LOUISVILLE, Ky. (WDRB+WAVE) — Two weeks ago, college athletes stood before a Kentucky judge and explained the irreparable harm they would suffer if the NCAA prevented them from playing another season.
Now the NCAA is arguing that it, too, faces irreparable harm.
Its injury? Allowing those athletes to play.
In two motions filed Tuesday with the Kentucky Court of Appeals, the NCAA challenged an Oct. 16 injunction issued by Jefferson Circuit Judge Brian Edwards that allows athletes from the high school graduating class of 2022 to compete under the organization’s new five-year eligibility framework.
One motion asks the appeals court to overturn the injunction. The other asks a single appellate judge to put it on hold immediately, before a three-judge panel can consider the larger appeal.
The NCAA argues that waiting would cause damage that couldn’t be undone.
That second request adds urgency to a dispute that already has sent athletes on and off the field as courts have alternately granted and withdrawn their eligibility.
It also runs directly counter to what an attorney for the athletes said after Edwards’ latest ruling.
“Every missed game and practice is irreparable harm,” attorney Hans Poppe wrote on social media Oct. 17. “And the NCAA suffers no harm.”
The NCAA now argues otherwise.
It says allowing athletes who have already played four seasons to return for a fifth disrupts rosters, takes playing time and financial opportunities away from other athletes, and puts schools following the NCAA’s rules at a disadvantage against those benefiting from court orders.
And once a game has been played, the NCAA argues, there’s no way to take it back. The playing time is gone. The competition has happened. The results are in the books.
The association says that is why it cannot afford to wait for the normal appeals process.
At an Oct. 14 hearing that lasted four hours and 20 minutes, athletes described games they could never replay, opportunities they could never recover and money they might never earn. Louisville basketball player Seth Trimble testified, as did Louisville football player Kalib Perry and Kentucky linebacker Alex Afari Jr. Louisville basketball coach Pat Kelsey and Missouri coach Dennis Gates also appeared.
Afari knew the cost firsthand. After Edwards’ first injunction was dissolved, he missed Kentucky’s overtime victories against South Carolina and LSU, games he told the court could never be recovered.
Two days after the hearing, Edwards issued a new temporary injunction, finding the athletes had shown a substantial likelihood of winning their breach-of-contract claims and would suffer irreparable harm without relief.
The NCAA isn’t being delicate about its disagreement.
On Oct. 2, a three-judge appellate panel dissolved Edwards’ original injunction, finding it had been issued without sufficient evidence and the necessary legal findings. The panel also concluded that the NCAA’s new rule did not apply retroactively to athletes who had exhausted their eligibility before it took effect.
That, the NCAA argues, should’ve ended the matter.
But Edwards held another hearing, heard testimony and issued a new order. In it, he wrote that while he respected the appellate court’s opinion, he did not believe the athletes were asking for the new rule to be applied retroactively.
The NCAA wasn’t moved by the courtesy.
“Ignoring a binding Court of Appeals decision is not respectful; it is an affront to precedent and the rule of law,” the association wrote in its emergency motion. “It was the trial court’s job to apply the law, not to create it.”
In other words, the NCAA isn’t simply arguing Edwards got the law wrong. It’s arguing the appeals court already settled the question and Edwards had no business answering it differently.
The legal principle is called law of the case. Once an appeals court decides a legal question in a case, a lower court generally can’t revisit it just because it disagrees.
Edwards held a new hearing and made new findings. The NCAA says that doesn’t change the law, and that the athletes’ testimony amounted to little more than complaints about unfair treatment.
That distinction has been at the heart of this case from the beginning. A rule can be unfair without being unlawful. But neither does an organization become immune from legal challenge simply because it writes its own rules.
The athletes argue that the NCAA’s published five-year framework does not expressly exclude their class and that the association broke its contractual obligations by refusing to apply it to them.
The NCAA says the rule was intended only for athletes who still had eligibility remaining when it took effect Aug. 1. It also argues that the athletes haven’t established a contractual right to challenge the decision in the first place.
It again cites a familiar Louisville case, NCAA v. Lasege, in which the Kentucky Supreme Court upheld the association’s authority to enforce its eligibility rules. The NCAA argues that courts have long allowed athletic associations considerable freedom to govern themselves.
The NCAA also challenges the breadth of Edwards’ order. It argues that 29 plaintiffs failed to demonstrate sufficient individual harm to justify an injunction, noting that only eight athletes testified at the hearing. It questions whether a Jefferson County court has authority over athletes with little or no connection to Kentucky.
And it takes particular exception to provisions barring it from enforcing other regulations, including its rule of restitution.
That rule can allow the NCAA to impose penalties on athletes and schools after an injunction protecting an athlete is overturned. Edwards’ order shields them from those consequences. The NCAA wants that shield removed.
That is no small matter for Louisville, Kentucky and other schools playing athletes whose eligibility depends on the injunction. The association isn’t merely asking for a ruling about who can play. It wants to preserve the authority to penalize schools if those athletes play under a court order that is later overturned.
The NCAA also points to the uncertainty that has accompanied this case. Athletes have been eligible, then ineligible, then eligible again. Coaches have had to adjust. Schools have had to make roster decisions without knowing whether a court might change the rules tomorrow.
The association even cites testimony from Kelsey, who appeared in support of the athletes, to help make its case that the changing eligibility landscape has created confusion.
Kelsey himself had a different prescription for the problem. During the hearing, he repeatedly urged the NCAA to “end the chaos.”
The NCAA’s position is that the way to do that is to enforce the eligibility limits already in place.
There is a practical argument there. Rosters have limits. Playing time is finite. One athlete’s opportunity can come at another’s expense.
But the NCAA must now persuade an appellate judge that those concerns justify stepping in immediately.
The timing adds pressure for Louisville basketball. The Cardinals open their season Monday against Chattanooga, with Seth Trimble and L.J. Wells among the players whose eligibility depends on Edwards’ injunction.
The athletes have until Nov. 6 to respond to the NCAA’s regular appeal, according to The Courier Journal. Poppe told the newspaper that no response deadline had been set for the emergency motion, leaving the timing of a decision uncertain.
The filings do not themselves dissolve Edwards’ order. The injunction remains in effect unless a court grants relief. But by seeking emergency action on top of its broader appeal, the NCAA has made clear it does not want to wait.
There is a certain symmetry to the arguments.
The athletes say every game they miss is a loss that cannot be repaired.
The NCAA says every game they play is a harm that cannot be undone.
For now, the athletes have convinced a judge.
The NCAA has convinced an appeals court before.
Now it wants to do it again.
And while the lawyers argue about eligibility, the clock keeps running.