The NCAA, conferences and Turner Sports contend an antitrust lawsuit brought by Mario Chalmers and 15 other former college basketball players over the use of their NIL in broadcasts is barred by the passage of time and the limitations of law.
The defendants’ arguments are detailed in a motion to dismiss filed last Friday in the Southern District of New York and authored by Rakesh N. Kilaru and more than two dozen other attorneys. Chalmers, who starred for the Kansas Jayhawks before playing nine years in the NBA, is leading a group of athletes who played for the 1997, 2008, 2011 and 2014 NCAA championship teams. They sued in July, a month after former Utah Jazz forward Thurl Bailey and nine teammates from North Carolina State’s 1983 championship team started a similar lawsuit in North Carolina.
The plaintiffs’ basic legal theory is that the NCAA, six conferences (ACC, Big East, Big Ten, Big 12, Pac-12 and SEC) and broadcast partner Turner Sports Interactive have illegally conspired in violation of antitrust law to use their NIL without paying royalties. The players’ complaint details videos “prominently placed on NCAA.com” and on multiple YouTube channels. These videos, which feature memorable moments from the past, generate advertising revenue, publicity and other value to the defendants.
The defendants raise several counterarguments, starting with the assertion that the claims are time-barred. Antitrust claims normally have a four-year statute of limitations. The players in Chalmers’ lawsuit appeared in games long before 2020, in some cases, during the last century. Although the plaintiffs assert the violations, which include online videos, are continuing to the present day, the defendants charge they played too long ago to bring a meritorious claim.
Another defense is that the claims have already been litigated and are thus barred by res judicata and collateral estoppel. Those legal principles dictate that once legal claims and issues have been resolved in court, they’re over and can’t appear in future cases. The defendants similarly point to the players being part of class action settlements that led to releases of claims against the defendants. If the defendants succeed in making that point, the players would have contractually waived claims by virtue of settlements.
To advance those points, the defendants say the players were represented in antitrust litigations led by Ed O’Bannon, Sam Keller and Shawne Alston. As the NCAA and co-defendants see it, the eligibility of Alston’s group for accompanying remedies was already determined through those litigations and settlements.
The defendants also stress case precedent (albeit in some instances from other federal circuits and thus not binding on Chalmers’ case in the Southern District of New York) to refute the possibility that Chalmers could suffer an antitrust injury when his NIL was used in sports broadcasts. The defendants stress Marshall et. al v. ESPN et al. (2016), where the U.S. Court of Appeals for the Sixth Circuit rejected a lawsuit brought by college football players who demanded compensation for TV appearances. The court reasoned that if the players could demand payment for appearing in games, so too could referees, coaches, cheerleaders, band members, medical personnel and even spectators, an arrangement that would make it practically impossible to broadcast games (for more on that case, see my recent law review article in the Harvard Journal of Sports and Entertainment Law).
Further, the defendants cite judicial decisions and state statutes to insist that the right to license a sporting event lies not with athletes, coaches or cheerleaders and others who appear but with the promoter or producer of the event. “A right of publicity,” the motion to dismiss maintains, “does not arise when a person simply appears in public or in a video taken in a public setting.”
The defendants acknowledge the players have a favorable ruling on their side: O’Bannon v. NCAA. As the defendants concede, U.S. District Judge Claudia Wilken found there could be a right of publicity in a broadcast. But the defendants maintain “that ruling is inconsistent with the vast weight of precedent cited [in the memorandum],” and they urge U.S. District Court Judge Paul A. Engelmayer to “follow the prevailing judicial consensus, not O’Bannon.”
Attorneys for Chalmers will have the opportunity to counter the defendants’ motion.
The Chalmers and Bailey cases are occurring while the NCAA is being sued by Terrelle Pryor, Reggie Bush and former Michigan football stars in separate cases over unpaid NIL.
These lawsuits are a reminder that even if the NCAA’s settlement to resolve the House, Carter and Hubbard antitrust cases gains final approval and withstands potential challenges, there’s no end in sight for the NCAA as a defendant.
