‘Cardiac Pack’ urges top NC court to revive lawsuit against NCAA

Basketball rim and backboard viewed from below — Creative Commons image of basketball hoop via Pixabay.

Members of North Carolina State University’s 1983 men’s basketball national championship team explained in a new brief Thursday why the state’s highest court should revive a lawsuit against the NCAA.

Twelve members of the group dubbed the “Cardiac Pack” argue that the college sports governing agency has profited illegally from team members’ names, images, and likenesses for decades.

Lawyers for the former players will present oral arguments at the North Carolina Supreme Court on April 14, eight days after the NCAA crowns its latest basketball champion.

The Cardiac Pack appealed to the state Supreme Court after Business Court Judge Mark Davis dismissed the players’ lawsuit last August. Davis holds undergraduate and law degrees from NC State’s chief rival, the University of North Carolina at Chapel Hill.

“Over the last four years, and for many years prior, the NCAA and its co-conspirators repeatedly used Plaintiffs’ images and likenesses without Plaintiffs’ consent to advertise NCAA products, including its annual March Madness tournament and its March Madness brand, which did not exist when Plaintiffs were in college,” the players’ lawyers wrote in their latest brief.

“Nearly a century ago, this Court found it ‘inconceivable’ that a company could use the likeness of a person for advertising purposes ‘without the consent’ of the person and not be subject to suit,” the court filing continued, citing the 1938 precedent case Flake v. Greensboro News Co. “It recognized as a tort ‘the unauthorized use of one’s photograph in connection with an advertisement or other commercial enterprise.’ It did so to protect the liberty of citizens and residents of our State to ‘be free in the enjoyment of the faculties with which [they have] been endowed by [their] Creator.’ And Plaintiffs have adequately alleged violations of these well-established rights.”

“Relying on a premature (and incorrect) factual finding that Plaintiffs ‘implicitly consented’ to the uses in question, and on a single federal district court order applying Tennessee law, the trial court determined that Plaintiffs have no right under North Carolina law to prevent the unauthorized use of their likenesses in advertisements because the likenesses are contained in game footage,” the Cardiac Pack’s brief continued. “That ruling not only defies this Court’s precedent, but, if allowed to stand, would also severely harm student-athletes who choose to compete in North Carolina — and would threaten the competitiveness of North Carolina schools in their ability to recruit and retain high-quality student-athletes for their programs.”

Davis committed a legal error when he “made an improper factual determination and overlooked the Plaintiffs’ standalone right tobe free from unfair practices and methods of competition,” the former players argued.

“The trial court also erroneously ruled that repeated unauthorized uses of Plaintiffs’ likenesses throughout the limitations period are not actionable,” the court filing continued. “In direct contradiction to the Complaint’s allegations, the trial court determined that Plaintiffs

consented to the NCAA perpetually appropriating their likenesses. From that erroneous premise, the trial court concluded that Plaintiffs’ claims are time-barred.”

“But Plaintiffs repeatedly and expressly alleged that they did not consent to the NCAA’s advertising use of their likenesses, and further alleged that the NCAA engaged in acts within the limitations period that violated North Carolina law and harmed Plaintiffs,” the brief argued. “Nothing more is required to plead timely claims. Only by erroneously disregarding those allegations and finding contrary facts did the trial court conclude that the claims are time-barred.”

Davis should not have relied on the statute of limitations to dismiss the case, the brief argued.

“Finally, the trial court erroneously determined that federal law preempts state law protections for Plaintiffs,” the Cardiac Pack’s lawyers added. “That, too, was error. Plaintiffs’ claims are not copyright claims; their claims rest in their own identities. What’s more, Plaintiffs were not required to plead around this affirmative defense.”

The players ask the Supreme Court to revive the case, “and the NCAA should be required to answer the Complaint,” according to the brief.

“In this lawsuit, twelve former members of North Carolina State University’s (‘N.C. State’) 1983 NCAA men’s basketball championship team have sued the NCAA for using — without permission — their names, images, and likenesses contained in copyrighted game footage from that season. Because their claims are untimely, barred by their failure to allege a violation of a legally enforceable right, and preempted by the federal Copyright Act, dismissal of this action in its entirety is appropriate,” Davis wrote in a 44-page opinion.

The Business Court judge focused first on the statute of limitations. “Plaintiffs’ statutory claims for unreasonable restraint of trade, monopoly maintenance, monopoly leveraging, and UDTP [unfair and deceptive trade practices] are subject to a four-year statute of limitations,” he wrote. “Plaintiffs’ common law claims for misappropriation of name, image, likeness, and publicity rights; invasion of privacy; and unjust enrichment are governed by a three-year limitations period.”

“Plaintiffs’ own allegations … make clear that the original allegedly unlawful act giving rise to their injuries was the NCAA’s act of forcing them to sign the SAS [student-athlete statement] prior to the beginning of the 1983 NCAA basketball season,” Davis explained.

“Accordingly, because Plaintiffs’ injuries as alleged in this lawsuit derive from an act taken during (or shortly before) the 1983 season, the statute of limitations applicable to each of their claims expired decades ago,” he wrote.

The players had argued under the “continuing wrong” doctrine that the NCAA committed a violation each time it misused video footage of the 1983 championship contest. But “that doctrine does not apply here,” Davis wrote.

The judge applied a similar analysis to those used in two federal cases against the NCAA: the Chalmers case in New York involving 16 former college basketball players from multiple schools and the Pryor case in Ohio involving former Ohio State University athletes.

“Plaintiffs signed the SAS forms over 40 years ago,” Davis wrote. “They could have brought a legal challenge to the forced relinquishment of their NIL rights decades ago, and they have offered no valid legal basis for this Court to excuse their inaction.”

In addition to the statute of limitations, Davis found that the Cardiac Pack did not demonstrate a “legally enforceable right.” He distinguished their case from two North Carolina precedent cases called Flake and Renwick.

“Neither Plaintiffs’ brief nor the Court’s own independent research has disclosed any subsequent caselaw suggesting that our Supreme Court would extend the rights discussed in Flake or Renwick to encompass a collegiate athlete’s 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,” Davis wrote.

The Cardiac Pack’s claims are also pre-empted by the federal Copyright Act of 1976, Davis explained.

“Here, Plaintiffs do not seriously dispute the fact that the NCAA owns a copyright to a tangible collection of game footage from the 1983 March Madness tournament, which includes the original broadcasts of the tournament’s games along with rebroadcasts, highlights, or ‘clips’ of game footage from the original broadcasts,” Davis wrote. “Moreover, Plaintiffs do not contend that the NCAA has ever granted them a license — or assigned them the rights — to use this footage.”

“[T]he Copyright Act will preempt a plaintiff’s state-law claims unless the plaintiff can demonstrate that the defendant manipulated or imitated the plaintiff’s identity or likeness or otherwise used the plaintiff’s identity or likeness to support a product independent from the copyrighted work,” the court order explained.

“Here, although Plaintiffs allege that the NCAA’s website and YouTube channels contain commercial advertisements, there are no allegations that game footage from the 1983 March Madness tournament is being used in any manner to suggest that Plaintiffs are promoting products that might be featured in those advertisements,” Davis wrote.

“Accordingly, no viewer watching a rebroadcast of game footage from the 1983 March Madness tournament on the NCAA’s website or its YouTube channels could reasonably believe that the players shown in that game footage are personally endorsing any particular brand of food, beverage, item of clothing, video game, or any other product being advertised in connection with a showing of the footage,” he added.

The players initially filed suit in June 2024. In an amended complaint two months later, 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 did not include former players Sidney Lowe, Derek Whittenburg, and Lorenzo Charles. Charles, who made the winning basket in the Wolfpack’s championship game upset of Houston, died in 2011.

“‘Cardiac Pack’ urges top NC court to revive lawsuit against NCAA” was originally published on www.carolinajournal.com.