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Ohio State Answer To Chris Spielman Lawsuit
Ohio State Answer To Chris Spielman Lawsuit
DEFENDANTS.
Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure,
defendant The Ohio State University (Ohio State) respectfully moves the Court to dismiss all
claims asserted against Ohio State in Plaintiffs First Amended Class Action Complaint
(Amended Complaint). Pursuant to the Eleventh Amendment and the sovereign immunity that
applies to Ohio State as an instrumentality of the state of Ohio, this Court lacks subject-matter
jurisdiction over Plaintiffs claims against Ohio State, which therefore must be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(1). In addition, Plaintiffs Sherman Act and
Lanham Act claims also must be dismissed for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). Because those two federal claims should be dismissed, this Court
also should, pursuant to 28 U.S.C. 1367, decline to exercise supplemental jurisdiction over
Plaintiffs remaining state law claims, which Plaintiff may pursue in the Ohio Court of Claims.
Respectfully submitted,
I. INTRODUCTORY STATEMENT
This case arises from banners celebrating Ohio States sports programs that were hung in
Ohio Stadium. Plaintiff Chris Spielman, a former Ohio State football player who appeared on
one of the banners, has sued IMG College, LLC and Ohio State, claiming that the banner
program and other activities of IMG and Ohio State violated the Sherman Act and the Lanham
Act, and gave rise to several state laws claims. All of his claims should be dismissed for several
reasons.
First, Plaintiff has chosen the wrong forum for this action. Ohio State is an
instrumentality of the state of Ohio that has Eleventh Amendment sovereign immunity against
lawsuits in federal court. Because Congress has not abrogated that immunity as to Plaintiffs
federal claims, and because Ohio has not waived its immunity, Ohio State cannot be sued in
federal court. Thus, Plaintiffs remedies, if any, must be sought in state court.
Second, Plaintiff fails to state viable Sherman Act and Lanham Act claims. As to his
Sherman Act claims, Plaintiff takes issue with routine licensing and related contracts between
Ohio State and Nike USA, Inc. However, he does not identify any provisions in these contracts
that improperly fix prices or limit him from exercising his own intellectual property rights.
Plaintiff also does not allege that Ohio State has prohibited him from licensing his own name or
that he ever sought and was denied a trademark license from Ohio State. Further, Plaintiff has
the Lanham Act claim, Plaintiff alleges no facts to show that Ohio State somehow deceived
consumers into withholding trade from himfacts that are necessary to support his standing to
sueor that consumers were likely to experience the type of confusion that the Lanham Act is
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designed to address. Accordingly, Plaintiffs allegations under both federal statutes fail to meet
the pleading standard established by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Third, because dismissal of Plaintiffs federal claims removes his only basis for subject-
matter jurisdiction, this Court should dismiss his remaining claims under 28 U.S.C. 1367. If
Plaintiff chooses to pursue claims against Ohio State, he must do so in the Ohio Court of Claims.
II. BACKGROUND
As Plaintiff admits, Defendant Ohio State is an instrumentality of the state of Ohio. (Am.
Compl. 19, July 26, 2017, ECF No. 7.) Plaintiff asserts claims against IMG College, LLC and
Ohio State under the Sherman Act, the Lanham Act, two Ohio statutes, and the common law.
(Am. Compl. 2, 17.) Plaintiff alleges that this Court has federal question jurisdiction under 28
U.S.C. 1331 and supplemental jurisdiction over his state law claims pursuant to 28 U.S.C.
1367. (Am. Compl. 13.) Diversity jurisdiction does not exist because Plaintiff is a citizen of
III. ARGUMENT
This Court should first address the issue of Ohio States Eleventh Amendment sovereign
immunity, which raises threshold jurisdictional issues. See Pritchard v. Dent Wizard Intl.
Corp., 210 F.R.D. 591, 592 (S.D. Ohio 2002) (A Rule 12(b)(6) motion may be decided only
after establishing subject matter jurisdiction since the Rule 12(b)(6) challenge becomes moot if
this Court lacks subject matter jurisdiction. (citing Moir v. Greater Cleveland Regl Transit
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The Eleventh Amendment bars suits against a state, or an instrumentality of the state, in
federal court. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666,
669-70 (1999); Thomas v. Noder-Love, 621 F. Appx 825, 831 (6th Cir. 2015). Plaintiff
concedes, (Am. Compl. 19), that Ohio State is an instrumentality of the state of Ohio. See, e.g.,
Middleton v. Ohio State Univ., No. 15-cv-2997, 2016 U.S. Dist. LEXIS 6016, at *4 (S.D. Ohio
Jan. 19, 2016). Ohio State thus is entitled to Eleventh Amendment sovereign immunity from
suit in federal court. Id.; see also Nathan v. Ohio State Univ., 984 F. Supp. 2d 789, 809 (S.D.
Ohio 2013); Spires v. Ohio State Univ., No. C2-99-402, 2001 U.S. Dist. LEXIS 24036, at *18
(S.D. Ohio Apr. 25, 2001); Bailey v. Ohio State Univ., 487 F. Supp. 601, 606 (S.D. Ohio 1980).
Because the Eleventh Amendment covers Ohio State, this lawsuit may proceed in federal
court only if: (1) Congress has properly acted to abrogate sovereign immunity; or (2) Ohio has
waived its immunity and consented to be sued in federal court. See Fla. Prepaid, 527 U.S. at
670; Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Because neither of those requirements is
met in this case, the Eleventh Amendment requires the dismissal of Plaintiffs claims.
Congress has only limited ability to abrogate the States sovereign immunity. To do so,
Congress must both: (1) unequivocally express[] its intent to abrogate the immunity, Mixon,
193 F.3d at 398 (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)); see also Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 55 (1996); and (2) authorize the lawsuit in the exercise of its power
to enforce the Fourteenth Amendment, rather than through exercise of Article I powers such as
the power to regulate commerce, Fla. Prepaid, 527 U.S. at 670, 672.
immunity in the Sherman Act, which makes no mention of the state as such, and gives no hint
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that it was intended to restrain state action or official action directed by a state. Parker v.
Brown, 317 U.S. 341, 351 (1943); see also Jackson v. Conn. Dept of Pub. Health, No. 3:15-CV-
750, 2016 U.S. Dist. LEXIS 80672, at *40 (D. Conn. June 20, 2016) (With respect to the
Sherman Act, the antitrust statutes do not contain a clear intent to subject states to federal court
jurisdiction and liability.). Moreover, the Sherman Act was enacted pursuant to the Commerce
Clause, not the Fourteenth Amendment, and could not abrogate Eleventh Amendment sovereign
immunity for that reason as well. See McNeilus Truck & Mfg., Inc. v. Ohio ex rel. Montgomery,
Case No. 97-3024, 1998 U.S. App. LEXIS 3736, at *2, *15-16 (6th Cir. Feb. 27, 1998)
(affirming dismissal of Sherman Act claims against Ohio on Eleventh Amendment sovereign
immunity grounds and noting that [t]he Sherman Act was enacted pursuant to the Commerce
Clause). Consequently, numerous courts have found that Sherman Act claims against state
Beeseley, 316 F. Appx 643, 643 (9th Cir. 2009); Charleys Taxi Radio Dispatch Corp. v. SIDA
of Hawaii, Inc., 810 F.2d 869, 874 (9th Cir. 1986); Kinney v. State Bar of Cal., No. 16-cv-02277,
2016 U.S. Dist. LEXIS 115857, at *1-2 (N.D. Cal. Aug. 29, 2016); Hines v. Cal. PUC, No. C-
10-2813, 2010 U.S. Dist. LEXIS 118785, at *11 (N.D. Cal. Nov. 8, 2010); Gebman v. State, No.
07-cv-1226, 2008 U.S. Dist. LEXIS 46125, at *12-13 (N.D.N.Y. June 12, 2008); Mathiowetz
Constr. Co. v. Minn. Dept of Transp., No. 01-548, 2002 U.S. Dist. LEXIS 3389, at *7-8 (D.
Minn. Feb. 27, 2002); see also Philip E. Areeda & Herbert Hovenkamp, Antitrust Law 215b
(4th ed. 2016) ([T]he Eleventh Amendment may provide sovereign immunity in federal
Prepaid Postsecondary Education Expense Board, the Supreme Court held that federal court
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claims against state governmental entities under the Lanham Act are barred by the Eleventh
Amendment. 527 U.S. at 691. Although the Trademark Remedy Clarification Act sought to
provide a federal court remedy against state entities under the Lanham Act, the Court held that
the Act did not validly abrogate sovereign immunity because it could not be viewed as exercising
Congresss power under the Fourteenth Amendment. Id. at 672-75. Following Florida Prepaid,
courts have consistently found that the Eleventh Amendment bars Lanham Act claims against
state instrumentalities. See, e.g., Ky. Mist Moonshine, Inc. v. Univ. of Ky., 192 F. Supp. 2d 772,
780 (S.D. Ohio 2016); McGuire v. Regents of Univ. of Mich., No. 2:99-CV-1231, 2000 U.S. Dist.
LEXIS 21615, at *8-10 & n.2 (S.D. Ohio Sept. 21, 2000); see also State Contr. & Engg Corp. v.
Florida, 258 F.3d 1329, 1336 (Fed. Cir. 2001); Jackson, 2016 U.S. Dist. LEXIS 80672, at *38-9;
Utah Republican Party v. Herbert, 141 F. Supp. 3d 1195, 1200 (D. Utah 2015).
Because neither federal statute abrogates Ohios sovereign immunity, the remaining
question is whether, as to both Plaintiffs federal and state law claims, the state of Ohio has
waived its immunity. The answer is clear: Ohio has not waived Eleventh Amendment sovereign
immunity on behalf of itself or its instrumentalities, like Ohio State. See Mixon, 193 F.3d at 397;
Spires, 2001 U.S. Dist. LEXIS 24036, at *17; see also McNeilus Truck & Mfg., Inc, 1998 U.S.
App. LEXIS 3736, at *16 (noting that Ohio did not consent to being sued on Sherman Act claims
in federal court). Instead, Ohio has implemented only a limited, partial waiver of its sovereign
immunity, through which Ohio and its instrumentalities may be sued only in the Ohio Court of
Claims. See Ohio Rev. Code 2743.02(A)(1). Because federal courts have consistently
construed the extent of a states waiver of immunity to be limited by the express terms of the
waiver statute, Johns v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985) (citing Fla.
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Dept of Health v. Fla. Nursing Home Assn., 450 U.S. 147, 150 (1981)), Ohios limited waiver
of its sovereign immunity, to allow suits in the Court of Claims, does not authorize Plaintiff to
bring this action in federal court. See Mixon, 193 F.3d at 397; Johns, 753 F.2d at 527.
Thus, by reason of the Eleventh Amendment, this Court lacks jurisdiction over all claims
Plaintiff asserts against Ohio State. Neither the Sherman Act nor the Lanham Act abrogates
sovereign immunity, and the state of Ohio has not waived its immunity from suit in federal court.
This Court therefore should dismiss all of Plaintiffs claims pursuant to Rule 12(b)(1).
B. Plaintiffs Sherman Act and Lanham Act Claims Fail to State a Claim
Even if Plaintiff were not barred from pursuing claims against Ohio State in federal
courtwhich he ishis Complaint fails to state viable Sherman Act and Lanham Act claims.
To survive a motion to dismiss under Rule 12(b)(6), Plaintiff must state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Mere labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do. Twombly, 550 U.S. at 555. In addition, courts
need not accept as true a legal conclusion couched as a factual allegation. Hensley Mfg. v.
ProPride, Inc., 579 F. 3d 603, 609 (6th Cir. 2009) (quoting Twombly, 550 U.S. at 555).
Plaintiffs Sherman and Lanham Act claims simply do not comply with these standards.
Plaintiffs price-fixing and group boycott claims in Counts I and II of the Amended
Complaint rely on non-specific references to three of Ohio States contracts with Nike USA, Inc.
(Nike), each of which is part of Exhibit A to the Amended Complaint. These ordinary course
of business contracts include: (1) a Standard License Agreement, which gives Nike rights to
license and manufacture products using Ohio States intellectual property; (2) an Appearance and
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Consultation Agreement, in which Ohio State agrees to a certain number and type of public
appearances to promote sports participation and Ohio State athletic programs and to provide
design consultation to enhance Ohio States competitiveness; and (3) an Equipment Supply
sponsorship agreement in which Nike agrees to sponsor the Ohio State athletic department by
giving it compensation, apparel, and equipment. To acknowledge that sponsorship, Ohio State
allows the Nike name and trademarks to appear on apparel and equipment. (See generally Am.
Compl. Ex. A.) Significantly, not one of these agreements limits Plaintiffs right to market any
intellectual property he owns, prohibits Ohio State from doing business with individual players,
or sets a level of acceptable compensation for any use of players images or likenesses.
The Court should dismiss Plaintiffs antitrust claims for three reasons. First, Plaintiff has
not identified any conduct that meets the basic definition of price fixing or a group boycott,
particularly in light of the express terms of the contracts. Second, even if Plaintiff plausibly
identified a competitive restraint in the contracts, he has not pleaded a restraint involving
specified relevant market. Plaintiff therefore cannot state a claim under either a per se or rule of
reason antitrust analysis. Third, because Plaintiff has not pleaded an antitrust injury, he cannot
show antitrust standing. Accordingly, Plaintiffs Sherman Act claims should be dismissed.
Case law under the Sherman Act generally analyzes challenged activity as involving
direct competitors in the same market that removes some element of competition between the
rivals. Areeda & Hovenkamp, supra, 1901b. Vertical restraints, in contrast, involve
agreements between non-competing entities at different levels of the market structure. Care
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Heating & Cooling, Inc. v. Am. Std., Inc., 427 F.3d 1008, 1013 (6th Cir. 2005). Here, because
the contracts Plaintiff identifies are between Ohio State and one of its sponsorsand not
between Ohio State and a competitorthey are clearly vertical in nature. This distinction is
critical, because horizontal agreements, by their nature, pose a greater risk to competition as a
whole and therefore receive much more scrutiny than vertical agreements, which often are
procompetitive. See Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 893-94 (2007).
Further, it is well established that [n]ot every instance of cooperation between two
purview of the Sherman Act. Am. Needle, Inc. v. NFL, 560 U.S. 183, 189-90 (2010) (quoting 15
U.S.C. 1). Thus, a plaintiff cannot simply point to a business contract between two parties and
label it a price-fixing agreement that violates Section 1. Because such conclusory allegations are
all Plaintiff offers here, his claims fail. Cf. Found. for Interior Design Educ. Research v.
Savannah Coll. of Art & Design, 244 F.3d 521, 530 (6th Cir. 2001) (The essential elements of a
private antitrust claim must be alleged in more than vague and conclusory terms to prevent
The Amended Complaint makes various non-specific references to the attached contracts,
but makes no attempt to identify with particularity which provisions in each contract form the
basis for the alleged price-fixing agreement. Indeed, the plain language of the contracts does not
support the existence of such an agreement. Price terms and other provisions governing the
relationship between Ohio State and Nike do not constitute the type of price fixing that the
Sherman Act proscribes. See Garshman v. Univ. Res. Holding, Inc., 824 F.2d 223, 231 (3d Cir.
1987) ([P]rice-fixing within the scope of the per se prohibition of 1 . . . is an agreement to fix
the price to be charged in transactions with third parties, not between contracting parties
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themselves. (ellipsis in original) (internal quotation marks omitted))); see also Broad. Music
Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 9 (1979) (When two partners set the price of
their goods or services they are literally price fixing, but they are not per se in violation of the
Sherman Act.). The contracts do not, for example, set the price Ohio State will charge to other
licensees or establish any pricing terms that affect Plaintiff. Accordingly, the mere fact that Ohio
State and Nike have entered into contracts does not state a price-fixing claim. See Loren Data
Corp. v. GXS, Inc., 501 F. Appx 275, 280 (4th Cir. 2012) (Merely pleading or pointing to an
express contract is not enough to show that an actual conspiracy to restrain trade is afoot . . . .).
Plaintiffs group boycott claim is equally deficient. A group boycott is a joint effort by
suppliers or customers to deny relationships the competitors need in the competitive struggle.
Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 294 (1985)
(internal quotation marks omitted). Here, the Amended Complaint contains no plausible
allegation that Ohio State jointly agreed with any other entity not to do business with Plaintiff, or
that Ohio State and its alleged co-conspirators in any manner agreed on the scope of Plaintiffs
marketing rights with respect to any intellectual property rights he owns. Such allegations are
the essence of an illegal boycott, and they are utterly absent from the Amended Complaint.
Although Plaintiff baldly alleges that Ohio States agreements constitute a concerted
refusal to compensate Class Members, concerted actions impeding Plaintiff from maximiz[ing]
on future post-competition compensation rights, and concerted action to deny Class Members
compensation, (Am. Compl. 61-63), Plaintiff points to no provision in the contracts that
actually has those effects. Instead, the plain language of the contracts indicates only that Ohio
State chose to do business with Nike. Such business decisions, however, do not amount to a
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group boycott. See Minn. Assn of Nurse Anesthetists v. Unity Hosp., 208 F.3d 655, 659 (8th Cir.
2000) (It is not an antitrust boycott when one supplier enters into an exclusive supply
agreement with one customer, even though the suppliers competitors are foreclosed from that
customer for the life of the contract.); see also Expert Masonry, Inc. v. Boone Cnty., 440 F.3d
336, 347 (6th Cir. 2006) ([I]t is the appropriate nature of a functioning competitive marketplace
that buyers are free to choose from whom they will buy, [and] sellers are free to choose to whom
they will sell . . . .); Reddy v. Good Samaritan Hosp. & Health Ctr., No. C-3-90-197, 2000 U.S.
Dist. LEXIS 21592, at *54-56 (S.D. Ohio Sept. 19, 2000) (refusing to find a per se illegal
boycott where the defendant simply refused to contract with the plaintiff and instead entered into
In short, Plaintiffs allegations, on their face, do not meet the definition of a price-fixing
agreement or group boycott and therefore do not support a Section 1 Sherman Act claim.
Even if Plaintiff had identified a plausible competitive restraint, his allegations would fail
for another fundamental reason: Plaintiff has not pleaded a claim under either the per se or rule
of reason standards. Antitrust law establishes two categories of restraintsthose that are per se
illegal and those subject to rule of reason analysis that balances procompetitive and
anticompetitive effects. See Expert Masonry, 440 F.3d at 342. Per se restraints are found
reluctantly and infrequently, Food Lion, LLC v. Dean Foods Co. (In re Se. Milk Antitrust
Litig.), 739 F.3d 262, 271 (6th Cir. 2014), and generally involve only the most egregious and
prices, or to divide markets. Leegin, 551 U.S. at 886 (citation omitted). In contrast, the rule of
reason is the default position for evaluating all other conduct with competitive effects, In re Se.
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Milk Antitrust Litig., 739 F.3d at 271, 273, including all vertical agreements, see Leegin, 551
The fact that Plaintiff has made no allegation of an agreement between Ohio State and
one of Ohio States competitors is fatal to his per se price-fixing claim. The contracts between
Ohio State and Nike are vertical agreements because they involve non-competing entities at
different market levels. Such contracts sit squarely outside the per se realm under federal law.
See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430,
436 (6th Cir. 2008) (concluding there could be no per se conspiracy when the plaintiffs failed to
identify any agreement between competitors); Care Heating & Cooling, 427 F.3d at 1013
([Plaintiff] evidences only a vertical agreement between [the defendants]; thus, no per se
violation can exist.). Plaintiffs per se price-fixing claim fails on this basis alone.
Plaintiffs allegations also do not support per se treatment on his group boycott claim.
Only a small minority of group boycotts receive per se scrutiny. See Nw. Wholesale Stationers,
472 U.S. at 294; see also Shop & Stop Supermarket Co. v. Blue Cross & Blue Shield, 373 F.3d
57, 61 (1st Cir. 2004) (indicating that labels such as group boycott are minimally useful
because many arrangements that are literally concerted refusals to deal have potential
efficiencies and are judged under the rule of reason). To warrant per se treatment, a plaintiff
generally must show that the purported boycott: (1) cut off access to a supply, facility, or
market necessary to enable the boycotted firm to compete; (2) involved boycotting firms that
possess[] a dominant position in the relevant market; or (3) involved practices [that] were
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generally not justified by plausible arguments that they were intended to enhance overall
efficiency and make markets more competitive. Nw. Wholesale Stationers, 472 U.S. at 294.
First, Plaintiff has not identified any agreement between Ohio State and any other party
that could be construed to cut off access to a supply, facility, or market needed for Plaintiff to
compete. Plaintiff has not alleged that he sought and was denied a trademark license from Ohio
State or that he was in any way precluded from exercising his own intellectual property rights by
Ohio States contracts. For example, Plaintiff has not alleged that Ohio State has prohibited him
from selling a Chris Spielman bobblehead figure that is clad in an announcers sportcoat or a
plain red sports shirt and slacks. Indeed, Plaintiff has not alleged that he sought and was denied
Second, there are no allegations that Ohio State entered into an agreement with any
competitor, let alone an agreement involving firms with a dominant market position. Absent
allegations of market poweror for that matter, of any horizontal relationship among the
defendantsPlaintiff cannot state a per se group boycott claim. See NYNEX Corp. v. Discon,
525 U.S. 128, 135 (1998) ([P]recedent limits the per se rule in the boycott context to cases
involving horizontal agreements among direct competitors.); Total Benefits, 552 F.3d at 435-36
(affirming dismissal of a group boycott claim when there neither is, nor can be, a horizontal
Third, Ohio State has a legitimate interest in protecting and benefiting from its
intellectual property rights, which is an obvious purpose of the contracts at issue. Plaintiff
cannot reasonably allege that this purpose is illegitimate. Cf. Image Tech. Servs. v. Eastman
Kodak Co., 125 F.3d 1195, 1219 (9th Cir. 1997) (indicating that, for purposes of evaluating an
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Because Plaintiff makes no allegations about any of the three Northwest Wholesale
factors and or that the alleged boycott involves the activities of horizontal competitors, his
conclusory allegations fall far short of stating a claim for a per se illegal group boycott.
Plaintiffs claims are also deficient under the rule of reason standard, which requires the
court to analyze the actual effect on competition in a relevant market to determine whether the
conduct unreasonably restrains trade. Total Benefits, 552 F.3d at 436. Critically, Plaintiff fails
to plead two crucial components of the rule of reason analysis: the relevant market and
anticompetitive effects. See id. at 437 (The Supreme Court requires plaintiffs to identify the
relevant product and geographic markets so the district court can assess what the area of
competition is, and whether the alleged unlawful acts have anticompetitive effects in that
market. (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 324 (1962))). These failures
The relevant market establishes the boundaries within which the competitive effects of
any alleged conduct are assessed and is composed of the set of products or services that are
reasonably interchangeable with the product or service that is the subject of the challenged
restraint. See Found. for Interior Design, 244 F.3d at 531. Identification of the relevant market
is foundational to any assessment under the rule of reason, and Plaintiffs failure to even suggest
an applicable market definition is an independent basis for dismissal. Total Benefits, 552 F.3d at
437 (upholding the dismissal of a Sherman Act claim for failure to identify a relevant market);
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Wagner v. Circle W Mastiffs, 732 F. Supp. 2d 792, 802 (S.D. Ohio 2010) (characterizing failure
Further, Plaintiff has not adequately alleged any market-wide anticompetitive effect,
which is another threshold pleading requirement for rule of reason claims. Plaintiffs only
alleged harm is financial damage to himself and the other putative class members, (see Am.
Compl. 49, 52, 67, 69), but [i]ndividual injury, without accompanying market-wide injury,
does not fall within the protections of the Sherman Act. Care Heating & Cooling, 427 F.3d at
1014; see also NHL Players Assn v. Plymouth Whalers Hockey Club, 325 F.3d 712, 720 (6th
Cir. 2003) (concluding that even if the plaintiff established that he was personally harmed by a
rule restricting hockey leagues from signing players of a certain age, he failed to show a
individual harm are facially insufficient to show an anticompetitive effect for purposes of the
rule of reason analysis, and that failure to allege an injury to competition dooms [his] Sherman
Act claim as a matter of law. Warrior Sports, Inc. v. NCAA, 623 F.3d 281, 286 (6th Cir. 2010).
To pursue his Sherman Act claims, Plaintiff must allege antitrust injury, which is injury
of the type the antitrust laws were intended to prevent and that flows from that which makes
defendants acts unlawful. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489
(1977). To qualify as an antitrust injury, the plaintiffs loss must stem[] from a competition-
reducing aspect or effect of the defendants behavior. NicSand, Inc. v. 3M Co. 507 F.3d 442,
449 (6th Cir. 2007) (quoting Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990)).
Such antitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms
fails to establish this requirement [the court] must dismiss it as a matter of law. Id. at 450.
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Plaintiffs allegation that he and putative class members receiv[ed] lower prices for use
of their images and were denied compensation for use of their names, images, and likeness,
(Am. Compl. 52, 67), fails to establish antitrust standing because claims of personal injury,
even if true, do not qualify as the type of injury the antitrust laws were intended to prevent. See
Wagner, 732 F. Supp. 2d at 801 ([A] plaintiff alleging antitrust injury must allege injury to a
relevant market, not just injury to the plaintiff.); see also CBC Cos. v. Equifax, Inc., 561 F.3d
569, 572 (6th Cir. 2009) (indicating that the plaintiff must state facts showing that the alleged
violation tended to reduce competition overall and that the plaintiffs injury was a consequence
of the resulting diminished competition). Moreover, Plaintiffs bare assertion that his claimed
injuries are of the type the antitrust laws were designed to prevent and flow from that which
makes Defendants conduct unlawful, (Am. Compl. 52, 67), is simply a recitation of the
applicable legal standard, and such naked allegations of antitrust injury are not enough to survive
a motion to dismiss. See Wagner, 732 F. Supp. 2d at 801; see also Elias v. Fed. Home Loan
Mortg. Corp., 581 F. Appx 461, 468 (6th Cir. 2014) (affirming dismissal for lack of antitrust
standing when plaintiff ha[d] not pleaded, let alone plausibly claimed under the Twombly
standard, that [defendants] actions harmed competition in the relevant market, as the Sherman
Act requires). Thus, for this additional reason, Plaintiffs antitrust claims must be dismissed.
Plaintiff also fails to plead the necessary elements of a Lanham Act claim. Plaintiff sets
forth the basis of his Lanham Act claim in paragraph 77 of the Amended Complaint, which
simply paraphrases 15 U.S.C. 1125(a)(1). That statute affords protection for infringement of
unregistered trademarks. See ETW Corp. v. Jireh Publg, Inc., 332 F. 3d 915, 921 (6th Cir.
2003) (Section 43(a) of the Lanham Act provides a federal cause of action for infringement of
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an unregistered trademark which affords such marks essentially the same protection as those that
are registered.). Plaintiffs claims under Section 1125(a) fail as a matter of law for two reasons.
First, Plaintiff lacks standing to sue Ohio State over his Lanham Act claim. In Lexmark
International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014), the
Supreme Court provided the framework for determining whether a plaintiff has standing to raise
a claim under 15 U.S.C. 1125(a), holding that a plaintiff invoking Section 1125(a) must show
that his claim falls within the zone of interests protected by that statute and that his injury was
proximately caused by the alleged violation. In this case, the Amended Complaint fails to meet
The Court in Lexmark held that a plaintiff suing under 1125(a) ordinarily must show
economic or reputational injury flows directly from the deception wrought by the defendant's
advertising; and that that occurs when deception of consumers causes them to withhold trade
from the plaintiff. Id. at 1382 (emphasis added); see also Caudill Seed & Warehouse Co. v.
Jarrow Formulas, 161 F. Supp. 3d 513, 533 (W.D. Ky. 2015) (summary judgment dismissing
Lanham Act claim for failure of evidence that defendants acts caused consumers to withhold
trade from plaintiff); Lundgren v. AmeriStar Credit Solutions, Inc., 40 F. Supp. 3d 543, 551
(W.D. Pa. 2014) (summary judgment dismissing Lanham Act claims for lack of evidence of
contends that Ohio States use of his image has caused consumers to withhold trade from him.
Indeed, Plaintiffs sole allegation of harm from the alleged violation of the statute is a conclusory
statement of unspecified injury claiming that [a]s a direct and proximate result of the wrongful
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conduct of Defendants, Co-Conspirators and Unnamed Defendants, Plaintiff and Class Members
have been damaged. (Am. Compl. at 92.) Since there is no allegation that consumers have
withheld trade from Plaintiff because of the alleged violation, he does not have standing to sue
Second, Plaintiffs Lanham Act Claim falls short of the factual detail needed to plead
plausibility as required by Iqbal and Twombly. The relevant portion of Section 1125(a) provides:
(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, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which
15 U.S.C. 1125(a). Consequently, to meet his burden under the statute, Plaintiff must show
that Ohio States conduct will cause a likelihood of confusion in the marketplace. See, e.g.,
Frisch's Rest., Inc. v. Shoney's Inc., 759 F.2d 1261, 1266 (6th Cir. 1985).
Far from pleading facts showing a plausible likelihood of confusion, Plaintiff simply
parrots the statutory language, alleging only that Visitors to Ohio Stadium, Value City Arena,
and the Woody Hayes Facility, and/or any other athletic venue on or about the Ohio State
University campus are likely confused, mistaken or deceived as to the affiliation, connection, or
association of Plaintiff and Class Members with Defendants, or the origin, sponsorship, or
limited to, HONDA and NIKE, services and/or products. (Am. Compl. at 91.)
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These conclusory trademark infringement allegations are exactly the type that the Sixth
Circuit found insufficient in Hensley Mfg. v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009).
There, the Sixth Circuit affirmed the dismissal of a trademark infringement complaint based on
the plaintiffs failure to meet the plausibility requirements of Iqbal and Twombly. The plaintiffs
Lanham Act claim centered on the defendants use of the name of the plaintiffs former owner in
an advertisement, based on the former owners license to the defendant of the design of a product
that competed with one of the plaintiffs products. Id. at 607-08. The court found that the
plaintiffs allegation that the use of the name of plaintiffs former owner in advertising creates
a strong likelihood of confusion in the marketplace as to the source of origin and sponsorship of
the goods of the Plaintiff and the Defendant was a conclusory and formulaic recitation of the
dismiss. Id. at 611; see also Oaklawn Jockey Club, Inc. v. Ky. Downs, LLC, No. 16-5582, 2017
U.S. App. LEXIS 7078, *11-12 (6th Cir. Apr. 19, 2017) (The amended complaint pleads no
facts from which to infer that Defendants are engaging in a trademark use of Plaintiffs
cause of action is insufficient to survive a motion to dismiss and thus the claim was properly
resolved on Defendants motion to dismiss. (citation and internal quotation marks omitted)).
Here, Plaintiff alleges no facts that would provide any indication of how or why
consumers would likely be confused about whether there is any affiliation, approval, or
sponsorship between Plaintiff, or any other Ohio State athletes, and Honda or Nike. The banners
attached as exhibits to the Amended Complaint show nothing more than photographs of Plaintiff
and other Ohio State athletes with Honda and Nikes names on them. None of the banners state
that the athletes drive Hondas, wear Nike clothes, are sponsored by those companies, or have any
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relationship whatsoever with them. Nothing in the Amended Complaint suggests anything other
than that people seeing the banners are likely to conclude that OSU chose to display banners
featuring several of its former athletes, and that the banners themselves are sponsored by Honda
and Nike. Consequently, Plaintiff has failed to adequately plead a likelihood of confusion in the
meeting the proximate cause requirement for actions under Section 1125(a) set forth in Lexmark,
Plaintiffs damages allegationsstating no more than that he and the other former OSU athletes
have been damaged from the alleged violation of that statutecome nowhere close to meeting
the Iqbal and Twombly plausibility requirement. Plaintiffs failure to sufficiently plead damages
The Amended Complaint also raises state law claims relating to the Ohio Deceptive
Trade Practices Act, improper publicity, and unjust enrichment. Plaintiff invokes this Courts
supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. 1367. (Am. Compl.
13.) Because Plaintiffs federal claims against Ohio State should be dismissed for failure to
state a claim as stated above, this case falls within the ambit of 28 U.S.C. 1367(c)(3), which
states that district courts may decline to exercise supplemental jurisdiction if the district court
has dismissed all claims over which it has original jurisdiction. Indeed, the Sixth Circuit
applies a strong presumption against the exercise of supplemental jurisdiction once federal
claims have been dismissedretaining residual jurisdiction only in cases where the interests of
judicial economy and the avoidance of multiplicity of litigation outweigh [its] concern over
needlessly deciding state law issues. Packard v. Farmers Ins. Co. of Columbus, 423 F. Appx
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580, 584 (6th Cir. 2011) (quoting Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir.
2006)). Plaintiff cannot claim any such judicial economy justifications here. This is particularly
true given that the Courts dismissal would come[] early in the proceedings, when the court has
not yet invested a great deal of time into resolution of the state claims. Musson Theatrical v.
Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996). This Court should therefore decline to
exercise jurisdiction over Plaintiffs state law claims, which Plaintiff will then be free to pursue
IV. CONCLUSION
For the foregoing reasons, this Court lacks subject-matter jurisdiction over all of
Plaintiffs claims against Ohio State by reason of Ohio States Eleventh Amendment sovereign
immunity, and those claims should be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(1). Plaintiffs Sherman Act and Lanham Act claims also should be dismissed for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6), and as a result this Court should
decline to exercise supplemental jurisdiction over Plaintiffs remaining state law claims.
1
Ohio State reserves the right to present additional arguments with respect to Plaintiffs state law claims after
threshold jurisdictional issues are addressed, such as the application of the statutory exemption from liability, under
Ohio Rev. Code 2741.09(A)(5)(b), for activities that are for the promotion of the institution of higher education and
its educational or institutional objectives.
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Respectfully submitted,
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CERTIFICATE OF SERVICE
Pursuant to Rule 5(b)(3) of the Federal Rules of Civil Procedure, I hereby certify that on
the 18th day of September, 2017, I electronically filed Defendant The Ohio State Universitys
Motion to Dismiss Plaintiffs First Amended Class Action Complaint with the Clerk of Court
using the CM/ECF system, which will send notification of such filing to all parties associated