If the NCAA convinces U.S. Chief District Judge Sarah D. Morrison to dismiss former Ohio State star Ezekiel Elliott’s lost NIL earnings case, Elliott might have another former Buckeyes star to blame: Terrelle Pryor.
In a recent filing, the NCAA cites Morrison’s dismissal of Pryor’s very similar lawsuit last year as a key ruling.
To date, lawsuits filed by former college stars over lost potential NIL earnings tied to NCAA eligibility rules in force while they played have come up short.
These athletes played before 2021, when the NCAA adopted an interim policy allowing college athletes to earn NIL compensation without losing eligibility, subject to applicable state law and other NCAA rules.
That is true of Elliott and Pryor, as well as former Michigan football stars Denard Robinson, Braylon Edwards, Michael Martin and Shawn Crable; former Kansas point guard Mario Chalmers; former Villanova forward Kris Jenkins; former NC State forward Thurl Bailey; and many others.
Some of these player-plaintiffs may also be affected by class actions—namely, those tied to Ed O’Bannon v. NCAA, Sam Keller v. NCAA and Shawne Alston v. NCAA—that were settled or led to judgments. Those outcomes could bar some players from suing over claims covered by settlement releases or judgments. Whether a player is bound depends on several factors, including class membership and the claims and time periods covered.
Another potential hurdle for players, particularly those like Pryor and Elliott who are litigating in Ohio, is the U.S. Court of Appeals for the 6th Circuit’s 2016 decision in Marshall v. ESPN.
In Marshall, college football players sued TV networks for allegedly misappropriating their likenesses by showing them in game broadcasts without pay. The 6th Circuit, which sets precedent for federal district courts in Ohio, Michigan, Kentucky and Tennessee, rejected their claims. The court emphasized a statutory exception under Tennessee law for sports broadcasts and nixed the players’ assertion that they had enforceable property rights in the broadcasts.
Elliott, the fourth pick in the 2016 NFL Draft, played most of his NFL career with the Dallas Cowboys and earned many accolades while at Ohio State. They included the James E. Sullivan Award, given to the nation’s top amateur athlete; the Chicago Tribune’s Silver Football, which Ohio State described as the newspaper’s Big Ten MVP award; Big Ten Offensive Player of the Year; and Big Ten Running Back of the Year.
In a complaint authored by Evan Selik and Christine C. Zaouk of McCathern, Elliott argues the NCAA, Big Ten and member schools conspired to fix the price of his NIL at zero dollars.
The complaint alleges the defendants used his NIL in advertisements and broadcasts to generate revenue. It further alleges that, after the players left college, the school and licensing partners continued marketing and selling Eliott’s No. 15 jerseys and other Elliott-related merchandise, and that Elliott’s NIL was used to attract more subscribers to the B1G+ platform.
Elliott’s claims arise under California’s antitrust statute, the Cartwright Act, and other California laws. He originally filed his lawsuit in California before it was transferred to Ohio.
The NCAA and Big Ten maintain Elliott’s legal arguments are flawed and that the case should be dismissed.
In a brief authored by Rakesh Kilaru, Michael Ferrara and other attorneys from Wilkinson Stekloff, Dinsmore, Mayer Brown and Squire Patton Boggs, the NCAA argues that Elliott waited too long—10 years after he last played in college—to sue. The delay, the NCAA argues, exceeds the applicable four-year statute of limitations.
Elliott maintains the statute of limitations isn’t a barrier because of the continuing violation doctrine. Under this doctrine, each alleged wrongful use of Elliott’s NIL could constitute a separate act that restarts the clock. In other words, recent uses of Elliott’s NIL—for example, to promote Ohio State or the Big Ten—could support claims that aren’t time-barred.
In response, the NCAA notes that other courts examining lost NIL earnings cases have rejected the continuing violation doctrine. The basic problem, the NCAA asserts, is that if the NCAA and Big Ten broke antitrust law, they would have done so while Elliott played at Ohio State and was denied NIL opportunities. That was too long ago.
The continued use of Elliott’s NIL years after he was a Buckeye doesn’t create a new illegal act; instead, it might mean he suffered additional monetary damages.
That is, assuming too much time hasn’t already passed for him to sue—which the NCAA argues has happened.
Pryor, like Elliott, maintains his NIL continues to be used for promotional purposes without his consent, including in game footage on YouTube, TikTok and social media pages. But the NCAA insists this commercial usage didn’t “give rise to fresh claims,” because it stems from the same alleged wrongdoing that occurred while Pryor played in college. To that point, the NCAA notes that if continued use could restart the limitations clock, there could be an “infinite” limitations period.
Decisions in lost NIL earnings cases set important precedent for potentially thousands of former college athletes who played years ago, some of whom might have been able to land lucrative NIL deals.
These cases also matter to the many colleges that could potentially be on the hook to pay sizable damages if any of these cases succeed.
To date, they haven’t.