“The Times, They Are A-Changin’” – Why Tennessee and Virginia’s Anti-Trust Lawsuit is so Concerning for the NCAA – and its Future
February 4, 2024
By: E. Michael Brezina, III
Sparks have been flying in East Tennessee in recent days. And they may mark – and spark – the beginning of the end to the NCAA as we know it.
On January 31, 2024, the States of Tennessee and Virginia filed an anti-trust lawsuit against the NCAA in the U.S. District Court for the Eastern District of Tennessee (at Greeneville). The Plaintiff States filed this lawsuit seeking to challenge the NCAA’s “…ban on the use of name, image and likeness compensation in the recruitment of college athletes…”[1] It was filed days after news leaked that the NCAA commenced an investigation into the University of Tennessee’s (“UT”) alleged use of Name, Image, & Likeness (“NIL”) deals to recruit or induce athletes to enroll at UT and play on the football and other teams.[2]
So why is this anti-trust lawsuit potentially so significant? It marks the first time States filed an anti-trust lawsuit against the NCAA, relying on State Law to challenge its legitimacy and authority to regulate collegiate athletics.[3] This is a huge problem for the NCAA, because State Law will most likely prevail, as State Law must trump athletic association (including the NCAA) Rules & Regulations when the two conflict.
As lawyers, we are taught to evaluate legal issues like the ones before us based on a simple, but basic, hierarchy of authority/analysis, set out (generally) as follows:
- S. Constitution;
- Federal Law (i.e., as promulgated by Congress);
- State Law;
- Athletic Association (e.g., NCAA) Rules & Regulations;
- University Policies & Procedures.
In our legal system, the U.S. Constitution is the apex of legal authority. Because the Constitution obviously does not address NIL (and because there is no Federal NIL Law), the 10th Amendment to the Constitution[4] empowers and authorizes States to legislate NIL. Tennessee and Virigina each passed NIL laws which give athletes specific rights, including (in Tennessee) that “An athletic association’s governing actions, sanctions, bylaws, and rules must not interfere with an intercollegiate athlete’s ability to earn [NIL] compensation…”[5] From a legal perspective, University (i.e., UT’s) Rules & Regulations are the lowest rung on the analytical ladder. UT’s Rules & Regulations do not supersede the Constitution, Federal Law or State Law.
Up to now, the NCAA has been (at least constructively) allowed to regulate collegiate athletics because the States have not interfered to assert their own authority. But times change. Since the mid-to-late 1980s (think: SMU “Death Penalty” in 1987), the chorus of criticisms directed at the NCAA, its decisions, judgment, and even its existence, has risen to audible levels in recent years, especially since the development of NIL. Think about it this way: Before January 31, 2024, do you recall a Chancellor of a major public American University refer to the NCAA’s investigation of its University in an open letter as “intellectually dishonest” and its allegations as “…factually untrue and procedurally flawed”[6]? And be widely lauded?
So…who are the winners? Who loses?
- If you are talking about the likely legal outcome on the pending anti-trust lawsuit, the States and their State Laws will most likely prevail over the NCAA.
- I think you should watch out for the Southeastern Conference to eventually take the reins and regulate NIL for its conference. If this occurs, it will likely catch on like wildfire across the collegiate athletic conference landscape (e.g., ACC, Big 10, etc.). Time will tell.
- If you are talking about the athletes and the state, condition, and future of collegiate athletics, the losers are the athletes and amateurism in collegiate athletics.
- All of this fighting, litigation, and posturing, combined with a lack of adequate regulation and supervision over NIL (especially if the NCAA becomes impotent to regulate NIL) will likely result in Collectives raising even more money, earning (or taking) even larger profits, and creating an even greater disparity between the amounts raised by the Collectives and the amounts actually paid to the athletes.
[1] Tennessee, Virginia AGs suing NCAA over NIL-related recruiting rules with Vols under investigation (msn.com)
[2] Id.; Tennessee AD Danny White Criticizes NCAA For Leaking Info To Media In Statement | Rocky Top Insider
[3] See Tennessee Code Annotated §49-7-2803; See also Virginia Code Annotated §23.1-408.1(B)(1).
[4] The X Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
[5] See Tennessee Code Annotated §49-7-2803; See also Virginia Code Annotated §23.1-408.1(B)(1).
[6] THE VOLUNTEER on X: “Tennessee Chancellor Donde Plowman’s letter to the NCAA in response to the recent allegations: https://t.co/D7AcQghK” / X (twitter.com)
