CBS strikes back in suit about college athletes' photos
A day after a federal judge made public her denial of CBS Interactive's motion to dismiss a proposed class-action suit concerning the marketing and sale of college athletes' photographs through school athletics websites, the company struck back on Tuesday with a multi-pronged filing that could significantly complicate the case.
CBS Interactive didn't just stop at answering the plaintiffs' allegations and offering 23 defenses against them. It added a counterclaim against two smaller companies that were the case's original defendants but have reached a proposed settlement. The counterclaim also seeks to have the plaintiffs' lawsuit dismissed.
The smaller companies' proposed settlement with plaintiffs led by former Texas-El Paso football player Yahchaaroah Lightbourne includes a payment of $4.25 million. In addition, it gives the plaintiffs the rights to a claim the smaller companies say they could have pursued against CBS Interactive because CBS Interactive allegedly failed to fulfill an obligation it purportedly had to secure and defend the two smaller companies against this type of a legal action.
In Thursday's filing, however, CBS Interactive alleged that the smaller companies breached a contract with CBS Interactive and that they are responsible for indemnifying CBS Interactive in this type of case, not the other way around.
The suit initially was filed against Printroom, Inc., now known as Professional Photo Storefronts, Inc., and Brand Affinity Technologies, Inc.
According to the suit, CBS Interactive – which provides website management and e-commerce services for college athletics departments -- hired Printroom to help it and the schools sell athletes' photos, as well as associated merchandise like frames and calendars. Printroom subsequently sold this part of its business to Brand Affinity Technologies; Printroom then changed its name to Professional Photo Storefronts.
Lawyers for CBS Interactive wrote that its agreement with Printroom/Brand Affinity Technologies (BAT) required those companies to obtain the various consents needed for the photo and merchandise sales to occur legally. In addition, the lawyers wrote, the agreement prevented Printroom/BAT from being able to "settle a claim that results in any liability for CBS without first obtaining CBS' prior written consent," which CBS Interactive says it did not provide.
CBS Interactive said it is not only seeking dismissal of the plaintiffs' case – as well as its costs and legal fees from the plaintiffs' lawyers – but also unspecified damages from Printroom/BAT and Professional Photo Storefronts for breach of contract.
However, CBS Interactive's lawyers wrote, if it is found liable to the plaintiffs, "such finding would be as a result of action by Printroom, Professional Photo Storefronts, and/or BAT." As such, CBS Interactive is entitled to coverage from those companies "for any losses or damages that (it) suffers as a result of this action."