Leaf Sues Andrew Luck Over Army All-American Bowl Trading Cards
With the first pick in the draft, Leaf Trading Cards LLC picks Andrew Luck. That is, a lawsuit with Luck.
Luck, who will likely be the number one pick in the NFL Draft next Thursday, already has his first big league lawsuit. The suit focuses on Andrew Luck cards released this year by Leaf. The cards picture the quarterback during the 2008 U.S. Army All-American Bowl game in San Antonio, Texas.
What triggered the lawsuit was a cease and desist letter from Luck's attorney to Leaf demanding that the card maker stop selling the cards because it infringed Luck's publicity rights.
Legal translation: The right of publicity is the right of the person to control the commercial use of his or her name, image, likeness, signature, etc. Basically, the right of a person to make money from being that person.
Apparently, Leaf didn't like the letter, so it brought a declaratory judgment action against Luck in Texas.
Legal translation: Leaf asked the court to tell Luck he has no rights over the cards (Bad pun time - to tell Luck when it comes to this card, he has no luck).
What I like about this lawsuit is Leaf's focus on the First Amendment. Basically, the argument is that a trading card is a piece of history (a little encyclopedia). This particular card honors that Andrew Luck played in the U.S. Army All-American Bowl game in 2008, with a picture of Luck. Because of this, Leaf argues that Luck should not be able to prevent others (like Leaf) from presenting those historical facts.
Given that a court recently ruled that Topps was able to make cards of Buzz Aldrin's moonwalk without getting Aldrin's permission (because of the First Amendment), this suit could help define if First Amendment protection goes even further. I mean, Luck's performance during that bowl game was not as important as a moon landing, but it still has its place in history. So, does the First Amendment protect minor historical events? Or does the right of publicity trump the First Amendment at some point?
Leaf's fallback position is that it had a license from the U.S. Army All-American Bowl to use images from the game on trading cards. But that's a less interesting issue. However, it will likely be the easy way out for the court if it decides to eventually rule in Leaf's favor.
Legal translation: A legal analysis on a contract is easier than a constitutional analysis. And because analyses of contracts really only impact the two parties before the judge. Because a constitutional analysis like this could affect an entire industry, the court may take the easy way out.
On the flip side, if Luck should prevail in this suit, it'll give players, including NCAA athletes, much more bargaining power on their own likeness.
This case was just filed, so we'll have plenty of time to learn more about it.
The timing of this suit is unlucky for Luck and may slightly damper the weekend before he's drafted. Oh well, at least Leaf won't serve him with a copy of the lawsuit on his way up to the podium to shake Roger Goodell's hand.
Or will they?
Update (4/23): Leaf added the following press release to their site.
The information provided in Paul Lesko's "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.
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