Scott Sternberg

I genuinely think that what college sports needs right now is some appellate architecture to these nonsensical, sweeping TROs and injunctions. The Baton Rouge PI actually requires the SEC to obtain leave of a Louisiana state court before it may declare any of the 32 plaintiffs ineligible. Right. A private association must file a motion and ask a trial judge's permission before applying its own bylaws. And the order does not stop with the plaintiffs. It bars enforcement of any SEC rule or proposed penalty against any institution the plaintiffs choose to play for and against any institution that plays them, which is to say most of Division I. One judge in Baton Rouge has made himself the eligibility commissioner of college athletics. Ridiculous. But the way to fix that is through the Louisiana appellate system. Supervisory writs exist for exactly this, and if this injunction is as indefensible as I think it is, it will not survive review. That's the ordinary, unglamorous, correct path for a litigant who believes a state trial court has overreached. Appear, lose, take writs, go up. The SEC appeared. Sankey testified. The SEC lost. But instead of going up it went sideways to a federal courthouse in Birmingham, against a football coach, an athletic director, a university president, 15 board members about whom its complaint alleges precisely nothing, and an AG who by the SEC's own admissions has done nothing but offer what is truly a pathetic, god-awful amicus brief. And I still don't see the First Amendment problem. Nobody is forcing this association. The conference admitted LSU, retains LSU, and holds the power to expel LSU by a 2/3rds vote of its presidents. It has now noticed that very meeting. What the SEC is really asking for is an advisory opinion blessing a vote it is already free to take. Federal courts do not issue those. But, to be clear, it doesn't need one. If the SEC believes LSU has lost institutional control and that its continued membership is incompatible with the conference's values, give LSU the boot and defend that decision wherever it is challenged. Nor do I see the irreparable injury. No professional athlete has played a down in an SEC game. LSU rostered nobody. The harm the SEC identifies is that its own meeting might be delayed by people who have not moved to delay it, and delay is the definition of reparable harm. You reconvene. Worse, the SEC noticed the September 10 meeting at the same moment it asked for emergency relief to protect the September 10 meeting. You cannot set the fuse and then complain about how short it is. So: an association free to act, asking a court for permission it does not need, on an emergency it created, against defendants who cannot give it the one thing it actually wants. Meanwhile the order that is genuinely doing the damage sits unchallenged in Baton Rouge. Which is why I am watching the Tenth Circuit in Winse. Somebody has to say what the limits are, and it is not going to be the trial courts.

This complaint is awful. The prayer is easily the most aggressive thing in it. Look at ¶135(c) and (d). They ask for a TRO and injunctions binding defendants "and all other persons who are in active concert or participation with Defendants ... including, for example, the [Baton Rouge state court] Plaintiffs" from "blocking, delaying, enjoining, or otherwise preventing, including through court action or proceedings," the September 10 meeting, and from "blocking, delaying, enjoining, reversing, or otherwise undermining" any expulsion decision, "except for any challenge or counterclaim brought solely in this action." Count the problems. The SEC wants an Alabama federal judge to enjoin people who are not parties to its lawsuit from going to court in Louisiana. The Pyburn plaintiffs -- i.e., the Baton Rouge plaintiffs -- are strangers to this case. Rule 65 reaches parties, their agents, and persons acting in concert with them, not everyone whose interests happen to point the same direction, and you do not acquire jurisdiction over someone by listing them in a prayer for relief. That is a masssive due process problem. And the thing being enjoined is the filing of lawsuits, expressly, in the SEC's own words: "court action or proceedings." Federal courts have spent two centuries being careful about enjoining state litigants, and the carve-out gives away why. Everyone may still be heard, so long as they are heard here. The SEC is asking for an order that funnels every challenge into the courtroom it picked.

Ah. Reviewing the amended complaint, I see what the SEC did. LSU and its Board of Supervisors are gone as entity defendants. They had to be. Both are arms of Louisiana and neither is a “person” under § 1983. It was an obvious defect in the first complaint. (I can't believe the SEC goofed given the stakes.) Instead, the SEC has now named the individual supervisors in their official capacities—the Ex parte Young route around sovereign immunity for prospective relief. That fixes the Will problem. It does not fix the much harder one: what, pray tell, ongoing violation of federal law are these supervisors actually committing, and what connection does each have to the supposed compelled association??