Members of N.C. State's 1983 national championship men’s basketball team told the North Carolina Supreme Court Tuesday that former student-athletes should be paid if their university or the NCAA uses their name, image or likeness — an argument that could lead to compensation for hundreds of former athletes in a state with a storied athletic history.
The NCAA runs the annual men’s college basketball tournament known as March Madness. And for years it has used images of that 1983 national championship game to promote the tournament. From a buzzer-beating dunk by Lorenzo Charles to win it all, to Coach Jim Valvano rushing onto the court to embrace his players, the clips highlight the passion and drama that draw college basketball fans back for more.
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The question before North Carolina’s highest court: Should the NCAA be paying members of that team — affectionately known by fans as the “Cardiac Pack” for their heart-attack-inducing habit of winning games only at the last minute — for the continued use of their clips?
The NCAA says no. The footage from the tournament’s most memorable moments should be considered historical, they argue, adding that the time to bring this lawsuit has long since passed.
Several members of the team — who are suing the NCAA over the issue — say they are entitled to payments. They say the NCAA isn’t using their clips just for documentary reasons, but rather to advertise the March Madness tournament from which the NCAA profits.
And with the explosion of money in college sports through profit-sharing and name, image and likeness deals, the players argue they’re due for a cut. They may have played before the NIL era, but they say since the NCAA continues using their name, image or likeness to help boost its own profits, they’re entitled to be paid under the current NIL rules.
The Cardiac Pack has lost most legal battles to date, but has appealed its way to the state Supreme Court — hoping to get yet another last-second win. The court is expected to issue a ruling in the coming months.
“Before you use someone's likeness in an advertisement, you have to ask their permission,” Elliott Abrams, a Raleigh-based attorney for the players, said in court Tuesday. “It's just that simple.”
The NCAA, on the other hand, argues that it’s not advertising anything with the clips of the players. It says it’s just showing historical footage that’s well within its rights to do, without paying everyone who appears in it.
“It's not a question of whether or not the NCAA has removed [the team’s] names, images, and likenesses from copyrighted footage to put in an advertisement to sell T-shirts or to sell Coca-Cola,” Matthew Skanshy, a Washington, D.C.-based lawyer for the NCAA, told justices Tuesday, adding that the case is just about “old replays of these clips, old replays of these broadcasts, or clips of these games.”
Shkanshy added: “It’s all within these copyrighted uses. It’s not as if they've been used to advertise something.”
That prompted Republican Justice Tamara Barringer to interrupt, questioning whether that’s true. “I'm a basketball fan, so I've seen these clips,” Barringer said. “And so when I see those clips, it tells me, ‘Oh wow! I need to tune in to the NCAA competitions.’”
The NCAA makes money when she and others tune in — whether from TV deals or from people going online to directly purchase the ability to watch single games — and so Barringer said the highlight clips could absolutely be seen as advertising, even if they’re not being used by some other brand or product.
“How is that different than my wanting to go buy shampoo, or a basketball, or whatever — some other tangible item — when it's certainly possible that I would be paying money specifically to be able to watch an NCAA game, and I would have been promoted to do that by watching this watching this clip?” she asked.
Abram said the players would agree, comparing them to artists. Just because an artist allows their work to be shown in a museum doesn’t also mean they automatically agree to let it be used for commercials and ads, he said.
“If the NCAA wants to show the 1983 game for the purpose of people watching the 1983 game, that's [allowed],” Abrams said. “If they want to show the clips for the purpose of advertising anything other than showing the 1983 game, it's not.”
Barringer wasn’t the only justice with pointed questions for the NCAA during Tuesday’s arguments. Democratic Justice Anita Earls raised concerns of the implications for others if the NCAA wins on its argument that the claims are barred by a long-expired statute of limitations.
Theoretically, Earls said, it seems as if they’re arguing that someone could take a video of someone under an agreement on how or how not to use it, but then just wait three years until the statute of limitations ran out. “Then you can use it however you want … in a way that the person never contemplated or consents to,” she said.
Skanshy said it’s not the same, since the NCAA hasn’t exactly been shy about hiding its use of the Cardiac Pack clips. There are laws to protect people who truly didn’t know they were being wronged even if the statute of limitations has run out, he said, but that doesn’t apply here since the rule “is not supposed to utilize or help a plaintiff or excuse a plaintiff from sitting on their rights and sitting on their rights, when, in fact, they've known about it for 40 years.”