Who faces greater threat amid investigation, lawsuit: Tennessee football or the NCAA?

blake toppmeyer, adam sparks and john adams, knoxville news sentinel

Fri, Feb 2, 2024, 11:37 AM·4 min read

Tennessee is under NCAA investigation. Again.

This time, the investigation involves potential violations to the NCAA’s flimsy NIL guidelines.

And, this time, Tennessee is fighting back.

UT Chancellor Donde Plowman has her elbows sharpened for this fight. So does Vols athletic director Danny White.

Perhaps more importantly, the Tennessee attorney general, Jonathan Skrmetti, is suing the NCAA. The lawsuit alleges that the NCAA's NIL guidelines violate the Sherman Antitrust Act and unlawfully restrict athletes' ability to monetize their name, image and likeness.

On this edition of "The Volunteer State," Blake Toppmeyer of the USA TODAY Network and Knox News' Adam Sparks and John Adams unpack the investigation and the lawsuit and what they could mean – for the Vols and the NCAA.

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The brass tacks: This clash between the NCAA and Tennessee has the potential to get ugly for all parties.

Here's what's at stake for each:

At stake for Tennessee

This NCAA investigation comes on the heels of a previous investigation in which the NCAA determined 18 Level I violations occurred during Jeremy Pruitt's coaching tenure. Pruitt received crippling penalties. The Vols were sanctioned, too, but skated past the stiffest penalty by avoiding a postseason ban.

TOPPMEYER: I have no sympathy for NCAA, but not much for Tennessee Vols, either. Both asked for this

ADAMS: A different Donde Plowman greeted NCAA for Tennessee NIL investigation

TENNESSEE VS. NCAA Inside the lawsuit filed amid this latest investigation into Vols

If the NCAA finds that Tennessee committed NIL violations, including evidence of NIL deals as inducements, it may intend to impose harsh penalties, because the Vols would be a repeat offender of NCAA rules. Up to and including a postseason ban or athlete eligibility issues? We're still in the early stages of this – Tennessee has not received a notice of allegations – so any speculation about penalties is exactly that: speculation.

If the NCAA tries to pin Tennessee with a lack of institutional control, that's a serious charge that would raise the possibility of stiff sanctions. Plowman made reference to institutional control in her scathing letter to NCAA President Charlie Baker.

Chancellors and ADs don't typically go scorched-earth on the NCAA at this stage of an investigation. If we take into account how Plowman and White came out firing barbs, then Tennessee must think there’s at least the possibility of stiff sanctions. Otherwise, why unleash so much venom at the NCAA over small potatoes?

At stake for the NCAA

The NCAA routinely loses in court. That includes the Supreme Court's 9-0 decision against the NCAA in the 2021 Alston case. Justice Brett Kavanaugh wrote a blistering concurring opinion warning the NCAA that, without collective bargaining or federal legislation, further courtroom defeats could occur.

The NCAA has not embraced collective bargaining and failed to secure federal NIL legislation or antitrust exemption.

"Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate," Kavanaugh warned in his 2021 concurring opinion. "And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law."

Well, lo and behold, the NCAA finds itself back in court, facing this antitrust lawsuit from Skrmetti and Virginia attorney general Jason Miyares. If the NCAA loses the judgement in this lawsuit, that could further hamstring its ability to enforce its NIL guidelines.

The attorneys general are asking the judge to declare that the NCAA’s NIL rules violate the Sherman Act and to grant a temporary restraining order, then a permanent injunction, that would prevent the NCAA from enforcing its NIL guidelines, including guidelines on recruiting inducements.

In other words, a loss in court could effectively halt even the NCAA's meagerest attempts to enforce NIL guardrails.

You’ve heard Wild, Wild West? Another courtroom defeat for the NCAA would uncork the Wilder, Wilder West, and the NCAA would be rendered a toothless spectator.