Is “Ballers” Throwing the NFL a Curve?

I have not yet watched the new HBO series “Ballers.”    It stars Dwayne “The Rock” Johnson as a former Miami Dolphin turned financial planner.  It’s getting good buzz.  

But I am ostensibly a legal blogger, not a television critic.  And so my interest in the show has more to do with HBO’s decision to use actual NFL logos without the NFL’s permission.  I’m not sure if this is literally unprecedented, but it is at least unusual.   Think about some famous football movies like  Any Given Sunday or The Replacements.  What do they have in common?  Fake teams.  No actual NFL logos.   

That’s not a coincidence.  The NFL traditionally has policed its trademark rights with an aggressiveness that would make Gino Atkins jealous.   And I suspect if Oliver Stone had asked for the NFL’s permission to use its logos in Any Given Sunday, the NFL likely would have required him to tone it down (which probably would have been good advice – is there a more pretentious filmmaker than Stone?).  And I suspect Stone didn’t want the hassle.  Same with The Replacements I suspect.  And so the choice seemed to be, get the NFL’s blessing or create fictional teams.  

HBO’s decision suggests there’s a third option.  But two questions arise immediately in my view – will HBO get sued and who will win?  This piece from Forbes suggests HBO would come out on top.   Given that Ballers is an expressive work and uses the NFL logos as background, there’s a good chance the use wouldn’t be deemed “in commerce” (a requirement for a trademark infringement suit), and in any event, the First Amendment may preclude the suit.   

And so the third question may be, will the NFL file suit?  Up till now, the NFL has pretty much gotten its way merely by threatening suit.  If it files and loses, that threat may become pretty empty.  It’s the same reason play action passes don’t work so well on third and long.  No one takes the run seriously in that situation.   

And a loss in a suit against Ballers might put at risk the NFL’s “Super Bowl” trademark.  Remember how advertisers who aren’t official NFL sponsors tie themselves in knots not to say “Super Bowl” in any advertisements leading up to the game?  That’s because the NFL owns the Super Bowl trademark. And it holds it hostage.  If an advertiser wants to use the term in an ad, it has to pay the NFL for the right.  But not everyone is convinced that the NFL’s position is correct.  And if a loss in a suit against HBO emboldens some advertiser to take that issue on, the consequences for the NFL could be the equivalent of a sack.   

So it’s possible the league will punt on this one.  Either that or Roger Goodell is just afraid of The Rock.   Which I totally get.