On January 31, Tennessee Attorney General (AG) Jonathan Skrmetti, joined by Virginia AG Jason Miyares, filed suit against the NCAA in the U.S. District Court for the Eastern District of Tennessee for alleged violations of the Sherman Antitrust Act over the association’s restrictions on the ability of current and future student-athletes to benefit from their name, image, and likeness (NIL). The lawsuit was filed just one day after the announcement that the National Collegiate Athletics Association (NCAA) is investigating the University of Tennessee for NIL violations.

In 2021, the U.S. Supreme Court held in NCAA v. Alston that the NCAA’s amateurism rules, particularly their restrictions on compensating college athletes, are in fact subject to the Sherman Act. Following the landmark decision in NCAA v. Alston, the NCAA has faced mounting legal pressure to loosen some of their restrictions. They are currently facing a multistate lawsuit that the U.S. Department of Justice (DOJ) Antitrust Division also joined, challenging the association’s transfer rules, as well as additional antitrust suits over the employment status of athletes and the massive revenue generated by media rights deals for schools and conferences. The most recent lawsuit from Tennessee and Virginia concerns the NCAA’s ban on prospective college athletes during recruiting activities, along with current college athletes looking to transfer to another school through the transfer portal, discussing potential NIL opportunities prior to enrollment. Such a prohibition, the states argue, restricts competition among schools and third parties to arrange the best NIL opportunities for prospective student-athletes in violation of antitrust laws. Both Tennessee and Virginia also enacted laws following Alston that protect student-athletes’ right to “earn compensation for the use of [their] own name, image, or likeness” at a “fair market value,” and bar athletic associations and universities from placing restrictions on an athlete’s ability to do so. The complaint sought an order declaring that the NCAA’s NIL-recruiting ban violates the Sherman Act, as well as a temporary restraining order (TRO) barring the NCAA from enforcing the ban.

On February 6, U.S. District Court Judge Clifton L. Corker denied the states’ request for a TRO, stating that they failed to demonstrate that recruits would be irreparably harmed if it was not granted. However, Judge Corker also wrote that the states are “likely to succeed on the merits of their claim under the Sherman Act.” A preliminary injunction hearing was held on February 13, and the federal judge wrote that he plans to rule “in short order” on the request to stop the NCAA from enforcing its rules. A decision in favor of Tennessee and Virginia would complicate the investigation into the University of Tennessee over alleged violations of rules that the association would no longer have the ability to actively enforce within the state.

NCAA President Charlie Baker, along with college sports leaders, have been requesting assistance from federal lawmakers to regulate NIL compensation and provide an antitrust exemption to allow them to govern without repeatedly being brought into court. As lawsuits against the NCAA continue to pile up in a post-Alston world, and absent any federal legislation, decisions in these cases will have considerable implications on the trajectory of college sports.

We will continue to monitor this case, and others, that aim to bring transparency to the NIL market. For more in-depth analysis on the legal landscape concerning college athletics and the regulation of NIL rights of student-athletes, check out Troutman Pepper’s Highway to NIL podcast.

Troutman Pepper State Attorneys General Team

Ashley Taylor – Co-leader and Firm Vice Chair
Ashley is co-leader of the firm’s nationally ranked State Attorneys General practice, vice chair of the firm, and a partner in its Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He helps his clients navigate the complexities involved with multistate attorneys general investigations and enforcement actions, federal agency actions, and accompanying litigation.
Clay Friedman – Co-leader
Clayton is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice, multidisciplinary teams with decades of experience crafting effective strategies to help deter or mitigate the risk of enforcement actions and litigation.
Judy Jagdmann
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
Stephen Piepgrass
Stephen leads the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on enforcement actions, investigations, and litigation. Stephen primarily represents clients engaging with, or being investigated by, state attorneys general and other state or local governmental enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, with a particular focus on heavily regulated industries.
Avi Schick
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
Michael Yaghi
Michael is a partner in the firm’s State Attorneys General and Regulatory Investigations, Strategy + Enforcement (RISE) Practice Groups, nationwide teams that advise clients on consumer protection enforcement matters and other regulatory issues.
Samuel E. “Gene” Fishel
Gene is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) practice, based in the Richmond office. He brings extensive regulatory experience, having most recently served as senior assistant attorney general and chief of the Computer Crime Section in the Office of the Attorney General of Virginia, and as special assistant U.S. attorney in the Eastern District of Virginia for 20 years.
Tim Bado
Tim is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, where he represents corporations and individuals facing potential civil and criminal exposure. Tim’s experience in government investigations, enforcement actions, and white-collar litigation spans a number of industries, including financial services, pharmaceutical, health care, and government contracting, among others.
Chris Carlson
Chris Carlson represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
Natalia Jacobo
Natalia is an associate in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice. She focuses her practice on two primary areas: government contracting and state attorney general work.
Namrata Kang
Namrata (Nam) is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. She routinely advises clients on a wide variety of state and federal regulatory matters, with a particular emphasis on state consumer protection laws relating to consumer financial services and marketing and advertising.
Michael Lafleur
Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
Susan Nikdel
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes.
John Sample
John is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. He focuses his practice on a wide range of general and complex litigation matters, including shareholder disputes, fraud, products liability, breach of contract, and Biometric Information Privacy Act claims.
Whitney Shephard
Whitney is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
Trey Smith
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement Practice. He focuses his practice on helping financial institutions and consumer facing companies navigate regulatory investigations and resulting litigation.
Daniel Waltz
Daniel is a member of the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and State Attorneys General team. He counsels clients in connection with navigating complex government investigations, regulatory compliance, and transactions, involving state and federal government contracting obligations. Drawing on his broad experience as a former assistant attorney general for the state of Illinois, Daniel is a problem solver both inside and outside the courtroom.
Stephanie Kozol
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.