A judge in North Carolina on Thursday dismissed a lawsuit brought last year by former Utah Jazz forward Thurl Bailey and nine teammates from the 1983 NC State men’s basketball championship team over the NCAA’s use of their NIL and publicity rights from their famed tournament run.
Wake County Superior Court Judge Mark A. Davis reasoned that the players’ claims are time barred by applicable statutes of limitation. He also found that the claims don’t identify a violation of an enforceable legal right and those claims are preempted by the federal Copyright Act of 1976.
The win for the NCAA follows the association’s victories in similar cases, such as the one brought byformer Ohio State quarterback Terrelle Pryor in an Ohio federal court and the case brought by former Kansas Star Mario Chalmers and 15 other former college basketball players in a New York federal court. While the cases have various distinctions, they allege the same basic argument that has now been repeatedly rejected: they are owed money for the use of their college-era NIL in advertisements, broadcasts and other commercial purposes.
Last year, Bailey’s group, who were nicknamed the Cardiac Pack while in college, sued the NCAA, alleging violations of antitrust law and misappropriation of publicity rights. Bailey referenced game footage available on NCAA.com and full games from the 1983 tournament that can be watched on the NCAA’s YouTube channel. Viewers of these videos sometimes have to watch advertisements.
Like Pryor and Chalmers, Bailey played long before 2021, when the NCAA changed its rules to permit players to sign NIL deals. Previously, NCAA eligibility rules generally prohibited athletes from capitalizing on the use of their rights of publicity as a condition of amateur status. Bailey argued that, through eligibility rules, the NCAA and its member schools and conferences illegally conspired to force players into contractually relinquishing their rights.
Davis wasn’t convinced.
For starters, the judge emphasized that the applicable statutes of limitation for Bailey’s claims are three or four years. He last played in college in 1983, meaning the claims raised in his complaint for alleged harms inflicted on him by NCAA rules presumably ended by 1987—almost 40 years ago.
Anticipating this problem, Bailey argued the “continuing violation” doctrine ought to apply. If applied, the doctrine would make each alleged wrongful use of an athlete’s NIL, such a YouTube video that can be watched in 2025, a separate and new act that restarts the clock.
Davis disagreed, noting that the judges in the Pryor and Chalmers cases rejected that logic. The judge emphasized that Bailey and his teammates signed a student-athlete statement, a form that contained NCAA eligibility rules, more than 40 years ago. These players “could have,” Davis wrote, “brought a legal challenge to the forced relinquishment of their NIL rights decades ago.” The judge also pointed out that the players saw Ed O’Bannon and Shawne Alston bring related lawsuits within the last 16 years, and yet they still waited until 2024 to sue.
Another problem with Bailey’s lawsuit, Davis explained, is that the players seek to be compensated for the NCAA’s “repeated use of their NIL in game footage” from the March Madness tournament in 1983. Davis reasoned that there is an absence of case precedent standing for the proposition that a college athlete has “a right to recovery of monetary damages from the use of game footage from the broadcast of a sporting event in which he or she voluntarily participated.”
To that point, Davis stressed the U.S. Court of Appeals for the Sixth Circuit’s decision in Marshall v. ESPN (2016). The case involved college football players arguing their right of publicity had been misappropriated on account of appearing on TV broadcasts without being paid. The Sixth Circuit disagreed, finding that there is no right to be paid for appearing on a college sports broadcast and that if players had to be paid, referees, coaches, cheerleaders and fans might have a right to be paid as well. This subject was a point of controversy in the House v. NCAA litigation through claims involving what was termed broadcast NIL but resolved via the House settlement.
Lastly, Davis reasoned that even if the players had an enforceable right of publicity in the game footage at issue, associated state law claims would be preempted by the Copyright Act. The players ultimately “seek control over how the NCAA—the owner of the copyright to the 1983 March Madness broadcasts—uses the game footage obtained from those broadcasts.” Those types of claims are nonstarters, Davis concluded, because the NCAA owns the copyright.
Bailey can appeal Davis’ ruling.
In a statement shared with Sportico, an NCAA spokesperson said the association was “pleased” with the decision. The spokesperson underscored how Davis found “there is no enforceable right of publicity in game broadcasts” and said the NCAA is “hopeful that several of the copycat cases will be similarly treated by other courts.”