Kris Jenkins, who starred on the Villanova men’s basketball team in the mid-2010s, is the latest former college star to sue the NCAA for denying him NIL opportunities while he played and for using his NIL to generate profits. The case will face the same legal hurdles that others like it face.
Represented by attorney Kevin Thomas Duffy, Jr., Jenkins filed a 127-page complaint in the Southern District of New York earlier this month. He contends the NCAA, the ACC, the Pac-12, the Big Ten, the SEC and the Big East violated antitrust law by agreeing to eligibility rules that barred him from capitalizing on his NIL while he played at Villanova from 2013 to 2017. Jenkins says he opted out the proposed NCAA settlement to resolve the House, Carter and Hubbard antitrust cases. He had qualified for inclusion in the settlement since he played D-I men’s basketball as of the settlement class starting date, June 15, 2016.
Jenkins’ case resembles those brought by other former college stars over the last year. Former NC State forward Thurl Bailey and nine teammates from the 1983 NC State men’s basketball championship team, former Kansas Jayhawks guard Mario Chalmers and 15 other former college basketball players, four former University of Michigan football players (Denard Robinson, Braylon Edwards, Michael Martin and Shawn Crable), former USC running back Reggie Bush and former Ohio State quarterback Terrelle Pryor have all brought lawsuits in different courts. They offer the same basic legal argument: The denial of NIL opportunities through eligibility rules accepted by competing colleges and conferences violated antitrust law.
These players owe much of their case logic to former UCLA basketball star Ed O’Bannon, who successfully sued the NCAA on antitrust grounds over the use of players’ NIL in video games and other commercial products without players’ consent and without compensating them. O’Bannon’s case played an instrumental role in states adopting NIL statutes, which in 2021 led the NCAA to permit NIL deals. The antitrust theory offered by Jenkins and the others largely runs the same playbook as O’Bannon.
Jenkins offers a logical take that he was harmed by NCAA rules that forbid players from signing NIL deals, which means using a right they already had, the right of publicity. The right of publicity forbids the commercial use of another person’s identity without their consent. It is central to endorsement, sponsorship, influencing and other types of arrangements that in college sports are coined NIL deals.
Jenkins was a skilled and prominent player at a major D-I program and, as his complaint extensively details, attracted acclaim after he hit the game-winning shot in Villanova’s 2016 national title game against UNC. Jenkins can logically argue he would have enjoyed a lucrative college career had he been able to earn NIL. Making that lost opportunity arguably “worse,” Jenkins wasn’t quite good enough to advance to the NBA and earn millions in the pros. Undrafted by an NBA team in 2017, Jenkins appeared for the Washington Wizards summer league team. He then played in the G League and abroad for a few years before turning to a different career. Jenkins never made NIL or NBA money.
But that doesn’t mean Jenkins—or the other players who have filed similar lawsuits—will prevail in court.
The NCAA declined to comment on the litigation. However, expect NCAA attorneys to offer several types of defenses when they answer Jenkins’ complaint and seek its dismissal.
One defense is to argue Jenkins’ claims are barred by applicable statutes of limitation. Federal antitrust claims have a four-year statute of limitations, while unjust enrichment (another of Jenkins’ claims) usually has a statute of limitations of six or fewer years. Jenkins last played college basketball—and was thus last impacted by NCAA NIL rules—eight years ago. The NCAA will likely argue that is too far back in time for Jenkins to assert claims under antitrust law and unjust enrichment.
In response, Jenkins could argue the relevant time should be tolled or expanded. The use of Jenkins’ NIL continues, the complaint maintains, by his college basketball achievements appearing on the Big East website and social media. The inclusion of the last season of his collegiate career in the House class action, which U.S. District Judge Claudia Wilken certified in 2023, could also be grounds to extend his clock to file.
Additionally, expect the NCAA to also argue that while Jenkins’ complaint refers frequently to NCAA television revenues that were not shared with players, courts have rejected claims that college athletes should be paid for their TV appearances.
Most notably, in Marshall et al. v. ESPN et al. (2016), the U.S. Court of Appeals for the Sixth Circuit tossed a lawsuit brought by college football players demanding compensation for their televised appearances. Although Jenkins’ case is in the Second Circuit and thus Marshall is not binding precedent, expect the NCAA to argue that Marshall is on-point.
To counter that point, Jenkins might highlight how the House settlement–which the NCAA negotiated with attorneys for athletes–involves about $2.8 billion in compensation to settle players’ claims they are owed money for lost NIL, video game and broadcasting opportunities on account of eligibility rules. Jenkins could maintain the NCAA’s willingness to settle is tantamount to acknowledging players should have been paid. On the other hand, a settlement is not precedent on other courts, and Jenkins opted out of the chance to be compensated from the House settlement.
Another defense is that Jenkins accepted NCAA rules as a condition of eligibility. Courts, including in O’Bannon and in NCAA v. Alston, have reasoned that compensation to college athletes that go beyond grants-in-aid must be tethered to college education.
