The Uncertain Future of NCAA Eligibility Rules in the NIL Era

In recent years, the NCAA has experienced a number of adverse outcomes in court. One stemmed from appealing the Ninth Circuit decision in NCAA v. Alston to the Supreme Court, which opened the door for the transformation of college sports.

A recent trend, should it become the prevailing law, seems poised to produce another significant impact. Several courts are treating NCAA eligibility rules as restrictions on a right of individuals to earn money playing college sports, rather than as traditional rules governing who is eligible to play college sports.

The essence of the Alston court’s view of college sports is captured in the concluding portion of Justice Kavanaugh’s concurring opinion: “To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America–game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on…[but]…..Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.” Notwithstanding condemnation of the business model, perception of college rosters as a “labor market” seems notably absent.

The Expanding Scope of Eligibility Challenges

Since Alston held in 2021 that NCAA football players were entitled to receive compensation, several courts have come close to declaring that individuals have a right to participate in NCAA college football. These courts later hinged their determinations on access to the economic opportunity available to those who want to play, as opposed to first considering whether those in question were eligible to play NCAA football in the first place.

A Sherman Act analysis begins with the reasoning that to unduly restrain commerce and thereby implicate the Sherman Act, the challenged restraint must be “commercial” in nature. Not every NCAA rule seems easily pigeonholed.

Are NCAA Eligibility Rules Subject to Antitrust Review?

The case of Ed O’Bannon was a significant 2015 case involving NCAA eligibility rules and was directly based on an application of the NCAA compensation rule. In O’Bannon, a basketball player’s image was licensed by the NCAA in a video game, and the player was not compensated. The NCAA asserted that doing so would have violated its compensation rule and impaired his eligibility. The NCAA argued that none of its rules were subject to Sherman Act review because they were all “eligibility” based. In considering this argument, the Ninth Circuit delved into those “eligibility” rules and rejected the NCAA’s contention, distinguishing the NCAA rule prohibiting compensation from what the court called “true eligibility rules.”

In its ruling, the Ninth Circuit provided specific examples of “true eligibility rules,” which included the rule that limited the number of years student-athletes could play college sports (the five-year rule) and the rule that required student-athletes to complete a certain number of hours each semester. The finding that the five-year rule was eligibility-based occurred in a context of analyzing and identifying attributes of a “commercial rule.” While the challenge in Alston was that prohibiting compensation was a commercial rule and the holding was consistent with an expansion of O’Bannon, Sherman Act litigation did not cease after Alston.

Subsequent Attacks on the Five-Year Rule

Since Alston, players who have reached their time-based eligibility limits have now filed cases claiming the five-year rule is commercially based and therefore implicates the Sherman Act. The cases of note began with the Pavia case in 2024, and to date include the Elad, Braham and Robinson cases in 2025, which granted preliminary injunctions that blocked the NCAA from enforcing the five-year rule.

These courts concluded that the five-year rule is “commercial” because players could now be paid. Each recited Pavia’s conclusion that Alston “drastically changed the landscape of collegiate athletics by allowing student-athletes to earn compensation.” The Robinson court, citing Pavia, Elad and Braham, directly concluded that “In the current era of NIL compensation, eligibility rules are commercial in nature. They dictate the number of years a student-athlete can market and profit from an NCAA Division I career.” This language seems unqualified and absolute, and seemingly would include any eligibility rules, including those relating to GPA, satisfactory matriculation, age, limitation of tenure in college or even professionalism.

Pavia, and others such as Elad and Braham, were minority holdings. The Robinson court acknowledged that and acknowledged that its characterization of the five-year rule conflicted with rulings from a number of other 2025 decisions from other federal district courts, such as:

• Hasz v. NCAA in Nebraska federal court, which involved a football player
• Goldstein V. NCAA in Georgia federal court, which involved a baseball player
• Brzovic v. NCAA in South Carolina federal court, which involved a basketball player
• Coley v. NCAA in North Carolina federal court, which involved a football player
• Osuna v. NCAA in Tennessee federal court, which involved a baseball player
• Johnson v. NCAA in Montana federal court, which involved a basketball player

Goldstein in particular, when considering the expansive interpretation given to Alston by the minority courts, articulated that Alston was “more scalpel than axe” in application, in that the Supreme Court specifically limited its application to the compensation rule.

Further Evolution of the Five-Year Rule

In an effort to provide clarity from its prior five-year rule, which allowed five years to play four seasons but allowed loosely defined “redshirt” years and NCAA discretionary waivers which led to litigation, the NCAA amended the rule to a straight five years of eligibility to play five seasons. New court cases have followed where players who competed for four seasons under the prior rule sought to return for an additional season. One of these was Wisne v. NCAA, a federal case filed in Colorado as a class action by players seeking the additional year of eligibility. 

In Wisne, the district court granted an injunction barring application of the new “5-for-5” rule and allowed those players to return. The NCAA persuaded the 10th Circuit to stay the injunction pending appeal, though that is not yet final. A noteworthy component of the Wisne court order was its specific finding that the 5-for-5 rule was “commercial” in nature, which was necessary to allow the court to exercise review for antitrust purposes and impose its remedy. Somewhat surprisingly, the district court brushed aside O’Bannon in one sentence, holding it irrelevant because the Ninth Circuit in it “failed to contend with the labor market.” Instead, Wisne specifically endorsed the Braham, Elad, and Robinson line of cases, finding “their reasoning is persuasive,” and determined that the 5-for-5 rule improperly limits players’ “participation in a labor market.” 

The Wisne court also quoted Robinson, stating that “this restraint on labor through association rulemaking interferes with student-athletes’ free exercise of their rights to engage in commerce (participate in Division I football).” Taken literally, that analysis reduces college sports to a generic “labor market” and facially makes all eligibility rules impermissible restrictions.

Thus, within the five years since Alston was decided, we have traveled from correcting the inequity of colleges making revenue from media rights, merchandise and ticket sales for their athletic teams without compensating the players on those teams, to the precipice of college football simply being considered a labor market where anyone must be allowed to participate because they can make money, regardless of traditional eligibility requirements. The danger, as reflected in Wisne and cases relied on by that district court, is the indication that such expansive terminology encompasses age, professionalism and possibly even academic participation and class attendance, because each necessarily restrict the opportunity of any individual to participate in that labor market, or, as the Robinson court termed it, to “participate in Division I football.”

The scope of language used in holdings of courts such as Elad, Braham, Robinson, and now Wisne, does not seem limited by narrow objectives such as restoration of the single year of eligibility requested by its plaintiff players. It seems to apply to and hold offensive any restriction on the ability of someone to make money playing college sports. This language can be readily cited as legal authority to overturn any challenged eligibility rule and seems poised to apply to professionals or long-term matriculants or career students. Participating in college sports would seem to operate no differently from seasonal farmwork, construction or manufacturing. If that is the case, the NCAA cannot even bring the erosion to an end by conceding a blanket extra year to all players who expended their four years of competition before the 5-for-5 rule was enacted, as it did for JUCO players when Pavia raised that issue. The prospect of 25+-year-old players and semi-pros competing, both for jobs and in athletic competition against, 18-year-old freshmen in the “labor market” no longer seems impossible or even unlikely. One wonders if that was part of Justice Kavanaugh’s vision in Alston.

Please contact Tom Sullivan, Rhett Parker or any member of the Phelps sports team with questions or for advice and guidance.