In the latest sign that a multibillion-dollar settlement to resolve the House, Carter and Hubbard antitrust litigations won’t insulate the NCAA from more antitrust lawsuits until perhaps all of amateurism is vanquished, Vanderbilt quarterback Diego Pavia sued the NCAA on Friday in a Tennessee federal district court on grounds NCAA rules barring his eligibility for the 2025-26 season because of his prior play at a junior college violate the Sherman Act.
Pavia joined Vanderbilt this year after playing at New Mexico State from 2022 to 2023 and New Mexico Military Institute, a junior college, from 2020 to 2021. Pavia’s clock to play NCAA sports is set to run out because of the combined effect of three NCAA bylaws: 12.8 (the Five-Year Rule); 12.02.6 (the Intercollegiate Competition Rule) and 14.3.3 (the Three-Year Limitation). The Five-Year Rule allows an NCAA athlete to play four seasons of intercollegiate competition within a five-year window. The NCAA interprets “intercollegiate competition” to include JUCO play even though junior colleges are not NCAA members (most are instead members of the National Junior College Athletic Association, which is not affiliated with the NCAA and pales in comparison in terms of media exposure and NIL opportunities). Separately, the NCAA limits junior college transfers to a maximum of three years.
The gist of Pavia’s case is the NCAA shouldn’t count his time playing in JUCO against his eligibility to play at an NCAA member school. By doing so, Pavia contends, the NCAA harms his chances for NIL deals and professional prospects. Pavia also points out, as the U.S. Supreme Court has recognized, the NCAA has a monopoly on big-time college sports. Pavia seeks an injunction that would block the NCAA from enforcing the challenged rules and deny the NCAA a chance to apply its restitution rule, which allows the NCAA to punish a school that uses a player who, after winning an injunction in court, ultimately loses in court and is thus ineligible.
Pavia’s complaint cites several examples of former NCAA athletes to argue he should be able to keep playing for the Commodores. Pavia, 23, notes that Florida State quarterback Chris Weinke won the Heisman Trophy at age 28 after playing four NCAA seasons. Weinke was a pro baseball player for six years before he suited up for Florida State in 1997. Pavia says the Weinke example illustrates how “NCAA rules do not limit the ability of the former professional athlete to profit from NIL while playing Division I football, even though they have had a chance to physically mature well beyond a typical 18-year-old college freshman.” Denver Broncos quarterback Bo Nix, who played three seasons at Auburn and then transferred to Oregon where he played another two seasons—meaning he played five years of college football—is also mentioned.
Although Pavia acknowledges the NCAA is currently weighing a proposal that would allow all athletes five years to play five seasons, he says the prospects of approval are “uncertain” and that months, if not years, could pass before there’s clarity. Pavia says the resolution would “come too late” to help him.
Pavia is represented by attorneys Ryan Downton and Salvador M. Hernandez. U.S. District Chief Judge William L. Campbell, Jr and U.S. Magistrate Judge Alistair Newbern will preside over Pavia v. NCAA.
The NCAA will have the chance to try to rebut Pavi’s arguments. The association could contend these rules facilitate important academic objectives in that they move college athletes toward graduation. The NCAA could also assert the rules promote competitive balance in that they help the NCAA oversee fair competition between member colleges. Further, the NCAA could insist that Pavia’s alleged harm is not imminent, since his case concerns his eligibility for 2025-26, and that the controversy does not yet warrant judicial intervention.
Until recent years, those types of arguments were generally welcomed by courts.
Not anymore.
Those arguments began to lose persuasion when Ed O’Bannon defeated the NCAA in his antitrust case and Shawne Alston did the same. In a different federal district court in Tennessee earlier this year, U.S. District Judge Clifton Corker blocked the NCAA from enforcing rules that oversee NIL collectives. And the aforementioned House settlement, which U.S. District Judge Claudia Wilken has preliminarily approved, envisions colleges having the chance to opt into a pay-for-play model. Colleges will make direct payments to athletes, subject to an annual salary-cap-style limit, for media rights, ticket sales, sponsorships and NIL.
It’s become increasingly difficult for the NCAA to depict college sports as a product unique from pro sports and worthy of deference when faced with antitrust scrutiny. Judges have taken notice and ruled accordingly.
