WILLIAMSON v. PRIME SPORTS MARKETING, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ZION WILLIAMSON, )

)

Plaintiff, )

)

v. ) 1:19-cv-593

)

PRIME SPORTS MARKETING, )

LLC and GINA FORD, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

The Court, on January 20, 2021, entered its Memorandum Opinion and Order granting

Plaintiff’s Motion for Partial Judgment on the Pleadings, (ECF No. 34), and declaring the

Agreement at issue in the case void under the UAAA as a matter of law (“January 20th

Memorandum Opinion and Order”). (ECF No. 49 at 20.) Now before the Court are four

motions by Defendants that all appear to seek the same or related relief. (ECF Nos. 51, 53,

65, 69.)

First, the motion entitled “Defendants’ Motion to Alter or Amend Judgment,”

Defendants request that this Court alter its January 20th Memorandum Opinion and Order

pursuant to Fed. R. Civ. P. 59(e). (ECF No. 51.) Defendants specifically request that the

Court reconsider and alter its position concerning the appropriateness of a court determining

a student’s eligibility to participate in intercollegiate sports under a set of guidelines set by the

National Collegiate Athletic Association (“NCAA”), a private organization. (ECF No. 52 at

7.) According to Defendants, this Court committed a clear error of law by taking a position

that is “contrary to all authority on the subject.” (Id.) Further, Defendants argue “that the

Court is in no way bound by the NCAA’s determination of [Plaintiff’s] eligibility,” which they

argue means that they “should be granted leave to amend their affirmative defenses to include

the factual allegations that, if proven, would demonstrate that” Plaintiff was ineligible to be a

student athlete under the NCAA rules and therefore did not benefit from the protections

afforded to student-athletes under the UAAA. (Id.)

Next, in a document entitled “Defendants Motion for Leave to Amend Answer,

Affirmative Defenses and Counterclaims,” Defendants move to amend their pleadings as

delineated in the caption of the motion pursuant to Rule 15(a). (ECF No. 53.) Defendants

request the opportunity to “specifically allege that Williamson engaged in conduct that violated

NCAA rules, rendering him ineligible and therefore not subject to the protections provided

under the UAAA.” (Id. at 2.) Defendants also, in a motion captioned “Motion to Substitute

Proposed Amended Answer, Amended Affirmative Defenses and Amended Counterclaims in

Pending Motion for Leave to Amend,” move to substitute the proposed pleadings they

submitted in connection with their motion to amend. (ECF No. 65.) Defendants wish to

include information regarding Plaintiff that was presented in a then-pending unrelated matter

in the United States District Court for the District of South Carolina, that has since been

dismissed on the merits with prejudice and to which Plaintiff was not a party. See generally

Bowen v. Adidas Am. Inc., No. 3:18-3118, 2021 WL 2141724 (D.S.C. May 26, 2021). (ECF No.

268).

Finally, Defendants, in a document captioned “Notice of Motion to Vacate January 20,

2021 Partial Judgment on the Pleadings Pursuant to FRCP 60(b)(2) Based Upon Newly

Discovered Evidence,” give notice that they “will move this Court . . . for an Order vacating”

the January 20th Memorandum Opinion and Order “based upon newly discovered evidence.”

(ECF No. 69 at 2–3.) Though this document is captioned as a “Notice,” it has been fully

briefed by the parties and appears to cover the same ground as the motion under Rule 59(e)

with minor exceptions. Thus, the Court will, in the interest of judicial economy, construe this

as a motion to vacate and will address it in this Order. In their motion, Defendants again cite

to the information regarding Plaintiff that was presented in the unrelated, and now dismissed

with prejudice, matter that was before the United States District Court for the District of

South Carolina. The Court will therefore address each of Defendants’ pending motions in

turn.

I. Defendants’ Motion to Alter or Amend Judgment

A. Standard of Review

The Court will briefly address the appropriate standard that applies to Defendants’

Motion to Alter or Amend Judgment. Defendants bring their motion pursuant to Rule 59(e).

(See ECF No. 51.) Plaintiff opposes Defendants’ motion for reconsideration under Rule 59(e),

first on the grounds that it is procedurally improper because Rule 59 motions are reserved for

cases that have proceeded to a final judgment. (ECF No. 57 at 10.) Plaintiff argues that,

because this “Court’s ruling has not yet” reached that stage, the Court may deny Defendants’

motion on this ground alone. (Id.)

In their reply, Defendants state that they sought relief under Rule 59(e) rather than

Rule 54(b) because they felt that Rule 59(e) “best preserved [their] right to appellate review”

because, “[i]f [they] had brought [their] motion for reconsideration under Rule 54 rather than

Rule 59 and been incorrect, the motion would not have tolled the time to file a notice of

appeal.” (ECF No. 63 at 4–5.) Nevertheless, Defendants state that they “agree with the

Plaintiff that [the January 20th Memorandum Opinion and Order] is an interlocutory order

that the Court may reconsider at any time.” (Id. at 5.) While the fact that Defendants

knowingly and intentionally brought a procedurally improper motion before the Court is

concerning, the Court will nevertheless construe Defendants’ motion to “Alter or Amend

Judgment” as one for reconsideration pursuant to Rule 54(b).

Under Rule 54(b) “any order . . . that adjudicates fewer than all the claims or the rights

and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a

judgment.” Fed. R. Civ. P. 54(b). “Said power is committed to the discretion of the district

court” and may be exercised as justice requires. Am. Canoe Ass’n v. Murphy Farms, Inc., 326

F.3d 505, 515 (4th Cir. 2003). Although the Federal Rules of Civil Procedure “do not set out

a[ ] standard for reconsideration of interlocutory orders,” under Rule 54(b), most courts have

frequently looked to the standards under Rule 59(e) for guidance in considering such motions.

Akeva, L.L.C. v. Adidas Am., Inc., 385 F. Supp. 2d 559, 565 (M.D.N.C. 2005); see United States

v. Lovely, 420 F. Supp. 3d 398, 403 (M.D.N.C. 2019). Specifically, courts have considered

whether: “(1) there has been an intervening change in controlling law; (2) there is additional

evidence that was not previously available; or (3) the prior decision was based on clear error

or would work manifest injustice.” Akeva, 385 F. Supp. 2d at 566. While “[t]his standard

closely resembles the standard applicable to motions to reconsider final orders pursuant to

Rule 59(e),” it departs from it “by accounting for potentially different evidence discovered

during litigation as opposed to the discovery of ‘new evidence not available at trial.’” Carlson

v. Bos. Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017) (citing Pac. Ins. Co. v. Am. Nat. Fire Ins. Co.,

148 F.3d 396, 403 (4th Cir. 1998)). Further, like Rule 59(e) motions, Rule 54(b) motions

“should not be used to rehash arguments the court has already considered” or “to raise new

arguments or evidence that could have been raised previously.” South Carolina v. United States,

232 F. Supp. 3d 785, 793 (D.S.C. 2017).

B. Discussion

In its January 20th Memorandum Opinion and Order, the Court concluded that the

Agreement between the parties was void as a matter of law pursuant to § 78C-88 of the UAAA

because the pleadings of both parties revealed there was no genuine dispute that:

(1) Plaintiff was a student at Duke University and playing on Duke University’s

men’s basketball team at the time that the parties engaged one another; (2) he

had not been determined to be permanently ineligible by any governing body at

the time of the agreement; (3) Defendant Ford did not hold the requisite athlete

agent certification as required by North Carolina’s UAAA; (4) the parties

entered into the Agreement; (5) the Agreement permits Defendants to negotiate

or solicit professional-sports-services or endorsement contracts on Plaintiff’s

behalf; (6) the Agreement at issue did not have the statutorily required warning;

and (7) Plaintiff’s family communicated to Defendants that they were

terminating and voiding the agreement.

(ECF No. 49 at 19–20.)

Defendants request that the Court alter its January 20th Memorandum Opinion and

Order “to hold that Defendants may raise the issue of Plaintiff’s ineligibility as a defense to

Plaintiff’s claim that the [Agreement] was void under the UAAA.” (ECF No. 51 at 2.)

Specifically, according to Defendants, they “seek reconsideration to correct a clear error of

law regarding the legal effect of NCAA’s determination of [Plaintiff’s] eligibility.” (ECF No.

52 at 8.) Defendants also argue that the Court, in reaching its determination, “[ceded its]

authority to independently evaluate the Plaintiff’s eligibility status,” which is a position that is

“contrary to all authority on the subject.” (ECF No. 52 at 7.) However, Plaintiff contends

that, in requesting reconsideration, Defendants raise arguments and factual allegations they

did or could have previously raised. (ECF No. 57 at 10.)

As discussed above, under Rule 54(a), there are three situations that would call for a

reconsideration of this Court’s determination: (1) there has been an intervening change in

controlling law; (2) a party has evidence that was not previously available; and (3) the prior

decision was based on a clear error or would result in manifest injustice. Akeva, 385 F. Supp.

2d at 566. In this motion, Defendants do not contend that there has been an intervening

change in the controlling law or previously unavailable evidence. Defendants rest their

arguments exclusively on their contention that this Court made a clear error in reaching its

ruling. (ECF No. 52 at 8.) To qualify as a clear error for the purposes of amending a judgment,

the controverted prior decision must be “dead wrong,” not “just maybe or probably wrong; it

must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead

fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009).

In this motion, Defendants merely rehash their previous arguments that have been

rejected by this Court, (See ECF No. 52 at 3–20), and further argue why they believe “Plaintiff’s

argument[s] find[ ] no support in the rules of statutory construction” and are “not supported

by the case law,” (id. at 9, 15). However, the task before the Court is not to once again analyze

Plaintiff’s arguments but rather to examine whether this Court committed a clear error of law

in reaching its January 20th ruling. As such, the Court understands Defendants’ position to be

that the Court committed clear error in its interpretation of the UAAA and made a clear error

in reaching its determination based upon existing case law.

The Court has considered Defendants’ arguments and, for the reasons that follow,

concludes that there was no clear error of law that justifies amending its January 20th

Memorandum Opinion and Order.

1. The Court’s interpretation of the UAAA did not constitute clear error.

In its January 20th Memorandum Opinion and Order, the Court concluded:

Given the pleadings before the Court, taken in the light most favorable to

Defendants and resolving all inferences in their favor, the Court finds that there

is no genuine dispute that Plaintiff engaged in intercollegiate sports while a

student at Duke University during the relevant time period. Further, there is no

genuine dispute that he had not been declared to be permanently ineligible to

do so at the time of the Agreement. Therefore, there is no genuine issue of

material fact as to whether Plaintiff was a student-athlete under the UAAA

during the time he entered into the Agreement with Defendants.

(ECF No. 49 at 17.) In reaching this determination, the Court considered the pleadings in the

light most favorable to Defendants and found that “Defendants’ affirmative defenses and

counter claims that Plaintiff was not a student-athlete [did] not rely on material allegations of

fact, rather a conclusion of law that flies in the face of their own pleadings as well as

attachments to their pleadings.” (Id. at 15.)

Defendants argue that the Court made a “clear error of law regarding the legal effect

of NCAA’s determination of [Plaintiff’s] eligibility,” (ECF No. 52 at 8), because “the Court is

in no way bound by the NCAA’s determination of [Plaintiff’s] eligibility.” (Id. at 7.)

Defendants point to Jenkins v. Allied Interstate, Inc., in support of their argument that they have

“the right to raise an affirmative defense challenging whether a prerequisite statutory definition

has been met.” (ECF No. 52 at 10–12 (citing Jenkins v. Allied Interstate, Inc., No. 5:08-CV-125-

DCK, 2009 WL 3157399, at *2 (W.D.N.C. Sept. 28, 2009)).) The Court does not find this

case on point, nor is it persuasive. In Jenkins, the plaintiff brought suit against a debt collection

company after receiving calls falsely claiming that she owed money. Jenkins, 2009 WL 3157399,

at *1. As an affirmative defense, the defendant challenged whether the plaintiff was a

consumer and whether the debt collection agency was a telephone solicitor under the relevant

statutory definition. Id. at *2.

The matter before the Court is distinguishable from Jenkins. Here, as discussed at

length in the Court’s January 20th Memorandum Opinion and Order, Defendants’ claims that

Plaintiff was not a student-athlete “flies in the face of their own pleadings as well as

attachments to their pleadings.” (ECF No. 49 at 15.) The Court in Jenkins was not faced with

a defendant that contradicted its own pleadings in challenging whether the parties met the

statutory definitions of relevant terms.

In addition, Defendants argue that under the Court’s construction of the UAAA, “a

student athlete meets the definition of a student athlete until the NCAA declares [him/her] to

be permanently illegible,” and that this construction ceded the Court’s authority to a private

organization. (ECF No. 52 at 13–14.) The Court has considered Defendants’ argument and

disagrees. The Court ceded no authority; rather it used its authority to interpret the UAAA.

The definition of “student-athlete” under the UAAA is “[a]n individual who engages in, is

eligible to engage in, or may be eligible in the future to engage in any intercollegiate sport,”

but not an individual who is “permanently ineligible to participate in a particular intercollegiate

sport.” N.C. Gen. Stat. § 78C-86(11) (2019). The provision of the UAAA that provides the

definition of “student-athlete” does not define “permanently-ineligible” nor provide any

criteria for making such an interpretation. However, as was recognized in McAdoo v. Univ. of

N.C. at Chapel Hill, cited by Defendants to support their contention, “[i]t is well established

that courts will not interfere with the internal affairs of voluntary associations.” 736 S.E.2d

811, 825 (N.C. Ct. App. 2013), (quoting Wilson Realty & Constr., Inc. v. Asheboro–Randolph Bd. of

Realtors, Inc., 518 S.E.2d 28, 30 (N.C. Ct. App. 1999)). Thus here, not only had Plaintiff in this

case not been determined to be permanently ineligible by the NCAA as this Court recognized,

Defendants pleaded only conclusory allegations, not supported by factual allegations specific

to Plaintiff from which this Court could conclude that a genuine issue was raised.

Additionally, Defendants argue that the Court added an additional requirement to the

language of the UAAA that would require Defendants to establish that “there had been a

‘declaration’ by the NCAA that [Plaintiff] had been permanently [ineligible]” in order for it to

plead that Plaintiff was not a student-athlete under the UAAA. (ECF No. 52 at 13.) However,

the Court’s ruling did not stand for a proposition that Defendants must establish that there

had been a declaration by the NCAA that Plaintiff was permanently ineligible. Rather, the

ruling stated that Defendant failed to plausibly allege that Plaintiff was not a student-athlete,

due to permanent ineligibility or otherwise, under the UAAA. The Court finds no clear error

in its interpretation of the UAAA.

2. The Court’s determination is in line with relevant case law and does not

constitute clear error.

Defendants next argue that the Court committed a clear error of law because its

position is contrary to “all authority on the subject.” (ECF No. 52 at 7.) Defendants cite a

number of cases in an apparent response to the Court’s statement that Defendants “provided

no authority, caselaw or otherwise, that suggests that it is for a court to adjudicate the details

of a student-athlete’s eligibility under NCAA rules.” (See id. at 13 (citing ECF No. 49 at 17).)

Defendants contend that they [provided] “authority demonstrating that an agent seeking to

avoid penalties for violation of the UAAA may raise the ineligibility of the athlete as an

affirmative defense” that, they believe, “are dispositive on the issue.” (Id. at 21.) Contrary to

Defendants’ assertion, the Court did not find that a party may never raise the ineligibility of an

athlete as an affirmative defense—rather the Court concluded that Defendants failed to

plausibly allege such a claim or raise such a defense in this case. (ECF No. 49 at 16–17.)

Defendants point to two state court of appeals cases, one from Tennessee and the

other from Mississippi, in support of the proposition that Defendants can raise whether

Plaintiff was a student-athlete as an affirmative defense.1 (See ECF No. 52 at 21–23 (citing

Sloane v. Tenn. Dep’t of State, Bus. Servs. Div., No. M2019-00126-COA-R3-CV, 2019 WL 4891262

(Tenn. Ct. App. Oct. 3, 2019), appeal denied (Apr. 15, 2020), then citing Howard v. Miss. Sec’y of

State, 184 So.3d 295, 300 (Miss. Ct. App. 2015)). Defendants appear to cite to both cases for

the proposition that a defendant has the right to call a student-athlete’s eligibility into question.

The Court finds these cases neither relevant nor persuasive. First, as distinguished from Sloane,

this Court was not engaged in analysis of whether Defendants could raise Plaintiff’s eligibility

as an affirmative defense, but whether Defendants plausibly alleged facts that called Plaintiff’s

eligibility into question.

Second, in Howard, Mississippi’s Court of Appeals determined that an agent failed to

raise a question of eligibility at the trial level. Howard, 184 So.3d at 302. Similar to the reason

the Court did not find Sloane to be persuasive or relevant to the Court’s analysis, the Court

does not find Howard to be relevant or persuasive. The matter before the Court is not a

1 Defendants rely on these cases even though they previously argued that Plaintiff’s reliance on the

same cases at the trial court level was “profoundly misplaced.” (Compare ECF No. 52 at 21–23 with

ECF No. 37 at 18–20.)

question of whether a student-athlete’s eligibility can be called into question if he raises a claim

pursuant to the UAAA. Despite Defendants’ characterization, the Court’s January 20th

Memorandum Opinion and Order did not hold that an agent has no right to challenge an

athlete’s eligibility as a student athlete, but rather that Defendants failed to plausibly allege

facts that raised a question of Plaintiff’s eligibility status.

Defendants proceed to identify a number of cases they contend demonstrate that

student-athletes who have been declared ineligible routinely sue the NCAA in order to have

the determination reversed in various courts. (See ECF No. 52 at 23.) The Court does not

find these cases to be persuasive or relevant on the question of whether a court should step in

and make an initial retroactive determination of eligibility under the guidelines set forth by a

voluntary association.

Defendants also cite to a case that was determined five days prior to this Court’s

January 20th Memorandum Opinion and Order—United States v. Gatto. (ECF No. 52 at 25–26

(citing United States v. Gatto, 986 F.3d 104 (2d Cir. 2021).) Defendants point to dicta contained

in the decision to support their position that a Court can reach a determination of a student-

athlete’s eligibility under the NCAA bylaws. Id. However, Gatto was not a case that was

interpreting the definition of a “student-athlete” under the UAAA, and it is unclear whether

the district court or circuit court actually determined the eligibility of the Gatto defendants or

the process through which such a determination would be made. Gatto involved a criminal

indictment for wire fraud and refers to student-athletes who were ineligible at the time of the

fraud. Gatto, 986 F.3d at 116–17. The case does not outline the process through which they

were determined to be ineligible. The Court does not find Gatto to be persuasive nor relevant

to the instant matter.

Despite Defendants’ many arguments, they have still not provided any relevant case

law that would suggest that it is for this Court to exercise oversight on how private

organizations enforce and investigate alleged violations of their rules. The question the Court

had to determine in interpreting the applicability of the UAAA was not whether Plaintiff could

have conceivably been found permanently ineligible by the overseeing collegiate association or

should have been found permanently ineligible, but rather whether Defendants had sufficiently

alleged that he was permanently ineligible. The Court concluded that Defendants failed to do

so.

Finally, Defendants take issue with the Court’s January 20th Memorandum Opinion

and Order which stated that Plaintiff effectively terminated and voided the Agreement by

letter. (ECF No. 52 at 27.) If not abundantly clear before, the Court will now clarify that that

Agreement was voided by this Court in its January 20th Memorandum Opinion and Order.

(See ECF No. 49 at 20 (stating “The Court hereby declares that the Agreement entered into

by the parties is void as a matter of law under N.C. Gen. Stat. § 78C-88 (the ‘UAAA’).”).)

Further, the Court did not use Plaintiff’s termination of the Agreement as an independent

basis to reach its determination to grant judgment on the pleadings in favor of Plaintiff.

Rather, the Court determined that the Agreement was void as a matter of law pursuant to

§ 78C-88, which provides in subsection (d) that “[a]n agency contract resulting from conduct

in violation of this section is void, and the athlete agent shall return any consideration received

under the contract”; not pursuant to § 78C-94(d), which discusses when a contract is voidable

by a student-athlete. (See ECF No. 49 at 20.)

Thus, the Court concludes that Defendants have failed to establish that amendment,

alteration, or vacature of the Court’s January 20th Memorandum Opinion and Order in this

matter is necessary or appropriate as there was no clear error or manifest injustice to prevent.

Defendants’ Motion to Amend Judgment will, therefore, be denied.

II. DEFENDANTS MOTION TO AMEND THEIR PLEADINGS (RULE 15(A))

A. Standard of Review

The decision of whether to grant or deny a motion to amend a pleading lies within the

sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); Deasy v. Hill,

833 F.2d 38, 40 (4th Cir. 1987). Courts should freely grant leave to amend a pleading “when

justice so requires.” Fed. R. Civ. P. 15(a)(2). Thus, a request for “leave to amend a pleading

should be denied only when the amendment would be prejudicial to the opposing party, there

has been bad faith on the part of the moving party, or the amendment would be futile.” Johnson

v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman, 371 U.S. at 182). An

“amendment to add an affirmative defense is futile ‘when the proposed affirmative defense is

not a defense to liability,’ that is, when ‘the proposed affirmative defense lacks a sound basis

in law.’” In re Currency Conversion Fee Antitrust Litig., 264 F.R.D. 100, 118 (S.D.N.Y. 2010)

(quoting Greenes v. Vijax Fuel Corp., 326 F. Supp. 2d 464, 466, 468 (S.D.N.Y. 2004)). The

Fourth Circuit has cautioned that “[l]eave to amend, however, should only be denied on the

ground of futility when the proposed amendment is clearly insufficient or frivolous on its

face.” Johnson, 785 F.2d at 510.

B. Discussion

Defendants seek leave to amend their Answer, Affirmative Defenses, and

Counterclaims. (ECF No. 53.) Defendants seek to allege specific violations of NCAA rules

by Plaintiff or his representatives, (id. at 2), but not to allege that the NCAA determined that

Plaintiff was permanently ineligible for the alleged violations. According to Defendants, “[i]t

is undisputed that any one of these ‘activities’ would violate NCAA rules and would have cost

[Plaintiff] his eligibility to play basketball at Duke.” (ECF No. 56 at 2 (emphasis added.))

These are two distinct allegations that are at the crux of the Court’s determination and are fatal

to Defendants’ argument.

First, Defendants seek to allege specific violations of the NCAA rules by Plaintiff or

his representatives. (See ECF No. 54 at 2.) To allow Defendants to amend their Answer,

Affirmative Defenses, and Counterclaims would be futile because, even if Defendants were to

show that these violations occurred, the proposed amendments would still suffer from a fatal

flaw—they do not plausibly allege that Plaintiff was permanently ineligible to participate in

intercollegiate basketball at the time he entered into the contract with Defendants. Here again,

Defendants confuse what is before the Court. In analyzing the UAAA, the Court is not tasked

with undertaking an analysis of whether a student athlete engaged in activities that should have

rendered him permanently ineligible to participate in a particular intercollegiate sport. The

UAAA states that a student is not a student-athlete if that individual is permanently ineligible,

not if an individual engages in activities that would make him permanently ineligible. Defendants

seek to simply amend their pleadings to argue points that were initially lacking in their

pleadings and briefing. In other words, Defendants merely seek to relitigate arguments

previously raised and rejected.

Review of the proposed amended complaint reveals that Defendants wish to set forth

additional allegations enumerating alleged gifts of payments received by Plaintiff and/or his

family. (ECF No. 56-1 at 8–9, 12, 27–31, 57.) However, in Defendants’ original Answer,

Affirmative Defenses, and Counterclaims, they had already alleged that “Plaintiff was not a

‘student athlete’ as define[d] by the NCAA and/or as defined by the UAAA as the Plaintiff

and/or third parties acting on the Plaintiff’s behalf had violated one or more of the NCAA

and/or UAAA rules that voided the Plaintiff’s eligibility and rendered him ineligible to be a

‘student athlete.’” (ECF No. 32 at 24.) These arguments, therefore, have already been raised.

Defendants subsequently filed a motion to substitute their proposed Amended

Answer, Affirmative Defenses, and Counterclaims associated with the motion to amend.

(ECF No. 65.) Defendants seek to include information that was presented in the unrelated

matter of Bowen vs. Adidas that was before the United States District Court for the District of

South Carolina. (ECF No. 66 at 1 (citing Bowen, 416 F. Supp. 3d at 574.) Defendants argue

that a number of things regarding Plaintiff and his family were revealed in that litigation which

serve as evidence that Plaintiff was an ineligible student-athlete under NCAA Rules. (Id. at 1–

2.) Defendants go on to provide a declaration from defense counsel that attaches interrogatory

responses that were provided in Bowen and a deposition transcript. (ECF Nos. 67-1, 67-2.)

According to Defense Counsel, these exhibits serve as evidence that Plaintiff and/or his family

received improper benefits when he was a high school student and, therefore, he was ineligible

to be a student athlete under NCAA guidelines. (ECF No. 67 at 2.)

Defendants’ proposed amendments do not cure the deficiencies the Court previously

identified in granting Plaintiff’s motion for partial judgment on the pleadings and declaring

the Agreement void. Defendants proposed substitute amendments likewise fail. The

additional allegations about alleged violations of NCAA rules are futile as they would not

change the analysis conducted by the Court in reaching its determination that Plaintiff was not

“permanently ineligible” under the UAAA during the relevant time period. Specifically, the

proposed amendments do not dispute this Court’s previous determination that:

(1) Plaintiff was a student at Duke University and playing on Duke University’s

men’s basketball team at the time that the parties engaged one another; (2) he

had not been determined to be permanently ineligible by any governing body at

the time of the Agreement; (3) Defendant Ford did not hold the requisite athlete

agent certification as required by North Carolina’s UAAA; (4) the parties

entered into the Agreement; (5) the Agreement permits Defendants to negotiate

or solicit professional-sports-services or endorsement contracts on Plaintiff’s

behalf; (6) the Agreement at issue did not have the statutorily required warning;

and (7) Plaintiff’s family communicated to Defendants that they were

terminating and voiding the agreement.

(ECF No. 49 at 19–20.)

The Court determines that the proposed amendments Defendants wish to include in

their Answer, Affirmative Defenses, and Counterclaims would be futile. As such, the Court

denies their motion to amend and their motion to substitute the proposed amendments.

III. DEFENDANTS’ MOTION TO VACATE

Defendants’ last motion before the court is a motion to vacate this Court’s January 20th

Memorandum Opinion and Order. (ECF No. 69.) Defendants contend that they are entitled

to relief from the Court’s previous order due to newly discovered evidence pursuant to Federal

Rule of Civil Procedure 60(b)(2). (Id. at 2–3.)

Rule 60(b) allows a court to “relieve a party . . . from a final judgment, order or

proceeding” on a limited number of grounds. Fed. R. Civ. P. 60(b). Setting aside for the

moment that the Order in question is not a final judgment or order, as a threshold matter, to

prevail on a 60(b) motion, a party must demonstrate “[1] timeliness, [2] a meritorious defense,

[3] a lack of unfair prejudice to the opposing party, and [4] exceptional circumstances.” Dowell

v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). “After a party has

crossed this initial threshold, [it] then must satisfy one of the six specific sections of Rule

60(b).” Id. Of these specific sections, Rule 60(b)(2) provides that on a motion and just terms,

the court may relieve a party from a final judgment, order, or proceeding when there is “newly

discovered evidence that, with reasonable diligence, could not have been discovered in time

to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2).

Defendants’ motion to vacate points to the same information from the Bowen case

discussed above. As the Court determined above, this “newly discovered evidence,” even if

taken as true, has no bearing on the basis for the Court’s ruling. “A meritorious defense

requires a proffer of evidence which would permit a finding for the defaulting party or which

would establish a valid counterclaim.” Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp.,

843 F.2d 808, 812 (4th Cir. 1988); see Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989)

(stating that to obtain relief under Rule 60, a party must demonstrate, among other things, that

newly discovered evidence is “material,” and either “likely to produce a new outcome if the

case were retried” or “would require the judgment to be amended”). In the instant matter, as

discussed above, the evidence Defendants offer does not meet this threshold requirement as

it does not provide a meritorious defense, nor would it likely produce a new outcome of the

Court’s determination.  It appears to this Court that Defendants are asking, in multiple ways,

that it change its mind on its finding that Defendants failed to plausibly allege that Plaintiff

was permanently ineligible to be a student athlete despite his enrollment in Duke University

and participation on its men’s basketball team. A motion that is “nothing more than a request

that the district court change its mind . . . is not authorized by Rule 60(b).” United States v.

Williams, 674 F.2d 310, 313 (4th Cir. 1982). As such, Defendant’s motion to vacate is denied.

IV. CONCLUSION

It appears that Defendants wish to engage in a fishing expedition into the backgrounds

of Plaintiff, his parents, and his associates. Defendants attempt both to relitigate matters

which have been addressed by the Court and, in some instances, introduce evidence that could

have been raised prior to the Court’s entry of its January 20th Memorandum Opinion and

Order. Further, the Court finds that any newly discovered evidence Defendants wish this

Court to consider would not likely change the Court’s January 20th Memorandum Opinion

and Order for the reasons described in this Memorandum. The Court will therefore deny all

four of Defendants’ pending motions.

Therefore, the Court enters the following:

[Order on next page]

ORDER

IT IS THEREFORE ORDERED that Defendants’ Motion to Alter or Amend

Judgment, (ECF No. 51), is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion for Leave to Amend

Answer, Affirmative Defenses, and Counterclaims, (ECF No. 53), is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion to Substitute its Proposed

Amended Answer, Affirmative Defenses, and Counterclaims, (ECF No. 65), is DENIED.

IT IS FURTHER ORDERED that Defendants’ Motion to Vacate January 20, 2021,

Partial Judgment on the Pleadings, (ECF No. 69), is DENIED.

This, the 15th day of September 2021.

/s/ Loretta C. Biggs

United States District Judge