Milberg Class Action Accuses NCAA of Unreasonable Restraint of Trade, Unjust Enrichment

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July 2, 2024

by Kaitlin Gagnon

Milberg attorneys have filed a class action lawsuit against the National Collegiate Athletic Association (“NCAA”) on behalf of a dozen former NCAA student-athletes whose names, images, and likenesses continue to be used for commercial purposes by the NCAA without consent or compensation.

The lawsuit contends the NCAA’s “admitted monopolist” power, primarily motivated by the generation of profit, has exploited former student-athletes for more than forty years. The Plaintiffs and similarly situated class members claim the NCAA first requires young student-athletes to “cede their [name, image, and likeness] rights to the NCAA,” only to have those rights appropriated, without consent or compensation, long after they have graduated.

Plaintiff Mario Chalmers played men’s collegiate basketball for the Kansas Jayhawks. During the 2008 NCAA National Championship game against the Memphis Tigers, Chalmers made one of the most memorable three-point shots in March Madness history – dubbed “Mario’s Miracle” – with just a few seconds remaining in the game. Chalmers’s shot tied the score and sent the National Championship game into overtime, where Kansas went on to win.

“Mario’s Miracle” has since been replayed commercially “countless times” across a wide range of media, including live television broadcasts, promotional advertisements, online videos, and more. March Madness, which generates close to $1 billion in annual revenue for the NCAA and with broadcast rights worth nearly $20 billion over the next decade, is promoted by these countless replays of legendary moments like “Mario’s Miracle.”

While these mediums continue to generate commercial revenue for the NCAA and its affiliates, Chalmers has never been compensated by the NCAA.

The same is true for nearly a dozen NCAA student-athletes who join Chalmers as Plaintiffs in the lawsuit, including members of the 1997 Arizona Wildcats national champion men’s basketball team, the 2011 and 2014 UConn national champion men’s basketball teams, and other members of the 2008 Kansas Jayhawks national champion men’s basketball team, who claim their “names, images, and likenesses” continue to be utilized by the NCAA and its affiliates for commercial purposes without consent or compensation.

The suit similarly names the Big East Conference, Pac-12 Conference, Big Ten Conference, Big Twelve Conference, Southeastern Conference, Atlantic Coast Conference, and Turner Sports Interactive as “co-conspirators” who have, alongside the NCAA, “systematically and intentionally misappropriated [the] Plaintiffs and similarly situated class members’ publicity rights.” The complaint cites the millions of dollars in generated profit (and billions in annual revenue) by the NCAA and its co-conspirators at the “exploited” expense of the Plaintiffs.

“Former athletes like Mario Chalmers have provided the sport of college basketball with moments that have built March Madness into a multibillion dollar enterprise, but have been paid nothing by the NCAA and its partners and continue to have their NIL used by the NCAA and its partners without consent. We look forward to providing compensation for these former athletes in this case.”

-Scott Harris

The complaint challenges the NCAA’s conduct which allegedly constitutes unreasonable restraint of trade, illegal monopolization, tortious misappropriation of publicity rights, and unjust enrichment.

Milberg attorneys have requested a trial by jury and “reasonable compensation” through damages, interest, and attorney fees for the Plaintiffs and student-athlete class members who have been “coerced to give up [their] legal rights.”

The Milberg team representing the Plaintiffs and class members includes Scott Harris, Peggy Wedgworth, James DeMay, and Michael Dunn.

Co-counsel attorneys include Elliot Abrams of Cheshire Parker Schneider, PLLC, Stacy Miller II of Miller Law Group, PLLC, and Scott Tompsett of Tompsett Collegiate Sports Law.