What to make of Federal Judge lifting NCAA temporary restraining order on transfers

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I don't know the difference, so walk me through what happened between Wednesday and Friday when the TRO became a preliminary injunction which I guess lengthened the time where these kids had a chance to play before any ruling. Well, unless you could tell me if I'm missing an update here, but I guess part of this which is important, we didn't quite know, right, if you're an athlete that was denied a basically a waiver, right, you're in the Tez Walker situation. Tez Walker was sitting on the sideline abiding by the NCAA's decision and then, you know, obviously the NCAA eventually switched course, but what we had during this quote-unquote 14-day window, the NCAA not really making a firm decision on, hey, let's say an athlete plays, like a Tez Walker plays in this 14-day window and then that decision is later overturned, does that athlete lose a year of eligibility or are there other, you know, ramifications for playing in this kind of grace period? So, the NCAA originally said, no, it's not going to be an issue and then, you know, within, I think it was on Thursday, they turned around and said, no, we're not quite sure yet, we can't tell you if it's going to be an issue or not.

So, Adam, I haven't heard that update yet. Has the NCAA provided guidance on that on that issue? I don't think they have. The NCAA has agreed to a, well, they agreed to a hearing on December 27th, which is probably not going to take place based on what I'm reading now, but they agreed to in the preliminary injunction to allow this grace period to go all the way through the end of the spring sports season. So, that's into June, I guess. So, I don't think, I mean, NC State and East Carolina, two local schools here, each had a basketball player impacted by second time transfer restrictions and they each played this weekend. Obviously, any threat to them losing their eligibility for the year is kind of gone because they're using it. Even though they had to wait almost, they had to wait the entire semester to use it, the entire fall semester, they're going to get the effective playing season back by being eligible to play now. So, I'm not really sure what this means from the NCAA's perspective, but it does seem like they initially tried to make it so, like to scare schools into not doing it. Right, and there was a brief window where they said, it's okay to play, it won't harm your eligibility.

And then they walked it back for, I think, a day. And then it looks like, according to that last update, they've now gone back to their prior standing, it's going to be fine. Adam, from a, I don't know, a PR standpoint, if you're not 100% sure on the decision, you can wait on making any announcement. But at that point, once they initially said you can play, and I know there was a handful of players that had games that night that were in this kind of unique sitting out scenario that said, you know what, let's just play, let's put the gun to the NCAA's head, and let's force them to really now punish us. So, it was a kind of a risky move, but it looks like it paid off. So, to your question about what's the difference between 14 days and some sort of temporary restraining order or a permanent injunction, a lot of difference, right?

It's really just the timing that this thing is going to be held up. But the fact that the NCAA on their own volition is extending this from 14 days out to the end of the spring semester, that tells you that the NCAA is kind of making it a little bit easier on the court. So, temporary restraining order, preliminary injunction, they have a lot of the same functions. Maybe some states, they're a little bit different, but by and large, that's the same concept. Dan Lust, Conduct Detrimental, the podcast, which is the confluence of sports and the law, which basically is the same in so many of these cases.

Now, I want to dig down a little bit on two things. First is, because it has been not proven, but suggested that this is a violation of antitrust law, the Sherman Act, to restrict player movement based on NCAA rules, where there probably shouldn't be. There's no restriction of movement on coaches or other students. If the NCAA says athletes are students, why don't they have the rights of normal students? Yeah, that's the question. And seven state attorney generals, New York, where I'm from, being one of them, obviously North Carolina involved as well, West Virginia, you go down a line.

It's a question, I guess, let's put a face on it. Let's say, Adam, you had a son who wasn't playing at University of North Carolina, the Tar Heels, whose basketball player wasn't playing, and he took a shot and he transfers to go play for the Wolfpack at North Carolina State. Okay, let's say he's still not getting playing time and he wants to be a star on the basketball team, right? Why isn't that, according to the NCAA's current rules, you are not automatically allowed to transfer a third time. And let's say you think you have the ability to make a lot of money in NIL and you can't transfer out to any other school, right?

You can't transfer to Duke or I'm just naming a lot of North Carolina, but that ability to transfer a third time can harm your ability to make money in this market. And if Sherman antitrust law is put into place to basically provide incentive and encourage competition, and you have the NCAA, which is really the only amateur, really the only college sports marketplace, they are hindering competition between schools. And you know what these attorney generals of these various states argue is that it's preventing schools from trying to lure and we'll call poach athletes from one school to another school. But you know, I think you would argue that that's not fair. Schools should be allowed to compete against one another. And that's really the heart of this case. And that's Tez Walker who went to three different schools in those first couple of years of school. You know, obviously he had a different situation with COVID and whatnot, but you know, I think the schools should be allowed to compete. And that's really where this question lies.

All right. So let me, let me ask this because to me, this is interesting because this actually happened. And now Tez Walker after we could say it was a threat from North Carolina attorney general, Josh Stein, or it was outside counsel that Tez Walker and his family, you know, retained who threatened the NCAA. Because to me, that was the new information, not anything that UNC had been withholding that suddenly they provided because that my understanding is that there was zero new information. It was only that we're about to sue you.

Maybe I guess that would classify as new information. But there's a football player at Florida State. I think his name is Darryl Jackson, who didn't play at all during the regular season, but is eligible to play now if he wants to for Florida State in the bowl game because the semester is over. Could, is there any legal recourse from players who did lose a semester or a year of eligibility now that the restriction has been lifted? You're asking a good question. And the short answer is, you know, there's no bar to the courthouse steps. Anybody can sue for anything. But if you're projecting one another big, one of the big lawsuits could be, I think this is one of them, right? It's, you know, the stance of the NCAA's change of position. So not so dissimilarly, you know, you have the NIL error that has started since July 1 of 21 athletes who make money off their name, image and likeness. There is a case pending right now for those athletes prior to July 1 of 21 that wanted to make money off their name, image and likeness, but were refused to by the NCAA. So you can call it back pay, right? They want money that they should have earned if the NCAA had done the right thing earlier.

So yeah, put this down certainly in a category that, you know, could be subject to a lawsuit. I will say that we are in the middle, you know, the NCAA hasn't formally changed their position because they thought they were wrong. I think they changed it because of just, we'll say accounting and logistics that you can't just have a 14 day window.

So they've extended it out to the spring to accommodate for what this court has done. So, but I do think if certainly if they win that case, right, if they win this eligibility transfer case, Josh Stein among the, you know, seven attorney generals, I do think this kind of back, we'll say it's the equivalent of back pay, but the ability to have transferred in the past, I do think that would come up, but it opens up somewhat of a can of worms because dating back, you know, 20 years, there used to be, right. You had to sit out one year if you switched to another conference, but two years, if you switch within your own conference. So, you know, the trans, the eligibility transfer rules have changed a lot over the years. And then also during COVID, you know, I think the NCA kind of threw that one time transfer rule out the window. So it's a little, it's a little dicey here. Whereas in the NIL world, it was a pretty hard line rule.

You couldn't make a dollar off your name, image and likeness. So yeah, but I certainly see with the amount of arrows pointed at the NCA, this seems like one very ripe for the challenge. Dan lust conduct, detrimental to podcasts real quick thing.

And it's sort of tangentially related to what we're talking about here. Is it your opinion, maybe that the NCAA sees the courts about to declare athletes employees? I certainly think they see the potential. You know, you and I haven't spoke about it, but Charlie Baker's recent proposal, you know, to basically create a subset of division one that would separate the haves financially from the have nots, I think is his way of saying, you know what, we don't know what to do. If student athletes become employees, let's basically carve out a subsection of division one to let the schools police police themselves to have them come up with their own rules. Because if and when athletes are declared employees, we don't really know what to do here.

We need to empower the school. So I think Baker's proposal comes at a time, right? He's not just doing this out of the kindness of his heart. It's preemptive to something.

And if you're taking bets on what it's preemptive for, I think it's that I think it's, you know, any number of arrows pointed at the NCAA, one of which, again, that we haven't covered is Dartmouth's basketballs attempt to unionize a lot of elements pointing towards student athletes getting the right to unionize to collectively bargain. I don't I don't, you know, I don't quite know how Charlie Baker is going to deal with that. But that's why they pay him the big bucks. And that's why they pay you and I to talk about it.

Baker's got to figure this one out. Before I let you go, Dan Lust, Conduct Detrimental, the podcast. You must.

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I think it's the hat which looks like it's at least one or two sizes too small. Dan, I appreciate your time. I'm sure we probably won't talk until the holidays. Happy holidays to you. Good New Year. And I'll talk to you in 24. All good, Adam. Enjoy. To you as well. 18 plus terms and conditions apply. See website for details.