Federal judge knocks out ex-heavyweight boxer’s legal claim

Monday, March 16, 2009

Former professional heavyweight boxer Floyd “Jumbo” Cummings — best known for holding “Smokin” Joe Frazier to a 10-round draw in 1981 — lost his latest legal bout recently when a federal judge rejected his $50-million lawsuit against ESPN Classic.

In June 2008, Cummings filed a lawsuit in a state court in Randolph County, Illinois, alleging that ESPN Classic — the arm of sports giant ESPN that airs past sporting events — violated his rights by re-broadcasting Cummings’ December 1981 fight against Frazier, the former heavyweight champion. Cummings contended that ESPN Classic violated his rights under the Illinois Right of Publicity Act by using his name for commercial purposes without permission. For its part, ESPN denied ever showing a replay of the 1981 bout.

Cummings learned to box in prison after being convicted of murder as a teenager in 1967. Upon his release, he began a professional boxing career in 1979 that began with 14 straight wins. When he faced Frazier in 1981, Cummings entered the ring with a record of 15-1. He last fought in 1983, losing consecutive bouts to future world heavyweight champions “Terrible” Tim Witherspoon and Frank Bruno. The next year he faced more legal problems, including an arrest for armed robbery in Michigan. In 2002, Cummings received a life sentence under the Illinois’ “three-strikes” law after being found guilty of armed robbery of a Chicago sandwich shop.

According to Cummings’ complaint, because of the alleged re-broadcast of the 1981 bout, “I was and am greatly injured, in that my personality has been violated by being exposed, exhibited and sold to the public; my name has been cheapened and made notorious; I have been subjected to the contempt, ridicule, and inquisitive nature of the general public to the injury of my personality and to the outrage of the finer sentiments of my nature and to the humiliation of my self-respect; my peace of mind has been disturbed and destroyed; my privacy has been invaded and my right to privacy violated.”

Earlier this month, U.S. District Judge Michael J. Reagan (the case was removed to federal court) granted ESPN’s motion to dismiss the lawsuit. Reagan noted in his March 9 opinion in Cummings v. ESPN Classic, Inc. that ESPN denied showing the broadcast in the fall of 2007, but that he “assumes as true” what Cummings alleged.

Even so, Judge Reagan granted ESPN’s motion to dismiss, because “the complaint does not allege a plausible theory of liability against ESPN.” The Illinois Right of Publicity Act contains several exceptions “designed to keep the Act from running afoul of the First Amendment to the United States Constitution, which … protects free speech in a variety of forms.”

Reagan pointed out that the Illinois law exempts the use of a person’s identity for non-commercial purposes, which includes “any news, public affairs, or sports broadcast.”

“Plainly, ESPN’s 2007 showing of the Cummings-Frazier fight would qualify as a ‘sports broadcast’ which the Act identifies as a type of non-commercial use,” Reagan said, adding that even though the “broadcasting of the fight may have caused Cummings to suffer embarrassment,” it did not violate Illinois law.