In Tennessee football vs. NCAA, who is winning? Expert lawyer weighs in | Toppmeyer

I’m not a lawyer, but I sometimes play one in my column. How could I not? The NCAA often gets sued, and college administrators drop phrases like “Sherman Antitrust Act” as casually as they used to say, “sell-out crowd.” I can’t help but write about courtroom goings on.

Anyway, I got straight-A’s in my justice systems classes while earning a minor at college, so I’m basically a lawyer, right?

Not exactly.

Fortunately, when I need help filling in the cracks, I’ve got real lawyers I can call.

Dan Lust knows how to boil down sports law cases to brass tacks for folks like me. Lust is a sports law attorney at Moritt Hock & Hamroff LLP in New York and a sports law professor at New York Law School. He also hosts the popular “Conduct Detrimental” sports law podcast.

Lust and others in the sports law community are abuzz about the ongoing clash between the NCAA and Tennessee.

The NCAA is investigating the Vols for possible NIL violations. UT is fighting back, and the attorneys general from Tennessee and Virginia are suing the NCAA in an antitrust case.

“It’s probably the biggest case so far, of all the various cases out there, about the NCAA’s power,” Lust told me.

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Lust helped me further unpack this:

What’s at stake for the NCAA and Tennessee in this clash?

LUST: “The NCAA was probably best known for enforcement, going after schools and putting people on probation. That’s the NCAA I grew up in. Since July 1, 2021, they really haven’t had any power in that NIL world. So, there’s been some things going on in broad daylight that it seemed as if the NCAA was either unwilling or unable to enforce that area. From an optics perspective, the lawsuit being filed within a day (of the NCAA investigation) becoming public, I think sends a very big message about, the NCAA wants to exert their power, and now the schools are pushing back.

“For the legacy of the NCAA, … this (case) really speaks to the heart of the NCAA being able to punish anybody, across the country, for (NIL).

“For Tennessee, they’re not afraid of getting their hands dirty. … They’re ready to go to war.”

The NCAA hasn’t offered many NIL guidelines, but it had two guidelines from the start: NIL couldn’t be used as a recruiting inducement, and pay-for-play remained a no-no. If this NCAA investigation determines UT or its collective violated those guidelines, can the NCAA enforce its rules and slap Tennessee with stiff penalties?

LUST: “The NCAA, if they’re going to try to enforce their own rules, they’re certainly entitled to do that. Whether those rules are lawful is another question, and whether those (rules) are an unfair restraint of trade, that’s the heart of the lawsuit.

“I don’t know of anything that prevents the NCAA from digging back a year and a half, two years. I just think it’s unfair and perhaps unwise, given the landscape of NIL.

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“The NCAA almost created the ‘Wild, Wild West,’ because the sheriff abdicated town. They were gone. From July 1, 2021, to February 2023, there was no NIL punishments.

“Your question is: Can they do it? Sure. I just think it’s kind of unwise to dig back to incidents pre-Charlie Baker (becoming the NCAA’s president on March 1, 2023).”

Now that sheriff is coming back into town, I’m not sure who wants the sheriff to return. This lawsuit alleges NCAA guidelines run afoul of the Sherman Antitrust Act. Can you explain that act for us?

LUST: “The Sherman Antitrust Act is intended to try to prevent unlawful restraints on trade. It’s intended to allow competition between entities or individuals within the marketplace. Right now, the NCAA’s policies don’t allow a school or a collective or really any type of money to be (used as an inducement), for someone to transfer or to go to a particular school. I think the heart of the Tennessee lawsuit says: Why not? Why is that the case? If the law of our country allows free competition among competitors, and the NCAA isn’t going to allow that competition by allowing students to make a truly informed and above-board decision about the monetary system in place, it’s not really helping competition. If anything, it’s stifling competition, stifling athletes’ freedom of choice.

“There is really this growing discomfort between what the NCAA wants to be the law of the land and what is the law of the land.”

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I think we’re seeing why, for years, the NCAA tried so hard – unsuccessfully – to get federal NIL legislation or federal antitrust exemption. I think they feared something like this was coming.

LUST: “That’s 100% right. They’re caught between a rock and a hard place. They have all these states with different rules. You have a concurring opinion from Justice Brett Kavanaugh in Alston that said the NCAA is not above the law.

“So, you have the Supreme Court with a huge decision against you. You have state laws that are in conflict with one another, that are in conflict with the NCAA’s policy, so they’re trying to find a lifeline somewhere, and a federal law would seemingly wipe out that inconsistency across the state level. It might provide some relief on an antitrust basis.

“In the short-term, there’s all these different arrows pointed at the NCAA. They have to do something to show Congress that they’re trying, and having some enforcement policies makes sense and going after some schools makes sense … but you’re asking for a battle when you start going after (a notable) Power Five program, so it’s just a matter of time before someone turned around and questioned that authority.”

If the NCAA loses this lawsuit, that would effectively prevent them from enforcing its NIL rules, yes?

LUST: “Right now, it’s just a case restricted to Tennessee and Virginia, but I would think the NCAA would be smart and would change their policies instead of inviting 50 lawsuits across the country.”

Seems like the NCAA is often on the losing side in court. Why?

LUST: “The short answer to that question is, the NCAA decided to appeal the Alston case (up to the Supreme Court), and when you have a case that pertains generally to compensation allowable to student-athletes … the Supreme Court ruled so vehemently in the athletes’ favor, 9-0, that case, Alston, it’s going to be cited in every single one of these cases.

“Getting the case to the Supreme Court and losing created bad precedent (for the NCAA) that’s applicable to all 50 states. That’s why, in this era, everybody goes in assuming that the NCAA is going to lose. It’s because of the Alston case.

“That’s the reason why the NCAA goes into this with plus-money in front of it on the sports-law books.”

That’s a gambling joke meaning the NCAA is the underdog in this lawsuit. But, can I place bet on this? Are there actually sports-law betting lines?

LUST: (Laughs.) “No, just a joke from my podcast.”

Armed with my justice systems minor, think I could beat the NCAA in court?

LUST: “Yeah, why not?”

Lust is being too kind. I’ll stick to being an armchair lawyer in my column and let real lawyers do the lawyering.

NCAA lawyers are getting a workout, and the Sherman Act remains a sticky wicket.

Blake Toppmeyer is the USA TODAY Network's SEC Columnist. Email him at BToppmeyer@gannett.com and follow him on Twitter @btoppmeyer.

If you enjoy Blake’s coverage, consider a digital subscription that will allow you access to all of it. Also, check out his podcast, SEC Football Unfiltered, or access exclusive columns via the SEC Unfiltered newsletter.

This article originally appeared on Knoxville News Sentinel: In Tennessee football vs. NCAA, who is winning? Expert lawyer weighs in