CHICAGO — The fact that the NCAA’s decision to pass a new five-for-five eligibility rule launched a series of lawsuits challenging it was eminently predictable. What will happen next, however, is anybody’s guess.
The new five-for-five rule — which the NCAA prefers to call “age-based eligibility” — is simple: Athletes get five years of eligibility starting when they enroll or with the academic year following their 19th birthday, whichever comes first. No redshirts. No waivers. Very few exceptions for military or religious service or pregnancy. The NCAA wants the new rule to apply only to players who will be in college during the 2026-27 academic year. That leaves out the senior Class of 2026. Many of those athletes have joined with lawyers to benefit from the extra year of eligibility. Several local judges have done their bidding and issued temporary restraining orders, but a much larger shoe dropped on Friday night when U.S. District Judge Charlotte Sweeney issued a sweeping preliminary injunction in Colorado allowing all of last season’s seniors to compete for one more season.
The NCAA immediately filed an appeal, requesting a ruling by Wednesday and calling the decision “egregiously wrong” in a memo to member schools. The appeal was filed to the U.S. Court of Appeals for the Tenth Circuit, which has a history of holding high standards for preliminary injunctions and has been more inclined to rule in favor of the NCAA than other circuits. According to many legal analysts, the NCAA’s strongest argument is its objection to the unusually quick timetable at which Judge Sweeney certified the class. The judge’s decision to issue a preliminary injunction as opposed to a temporary restraining order was also an unconventional move that may not hold up on appeal. It also helps the NCAA that it is not asking the Tenth Circuit to make a legal ruling on the new rule. Rather, the NCAA is challenging the preliminary injunction on procedural grounds.
Meanwhile, the NCAA’s desperately desired federal legislation, the Protect College Sports Act, appears to be moving closer to the Senate floor after the Big Ten and SEC reversed course and declared their support on Friday night. While unrelated, the two paths could collide this week and determine not only the future of the remaining athletes from the high school Class of 2022 but the NCAA itself.
On Sunday afternoon, Judge Sweeney issued a clarification of her preliminary injunction stating that it only applies to the high school Class of 2022 athletes and does not impact transfer rules, revenue sharing and other elements of the House v. NCAA settlement. That means that if it is held up on appeal, the impacted athletes might not be allowed to enter the transfer portal. If that’s the case, they would only be able to compete for their former teams.
All of this chaos and confusion raises the question of whether the NCAA unnecessarily opened up a legal battlefront by botching the timing on implementing five-for-five in a rush to demonstrate some initiative, or maybe even deliberately invited the lawsuits in hopes that Congress would see the need to help. “The timing appears to be more about getting sued than avoiding getting sued,” a lawyer involved in one of the many lawsuits filed this month told Hoops HQ.
Friday night’s ruling in Wisne v. NCAA seemed to galvanize the Big Ten and SEC to action late Friday night at a time the PCSA appeared to be on legislative life support after the two power conferences missed deadlines to provide feedback. And while the initial ruling in Wisne went against the NCAA, an appeal in the 10th Circuit could deliver a more favorable ruling that re-establishes its authority.
Wisne effectively preempts on a national scale other lawsuits filed in state court in California, Georgia, New Jersey, Nevada, Ohio, Oklahoma, Tennessee and Texas, among others including a 52-player lawsuit filed in North Carolina on Thursday, although their plaintiffs can continue to pursue them. A few college football players had already been granted temporary restraining orders allowing them to play this fall while their cases proceed, while 24 basketball players were granted a preliminary injunction in Ohio. All wanted the same fifth season of competition that other athletes will be given going forward, and may now get it thanks to Friday’s ruling in Wisne.
The NCAA’s implementation of the new standard, taking effect at the end of one season of competition but not applying to the players who had just completed what would previously have been their fourth and final season, has only sparked more legal challenges. “Their competition committee can make a two-thirds vote at any time to grant a waiver to any group of persons,” Ryan Downton, a lawyer with the Texas Trial Group who represents some of the athletes looking to gain the fifth year of eligibility as well as Vanderbilt quarterback Diego Pavia, told Hoops HQ. “They could have a meeting tomorrow and make all these guys eligible and that would be the end of it. Why haven’t they included them? Now, there’s been so much pushback from courts and the public at large, why not just include them? They’re not asking for special treatment. They’re not asking for guaranteed roster spots. If spots are left open, why shouldn’t they have a shot at them?”
At a time when the NCAA finally has gotten some legal wins — the arbitration decision upholding the CSC’s rejection of Nebraska’s NIL deals and the Brendan Sorsby gambling case as well as several eligibility cases over the past year — the Wisne decision is a setback, and it may not be the last. While the current debate is over the Class of 2022, some legal experts question whether the entire age-based rule itself will hold up to antitrust scrutiny.
Illinois athletic director Josh Whitman, who was chairman of the NCAA’s Division I cabinet when the rule was passed in June, said some growing pains were expected. “There’s two things to keep in mind. One is the substance of the rule, and then there’s the transition, and they’re two distinct things,” Whitman told Hoops HQ. “We feel really good about the substance of the rule. Obviously we knew, as there are anytime you implement significant changes, there will be some transitional elements to that. We just have to work through the transition and ultimately when we get through that, I feel really good about the rule itself and we can look forward to welcoming that.”
Marc Edelman, a law professor at the Zicklin School of Business at Baruch College of the City College of New York who writes extensively about sports, said the rule itself may be vulnerable, not just the exclusion of the high school Class of 2022. “As a matter of antitrust law the five-in-five rule is very susceptible to legal challenge,” Edelman told Hoops HQ. “In essence, it represents all of the colleges within a labor market getting together to exclude a certain class of would-be labor from the marketplace.”
But Edelman also said proving that at trial, and meeting the legal antitrust standard, would not be easy. In particular, he thought some of the first cases filed to challenge the rule did not have the kind of economic analysis that would hold up on appeal. “While there’s a very strong argument that the five-in-five rule will ultimately be found to violate antitrust law upon a full trial with the offering of sufficient economic evidence, the difficulty plaintiffs’ lawyers will have in sustaining these preliminary injunction rulings, especially upon appeal, relates to proving the underlying evidence of a restraint of trade,” Edelman said. “Where a plaintiff attaches to a complaint a meaningful declaration by a reputable economist or someone of similar background about the effects on the market, there’s a better chance of a preliminary injunction being upheld.”
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The Wisne injunction raises questions about the NCAA’s decision not to include the departing seniors in the new rule, or wait until the fall to pass and implement it. The timing was in part a result of demands from NCAA member schools to take some kind of action to rationalize the eligibility system sooner rather than later. Downton has been pushing in court for the NCAA to adopt five-for-five for years, in Pavia’s lawsuit and in Patterson v. NCAA, a class-action lawsuit that argued forcing players to redshirt was an antitrust violation in the NIL/revenue-sharing era. He welcomed the NCAA’s adoption of five years as the new standard.
“We’ve never challenged the concept,” Downton said. “Our fight has always been you should be able to play all five, so our initial reaction was, this is great. It does a lot to fix the problem going forward. There are still some (junior college) issues, but it did a lot to fix things. Two weeks later they said they were not going to include current seniors, even though they were still within five years of their high school graduation and hadn’t played a fifth year of college. It made no sense. Once they announced that in late April, my phone started ringing.”
The new rule was quickly undermined by teams quietly offering roster spots to graduating seniors if they could become eligible through the courts, further encouraging the wave of legal challenge. Former North Carolina athletic director Bubba Cunningham told Hoops HQ he believed all along it would have been simpler to delay a vote on the issue until the fall, when the eligibility of the departed players would have been moot. “My surprise was, why didn’t we wait for the legislation to come after the year started,” Cunningham said. “Or grandfather them in, either way. Just make the legislation effective the day it passed for everybody that gets five years to play five with the same rules. I don’t understand why you would eliminate that group. Or, if you want to do it, pass the legislation in September effective in October. All those students would have moved on to something else in their life.”
But ACC commissioner Jim Phillips told Hoops HQ that the timing was unavoidable because of the impact on incoming students and the roster compression an extra year of eligibility for this spring’s seniors would cause was “not fair to high-school kids.”
“It didn’t come without a great deal of conversation and thinking about the effects either way,” Phillips said. “In the end, we have to modernize college sports. The conclusion was we need to get started on that immediately.”
The hope now is that the PCSA, which may now be headed to the Senate floor this week, will give the NCAA enough of an antitrust exemption to fortify its position. A class-action suit like Wisne could take years before it actually goes to trial, let alone appeals that could reach the Supreme Court, as other major lawsuits against the NCAA like O’Bannon, Alston and House did. The PCSA, on the other hand, could become law in a matter of weeks.
“What you’ve seen is a bunch of cases filed,” Big Ten commissioner Tony Pettiti said. “We’ve asked the Senators to include some sense, like these cases are so new, can we get some protection, can you help us get this system in place?”
Edelman said even without Congressional help, there are other ways the NCAA could have pursued the five-for-five eligibility rule that would not have subjected it to the same antitrust vulnerability.
“Irrespective of whether the NCAA is able to have these preliminary injunctions overturned, this is an association composed of members that continue to be their own worst enemy,” Edelman said. “There are plenty of ways college sports could impose an eligibility rule that is more likely to be upheld by court, if not bulletproof. As we’ve seen in MLB and the NBA, eligibility rules that are collectively bargained are bulletproof. The NCAA could have gotten 95 percent of what they want in a relatively risk-free way.”
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