The NCAA Legal Drama Continues: 14-Day Temporary Restraining Order Becomes Joint Motion Requesting Preliminary Injunction Permitting Two-Time Transfer Athletes To Play Despite NCAA Rule - Antitrust, EU Competition - United States

Gunnar Larson g at xny.io
Tue Dec 26 06:41:18 PST 2023


United States: The NCAA Legal Drama Continues: 14-Day Temporary Restraining
Order Becomes Joint Motion Requesting Preliminary Injunction Permitting
Two-Time Transfer Athletes To Play Despite NCAA Rule:
https://www.mondaq.com/unitedstates/antitrust-eu-competition-/1404592/the-ncaa-legal-drama-continues-14-day-temporary-restraining-order-becomes-joint-motion-requesting-preliminary-injunction-permitting-two-time-transfer-athletes-to-play-despite-ncaa-rule?email_access=on

22 December 2023
by Christina Stylianou and Gregg E. Clifton
Lewis Brisbois Bisgaard & Smith LLP

Your LinkedIn Connections
with the authors
View Christina Stylianou Biography on their website

In a fast moving series of legal actions and agreements involving the NCAA
and the state attorneys general from Ohio, Colorado, Illinois, New York,
North Carolina, Tennessee and West Virginia, the NCAA and the seven
plaintiff states have now filed a joint motion seeking to convert the
recent temporary restraining order (TRO) issued by U.S. District Court
Judge John Pierson Bailey from the Northern District of West Virginia into
a preliminary injunction, vacating the scheduling of a preliminary
injunction hearing and expedited discovery.

Judge Bailey's recent TRO enjoined the NCAA from enforcing its Transfer
Eligibility Rule against multi-time transfer athletes pending its decision
on the plaintiff states' request for a preliminary injunction seeking the
same relief. Despite initial statements from the NCAA indicating a
willingness to challenge the issuance of Judge Bailey's TRO, the NCAA
unexpectedly agreed to file the joint motion to convert the 14-day TRO
issued by Judge Bailey into a preliminary injunction voluntarily.

The terms of the negotiated preliminary injunction restrict the NCAA from
being able to enforce its transfer rule during the pendency of the case
against student-athletes who have transferred schools more than one time.
Specifically, the NCAA agreed in the terms of the negotiated preliminary
injunction to forego enforcement of its transfer rule limiting multi-time
transfers from participating in NCAA sanctioned competitions during the
period that the injunction remains in effect. The impact of the proposed
settlement will allow all winter and spring multi-time transfer athletes to
participate in their complete season without fear of retaliation from the
NCAA.

This matter originally arose from the NCAA's current transfer rule, which
permits underclassmen to transfer once without penalty but prohibit
multi-time transfer student-athletes from competing with their new school
for one year unless they successfully obtain a waiver from the NCAA to do
so. Judge Bailey's original TRO prohibited the NCAA from enforcing this
rule against athletes who had transferred schools more than once. The TRO
also prohibited the NCAA from penalizing institutions under the Rule of
Restitution for permitting impacted athletes to compete pursuant to the
court order, but in defiance of the Transfer Eligibility Rule, if the order
was later vacated, reversed, or otherwise invalidated. Both of these
prohibitions on the NCAA were to remain in place for 14 days, until the
court could hear and decide the plaintiffs' arguments for a longer-term
preliminary injunction seeking the same relief on December 27, 2023.

The lawsuit was initially brought against the NCAA by the states of Ohio,
Colorado, Illinois, New York, North Carolina, Tennessee, and West Virginia,
who allege that the NCAA's transfer rules and waiver process violate
federal antitrust law. In their motion seeking the TRO, the states argued
that the NCAA's transfer rule caused multi-time transfer athletes to
"suffer immediate and irreparable harm by continuing to be barred from
competing this season in their respective collegiate sports and by facing
transfer decisions burdened by the risks of ineligibility that the Rule
imposes on second-time transferring college athletes."

As federal law requires on a motion for a TRO, the court's analysis
reviewed (1) the states' likelihood of success on the merits, (2) the
likelihood of irreparable harm absent injunctive relief, (3) the balance of
hardships, and (4) the public interest. In analyzing the likelihood of
success of the plaintiffs' action, the court considered the merits of
antitrust claims against the NCAA, relying in large part on the Supreme
Court's 2021 Alston decision and using that decision to determine that the
NCAA is indeed subject to the Sherman Antitrust Act. The court's analysis
under the Act determined that the Transfer Eligibility Rule harms college
athletes, as well as consumers of college athletics, and that the NCAA's
procompetitive justifications for the rule are pretextual and that its
purported "academic" goals for its athletes can be accomplished through
less restrictive alternatives.

With respect to the second prong of its analysis, the court discussed at
length the harmful effects of the Transfer Eligibility Rule on athletes,
from impacts to athletes' mental health and wellbeing by restricting their
movement to and ability to compete at schools better suited to them, to the
dimming of prospects for athletes in terms of visibility, eligibility, NIL
opportunities, and drafting opportunities to professional sports.
Highlighting the critical importance of each game, the court made clear
that it found these harms to significantly outweigh any potential harm to
the NCAA and that it, in fact, found that no harm to the NCAA would result
from granting the temporary restraining order. Moreover, it determined that
granting the order would serve the public interest by promoting the free
and fair competition in labor markets guaranteed by antitrust law.

Since the court's decision was issued and prior to the submission of the
more recent joint motion, the NCAA released a mixed response, initially
stating publicly that athletes who participated in competition pursuant to
the District Court's order would not lose a year of eligibility if the
court's decision was later overturned. Subsequently, however, the NCAA
changed its position, issuing a memorandum to its Division I member schools
attempting to explain what the court's decision would mean for
intercollegiate athletics in the interim and stating that athletes would,
in fact, lose a year of eligibility if they competed during the initial
two-week period granted by Judge Bailey if the court's issuance of the TRO
was reversed.

The NCAA's sudden decision to participate in the filing of the joint motion
along with the seven states was most likely motivated by the court's
analysis in its temporary restraining order and its determination that the
plaintiff states were likely to succeed on the merits and ultimately be
granted the preliminary injunction following the scheduled December 27,
2023 hearing. Specifically, the NCAA and plaintiff states are requesting
that the court convert the TRO into a preliminary injunction that will
remain in place until the case is decided. In response to specific
questions raised to the NCAA, the organization spokesperson Saquandra Heath
confirmed, "the NCAA will not enforce the year in residency requirement for
multiple-time transfers and will begin notifying member schools." She
concluded her comments by stating that the proposal is "the best outcome
for multiple-time transfer student-athletes wishing to compete immediately."

As a result of the joint submission, the hearing that was ordered to be
held on Dec. 27 regarding the plaintiff states' initial request for a
preliminary injunction, will almost certainly result in the dismissal of
the previously ordered hearing once the joint submission is reviewed and
signed off on by Judge Bailey.
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/html
Size: 8832 bytes
Desc: not available
URL: <https://lists.cpunks.org/pipermail/cypherpunks/attachments/20231226/033fc06d/attachment.txt>


More information about the cypherpunks mailing list