This week, a federal judge in the Eastern District of Michigan dismissed a lawsuit brought by four former University of Michigan football players who claimed they had been deprived of profits derived from use of their name, image, and likeness (NIL). Judge Terrence G. Berg granted the motion to dismiss filed by defendants NCAA, the Big Ten Conference, and the Big Ten Network, holding that the statute of limitations had run on claims of all four former players.

Because the former players competed between 2001 and 2012, they are not eligible beneficiaries of the House settlement, which has a class start date of June 15, 2016. Accordingly, these former players sought to certify a class of NCAA athletes who competed prior to June 15, 2016.

This strategy is not novel. As we previously reported, federal judges in both New York and Ohio dismissed similar lawsuits brought by former college athletes Mario Chalmers and Tyrelle Pryor, respectively. In both suits, the plaintiffs proposed classes of student-athletes that pre-dated June 15, 2016. And, in both cases, the respective courts granted the defendants’ motions to dismiss, finding the plaintiffs’ claims time-barred.

The result here was no different. The former players claimed that, by depriving them of profits from the use of their NIL, the NCAA had engaged in an unreasonable restraint of trade under Section 1of the Sherman Act. In his order, Judge Berg noted that antitrust claims under the Sherman Act are subject to a four-year statute of limitations, and claims of unjust enrichment are subject to a six-year statute of limitations. Like Chalmers and Pryor, plaintiffs here argued that the continuing violations doctrine acts to save their claims. Specifically, they argue that, because they feel the adverse impact of defendants’ anticompetitive conduct to this day, their claims are not untimely.

Finding support in both the Chalmers and Pryor decisions, Judge Berg held that the plaintiffs had failed to allege any overt act taken by the plaintiffs in violation of the Sherman Act after 2012, nor did they set forth a timely claim for unjust enrichment. As such, their claims were time-barred. The court also addressed the plaintiffs’ argument that the defendants fraudulently concealed their commercial use of plaintiffs’ NIL, thus preventing the plaintiffs from timely filing their claims. Judge Berg was unpersuaded. He pointed out that the plaintiffs themselves allege that the NCAA bylaws required them to sign forms that transferred their publicity rights to the NCAA each year. Accordingly, he rejected the plaintiffs’ argument that they were somehow unaware of the defendants’ commercialization of the athletes’ NIL.

This decision is the latest bellwether for pre-House athletes seeking to recover for prior use of their NIL. As has become increasingly apparent, the continuing violation doctrine will not save the day.