Every now and then a loss can still be a win.  On Tuesday, that couldn't have been more spot on for the states of Tennessee and Virginia in their lawsuits against the NCAA. 

Judge Clifton L. Corker issued an order denying the Plaintiff's motion for a temporary restraining order against the NCAA late Tuesday afternoon.  In his 12-page opinion, he discussed the arguments of both parties for why the TRO should be granted or denied. 

A significant warning to the NCAA

Judge Corker had to consider a number of factors in determining whether Tennessee/Virginia would be entitled to a TRO.  The first factor he evaluated was the likelihood of Tennessee and Virginia to prevail on their claim of a violation by the NCAA of the Sherman Antitrust Act. 

Judge Corker noted that Tennessee/Virginia's claim that the NIL-recruiting ban is anticompetitive held water.  He then noted that the burden then shifted to the NCAA to show that they have procompetitive justification for their anticompetitive restraint (NIL-recruiting ban), which he held they do through promoting the balance of academics and athletics as well as amateurism.  

The burden then shifted back to Tennessee/Virginia one more time to show that there were less restrictive means that the NCAA could use to achieve those goals, and the judge found that such less restrictive means (instead of NIL-recruiting bans) exist.  

Judge Corker then made the following finding that should be very worrisome for the NCAA: "[c]onsidering the evidence currently before this Court, Plaintiff's are likely to succeed on the merits of their claim under the Sherman Act." 

So why did the judge deny the motion? 

The likelihood of Tennessee/Virginia prevailing in their claim was just one factor the judge was required to consider in the issuance of a TRO.  Another was whether Tennessee/Virginia would suffer irreparable harm if a TRO wasn't granted, and the judge found that they would not.  

He noted that any harm is not "irreparable" because it can be fully compensated by monetary damages.  He pointed as an example to a pending case in the Northern District of California filed by athletes suing the NCAA for restricting their NIL rights.  

With one required element for a TRO failing, the analysis came to an end at that point, and the motion for a TRO was denied.  As such, for the time being, the NCAA can continue enforcing its NIL-related bans.  

Does this mean the case is over? 

Absolutely not.  Far from it, as the case is still in its beginning stages.  The NCAA will still file an answer to the complaint.  The sides will engage in what is called the discovery or fact-finding stage.  There will potentially be a motion from one or both parties for a judgment without a trial (called a motion for summary judgment).  There is still a long, long way to go before this case is decided.  

The parties still also have the hearing on the preliminary injunction on February 13 in Greeneville.  The order was just a denial for the TRO and did not address the preliminary injunction scheduled for hearing.  Tennessee/Virginia will still get a chance to make their arguments in person, but they certainly are facing a steep uphill battle now, knowing how Judge Corker stands regarding the issue of a lack of irreparable harm. 

However, it's become clear that he views Tennessee/Virginia's claim for violation of the Sherman Act as a strong one, given his finding that they would likely prevail on the merits.  

As such, the NCAA has a lot to think about as this case unfolds. 

Craig Smith is a former litigator who practiced as a member of the Bar of the Eastern District of Tennessee while in Tennessee, but no longer practices law. The foregoing article is his personal opinion in the aforementioned matter only and should not be relied upon as legal advice by any individual or entity. 

Tennessee fans welcome chancellor Donde Plowman with loud ovation at Vols hoops game

The UT chancellor has become a popular person in Knoxville