Having failed to get a temporary restraining order against the NCAA’s NIL restrictions on Tuesday, the attorneys general of Tennessee and Virginia are now hoping U.S. District Judge Clifton Corker will issue a preliminary injunction against those same rules next week.
Late Friday, AGs Jonathan Skrmetti (Tennessee) and Jason Miyares (Virginia) filed a supplemental brief in support of a motion for a preliminary injunction, hoping to convince Corker that while a TRO may not be warranted, a PI should be. To bolster their contention, they enlisted the help of Tennessee football coach Josh Heupel, who contends in a declaration that the harms arising from the NCAA’s interim NIL policy “are impossible to fix after the fact.”
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Heupel establishes his expert bona fides by citing his 20-year career in college coaching that has included multiple experiences of laboring beneath the dark clouds of “NCAA discipline and penalties.”
“All of these issues were inherited from prior staffs, and none of these were due to my personal actions or actions of those on staff with me,” Heupel wrote. “From that experience, I say with full confidence that each situation causes major harms to players, teams, and the relevant colleges.”
Heupel’s current program is now in the throes of an NCAA investigation, reportedly focusing on whether its starting quarterback, Nico Iamaleava, received benefits from a Tennessee NIL collective and athletic booster organization that run afoul of the association’s ban on player inducements. According to The New York Times, those allegedly impermissible benefits included Iamaleava traveling on a private plane during his recruiting visit to Tennessee last year.
In their latest motion, the plaintiffs are leaning on the fact that while Clifton denied their Tuesday TRO, he still unambiguously signaled his belief that NCAA rules barring universities and collectives from using NIL to recruit players violates federal antitrust law. If they prevail in this latest effort, they effectively will have achieved the same result: halting the NIL restrictions until a trial takes place.
But as Skrmetti and Miyares experienced Tuesday, even if the judge agrees on the underlying legal issues of the case, obtaining an interim remedy can be tricky and requires threading a needle. Judges often find if a TRO isn’t warranted, neither is a preliminary injunction; both require a showing of irreparable harm (among other factors).
Corker previously determined the AGs could not establish the TRO requirement of irreparable harm, meaning a harm that money damages can’t later remedy and is imminent. Players who earn less in NIL due to NCAA rules, the judge reasoned, could later be awarded monetary damages after a trial. Put more bluntly, NIL money is really about money.
To boost their argument, the AGs warn the stakes now are altogether different. While a TRO would have lasted until there is a PI hearing (literally one week—from Feb. 6 to Feb. 13), a PI would last until a trial. No trial date has been set and likely would not occur for months, or longer. So Skrmetti and Miyares stress in their new brief that the amount of harm suffered by players “will balloon” if forced to wait “until the end of trial.”
To that end, the AGs explain that the regular signing periods for football, basketball and other sports will begin and end, as could the transfer portals. Players during this time would have to “make life-altering commitments under rules that deny them information, depress their worth, exploit them and likely violate federal law.”
Skrmetti and Miyares also maintain that even if the harm could be construed as all about money, the damage could nonetheless be deemed “irreparable” because the amount lost is difficult, if not impossible, to calculate. Consider, for example, how much money a recruit could have obtained if schools and collectives could directly pay them NIL money as an inducement–the amount might be viewed as unknowable.
The AGs also insist the harm is “not purely monetary” in part because it “requires the construction of a counterfactual world” where NIL money is determined through bargaining in a free market where collectives compete (as opposed to there being one primary collective for each school). Where an athlete would choose to go to school in this counterfactual world is more than just about money, it’s also about the athlete’s life experiences at one college versus another.
Skrmetti and Miyares also push back against Corker viewing In Re College Athlete NIL Litigation (a.k.a. House v. NCAA) as a reason the AGs failed to show irreparable harm. That case is a class action involving more than 14,500 college athletes suing the NCAA and Power Five conferences and seeking monetary compensation (and, importantly here, not an interim remedy in the form of a TRO or PI) for lost NIL opportunities.
Skrmetti and Miyares try to distinguish In Re College Athlete NIL Litigation from its case by stressing while the former is about comparing actual NIL to zero NIL (the NCAA forbid NIL prior to 2021), the latter is about a less reliably calculable comparison of “actual NIL to a hypothetically higher amount of NIL in a hypothetically competitive market.” The AGs note recruits weigh NIL opportunities as only one factor in their decision to pick a school and other factors, like quality of school, proximity to family and numerous other factors cloud any empirical analysis—and thus, they argue, make the harm more irreparable.
In his declaration, economist Andy Schwarz, an expert witness for the plaintiffs who has also consulted the House class, echoes the AGs’ arguments that the potential damages caused by NCAA are not “estimable by common, formulaic means.”
“(U)nlike the situation in the House case,” Schwarz writes, “there is no comparable benchmark that can be used here to assess an athlete’s NIL value in a world without the rules at issue here … because NCAA’s interim policy prohibits the type of NIL deals that could serve as a benchmark.”
What the AGs call an “NIL-recruiting ban” also—they say—triggers irreparable harm in the form of schools in one state being unable to “lure out-of-state talent” especially if a school, like the University of Tennessee, is “in the NCAA’s crosshairs.” Those schools lose out on recruits who could help them win championships and current players lose out on teammates who might make it more likely they compete for postseason opportunities.
Heupel’s declaration might enhance that line of reasoning. Much of it consists of the coach emphasizing why an athlete finding the right school is important—the “best fit,” he writes, “can make all the difference in a student’s happiness, mental health, personal development and professional future.” He warns that the “wrong environment” sometimes can lead to irreversible harms for the athlete. Heupel also emphasizes that a recruiting-related NIL deal might be the only one an athlete obtains given the “risk of injuries in college sports.” He also criticizes NCAA rules on NIL as “vague and confusing” and subject to “frequent change” that contradicts earlier NCAA statements.
In response to Skrmetti, Miyares and Heupel, expect the NCAA to argue they still lack a credible argument for irreparable harm since the kinds of damages at stake are either curable by monetary damages (compensating the athlete for earning less in NIL than they might have without NCAA restrictions) or too speculative and conjectural for legal redress (maybe a recruit would have picked a different school and had a different athletic career and life in a different world of NIL).
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