ESPN wants $50 million case over 'Smokin' Joe' fight dismissed

Steve Gonzalez Oct. 16, 2008, 7:14am

Smokin' Joe Frazier

Floyd "Jumbo" Cummings (IL DOC)

A lawsuit filed against ESPN Classic for allegedly televising Joe Frazier's last fight without permission from the famous boxer's infamous opponent, has been removed to federal court.

Floyd "Jumbo" Cummings, serving a life sentence for armed robbery, sued the network on June 4 in an Illinois state court. He claims a telecast of the fight that aired in August and September 2007 "exploited his name, identity and personality."

Cummings, who is incarcerated at the Menard Correctional Center, is seeking a judgment of $50 million for actual damages, plus exemplary damages in "an amount amply sufficient to prevent Defendant and others from commissions of such unwarranted invasions of privacy in the future."

Menard is located in Randolph County, Illinois, where Cummings filed the suit pro se.

ESPN lawyer Joseph Martineau of Belleville argued for removal because the amount in controversy is more than $75,000 and the complaint has complete diversity of citizenship.

Cummings claims ESPN violated the Right of Publicity Act when it used his name and identity for commercial purposes.

"I have been subjected to the contempt, ridicule, and inquisitive notice 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; I being a private person and having an individual personality, has thus been made notorious and conspicuous to the public having been singled out for and identified to public notice and attention, which is utterly obnoxious to me; and I have been caused to suffer great mental pain and personal injury," Cummings' complaint states.

In addition to removing the suit, ESPN filed a motion to dismiss arguing it did not re-broadcast the Cummings-Frazier fight of December 1981.

ESPN argues that even if it did broadcast the fight, as a matter of law, any broadcast of any sporting event falls under the enumerated exception in the Right of Publicity Act.

ESPN asks that the case be dismissed with prejudice with Cummings to pay defense costs.

The case has been assigned to District Judge Michael Reagan.

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