By Jeff Birren, Senior Writer
Jett Elad played four seasons of college football during a five-year period. He spent one “red shirt” season at a junior college. NCAA Division I rules allow athletes to compete for four seasons but each year at a junior college counts as one of the four seasons. Elad’s college eligibility was over. He was on the verge of attempting to play in the NFL when he learned that a player similarly situated had obtained an injunction prohibiting the NCAA from enforcing its junior college transfer rule, (“JUCO Rule”). Elad desired to play yet another season of college football and followed suit. The District Court granted Elad his requested preliminary injunction. He received $500,000 in name, image and likeness rights (“NIL”) as a result of playing for Rutgers during the 2025 season. The NCAA appealed to the Third Circuit. Oral argument was on September 17, 2025. It reversed the order granting the preliminary injunction and remanded the case back to the District Court “for further proceedings consistent with this opinion.” Elad v. NCAA, Case No. 25-1870 (3rd Cir., 11-25-2025). The opinion states that it is “PRECEDENTIAL”.
BACKGROUND
The National Collegiate Athletic Association has some 1,100 members spread over three divisions. Each division makes its own by-laws, and all members of the respective divisions are bound by its by-laws. Division I allows athletes to play four seasons over a five-year span. Prior to suing the NCAA, Elad played a total of four seasons over five years, including years at Ohio University, Garden City Community College, a junior college and the University of Nevada at Las Vegas. He did not play at Garden City, a “red shirt” season. His college football career appeared to be over. Fortunately for Elad, in 2024 a Tennessee District Court granted a preliminary injunction against the NCAA from enforcing the JUCO Rule against anther football player. Pavia v. NCAA, 760 F. Supp. 3d 527, 534–35 n.6, 543 (M.D. Tenn., 2024). It ruled that the JUCO Rule was a restraint of trade, and Pavia showed a strong likelihood of success on the merits.
Elad’s college career suddenly had life. He sought a waiver from the NCAA and entered its online transfer portal. Rutgers called. It “helped Elad secure” an advertising contract that would pay him “approximately $500,000” for the season. Rutgers sought a waiver from the JUCO Rule. That was denied, so Elad filed an antitrust lawsuit, coupled with a motion for a preliminary injunction to allow him to play during the 2025 season. The District Court held oral argument on April 16, 2025, and granted the preliminary injunction nine days later. (D.N.J., Case No. 3:25-cv-01981-ZNQ-JTQ (4-25-2025)). The front page stated that it was “NOT FOR PUBLICATION.”
Third Circuit: Injunction Test
Recently, District Courts have wrestled with motions for preliminary injunctions to allow athletes to play for college athletic teams despite NCAA rules. The ability to receive compensation apparently has become part of the test to obtain a such an injunction. However, a preliminary injunction is an “‘extraordinary and drastic remedy.’ Mazurek v. Armstrong, 520 U. S. 968, 972 (1997.)” The Third Circuit reminded its District Courts that the moving party is required to make a “clear showing” that “an injunction is warranted.” Courts “weigh four factors” when “considering a request for a preliminary injunction: the movant’s likelihood of success on the merits”; the risk that the movant will suffer irreparable harm in the absence of a preliminary injunction; the balance of the equities’; and the public interest. Boynes v. Limetree Bay Ventures LLC, 110 F. 4th, 604, 609 (3rd Cir. 2024). The first two factors are most important, “and only when both are present” are the other two even considered. Nken v. Holder, 556, U.S., 418, 434 (2009). The NCAA asserted that Elad failed to show a likelihood of success on the merits.
The Circuit and the Sherman Act
The Sherman Act, 15 U.S. C. §1 et seq, was passed to “combat the vast accumulation of wealth in a small number of hands of corporations and individuals”. Standard Oil Co. of N.J. v. United States, 221 U.S.1, 50 (1911)). “Underlying the Sherman Act is a congressional belief’ that “market forces ‘yield the best allocation’ of the Nation’s resources.” Alston v. NCAA, 594 U.S. 69, 73 (2021), (quoting NCAA v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 104 n.27 (1984)). “To facilitate free markets, Section 1 of the Sherman Act specifically prevents ‘restraint(s) of trade’ between “separate entities.” Copperweld Corp. v. Independence Tube Corp, 468 U.S. 751, 768 (1984). But “any such restraint of ‘trade’ must have a commercial effect, and it must be an ‘unreasonable’ restraint of commerce.” Ohio v. Am. Express, 585 U.S. 529, 540 (2018). Whether a restraint is “commercial” is thus a “threshold requirement for Sherman Act applicability.”
Courts can use one of three different tests to determine if a restraint violates the law, “depending on how obviously anticompetitive the challenged conduct is. See Alston, 594 U.S. at 87–93.” The first is a per se test: Find such a restraint and go to damages. The second is the “quick look” test. The Supreme Court used that test in NCAA v. Board of Regents when finding the rule at issue violated the Sherman Act. 468 U. S. 85, 109 (1984). The third test is the “Rule of Reason.” It is typically employed in sports cases because some amount of cooperation between competing teams is required if the product is going to be created. The Rule of Reason seeks to determine if a restraint on competition imposes restraints on a market that are harmful to competition. That requires defining a relevant market.
A “relevant market” involves establishing both a relevant product market and a relevant geographic market, or even a relevant “submarket.” In NCAA and major leagues cases, the geographic market is a national market and there is consequently little energy spent on that part of the test. Courts must engage in a “robust” market analysis. The “plaintiff bears the burden of proving the existence of a relevant market.” Queen City Pizza, Inc. v. Domino’s Pizza, Inc. 124 F. 3d 430, 436 (3d Cir. 1997). “It is “of central importance.”. “It is the area of effective competition, and courts usually cannot properly apply the rule of reason without an accurate definition of the relevant market.”10 Am. Express, 585 U.S. at 542–43 (alteration in original) (quoting Eastman Kodak Co. v. ImageTech. Servs., 504 U.S. 451, 466–67 (1992)).”
If the plaintiff does prove a relevant market, courts use a three-step, burden-shifting analysis. Is the restraint “unreasonable”? The Alston class did just that. This impressed the Supreme Court. “This was no slight burden. According to one amicus, courts have disposed of nearly all rule of reason cases in the last 45 years on the ground that the plaintiff failed to show a substantial anti-competitive effect.” Alston, 141 S. Ct. 2141, 2161 (2021).
If the plaintiff makes that showing, can the defendant show a “pro-competitive rationale” for the restraint? If it does, the plaintiff must then prove that the “pro-competitive efficiencies could be reasonably achieved through less anticompetitive means.” (This is often referred to as a “less restrictive alternative”, or “LRA.”). In Alston the Supreme Court reminded courts that businesses do not have to “employ the least restrictive means of achieving legitimate business objectives.” Alston, 594 U.S. at at 106.
However, these “‘three steps do not represent a rote checklist’ and may not be ‘employed as an inflexible substitute for careful analysis.’ Alston, 594 U.S. at 97.”
The NCAA challenged “the District Court on many fronts”, but the Circuit only considered two issues related to the likelihood of success on the merits. The first issue was whether the restraint related to commerce.
Commerce
The NCAA seemingly had a home court advantage. The Third Circuit previously held that NCAA eligibility rules were not “commerce.” Smith v. NCAA, 139 F. 3d 180 (3rd Cir. 1998). Smith had challenged an NCAA rule prohibiting graduate students from competing. She also filed Title IX and breach of contract claims. The District Court dismissed the case and Smith appealed. The Circuit “‘held that the NCAA eligibility rules were “not related to the NCAA’s commercial or business activities’ and, therefore are not subject to Sherman Act scrutiny. Id. at 185–86”.
Smith later sought leave to amend her complaint to allege that the NCAA itself violated Title IX. The District Court denied the motion. The Circuit overruled the District Court. It stated that Smith’s original complaint failed to state a valid Title IX claim, but the complaint as amended did. Smith, 139 F. 3d at 190. The NCAA sought review in the Supreme Court. The Court accepted review, and in a unanimous opinion written by Justice Ginsberg, held that the NCAA organization, as opposed to its members, was exempt from Title IX. Smith v. NCAA, 525 U.S. 459 (1999). The NCAA was represented by upwardly mobile John G. Roberts. The first Smith opinion was a very thin reed by 2025.
The Circuit recognized that although a “panel of this court is bound by, and lacks authority to overrule, a published decision of a prior panel . . . a panel may reevaluate precedent in light of intervening authority” and “decline to follow prior precedent if intervening circumstances compel it.” Alston changed the NCAA’s legal landscape. Alston stated that “‘static judicial decrees in ever-evolving markets may themselves facilitate collusion or frustrate entry and competition.’ Alston, 594 U. S. at 99.” “If . . . market realities change, so may [a] legal analysis or legal precedent. Id.” “In light of changed market realities, and the NCAA’s ability to reframe “even compensation rules as eligibility rules, we can no longer per se exclude all NCAA-labeled eligibility rules from Sherman Act scrutiny without first asking whether the specific rule at issue is commercial.”
Therefore the “District Court did not err in holding that the JUCO Rule is commercial because it interferes with Elad’s desire to compete in NCAA Division I athletics and profit from that participation.” However, a footnote states that the Circuit did not find the JUCO Rule per se commercial, but merely that it is subject to antitrust scrutiny. The question becomes whether or not it was an “unreasonable restraint of trade.” But that requires determining the relevant market and examining whether the restraint was unreasonable within that specific market.
Relevant Market
The NCAA argued that the District Court’s market analysis failed both because it inadequately defined the relevant market, and because it relied on the plaintiff’s expert, one Maxcy, whose definition was flawed. The “correct analysis requires a proper definition of the market, Am. Express, 585 U. S. at 542-43.” Unfortunately, the District Court “failed to define the relevant market altogether; it never made any findings regarding the market.” Instead, it simply recited Maxcy’s market, “the labor market for college football athletes in general and NCAA Division I football in general.”
“This failure alone constitutes a legal error because the District Court did not engage in a fact-specific analysis despite the parties’ differing opinions on the topic. FTC v. Penn State Hershey Med. Ctr., 838 F 3d, 327, 335-36 (3rd Cir. 2016).” Even if the Circuit assumed that the “District Court intended to rest its relevant market findings” on Maxcy, that also failed. Maxcy cited no market evidence or economic data. In fact, he admitted “that he did not conduct or consult any economic analyses to support his conclusions.”
Instead, Maxcy the economist simply relied on the supposed market definition from Alston. But Alston “concerned only a specific subset of NCAA Division football and basketball players. Alston, 594 U.S. at 80.” Furthermore, the Alston parties had not contested the underlying District Court’s market definitions, and the Supreme Court expressly stated: “we express no views on them.” Alston, 594 U.S. at 86-87. Post Alston, the economic realities in college football have dramatically changed. Relying on a prior market definition, “without inspection of current market realities is antithetical to antitrust legal principles. See id. at 93.” Maxcy might have noticed that Alston stated, “that when ‘market realities change, so may the legal analysis’. Id. at 93.”
The Circuit was not done. The District Court “implies in its opinion that it accepted” Maxcy’s definition because the NCAA’s expert did not object to it, and in fact “adopted it.” The NCAA disagreed, and “for good reason; it does not appear that” its expert “ever purported to opine on what the relevant market was” and, in fact, “testified” that Maxcy’s “analysis was economically insufficient.” Finally, even if this was correct, this “says nothing” as to whether Elad “carried his evidentiary burden to substantiate the existence and contours of the relevant market.”
Elad “points to Pavia as also supporting his market definitions, it too relies almost exclusively on Alston or other case law to define the relevant market. Pavia. 760 F. Supp. 3d at 539. We do not read Supreme Court precedent as allowing this.” Elad also argued that the NCAA was collaterally estopped from disputing his definition, but this “argument fails” because changes “in facts essential to a judgment will render collateral estoppel inapplicable.” Montana v. United States, 440 U.S. 147, 159 (1979). A “relevant market is by its nature a non-static factual inquiry. Alston, 594 U.S. at 93.”
In the absence of “any economic analysis or data”, the District Court “erred to the extent that it relied” on Maxcy to find a likelihood of success on the merits. Consequently, the “District Court abused its discretion in granting a preliminary injunction.” “On remand, it should conduct a relevant market analysis and tease out the changing market realities that it identified in its opinion.” (If House v. NCAA and relatedclass actionsettlements, now on appeal, are ultimately approved, that will further muddy the market. In Re College Athlete NIL Litigation, Ninth Circuit Case Nos. 25-3722, 25-3835, 25-4137, 25-4150, 25-4190, 25-4218.)
The Circuit’s opinion was issued just prior to Thanksgiving. Elad played in Rutgers’ final season game on November 29, 2025. The team ended the year at 5-7, so there was no wrangling about whether Elad could have played for Rutgers in in a bowl game. His season over, Elad stipulated to dismissal. After all, he won what he sought in filing his Complaint. Given the result in the Third Circuit, the District Court was undoubtedly happy to agree “that this action be and hereby is dismissed with prejudice and without attorneys’ fees or costs.” Order, (12-8-2025.) Elad received his NIL-based compensation. $500,000 is not a bad haul for part-time employment.
Relevant Market: Two Other Circuits Speak
Nyzier Fourqurean, Redux
Sports Litigation Alert previously covered Fourqurean, so the discussion here will be abbreviated. (Note: Elad had also been discussed in Sports Litigation Alert, but it was set out here in greater detail so the reader can compare and contrast how the three Circuits dealt with this issue.) Fourqurean also sued the NCAA seeking to play yet another year of college football. He did not challenge the “JUCO Rule” but insisted that his two years at a Division II school should not count towards the NCAA total. The Seventh Circuit later referred to this as the “Five Year Rule.” Fourqurean obtained a preliminary injunction in February 2025. The NCAA appealed to the Seventh Circuit. The Court heard oral argument on May 28, 2025, and issued its opinion on July 16, 2025.
Like the Third Circuit in Elad, the Seventh Circuit reversed the grant of the injunction. That District Court had also relied on Alston, assuming that it defined the relevant market. That assumption required correction. “The Alston Court did not decide the question of market definition.” The Court was “also cognizant that ‘[w]hether an antitrust violation exists necessarily depends on a careful analysis of market realities.’” Alston 594 U.S. at 93. ‘The market realities for college sports have changed in the four years since Alston.’” A relevant “market definition is a deeply fact-intensive inquiry….” Todd v. Exxon Corp., 275 F.3d 191,199-200 (2d Cir. 2001). Fourqurean v. NCAA, 143 F. 4th, 859 (7th Circuit, July 16, 2025). “We think that Fourqurean needs more than the sparse and conclusory allegations”. Not surprisingly, Maxcy was his “expert.”
Unlike Elad, Fourqurean did not play college football in 2025. Following the Circuit’s ruling, motion practice continued in the District Court for months. Finally, Fourqurean gave up and filed a stipulation of dismissal with prejudice, and both parties were to bear their own costs and attorney’s fees. Fourqurean, Order, .W.D. W. (Madison), Case No. 3:25-cv-00068-wme (11-21-2025).
Diego Pavia Looking Backwards and Then Forwards
Pavia successfully obtained a preliminary injunction to play during the 2025 season as previously discussed in Sports Litigation Alert. The NCAA then granted a blanket waiver to all similarly situated players so could Pavia play during the 2025 season. Curiously, the NCAA then appealed the grant of the preliminary injunction. The Sixth Circuit rejected the NCAA appeal as moot in a decision written by Judge Thapar. Judge Thapar also wrote an opinion concurring with his opinion. He noted the lack of evidence related to the definition of a relevant market. “But analysis of anticompetitive and procompetitive effects—the key to many antitrust cases, relies on market definition. So no matter what level of precision is required, more specificity and evidence about the relevant markets would be helpful as the case progresses.” Pavia v. NCAA, Case: 24-6153, page 11 (6th Cir., 10-1-2025). The Panel “Recommended” the opinion for publication.
Pavia played for Vanderbilt during the 2025 football season and finished second in the voting for the Heisman Trophy. His response was short but not sweet: F-All THE VOTERS”. Dave Wilson, “Diego Pavia apologizes for reaction to Heisman loss: ‘It was a mistake’”, ESPN, 12-14-2025. Pavia will participate in the 2026 Senior Bowl and has “declared” for the 2026 NFL Draft. Aria Gerson, “Vanderbilt’s Diego Pavia Is Era Over”, The Nashville Tennessean, (12-31-2025). However, Mr. Pavia is six feet tall, somewhat below the typical height for NFL quarterbacks. It is conceivable that he might not make an NFL roster and thus want to return to the less-competitive NCAA and its NIL charms. In fact, Pavia will return to the courtroom next month.
Market Analysis Summary
Elad, Pavia and Fourqurean failed to impress the Circuit Courts with their relevant market definitions. All three relied on Alston, but all three Circuits noted that Alston did not apply. “As an initial matter, Fourqurean relies entirely on Alston to define the relevant market. In his and the district court’s view, the Supreme Court in Alston established that men’s NCAA Division I FBS football is a relevant market. But Fourqurean overstates the scope of the Court’s ruling. The Alston Court did not decide the question of market definition.” Fourqurean, Id. at 15. “The absence of cold, hard date is especially glaring in a market that is rapidly changing. It is hard to perform a ‘careful analysis of market realities’ when the parties haven’t grappled with recent changes.’ Alston, 594 U.S. at 93.” Pavia, Thapar, Concurring Opinion at 10-11.
Going Forward
Pavia filed a Motion For a Preliminary Injunction on December 26, 2025. Next came an Amended Complaint on January 6, 2026. The Motion for a Preliminary Injunction is currently scheduled for February 12, 2026. He won his first motion for the “extraordinary” remedy of a preliminary injunction. Now he wants a second preliminary injunction in the same case. The Court has given Pavia leave to file yet another Amended Complaint after the ruling and has given the NCAA leave to respond either after the ruling on the motion, or, if Pavia files another Amended Complaint, whichever is later. No witness will be permitted to testify at the hearing without undergoing a prior deposition.
Pavia’s counsel filed another lawsuit against the NCAA in September 2025. It challenges the NCAA’s Five-Year Rule. There are nineteen plaintiffs, Langston Patterson, et al, v. NCAA, Case 3:25-cv-00994, (M. D. Tenn (9-2-2025). The case was assigned to Chief Judge William Campbell, the presiding judge in Pavia. Five of the plaintiffs moved for a preliminary injunction. Oral argument was heard on December 15, 2025. Judge Campbell denied the motion on January 15, 2026, in a 20-page ruling. Memorandum Opinion of the Court, Docket # 85. Judge Campbell had closely read the Circuit’s opinion in Pavia, as well as the two concurring opinions, and quoted from both, so much so that readers will find much of his opinion familiar. This time around he concluded that the plaintiffs had not shown a likelihood of success on the merits. That case will continue, though this ruling does mean that the plaintiffs will not play college football in 2026.
Patterson challenges the Five-Year Rule. If a football player plays in only four games in a season, NCAA Rule Bylaw 12.6.3.1.6 (2025) allows that season to count as a “red-shirt” season and it then does not count as one of the four seasons played. The Patterson plaintiffs do not just want that four-game season, they want an entire season, that fifth season with its enlarged NIL income possibilities.
The NCAA argued that the “House settlement forecloses relief here.” The Settlement included a release of “any and all challenges ‘to the subjects addressed by the Related Injunctive Relief NCAA & Conference Rules’”. Patterson, at 6. Although that is a legal question, the Court determined it that required a “more fulsome briefing.” The “Court need not decide the applicability of the settlement release at this time.” Id. at 8. This issue is going to be hotly contested in federal courts across the country. The NCAA paid handsomely for a settlement. It may be wondering what it got in return for its cash.
The Court then turned to the issue of relevant market. This time the Court spent four pages discussing the issue and concluded that “the market cannot be judged based on a few isolated examples, it requires careful analysis.” Fortunately for the Court will gain the assistance of an actual economic expert in this area. Maxcy has been replaced by a well-known and very experienced college athletics economic expert, Dr. Daniel Rascher. He has testified in this role for decades, including serving as plaintiffs’ expert in O’Bannon, Alston, and House.
Going Forward or Forever Sideways?
By early 2025, another plaintiff had sued the NCAA and sought a preliminary injunction. It was denied without the Court having to reach a relevant market analysis because the plaintiff failed to show a likelihood of success on the merits, in part because the Five-Year Rule was not “commercial.” Goldstein v. NCAA, No. 3:25-CV-00027-TES, 2025 WL 662809 (M.D. Ga. Feb. 28, 2025). Elad, Pavia, Fourqurean, Patterson, Goldstein and similar cases present challenges to the NCAA. For a plaintiff, the grant of a preliminary injunction is the outcome sought by many. If the player gets that injunction, the athlete can play that season and then, like Elad, walk away from the litigation. There will always be athletes who are not high on pro league’s draft lists and might prefer more secure and profitable employment playing yet another season for some college team.
The NCAA will continue to fight claims and might search for the “right” case to take to the Supreme Court. However, despite the presence of its former counsel on that Court, the Alston class pitched a shutout, borrowing a baseball metaphor. Will it find litigation-relief elsewhere?
Judge Thapar’s concurrence in Pavia suggested that: “[P]erhaps Congress, the NCAA, and the players can instead work together to determine a way forward.” Pavia, at 14. Judge Hermandorfer’s concurring opinion, acknowledged that Congress might enter the arena. “Even now, federal lawmakers are considering options for a legislative path forward.” Pavia at page 20. Another possible solution is to admit that football and basketball players are essentially employees and enter into a collective bargaining agreement. Although that would open a Pandora’s Box of legal issues, it would shield the NCAA and its members from antitrust damages. The Clayton Act trebles damages and adds attorney’s fees, 15 U.S.C.15(a). The NIL settlements in House and related class action cases place the total value at approximately $2.8B, including some $750M in attorney’s fees (between 25% and 30% of the total payout). Such a payout does not go unnoticed.
For District Courts, the correct market analysis will not come quickly. Real experts in this area are hardly low-hanging fruit, merely waiting to be easily plucked by enterprising lawyers. The analysis takes a considerable amount of time and energy. For over-stretched courts, the prudent path will be to deny the injunction and let the litigation run its course rather than risk reversal. Elad got his requested injunction, played, received his cash, and discarded the litigation. If subsequent courts are not in position to reach a fulsome market analysis decision until midseason, and then grants a preliminary injunction, what happens? Does the player join the proposed team midseason? Many players will find their market value to be significantly reduced at that point. Conversely, there may be schools riddled with injuries that would be willing to pay even more money for a player to join a team midway through the season. Either scenario pose interesting challenges for calculating damages should a plaintiff ultimately prevail on the merits, years hence.
State Court?
That may prove to be another viable option for professional athletes seeking to remain playing in the NCAA. On Friday, January 16, 2026, Mississippi quarterback Trinidad Chambliss sued the NCAA. He seeks preliminary and “permanent injunctive relief” and declaratory judgment, claiming that the NCAA has denied him a fourth year of eligibility. He has played three years of college football but has been in college for five years already. This case was filed in Mississippi State Court, foregoing the possibility of treble damages, but gaining a true home court advantage and avoiding the pesky issue of establishing a relevant market. Trinidad Chambliss v. National Collegiate Athletic Association, Chancery Court of Lafayette County, State of Mississippi, Case No. 26-17 (1-16-2026)). 2026 would be his sixth year in college sports, but Chambliss insists that playing in the NFL, as opposed to playing at Ole Miss, might cost him millions of dollars. The University has sought a medical-rule waiver based on his medical conditions at a prior Division II school, Ferris State. That was denied and Ole Miss appealed. When this article was submitted, no decision had been made. The lawsuit may have been filed in order to gain leverage with the NCAA concerning the sought rule-waiver.
Editorial
The Third Circuit correctly made the opinion precedential. The JUCO Rule and the Five-Year Rule have been around for decades, and in several Circuits, District Courts now have more direction going forward. So, too, does the NCAA for it cannot trot out Smith, insisting that it is binding precedent. That canard should be buried but not in briefs. Alston made it clear that the NCAA is subject to the antitrust laws, and it has no per se exemption.
Over recent years, the NCAA’s litigation focus has been on NIL-compensation litigation. Elad, like Fourqurean, Pavia, and Patterson are cases driven by NIL compensation, but are actually NCAA-eligibility rules cases. “Although the Court has dealt with NCAA compensation rules, it has never analyzed NCAA eligibility rules, which determine who can play for college teams.” Pavia, Judge Thapar Concurring at 10 (emphasis in the original).
No doubt the NCAA cheered when Goldstein did not get his requested injunction, but the reasoning works only for those that have swallowed their Kool Aid concoction. The notion that eligibility rules are beyond the reach of the Sherman Act is at best amusing, though at odds with recent rulings. The alternative ground was that Goldstein could not show “irreparable harm” because his eligibility was concluded. “The Court finds that because he has not had any remaining eligibility for more than eight months, that same lack of eligibility cannot now meet the irreparable harm requirement for the issuance of a preliminary injunction.” Goldstein, FN 11, at 15. The NCAA wins, athletes lose, and we can all go home. So much for the ruling in Alston, not to mention what the the Third, Sixth and Seventh Circuits did in 2025.
Can the NCAA have any eligibility rules, rules that are not created by courts following interminable legal challenges? Judge Thapar acknowledged that “the mere fact of judicial review poses problems for college athletics. It is “creating a seemingly endless wave of litigation.” “Consider the line-drawing problems an analysis of eligibility rules might pose. Does a five-year limit on a college athlete’s career violate the Sherman Act?” Pavia at 14. Yes, according to Pavia’s counsel. He filed an Amended Complaint on November 21, 2026, and another motion for a preliminary injunction of December 26, 2026. He also added more plaintiffs. He now seeks to allow his clients to play in the 2026 and 2027 seasons, so the litigation “wave “continues. Ironically, during oral argument before the Sixth Circuit, “Pavia’s counsel maintains that antitrust challenges to other NCAA limits—like minimum-GPA and credit-hour requitements, or the five-year eligibility window—would fail.” Pavia, Hermandorfer Concurring Opinion at page 19. No foolish consistency here.
For years the NCAA played a pat litigation hand while the sports world was constantly changing. O’Bannon should have placed the handwriting on the wall, or at least in counsels’ hands, (O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015)). Currently, there are colleges paying small fortunes to coaches, good and bad, hired and fired, so it is that much harder to feel sympathy for professional athletic organizations representing colleges and universities. Meanwhile, NCAA-eligibility and NIL litigation continue, and it is not confined to college athletics, as NIL compensation is now found in high school sports. (Harriet Ryan, “How The Unruly Black Market For High-School Athletes Tore A Family Apart.” Wall Street Journal, December 6, 2025.) Due to NCAA squad-limits, increasing the number of older athletes that are allowed to continue to play varsity football and basketball will decrease the opportunities for high school athletes to play in the NCAA. Will they then file antitrust cases against the NCAA, its conferences and schools? After all, the preliminary injunction in Pavia, and the one sought in Patterson, will depress the market for high school athletes and their ability to access NCAA-NIL loot.
The Chambliss lawsuit may have been filed in order to gain leverage with the NCAA concerning the sought rule-waiver. If it works, the NCAA may need to open an expedited processing window for waiver requests. It is also possible that Chambliss’s assessment of his value within the NCAA compared to his value in the NFL may be accurate.
For some, continuing legal education is in order. Plaintiffs’ counsel should use economic data and analyses rather than mere outdated legal opinions when rendering opinions to a court. Maxcy failed to discern what college fans already earned decades ago: There are significant differences between Division I college football and Division II or Division III, or from junior college football. Meanwhile, neither time, tide nor the relevant market stood still following the unanimous opinion in Alston, even if Maxcy thought so.
