NCAA Fires Back at Tennessee Lawsuit Over NIL Pay
In a 25-page brief filed in a Tennessee federal court on Saturday, the NCAA blasted a demand to enjoin “longstanding and fundamental prohibitions against the professionalization of college sports” as unwarranted and spurious.
The brief opposes a motion by Tennessee attorney general Jonathan Skrmetti and Virginia attorney general Jason Miyares for a temporary restraining order and preliminary injunction against NCAA rules barring universities, collectives and other interested parties from offering name, image and likeness deals as inducements to join particular colleges as freshmen or transfers. Precisely which rules, the NCAA says in its response, remain “opaque.”
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The NCAA filing stresses courts regard the type of injunctive relief demanded by plaintiffs as an “extraordinary remedy” necessitating a showing of irreparable harm and a likelihood of success.
Among the alleged defects in the plaintiffs’ argument, the NCAA contends, is that Tennessee law precludes pay-for-play payments. The state’s code forbids compensation “provided in exchange for athletic performance or attendance at an institution.”
The NCAA needles the AGs by writing Tennessee can’t be “irreparably harmed by rules restricting something the state’s laws independently prohibit.”
Another NCAA objection is that the AGs seek to “upend” longstanding rules prohibiting pay-for-play. This is an important point since injunctions granted early in a litigation are supposed to preserve the status quo.
The NCAA claims that lifting pay-for-play rules related to recruiting “would have negative implications reaching far beyond the use of NIL negotiations in collegiate athletic recruitment.” More specifically, the NCAA warns an injunction would “expose” recruits, some of whom are minors, “to bad actors who cajole” them “into entering coercive contracts” and lead to recruits feeling “overwhelm[ed]” with solicitations.
The NCAA also points out the University of Tennessee and other NCAA member schools based in the Volunteer State and Virginia have “long participated” in NCAA governance—as members they propose and vote on rules—and contractually “agreed to be bound” by the same NCAA rules their AGs now seek to invalidate. UT is at the core of the case, since the NCAA is reportedly investigating ties between a UT-focused NIL collective and the recruitment of prospective UT athletes.
Interestingly, the NCAA’s defense draws from a federal class action in California in which it hasn’t fared well. In Re College Athlete NIL Litigation (a.k.a. House v. NCAA) reflects more than 14,500 college athletes suing the NCAA and Power Five conferences. The players, who defeated the NCAA at the motion to dismiss and class-certification stages, argue the NCAA violates antitrust law by enforcing rules forbidding conferences from sharing broadcasting revenue with players, denying revenue opportunities for college sports video games, and barring NIL prior to 2021. The case is headed for trial in 2025 and threatens the defendants with more than $4 billion in damages.
Why would the NCAA invoke a case whose class action certification it ominously warned would signal a “death knell”?
For two reasons.
First, the NCAA contends the AGs—who began their lawsuit last week—are attacking the same rules that have been scrutinized through evidence and testimony since 2020, when In Re College Athlete NIL Litigation began. As the NCAA sees it, the AGs “offer no evidence or argument for why they need injunctive relief on an even faster basis, or why money damages—the traditional remedy—would fail to adequately redress the injuries they claim.”
Preliminary injunctions aren’t normally granted unless there is a risk of irreparable harm, meaning harm that money damages can’t later remedy. The NCAA points out the players behind In Re College Athlete NIL Litigation seek money damages for the same kinds of harms articulated by the AGs as well as a permanent—not preliminary—injunction. The NCAA doesn’t think a court in Tennessee should act so quickly on a one-week-old case when a court in California has been studying an analogous case for years.
Second, UT is a member of a defendant conference (the Southeastern Conference) crucial to In Re College Athlete NIL Litigation. The NCAA implies it is hypocritical for UT to use Tennessee to demand pay-for-play rules be lifted when it is a member of a conference defending those same rules in another litigation.
The NCAA also ridicules what it depicts as scant evidence of harm to college athletes. It notes the AGs have submitted “only one declaration” by a player for the purpose of showing NCAA rules’ alleged “chilling effect” on athletes.
In a sworn declaration, Volunteers offensive lineman Jackson Lampley said it was a “concern” to him that NCAA rules might “force recruits to choose a school without full knowledge of NIL opportunities.” He opined “it is essential that recruits have direct and open conversations with a third party like a collective and commit to a school knowing the full scope of NIL opportunities available to them in college.”
Lampley further observed there’s usually only one NIL collective for each major program—meaning once an athlete signs a letter of intent with a college, neither the athlete nor colleges can entice collectives to compete to sign him or her. This arrangement arguably constitutes an antitrust problem: competing businesses (NIL collectives) are deprived of economic incentive to vie for athletes.
The NCAA criticizes Lampley’s testimony as “not relevant proof” of irreparable harm. The association highlights how Lampley didn’t “offer specific personal knowledge or experience” but instead merely provided his “beliefs” as formed by conversations with other recruits. In addition, Lampley doesn’t “identify any deals or offers he was denied at any point during his career” and instead acknowledges he has been paid NIL money.
“If anything,” the NCAA charges, Lampley’s “declaration is evidence that the challenged NCAA rules are not chilling the NIL market for student athletes.”
Finally, the NCAA portrays the AGs’ case as failing to offer evidence regarding the relevant market, which in antitrust law means the market whose competition has been allegedly impaired. While the AGs cite NCAA v. Alston and Ohio v. NCAA as supportive, neither case involved NIL rules or payments by third parties (collectives). Alston concerned NCAA rules preventing schools from paying athletes for education-related expenses, whereas Ohio is about transfer rules.
The AGs will have a chance to respond, and on Feb. 13, the two sides will argue in court over the potential preliminary injunction. The case has been assigned to U.S. District Judge Clifton Corker, who has referred the matter to U.S. Magistrate Judge—and UT graduate—Debra Poplin.
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