A federal judge granting an injunction to Vanderbilt quarterback and former junior college transfer Diego Pavia could invite a range of legal challenges to NCAA rules that center on the evolving relationship between antitrust law, NIL and D-I eligibility.
Potential litigation could include athletes eyeing seven-year collegiate careers, where they play the first two years in JUCO and then five years in D-I. Some could sue to gain even longer collegiate careers, with athletes using university graduate programs to play college sports well into their 20s or even beyond. At the other end of the spectrum, younger players could challenge the NCAA’s initial eligibility guidelines.
These possibilities are legally plausible because of the professionalization of college sports and the willingness of judges to view eligibility cases from decades ago–before the NIL era–as no longer applicable.
College athletes can now credibly argue the denial of playing eligibility and accompanying NIL deals deprives them of market-based opportunities ordinarily protected by antitrust law. NCAA eligibility rules are vulnerable to antitrust scrutiny because they reflect agreements by competing businesses (i.e., NCAA member institutions) to restrain opportunities for a labor market that increasingly resembles pro athletes.
Complicating matters for the NCAA is the association’s longstanding principle, as raised by the NCAA in litigation against states that pass laws conflicting with NCAA rules, that it must treat member institutions and their athletes equally. The association’s rules demand equitable treatment, and it would be logically inconsistent for a national organization to give preference to some but not others. Yet now the NCAA is compelled to treat Pavia better than other former JUCO players. That problematic dynamic could lead the NCAA to announce other players sharing the same eligibility situation as Pavia can keep playing too.
Last Thursday, Chief U.S. District Judge William L. Campbell enjoined the NCAA from enforcing bylaw 12.02.6 to preclude Pavia from playing D-1 football in 2025. Dubbed the Intercollegiate Competition Rule, 12.02.06 defines “intercollegiate competition” to include time playing for a junior college team. That’s true even though junior colleges are not NCAA member institutions, and their football program’s quality of play and their players’ NIL opportunities often pale in comparison to D-I. NCAA athletes can only play four seasons of “intercollegiate competition” within five years, an arrangement that, until Pavia won an injunction, barred the former two-year New Mexico Military Institute star from continuing his D-I career. The NCAA, which criticized Campbell’s order, can petition the U.S. Court of Appeals for the Sixth Circuit in hopes the appellate court will vacate the injunction.
Campbell’s order is tightly limited yet has far-reaching implications.
On one hand, the injunction pertains only to Pavia. Other former JUCO athletes cannot, absent obtaining a court order or the NCAA dropping its enforcement, gain another year of eligibility merely because Pavia landed one. Campbell, in fact, italicized for emphasis that his order is “as to Pavia” and not other players.
Also, Pavia established he is well-positioned to land lucrative NIL deals as the starting quarterback of a Southeastern Conference school. Campbell mentioned that Pavia estimates he would earn over $1 million in NIL compensation next year and added Pavia would lose out on building his “personal brand” if denied the chance to play. Although Campbell didn’t write this, a less heralded D-I player from a smaller program might have encountered more difficulty in obtaining an injunction.
On the other hand, much of Cambell’s expressed reasoning for granting an injunction was less about the value of Pavia’s NIL opportunities and more about a modern college sports landscape that increasingly resembles pro sports.
Campbell’s stated logic indicates that antitrust scrutiny of eligibility bylaws should weigh how college athletes nowadays engage in endorsement, sponsorship, influencing and other commercial transactions as part of their collegiate experience. He went so far as to referring to D-I football players as a “labor market,” a phrase that suggests D-I football players provide football services in a commercialized manner akin to NFL players.
Also important: Campbell found irreparable harm (meaning a harm that can’t be cured by monetary damages) mainly because “as many other” courts have found, “the denial of the ability to play sports is irreparable harm.” The denial of the chance to play can jeopardize a player’s development as well as deny them the chance for NIL deals. While not part of Campbell’s order, the NCAA’s settlement to resolve the House, Carter and Hubbard antitrust litigations strengthens Campbell’s reasoning. If the settlement gains final approval, participating colleges will directly pay D-I athletes a revenue share reflecting media rights, ticket sales sponsorships and NIL. That will expand the argument that D-I athletes stand to suffer if denied the chance to play on account of eligibility rules.
Although Campbell’s injunction only directly helps Pavia, it indirectly assists other athletes who seek to challenge NCAA eligibility rules.
Consider other former JUCO athletes whose eligibility clock will run out. They now have a blueprint to convince a judge to extend their time. Those athletes could hire attorneys to apply the legal arguments drafted by Pavia’s attorneys, Ryan Downton and Salvador M. Hernandez.. They can also cite Campbell’s detailed logic. Another judge wouldn’t be bound by Campbell’s order but would certainly consider it relevant authority.
On X, Tom Mars, a longtime sports attorney and former member of the NCAA’s complex case unit, observed there is now a “roadmap” for other former JUCO players to bring Pavia-inspired cases.
“Player’s lawyer (paid by school as allowed in eligibility cases per NCAA rule) use Pavia pleadings as template with adjustments showing irreparable harm, citing Pavia ruling,” Mars wrote. Mars added that a former JUCO football player reached out to him after his coach gave him Mars’ phone number and other attorneys who have represented athletes, including Darren Heitner and Gene Egdorf, similarly mention athletes reaching out to them after the Pavia ruling.
With a client list that has included Jim Harbaugh, Justin Fields, Houston Nutt, Bret Bielema and John Brannen, Mars predicts that “after 3-4 consecutive losses, the NCAA surrenders,” meaning announcing that it no longer intends to enforce the bylaw.
The NCAA has already “surrendered” this year in another NIL-related federal antitrust case in Tennessee. In February U.S. District Judge Clifton Corker enjoined the NCAA from enforcing rules prohibiting college athletes and recruits from negotiating compensation for NIL with collectives and boosters. The NCAA then suspended enforcement of those rules. The NCAA also dropped its transfer rule in the wake of setbacks in court. Even the NCAA’s allowance of NIL reflects a surrender of sorts. The NCAA could have challenged state NIL statutes before they went into effect on July 1, 2021, yet declined and instead announced it would no longer deny player eligibility on account of signing an NIL deal.
It’s not just former JUCO players like Pavia who could legally attack NCAA eligibility rules.
Campbell’s reasoning that the commercialization of college sports and the denial of NIL opportunities make eligibility rules more legally suspect could invite a range of challenges. For instance, why can’t players continue their careers for years as graduate students? Many universities feature comprehensive and varied graduate programs. Those universities are likely eager to enroll grad students given the looming “enrollment cliff,” where over the next decade the college-age population in the United States is expected to drop leading to lower undergraduate enrollments and accompanying revenues.
It’s not as if the NCAA is instantly hostile to older athletes, either. Chris Weinke, who was previously a pro baseball player, won the Heisman Trophy in 2000 as a 28-year-old QB. J.R. Smith, who was previously an NBA player, became a golfer at North Carolina A&T in 2021 when he was 35 years old. Other “older” college athletes have included those whose military service or missionary work delays their educational timeline. They arguably should not lose out on NIL opportunities, especially when fewer than 2% of college athletes will turn pro.
Before you think the solution is an age ceiling on college sports, age-based eligibility rules when not collectively bargained are problematic under antitrust law since they restrain competition for a labor market for non-merit-based reasons. And since college athletes, save for Dartmouth College men’s basketball players, are not unionized, the NCAA can’t collectively bargain an age ceiling.
Lastly, there’s the possibility of athletes denied NCAA eligibility due to rules set by the NCAA Eligibility Center (formerly called the NCAA Clearinghouse) challenging rules on account of lost NIL opportunities and denial of play in a commercialized college sports landscape. Former George Mason Deputy AD Kevin McNamee suggested this to me on X, and it’s a great point. An attorney could adapt Pavia’s arguments to fit a challenge to initial eligibility rules, which include assorted academic requirements.
With Christmas a few days away, it’s possible Santa Claus came early to deliver a gift in the form of an injunction to athletes who want to keep playing college sports and earn NIL money.
