Former Utah Jazz forward Thurl Bailey and nine teammates from the 1983 NC State men’s basketball championship team sued the NCAA and Collegiate Licensing Company in a North Carolina superior court Monday over what they contend is the unlawful and continued use of their NIL and publicity rights from their famed tournament run. (The team was nicknamed the “Cardiac Pack” for its penchant to win in overtime or by a single point.)
The players’ complaint says they were the “original Cinderella team,” including when the Wolfpack defeated a heavily favored University of Houston Cougars team, led by future NBA stars Hakeem Olajuwon and Clyde Drexler, in the championship game. The Wolfpack’s victory catapulted head coach Jim Valvano into national stardom.
Although their tournament run was 41 years ago and the players are now in their 60s, they insist they’re experiencing contemporary harm.
The complaint says that full games from the 1983 tournament can be watched on the NCAA’s YouTube channel, with viewers watching advertisements. The complaint also references game footage on NCAA.com that requires watching advertisements.
Bailey et al. v. NCAA contains six claims under North Carolina law, including alleged violations of antitrust law and misappropriation of publicity rights. These claims cover familiar territory, particularly Ed O’Bannon’s successful lawsuit against the NCAA over use of players’ NIL in video games and other commercial products without players’ consent and without compensating them. O’Bannon’s case led to states adopting NIL statutes that make it illegal for the NCAA, conferences and schools to deny players from using a right they already had, the right of publicity, as a condition to play NCAA sports.
Bailey and his former teammates accuse the NCAA, member schools and business partners of conspiring to compel players to contractually relinquish their rights. As O’Bannon argued in 2009, the former NC State players contend the NCAA mandated players to affirm, in writing, they followed NCAA rules forbidding player compensation for their NIL. Players also had to assent to the NCAA and its business partners using players’ NIL, including for commercial purposes.
The NCAA has relaxed these and related rules in the aftermath of O’Bannon’s case, NIL statutes and recent defeats in court. If the pending NCAA antitrust settlement is approved, colleges could directly pay players and share revenue. Players’ advancement toward employment recognition and unionization is also set to impact how players are compensated by schools. Bailey is about a different era in college sports, but one the Wolfpack players insist still harms them.
Those players demand a jury trial, an injunction that would enjoin the continued use of footage and highlights without player consent and monetary damages that exceed $25,000 (the minimum amount necessary to file a complaint in superior court). The players are represented by attorney W. Stacy Miller II, a seasoned litigator and former defensive back at Wake Forest.
In the coming weeks, the NCAA and CLC will answer the complaint, deny wrongdoing and motion for the case’s dismissal. Expect them to raise several defenses. One is that the claims are time-barred under applicable statutes of limitation. The players’ case concerns footage of games played 41 years ago, and civil claims must be brought within a handful of years. In response, the players will likely argue their alleged harm is continuing since the footage is available online. They’ll also point to recent legal changes involving the NCAA that make a case that would have been impossible years ago now possible.
Another likely defense is that the First Amendment protects the use of game footage. The games were newsworthy events, covered extensively by national and local media. Although the right of publicity forbids the commercial use of a person’s NIL without consent, the right is ordinarily trumped by the First Amendment when the use is a matter of public concern. In response, the players will likely contend that the NCAA and colleges charge TV networks and other providers to broadcast games. Also, through group licensing and collectively bargained shares of revenue, NBA players are paid to appear in games covered extensively by national and local media.
The NCAA could also draw from its traditional set of defenses, including that college athletes voluntarily accepted amateurism rules as a condition of eligibility and that amateurism protects educational, equity and competitive balance goals. The problem with those types of defenses is they have recently been rebuked by courts, including the U.S. Supreme Court in NCAA v. Alston (2021), where NCAA rules restricting how colleges compensate athletes for education-related expenses ran afoul of antitrust law.
Bailey, 63, played 12 seasons in the NBA, mostly for the Jazz. His best season was 1987-88, when he averaged 20 points and seven rebounds a game; he finished second in voting behind Phoenix Suns forward Eddie Johnson for the NBA’s Sixth Man of the Year award that season. According to Basketball Reference, Bailey earned $8 million in NBA salary. He also played professionally in Greece and Italy.
The other nine players in the lawsuit didn’t enjoy the same success in pro hoops. Cozell McQueen, 62, played a few games for the Detroit Pistons, along with playing in the Continental Basketball Association and in Europe, but for the most part the players went on to other endeavors.
Meanwhile, footage from their storied run has continued to generate advertising revenue for others.
