The NCAA has had a rough go of it in court in recent years, but in a new court filing it insists Vanderbilt quarterback Diego Pavia should be denied a preliminary injunction to extend his NCAA eligibility for the 2025-26 season.
Last Friday, the NCAA filed a 37-page opposition to an injunction in a Tennessee federal district court. The brief, authored by Taylor J. Askew and other attorneys from Holland & Knight and Wilkinson Stekloff, raises several counterarguments against Pavia and his attorneys, attorneys Ryan Downton and Salvador M. Hernandez.
Pavia, 23, insists that NCAA rules which count his two seasons at junior college New Mexico Military Institute against his NCAA eligibility and that limit JUCO transfers to a maximum of three years violate antitrust law. Pavia’s NCAA eligibility is set to end with the 2024-25 season, meaning he’ll lose out on NIL deals that he could have landed in 2025-26. Pavia asserts that NIL deals could help him “build his personal brand and reputation” and thus potentially provide “footholds for careers in addition to professional football.” Pavia has excelled for the Commodores this fall, throwing for 2,029 yards with 16 touchdown passes against only three interceptions.
But the NCAA maintains that Pavia hasn’t established the requisite necessity for a preliminary injunction. The association says he knew of the challenged rules years ago and could have contested them at that time but instead waited until the second half of the 2024-25 season to bring a case. “The law does not allow him to manufacture an emergency by waiting to sue,” the NCAA charges.
The NCAA also contends that Pavia hasn’t established he’s at risk of irreparable harm, a crucial factor for obtaining an injunction. Irreparable harm ordinarily means a kind of harm that money damages can’t remedy. For example, sometimes the release of industry-altering trade secrets or dangerous environmental toxins are irreparable harms since their financial impact is difficult or impossible to calculate and no amount of dollars can fix the damage. The NCAA maintains that Pavia’s “desire to continue earning compensation for his NIL” would constitute an injury money could remedy should Pavia be denied an injunction. To that end, if Pavia later proves in a trial that he should have been eligible for 2025-26, Pavia’s lost NIL deals could be calculated and the NCAA could pay Pavia for what he would have earned.
Expect pushback from Pavia on the NCAA’s depiction of irreparable harm. As the NFLPA has noted in a 2017 court filing to challenge the NFL’s suspension of Ezekiel Elliott, “a long line of cases establish that, as a matter of law, depriving professional athletes of the ability to practice and play inflicts irreparable harm.” An athlete barred from play will miss games and practices that will never be replayed and will lose out on the chance to generate statistics and further hone their skills.
While Pavia is not a professional athlete in a traditional sense, college athletes can now earn NIL money and, if the House settlement goes through, can play at colleges that directly pay them for media rights, ticket sales, sponsorships and NIL in a salary-cap like model. To that point, a federal district judge in Tennessee, Clifton Corker, issued an injunction against the NCAA earlier this year in a case brought by Tennessee and Virginia over NCAA rules limiting NIL collectives’ recruitment. In identifying irreparable harm, Corker reasoned that athletes have a limited window of time to negotiate NIL deals.
For another argument, the NCAA highlights recent case law in which federal courts have upheld NCAA eligibility rules. In January, a federal district judge in Illinois, Robert Gettleman, denied motions brought by two former Overtime Elite (OTE) players—twin 20-year-old brothers Matt and Ryan Bewley—who asserted that although they received salary and other employment-benefits while playing in OTE, they should still be NCAA eligible since the NCAA now allows NIL. Gettleman disagreed. He found that NIL must mean what it is supposed to mean—compensation for the commercial use of an athlete’s right of publicity, such as in an endorsement or sponsorship—and not employment-like benefits. He also offered a favorable take on NCAA eligibility rules as promoting the “unique product” of “college sports.”
Also highlighted in the NCAA’s brief is Reese Brantmeier v. NCAA, where a federal district judge in North Carolina, Catherine Eagles, recently denied University of North Carolina tennis player Reese Brantmeier’s motion for a preliminary injunction to block the NCAA from enforcing prize money rules. Eagles found the NCAA’s justifications to be sufficient. She was also unpersuaded that the prize money rules harm competition since only a small number of elite athletes are impacted. The NCAA argues that Pavia is in a similar situation since (as the NCAA sees it) only a small number of elite D1 football players are likely impacted by the combination of rules Pavia is challenging.
In forthcoming court filings, expect Pavia to counter the NCAA’s use of Bewley and Brantmeier. Pavia could argue Bewley is inapplicable since while the Bewley brothers were paid to play in OTE, there is no comparable point for Pavia. He has not played in a quasi-professional league and, by all accounts, has complied with NIL and other NCAA rules. As to Brantmeier, it concerns prize money restrictions for athletes in individual sports (tennis, golf, fencing, equestrian etc.), not a football player’s continued access to NIL deals.
Pavia’s case is before Chief U.S. District Judge William L. Campbell Jr.. Earlier this month Campbell denied Pavia a temporary restraining order but has signaled he is mindful of Pavia’s need to clarify his plans for 2025.
