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Case: 2:17-cv-00612-MHW-KAJ Doc #: 14 Filed: 09/18/17 Page: 1 of 24 PAGEID #: 287

IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES C. SPIELMAN AKA CHRIS SPIELMAN, CASE NO.: 2:17-CV-00612


ON BEHALF OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED JUDGE: MICHAEL H. WATSON

PLAINTIFFS, MAGISTRATE JUDGE: KIMBERLY A. JOLSON

-VS- DEFENDANT THE OHIO STATE UNIVERSITYS


MOTION TO DISMISS PLAINTIFFS FIRST
IMG COLLEGE, LLC, ET AL., AMENDED CLASS ACTION COMPLAINT

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.

A memorandum in support of this motion is attached hereto.


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Respectfully submitted,

VORYS, SATER, SEYMOUR AND PEASE LLP

/s/ Robert N. Webner


Robert N. Webner (0029984)
James A. Wilson (0030704)
52 East Gay Street
Columbus, Ohio 43215
Phone: 614-464-6400
Fax: 614-464-6350
Email: rnwebner@vorys.com
jawilson@vorys.com

Michael J. Garvin (0025394)


Amanda M. Roe (0086288)
Aaron M. Williams (0090319)
200 Public Square, Suite 1400
Cleveland, Ohio 44114
Phone: 216-479-6100
Fax: 216-479-6060
Email: mjgarvin@vorys.com
amroe@vorys.com
amwilliams@vorys.com

Special Counsel to Attorney General


Mike DeWine

Attorneys for Defendant


The Ohio State University
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MEMORANDUM IN SUPPORT OF MOTION TO DISMISS


OF DEFENDANT THE OHIO STATE UNIVERSITY

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

identified no injury to competition as a whole, and he therefore lacks antitrust standing. As to

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

must be dismissed under Rule 12(b)(6).

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

Ohio. (Am. Compl. 17.)

III. ARGUMENT

A. Plaintiffs Claims in This Court Against Ohio State Are Barred by


Sovereign Immunity and Must Be Dismissed Under Rule 12(b)(1)

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

Auth., 895 F.2d 266, 269 (6th Cir. 1990))).

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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.

1. Congress Did Not Abrogate State Sovereign Immunity When It


Enacted the Sherman Act or the Lanham Act

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.

There is no unequivocal expression of intent to abrogate Eleventh Amendment sovereign

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

instrumentalities are barred by Eleventh Amendment sovereign immunity. See Mirch v.

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

antitrust suits directed at the state itself or one of its instrumentalities.).

There also is no abrogation of sovereign immunity in the Lanham Act. In Florida

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).

2. The State of Ohio Has Not Waived Its Eleventh Amendment


Immunity

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.

1. Plaintiffs Sherman Act Claims Must Be Dismissed

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

horizontal competitors, or the anticompetitive effects of any particular provision within a

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.

a. Ohio States Contracts Do Not Meet the Definition of an Illegal


Price Fix or Group Boycott

Case law under the Sherman Act generally analyzes challenged activity as involving

either horizontal or vertical restraints. Horizontal restraints involve an agreement between

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

people is a potential contract, combination . . . , or conspiracy, in restraint of trade within the

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

dismissal of the complaint on a defendants 12(b)(6) motion.).

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

a firm or firms to disadvantage competitors by either directly denying or persuading or coercing

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

exclusive vertical agreements with other providers).

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.

b. Plaintiff Has Not Made Allegations that Support a Finding of


Illegality Under Either Per Se or Rule of Reason Review

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

manifestly anticompetitive conduct, such as horizontal agreements among competitors to fix

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

U.S. at 882; Care Heating & Cooling, 427 F.3d at 1013.

i. Vertical Agreements Between Ohio State and Nike, As a Matter of


Federal Law, Cannot Support a Per Se Illegal Price-Fixing Claim.

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.

ii. The Amended Complaint Fails To Allege Facts Supporting the


Claim that Ohio State Has Engaged in a Per Se Illegal Boycott.

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.

Plaintiff pleaded none of these points.

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

the ability to use his name or image.

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

relationship among the [defendants]).

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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exclusionary conduct claim under 2, protection of intellectual property rights is entitled to a

presumption of procompetitive legitimacy).

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.

iii. Plaintiffs Failure To Plead a Relevant Market or Anticompetitive


Effects Dooms His Rule of Reason Claims.

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

are fatal to Plaintiffs rule of reason claims.

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

to allege a relevant market as a fatal deficiency).

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

significant anticompetitive effect on a relevant market). Thus, Plaintiffs allegations of

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).

c. Plaintiff Has Not Pleaded a Cognizable Antitrust Injury

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.

C. Plaintiffs Lanham Act Claim 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.

1. Plaintiffs Lanham Act Claim Must Be Dismissed Because He Does


Not Have Standing to Sue

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 proximate cause requirement established in Lexmark.

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

loss or decrease in sales (citing Lexmark 134 S. Ct. at 1390)).

There is no allegation, or even a suggestion, in the Amended Complaint that Plaintiff

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

the Defendants for violating 15 U.S.C. 1125(a).

2. Plaintiffs Conclusory Lanham Act Allegations Do Not Meet the


Pleading Requirements of Twombly and Iqbal

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

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the


affiliation, connection, or association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person . . . shall be liable in a civil action by any person who
believes that he or she is or is likely to be damaged by such act.

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

approval of Defendants and/or Co-Conspirators commercial activities, including, but not

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

elements of a trademark infringement cause of action [that] is insufficient to survive a motion to

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

trademarks. A conclusory and formulaic recitation of the elements of a trademark infringement

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

marketplace and Plaintiffs Lanham Act Claim must be dismissed.

In addition, as explained above with respect to Plaintiffs failure to plead damages

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

is thus an independent basis on which to dismiss Plaintiffs Lanham Act Claim.

D. This Court Should Decline to Exercise Supplemental Jurisdiction over


Plaintiffs Remaining State Law Claims

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

in the Court of Claims if he chooses to do so.1

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,

VORYS, SATER, SEYMOUR AND PEASE LLP

/s/ Robert N. Webner


Robert N. Webner (0029984)
James A. Wilson (0030704)
52 East Gay Street
Columbus, Ohio 43215
Phone: 614-464-6400
Fax: 614-464-6350
Email: rnwebner@vorys.com
jawilson@vorys.com

Michael J. Garvin (0025394)


Amanda M. Roe (0086288)
Aaron M. Williams (0090319)
200 Public Square, Suite 1400
Cleveland, Ohio 44114
Phone: 216-479-6100
Fax: 216-479-6060
Email: mjgarvin@vorys.com
amroe@vorys.com
amwilliams@vorys.com

Special Counsel to Attorney General


Mike DeWine

Attorneys for Defendant


The Ohio State University

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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

with this case.

/s/ Robert N. Webner


Robert N. Webner (0029984)
52 East Gay Street
Columbus, Ohio 43215
Phone: 614-464-6400
Fax: 614-464-6350
Email: rnwebner@vorys.com

Special Counsel to Attorney General


Mike DeWine

One of the Attorneys for Defendant


The Ohio State University

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