The NCAA’s Five-Year Fight Is About More Than a Fifth Season

Case Analysis | September 15, 2026

The NCAA’s latest eligibility fight is not really about whether college athletes should get five seasons instead of four.

It is about whether calling something an “eligibility rule” still gives the NCAA meaningful shelter from ordinary antitrust law.

That question has been hovering over college sports since the Supreme Court’s 2021 decision in NCAA v. Alston. It has become increasingly urgent as eligibility determines not merely who gets to play, but who gets access to scholarships, direct school payments, NIL income, national exposure, and potentially a professional career.

Now Wisne v. NCAA gives the Tenth Circuit an unusually important opportunity to address it.

A federal judge in Colorado concluded in July that a nationwide class of Division I athletes was likely to succeed on its claim that the NCAA violated Section 1 of the Sherman Act by excluding a particular group of athletes from its new five-year eligibility system. The district court certified a nationwide class and preliminarily enjoined the NCAA from using the transition rule to deny those athletes a fifth season.

But the injunction is not currently in effect.

On August 21, a divided Tenth Circuit panel stayed it pending appeal, concluding without substantive explanation that the NCAA had satisfied the requirements for a stay—including making a strong showing of likely success on appeal. Judge Veronica Rossman would have denied the stay.

And the appeal has now moved beyond emergency stay litigation. The NCAA filed its opening merits brief on September 1, the athletes responded September 8, and the NCAA replied September 11. The athletes also alerted the Tenth Circuit to the Ninth Circuit’s new September 9 decision in Blythe v. NCAA. The September 14 headlines about the NCAA “asking” the Tenth Circuit to reverse the ruling therefore describe the pending appeal, but September 14 was the reporting date—not the date the appellate merits fight began.

That distinction matters.

There has been no Tenth Circuit decision on the merits.

What comes next could matter far beyond this particular group of athletes.

The NCAA overhauled Division I eligibility rules in June.

Under the new age-based model, an athlete generally receives a continuous five-year period of eligibility beginning with full-time college enrollment or the academic year following the athlete’s nineteenth birthday, whichever occurs first. The new system eliminates the traditional limit of four seasons of competition within five years for athletes governed by the new model.

The NCAA itself cautions that describing the system simply as “five-for-five” is imprecise. It is an age-based eligibility model, and it does not guarantee every athlete five competitive seasons.

The transition rule is what produced Wisne.

Athletes who had already used their fourth and final season during 2025–26 received no additional eligibility. By contrast, current athletes who still had eligibility remaining could receive whichever system—the previous rules or the new age-based model—was more favorable.

Twelve Division I athletes who began college competition during the 2022–23 season sued.

Their argument was straightforward: the NCAA had decided that five years of competition could be compatible with Division I athletics, but drew a transition line that excluded their cohort after they had already played four seasons.

They said that exclusion was not merely unfair. It was an unlawful restraint on the labor market for Division I athletes.

The procedural posture is critical.

U.S. District Judge Charlotte Sweeney did not enter final judgment declaring the NCAA’s rule unlawful. She did not conduct a trial. And she did not permanently enjoin the NCAA.

She ruled on a request for preliminary injunctive relief.

Although the athletes styled their July motion as seeking a temporary restraining order or, alternatively, a preliminary injunction, Judge Sweeney ordered adversarial briefing and expressly treated the request as one for a preliminary injunction. That meant the athletes had to establish, among other things, a likelihood of success on the merits and irreparable harm before final judgment.

They did.

The most consequential part of the ruling came at the beginning of the antitrust analysis.

The NCAA argued that time-based eligibility restrictions are not commercial restraints within Section 1 of the Sherman Act.

Judge Sweeney rejected that premise.

She relied on recent appellate decisions from the Third, Fourth, and Seventh Circuits concluding that NCAA eligibility rules can regulate commercial activity because they restrict participation in a labor market. In modern Division I sports, being eligible to compete can determine an athlete’s ability to obtain compensation and commercially exploit participation in college athletics.

That doctrinal move matters enormously.

If the rule is noncommercial, the antitrust inquiry can end almost before it starts.

If it is commercial, the NCAA has to defend it under antitrust law.

Judge Sweeney chose the second path.

Once the court classified the rule as commercial, it applied the familiar rule of reason.

That framework asks, in simplified form:

That first step has become increasingly important in NCAA eligibility cases.

The Wisne plaintiffs defined the market as the United States labor market for Division I college athletes. Unlike plaintiffs in some previous eligibility cases, they submitted expert evidence from economist David Berri addressing substitutes, participation, revenues, roster utilization, and the economic characteristics of Division I athletics. Judge Sweeney concluded that the athletes had presented sufficient evidence to define both the product—or labor—market and its geographic scope.

She then found evidence of anticompetitive effects.

The transition rule excludes an entire group of qualified athletes from competing, she reasoned, reducing the supply of experienced Division I labor and eliminating their ability to pursue compensation that depends upon participation.

The NCAA countered that roster limits make college athletics largely zero-sum: a fifth-year athlete occupying a roster spot may mean an incoming athlete does not get one.

That is probably the NCAA’s strongest practical argument.

But it had an evidentiary problem in the district court.

The record showed that in 2024–25, teams in every Division I men’s sport existed below their applicable roster caps; approximately 55% of women’s teams and 23% of men’s teams were below their respective caps, leaving thousands of available spots. Judge Sweeney therefore rejected the premise that every fifth-year athlete necessarily displaces somebody else.

That factual finding became central to the decision.

“Roster chaos” sounds powerful in the abstract.

Antitrust law asks for evidence.

The district court’s treatment of the NCAA’s justification is also the portion most vulnerable to appellate scrutiny.

The NCAA’s position is not frivolous.

Eligibility rules necessarily draw lines. College athletics cannot operate without some definition of who qualifies to participate, and a governing body changing from one eligibility system to another must decide how to treat athletes already inside the old system.

The NCAA argues that applying the new model retroactively would disrupt roster planning, alter opportunities promised or expected by younger athletes, and punish schools that made scholarship and roster decisions under the rules then in effect.

The broader principle matters too. In Christy Sports v. Deer Valley Resort, the Tenth Circuit cautioned against using antitrust law to prevent a business from changing its business model simply because others benefited from the old one.

Judge Sweeney found Christy Sports materially distinguishable: it involved a different antitrust provision, a different market, and a different alleged restraint. Changing rules, she reasoned, is one thing; implementing a rule in a way that unreasonably restrains trade is another.

That is a defensible distinction.

But the Tenth Circuit now gets to decide whether it is persuasive.

The appellate court could conclude that the district judge treated ordinary transition costs too readily as evidence of unlawful exclusion. Or it could agree that once the NCAA collectively restrains access to a compensated labor market, administrative convenience cannot substitute for a legitimate competitive justification.

That is the real fight.

Since Judge Sweeney issued her injunction, the legal landscape has changed.

On September 9, the Ninth Circuit published its reasoning in Blythe v. NCAA, another challenge to the NCAA’s five-year eligibility rule.

The NCAA won.

But not in the way it would probably prefer.

The Ninth Circuit squarely held that the Five-Year Rule is a commercial restraint subject to the Sherman Act. It joined the Third, Fourth, and Seventh Circuits in rejecting the idea that an NCAA rule escapes antitrust scrutiny merely because the NCAA categorizes it as an eligibility rule.

That is significant support for Wisne on the threshold legal question.

Yet the Ninth Circuit still vacated Noah Blythe’s injunction because his evidentiary record was too thin. The district court had inadequately defined the relevant market, and Blythe had not presented sufficient evidence that the Five-Year Rule caused substantial harm to competition in that market. Injury to one athlete, the court emphasized, is not automatically injury to competition.

That makes Blythe unusually useful to both sides in Wisne.

The NCAA can say: eligibility rules may be reviewable, but that does not make them unlawful. Courts still must demand rigorous market proof.

The Wisne athletes can answer: exactly—and unlike Blythe, we supplied it.

Judge Sweeney specifically relied on economic evidence concerning the Division I labor market, roster utilization, available alternatives, output, wages, and competition. Her order expressly distinguished cases where athletes arrived with little more than evidence of their own exclusion.

That difference may ultimately decide the appeal.

The Tenth Circuit does not have to choose between Blythe and Wisne.

It could adopt Blythe’s legal rule—that eligibility restraints are commercial and receive ordinary Sherman Act review—while deciding whether the much fuller record in Wisne clears the evidentiary hurdle that Blythe did not.

There is another important piece of the district court’s ruling that can easily get lost.

The NCAA argued that the House settlement barred the athletes’ claims because the plaintiffs were members of the settlement’s injunctive-relief class.

Judge Sweeney disagreed.

She read the release as covering claims involving compensation, NIL arrangements, roster and scholarship limits, and rules existing within the scope of the settlement—not a later-adopted eligibility rule that did not yet exist when the settlement was approved.

The court therefore concluded that the plain language of the House release did not reach the challenge in Wisne.

That holding is important beyond this case.

The House settlement is enormously consequential, but it is not necessarily a blanket immunity agreement for every NCAA rule adopted in the new economic system.

The district court certified a Rule 23(b)(2) nationwide class consisting of athletes who began collegiate sports in 2022–23, competed in Division I, completed four years of eligibility by the end of 2025–26, and are barred from a fifth season because of the new rule’s implementation.

But the injunction was narrower than some early descriptions suggested.

After the NCAA sought clarification, Judge Sweeney explained that her order prohibited the NCAA from using the challenged rule or another NCAA bylaw to deny qualifying class members a fifth season. It did not invalidate the House settlement, eliminate roster caps, suspend transfer rules, or erase independent eligibility requirements.

And again, none of that relief is presently operative.

The district court refused to stay its injunction on August 10, but the Tenth Circuit did so eleven days later. The appellate panel stated that the NCAA had satisfied the stay factors, including a strong showing of likely success on the merits. Judge Rossman dissented from the grant.

That stay deserves attention—but not overreading.

A stay is not an appellate holding that the NCAA has won. The panel provided no substantive explanation identifying which part of Judge Sweeney’s analysis it considered vulnerable. It could be market definition, anticompetitive effects, the treatment of transition rules, the injunction’s breadth, or some combination.

The order tells us there is serious appellate skepticism.

It does not tell us why.

For decades, eligibility rules occupied a favored conceptual category.

Compensation rules looked commercial. Eligibility rules looked like rules defining the game.

That distinction is becoming harder to maintain.

An athlete who is declared ineligible today may lose a scholarship, direct revenue-sharing payments, third-party NIL opportunities, exposure, professional-development opportunities, and access to a labor market that increasingly looks—and pays—like one.

The Ninth Circuit has now joined three other federal appellate courts in recognizing that reality.

That does not mean every eligibility rule violates the Sherman Act.

Quite the opposite.

Blythe demonstrates the difference between antitrust scrutiny and antitrust liability. Saying a rule is commercial merely opens the courthouse door. The athlete still has to define a market, prove harm to competition rather than merely personal injury, overcome legitimate procompetitive justifications, and satisfy the demanding requirements for whatever relief is requested.

That distinction is exactly why Wisne matters.

If the Tenth Circuit agrees that eligibility rules are commercial but reverses because the plaintiffs failed to prove marketwide anticompetitive effects, the NCAA would retain substantial room to regulate eligibility—just under ordinary antitrust principles.

If the court affirms, the consequences could be broader. It would signal that a sufficiently developed economic record can turn even a traditional eligibility line into an unlawful labor restraint.

And if the Tenth Circuit instead concludes that this kind of transition rule deserves special treatment because it defines who can participate in college athletics, it could create meaningful tension with the rapidly developing appellate consensus elsewhere.

For athletes, Wisne offers something individual TRO cases cannot: the possibility of classwide relief.

That is why the case has outsized importance.

The current eligibility landscape is intensely fragmented. Individual athletes continue to litigate in state and federal courts, sometimes obtaining emergency relief and sometimes losing it. The NCAA is separately trying to consolidate a number of age-based eligibility cases through multidistrict litigation.

The result is increasingly strange.

Two athletes with materially similar eligibility histories can have different playing status depending on which court hears their case, what legal theory they plead, how much economic evidence they submit, and whether they obtain relief before their season disappears.

A precedential Tenth Circuit decision would not end every eligibility dispute.

But it could answer one of the most important recurring questions:

What does an athlete have to prove before an NCAA eligibility rule becomes an antitrust problem?

That is far more consequential than deciding whether one class gets another season.

The merits appeal is now fully briefed. The NCAA filed its opening brief September 1, the athletes responded September 8, and the NCAA filed its reply September 11. The plaintiffs also submitted the Ninth Circuit’s Blythe opinion as supplemental authority. No merits opinion has issued, and the public litigation tracker currently lists no scheduled oral-argument date.

Meanwhile, the district-court injunction remains stayed.

That means Wisne currently provides no nationwide fifth-year entitlement for the certified class.

And the underlying lawsuit remains alive regardless of the preliminary-injunction appeal. The complaint also includes contract claims and requests for declaratory and permanent relief that have not been finally adjudicated. The appeal concerns preliminary relief—although its antitrust analysis could heavily influence everything that follows.

The Tenth Circuit therefore does not need to decide whether the NCAA can ever limit eligibility.

It faces a narrower—but still enormously important—question:

When an association of competing schools collectively decides which athletes may participate in a lucrative labor market, how much does the word “eligibility” change the antitrust analysis?

After Alston, Elad, Fourqurean, Robinson, and now Blythe, the answer increasingly appears to be: not as much as it once did.

Whether the NCAA nevertheless wins Wisne may turn on something much less philosophical.

Evidence.