NCAA Scores Major Antitrust Win as Eligibility Rules Upheld

As more and more D-I college athletes whose NCAA eligibility has run out sue the association, the NCAA on Wednesday won a key decision at the U.S. Court of Appeals for the Seventh Circuit in defense of its eligibility rules.

The ruling could set the table for a potential split among federal circuits on whether NCAA eligibility rules comply with antitrust law, and make it possible for the U.S. Supreme Court to take on the issue. The decision comes as a spate of athletes have sued to keep playing in response to NIL and House-settlement opportunities for revenue sharing.

Writing for herself and Judge Joshua P. Kolar, Judge Amy J. St. Eve reversed U.S. District Judge William M. Conley’s issuance of a preliminary injunction in February that would have allowed Wisconsin cornerback Nyzier Fourqurean to play a fifth season of college football in five years. St. Eve maintained that much of Fourqurean’s case relies on an overly expansive reading of the U.S. Supreme Court’s ruling in NCAA v. Alston (2021).

In a dissenting opinion, Judge Kenneth F. Ripple asserted that the majority’s decision to reverse the injunction will cause substantial harm to Fourqurean. The reversal will “potentially deprive” him of a “season of collegiate play to which he may be entitled,” at a time when he can no longer enter the NFL draft and therefore has, as a practical matter, no other way of forwarding his football career.”

Ripple added that, “in stark contrast, the NCAA has identified no harm it would suffer were the injunction to stand.”

Fourqurean is set to graduate this December. His college football career began with a lost 2020 season at D-II Grand Valley State in Michigan due to the COVID-19 pandemic. The following year he played in the equivalent of three games at Grand Valley, followed by a full 2022 season there. He then matriculated to Wisconsin and played for the Badgers in 2023 and 2024.

Fourqurean would like to play this fall as he could earn, according to court records, as much as $500,000 in NIL deals. Fourqurean might also be paid by Wisconsin through the House settlement’s revenue-share feature. But he’s ineligible to play since the NCAA’s five-year rule (NCAA bylaw 12.8) limits athletes to four seasons of intercollegiate competition in any one sport. 

Conley, the district court judge, held it was problematic for the NCAA to deny Fourqurean a chance to play another season. He reasoned that Fourqurean, as a D-I football player, is a member of a labor market who can only sell his services to one type of buyer—colleges. Preventing Fourqurean from selling his services to an interested buyer allegedly interferes with the market.

St. Eve disagreed. She explained that the NCAA contends the five-year rule is necessary to produce college athletics. Fourqurean contends his “exclusion from participating in college football” is evidence of anticompetitive effects caused by the rule. The judge found there are problems with Fourqurean’s approach.

For one, Fourqurean doesn’t effectively establish the relevant market for antitrust analysis. He maintains that Alston identified D-I FBS football as a relevant market, but St. Eve disagreed. She wrote “the Alston Court did not decide the question of market definition,” and stressed Alston concerned an altogether separate topic: rules limiting how schools compensate athletes for education-related costs. St. Eve also reflected on the fact that “market realities for college sports have changed in the four years since Alston,” especially “opportunities to profit from revenue sharing and NIL.”

St. Eve further reasoned that even if D-I FBS football is the relevant market for antitrust analysis, Fourqurean’s case is hobbled by a “more fundamental problem.” To prove that the five-year rule causes more anticompetitive harm than procompetitive good, he would need to show the rule expands “the NCAA’s ability to depress student-athlete compensation below the competitive level . . . by making it more difficult for the NCAA’s existing or potential rivals to compete against the NCAA.” 

She found his proof of anticompetitive harm is limited to just his exclusion, but “has offered no evidence in support of this mechanism for depressing compensation.” St. Eve even suggested the five-year rule might increase compensation since “under ordinary principles of supply and demand, a restraint that limits the supply of workers in a labor market would increase, not decrease, worker compensation.”

The judge also criticized Fourqurean’s case on account the five-year rule doesn’t reduce competition among colleges “for each other’s players.” Instead, the rule merely forces colleges to “compete over a smaller pool of eligible players.”

St. Eve suggested Fourqurean might ultimately prevail if accorded a chance to further develop his case through evidence and testimony, but she acknowledged that is unlikely since the college football season will soon begin.

She urged Conley to “expedite the coming litigation” and noted that perhaps the NCAA’s Committee for Legislative relief might “create some flexibility for the NCAA to address the hardship to Fourqurean that concerned the district court.”

In his dissent, Ripple found his colleagues’ reasoning flawed. He said the court should focus on whether the five-year rule “has an anticompetitive effect on the Division I labor football market.”

To that end, Ripple cited the U.S. Supreme Court’s ruling in Radovich v. National Football League (1957), which is historic in sports law because it held that the NFL, unlike MLB, is governed by antitrust law. Ripple said Radovich helps Fourqurean. It concerned offensive lineman Bill Radovich’s antitrust case against the NFL for blacklisting him because he played in a rival league, the All-America Football Conference. Ripple found Radovich and accompanying cases on point because they stand for the proposition that “agreements among supposed competitors not to employ each other’s employees not only restrict freedom to enter into employment relationships, but may also, depending upon the circumstances, impair full and free competition in the supply of a service or commodity to the public.”

Ripple also writes that the five-year rule harms the labor market, because it “forces out the market’s most experienced athletes.” As a result, Ripple contends, “the NCAA depresses NIL compensation by declaring ineligible the very players who would be entitled to the most lucrative financial arrangements because they have spent years developing their skills.” 

Exclusion of experienced D-I players also, in Ripple’s view, makes D-I football “a less desirable form of athletic entertainment,” which could depress TV and other “ancillary industries.” He added, “this depression of competition will, in time, harm the compensation of all Division I players.”

In addition, Ripple rejected the NCASA’s argument that the five-year rule is meaningfully linked to an athlete’s academic progression. He reasons that the NCAA decision last year to permit athletes to transfer an unlimited number of times to secure more NIL and revenue-share money “undercuts” academic justifications. “Whatever the legitimacy of such an argument in the past, the NCAA recently revised its bylaws to allow athletes to transfer schools as many times as it appears economically advantageous to the individual player,” Ripple wrote.

In a statement shared with Sportico, an NCAA spokesperson said the association and its schools’ “member-approved rules, including years of eligibility, are designed to help ensure competition is safe and fair … We are thankful the Seventh Circuit Court of Appeals today reversed the district court’s decision.”

Fourqurean could petition the Seventh Circuit for a rehearing en banc, in which all the active judges on the court would review the arguments. Those petitions are seldom granted, but the odds are slightly better when the three-judge appellate panel, as with Fourqurean v. NCAA, renders a divided decision. Obviously, the clock is ticking as the Badgers will play their first game of the season on Aug. 28.

The Seventh Circuit’s ruling sets precedent for federal district courts in the circuit, meaning the district courts in Illinois, Indiana and Wisconsin. It does not govern other federal district courts, including those in Tennessee, where Vanderbilt quarterback and former JUCO transfer Diego Pavia thus far has a successful case to play a sixth season this fall. Pavia’s case is currently on appeal to the U.S. Court of Appeals for the Sixth Circuit. The possibility of Fourqurean losing at the Seventh Circuit and Pavia winning at the Sixth Circuit sets up a potential federal circuit split, a phenomenon that could attract the interest of the U.S. Supreme Court to step in, especially given that numerous athletes and schools would be impacted.