USC believes Reggie Bush’s lawsuit over unpaid NIL compensation ‘has no merit.’ Does it?

LOS ANGELES — In early September, as Matt Barkley charged from the tunnel at the Coliseum with an index finger pointing to the sky, the former USC quarterback flashed a little too hard back to his playing days and headbutted his bare face directly into a helmeted Trojan.

“I don’t know if we can top that,” Barkley grinned on the sidelines, the bridge of his nose cut, in a video on USC Athletics’ YouTube.

Maybe they couldn’t have. But in a different world – a world that seemed set two weeks earlier, actually – that tunnel captain could have been Reggie Bush.

In the month since, best-laid plans for a triumphant Bush return to USC have been scrapped amid a haze of legal drama. In late September, the Heisman Trophy-winning running back leveled a lawsuit against USC, the Pac-12 and NCAA that USC’s athletic department found out about via a press release from Bush’s team. Filed to the Los Angeles County Superior Court, the complaint alleges that USC, alongside the Pac-12 and the NCAA, are “engaging in an overarching conspiracy to not pay Bush compensation for Defendants licensing, use, and sale of his name, image and likeness.”

It’s the latest chapter in a record of legal aggressiveness by Bush to reclaim damages from his collegiate past. In August 2023, he launched a defamation suit against the NCAA, wedging his foot back in the door of a long fight to recover his 2005 Heisman Trophy. It worked, in one form or another, as the Heisman Trust eventually re-bestowed Bush with his trophy in April – although the Trust’s associate president Tim Henning emphasized repeatedly to the SCNG that the decision wasn’t “based on any one single factor.”

This latest fight, though, is particularly complex in the context of Bush’s relationship with USC, and even more complex in its legal footing. In addition to several forms of monetary relief, the complaint calls for a specific injunction against the NCAA, USC and Pac-12 from “enforcing their unlawful and anticompetitive agreement” around NIL guidelines. By proxy, if Bush won against the NCAA, such an injunction would apply to the entirety of college football.

“I think it’s a Hail Mary pass,” said longtime injury and trial lawyer David Ring, speaking on the injunction, “on his part.”

Bush’s lawyers did not respond to repeated requests for comment on their perception of the legal validity in his case.

“We believe the lawsuit has no merit,” USC said in a statement to the Southern California News Group. “We look forward to defending ourselves against the lawsuit in court.”

As Bush takes on the NCAA yet again – and has now officially roped USC into the fight – here’s a breakdown of the factors in his case.

How did USC and Bush get here, exactly?

Months after Bush’s Heisman had been finally returned to Heritage Hall, after Bush’s No. 5 was finally draped over the peristyle at the Coliseum, a source with knowledge of the situation told the Southern California News Group that Bush had agreed to lead USC out of the tunnel against Utah State on Sept. 7.

In early August, the source said, USC’s athletic administration held a meeting with the football program to discuss logistics around Bush’s return for the home opener. Messaging would revolve around restoring Bush’s name and legacy at USC, after a longtime separation between the legendary running back and the university stemming from the NCAA’s decades-old improper-benefits investigation and stripping of Bush’s Heisman.

And then matters veered sideways.

Amid ongoing conversations with USC, Bush requested the university aid his efforts to restore his and USC’s 2005 records, which he had petitioned the NCAA over as a part of that defamation suit. USC obliged, holding a “handful of conversations” with both the Big Ten and the NCAA around such possibility, the source said. But a couple of weeks before Bush was scheduled to run from the tunnel, the source said, USC got word his team had additional asks.

Levi McCathern, Bush’s lawyer, told the Los Angeles Times that they requested USC reimburse Bush for his legal fees during his long fight to reclaim his Heisman. USC pulled back on Utah State, and resumed discussion over a new date for Bush’s appearance.

“The tone of conversations changed a little bit,” the source said, “but I don’t think there was any expectation that we were about to get sued.”

When asked for comment on a variety of factors – the planned Utah State appearance, Bush’s request for USC to work with him on record-reinstatement and his additional asks for USC to to pay lawyer fees two weeks before the opener – McCathern wrote in a statement that “the source is not accurate.”

“The university, conference and NCAA failed Reggie Bush,” McCathern wrote. “He came to them as an 18-year-old kid who wanted nothing more than to play the game he loved. He left after having made everyone else involved hundreds of millions of dollars. While he was branded as a cheater despite never taking a single dime to ‘play for pay.’”

“I think this issue is a little bigger than Utah State.”

What is the validity of Bush’s main arguments?

In one respect, Bush clearly has a strong basis.

“I mean, his NIL was definitely used without compensation, so he’s 100% right there,” said Mit Winter, a leading attorney in collegiate athletics.

Indeed, Bush’s lawyers point to a variety of examples of his name, image and likeness being used without “one cent in compensation” in the complaint. There’s a specific allegation USC made approximately $30 million on the sale of Bush jerseys, a nod to Bush’s appearance on the cover of the video game “NCAA Football 07,” and a broader point to USC and the Pac-12’s renegotiation of TV contracts in 2005 on the heels of Bush’s Heisman season.

The widespread issue with such arguments, though, is that Bush’s claims might fall outside California’s statute of limitations. Take the landmark House v. NCAA settlement, which received preliminary approval Monday from Judge Claudia Wilken and calls for $2.8 billion worth of backpay in NIL damages to NCAA athletes – but only for athletes dating to 2016. Lawyers anticipate Bush’s claims to damages might simply fall too far in the past for a court to consider them significant.

Bush’s lawyers, though, argue in the complaint that the defendants “continue to commit violations of the federal antitrust laws and common law.” That “continue to” is key. Essentially, as experts anticipate, Bush will likely assert that the statute of limitations won’t apply in this case as varying institutions continue to profit off his NIL.

Such an argument isn’t unique, amid a flood of similar lawsuits. Most recently, former Ohio State quarterback Terrelle Pryor sued his alma mater, the Big Ten and NCAA over uncompensated usage of his NIL. The tough proposition, as lawyers see it, is that any acceptance of these claims would completely open the floodgates for an entire generation of former NCAA stars to level similar litigation.

“I mean, judges do think in practical terms about these things,” said Michael LeRoy, an expert in collegiate athletics labor law.

Where do things go from here?

The first hurdle, a rather important one: Bush hasn’t yet filed proof he’s actually served the complaint, according to the L.A. County Superior Court’s case system. He is scheduled for a show-cause hearing to address that in late January.

USC and other defendants’ first action, lawyers anticipate, will be a motion to dismiss the case on the grounds of such statute of limitations, arguing Bush’s claims fall too far in the past to be legally significant. Judge Colin Leis’ determination there could either shut Bush’s lawsuit down instantaneously or set up a massive legal fight for USC and the NCAA.

For the time being, meanwhile, it’s safe to say there won’t be any Bush appearances around the Coliseum. But there’s no hard feelings, publicly, from USC.

“Reggie is a Trojan for life,” a USC athletics spokesperson wrote in a statement shared with the Southern California News Group, “and we remain committed to restoring and honoring his legacy and celebrating him with our fans at every opportunity.”