CHARLESTON – The NCAA has appealed a Monongalia County judge’s preliminary injunction allowing former West Virginia University football player Jordan Scruggs to compete during the 2026-27 season and use the NCAA transfer portal while his eligibility lawsuit proceeds.
The National Collegiate Athletic Association filed its notice of appeal September 10 with the state Supreme Court of Appeals, challenging Circuit Judge Michael D. Simms’ August 17 ruling, which later was detailed in a Sept. 1 written order. The NCAA also requested a transcript of the August 17 preliminary injunction hearing, according to the filing.
The appeal is interlocutory, meaning it seeks review before the underlying lawsuit has been fully resolved. The NCAA said the state Supreme Court – rather than the Intermediate Court of Appeals – has jurisdiction over interlocutory orders involving preliminary or temporary injunctions.
Scruggs, 24, is seeking another season of Division I football eligibility after playing at Central Missouri, Hutchinson Community College, South Alabama and WVU. He also had a redshirt season at Washburn University that did not count as a season of competition, according to Simms’ findings. Right now, Scruggs is on Maryland’s roster.
The NCAA determined Scruggs had exhausted his eligibility under Division I Bylaw 12.6, which generally limits athletes to four seasons of intercollegiate competition within five calendar years. The NCAA counted his junior-college season at Hutchinson toward the four-season limit.
In its notice, the NCAA listed four assignments of error, beginning with the circuit court’s conclusion that Scruggs is an intended third-party beneficiary of NCAA bylaws and governing documents.
The NCAA says West Virginia law permits a third-party-beneficiary claim only when a promise was made “solely” for the claimant’s benefit. It said the NCAA Manual and Bylaws instead establish a governance framework for Division I athletics and benefit member institutions, making any benefit to Scruggs merely incidental.
The NCAA also argued its bylaws do not guarantee an eligibility waiver.
“The NCAA Bylaws include no language guaranteeing a waiver,” the NCAA filing states. “West Virginia law cannot support a breach of contract claim against the NCAA on a promise that was not made by the NCAA.”
The NCAA further contends Simms improperly permitted a standalone claim for breach of the implied covenant of good faith and fair dealing. It maintains that, because it did not breach an actual contract, that claim “must fail as matter of law.”
Finally, the NCAA argues Simms failed to follow the state Supreme Court’s 2001 decision in Hart v. National Collegiate Athletic Association. The NCAA said Hart held that participation in college sports was not a protected interest under West Virginia law and did not justify a preliminary injunction for an extra season of competition.
Simms concluded Scruggs had shown a likelihood of success on his claim that the NCAA treated him arbitrarily when it denied him an additional season after granting a blanket waiver to some athletes affected by prior non-NCAA competition.
The Pavia waiver, adopted after litigation brought by Vanderbilt quarterback Diego Pavia, allowed certain athletes whose prior non-NCAA participation affected their eligibility to compete in the 2025-26 academic year. Scruggs seeks eligibility for 2026-27.
In the order, Simms found the academic year was the key distinction in the record between Scruggs and athletes who received the blanket waiver. The judge said the NCAA “presented no evidence explaining or justifying why the temporal distinction warranted materially different treatment of Scruggs” or why allowing him to play in 2026-27 would cause a materially different competitive or regulatory harm.
Simms found the NCAA’s treatment of Scruggs appeared arbitrary, saying he faced irreparable harm without relief because he would lose a season’s worth of potential name, image and likeness compensation, revenue-sharing opportunities, athletic development, game film, public exposure and professional scout evaluation.
Simms distinguished Hart, saying the current case involves claimed “economic and pecuniary benefits, including NIL compensation and professional opportunities that reflect material changes in Division I athletics since Hart.”
The preliminary injunction took effect August 17 and remains in place unless modified or stayed by the circuit court or state Supreme Court.
It bars the NCAA from enforcing Scruggs’ eligibility determination to keep him from playing Division I football during the 2026-27 season. It also prohibits the NCAA from preventing a member school from allowing Scruggs to practice, train, compete and receive otherwise permissible athletic benefits on the basis challenged in the lawsuit.
The order separately requires Scruggs be allowed to “enter, access, and utilize” the NCAA transfer portal, subject to requirements that do not conflict with the injunction. It also prohibits the NCAA from invoking its Rule of Restitution or imposing sanctions on Scruggs or an NCAA member school for conduct authorized by the court’s order.
Simms denied the NCAA’s oral request to stay the injunction pending appeal. The court did not require Scruggs to post a security bond.
On September 11, the NCAA filed a motion for expedited review asking the state Supreme Court to handle its appeal on a compressed timetable because the dispute concerns the current 2026-27 football season. It seeks to obtain an appellate ruling — and, separately, a stay — before the season and transfer opportunities make the case effectively moot.
The NCAA is being represented by Hanna Petros and Christopher D. Smith of Bailey Glasser in Charleston. Scruggs is being represented by Alonzo D. Washington and Lexus Allen of Flaherty Sensabaugh Bonasso in Charleston.
West Virginia Supreme Court of Appeals case number 26-550
