The U.S. Court of Appeals for the 10th Circuit on Tuesday appeared likely to reverse a nationwide injunction allowing Division I athletes who began college play in 2022–23 and completed four years of eligibility to play another season against the NCAA’s wishes.
While a ruling likely won’t be issued for weeks or months, a victory for the NCAA in a federal appeals court would reflect a major win for the organization. The NCAA is trying to enforce eligibility rules at a time when numerous athletes are trying to extend their collegiate sports experience—and make money via NIL deals and revenue sharing.
Judges Carolyn B. McHugh, Paul J. Kelly and Nancy L. Moritz held an oral argument, with Rakesh Kilaru of Wilkinson Stekloff arguing for the NCAA and Robert Shelquist of Cuneo Gilbert Flannery & LaDuca arguing for former University of Northern Colorado basketball player Brock Wisne and other players.
At issue in the hearing was a nationwide injunction granted by U.S. District Judge Charlotte N. Sweeney a few months ago to allow Wisne and other similarly situated athletes to play another year. Last month, the 10th Circuit stayed the injunction pending the appeal, meaning the injunction is not in effect but could become effective if the 10th Circuit sides with the players.
The core of the legal argument is that the NCAA is violating antitrust laws by denying the class of 2022 players a fifth season when some might earn a considerable amount of money in NIL and revenue sharing, as well as further cultivate their games in hopes of turning pro. The players maintain it is unfair that, in June, the NCAA Division I Cabinet adopted a new eligibility rule that provides for up to five years of eligibility but does not make it retroactive for former players who completed college in May or June.
The panel seemed highly skeptical of Wisne’s case, at least at this early stage in the antitrust litigation. The judges openly questioned whether Wisne has defined the relevant market—meaning an area of competition subject to antitrust scrutiny—and whether there’s sufficient data to support the antitrust claim.
Kilaru began his argument by asserting the players’ case lacks evidence of market conditions for the “vast majority” of D-I sports and athletes. He also argued that players like Wisne, who signed with a Spanish professional basketball team after graduating from college, “received the full measure of eligibility” they had been promised when they started college: four seasons in five years.
Further, Kilaru emphasized that the return of former college athletes to college sports would mean that “thousands” of eligible college athletes “would be displaced” on rosters or at least lose playing time.
In addition, Kilaru suggested that once one eligibility rule is deemed to violate antitrust law, it opens the door to athletes who are deemed ineligible for other reasons, such as having poor grades or betting on sports.
Kilaru was pressed by the judges on whether, as Sweeney found, the marketplace for college sports is more competitive if more players are eligible. That dynamic, one judge said, might lead to more schools “throwing money” at players.
Kilaru disagreed, noting that when there are more laborers in a market, that circumstance tends to drive wages “down, not up.”
When asked about the fact that some of the returning players might be stars and thus well-positioned to attract lucrative NIL offers, Kilaru said that even if that is true, data must support the point, and he maintained that the players lack such data. Kilaru also noted that many of the highest-paid players in college sports are freshmen, so the idea that returning players would necessarily earn more isn’t necessarily true and would require evidence.
Kilaru also argued that there’s a “glaring flaw” in defining the relevant market for antitrust analysis. He maintained the players are trying to lump all D-I athletes together, which “doesn’t make sense” either for athletes or schools.
To illustrate, Kilaru hypothesized a women’s lacrosse player. In antitrust terms, the player sells athletic and NIL services to schools, and the potential antitrust problem arises if schools, as buyers, agree to restrict whether they can pay her and for how much.
Kilaru noted that potential purchasers of this player include D-I, D-II, D-III and NAIA schools, as would a professional team in the Women’s Lacrosse League. But Kilaru said it would “make no economic sense” if the Syracuse football team were included in the analysis, and yet the NCAA maintains that the players lump all athletes together as one group selling services.
When asked about the difficulty for players to amass reliable data in a rapidly changing college sports world, Kilaru noted that in a normal antitrust class action case, data usually isn’t available for a few years, and it is obtained through the class-certification and discovery processes. That was true in NCAA v. Alston, which was in court for seven years. In Wisne, the case just started a few months ago.
Shelquist then presented arguments for the players. He argued that the NCAA is a monopolist and gatekeeper of college sports, and that the NCAA has unfairly excluded the high school class of 2022.
Shelquist almost immediately faced a hot bench, with the judges repeatedly and in different ways asking him how his clients define the relevant market. The judges said they can’t assess anticompetitive effects without first defining the market; one judge quipped that it’s “like an algebra problem; there are things you have to do first.”
Shelquist argued that his side had defined the market, but that led to one judge commenting that it is a “hugely overbroad market” of all D-I athletes and all D-I sports and has “almost no evidence.”
Judge Kelly responded: “What is the market? You haven’t defined it.”
Shelquist also tried to answer judges’ questions about the possibility of other ineligible athletes, such as those who are not admitted into college due to poor academics, claiming that they should be eligible, too, and that their inclusion would make the market more competitive. Shelquist tried to argue that isn’t analogous, since his clients are only challenging the interpretation of an eligibility rule regarding the high school class of 2022, but the judges maintained it’s a relevant question since any group excluded could sue and argue that it should be included, too.
The judges also wondered if they should defer the litigation to see if the Protect College Sports Act, which would immunize the NCAA from antitrust lawsuits regarding eligibility, passes the House. Kilaru noted that the NCAA hopes the bill passes but stressed that the injunction should still be reversed on the merits, and he pointed out that other courts have cited the Wisne case.
Although it seems likely the NCAA will defeat Wisne, the win doesn’t set national precedent. It would bind federal district courts within the 10th Circuit’s jurisdiction—Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming—but not elsewhere. That means judges in other states could rule for players, a point illustrated by litigation in Louisiana regarding the return of NFL players to LSU.
But a win in federal appeals court would send a message that the NCAA retains substantial authority to set eligibility rules.