Last Friday, United States District Judge Haywood Gilliam denied The Brandr Group, LLC’s (TBG) Motion for Temporary Restraining Order. The order serves as a major victory for EA Sports and paints a bleak path forward for TBG.
TBG is a marketing and licensing agency that has entered into collaboration agreements with over 50 Division I schools, including the University of North Carolina at Chapel Hill, North Carolina State University, and The Ohio State University. According to TBG, as a part of the collaboration agreements, partner schools grant TBG the exclusive right to “develop, implement, and manage the Group Licensing Program” for the school’s athletes. As a part of the program, TBG contracts directly with the athletes, assigning TBG the right to use the athlete’s name, image, and likeness (NIL) in group licensing deals (deals involving three or more athletes).
Rather than utilize TBG for licensing with its schools and athletes, EA Sports has partnered with OneTeam partners to facilitate licensing deals directly with athletes and universities. TBG’s temporary restraining order aims to halt EA Sports’ licensing activities.
To grant a temporary restraining order, TBG was required to prove, among other elements, (1) irreparable harm and (2) a likelihood of success. As Judge Gilliam asserted in his order, TBG did neither.
Judge Gilliam dispensed with TBG’s arguments regarding irreparable harm. As a basis for irreparable harm, TBG must prove that there is an immediate threatened injury. Judge Gilliam found that any injury lacked immediacy as EA Sports will not release the videogame until 2024. Similarly, Judge Gilliam found that any injury can be monetarily compensated. Thus, Judge Gilliam found that TBG cannot prove irreparable harm.
Despite finding that TBG failed to prove irreparable harm, Judge Gilliam went on to forecast TBG’s likelihood of success. Specifically, Judge Gilliam pointed to the agreements themselves, which dictate TBG’s group licensing program as co-branding an athlete’s NIL with a university’s intellectual property. Here, Judge Gilliam could not foresee a likelihood of success for TBG because EA Sports is contracting with EA Sports and individual athletes separately. Thus, EA Sports is not obtaining co-branding licenses.
Judge Gilliam’s ruling is a setback for TBG, painting a different picture than TBG’s Complaint. At the end of the day, EA Sports avoids pushing back the release date for the new video game.