‘Cardiac Pack’ members defend lawsuit against NCAA’s arguments

Members of North Carolina State University’s 1983 national championship men’s basketball team are defending their lawsuit against a motion to dismiss from the NCAA. The 12 plaintiffs from the “Cardiac Pack” accuse the collegiate sports group of profiting illegally for decades from players’ names, images, and likenesses.

“This year, and each year for the past four decades, the NCAA misappropriated images of Plaintiffs to promote its own products and those of its co-conspirators, generating massive financial gain for itself. The NCAA now claims that it cannot be held to account for that conduct. None of its arguments hold water,” wrote lawyers for the former players in a court document filed Wednesday.

“The NCAA claims that it is immune from suit because it has been unlawfully appropriating Plaintiffs’ images, and otherwise violating their legal rights, for a long time,” the filing continued. “But the statute of limitations does not protect defendants who continue to engage in wrongful behavior within the statutory period simply because they also engaged in wrongful conduct before the statutory period. Nor does the statute of limitations give comfort to defendants that have, as the NCAA has here, engaged in an ongoing conspiracy and committed ongoing acts in furtherance of that conspiracy within the statutory period.”

“Plaintiffs here seek compensation for the NCAA’s unauthorized, uncompensated, and ongoing use of their names, images, and likenesses for advertising and other commercial purposes. That alleged conduct occurred this year and each year for many years prior; it violated Plaintiffs’ legally protected rights; it is not merely a copyright claim in other clothes; and Plaintiffs did not consent to such commercial use. Plaintiffs’ claims, if true, provide a basis for relief. Accordingly, the NCAA’s motion to dismiss should be denied,” the Cardiac Pack’s lawyers argued.

Lawyers for the NCAA filed paperwork on Oct. 18 to put the lawsuit on hold while a different case plays out in a New York federal court. The NCAA also filed a motion to dismiss the former NC State players’ case.

Former University of Kansas basketball star Mario Chalmers serves as lead plaintiff in the New York case. Chalmers and other plaintiffs played college sports before June 15, 2016. That date is significant as the cutoff for players eligible to take part in a proposed settlement of a third lawsuit titled House v. NCAA. Only athletes who participated in NCAA sports after June 2016 could take part in the proposed House settlement.

Some lawyers involved in the Chalmers case are also taking part in the “Cardiac Pack” lawsuit.

“The issue of whether student-athletes should be compensated for their names, images, and likenesses (NIL) has generated widespread public commentary and significant litigation,” NCAA lawyers wrote in support of the motion to dismiss the former NCSU players’ suit. “In the last fifteen years alone, over ten lawsuits have been filed demanding increased student-athlete compensation, two of which were litigated to final judgment and all the way to the Supreme Court. Few legal issues have been better ventilated and more exhaustively litigated.”

The suit accuses the NCAA of profiting off of the names, images, and likenesses of the “Cardiac Park” for more than four decades.

In an amended complaint in August, the list of plaintiffs grew by two: Ernie Myers and Martha Lou Mobley, sister and administrator of the estate of former NCSU player Quinton Leonard III. They joined original plaintiffs Thurl Bailey, Alvin Battle, Walt Densmore, Tommy DiNardo, Terry Gannon, George McClain, Cozell McQueen, Walter Procter, Harold Thompson, and Mike Warren.

That group of 12 plaintiffs does not include former players Sidney Lowe, Derek Whittenburg, and Lorenzo Charles. Charles, who made the winning basket in the Wolfpack’s championship game upset of Houston, died in 2011.

“The NCAA and its members, affiliates, and named and unnamed co-conspirators have illegally agreed to exploit student-athletes by using the NCAA’s monopoly power to force student-athletes to give up their legal right of publicity and control of their name, image, and likeness; asserting a perpetual license of student-athletes’ NIL rights; and appropriating those rights for decades, long after the athletes have completed their collegiate careers,” according to the amended complaint.

“The NCAA exploits its considerable resources through a network of co-conspirators, including CBS, TNT Sports, and other licensees, affiliates, and participants in the NCAA’s various programs and merchandising efforts,” the NCSU players argued. “These outlets produce significant income. The NCAA brings in roughly $1 billion each year, the bulk of it from ‘March Madness,’ the Division I Men’s and Women’s Basketball Championship. Media contracts for March Madness, held by CBS Sports and TNT Sports at least through to 2032, are worth nearly $20 billion.”

State Business Court Judge Mark Davis is overseeing he lawsuit.

“For more than 40 years, the NCAA and its co-conspirators have systematically and intentionally misappropriated the Cardiac Pack’s publicity rights including their names, images, and likenesses associated with that game and that play, reaping scores of millions of dollars from the Cardiac Pack’s legendary victory,” wrote lawyers from three Raleigh-based firms representing the players in the original complaint.

“The NCAA has used the images and videos of the members of Cardiac Pack to advertise its March Madness tournament, as well as for other commercial purposes, without the players’ consent and while paying them nothing,” the complaint continued.

The lawsuit points to the 2021 US Supreme Court ruling in NCAA v. Alston that the athletic association enjoys “monopsony,” or buyer-side monopoly power, in the “market for student-athlete services.”

“The NCAA has for decades leveraged its monopoly power to exploit student-athletes from the moment they enter college until long after they end their collegiate careers,” the players’ lawyers wrote. “It has conspired with conferences, colleges, licensing companies, and apparel companies to fix the price of student-athlete labor near zero and make student-athletes unwitting and uncompensated lifetime pitchmen for the NCAA.”

The former players accuse the NCAA of “unreasonable restraint of trade,” “illegal monopolization,” “unfair and deceptive trade practice,” “unjust enrichment,” and “tortious misappropriation of publicity rights.”