Once the face of college football, former star running back Reggie Bush now finds himself in a legal battle with the same university that once celebrated his triumphs.[2]
Bush filed a lawsuit in Los Angeles County Superior Court against the University of Southern California (USC), the Pac-12 Conference (“Pac-12”), and the National Collegiate Athletics Association (NCAA).[3] The 2005 Heisman Trophy winner is seeking compensation for the use of his Name, Image, and Likeness (NIL) during his tenure with the USC Trojans.[4]
USC released a statement stating it is unable to address Bush’s allegations because it had not received a copy of the lawsuit.[5] It is unclear whether USC has been duly served with process. A plaintiff in California state court has 60 days from when the suit is commenced to serve the defendant with process and file proof of service with the court.[6]
History between the Parties
Despite the ongoing litigation, Bush’s decorated career as a Trojan remains appreciated. In 2005, Bush recorded 2,218 all-purpose yards and scored 18 touchdowns en route to USC’s undefeated regular season and national championship game berth.[7] “Reggie will always be a revered member of the Trojan Family, and we were very pleased to support his successful efforts to recover his Heisman Trophy,” USC said in its statement.[8]
On the other hand, Bush’s relationship with the NCAA remains one of controversy. In 2010, the NCAA ruled that Bush accepted improper benefits during his time at USC and stripped him of his Heisman Trophy.[9] Though Bush maintained that he was never paid to play football at USC, it took 14 years for the Heisman Trust to return the Trophy to him following the adoption of the NCAA’s new NIL policy.[10]
Bush’s Previous and New Legal Claims
The lawsuit marks the second legal action Bush has brought against the NCAA. In 2023, Bush sued the organization for defamation over comments made by NCAA spokesperson Meghan Durham Wright.[11] The comments were made shortly after the NCAA changed its rules to allow player compensation through NIL. Though Wright didn’t explicitly name Bush, she said, “NCAA rules still do not permit pay-for-play type arrangements,” in response to a question about Bush.[12]
The most recent lawsuit alleges that the defendants violated federal and state antitrust laws by engaging in a conspiracy to not pay Bush compensation for the licensing, use, and sale of his NIL.[13] Bush argues that as he grew more prominent on and off the field, the three entities were unjustly enriched.[14] These parties continued to benefit from Bush’s reputation through lucrative television deals, increased coaching salaries, commercial sponsorships, and licensing agreements throughout his 11-year NFL career.[15]
Bush claims that the rules precluding him from receiving any financial benefits were originally promulgated to maintain “a clear line of demarcation between intercollegiate athletics and professional sports.”[16] As college sports has undergone seismic changes, however, this line has been erased. The NCAA’s principle of “amateurism,” therefore, has been rendered obsolete.
The Changing Landscape of NIL
In 2021, the U.S. Supreme Court's decision in National Collegiate Athletic Ass’n. v. Alston influenced how compensation rules, including those related to NIL, should be evaluated under current antitrust laws. [17] Following this ruling, the NCAA adopted an interim NIL policy allowing athletes to profit from their NIL while deferring to state laws for specific regulations.[18] Consequently, the NCAA and its Power Five Conferences, such as the Pac-12, have been named as co-defendants in several antitrust suits on behalf of former athletes for the use of their NIL.[19]
In a recently proposed House settlement, a collection of antitrust cases against the NCAA, the organization and its members would pay $2.78 billion in damages as “back pay” to athletes deprived of NIL opportunities and revenue sharing.[20] The class of athletes eligible for compensation includes athletes who played Division I sports from 2016 through the present.
The timing of Bush’s filing—mere weeks after Judge Claudia Wilken outlined her “problems” with a provision of the proposed settlement that would limit athlete payments from third parties[21]—should not be overlooked. If retroactive payments to former athletes are to be granted, one may argue that the scope of plaintiffs’ eligibility for compensation should be expanded to include former athletes who played prior to 2016.
Thus, for Evan Selik, Bush's attorney, this lawsuit represents more than merely securing unrecouped NIL benefits: it's a battle to help shape fair treatment for all past, current, and future college athletes. “Our goal is to rectify this injustice and pave the way for a system where athletes are rightfully recognized, compensated and treated fairly for their contributions," Selik said in a statement.[22]
Pasquale Tartaro (staff writer) is a 2L at Villanova University Charles Widger School of Law. He is a member of Basketball Negotiation Team and is interested in intellectual property, employment and contract law. After law school, he hopes to work in the sports and entertainment industry.
References:
[1] Photo by Jacob Rice on Unsplash
[2] Bush Complaint, page 4, line 24, through page 5, line 18, Sept. 23, 2024. https://www.courthousenews.com/wp-content/uploads/2024/09/bush-vs-ncaa-complaint.pdf. (discussing the NCAA permitted Electronic Arts to create and sell NCAA Football 07 with Reggie Bush on the cover. While both video games were the same purchase price, the previous edition, NCAA Football 06, brought in approximately $65 million less ($60 million) than the edition with Bush on the cover [$125 million].)
[3] Jason Clinkscales, Reggie Bush Sues USC, Pac-12, NCAA for ‘Uncompensated’ NIL Use (Sept. 23, 2024) Sportico. https://www.sportico.com/law/news/2024/reggie-bush-sues-usc-pac-12-ncaa-nil-1234798314/
[4] Id.
[5] Paolo Uggetti, Reggie Bush sues USC, Pac-12, NCAA for NIL compensation (Sept. 23, 2024) ESPN. https://www.espn.com/college-football/story/_/id/41402577/reggie-bush-sues-usc-pac-12-ncaa-nil-compensation
[6] CA ST CIVIL RULES Rule 3.110
[7] See https://www.sports-reference.com/cfb/players/reggie-bush-1.html. All statistics from https://www.sports-reference.com/.
[8] See Uggetti, supra, note 4.
[9] See Uggetti, supra, note 4.
[10] See Clinkscales, supra, note 3.
[11] See Clinkscales, supra, note 3.
[12] See Bush Complaint, supra, note 1 at page 8, line 1 through page 13, line 12.
[13] See Bush Complaint, supra, note 1 at page 4, line 3 through line 10.
[14] See e.g., Bush Complaint, supra, note 1 at page 4, line 19 through 23. (“Under the existing television contracts, television networks were paying Defendants…$30.9 million. In 2005 on the heels of Bush’s incredible college football career, USC and the Pac-12 renegotiated those television contracts to be paid $87.6 million – a $56.7 million increase.”).
[15] See Bush Complaint, supra, note 1 at page 9, line 17 through line 23.
[16] See Bush Complaint, supra, note 1 at page 3, line 24 through page 4, line 2.
[17] See National Collegiate Athletic Ass’n. v. Alston, 594 U.S. 69, (U.S., 2021) (finding that the NCAA's restrictions on education-related benefits for student-athletes violated Section 1 of the Sherman Act).
[18] Michelle Brutlag Hosick, NCAA adopts interim name, image and likeness policy (June 30, 2021) NCAA. https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx
[19] Noah Henderson, Reggie Bush Sues USC, PAC-12, and NCAA for NIL Misappropriation (Sept. 24, 2024) NIL Daily. https://www.si.com/fannation/name-image-likeness/nil-news/reggie-bush-sues-usc-pac-12-and-ncaa-for-nil-misappropriation (explaining how former college basketball players such as Mario Chalmers and former Michigan football players have brought suits for use of their NIL recently).
[20] Ben Portnoy, NCAA-House settlement nears another key deadline (Sept. 26, 2024) Sports Business Journal. https://www.sportsbusinessjournal.com/Articles/2024/09/26/ncaa-house-settlement-primer
[21] Id.
[22] See Uggetti, supra, note 4.
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