Tennessee, NCAA present arguments in NIL hearing

GREENEVILLE, Tenn. — The state of Tennessee will have to wait a little longer for a ruling in its legal wrangling with the NCAA.

Following a hearing that lasted 62 minutes inside a fourth-floor federal courtroom in Greeneville Tuesday, U.S. District Court Judge Clifton Corker said that a ruling in the states of Tennessee and Virginia's preliminary injunction aimed at suspending the NCAA's rules on name, image and likeness would come "in short order."

Judge Corker had previously denied the state's request for a temporary restraining order on the basis of no "imminent harm."

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Weeks after Tennessee State Attorney General Jonathan Skrmetti filed a lawsuit against the NCAA over alleged antitrust law violations, legal representatives from both the attorney general's office and the NCAA presented arguments for and against the injunction before the judge.

Cameron Norris, a lawyer from an outside firm that was retained by the state and argued on its behalf, stated that the NCAA's current NIL rules can cause "irreparable harm" to prospective student athletes who are looking to make decisions for their benefit.

The term "irreparable harm" was a rallying cry for the state in its arguments as it cited the effect that NCAA rules prohibiting certain contact between NIL collectives and recruits can have on a player's well-being. Norris referenced Tennessee head football coach Josh Heupel's recent declaration, which was included in a brief filed by Skrmetti last week.

"Harms like these are impossible to fix after the fact. You only get one playing career and you cannot go back in time. These harms can drastically alter the course of an athlete’s college education and their professional career (whether as a professional athlete or in another industry),” Heupel wrote. “Many of these players don’t go on so these four to five years are all they get. We need to put them in position to make the right choice and make the most of their opportunities."

The NCAA's alleged investigation into multiple University of Tennessee athletics programs, which fueled the state's legal challenge against the NCAA last month, was cited throughout the hearing.

Norris mentioned similar investigations spearheaded by the NCAA involving the University of Florida and Florida State University athletics programs and said that "after the Gators, the Vols are on the chopping block" and that the NCAA is enforcing policies that "it can't even decide on."

Norris argued that the NCAA has created a "broken market" and that if NIL is going to exist then the NCAA "can't lay over recruiting rules that effect the free market values" on prospective players.

Though UT is at the center of the case, Skrmetti told reporters after the hearing that the state is arguing on behalf of all student athletes in the state of Tennessee.

"We can talk about the university (of Tennessee) for sure," Skrmetti said. "It's a huge contributor to the economy...(It's) bringing hundreds of millions of dollars in as a result of college athletics, but this case is really about the student athletes. That's whose rights we're fighting for here and their irreparable harm is not being able to make an informed decision and not being able to get the benefit of negotiation and when everybody is getting rich off college sports and the people who are responsible for creating college sports are the only ones who aren't allowed to prosper, that's a problem and it's not legal."

The NCAA, which was represented by four lawyers, including Rakesh Kilaru who argued on behalf of the organization.

Kilaru stated almost immediately that there was "no evidence" that supported the state's claim that NIL rules strongly effected a prospective players' decision-making.

He cited a current UT athlete that was not named who stated in a court filing that they were afforded NIL opportunities on campus and were able to discuss those opportunities with recruits, but did not say that a lack of communication concerning NIL before signing with the school effected his decisions.

Kilaru argued that both Tennessee and Virginia voted on its current NIL laws, which state that prohibit play-for-pay and promote amateurism in college sports and that the NCAA's issues isn't with consumer and demand but the relationship between prospective athletes and schools.

Kilaru said that a lack of regulation on NIL could create "bidding wars" between schools for a player's services, which would in turn "cross the line" of amateurism and professionalism.

In response to the state's claim that the NCAA prohibits contact with NIL collectives before signing with a school, Kilaru argued that it doesn't prohibit all contact, just the discussions of NIL deals. When Judge Corker asked how the NCAA can determine the difference, Kilaru was unable to provide a clear answer.

In his closing arguments, Norris cited the NCAA's classification of collectives as boosters, which are currently prohibited from having contact with student athletes, again creating murky waters in its own definition of the extent of contact that is allowed.

Norris likened the rules to selling the NCAA Tournament television rights and picking the network before discussing the details of the contract, which was among his final statements before Judge Corker adjourned.

NCAA representatives declined to comment after the hearing.

"We're going to keep fighting for student athletes in Tennessee," Skrmetti said. "I think the hearing was very educational. The court is clearly grappling with these issues. The big issues is, are student athletes getting an opportunity to find out what the actual value of their NIL rights is. One of the most interesting things that we heard is that even the NCAA is a little unclear on the NIL rules. At one point we heard that student athletes are able to talk about NIL opportunities, but then immediately we heard that they can't actually talk about them with anybody that's actually going to make the decision. The lack of clarity is hurting student athletes.

"The lack of opportunity to make informed decisions is hurting student athletes. It's not right and it's not legal. Federal antitrust laws guarantees them the benefit of a free market and we're going to keep fighting to ensure that's what they get."

There isn't an official timeline on Judge Corker's ruling.

It could be hours, days or even weeks before the state of Tennessee finds out about the status of its injunction.

What it means in the short term is that the status quo will continue, likely meaning that the NCAA can continue its alleged investigation into UT, though Kilaru did not confirm or deny an ongoing investigation.

If a ruling does come down in the favor of Tennessee, though, the NCAA would have its hands tied in any kind of probe into UT and it could also create ripple effect in college athletics, potentially providing a blueprint for other states to follow.

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