Attorney with strong record against NCAA to serve at injunction hearing for Gonzaga’s Tyon Grant-Foster

Last December, a Raleigh, North Carolina-based newspaper, The News & Observer, published a story counting down the 10 most influential people in Raleigh, Durham sports in 2023.

Titled “The Triangle Ten,” the article was a curated list of recognizable sports figures in the region. Athletes, coaches, sports radio hosts. North Carolina State football coach Dave Doeren came in at No. 10, popular Duke basketball star Jared McCain made the cut at No. 7.

A fairly standard list until you reached No. 4: “Elliot Abrams, waiver-getter.”

“Abrams, a Raleigh-based attorney, has become someone the NCAA would probably rather never encounter again,” author Luke DeCock wrote. “Few lawyers anywhere have compiled the kind of record against the NCAA that Abrams has. Most notably, Abrams played a leading role in helping Tez Walker, the North Carolina wide receiver, regain his eligibility after the NCAA initially denied it.”

Abrams estimates he’s presided over roughly 20 cases involving the NCAA, but he’d prefer not to disclose his win-loss record. Just know he’s batting over .500. Well over, in fact.

“We’ve had a highly successful track record with these cases,” he said.

The next assignment on Abrams’ docket? A highly scrutinized NCAA eligibility case involving Gonzaga transfer Tyon Grant-Foster.

The prominent North Carolina attorney will be part of Grant-Foster’s argument on Thursday – along with Spokane-based civil rights attorney Carl Oreskovich – when a Spokane County Superior Court judge hears the player’s case at a preliminary injunction hearing that’s scheduled to take place at 3:30 p.m.

Oreskovich filed a “pro hac vice motion” that will allow Abrams, who’s licensed in North Carolina, to practice in a legal jurisdiction thousands of miles from his home footprint this week.

There are numerous potential outcomes on Thursday, including the potential for no outcome at all. If Grant-Foster’s injunction is granted, he’d be cleared to return to the court for Gonzaga and begin ramping up for the team’s regular-season opener, which takes place Nov. 3 against Texas Southern.

“I know we’ve put a lot of information in front of the judge,” Abrams told The Spokesman-Review by phone Tuesday. “We’ll put more information in front of the judge on Thursday, so there’s certainly a chance it continues (past Thursday) but I think given the strength of the showing, the strength of the equities in our favor, there’s also a good chance we get a ruling on Thursday. We’re certainly hopeful we will.”

The NCAA would have the option to appeal that decision, but Abrams and Oreskovich both estimated that process would take roughly a year. Appellate courts take on cases as they come and Grant-Foster’s would essentially start at the bottom of a large pile. He’d be permitted to suit up for the Zags in the meantime.

“The student-athletes are allowed to play so they’re not suffering irreparable harm while the cases are sorted out,” Abrams said.

The NCAA could ask for the appeal to be expedited, but Grant-Foster’s attorneys believe that would be denied. In the well-known “Diego Pavia vs. NCAA” suit – a case that shares key similarities to Grant-Foster’s – a federal court denied the NCAA’s motion to expedite.

“So it is very probable, frankly, that if we get a ruling, that he’ll be able to play through the season,” Oreskovich said.

In a losing scenario, the NCAA could potentially file a request for reconsideration. Oreskovich reckons that too would be unsuccessful.

“If you win,” he said, “it’s pretty hard to get the same judge to reconsider and reverse themselves.”

If, after the appellate court process finishes, it’s determined there weren’t grounds for injunction, the NCAA could invoke the Restitution Rule and take punitive measures against the player or university. That could result in striking potential awards Grant-Foster receives during the season or nullifying Gonzaga’s wins while he was on the court.

“So part of our preliminary injunction is seeking to have that rule enjoined as well,” Oreskovich said. “I think it only makes sense, it just denies people their right to access to courtrooms.”

A judge could come to a ruling on Thursday, or in the two to three days that follow, but Grant-Foster’s legal team is hopeful there’s some clarification by next Wednesday at the latest. That’s the final day winter sport athletes at Gonzaga are eligible to accept financial aid from the school.

Abrams and Oreskovich remain confident in their argument while acknowledging Grant-Foster’s case is as unique as they come.

It’s unlikely there will ever be another athlete who competes in multiple junior college seasons at a time when the NCAA is altering JC eligibility rules, who plays through a global pandemic and who also finds his way back onto the court after undergoing multiple heart stoppages that could’ve ended his life. It’s unlikely someone will experience even two of those three circumstances.

Grant-Foster’s attorneys have taken issue with the NCAA’s claim that he “was unable to demonstrate otherwise extraordinary circumstances to warrant approving the waiver.”

“Tyon’s case is one of the most unique and serious medical related eligibility cases,” Abrams said. “Tyon died in the locker room and had to be revived during the first game of his first NCAA season. It took him two years to get back on the court and I think anybody looking at that would say that’s extraordinary. An extraordinary circumstance outside his control.”

Abrams continued: “Yet the NCAA is still counting one of those seasons against him and I think that’s somewhat unique in this landscape of not just my cases, but if you look at the whole landscape of people who are raising challenges and who’ve had successful challenges, this is an extraordinary case even among that subset of already extraordinary cases that are worthy of relief.”

Parallels also exist between Grant-Foster’s case and four West Virginia University football players who were deemed ineligible to play before a district court recently ruled in their favor. Both lawsuits accuse the NCAA of violating antitrust law.

“Tyon’s challenge matches up exactly with that successful challenge,” Abrams said.

In its argument, Grant-Foster’s legal team has also targeted the Washington State Law against Discrimination (WLAD), which Oreskovich claims to be “broader and more protected” than the federal American with Disabilities Act (ADA).

“The NCAA’s still holding one of those years against him,” Abrams said. “Their own rules say they shouldn’t be doing that, from our perspective. The Washington state law says they shouldn’t do that and the junior college-related antitrust challenge on top of that is a challenge I think is also dead on. So this is one of the strongest cases I’ve seen and I think we’ve looked at every case across the country.”

It’s unclear if Gonzaga coach Mark Few will excuse himself from West Coast Conference Media Day duties in Las Vegas to attend Thursday’s hearing in Spokane, but multiple Gonzaga players are expected to be in attendance and Oreskovich said a showing of support from the community wouldn’t hurt Grant-Foster’s case.

“The community is really behind this and one of the things the court has to look at is, what’s the effect on the public?” Oreskovich said. “What’s the public interest in this injunction and I think having public support really is helpful for him. Now we don’t need to overfill a courtroom up, but I think there will be people there that will be supportive of him and I think that will be clear.”

Oreskovich asserts that denying the injunction would cause severe harm to Grant-Foster, and a potential NBA career, where as granting the player eligibility wouldn’t inflict the same damage to the NCAA.

“I don’t know what harm, if any, would be done to the NCAA if he’s allowed to play but conversely, with where he’s at, what his opportunities may be, denying the injunction would be just devastating to him,” Oreskovich said. “I’m fired up and excited about it and I’m optimistic we’re going to come out on top.”