First it was four former Michigan football stars. Then it was Reggie Bush. Now it’s Terrelle Pryor’s turn to sue the NCAA for denying NIL opportunities while he played years ago.
Pryor, a former Ohio State quarterback whom the NCAA suspended in 2010 for his role in the “tattoogate” scandal involving free tattoos, filed a complaint Friday in an Ohio federal district court against the NCAA, Learfield, Ohio State and the Big Ten Conference. He seeks for his case to be certified as a class action on behalf of all former Ohio State athletes who competed before the NCAA allowed NIL in 2021. The complaint says the putative class action is worth more than $5 million.
Pryor’s legal arguments are extremely similar to those raised by Denard Robinson, Braylon Edwards, Michael Martin, Shawn Crable and Bush. They owe much of their legal theories to former UCLA basketball star Ed O’Bannon, who in 2009 successfully sued the NCAA and Electronic Arts over the denial of NIL payments regarding the likenesses of college athletes in video games used without their permission.
Through attorney Kevin M. Pearl and other members of his legal team, Pryor accuses the defendants of conspiring to violate antitrust law and unjustly enriching themselves. The defendants are depicted as negotiating lucrative TV, merchandise, apparel and other contracts with monetary values predicated on the high marketability of college stars. They did so while the NCAA rendered college players ineligible if they earned money through their right of publicity–which forbids the commercial use of another person’s identity without their consent–such as by signing endorsement deals or otherwise being paid for their NIL.
Pryor arguably has the most compelling argument that he was harmed by the old system. As his complaint notes, he was Big Ten Freshman of the Year in 2008 and he led the Buckeyes to the Big Ten championship in 2009. A year later Pryor was the MVP of the Rose Bowl. Then, the NCAA intervened in his career trajectory.
Pryor’s supposed “transgressions” seem almost comical in a modern era where players of his caliber land seven-figure deals to attend colleges and endorse products and services. In 2011, the NCAA suspended Pryor and four teammates for receiving improper benefits. The group had obtained free tattoos in exchange for signing autographs at a tattoo parlor, and Pryor had sold memorabilia. Ohio State vacated 12 wins and a Sugar Bowl championship.
Instead of serving his suspension, Pryor bolted for the 2011 NFL supplemental draft where the Raiders picked him in the third round. But before Pryor could join the Raiders as a rookie, the NFL suspended him for five games (even though he had done nothing wrong while in the NFL) on grounds Pryor “undermined the integrity” of “draft eligible rules.” Pryor, now 35, went on to play for five NFL teams over seven seasons, his most successful stretch coming after a transition from quarterback to wide receiver.
Like the lawsuits brought by the Michigan players and Bush, Pryor’s case will face hurdles. The most obvious is that Pryor is suing many years after he played college football, and long after the applicable statute of limitations to sue have expired.
Pryor, like Bush, anticipates this defense by insisting that the alleged harms are continuing and thus not time barred. He argues that the NCAA “hosts videos” on its website and YouTube that depict Pryor and other players in his class. These videos “can only be viewed after watching a commercial advertisement from which the NCAA profits,” the complaint stresses. Bush’s attorneys also point out that use of his and other ex-Buckeyes players’ NIL continues in “streaming game films, stock footage, imagery for commercial or editorial use, replay of classic games, posters, photographs and other merchandise.”
Another likely defense is that Pryor accepted the rules as a condition of his eligibility and scholarship. Although the NCAA’s attempts to use amateurism as a defense to antitrust claims has come under fire, it remains in the NCAA’s arsenal and will likely surface when the NCAA motions to dismiss these types of lawsuits.
One concern for the NCAA is that they now face essentially the same lawsuit in three federal districts, and there’s no telling how many former college stars will file similar lawsuits in other districts. The litigation could eventually be consolidated in one forum, which would avert the possibility that courts reach conflicting decisions and relieve the NCAA of having to incur heavy legal fees playing defense across the country. This has happened before in sports litigation: More than 300 lawsuits brought by retired players against the NFL over concussions and long-term neurological ailments were eventually consolidated.
Pryor v. NCAA et al. has been assigned to U.S. District Judge James L. Graham and U.S. Magistrate Judge Elizabeth Preston Deavers.
