Dan Hurley Counted 80. The NCAA Told A Court It Might Be Tens Of Thousands.

On the night of Friday, August 7, having just put his team through an open practice for donors at the Werth Center in Storrs, Dan Hurley told the reporters standing in front of him, Dom Amore of the Hartford Courant among them, what he thought of the fifth-year ruling.

"You can't act like it's not a victimless situation," he said. "I mean, there are kids that are 17, 18 years old that potentially may lose out on opportunities."

Then he put a number on it.

"Now let's unleash 80 players into the sport in the first week of August."

Eighty. Hold onto that, because three days later the National Collegiate Athletic Association filed an emergency motion in the Tenth Circuit making Hurley's argument in a suit and tie, and the number it used was not eighty. It was two other numbers, on two different pages, and they disagree with each other by a factor of ten.

The displacement argument is the strongest thing anybody has said against the Colorado injunction. A twenty-three-year-old comes back for a fifth season, a freshman does not get the minutes, and the freshman never filed a lawsuit about anything. That is a real cost and it deserves a real accounting. It has not gotten one. Nobody in this fight has counted the players at the center of it.

Nine hundred and eighty-eight#

The NCAA's motion is Document 9-1 in No. 26-1309, filed August 10, and it runs 5,197 words. Page 21 is where the harm lives: "If class members join rosters, they will displace eligible student-athletes who made life-altering decisions about college in reliance on settled eligibility rules."

And then, unusually for this document, an actual figure. "Even under Plaintiffs' own calculation, the number of available DI roster spots is only 4,808 in women's sports and 988 in men's."

Read that twice, because it is not what it looks like at a glance. Those are not roster spots. They are roster vacancies, the holes left in August across every men's and women's Division I sport after the spring had already filled the rest. Nine hundred and eighty-eight openings in all of Division I men's athletics, football and baseball and lacrosse and swimming and basketball together. (Basketball's share of that is not broken out anywhere in the filing, which will start to feel familiar.) Roughly five women's vacancies exist for every men's one, which is its own story and not this one.

The NCAA offers the figure to argue scale against it. The class, the brief says, "likely contains tens of thousands of members, outnumbering available roster spots by a ratio of more than ten to one."

Now run that ratio in the direction the NCAA did not run it. If the class outnumbers the openings ten to one, then nine of every ten class members displace precisely nobody, because there is no opening to displace them into. The number the association offers as the measure of the danger is the same number that caps it. A fifth year is not a roster spot. Sweeney's August 2 clarification order says in terms that her injunction "does not enjoin the operation of transfer rules," which is precisely what the plaintiffs are still fighting about in Denver, and either way a class member who is eligible in September and unsigned in November has taken nothing from anyone.

Thousands, or tens of thousands#

The other thing about that brief is that it cannot decide how many people it is talking about.

Page 21: the class "likely contains tens of thousands of members." Page 23: "There may be thousands of class members." Same document, same week, same lawyers, and an order of magnitude between them. Both sentences are load-bearing, because the size of the class is the entire premise of the harm.

The NCAA is the only party in this case with membership rosters, compliance filings and a waiver database. It is the institution that would know. What it filed was a range.

(The plaintiffs answered it on August 14 at 5,199 words. The appellate limit for a motion is 5,200, so between them the two sides left four words on the table and spent none of the rest counting anybody.)

And the class size is not even the number that matters. The number that matters is how many class members have actually signed somewhere since July 31, which is a small, knowable, checkable figure that would take a competent compliance office an afternoon. It has not appeared in a filing, a declaration or a press release. The only person who has put a figure on it in public is a basketball coach at a donor practice who said eighty and was obviously estimating.

What the judge went looking for#

Judge Charlotte N. Sweeney has now examined the displacement claim twice, and the plaintiffs' response filed in the Tenth Circuit on August 14 quotes what she found both times.

On the evidence: the NCAA "offers no evidentiary support attached to its stay motion in support of its irreparable harm argument."

On the substance, and this is the sharper one, she held that the crowding-out concern is "at odds with evidence that indicates Plaintiffs themselves competed alongside other student-athletes whose length of competition and eligibility posed precisely the same purported risks." Every plaintiff in this case spent four years sharing a locker room with somebody carrying a COVID year or a medical waiver or a graduate season. (Every roster in America has one. He is a fifth-year forward with a knee scar and most of a master's degree, he takes a freshman's minutes every single night, and nobody has ever filed a motion about him.) Nobody wrote a brief about those teammates.

The NCAA's own economist, per the plaintiffs, described the non-retroactive implementation as "economically neutral," which is a difficult adjective to build an irreparable-harm section on.

The NCAA gets one more filing. Its reply on the stay is due in the Tenth Circuit on Monday, a deadline Scott Bearby, the association's chief legal officer, announced himself when the court ordered the briefing expedited. It is the last document either side puts in front of the panel, and it is the last chance anybody in this case has to put a name where the estimate has been.

There is a second front to this, incidentally, that almost nobody is watching. The NCAA has a motion pending to move the whole case to Tennessee, and the plaintiffs told the Tenth Circuit on August 14 that it will not be heard until September. Division I basketball opens November 3.

The last word on the timing#

The association's defense of when it did this is that the membership weighed it carefully. On July 20, kicking off SEC football media days, Greg Sankey said this about the five-year model, per Ryan Sylvia of Rocky Top Insider: "Our input was that the NCAA not proceed on the timeline that it chose to introduce. The membership voted to pursue. I think there was more information and research that was needed."

That is the commissioner of the Southeastern Conference, describing the careful consideration from inside it.

Hurley, for what it is worth, told ESPN's Myron Medcalf that UConn would not be adding anybody. He made the argument and then declined to take the advantage, which is more than most of the people making it have done.

But he guessed. He was standing in a gym on a Friday night, he was annoyed, and he was not under oath. The number he pulled out of the air is still, nine days later, the most specific public accounting anyone has offered of how many players this ruling actually moved. Everyone else has filed a range.