The NCAA Division I Cabinet’s unanimous approval this week of new rules that provide athletes with five years of eligibility should help the NCAA defend against antitrust-based eligibility lawsuits.
The core reason: Allowing athletes more time to play and earn more NIL and revenue-share money, in a more straightforward and transparent process, is a more reasonable arrangement than the current system.
When competing schools want to obtain the services of elite athletes but are blocked by NCAA eligibility limits, as has been the case, that’s a potential antitrust problem. In a competitive market, those schools would be able to offer more money and other benefits to recruit the players. The rules have also not been bargained with a players’ association, like in pro sports, so there’s no labor exemption from antitrust scrutiny.
But when the NCAA and those schools can show the rules provide other benefits to competition, such as securing the unique character of college sports, a court is more likely to find those rules reasonable—and thus they’ll survive antitrust scrutiny.
The approval both changes and simplifies a system that generally provides for four seasons of play within a five-year period but features hardship waivers, redshirt rules and other features that have sometimes sparked confusion, led to arguably inconsistent applications and attracted litigation.
The new system will permit up to five years of eligibility so long as an athlete enrolls in college no later than the academic year after their 19th birthday. There are no more waivers, though the rules preserve exceptions for pregnancy, active-duty military service and official religious missions. The new system is consistent with a recent executive order issued by President Donald Trump and matches concepts raised in several bills introduced in Congress, including the Protect College Sports Act.
Since former Vanderbilt quarterback Diego Pavia won an injunction in 2024 to play a sixth season of college football, there have been more than 70 lawsuits brought by college athletes who seek to play past their NCAA eligibility.
Many of these athletes are relatively old for a traditional college student, and they intend to play college sports beyond when most of their classmates will have graduated. These athletes aim to prolong their collegiate careers to further develop their skills in hopes of turning pro, all while earning thousands or millions of dollars in NIL and revenue-share payments.
The athletes have usually raised two basic antitrust arguments. First, the NCAA, as the overseer of conferences and colleges that buys the labor and marketing services of college athletes, acts like a monopoly and abuses that power. Second, colleges and conferences have conspired to limit how much they compete through eligibility rules, and the loser of that conspiracy is the athlete who earns less. Several athletes have also raised third-party beneficiary claims under state law, with the idea that they are beneficiaries of the contractual membership between their college and the NCAA and the NCAA’s denial of waivers sought by their colleges breached contractual duties of good faith and fair dealing.
The NCAA has won most of these cases. The association has argued, among other points, athletes accept that eligibility will end around the time their status as a full-time, degree-seeking college student ends and a newer college student will take their roster spot.
College sports eligibility is not intended to function like professional sports, where athletes continue to play so long as there is a market for their services and so long as they want to continue. College sports eligibility is supposed to end around when classmates finish college, which has traditionally been after four years and sometimes five years. The more college sports resemble pro sports, the greater the risk the unique character of college sports is tarnished.
In fact, the NCAA has warned that through litigation, college athletes might seek to play as long as 18 seasons of college sports, with a 32-year-old playing in D-I.
But winning “most” of the time is not good enough for the NCAA.
The NCAA is a national member association, meaning member colleges, along with their coaches, staff and athletes, need to play by the same set of rules to ensure fair competition. If a school can play a seasoned athlete when that athlete has already used up their NCAA eligibility, the school gains an unfair advantage over rival programs.
Although they are members of the NCAA, some colleges have tacitly and even overtly supported ineligible athletes legally challenging the NCAA.
The new eligibility rules won’t be immune from challenge, and it’s possible some judges will still side with athletes. Consider that Brendan Sorsby recently won a court order from a county judge in Texas to play for Texas Tech this fall despite having admitted to having bet on his own team. It’s safe to say judges can be unpredictable, and no NCAA rule can eliminate that feature of the legal system.
Also, in pro sports, when eligibility rules are not borne through collective bargaining, courts have found them to run afoul of antitrust law. That was true when Spencer Haywood challenged the NBA’s eligibility rule in 1970 and, more recently, when Olivia Moultrie challenged the NWSL’s eligibility rule. The more college sports resemble pro sports, the more vulnerable non-bargained eligibility rules become to antitrust challenge.
There is already a challenge to the new NCAA rules brought by basketball player Malik Messina-Moore and 14 other college athletes from the high school graduating class of 2022. Represented by attorneys Darren Heitner and Ryan Downton, these players, unlike those from the high school classes of 2023 and beyond, won’t benefit from the new rules since they don’t have eligibility remaining.
To be clear, the case, which is before a trial court in Hamilton County (Ohio), is not a challenge to the substance of the new rules—in fact, the complaint says the new rules “will cure many of the NCAA’s statutory violations on a go-forward basis.” Instead, the case asks whether a group of more seasoned athletes should also benefit from the new “five years to graduate, five years to practice, five years to play” policy.
The NCAA is now on firmer legal ground with eligibility rules and should continue to win most, perhaps even all, of the eligibility lawsuits. But so long as the rules aren’t bargained with a union and so long as member schools undermine their own association, the litigation risk won’t go away.
