NCAA seeks stay, dismissal of ‘Cardiac Pack’ lawsuit

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  • The NCAA is seeking both a stay and dismissal of a lawsuit filed by members of North Carolina State University's 1983 men's basketball national championship team. The suit contends that the national collegiate sports group has profited illegally from players' names, images, and likenesses for more than 40 years.
  • A court filing Friday urges a North Carolina judge to block any action in the case while a similar federal lawsuit proceeds in New York.
  • The NCAA explained in a separate court filing why it believes the "Cardiac Pack" should have its case thrown out of a North Carolina courtroom.

The NCAA is asking a North Carolina judge to stay a lawsuit filed by members of North Carolina State University’s 1983 men’s basketball national championship team. The “Cardiac Pack” argue that the NCAA has benefited illegally from team members’ names, images, and likenesses for more than 40 years.

Lawyers for the NCAA filed paperwork Friday to put the lawsuit on hold while a different lawsuit plays out in a federal court in New York. 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 NCAA lists four reasons why the Cardiac Pack’s case fails “as a matter of law.”

First, the claims are time-barred. The players faced three- and four-year time limits for filing suit. “Plaintiffs waited too long to bring their claims: Each of their claims is based on the allegation that they signed contracts releasing certain purported NIL rights to the NCAA more than forty years ago,” NCAA lawyers wrote.

Second, the former NCSU players “fail to plausibly plead infringement of a legally enforceable right,” according to the court filing. “Central to all of Plaintiffs’ claims are allegations that the NCAA has violated their ‘publicity rights’ by using archival footage to promote the NCAA Division I Men’s Basketball Tournament. But Plaintiffs have no right of publicity under North Carolina law, and even if they did, it would not extend to sports broadcasts or rebroadcasts.”

Third, the claims already have been addressed in a nearly 10-year-old case called O’Bannon v. NCAA. Fourth, the players’ claims that the NCAA engaged in “unjust enrichment” fail for the same reasons as their antitrust claims.

The former NCSU players dropped television networks from their lawsuit against the NCAA in September. The former players had targeted TV networks that air NCAA tournament games in an August court filing.

The players filed a voluntary dismissal of complaints against CBS Broadcasting, CBS Sports, TNT Sports, and Turner Sports Interactive. The court filing did not explain the decision.

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

The original complaint also named the Collegiate Licensing Company. The players dropped that company as a defendant in June.

In an amended complaint in August that named the TV networks, 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 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.”

“Plaintiffs now seek reasonable compensation for the appropriation of their names, images, and likenesses by the NCAA and its partners and co-conspirators,” according to the complaint. “Furthermore, since the NCAA’s illegal conduct continues to this day — notwithstanding the clear notice of the unlawfulness of its behavior provided by Alston and an increasing number of cases throughout the country — it needs to be stopped by way of a permanent injunction.”

“But for the illegal, unethical, and unscrupulous conduct of the NCAA and its co-conspirators, … Plaintiffs would have been paid substantial sums for the use of their names, images, and likenesses in the NCAA’s advertisements and other promotional efforts,” the lawsuit argued. “Therefore, substantial funds that the NCAA has received — and continues to receive to this day — through the misappropriation of Plaintiffs’ names, images, and likenesses belong to Plaintiffs.”

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