Tennessee and Virginia Score Win in NCAA NIL Recruiting Ban Case
In a stunning rebuke of NCAA amateurism, U.S. District Judge Clifton Corker issued a preliminary injunction Friday barring the NCAA from enforcing any and all rules prohibiting college athletes and recruits from negotiating compensation for NIL with collectives and boosters.
Unless the NCAA successfully appeals the trial judge’s order to the U.S. Court of Appeals for the Sixth Circuit, the injunction will remain in place for months—or possibly longer—depending on when a trial is held for Tennessee & Virginia v. NCAA.
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The order also restrains the NCAA from enforcing its Rule of Restitution (NCAA Bylaw 12.11.4.2) as applied to NIL activities. Under the rule, the NCAA can retroactively impose punishments if a player competes based on an injunction that is later vacated. By taking the Rule of Restitution off the boards, Corker ensures (unless and until he is reversed by the Sixth Circuit) that athletes and schools relying on his order won’t later suffer a penalty if his injunction against the NIL-recruiting ban.
Corker’s order comes after he reluctantly sided with the NCAA earlier this month, when he denied a temporary restraining order sought by Tennessee attorney general Jonathan Skrmetti and Virginia attorney general Jason Miyares. Corker, whom President Donald Trump nominated in 2018, agreed with Skrmetti and Miyares that NCAA rules limiting the use of NIL to recruit high school students and prospective transfers are anticompetitive and run afoul of antitrust principles.
Like much of the NCAA’s system of rules, NIL rules are problematic, because competing businesses (colleges and conferences) have joined hands to suppress how they compete for recruits in ways that limit recruits’ economic opportunities. But Corker reasoned the AGs couldn’t establish irreparable harm—that is, harm that monetary damages can’t later cure.
Corker’s ruling Friday took a harsher tone toward the NCAA and concluded the AGs had established the necessary elements for a preliminary injunction. He wrote the NIL-recruiting ban is a form of price-fixing in that collectives of competing colleges are barred from discussing “prices with [recruits] until after negotiations have resulted in the initial selection of [a school].”
This type of agreement, Corker explained, “suppresses price competition by limiting negotiation leverage, and as a result, knowledge of value.”
The judge underscored that basic economic principles are essential to the protection of college athletes.
“Without the give and take of a free market,” Corker wrote, college athletes “simply have no knowledge of their true NIL value.” He added that the “suppression of negotiating leverage and the consequential lack of knowledge” causes substantial harm to athletes.
Corker’s language struck a similar chord to U.S. Supreme Court Justice Brett Kavanaugh’s evisceration of NCAA rules in NCAA v. Alston, where Kavanaugh described the NCAA and members as a cartel that exploits labor.
Corker was decidedly unpersuaded by NCAA arguments that restrictions on collectives furthers broader goals of the amateur model. Corker noted that since the NCAA is willing to allow college athletes to profit from NIL, there’s no logical reason why the timing of an athlete’s NIL agreement “would destroy the goal of preserving amateurism.” Corker also suggested the NCAA should focus on enforcing other rules—such as colleges paying athletes to play—as a less restrictive means of advancing its goals.
The issue of irreparable harm also played a key role in Corker’s reasoning. He explained that while he previously ruled monetary damages could compensate athletes for lost NIL earnings, “it is now clear that the harm is not strictly monetary.” He explained that athletes have limited windows of time to make a decision about a college, which can cause a type of injury that money can’t necessarily fix.
The ruling is win in particular for the University of Tennessee, which the NCAA has been investigating for ties between a UT-focused NIL collective and the recruitment of prospective UT athletes.
The NCAA can seek a stay of Corker’s order until an appeal is heard and can petition the Sixth Circuit to review.
Whether the NCAA succeeds is another story. Outside of Bewley v. NCAA, the NCAA has struggled in court of late to defend amateurism rules, including in House v. NCAA (In Re College Athlete NIL Litigation) and Ohio v. NCAA. This week former five-star recruit Brian Bowen II petitioned the U.S. Supreme Court to review the property and business value of playing college sports. While attorneys hired by the NCAA are winners in terms of billable hours with the NCAA facing new legal challenges, it’s not clear how long the center of amateurism will hold.
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