- The chief justice of North Carolina's Supreme Court has designated a lawsuit pitting members of North Carolina State University's 1983 men's basketball team against the NCAA as a "mandatory complex business" case.
- Business Court Judge Mark Davis will oversee the case.
- Ten members of the national championship team claim the NCAA has profited illegally from use of players' publicity rights for more than 40 years.
North Carolina Supreme Court Chief Justice Paul Newby has stepped into a legal dispute between members of the 1983 North Carolina State men’s basketball team and the NCAA. Newby is sending the case to North Carolina’s Business Court.
Judge Mark Davis, a former state Supreme Court justice, will oversee the lawsuit brought by 10 members of the former national championship team.
“As Chief Justice of the Supreme Court of North Carolina, by virtue of authority vested in me by the Constitution of North Carolina, and in accordance with the laws of North Carolina, the Rules of the Supreme Court and, specifically, N.C.G.S. § 7A-45.4(a) and (b), I hereby designate the above-referenced case as mandatory complex business,” Newby wrote in a court order Monday.
Newby ordered Chief Business Court Judge Louis Bledsoe “to assign the case to a specific Business Court Judge, who is hereby commissioned and assigned to hold such sessions of court as may be set, to enter orders, and to attend to such in-chambers matters and other business as may be necessary and proper for the orderly disposition of the case until otherwise ordered.”
Bledsoe issued an order assigning the case to Davis.
The lawsuit accuses the NCAA of profiting off of the names, images, and likenesses of the “Cardiac Park” for more than four decades.
Forner players Thurl Bailey, Alvin Battle, Walt Densmore, Tommy Dinardo, Terry Gannon, George McClain, Cozell McQueen, Walter Procter, Harold Thompson, and Mike Warren filed suit Monday in Wake County Superior Court. The suit names the NCAA and Collegiate Licensing Company as defendants. The former players seek an unspecified sum in damages.
The list of plaintiffs omits other members of the 1983 championship team: Sidney Lowe, Ernie Myers, Derek Whittenburg, and Lorenzo Charles. Charles, who made the winning basket in the Wolfpack’s upset of Houston, died in 2011.
“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 the three Raleigh-based firms representing the players.
“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.
“Even as the NCAA has appropriated one-time student-athletes’ images and likenesses without compensation, the NCAA Tournament, now officially known as ‘March Madness,’ has generated nearly one billion dollars each year for the NCAA and its co-conspirators, with broadcast rights alone worth nearly $20 billion over the next decade,” the players argued.
“Indeed, NCAA.com currently hosts videos of the Cardiac Pack, which can be viewed only after the viewer watches a commercial advertisement, from which the NCAA profits,” the complaint continued. “Yet, the NCAA has never paid one cent to Plaintiffs for using their names, images, and likenesses.”
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.”
The suit references the potential for substantial damages. “The full amount of this damage is currently unknown, and it continues to increase as the NCAA and its affiliates and co-conspirators continue to profit from the NCAA’s ongoing, uninterrupted usurpation of Plaintiffs’ publicity rights. The NCAA continues to damage Plaintiffs to this day by earning revenue from advertisers who pay for placements on NCAA.com that are shown to viewers before they are allowed to view videos of Plaintiffs.”
“The NCAA has used videos of Plaintiffs — without Plaintiffs’ consent and without compensating Plaintiffs — in commercial advertising throughout the last four decades, up to and including this year,” the lawsuit argued. “The NCAA’s requirement that student-athletes assign their publicity rights to the NCAA are not justified by any procompetitive objective.”
“The NCAA’s publicly stated goals in creating the rules are mere pretext; the rules serve only to allow the NCAA to maximize its profit from student-athletes’ uncompensated labor in the only labor market available to them,” according to the complaint.
“The NCAA’s violations of N.C. Gen. Stat. §§ 75-1 and 75-2 have damaged Plaintiffs in an amount in excess of $25,000, with damages to be proven at trial,” the suit alleged. “Under N.C. Gen. Stat. § 75-16, Plaintiffs are entitled to treble damages.”
“But for the illegal, unethical, and unscrupulous conduct of the NCAA and its co-conspirators, described above, 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.”