With NCAA suit, will Cardiac Pack open Pandora's box?

If you’ve watched the NCAA Tournament anytime over the past four decades, you’ve seen videos, images and montages highlighting NC State’s historic run to the 1983 national title, an indelible story that catapulted March Madness to new heights. 

Now 10 of the players who made history on the court are trying to blaze a new trail in the courts.

They’ve sued the NCAA and the Collegiate Licensing Company for using their name, image and likeness without their permission. 

The players seek compensation because they claim the NCAA has continued to use images, videos and names of members of the 1983 team while promoting March Madness without the former players’ consent.

“The NCAA could be vulnerable here,” Mit Winter, a college sports attorney with Kennyhertz Perry, told On3.

NC State players claim the NCAA is violating their right of publicity, which allows a person to control the commercial use of their NIL.

Did NCAA make millions off NC State players’ NIL?

For more than four decades, the suit asserts, 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 [final] play, reaping scores of millions of dollars from the Cardiac Pack’s legendary victory.”

Winter and Sam Ehrlich, a sports law professor at Boise State, draw parallels between this case and the landmark O’Bannon case because it leans on a similar theory that the NCAA and others use athletes’ likeness without compensation for their own commercial gain.

Ehrlich said the only real difference is that the NC State case involves the perpetual license that athletes were forced to sign for a long time that granted the NCAA and others the right to use – and sublicense – their NIL.

“I imagine the NCAA will argue in response that, ‘Hey, you signed a contract, we’re just following through on that contract’ and that very well might weaken the right of publicity claim,” Ehrlich said. “But that’s where the restraint of trade and O’Bannon come into play since those contracts were signed in an anticompetitive environment.

“Such a lawsuit likely would have failed back then, but times are definitely different now,” he added. “So [that] the NCAA and CLC are still using their likeness without compensation could very well hurt them here – just as it did in O’Bannon.”

How big could damages be?

Even though the NC State footage is from more than 40 years ago, the fact the NCAA is still using it likely resolves any statute of limitations issues, Winter said, adding that the statute should start running again every time the NCAA uses the footage.

He raised three key questions: Is the NCAA still using this video in a commercial manner? Is it making any money off of that use? And does the NCAA have a release from the players to use their NIL in a commercial manner?

Winter believes the answer to the first question is yes.

“And if the NCAA doesn’t have a release, and the NC State players can trace money the NCAA is making to the unauthorized use of the video, then the players could be entitled to damages from the NCAA,” Winter said.

“The question would be how big those damages are. Other former athletes that appear in similar types of NCAA content could bring similar claims, especially if the former NC State players are successful in their claims.”