In an opinion last week, Judge Engelmayer dismissed a class action brought by 16 student-athletes against the National Collegiate Athletic Association (the “NCAA”) over claims arising from NCAA’s use of the student-athletes’ names, images, and likeliness (“NIL”) in advertisements and other commercial endeavors. The plaintiffs’ amended complaint alleges unjust enrichment and violations of the Sherman Act, including a conspiracy aimed at suppressing the market for the plaintiffs’ NIL and a monopolization of the markets for student-athlete labor, images, and footage.

Because each of the plaintiffs played collegiately before June 2016, the opinion concluded that the student-athlete plaintiffs’ Sherman Act claims fall outside of the Act’s four-year statute of limitations and are thus untimely, given that the plaintiffs entered in the allegedly illegal NIL agreements over a decade ago.  Plaintiffs argued, among other things, that under the “continuing violation” doctrine, each use of a plaintiff’s NIL right is a “new antitrust injury” that “restarts the limitation period.” Judge Engelmayer was unconvinced, stating:  “The use by the NCAA or a conference defendant of a plaintiff’s NIL acquired in the 1990s or early 2000s is a continuing effect—a consequence—an outgrowth of the alleged anticompetitive conduct. It is not a part of it.”

The opinion further noted that plaintiffs’ injunctive relief claims are barred by the doctrine of laches, emphasizing that plaintiffs took over a decade to bring this case even as “parallel” lawsuits were brought against the NCAA years earlier, and “have not shown a good excuse” for “s[itting] on their hands for more than a decade.”

Finally, Judge Engelmayer also agreed with the NCAA’s argument that injunctive relief claims and some of the plaintiffs’ damages claims are barred by the doctrines of preclusion based on O’Bannon v. NCAA and NCAA v. Alston, which respectively concerned the NCAA’s use of collegiate players’ NIL rights and NCAA’s rules on collegiate players’ compensation.  Plaintiffs’ arguments against claim preclusion—that the cases derive from different factual events and are based on different antitrust theories—were unavailing.

“Plaintiffs’ second argument against claim preclusion is that the two cases derive from different factual events. That argument fails both because the factual bases (here, defendants’ collusion to compel student-athletes to agree to cede their NIL rights; in O’Bannon, defendants’ commercial exploitation of those rights) are substantively all but identical; and because, even if their subtle shadings distinguished them, the claims here could have been raised in O’Bannon… Plaintiffs here seek the same relief, namely compensation for the exploitation of their NIL rights and a declaration that commercial usage of their NILs violates antitrust laws. Plaintiffs here conceded as much at argument… Contrary to plaintiffs’ contention, there is also no consequential difference between the antitrust theory pursued in O’Bannon and that pursued here.” (citations omitted).