By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
The Cardiac Pack is back together again and wants to take your breath away like it did during it sensational and drama-filled 1983 college basketball season. That’s right, ten members of that North Carolina State University 1983 men’s basketball team, Thurl Bailey, Alvin Harrell Battle, Walt Densmore, Tommy Dinardo, Terrence Patrick Gannon, George Calvin McClain, Cozell McQueen, Walter Proctor, Harold Lew Thompson and Mike Warren, have chosen a different court to play upon, that being the court of law when they jointly filed a five-count complaint against the National Collegiate Athletic Association (NCAA) and Collegiate Licensing Company (CLC) in the General Court of Justice, Superior Court Division, Wake County, North Carolina.[1] The Cardiac Pack’s claim against the two defendants, the NCAA and CLC is that these parties colluded to create an unreasonable restraint of trade in violation of N.C. Gen. Statute § 75-1 and 75-2, engaged in monopoly maintenance and monopoly leveraging in violation of N.C. Gen. Statute § 75-2.1, participated in unfair and deceptive trade practices in violation of N.C. Gen. Statute § 75-1.1, and misappropriated the use of their name, image, and likeness, and publicity rights, while also invading their right of privacy.[2]
By way of background, the Cardiac Pack is the nickname for the North Carolina State Wolfpack team under the coaching of the late Jim Valvano that won the 1983 NCAA National Championship, doing so by winning nine games in overtime or by a single point throughout both the ACC and NCAA Tournaments before securing the title with a last second dunk by Lorenzo Charles to win the final game over the highly favored University of Houston team. Their series of victories were frequently mentioned during this year’s North Carolina State men’s basketball team’s 2024 March Madness run to the Final Four.
The gravamen of the lawsuit centers around the belief that the NCAA has profited from the Cardiac Pack’s publicity rights for more than four decades by using such rights to advertise the NCAA Men’s Basketball Tournament, a sport property that earns the NCAA billions annually. Specifically, the Pack’s complaint reads “The NCAA has used the images and videos of the members of the Cardiac Pack to advertise its March Madness tournament, as well as for other commercial purposes, without the player’s consent and while paying them nothing.”[3]
Not holding back, the Pack goes on the offensive and claims that “The NCAA has for decades leveraged its monopoly power to exploit student-athletesfrom the moment they enter college until long after they end their collegiate careers. It has conspired . . . to fix the price of student-athlete labor near zero and make student-athletes unwitting and uncompensated lifetime pitchmen for the NCAA.”[4]
The Cardiac Pack’s lawsuit, which references the 2021 U.S. Supreme Court ruling in NCAA v. Alston which found that the NCAA enjoys “monopsony,” or buyer-side monopoly power, in the “market for student-athlete services,” is part of a broader movement that recognizes and acknowledges the economic rights of student-athletes that has culminated recently. In addition to Alston, the Pack will undoubtably rely on the House vs. NCAA (No. 4:20-cv-03919, (N.D. Ca. 06/15/2020) billion-dollar settlement that obliges the NCAA pay out approximately $2.8 billion to former student-athletes who were prohibited from monetizing their Name, Image and Likeness (NIL) prior to July 1, 2021. Those entitled to share in the settlement include 14,500 former Division I athletes who played collegiate sports between June 15, 2016, up until the time that the class was established. Any monies will be paid out by the NCAA to those who would have been compensated for the commercial use of their NIL, including video games and broadcasts, but were denied because of the NCAA rules that were in effect at the time.
With the NCAA earning approximately $1 billion annually for the media rights to March Madness, the Cardiac Pack’s lawsuit is a formidable call for accountability and fair compensation for student-athletes. As stated in its complaint: “Student-athletes’ value to the NCAA does not end with their graduation; archival footage and other products constitute an ongoing income stream for the NCAA long after the students whose images are used have moved on from college.”[5]
On July 8, 2024, the chief justice of North Carolina’s Supreme Court designated the Cardiac Pack’s lawsuit as a “mandatory complex business” case, writing, “As Chief Justice of the Supreme Court of North Carolina, by virtue of authority vested in me by the Constitution of North Carolina, and in accordance with the laws of North Carolina, the Rules of the Supreme Court and, specifically, N.C.G.S. § 7A-45.4(a) and (b), I hereby designate the above-referenced case as mandatory complex business.”
Complex or not, no one should count the Cardiac Pack out with regards to this lawsuit. They have time and time again beat the odds, rallying around Coach Valvano’s admonition to “survive and advance.” That being said, the odds the Cardiac Pack will win its lawsuit against the NCAA and CLC: 54 to 52. (Look it up).
[1] Sidney Lowe, Ernie Meyers and Dereck Whittenburg are not listed as plaintiffs in the case, nor are the estates of Lorenzo Charles and Quinton Leonard. Note – Meyers and Whittenburg are currently employed at N.C. State.
[2] Members of the NC State University’s 1983 NCAA Men’s Basketball National Championship Team v. NCAA & CLC, 24CV0177715-910 filed June 10, 2024.
[3] Id. at p. 2.
[4] Id at p. 3.
[5] Id. at p. 19.
