Four former University of Michigan football players—Denard Robinson, Braylon Edwards, Michael Martin and Shawn Crable—sued the NCAA and Big Ten Network Monday in a Michigan federal court, accusing them of conspiring to violate antitrust law by denying NIL opportunities.
The four plaintiffs played for the Wolverines at various points from the 2000s to early 2010s, years before the settlement classes for the House, Carter and Hubbard antitrust litigations began. Before going on to NFL careers, the four were star college players and likely would have landed lucrative NIL deals had NCAA rules permitted them at the time. Through their attorney, James Acho, the four say the NCAA and Big Ten Network have caused more than $50 million in damages.
The plaintiffs also seek certification of their case as a class action on behalf of NCAA players who played before June 15, 2016, and whose image or likeness was used by the NCAA, Big Ten Network or its business partners.
The complaint raises familiar legal arguments, including those raised by Ed O’Bannon in his historic case against the NCAA and EA in 2009 over the illegal use of players’ likenesses in video games without their consent or paying them. The gist of Robinson et al. v. NCAA & Big Ten Network is that the NCAA, through its member schools and conferences and business partners, have conspired to use amateurism rules to “fix the price of student-athlete labor near zero and make student-athletes unwitting and uncompensated lifetime pitchmen for the NCAA.”
Until 2021, the NCAA prohibited college athletes from earning compensation through a right they already possessed as Americans—the right of publicity—–as a condition of their eligibility. That meant college athletes couldn’t sign endorsement or influencing deals.
The Big Ten Network is accused of using Michigan players’ NIL in live games, replays, highlight reels, documentaries and promotional content and failing to compensate them. This argument tracks a central component of the House case, which contends the NCAA preventing power conferences from sharing broadcast revenue with players constitutes an unlawful form of NIL suppression.
The complaint cites recent defeats for the NCAA to bolster its thesis. It notes that in NCAA v. Alston, the U.S. Supreme Court found the NCAA violated antitrust law by limiting colleges’ ability to compensate athletes for education-related expenses. Although Alston didn’t concern NIL or paying college athletes to play sports, it made clear the NCAA and its system of amateurism faces ordinary antitrust scrutiny and is not entitled to a deferential form of review.
The complaint also highlights O’Bannon’s case, which proved NIL restrictions violated antitrust laws. Those restrictions reflected competing businesses (schools and conferences) agreeing—as the four players write in their complaint—to “reduce the cost of student-athletes’ publicity rights to zero.”
Robinson et al. v. NCAA & Big Ten Network accuses the defendants of several violations of Section 1 of the Sherman Act, a federal law that prohibits competing businesses from unreasonably restraining competition in defined markets. The NCAA and Big Ten are depicted as conspiring to “artificially depress to near zero” the value of athletes’ NIL by denying those athletes NIL opportunities.
The case also raises claims over alleged group boycott and refusal to deal. The NCAA is depicted as using monopoly power over college sports and athlete labor to quash competition for athletes’ services and “assign their publicity rights to the NCAA.” The Big Ten is portrayed as a “beneficiary” of this alleged plot since it is relieved of having to share revenue with the players.
The types of monetary harms alleged by the plaintiffs are extensive. They include:
· Loss of market value for NIL rights (the players couldn’t sign NIL deals and thus earn their market value).
· Suppressed earnings from endorsements (the players couldn’t land lucrative endorsement deals with brands, such as those in apparel or beverages).
· Missed opportunities for media appearances (the players could have earned income through speaking gigs and being on commercials).
· Uncompensated use of likeness in merchandise (the players could have earned money for appearing in video games and apparel sales).
· Revenue from archived footage and highlight reels (the players could have, and could still, earn profits from use of archived footage of them in TV commercials and online advertisements).
· Loss of future earnings potential (the players were denied a chance to build their brand while in college, which could have led to “substantial long-term financial benefits”).
· Loss of group licensing opportunities (the players, if they were employees, could have unionized and entered into CBAs; even if not employees, they could have formed trade associations that negotiate group licensing deals on behalf of players).
· Social media influencer marketing opportunities (while the social media industry was not as developed or commercialized when they played in the 2000s, it was still around and could have still provided opportunities to earn compensation)
· Long-tail endorsement opportunities (players could have gained from deals with local endorsements that are “often-overlooked”)
· Revenue sharing from media rights (the players, like pro athletes, could be compensated for appearing on broadcasts by gaining a share of the revenues).
In addition to monetary damages, the plaintiffs seek an injunction that would force the NCAA and Big Ten to stop their allegedly illegal practices.
The NCAA and Big Ten Network will answer the complaint and seek its dismissal. Expect them to argue the claims involve athletes who played at Michigan more than a dozen years ago. The claims will thus be criticized as raised too late in time and barred by applicable statutes of limitation of five or fewer years.
But the complaint anticipates a statute of limitations defense by invoking the continuing violations doctrine, which effectively extends the time one can sue by allowing claims that reflect continuing or persistent unlawful conduct or harm. To varying degrees, the alleged harms described above contain ongoing features. The plaintiffs also argue the defendants should be barred from statute of limitations arguments on grounds athletes “barely at the age of maturity” were told they had to sign away publicity rights as a condition to receive a scholarship.
Another defense argument will likely include the players freely agreed to play by amateurism rules as a condition of their eligibility to receive athletic scholarships and other permissible forms of compensation. Further, in other cases, the NCAA has described amateurism rules as enhancing educational, equity and competitive balance objectives. Those arguments fell short in O’Bannon and Alston, and the NCAA has largely dropped them as part of a proposed settlement to resolve the House, Carter and Hubbard antitrust litigations.
However, as I wrote in a recent Harvard Journal of Sports and Entertainment Law article, there is favorable precedent for the NCAA at the U.S. Court of Appeals for the Sixth Circuit—the circuit which governs Michigan’s federal district courts. In Marshall et al. v. ESPN et al. (2016), college players argued TV networks misappropriated their right of publicity by featuring them in games broadcast on TV without paying them. Judge Raymond Kethledge rejected this contention, saying the players proposed an unworkable scenario where “broadcasts are illegal unless licensed by every player on each team.” He also wondered who else might need to be paid, such as referees, coaches and fans, if being on a game broadcast commands a right to payment.
The new lawsuit arrives at a tumultuous time for the NCAA and its attempt to preserve some semblance of amateurism while simultaneously agreeing to the proposed settlement, which would empower colleges to literally pay players for use of their NIL as well as media rights and ticket sales sponsorships. The NCAA has also been sued in North Carolina and New York by former athletes who demand payments for continued use of archival football from past championship teams.
Attorney Tom Mars, who has represented Los Angeles Chargers and former Michigan coach Jim Harbaugh and other prominent coaches and athletes in litigation matters, told Sportico the latest lawsuit is yet another worry for the NCAA.
“Already facing impending disaster, the NCAA doesn’t have enough fingers to plug all the holes in the current class-action dike,” Mars said. “Worse yet, the filing of this new class action is an invitation for other former college athletes to file similar lawsuits against the NCAA and others who’ve misappropriated players’ NIL rights for decades.”
