The NCAA scored a legal win last week when U.S. District Judge Charles E. Atchley Jr. denied University of Tennessee first baseman Alberto Osuna a preliminary injunction to keep playing college ball after the former junior college star exhausted his NCAA D-I eligibility.
It was the latest ruling in a growing number of player eligibility cases that raise the same basic question: Given that college athletes can earn NIL income and, if the House settlement is approved, a share of revenue, do NCAA rules limiting eligibility to four seasons in five years illegally restrain trade?
The timing might be right for Congress to provide an answer to this question.
It’s a question that has been in play since last December, when Vanderbilt quarterback and former junior college transfer Diego Pavia convinced Chief U.S. District Judge William L. Campbell Jr. that D-I football players are a labor market whose exclusion from NIL and other commercial opportunities warrants antitrust scrutiny.
Pavia’s victory has encouraged other college athletes whose eligibility has or will soon expire to try to litigate an extension of their collegiate careers. It’s not inconceivable, as U.S. District Judge William M. Conley recently suggested while granting University of Wisconsin redshirt senior Nyzier Fourqurean an injunction to keep playing, that some athletes—particularly those not good enough for pro sports—could try to extend their collegiate careers into their 30s so they can maximize NIL and other collegiate earnings.
In granting Pavia an injunction, Judge Campbell acknowledged, but found unpersuasive, court rulings from the “pre-NIL world” when judges routinely upheld NCAA eligibility requirements as ill-suited for antitrust scrutiny. Back then, NCAA eligibility requirements were viewed as non-commercial in nature since they primarily concern college students and their education. Antitrust law, in contrast, governs commercial dealings and inquires whether those dealings promote or curtail competition in an economic market.
In the increasingly commercialized NIL world, antitrust law seems a lot more applicable to eligibility questions.
NIL collectives that are closely aligned with but nominally separate from colleges recruit athletes by offering them NIL deals (even though NIL is not supposed to be pay-for-play), and those athletes can transfer to a new team (I mean school) every year. Revenue sharing will only accelerate the transformation of big-time college sports into something akin to pro sports. Colleges will directly pay athletes a cut of media, sponsorship and ticket revenue. Those athletes will also receive athletic scholarships (which cover tuition, housing, health resources, etc.), and they can land their own NIL deals, too.
There are compelling arguments that this new world is fairer for athletes, whose labor has been the engine of massive revenue generation for the NCAA, conferences and colleges. But where antitrust law fits into how long college athletes can keep playing is a murkier topic.
In pro sports, antitrust law is an easy fit for eligibility questions. The athletes are professionals who sell their employment services to employers (i.e., teams in a sports league). The exclusion of those athletes on account of being too young or too inexperienced is an antitrust question since competing businesses (teams) join hands and agree to not hire those athletes even if they want to sign those athletes. This is why Portland Thorns player Olivia Moultrie succeeded in her antitrust eligibility case against NWSL: The teams, through the league, had excluded her from employment opportunities. And when college football star Maurice Clarett, for whom I served as an attorney, brought his antitrust case against the NFL over its draft eligibility rule, the most relevant question wasn’t whether antitrust law applied, but whether the prospect of applying antitrust law had been lawfully extinguished through a working arrangement between the NFL and a labor union, the NFLPA. Pro leagues tend to avoid antitrust disputes over eligibility because eligibility rules are usually bargained with a union, and bargained rules are exempt from antitrust scrutiny.
It’s a different and more complex calculus in college. When colleges join hands through the NCAA to set eligibility rules to play sports, those colleges are excluding students, rather than employees or prospective employees, from eligibility. That educational, rather than commercial, dynamic suggests that antitrust law might not apply. But nowadays those students have economic stakes in playing, including opportunities for NIL deals, that arguably make them resemble pro athletes. As another variable, there is no bargaining in college sports because there is no union. Unionization requires, among other things, employee recognition. College athletes are not (yet) considered employees. So, eligibility rules in college sports can be challenged on antitrust grounds and there’s no CBA that preempts those claims.
In different jurisdictions, judges over the last few months have offered conflicting takes on how antitrust law fits with NCAA eligibility. Judge Conley adopted a similar viewpoint as Judge Campbell, stressing that continuing to play college sports is at least partly an economic matter. The athlete in question, Fourqurean, could earn hundreds of thousands of dollars in NIL and would boost his NFL draft prospects by furthering his player development with another year of college football.
But in recently denying University of Georgia baseball player Dylan Goldstein an injunction to keep playing, U.S. District Judge Tilman (“Tripp”) E. Self III reasoned that NCAA eligibility rules are best viewed as non-commercial in nature and are thus ill-suited for antitrust scrutiny. Self acknowledged that eligibility is connected to NIL opportunities but found that eligibility is more fundamentally about when a college or grad student is eligible to play a school-sponsored sport.
In discussing Osuna’s case, Judge Atchley said the application of antitrust law to NCAA eligibility presents “an uncertain and clearly evolving legal landscape.” He wrote “the NIL era, in many ways blurs the lines between clearly commercial rules and those eligibility rules once thought to be explicitly non-commercial.” Although Atchley opined that there is “merit in aspects of both parties’ arguments,” the judge sided with the NCAA at this stage in the litigation. But as Atchley alluded, expect to see more cases ahead.
There are a few ways NCAA eligibility litigation could play out.
First, and most straightforwardly, the NCAA could drop restrictions on how long a college athlete can play. If a student is enrolled as a full-time undergraduate or grad student, the student could be deemed eligible to play for a team. Given that universities offer numerous degree programs, it’s conceivable for a student to remain enrolled at a university for many years and past the point at which their bodies lose a step or two on account of aging and wear-and-tear. The NCAA could go even further by lifting a requirement that the student be full-time.
This first possibility could be attractive to the NCAA because it’s very easy to understand and enforce—you can play as long as you’re a student. This approach would end costly antitrust lawsuits over player eligibility. College coaches and athletic directors who eye seasoned talent would no doubt find this approach appealing.
But this possibility is unrealistic. The college sports brand could take a hit if too many late-twentysomething and early-thirtysomething athletes occupy roster slots that would otherwise go to 18- and 19-year olds. College sports could resemble a professional minor league, which broadcast and media partners–let alone fans–would find off-putting.
Second, the NCAA could play out the athlete eligibility litigation game and hope to win. The NCAA has appealed the Pavia ruling to the U.S. Court of Appeals for the Sixth Circuit, and might fare better there. As several of the district court judges in these eligibility cases noted, the U.S. Supreme Court has not tackled the topic. While the NCAA lost the Alston case at the Supreme Court, Alston had nothing to do with NIL or paying college athletes to play sports (it concerned compensation to athletes for education-related expenses). It’s possible the Supreme Court could surmise that NCAA eligibility rules are reasonable restrictions that relate to goals in higher ed and ought to be upheld.
The danger for the NCAA with the second possibility is if it loses. The NCAA was confident it would win Alston until a disastrous oral argument followed by the association losing 9-0. In the 2020s both liberal and conservative judges have sharply criticized NCAA restrictions on college athletes’ earning opportunities. Gambling on the courts is always risky.
Third, the NCAA could turn to Congress. This idea is easy to scoff at. The NCAA has lobbied Congress to address NIL, athlete employment and an antitrust exemption, among other topics. While members of Congress have held college sports hearings that net them media attention, no bill has gone anywhere. As the NCAA knows too well, a hearing doesn’t guarantee that a vote will be taken.
Perhaps the NCAA would have more traction by imploring members of Congress to consider an antitrust exemption narrowly limited to athlete eligibility. The NCAA could argue the NIL and post-House settlement world is one where college athletes will be paid and can transfer schools as readily as their non-athlete classmates. But the ability to set eligibility rules, the NCAA might assert, is fundamental to ensuring that college sports are played by college students who are like their classmates–and not aging ringers who never leave school. The NCAA’s “ask” wouldn’t be for a far-reaching antitrust exemption or national authority over NIL. It would be to maintain basic control over the character of rosters.
The NCAA could also assert there is confusion with conflicting court rulings in regard to eligibility. Congress could end that confusion by exempting the NCAA from antitrust lawsuits over eligibility.
No doubt, some members in Congress, from both parties, would object to granting any sort of antitrust immunity to the NCAA. Some would argue the NCAA has shown problems complying with antitrust law and thus isn’t deserving of an exemption. Others would say let market economics decide what happens with eligibility and player movement.
Still, of the college sports topics that Congress could meaningfully tackle, player eligibility is the kind of narrow one that might finally lead to action.
Only time–and age–will tell.
