Calvin McMillan Antitrust Claim Against NFL Dismissed

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April 17, 2026 Get Citation Alerts Download PDF Add Note

Calvin McMillan v. National Football League and Wisconsin Department of Revenue

District Court, E.D. Wisconsin

• Citations: None known
• Docket Number: 1:26-cv-00594

• Precedential Status: Unknown Status

• Opinion

• Authorities (14)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.7K)

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Trial Court Document

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CALVIN MCMILLAN,
Plaintiff,

v. Case No. 26-CV-594

NATIONAL FOOTBALL LEAGUE and
WISCONSIN DEPARTMENT OF REVENUE,
Defendants.

DECISION AND ORDER

Currently pending before the court is Calvin McMillan’s Request to Proceed in
District Court without Prepaying the Filing Fee.
Having reviewed McMillan’s request, the court concludes that he lacks the
financial resources to prepay the fees and costs associated with this action. Therefore,
his Request to Proceed in District Court without Prepaying the Filing Fee will be
granted.
However, because the court is granting the plaintiff’s Request to Proceed in
District Court without Prepaying the Filing Fee, it must determine whether the
complaint is legally sufficient to proceed. 28 U.S.C. § 1915.
Congress sought to ensure that no citizen would be denied the opportunity to
commence a civil action in any court of the United States solely due to poverty. Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Adkins v. E. I. DuPont de Nemours &
Co., 335 U.S. 331, 342 (1948)). However, Congress also recognized that “a litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant,
lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To balance

these competing concerns, before the court can allow a plaintiff to proceed in forma
pauperis it must determine that the case neither (1) is frivolous or malicious, (2) fails
to state a claim upon which relief may be granted, nor (3) seeks monetary relief
against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2). Thus,
although “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), a pro se

complaint must meet these minimal standards before the court shall grant a plaintiff
leave to proceed in forma pauperis.
A claim is legally frivolous when it lacks an arguable basis either in law or in
fact. Denton, 504 U.S. at 31; Neitzke, 490 U.S. at 325. Although factual allegations
must be weighed in favor of the plaintiff, that does not mean that the court is required
to accept without question the truth of the plaintiff's allegations. Denton, [504 U.S. at

32](https://www.courtlistener.com/opinion/112729/denton-v-hernandez/#32). Thus, a court may dismiss a claim as frivolous if it is “clearly baseless,” “fanciful,”
“fantastic,” “delusional,” “irrational,” “wholly incredible,” or “based on an
indisputably meritless legal theory.” Id. at 32-33. A court may not dismiss a claim as
frivolous simply because “the plaintiff’s allegations are unlikely.” Id. A claim might not be frivolous or malicious but nonetheless fail to state a claim
upon which relief may be granted and, therefore, be subject to dismissal. In
determining whether a plaintiff has stated a claim, under 28 U.S.C. § 1915 (e)(2)(B)(ii)
the court applies the same well-established standards applicable to a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). DeWalt v. Carter, [224

F.3d 607, 611](https://www.courtlistener.com/opinion/770154/anthony-dewalt-v-lamark-carter-correctional-officer-young-carol-biester/#611) (7th Cir. 2000), abrogated on other grounds by Savory v. Cannon, 947
F.3d 409 (7th Cir. 2020).
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.”
Although the allegations in a complaint need not be detailed, a complaint “demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A
pleading that offers labels and conclusions or a formulaic recitation of the elements

of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks, citation, and brackets omitted). The complaint
must be sufficiently detailed “to give the defendant fair notice of what the claim is
and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (quotation marks and

ellipses omitted).
If the complaint contains well-pleaded non-frivolous factual allegations, the
court should assume the veracity of those allegations and “then determine whether
they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
“Determining whether a complaint states a plausible claim for relief will … be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. With the standards set forth in 28 U.S.C. § 1915 (e)(2) in mind, the court turns

to the allegations raised in McMillan’s complaint, which the court accepts as true at
this stage.
McMillan alleges that he wrote two songs about the Green Bay Packers
entitled “Pack Attack” (or sometimes he refers to it as “The Pack is Back, It’s a Pack
Attack” (ECF No. 1-2 at 33)) and “Go Pack Go” (which he sometimes refers to as “The
Funky Packers” (ECF No. 1-2 at 6, 9)). (ECF No. 1, ¶¶ 43, 47, 80.) The lyrics of Pack
Attack included the phrase “the pack is back.”

“Pack attack” and “go pack go” were used in conjunction with lottery tickets
issued by the Wisconsin Department of Revenue and featuring the Green Bay
Packers’ logo. (ECF No. 1-2 at 9.) “Pack is back” has been used on t-shirts (ECF No.
1-2 at 10) and in conjunction with packs of trading cards (ECF No. 1-2 at 13), but
McMillan does not allege that those products were produced by either defendant.
McMillan argues that the National Football League (NFL) unlawfully monopolizes

the use of “professional football content” and the Wisconsin Department of Revenue
likewise unlawfully monopolizes the sale of lottery tickets. As a result, he was
prevented from offering his own lottery tickets using the Green Bay Packers logo.
McMillan has failed to state a plausible antitrust claim. At this stage, the court
accepts as true McMillan’s allegation that it is the NFL rather than an individual
team (e.g., the Packers) that controls the relevant licensing. And while consolidated
licensing agreements can have antitrust implications, see Am. Needle, Inc. v. NFL, 560 U.S. 183 (2010), McMillan has failed to plausibly allege that such a scheme is at
play here. Rather, McMillan’s claim appears focused on his allegation that the NFL

licensed the use of the Green Bay Packers’ name and logo exclusively to the Wisconsin
Department of Revenue for use in a lottery game. Thus, this arrangement had the
effect of precluding McMillan from offering his own lottery tickets using the Green
Bay Packers’ name and logo (a logo that he believes the NFL unlawfully restricts).
McMillan’s allegations raise significant questions of standing and specifically
whether his notion of a Packers lottery was more than a mere idea such that he has
plausibly alleged a concrete injury. But setting that hurdle aside, his allegations do

not present a matter of antitrust law but rather intellectual property and specifically
trademark law.
Trademark holders are explicitly entitled to restrict the use of their marks.
See, e.g., 15 U.S.C. §§ 1114; 1125. This is a bedrock principle of trademark law. See
B&B Hardware, Inc. v. Hargis Indus., 575 U.S. 138, 142 (2015). A trademark holder
can largely license (or not license) its mark as it wishes. See 15 U.S.C. §§ 1055; 1127.

Licensing to one entity and not another is not anti-competitive but rather an integral
part of protecting and capitalizing the value of a mark. In fact, restricting licensing
is integral to maintaining the mark. See Eva's Bridal Ltd. v. Halanick Enters., Inc., 639 F.3d 788, 789 (7th Cir. 2011); 2 McCarthy on Trademarks and Unfair
Competition § 18:48 (5th ed.). That the NFL has exclusively licensed the use of the
Green Bay Packer name and logo to the Wisconsin Department of Revenue for use in
conjunction with a lottery game does not, as a matter of law, plausibly violate 15
U.S.C. § 2.
McMillan’s claim against the Wisconsin Department of Revenue falls more

neatly into the framework of an antitrust claim in that it involves a monopolist
explicitly prohibiting the entry of competitors into a market. No one other that the
State of Wisconsin may operate a lottery in Wisconsin. However, states are immune
from such antitrust claims. Parker v. Brown, 317 U.S. 341, 352, (1943). Thus, a state
refusing to allow competitors to its state-run lottery does not violate the Sherman
Antitrust Act.
That leaves what McMillan characterizes as a copyright claim over his song

lyrics. His claim focuses specifically on the use of the phrases “pack attack,” “pack is
back,” and “go pack go.” As the court understands his claim, because these phrases
were the titles or lyrics of his songs, any use of these phrases violates his copyright
of his songs.
As a preliminary matter, before a party may sue to enforce a copyright, the
work must be registered with the Copyright Office. 17 U.S.C. § 411 (a). McMillan

alleges that these works “are registered or intended to be registered with the United
States Copyright Office.” (ECF No. 1, ¶ 45.) He later alleges that, although he
submitted a copyright application, he subsequently could find no record of it. (ECF
No. 1-1 at 2.) Instead, he provides proof of a separate musical group, the Sax Pack,
having registered a different sound recording titled “Pack is back.”1 (ECF No. 1-2 at

1 A Google search reveals that a smooth jazz trio of saxophonists calling themselves the Sax Pack
released an album with the title song “The Pack is Back” in 2009. See
28.) The scope of a copyright is particularly important with respect to a song because,
depending on the circumstances, the music, lyrics, and the performance of a song
could constitute three separate works, and the registration of one does not necessarily

protect another.
But again looking past that apparent defect, McMillan has failed to state a
plausible copyright claim because “pack is back,” “go pack go,” or “pack attack” are
not copyrightable. No one can copyright short phrases such as names, titles or
slogans. See 37 C.F.R. § 202.1 (a); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276,
285-86 (3d Cir. 2004). Nor can titles of songs be copyrighted. Eastland Music Grp.,
LLC v. Lionsgate Entm't, Inc., 707 F.3d 869, 872 (7th Cir. 2013). Thus, McMillan’s

use of these phrases in the title or lyrics of a song does not provide him with a
copyright over all subsequent uses of these phrases. Consequently, McMillan has
failed to plead a plausible violation of federal copyright law.
IT IS THEREFORE ORDERED that the plaintiff’s Request to Proceed in
District Court without Prepaying the Filing Fee (ECF No. 2) is granted.
IT IS FURTHER ORDERED that the plaintiff’s complaint and this action

are dismissed with prejudice. The Clerk shall enter judgment accordingly.
Dated at Green Bay, Wisconsin this 17th day of April, 2026.

s/ Byron B. Conway
BYRON B. CONWAY
United States District Judge

https://en.wikipedia.org/wiki/The_Sax_Pack. It has no apparent relationship with the Green Bay
Packers.