Amendment Issues That

Are Novel, Complex And In Need Of Early Resolution.

Even if plaintiffs have legally cognizable state law causes of action for rights of publicity,

the Supreme Court’s decision in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562

(1977), does not remove constitutional obstacles to plaintiffs’ hypothetical claims. In Zacchini the

Supreme Court sustained, over a First Amendment challenge, Hugo Zacchini’s suit against a

television station that had filmed and broadcast all of his fifteen-second “human cannonball” act

performed at a state fair. 433 U.S. at 563. The Court stressed that the news broadcast had shown

Mr. Zacchini’s “entire act”, id. at 574, and thereby greatly diminished its value. “Wherever the line

in particular situations is to be drawn between media reports that are protected and those that are

1 The Court, of course, has no power to create rights-of-publicity. They are purely a function of state law, whether judge-made common law or statutory law. 2 Indeed, if plaintiffs cannot show that they possess legally cognizable publicity rights under state law, it is at least arguable that this dispute would no longer present a “case or controversy” permitting the continued exercise of the Court’s jurisdiction. Exhibit A, Page 12


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



not,” the Court said, id. at 575, “we are quite sure that the First and Fourteenth Amendments do not

immunize the media when they broadcast a performer's entire act without his consent.” Id.

The NCAA performances to which the team players’ asserted publicity rights would apply

are at the opposite end of the spectrum from Zacchini. Mr. Zacchini’s “human cannonball” was the

same performance throughout the day, day after day. The filming and broadcast of that performance

was the equivalent of copying and reselling a copyrighted song, or republishing verbatim another

author’s article. NCAA basketball and football games, by contrast, are never the same. Every game

is different (even when they involve the same teams competing in the same venue with the same

lineup of players). Within any single game, each play differs from the one that preceded it, as does

each player’s execution of his/her assigned role. Excellence in football and basketball is not about

perfecting and repeating the same performance in a static setting, but about adapting one’s

performance to constantly shifting circumstances and pressures. Basketball and football emphasize

change, risk and unpredictability. In contrast to the human cannonball, NCAA games do not offer a

script or act that can be taken “entirely.”

Moreover, the value of college team sports is not merely the sum of the parts represented by

the contributions of individual players on a team’s current roster. On the contrary, the value of

college sporting contests derives from myriad factors, including the schools involved, their histories,

their alumni (and the role of the alumni in the larger community), as well as the records and

historical performances of all NCAA teams. An additional factor, which exists independently of a

team’s membership in any given year, is the historical rivalry between schools. For example, the

rivalry between the University of North Carolina Tar Heels and the Duke University Blue Devils,

which has been called the most intense rivalry in college basketball (see

http://bleacherreport.com/articles/1985145-how-duke-vs-unc-became-the-best-rivalry-in-college-

Exhibit A, Page 13


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



basketball), dates back more than fifty years and has taken on a significance (and economic value)

that transcends the athletic competition between teams.3

While the value of the individual cannonball act in Zacchini may have been “the product of

[the performer’s] own talents and energy,” the same cannot be said of individual student athletes

playing within the context of a sports team that may have decades of storied rivalries, history, and

varying levels of interaction with the college and broader communities.

Finally, unlike the situation in Zacchini, there is no claim here that plaintiffs’ hypothetical

publicity rights would be diminished if the public could see their group athletic contests on

television. On the contrary, NCAA games are watched by millions.4 Assuming for the moment that

plaintiffs do have legally protectable publicity rights, those rights are greatly enhanced by the

exposure, public awareness and acclaim created by television coverage reaching a mass audience.

One example: players who, under the Court’s decision, would be in a position to contract for the

endorsement of products. Clearly, the value (to the players) of an endorsement deal is hardly

diminished by the televising of games; the value is created and greatly enhanced through television

exposure.

Even if state law does provide plaintiffs with legally cognizable publicity rights in their

college football and basketball performances, it is by no means clear that players’ interests in 3 “The Duke-Carolina rivalry . . . has cultivated a maniacal subculture of fans who camp out for weeks just to get tickets to the seasonal match-ups; it has enchanted a nation of spectators to watch games between the archrivals—garnering some of the highest regular-season TV ratings in history.” Art Chansky, Blue Blood: Duke-Carolina: Inside the Most Storied Rivalry in College Hoops (Macmillan 2007) (publisher’s summary on the cover). 4 More than twenty million people watched both this year’s NCAA men’s basketball national championship and football national championship. See, e.g., http://www.forbes.com/sites/tomvanriper/2014/03/20/march-madness-ratings-and-revenue-keep-reaching-new-heights/. Tickets for the NCAA men’s Final Four games were sold out on the primary market, and were selling for at least $135 over face value on the secondary market (see http://www.usatoday.com/story/news/nation-now/2014/04/01/final-four-tickets-basketball-ncaa/7152605/).

Exhibit A, Page 14


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



asserting those rights through litigation necessarily outweighs the First Amendment interests of

NCAA, broadcasters and other businesses involved in the airing of NCAA games, and of the

massive national audience of viewers.5 While amicus believes this calculus—the calculus

prescribed by Zacchini—in fact favors First Amendment interests, the Court need not go that far to

certify this case under section 1292(b). The Court need only determine that the First Amendment

issues present “novel and difficult questions of first impression,” Couch, 611 F.3d at 633, about

which “reasonable jurists might disagree,” Reese, 643 F.3d at 688. That standard is certainly met

here.

D. Certification Pursuant To Section 1292(b) Is Especially Warranted Due To The

Chaotic Conditions That Will Be Caused By Implementation Of The Court’s Summary

Judgment Order.

This Court’s summary judgment decision poses a serious threat to freedom of speech. That

threat is reflected less in the Court’s analysis of First Amendment issues than in the way the Court’s

decision will be implemented in the real world. Huge uncertainty about the mechanism for

implementation, combined with the risk of substantial liability for guessing wrong about how to

comply with the Court’s order, will deter protected expression on matters of public interest. This

likelihood—no, this certainty—of self-censorship is, in amicus’ view, the most important reason to

certify the summary judgment decision for interlocutory appeal.

First Amendment Coalition’s argument focuses on footnote 10 of the Summary Judgment

Order, which states:

5 Wisconsin Interscholastic, cited by plaintiffs, does not change this conclusion. In Wisconsin Interscholastic, the Seventh Circuit considered whether the First Amendment prevented the Wisconsin Interscholastic Athletic Association (“WIAA”), a nonprofit state actor, from applying its “Media Policies,” which granted certain private entities exclusive broadcast rights, including internet streaming, to middle school and high school athletic events. “On appeal, the only issue presented concerns the First Amendment as it might apply to WIAA’s internet streaming rules.” Id. at 616. In other words, the case did not even concern a right of publicity issue.

Exhibit A, Page 15


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



This is not to suggest that any individual student-athlete would be able to prevent a broadcaster from televising his team’s games merely by withholding his consent. To create a group licensing market such as the one that Plaintiffs have identified, individual student-athletes would have to transfer their rights of publicity to some representative entity—such as their school or conference—as a condition of their participation in Division I athletics so that the representative entity could license the right to televise their games. Thus, broadcasters would obtain group licenses to use every participating student-athlete’s name, image, and likeness as part of the general licenses they would acquire from every school or conference whose games they wished to broadcast.

(ECF Doc. No. 1025, at 26:22-28.)

Regrettably, there is no basis for the Court’s confidence in a smooth transition to a legal

regime of group-licensing for publicity rights which inhere separately in each player on an NCAA

team. On the contrary, there is every reason to expect that the transition will be chaotic and that free

speech will be the first casualty of that chaos.

There is no mechanism for requiring NCAA team members, once they are vested

individually in state law publicity and NIL rights pursuant to the Court’s decision, to negotiate and

agree collectively, on a group-basis, on terms for licensing their rights to broadcast networks and

others. The Court speculates that the college or athletic conference could function as an agent for all

student-athletes for this purpose. But consider:

▪ The students’ collective agreement to appoint the college or conference as sole

agent for all the players would be subject to challenge as unlawful collusion and

price-fixing under the federal antitrust laws.

▪ The Court’s alternate suggestion—conditioning students’ participation in NCAA

athletics on their cooperating in group-based licensing of NIL rights—would also

raise a red flag at the Federal Trade Commission. Having been sued for

prohibiting students from enforcing their publicity rights, the NCAA would be

Exhibit A, Page 16


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



reluctant (to put it mildly) to use its alleged monopoly power to force athletes to

grant licenses to those rights.

Because neither requiring nor inducing the creation of a “group licensing market” are

plausible options, what will happen? The default outcome will be a competitive non-group market

in which all student-athletes will be free to negotiate an individual publicity rights license at the best

terms they can get, based on their value to the team (real and perceived), the profits generated by the

team’s games, how much broadcasters are willing to pay in fees, and the willingness of colleges to

share proceeds with players.

This also means that some players who think they have leverage to extract concessions will

simply refuse to sign a license agreement, holding out for better terms. In other words, a single

dissenting student, despite the Court’s assurance to the contrary, “would be able to prevent a

broadcaster from televising his team’s games merely by withholding his consent.”

This scenario is a First Amendment nightmare because the massive uncertainty flowing from

a judicial decree will cause those engaged in protected expression—NCAA, networks and associated

businesses—to censor themselves. Unsure of the consequences of directing and airing sports events

without all necessary licenses, they will cancel some while refraining to commit to other future

games where they anticipate similar problems. This is self-censorship. In other cases broadcasters

will proceed to televise a sports event, but change their production techniques and deployment of

cameras to avoid showing the “unconsenting” players. This too is self-censorship.

Nor are these problems confined to NCAA games. The logic of the Court’s decision

certainly extends to all other sports, whether professional, collegiate or high school level, from the

Olympic games to a Little League baseball championship. And there is no principled reason why

publicity rights should be recognized only for athletes. Coaches, trainers, cheerleaders, and all other

Exhibit A, Page 17


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



personnel involved in public aspects of major sporting events will also be emboldened to assert NIL

rights.

Although the application of the decision to news events outside the sports arena is less clear,

there is definitely a risk of such an extension—and no way to eliminate that risk short of costly

litigation. The Court’s summary judgment decision opens the door to the possibility that television

journalists reporting on a street demonstration, natural disaster, news conference or public school

shooting will be forced to chase down all persons appearing on camera for their signatures on legal

consent forms. Subjects who withhold consent undoubtedly will cause some news segments to be

held or canceled. Other subjects may condition their consent, trying to use their leverage to

influence the way a news segment is edited.

The First Amendment weighs heavily against government decrees or rules that, due to

ambiguities and uncertainties about their meaning or scope, have the effect of deterring protected

expression. See Dombrowski v. Pfister, 380 U.S. 479, 487 (1965); Citizens United v. Federal

Election Commission, 558 U.S. 310, 330-33 (2010). This is true even when, as here, the “chilling

effect” derives from the liability risk of state tort law. See New York Times v. Sullivan, 376 U.S. 254

(1964).

The implementation of the Court’s decision will be nothing like what the Court envisions.

Because antitrust concerns will prevent the emergence of a market for group-licensing of publicity

rights, individual athletes will have the power, by withholding consent, to force the cancellation of a

sports event broadcast. Under First Amendment first principles, this is an intolerable outcome.

With so much at stake, it is imperative that the Court of Appeals address and resolve the

First Amendment issues at this juncture, not months or years from now following a full trial. While

the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably

Exhibit A, Page 18


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976),6 this Court’s decision sets

in motion a dynamic that will cause more and more self-censorship—and, as a result, an expanding

toll on core First Amendment rights—over time.

This case cries out for section 1292(b) certification.

IV.

CONCLUSION

For the reasons above, amicus curiae First Amendment Coalition respectfully requests that

the Court certify its Summary Judgment Order for appellate review pursuant to section 1292(b).

Dated: May 2, 2014 SHEPPARD MULLIN RICHTER & HAMPTON LLP KENT R. RAYGOR VALERIE E. ALTER

By s/ Kent R. Raygor

KENT R. RAYGOR

Attorneys for Amicus Curiae FIRST AMENDMENT COALITION

423016721.2

6 See also American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045, 1057-58 (9th Cir. 1995) (the duration of trial is an “intolerably long” period to permit the continuing impairment of First Amendment rights, thereby entitling a plaintiff to immediate injunctive relief); Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 712 (7th Cir. 1986) (“[I]n free-speech cases interlocutory appeals sometimes are more freely allowed, and writs of mandamus sometimes more freely issued, than in other types of case [sic], especially where the interlocutory order can be characterized as imposing a ‘prior restraint’ on speech or the press.”); Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966) (“In the First Amendment area, summary procedures are even more essential. For the stake here, if harassment succeeds, is free debate.”). Exhibit A, Page 19


first amendment coalition

Documents