Legally speaking, are there any grounds for UNC towards the NCAA?

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Plus, get free shipping right to your front door. Welcome to a bigger, better beyond. I've been talking a lot about North Carolina and Tez Walker and what could happen, what should have happened, maybe what should have happened a while ago, and let's get to it. Attorney, sports ethics director, attorney, law professor, Fulbright Scholar, Mr. Mark Edelman, who's joining us from Central Park in New York City. First of all, I'm excited.

We've never talked to somebody who was in Central Park at the time. And secondly, this is a New York City guest and we don't have to talk about Aaron Rodgers and his torn Achilles. So, lots to get to here. Let's get to Tez Walker. Legally speaking, are there any grounds for North Carolina toward the NCAA here? Indeed, there are two legal grounds on which the University of North Carolina could theoretically come after the NCAA.

One, which I believe is the harder of the two, is to claim that the association somehow acted in bad faith and in not following its own transfer rules and by denying the transfer. Second, which I think is a comparatively better claim if the University of North Carolina has the guts to make it, is to argue that the NCAA is a combination of 1,200 member colleges. And when the schools get together and all agree with each other to limit free movement of athletes from one university to the next, the transfer rules themselves are arguably a violation of section one of the Sherman Act, federal antitrust law. And there seems to be some language in the U.S. Supreme Court decision of Alston versus NCAA, which came out just a couple of years ago, that seems to support that argument. Alright, let me address, I'll address each one in a second, but I wonder, because the NCAA has not said that Tez Walker will forever be ineligible. Just that he is not eligible this season.

He can play next year and he has two more years of eligibility. How long might either of these two avenues take? Well, any lawsuit in itself with all the factual discovery from begin to end could take several years. However, with good litigation, what you would probably do is file very quickly for a preliminary injunction and perhaps even a temporary restraining order. If you're able to convince the court that this is a matter of great importance, where there will be irrefutable harm to at least one of the parties involved and likelihood of success on the merits, theoretically, a court could issue a preliminary injunction or even a temporary restraining order to prevent the NCAA from enforcing its rules and its limits on Walker Planks. Alright, to that end, because I had suggested this last week to somebody, but it was pointed out to me, that regardless of the fact that the requirements, the guidelines for granting these waivers changed, and they changed two days after Tez Walker enrolled at North Carolina, regardless of the change, he still would have had to file for a waiver from the NCAA in order to play anyway to be an eligible athlete. So a temporary restraining order to restore to the old rules would simply still make him an ineligible player because he was never ruled eligible.

Well, frankly, I would disagree with that view. A temporary restraining order would not necessarily be just to revert to the old rules, but to lift the rule altogether. The argument here would need to be that the NCAA's restraints on players shifting from school to school and the foreclosure of transfer in any instance in itself is a restraint of free trade and a violation of antitrust law. Now, we have a bit of a double-edged sword here. Legally, from my perspective, this is a strong argument and a heck of a lot stronger argument than any NCAA member school wants to admit that a trade association cannot prevent the movement from a worker or an individual from one place to the other. Now, the double-edged sword is, let's be honest here, the University of North Carolina, when it comes to college athlete rights, has not necessarily been a moral actor. They're an amoral actor.

The goal has been to maximize revenue and maximize win. Now, I am not convinced the University of North Carolina is actually opposed to the restraints that are created by the transfer rule. It seems most directly, based on their past behaviors and actions, they're upset about the fact that it's affecting a particular player that will help their team win. So I do think they reasonably could go to court and challenge the NCAA restraint. But if they're successful, it won't only mean that Tez Walker would be able to play immediately for the University of North Carolina. It would mean their rival schools would be able to bring on transfers in the future without restraints as well. And I do not know if the leaders of the University of North Carolina, despite their current rhetoric, actually have the interest of college athletes or the cojones to go ahead and do that right thing.

Mark Edelman is joining us here on the Adam Gold Show. He's a law professor, sports ethics director, and knows what he's talking about here. Here's the thing, because I agree, and I pointed out, and people have kind of been a little squeamish about this, but I think it's fair to point out that it's not just Mac Brown, head coach for football at UNC, but it's coaches across the country at the highest levels who have begged the NCAA to be more restrictive on second time transfers. First time transfers, they're free everywhere now as they should be. My opinion is, I don't care how many times you transfer, if the coach doesn't have to sit out a year, you shouldn't either. So why shouldn't you be free to go if you want to transfer five times? I don't care. Keep going.

Go wherever you want to go. But they have argued, including Mac Brown, for more restrictive practices when it comes to this, so I tend to agree that they, in this particular case, North Carolina is all in, but I don't know that they would be all in across the board. I do think the NCAA, even if they had followed the more restrictive rules, Tez Walker should have been an eligible player anyway. I do agree with you very much.

I don't think these restraints are for the well-being of anyone except for minimizing work of coaches and maximizing revenue for school. Michael Carrier, who's a professor at Fordham Law School, and I had written on a case that was decided by the Seventh Circuit a few years back, Depp versus the NCAA, where the NCAA was successful at the moment of maintaining these restraints, but in the aftermath of Alston, um... Judy was boring. Then Judy discovered Chumbacassino.com. It's my little escape. Now Judy's the life of the party. Oh baby, mama's bringing home the bacon. Whoa!

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Visit Carvana.com to start tracking your car's value today. That seems to be bad law, and I think there is a very good argument to challenge this legally. I'm just not convinced that UNC, despite all the rhetoric, is going to move forward and make the antitrust argument. Is there a lawsuit that Tez Walker could file, whether it's against the NCAA, or if UNC really wanted to get out in front of this legally, maybe they should have been more prepared earlier on.

When the NCAA pointed out that we were going by the new guidelines for this upcoming football season, and that even if you had transferred in prior, you would not be grandfathered in, that maybe UNC should have been more prepared legally to handle this earlier on, rather than start this process now. And frankly, all I know is that they've retained outside counsel, but they have not started anything, so even if they started it today, it would take some time to get to the finish line, and by that point, his season is probably over. Could Tez Walker even sue the school? Let me give you a technical, legal, bookish answer, and then a more realistic answer.

Okay. The technical, legal, bookish answer is yes, absolutely. Tez Walker certainly could put himself in the shoes of the UNC and file the antitrust lawsuit against the NCAA, seeking a temporary restraining order. Tez Walker could sue the NCAA for failure to follow its own rules. Tez Walker could bring a suit against the NCAA, perhaps arguing tortious interference with a business relationship if it's affected any of its NIL money or other opportunities outside of playing sports, so there's a lot of grounds he could bring a suit.

Now, here's the reality of things, because the bookish legal answer and the realities don't always match up. Tez Walker is not a wealthy human being, by all intents and purposes. If you want to bring in an antitrust attorney to handle one of these cases, unless you're somehow able to get someone like Jeffrey Kessler and the NFL Players Association to jump in pro bono, you're talking about a very real fee. You can't hire just some random attorney off the street.

We've seen this happen over and over again with college athletes, where they've hired a non-antitrust expert to bring a case, and all they've done is created bad luck. So, should have Tez Walker being funded by somebody or having someone really high up pro bono who wants to do this, we're talking about hiring a lawyer at a high fee for a large number of hours, because then it could be document intensive, and that's the problem with the legal system in this country. He probably, yes, he does have a claim. He has a very good claim. He has a claim with the right lawyer.

I think it's very reasonably likely he would win. But does he have the ability to fund it with the right lawyer or right legal team behind, and that's the problem. Well, you understand NIL, so what if an antitrust attorney struck an NIL deal with Tez Walker and did it that way?

I think it's a wonderful idea. Now, keep in mind, too, even in the world of people who are calling themselves antitrust attorneys, and I've practiced a wide range of different areas of law, and I've taught a wide range of areas of law. Antitrust is an incredibly complex area of law. It involves case law and it involves a real understanding of economics, and you don't have many lawyers out there that understand these economic issues well. So, it can't be anyone that runs around and likes throwing their name on Twitter and pretending to be a big name and gets attention who could bring this case and bring it successfully. There really probably are about 30, 40 people in this country at most who are well suited to do so. But if Tez Walker could find some type of deal to allow him to do it, wonderful.

I think NIL is a great potential way to do it. I certainly would not want to see Tez Walker sign one of those awful deals that some athletes are signing now to get a loan up front, an amount of money for a share of his future earnings to bring us through. So, I mean, I don't think that's Mark's interest.

No, I don't think so either. Real quick before I say goodbye to Mark Edelman and we let him, I don't know, feed pigeons, ride a handsome cab in Central Park. I don't know, the zoo. There's a zoo in Central Park as well. The Great Lawn is also good.

That's where I saw Simon and Garfunkel back in 1984. If UNC were to file for a temporary restraining order, preliminary injunction, how quickly could that all come together? Because otherwise, again, we've already played two games of 12 this year. Yeah, technically with a temporary restraining order in certain extreme cases, I've seen them issued in about a week to 10-day period of time very early in the case. Now, if I were UNC and you are going to bring a suit, your defendant is the NCAA and the NCAA does business in all 50 states and has members and actors in all 50 states, including North Carolina. So if I were going to bring an antitrust suit or seek a temporary injunction, I would be looking to go to a federal court in North Carolina, which might be the most favorable form that you could have. I mean, granted, you have Tar Heels fans that want to see the player back.

Yeah. And I do think that it's certainly within, I'm not saying it would be, but within the realm of possibility that at least the temporary restraining order could be issued in seven to 10 days to at least for a short period of time to get them back on the field until these issues are further looked at. But the presumption that that judge would have to make would be that in the aftermath of Alston, these restraints are a violation of antitrust law. And what this would require if North Carolina brings the suit is they would have to be arguing that the very restraint that Mack Brown and others at the school have pushed for for such a long period of time, they're now against in their entirety. They find them to be anti-competitive.

And despite the statements they made in the past, they think it's detrimental to the free movement of workers. And that would be a big shift from everything that's come out of North Carolina, for frankly, way too long. So complicated. I love it. I could talk to you for another half hour. Mark Edelman, I appreciate your time at Mark Edelman on Twitter or X or whatever the heck we're calling it right now. Be well.

And I'm sure our paths will cross again. Thanks. Thanks for having me, Adam. All right.

So fascinating. So first of all, he said shift. I just want people to understand the shift. There was an F in there. There was an F. But I think it applies either way. Right. I think it applies either way. How badly does North Carolina want Tess Walker to play? From I Heart podcast Supreme, the battle for Roe tells the story of the unlikely champions behind the landmark case Roe v. Wade, starring Maya Hawke as 26 year old lead attorney Sarah Weddington for challenging the Texas abortion laws in federal court and Academy Award nominee William H. Macy as Supreme Court Justice Harry Blackmun. Time is not the most important factor.

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