A new putative class action lawsuit filed in federal court by Mario Chalmers and more than a dozen other former college basketball stars accuses the NCAA and its media partner Turner Sports Interactive (TSI) of unfairly profiting from the “continuing use” of the athletes’ NIL.
The plaintiffs are represented by some of the same lawyers who last month filed suit on behalf of former Utah Jazz forward Thurl Bailey and nine teammates from North Carolina State’s 1983 national title team. Bailey et al. v. NCAA & CLC similarly accuses the NCAA of misappropriating their publicity rights through unauthorized broadcasts and videos featuring the use of players NIL and publicity rights from their famed tournament run. The “Cardiac Pack” lawsuit, however, was filed in North Carolina state court, where the former NC State players hope to enjoy a home-court advantage in front of a jury.
Meanwhile, Chalmers et al. v. NCAA et al. was filed Monday in the U.S. District Court for the Southern District of New York, and seeks to represent a class of athletes who played college sports prior to June 15, 2016, and whose NIL “has been used in any video posted by or licensed by the NCAA, the Conferences, TSI or their agents….”
The proposed class period corresponds to the understood cutoff date for class members in the prospective House v. NCAA settlement, who would have had to be college athletes since June 15, 2016.
Effectively, the new lawsuit attempts to provide a vehicle for at least a subsection of former NCAA athletes who are time-barred from receiving House settlement money to seek recompense for the appropriation of their NIL that occurred within the statute of limitations.
“For many decades, the NCAA has operated an illegal price fixing scheme to prevent student athletes from receiving any compensation for their publicity rights, while exploiting those same rights to earn billions for the NCAA and its conspirators,” the plaintiffs’ attorneys told Sportico in an emailed statement. “The anticipated settlement in the House case provides compensation for college athletes who competed since mid-2016. But the NCAA’s illegal conduct harmed and continues to harm many more former student athletes.”
For example, the lawsuit highlights the buzzer-beating, game-tying 3-point shot Chalmers scored for Kansas in its 2008 national championship game against Memphis, which sent the contest into overtime where the Jayhawks ultimately prevailed. As the complaint notes, clips of “Mario’s Miracle” have since been “replayed countless time for commercial purposes” by the defendants on live television broadcasts, advertisements and in various online videos prominently posted on the NCAA’s website.
The lawsuit cites Bylaw 2.9 of the NCAA constitution, which stipulates as the principle of amateurism that “student-athletes should be protected from exploitation by professional and commercial enterprises.”
However, according to the complaint, “(T)he NCAA has exploited plaintiffs, as it has other former student-athletes, for more than 40 years, first by requiring them as young athletes to cede their NIL rights to the NCAA and then by appropriating those rights, without consent or compensation, long after they had graduated.”
The Chalmers plaintiffs seek actual and treble damages as well as a permanent injunction that would enjoin the NCAA “and any person acting through it from relying on any unenforceable assignment of publicity rights.”
The NCAA, which did not respond to a written request for comment, is armed with a set of defenses that could prove persuasive as the governing body and its co-defendants seek the case’s dismissal.
Probable defenses include contesting the statute of limitations argument offered by the plaintiffs. In addition, the NCAA could cite First Amendment protections for use of newsworthy events, including games and the associated publicity of those games. Players could rebut that defense in several ways, including by stressing that pro athletes are routinely compensated for the use of their NIL in broadcasts and video. However, at least one federal appellate court, the U.S. Court of Appeals for the Sixth Circuit, has rejected players’ claims regarding use of their names and images on televised broadcasts (for more, see (Sharing Broadcast and Streaming Revenues with College Athletes).
The NCAA also could recast traditional defenses, such as that players accept amateurism rules as conditions of eligibility—including with respect to use of their publicity. That line of defense failed in O’Bannon v. NCAA and NCAA v. Alston, but those cases–and especially Alston, which involved education-related expenses–concerned different sets of issues.
