Unpacking the 'Mario's Miracle' lawsuit against the NCAA

The night of April 7, 2008, I sat courtside on press row in San Antonio, mere feet from where Kansas’ Sharron Collins flipped a pass to Mario Chalmers, who authored one of the most iconic moments in NCAA Tournament history.

Millions of March Madness aficionados can also vividly recall “Mario’s Miracle” – Chalmers’ 3-pointer with 2.1 seconds left that propelled the national title game against Memphis into overtime – because it’s been shown countless times in highlights, images and montages.

Those highlights are at the heart of the lawsuit Chalmers and 15 other former NCAA Tournament stars filed earlier this month against the NCAA, the nation’s top six basketball conferences and Turner Sports Interactive. In the class-action suit, they claim defendants used their name, image and likeness in March Madness highlights without their authorization.

“The NCAA 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 lawsuit said. 

What are the implications? Sam Ehrlich, a sports law professor at Boise State, told On3: “I think it’s a strong case that can yield a lot of liability for the NCAA.”

Consider the state of affairs: The suit comes as college sports looks to land the plane on the landmark House settlement, which will award $2.8 billion in retroactive NIL pay to athletes who entered college sports after June 15, 2016. U.S. District Judge Claudia Wilken needs to certify the settlement in the coming months.

1983 NC State title-winning team also suing NCAA

And it came three weeks after 10 players from the memorable 1983 N.C. State national championship team got the ball rolling by suing the NCAA and the Collegiate Licensing Company for using their NIL 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.

Some of the same North Carolina-based attorneys – the Miller Law Group and Cheshire Parker Schneider – are representing plaintiffs in both suits.

The NC State suit was filed in Wake County Superior Court, with the claims state-law focused and fairly narrowly tailored toward Wolfpack alums. But the Chalmers case, filed in the U.S. District Court for the Southern District of New York, broadened the issues at play considerably.

It alleges defendants violated the federal Sherman Antitrust Act through unreasonable restraint of trade, group boycott and refusal to deal. 

“But for the illegal, unethical, and unscrupulous conduct of the NCAA and its co-conspirators,” the suit said, “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.”

Mario Chalmers lawyers seeking class-action status

Plaintiffs are seeking class-action status that encompasses “all persons who were NCAA student-athletes prior to June 15, 2016, whose image or likeness has been used in any video posted by of licensed by the NCAA, the conferences, TSI or their agents, distributors, contractors, licensees, subsidiaries, affiliates, partners or anyone acting in concert with any of the foregoing entities or persons.”

It remains to be seen whether a statute of limitations argument would be a sound defense for the NCAA because plaintiffs allege continuing harm based on continued use of their NIL, Ehrlich said. To that point, tune in to watch March Madness and you’re bound to see a highlight or two of Chalmers’ clutch shot.

How can NCAA defend itself in Chalmers suit?

As with the NC State case, Ehrlich believes the NCAA’s best defense would be a contract defense – that athletes signed a contract allowing the schools and NCAA to use their NIL indefinitely, and the NCAA will argue that the court should hold them to that.

“But that’s where the antitrust-forward nature of the Chalmers case comes in because the clear counterargument is that the contracts were signed in an anti-competitive environment under the thumb of the NCAA’s monopoly power,” Ehrlich said.

Ehrlich believes that will be an element in the NC State case as well, but with the Chalmers case focusing even more narrowly around the antitrust claims, Ehrlich said, the attorneys are smartly focusing the issues toward that counterargument.  

Ehrlich wouldn’t be surprised to see the NCAA try to move Chalmers to the U.S. District Court for the Northern District of California to be folded into the House settlement. But that’s highly unlikely, he said because the plaintiff group in Chalmers is not covered by the House case, which was likely strategic.