Tennessee, Virginia issue response in NIL lawsuit against NCAA

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The attorneys general in Tennessee and Virginia filed their response Sunday to the NCAA, supporting a temporary restraining order that would lift the ban on NIL in high school recruiting.

In a 16-page response issued after the NCAA filed its opposition to the TRO on Saturday, the two states argued they’re seeking the Eastern District of Tennessee to lift the NIL-recruiting ban to “engage in meaningful NIL discussions with collectives.” The response also pushes back on the premise the TRO and preliminary injunction would permit pay-for-play.

This all comes in the wake of the NCAA launching an investigation into Tennessee athletics this past week for potential multiple NIL violations. Attorneys general in Tennessee and Virginia filed the antitrust lawsuit last Wednesday with a request for a TRO before Tuesday, Feb. 6 – the day before National Signing Day. A preliminary injunction hearing has been scheduled for Tuesday, Feb. 13.

“To the extent there’s confusion on which rules the NCAA thinks give it the power to enforce the NIL-recruiting ban, that problem is one of the NCAA’s own creation,” the filing states. “The NCAA cannot benefit from the fact that its rules – scattered across a 437-page manual – are often impenetrable, shifting, and vague. Any uncertainty or burden from that approach to governance should fall on the drafter, the NCAA, not on prospective athletes.”

NCAA ‘misreads’ Tennessee NIL law

In the NCAA’s opposition response Saturday, it states the two states did not provide evidence of how NIL rules impact athletes or irreparable harm. The attorneys general responded Sunday, making clear the irreparable harm that high school recruits face by not knowing their true NIL value while being forced to make commitment decisions.

“Every day that passes once the signing period opens would impose further irreparable harm on recruits who face mounting pressure to commit as available scholarships disappear and roster spots fill up during an ever-shrinking window,” the response reads.

“The NIL-recruiting ban injures athletes, in both Virginia and Tennessee, by artificially deflating their value in the marketplace. And athletes who get even close to the line, whether that line is drawn by the NCAA now or later, could have their eligibility taken away or their school competitively sanctioned. Either would further impact their NIL opportunities for the remainder of their brief opportunity to participate in college athletics.”

Another key part of the NCAA’s argument was that the state of Tennessee’s law prohibits high school prospects and transfer portal players from receiving compensation for enrollment — pay-for-play. The attorneys general claim the NCAA “misread” the state law.

“The NCAA misreads Tennessee’s law,” according to the reply. “The law merely prohibits ‘pay-for-play,’ like the NCAA itself has long done, and that Plaintiffs do not challenge here.”

Tennessee, Virginia call NCAA’s NIL rules ‘shifting’

At its root, the case is an antitrust lawsuit arguing the NCAA does not have the right to put restrictions on compensating college athletes. Tennessee’s fight against the NCAA has not been limited to the courtroom. Many prominent Tennessee politicians have vocally supported the Vols. Tennessee athletic director Danny White released a blistering statement on Thursday.

Part of the NCAA’s pushback to the TRO request stated that permitting NIL for high school athletes would “invite chaos.” However, Tennessee and Virginia argue they’re seeking a single rule change, not a wholesale change to the NCAA system.

“As Plaintiffs have made clear, their requested relief is narrow,” the filing states. “It would not permit pay-for-play; nor would it upend other NCAA rules that govern the recruiting timeline, the recruiting process, or myriad other aspects of college sports. Rather, Plaintiffs seek an order ‘enjoining the NCAA’s NIL-recruiting ban’ to permit prospective college athletes (and current college athletes in the transfer portal) to engage in meaningful NIL discussions with collectives and others before committing to a particular institution.”

Booster-driven NIL collectives have become crucial in retaining and attracting top talent. Collectives make up roughly 90% of all dollars in the space. They have become the recruiting tool in college football. 

The NCAA placed its interim NIL policy into place in July 2021, finally allowing athletes to monetize their publicity rights. But the move came after mounting pressure from states enacting laws. Since then, the NCAA has released new guidelines and has attempted to take steps to curtail inducements.

The attorneys general for Tennessee and Virginia closed their briefing by taking aim at the NCAA for the current environment around college sports.

“It’s not Plaintiffs’ fault that the NCAA has decided to regulate NIL and recruitment through a byzantine set of overlapping rules of guidance,” the filing states. “To the extent there’s confusion on which rules the NCAA thinks give it the power to enforce the NIL-recruiting ban, that problem is one of the NCAA’s own creation. The NCAA cannot benefit from the fact that its rules – scattered across a 437-page manual – are often impenetrable, shifting, and vague.”