How 'going to the videotape' unrolled the next wave of NCAA antitrust litigation

The limits of name, image and likeness (NIL) rights in college sports continue to be tested in various ways. Despite the $2.8 billion settlement in House v. NCAA earlier this year, which isn't close to resolving, several antitrust suits are still in motion and new ones are cropping up. Players who graduated, turned pro or moved on years ago are joining in the fight to protect their rights. The enormity and span of these cases vary, but their common thread - NIL rights and compensation - may also provide a starting path for a fairer legal landscape and an improved system for likeness use in college, and soon, high school sports.

Two of the latest and most significant antitrust lawsuits were filed by separate plaintiffs' groups. Both filed actions against the NCAA and multiple conferences and broadcasting services for the unauthorized use of their NIL in March Madness promos.

In June, ten members of the 1983 NC State men's basketball team sued the NCAA and the Collegiate Licensing Company in North Carolina's Wake County Superior Court. The suit was plead as the unauthorized use of their NIL. July 2024 kicked off with 16 former men's college basketball players from various teams and years filing an action against the NCAA and multiple conferences for unauthorized use of their NIL in promos.

The plaintiffs claim the NCAA and the other defendants violated the federal Sherman Antitrust Act through unreasonable restraint of trade, group boycott and the refusal to fairly deal. The plaintiffs did not have a chance to earn money from their own NILs while enrolled in college, and now they want their fair share of the billions they helped generate. If the NCAA wants to continue to play highlights of slam dunks and clips of past glory days, they will have to pay up.

The suits were filed following the landmark settlement of the House v. NCAA lawsuit announced in May. This agreement aims to establish a novel structure that empowers and will demand schools to distribute millions of dollars among their athletes moving forward. Additionally, it will reportedly create a fund exceeding $2.8 billion dedicated to compensating former athletes for lost wages pertaining to their NIL and other injustices dating back to 2016. The plaintiff players in the newest antitrust suits competed prior to that time, which is why they hired antitrust lawyers and are seeking compensation.

Furthermore, though the House settlement proposal covers three antitrust lawsuits, another related case, Fontenot v. NCAA, will proceed in Colorado, outside of the House settlement. Fontenot action alleges that the NCAA's limits on compensating players restrained competition in the labor market for players' services, prohibiting athletes from receiving pay-for-play compensation. This topic is obviously a major consideration and pivotal for both sides.

NIL as a transitory tool for a new college sports model

These suits are the newest of several actions that stress test the existing NIL regulations. These actions might also serve as an opportunity to revisit how new college players' unions can protect their members while helping to avoid further and future litigation.

Federal courts and agencies have signaled that unionization is now a viable move for college athletes. When the United States Supreme Court unanimously sided with former college players in American Athletic Conference et al. v. Alston et al. in 2021, they had the legal backing to finally earn from their NIL.

Following Alston, NLRB General Counsel Jennifer Abruzzo issued a historic memorandum noting that certain "Players at Academic Institutions" (which she stated are "sometimes referred to as student-athletes"), are employees under the National Labor Relations Act, and are thereby afforded all statutory protections.

This set the course for college players' ability to unionize. In February 2024, the Dartmouth Big Green men's basketball team voted to join a union, becoming the first college sports team in the U.S. to unionize. The vote was previously given the green light by one of NLRB's regional managers. With the Big Green now part of SEIU Local 560, the workers union at the New Hampshire campus, more athletes are expected to be designated as employees and have new comprehensive bargaining power. If they have effective negotiators, generations of Big Green players will know they'll be looked after once they're enrolled.

It is reasonable to assume more teams will follow Big Green's lead. Should the NLRB certify a players' union, the employer (such as a school, NCAA, or conference) will be legally required to bargain in good faith with the union. Some say, why not look to the NBA's model when it comes to marketing promotions?

The National Basketball Players Association (NBPA) represents the players for their collective broadcast rights. By centralizing these rights, there are far fewer discrepancies from players about where and when their image is shown, even if it's years after retirement.

The broader issue of "unreasonable restraint," as noted in the Fontenot antitrust suit, could also be negotiated and resolved through union representation and even a comprehensive collective bargaining agreement. All stakeholders in college athletics need to seriously consider the potential of a union and perhaps run with it. If players' rights are protected or addressed in new NCAA agreements and policy and hopefully federal legislation, then litigation can be avoided.

A strategy for off-the-field moves

Creating and organizing a union comprised of college athletes is unique because - just like sports in general - so much depends on leadership. Establishing effective leaders among this group could be an exercise in cohesion, but could also backfire if egos take hold, or if visions and strategies are not aligned. Lawyers can help guide the union but cannot lead the charge.

As long as protecting college players' physical health and financial security remains the top priority and is reflected in its mission, a union may be able to secure positive change in more intricate aspects of sports, such as the NIL use in marketing.

In the absence of judicial guidance, the new NCAA's high-energy promos will feature everything but our college players. Fans can expect commercials with lots of cutaways to fans, arenas, logos, gear, coaches and mascots - none of the features of high-level sports that anyone tunes in for, pays to see or strengthens legacies.