By Gary Chester, Senior Writer
The Sports Litigation Alert has reported on a variety of cases this year where student-athletes have challenged the NCAA’s rule that playing junior college sports counts towards Division I eligibility. Courts have interpreted antitrust law inconsistently in granting or denying preliminary injunctions in a variety of cases with similar facts, adding to the Wild West atmosphere that is intercollegiate sports.
Adding to the confusion is an unpublicized NCAA rule that enables the governing body to punish student-athletes who seek redress in the courts. In Robinson v. NCAA, No. 1:25-cv-75 (N.D.W. Va. August 20, 2025), Judge John Preston Bailey ruled on the application of four West Virginia football players who sought a preliminary injunction permitting them to play for the Mountaineers while their eligibility is determined. The plaintiffs each have played a total of four seasons of college football at both the JUCO and Division I levels. They also sought relief from the NCAA’s “Restitution Rule.”
Are the NCAA’s Eligibility Rules “Commercial” under Antitrust Law?
The plaintiffs, Jimori Robinson, Jeffrey Weimer, Tye Edwards, and Justin Harrington, are football players who have exhausted their collegiate eligibility by playing four seasons of junior college and Division I football. They sought a preliminary injunction prohibiting the NCAA from enforcing NCAA Bylaw 12.02.06 (the Five-Year Rule) which counts participation in junior college athletics towards Division I eligibility.
In Pavia v. NCAA, 760 F. Supp. 3d 527 (M.D. Tenn. 2024), the Vanderbilt quarterback Diego Pavia has alleged that the Five-Year Rule violates the Sherman Antitrust Act. The court issued a preliminary injunction in Pavia’s favor, which indicated that Pavia’s lawsuit would likely succeed after it was fully litigated. In response, the NCAA issued a blanket waiver allowing former JUCO athletes like Pavia to compete for a fourth year in Division I.
Robinson, Weimer, Edwards, and Harrington all enrolled at West Virginia after the NCAA announced its waiver of the Five-Year Rule. They each applied for a waiver, but the NCAA denied their requests. On August 1, 2025, the plaintiffs filed a complaint accusing the NCAA of breach of contract, violation of the Sherman Act, promissory estoppel, and tortious interference. Judge Bailey needed to determine whether the players’ challenge to the rule limiting eligibility to four seasons of collegiate competition in five calendar years would likely succeed on the merits.
To qualify for preliminary injunctive relief, a plaintiff must establish: (1) likelihood of success on the merits; (2) likelihood of irreparable harm; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. (Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). While these factors are a balancing test, a failure to establish a likelihood of success on the merits “‘is usually fatal’ to a plaintiff’s request for preliminary injunction.” (Pavia, 760 F. Supp. 3d at 536.)
The NCAA argued that under Smith v. Nat’l Collegiate Athletic Ass’n, 139 F.3d 180, 185–86 (3d Cir. 1998), its eligibility rules are not commercial and therefore not subject to scrutiny under the Sherman Act. The NCAA relied on two precedent cases that were on point, but the court observed that they preceded NCAA v. Alston, 594 U.S. 69 (2021), the catalyst for permitting student-athletes to receive compensation for the use of their NILs.
Judge Bailey followed Pavia and other recent decisions in finding that NCAA eligibility rules are commercial in nature because they limit the time in which student-athletes may profit from the use of their NILs. Bailey recognized that courts have been split on the issue, but he emphasized the commercial nature of the recent House Settlement authorizing universities in the five major conferences to share up to $20.5 million a year with student-athletes.
Is the NCAA Harming Competition?
The court next considered whether the Five-Year Rule and related rules harm competition for college athletes. Judge Bailey noted that junior colleges do not offer the same NIL opportunities as NCAA Division I institutions. He found that the rules harm competition because they “induce potential football players to attend NCAA institutions rather than non-NCAA institutions even when non-NCAA institutions, such as junior colleges, might be in their best interest.” (Players are more likely to attend Division I schools where they would receive less playing time than at a JUCO.) Bailey likened the rules to UnitedHealthcare or BlueCross BlueShield collusively refusing to pay doctors who also did business with a small-town health insurer.
The NCAA argued that its rules were procompetitive because longer eligibility would mean taking away opportunities for other athletes, and because its eligibility rules help to preserve amateurism. The court rejected these and other arguments, citing inconsistencies between the NCAA’s legal position and its own rules. It also discussed less restrictive alternatives to achieving the same goals.
As to whether the failure to grant injunctive relief would result in irreparable harm, the plaintiffs raised several legal precedents which the NCAA tried to distinguish because the cases concerned Title IX. The court reasoned that the context was different, but the principle is the same denial of the opportunity to play intercollegiate athletics can constitute irreparable harm. The court stated, “This harm is particularly acute in today’s collegiate landscape, where student-athletes not only compete but also have access to time-sensitive NIL opportunities that may be permanently lost if they are denied the ability to participate.”
The court further concluded that equity and the public interest favored the players. Judge Bailey ruled in favor of the plaintiffs and granted an injunction against the NCAA, meaning that the plaintiffs could participate in the Mountaineers’ season opening game against Robert Morris.
The Court Rules on Potential NCAA Retribution
Judge Bailey provided a detailed analysis of nine decisions concerning the eligibility of athletes who joined Division I programs after playing in junior college. The split amongst courts clarified that obtaining temporary injunctions against the NCAA creates a risk of NCAA retribution in the future.
NCAA Bylaw 12.11.4.2, commonly known as the Rule of Restitution, was passed in 1975. The rule permits the NCAA to retroactively penalize a member institution and its athletes if a court granted an injunction allowing an ineligible athlete to play was eventually overturned on appeal. The rule authorizes the NCAA to vacate team records and individual awards, issue postseason bans, and impose other penalties. The purpose of the rule is to discourage legal challenges by student-athletes and universities in eligibility disputes.
The Restitution Rule is seldom enforced* but it has certainly deterred athletes and colleges from instituting legal actions, and it may have impacted some legal rulings. In a seminal eligibility case, Bloom v. NCAA, 93 P.3d 621 (Colo. App. 2004), the trial court reportedly declined to grant an injunction permitting former Olympic skier Jeremy Bloom to play football at the University of Colorado. Like most Olympic athletes, Bloom relied on endorsements to fund his training. The NCAA declared Bloom ineligible to play football based on a violation of its amateurism rules.
Bloom thought the NCAA had acted inconsistently because it had permitted quarterback Drew Henson to receive a $2 million signing bonus from the New York Yankees while he was playing football at Michigan. A state court judge in Colorado rejected Bloom’s application for injunctive relief.
“At first, when we found out that the judge was a [Colorado] season ticket holder, we were all high-fiving,” Bloom told VICE Sports in 2016. “Then, one of the first things out of the judge’s mouth was a question asking where the university stood because he was worried about the Restitution Rule. All of us were looking around like, “What the hell is that rule?’” Bloom claimed that the judge’s fear of NCAA retaliation against Colorado if he ruled in Bloom’s favor and was later reversed made it “very obvious that the Restitution Rule was going to be an insurmountable bylaw to get any type of fair ruling.”
In Robinson, the NCAA did not oppose the plaintiffs’ request to enjoin application of the Restitution Rule, but the court considered the issue on the merits. Judge Bailey recognized that some NCAA schools will not permit an athlete who has obtained an injunction to compete out of fear of punishment. He described the breadth of the Restitution Rule as “staggering” and going “well beyond the final adjudication on the merits in the NCAA’s favor.” Citing his own ruling in Ohio v. National Collegiate Athletic Ass’n, 706 F.Supp.3d 583, 594 (N.D. W.Va. 2023) (transfer rule requiring one year in residence before becoming eligible is an illegal restraint of trade), Bailey enjoined application of the rule.
“It is self-evident that the Rule of Restitution would chill both plaintiffs’ and WVU’s ability to rely on this Court’s injunction by exposing them to severe penalties should the injunction later be voluntarily vacated, stayed, or reversed,” the court wrote. “Consistent with its decision in Ohio, this Court sees no reason to depart from that reasoning…”
The Takeaway
The decision highlights the tangle of rules, interests, and rights that is “procollege” sports. If the Five-Year Rule is found to constitute an illegal restraint of trade, then student-athletes will be permitted to play two years in junior college before “going pro” in Division I for four years. This would erode the NCAA’s legitimate interest in distinguishing between college and professional sports.
Conversely, if the Five-Year Rule is upheld, then student-athletes would have fewer choices for their four years of eligibility because junior colleges do not offer meaningful NIL compensation. This would hurt competition between junior colleges and Division I institutions.
The Restitution Rule is an example of the NCAA’s misuse of power. The governing body has consistently overreached in its rules, leading to the present unsettled state of intercollegiate athletics. The NCAA essentially waived the Rule of Restitution in Robinson, but it has not repealed this heavy-handed tool of reprisal.
Whether the Five-Year Rule and other pressing legal issues in intercollegiate sports are ultimately decided in the U.S. Supreme Court or in federal legislation is the singular pressing issue that will determine the future of the industry.
*NOTE: In 1975, Oregon State center Lonnie Shelton signed a professional basketball contract with the Memphis Sounds of the American Basketball Association. Shelton then claimed the contract was invalid. He sought to return to Oregon State for one more year. The NCAA ruled Shelton ineligible for the 1975-76 season, but Shelton obtained a preliminary injunction and led the Beavers to a record of 18-9. In Shelton v. NCAA, 539 F.2d 1197 (9th Cir. 1976), the Ninth Circuit reversed the trial court and dissolved the injunction. Although Shelton had played pursuant to an injunction that was valid at the time, the NCAA ordered Oregon State to forfeit the 15 victories in which Shelton participated, lowering the team’s record to 3-24. Shelton played for 10 years in the NBA, averaging 12 points and six rebounds per game, and earning a championship ring with the Seattle Supersonics in 1979.
