LORIENT et al v. National Collegiate Athletic Association

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Clarksburg
BRENEN LORIENT,
JAVAN BUCHANAN,
JASON CHAMBERS, and
BENJAMIN MCDOUGAL,
Plaintiffs,
v. 	CIVIL ACTION NO. I :26-CV-94
Judge Bailey
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Before addressing the merits of the above-styled case, the Court would be remiss
if it did not offer its two cents regarding the increasingly complicated world of college
athletics. The undersigned has now presided over two (2) cases involving West Virginia
University (“WVU”) student-athletes seeking injunctive relief to permit them to participate
in collegiate sports. See Battle v. NCAA, Civil Action No. 1:23-CV-I 01 and Robinson v.
NCAA, 	1 :25-CV-75. The Court has also presided over litigation in which the States of
Ohio, Colorado, Illinois, New York, North Carolina, Tennessee, West Virginia, Minnesota,
and Mississippi, the Commonwealth of Virginia, and the United States of America sought
to enjoin enforcement of National Collegiate Athletic Association (“NCAA”) Bylaw 14.5.5.1,
commonly known as the “Transfer Eligibility Rule.” See Ohio v. NCAA, Civil Action No.
1:23-CV-100. While the Court has no doubt that the federal judiciary is capable of
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adjudicating the cases that come before it, these cases have brought into sharp focus a
troubling feature of the current system: student-athletes are increasingly required to seek
relief from individual district courts, sometimes on expedited schedules, with the possibility
that similarly situated athletes may receive different answers depending upon the court in
which their case happens to be filed.1
The consequences of such a system extend beyond the parties and the courts
themselves. A student-athlete visiting a university as part of the recruiting process should
be considering the institution’s academic programs, coaching staff, facilities, campus, and
opportunities for competition—not whether a particular federal district court has previously
been receptive to claims involving NCAA eligibility rules. Yet, under the current system,
the location of a university, or even the happenstance of which judge is assigned a case,
may affect whether an athlete is permitted to compete. That creates the unfortunate
possibility that judicial outcomes could become another factor in the recruiting process and
could provide certain universities with an advantage unrelated to the merits of their
institutions or athletic programs.
The Court recognizes that these cases present difficult and evolving questions
involving antitrust law, student-athlete eligibility, collegiate competition, and the authority
1With Judge Sweeney’s July31, 2026 Order in Wisne eta!. v. National Collegiate
Athletic Association, 2026 WL 2214234 (D. Cob. July 31, 2026), opinion clarified 2026
WL 2214320 (D. Cob. Aug. 2, 2026), having been stayed by the Tenth Circuit, numerous
student-athletes who had relied upon the nationwide relief afforded by that decision were
effectively left with no alternative but to seek individualized relief in the courts where their
respective universities are located. As a result, student-athletes facing the same eligibility
issue are now being required to pursue separate litigation in different jurisdictions,
potentially subjecting similarly situated athletes to different outcomes based solely on the
court in which relief is sought.
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of the NCAA. The Court further recognizes that reasonable jurists may disagree about the
appropriate resolution of those questions. But the present patchwork approach—where
individual athletes seek emergency relief in courts across the country and different courts
may reach different conclusions concerning substantially similar NCAA rules—does little
to promote certainty, uniformity, orfairness. It also places courts in the unenviable position
of making decisions that can have immediate and significant consequences not only for
the litigants before them, but for universities, athletic programs, conferences, and
student-athletes nationwide.
Additionally, Judge Kara Krothe in the Monroe County Circuit Court in Indiana
issued an injunction on September 23, 2026, allowing almost 100 players to play, including,
ironically, a player committed to West Virginia University.2
In short, the current system is a mess. College athletics has changed dramatically,
while the legal and regulatory framework governing that industry has struggled to keep
pace. Whatever the ultimate merits of the various challenges to NCAA eligibility rules may
be, there is a compelling need for a more uniform and predictable system for resolving
these disputes. That responsibility should not fall principally upon individual Judges faced
with emergency motions involving athletes whose seasons, scholarships, and collegiate
careers may turn on decisions that must be made in a matter of days.3 The Court therefore
2JaCorey Thomas dressed and was available for West Virginia University’s game
on September 26, 2026, against Oklahoma State University.
3For instance, with the addition of Jason Chambers in the above-styled case, a
Division 	I football player, the urgency of this matter has increased substantially. Division
I football games began on August 27, 2026, meaning that the 2026 football season is
already underwaywhile Chambers and similarly situated student-athletes remain uncertain
as to whether they will be permitted to compete. At this point, the question of eligibility is
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respectfully suggests that the time has come for Congress to address the broader structure
governing college athletics and provide a clear, comprehensive, and uniform
framework—rather than leaving the federal courts to piece one together case by case.4
Turning to this case, plaintiffs seek an injunction prohibiting the NCAA from
enforcing arbitrary and capricious decisions, breaching its contracts with its member
institutions, and preventing them from participating in college sports. See [Doc. 12].
On August 18, 2026, the Court held a Status Hearing and issued deadlines for preliminary
injunction briefing. See [DoGs. 4, 10]. The Court also directed the parties to provide notice
regarding any proceedings in the Tenth Circuit regarding the appeal of Judge Sweeney’s
July 31, 2026 Order in VVisne et a!. v. National Collegiate Athletic Association,
2026 WL 2214234 (D. Cob. July 31, 2026). [Doc. 10 at 1—2].
The parties filed a Joint Status Report on September 1, 2026. See [Doc. 11].
The parties report that, on August 21, 2026, the Tenth Circuit stayed the nationwide
preliminary injunction entered in V’Iisne, which had restored eligibility for qualifying
2022-entry Division 	I student-athletes under the NCAA’s “Five-for-Five” framework. [Id. at
~ 1—3]. As a result of the Tenth Circuit’s ruling, the nationwide injunction entered in
not merely academic or prospective; each passing week represents games, practices, and
meaningful opportunities to participate that cannot be recovered. The circumstances
therefore underscore the need for a prompt resolution of the issues presented before the
Court.
The case was filed on August 3, 2026, and the Court promptly scheduled a hearing
on plaintiffs’ Motion for Preliminary Injunction for September 24, 2026, following expedited
briefing. Thus, from the filing of the Complaint to the date by which the student-athletes
must know their playing futures, the parties and the Court have had less than two (2)
months to litigate and resolve issues of significant legal and practical consequence.
4This request for congressional action is not an endorsement of any pending
legislative action.
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Wisne is currently not in effect and athletes whose eligibility depended solely upon the
Wisne class-wide injunction are presently ineligible unless they have obtained separate
relief through another court order or injunction. [Id. at ¶ 4]. The stay does not resolve the
merits of the underlying antitrust claims or vacate the district court’s class certification or
preliminary injunction, and the appeal remains pending on an expedited schedule. [Id. at
¶ 5]. Following the stay, plaintiffs reported that at least two (2) additional similarly situated
WVU student-athletes have been prevented from competing, and plaintiffs amended the
Complaint to add those athletes as plaintiffs, with the parties agreeing that the existing
case schedule should remain in place. [Id. at ¶ 9].5 Separately, the NCAA has petitioned
the Judicial Panel on Multidistrict Litigation (“JPML”) to centralize numerous NCAA
eligibility-related antitrust cases, but this action is currently identified only as a potential
tag-along action and has not been transferred. [Id. at ¶~J 10—12]. The JPML has not yet
ruled on the proposed MDL, and oral argument is scheduled for September 24, 2026;
therefore, the pending MDL proceedings do not presently affect this Court’s schedule.
[Id. at~[~[ 14—17].
Also on September 1, 2026, plaintiffs filed their Motion for Preliminary Injunction and
accompanying Memorandum of Law in Support. See [Docs. 13 & 16]. On September15,
2026, the NCAA filed a Response [Doc. 22]. Plaintiffs filed a Reply [Doc. 23] on
September 22, 2026. For the reasons that follow, this Court will GRANT plaintiffs’ request
for a preliminary injunction.
5Plaintiffs filed an Amended Complaint and added the two (2) additional athletes:
Jason Chambers (football) and Benjamin McDougal (baseball). [Doc. 12].
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I. Background
The NCAA is the governing body for college sports in the United States. [Doc. 12
at ¶ 59 (“The NCAA is a voluntary, self-governing association of colleges, universities, and
conferences that regulate intercollegiate sports, including eligibility and participation.”)].
NCAA member institutions must agree to comply with NCAA rules and enforcement
mechanisms as a condition of membership and competition. [Id. at ¶ 60].
For decades, the NCAA’s “Five-Year Rule” has permitted student-athletes to
compete in up to four (4) seasons of intercollegiate athletic competition over a five (5)-year
period. [Doc. 22-1 at 58—68]. The NCAA’s eligibility rules also provide various means for
member institutions to obtain “waivers” of the Five-Year Rule on student-athletes’ behalf.
[Id. at 60, 65—68]. These waivers permit student-athletes to either obtain an additional
season of eligibility to participate in competition and/or an extension of their five (5)-year
eligibility clock under defined circumstances. [Id.].
But in June 2026, the NCAA changed course. Under the “new age-based eligibility
model,” which plaintiffs call the “Five for Five Rule,”
An individual’s6 period of eligibility for practice and competition shall be
limited to five years. An individual’s five-year period of eligibility begins with
the earlier of the following:
6NCAA Bylaw 12.01 .2 states:
“Individual” vs. “Student-Athlete.” NCAA eligibility may be lost as a result
of activities before enrollment in college. If NCAA rules specify that an
“individual” may or may not participate in certain activities, this term refers to
a person before and after enrollment in a member institution. If NCAA rules
specify a “student-athlete,” the legislation applies only to that person’s
activities after enrollment.
[Doc. 13-3 at 14].
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(a) The regular academic term (semester or quarter) of an academic year in
which the individual enrolls in a collegiate institution (domestic or foreign; see
Bylaw 14.02.4) in a minimum full-time program of studies and attends a class
in that term while enrolled full time; or
(b) The beginning of the regular academic year immediately after the
individual’s 19th birthday.
[Doc. 13-3 at 25—26]. Waivers are no longer available for injury, illness, family
emergencies, or economic hardship. The “exceptions” are now limited to military service,
recognized foreign aid services such as the Peace Corps, conscientious objectors, and
official religious missions under Rule 12.6.6, and pregnancy under Rule 12.6.7. [Dcc. 16
at 6 (citing [Doc. 13-3 at 26—27])].
In this case, plaintiffs are four (4) athletes who have each competed in four (4)
seasons of collegiate sports, most recently competing at West Virginia University.
They seek to compete in a fifth season while enrolled as full-time students during their fifth
year of college.
In June 2026, the NCAA Division 	I Cabinet adopted a new rule that would allow
some athletes to do just this—play five (5) seasons within a student-athlete’s five (5)-year
period of full-time enrollment. [Dcc. 22-2 at ¶ 16]. Going forward, student-athletes will
receive a five (5)-year eligibility period beginning at the start of the academic year following
their 19th birthday or upon full-time enrollment at a collegiate institution, whichever comes
sooner, and student-athletes may compete during that five (5)-year period of eligibility
without restriction, providing they meet all other eligibility requirements. [Id. at ¶ 17].
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Waivers have been eliminated under this new rule other than clearly defined cases
required by law involving pregnancy, military service, and religious missions. [Id.].
For example, plaintiff Javan Buchanan’s request and situation are almost identical
to several waiver requests granted by the NCAA in other cases, including those of
Ben Humrichous and Elijah Malone. In each of those cases, the student-athlete was
granted a waiver for additional eligibility—in fact, the student-athletes in those cases were
awarded years of eligibility in excess of what is being requested by Buchanan here. In the
Ben Humrichous situation, he participated for two (2) years at the National Association of
Intercollegiate Athletics (“NAIA”) level and then three (3) additional years at the Division 	I
level. Elijah Malone spent four (4) years at the NAIA level and then participated two (2)
additional years at the Division 	I level. Notably, in the Elijah Malone case, his waiver
required not only an eligibility waiver but a five-year clock waiver. Buchanan’s requested
waiver to the NCAA here is much simpler and more limited but was denied nonetheless by
the NCAA.
But plaintiffs, due to the timing of when they were born, high school graduation, and
number of seasons in which they have already competed, are not allowed to compete for
a fifth year under this rule. In other words, plaintiffs are caught in the gap between the old
regime and the new regime of eligibility rules. Plaintiffs seek injunctive relief because
implementation of this rule wrongfully denies them the opportunity to compete in a fifth
season of their collegiate careers, and because this rule and the NCAA’s conduct amounts
to a violation of federal antitrust law.
The Five for Five Rule poses a problem for plaintiffs. While not stated in the
language of the Rule itself, the Rule does not apply to athletes who began playing in 2022
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and were deemed by the NCAA to have completed four (4) years of competition. Thus,
plaintiffs here are ineligible to play a fifth season of college sports—despite wanting to do
so—due to the NCAA’s eligibility determination. This not only prohibits plaintiffs from
competing in a fifth season, but also denies them the “right to compete for revenue sharing,
NIL opportunities, training, exposure, and professional-development opportunities.”
[Doc. 12 at ¶ 72]. In the words of plaintiff Brenen Lorient, and a sentiment shared by the
other three (3) plaintiffs, “[i]f 	I cannot compete during the 2026—27 season, 	I will lose
opportunities associated with participation in Division 	I athletics, including training,
competition, exposure, potential revenue-sharing opportunities, name, image, and likeness
opportunities, and opportunities to further develop as a basketball player.” [Doc. 13-4 at
¶22].
The NCAA reasoned that applying the Five for Five Rule “retroactively” would
“destabilize rosters just ahead of the coming season by disrupting settled expectations of
countless student-athletes regarding their expected roster spots and playing time next
year. . . .“ [Doc. 16 at 7—8 (quoting two (2) posts by NCAA News on X)]. The NCAA
declined to apply the Five for Five Rule retroactively because it believed doing so “would
not be in the best interest of all current and future college athletes.” [Id.].
In plaintiffs’ view, proper—not arbitrary—implementation of the Five for Five Rule
should allow them to compete for a fifth season. Plaintiffs seek relief in the form of a
preliminary injunction “to restrain the [NCAA] from enforcing against them a specific rule
implementation that prohibits them from competition in Division 	I athletics during the
2026—27 academic year.” [Doc. 13 at 1]. Specifically, plaintiffs seek equitable relief:
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A. Enjoining the NCAA, its officers, agents, servants, employees,
attorneys, and all persons acting in active concert or participation with
it from declaring Plaintiffs ineligible for NCAA Division 	I competition
during the 2026—27 academic year based on their prior seasons of
competition or based on their exclusion from the NCAA’s Five for Five
eligibility framework;
B. Permitting the Players to compete for available roster positions at
West Virginia University, or another NCAA Division 	I member
institution as applicable, during the 2026—27 academic year without
the NCAA treating that participation as a violation of its eligibility rules;
[and]
C. Enjoining the NCAA from applying, enforcing, or threatening to
enforce its Rule of Restitution, including NCAA Bylaw 12.11.4.2 orany
similar rule, against Plaintiffs, West Virginia University, any other
NCAA member institution, or any third party based on Plaintiffs’
participation in competition pursuant to the Court’s injunction.
[Doc. 13 at 4]•7 In seeking this relief, plaintiffs contend they are likely to succeed on the
merits on their claims under Section 	1 of the Sherman Act and West Virginia Code
§ 47-18-3, breach of contract, tortious interference, and contract and promissory estoppel
7Plaintiffs also ask to waive the requirement to give security under Federal Rule of
Civil Procedure 65(c) and any other relief as necessary to prevent prejudice. [Doc. 13
at4].
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claims.8 Plaintiffs’ antitrust theory is based on allegations that the NCAA is an illegal
monopsony9 whose Five for Five Rule is an unreasonable restraint on trade. See [DoG. 12
at~[ 181—214].
II. Plaintiffs~°
This Court will provide a summary of each plaintiff’s collegiate career.
1. Brenen Lorient (Basketball)
Brenen Lorient attended Florida Atlantic University (“FAU”) in 2022. [Doc. 12 at
¶ 31]; [Doc. 16 at 9]. During his freshman season, he appeared in only twenty-one (21)
games and accumulated approximately seventy-four (74) total minutes11 of playing time.
[Id.]; [id.]. Plaintiffs assert Lorient’s freshman season was “primarily developmental” and
he was not a “meaningful contributor” in the competitive sense. [Id. at ¶ 32]; [id. at 10].
Because the NCAA counts any competition as a full season of competition unless a listed
8To obtain preliminary injunctive relief, plaintiffs bear the burden to show that they
are likely to succeed on one (1) of their claims. Profiles, Inc. v. Bank of America Corp.,
453 F.Supp.3d 742, 747 (D. Md. 2020) (Gallagher, J.) (citing Stinnie v. Holcomb,
355 F.Supp.3d 514, 527 (W.D. Va. 2018) (Moon, J.)). Thus, the Court will only address
the claim under the Sherman Act.
9A monopoly occurs when one seller dominates a market and has significant control
over the price of a good or service. A monopsony occurs when one buyer dominates a
market, giving the buyer significant power over the price it pays, such as wages in a labor
market.
10Each plaintiff submitted a Declaration. See [Docs. 13-4 through 13-7].
11For context, a full basketball game is forty (40) minutes, so this is just under two
(2) full games. A typical Division 	I basketball team plays an average of 31 to 33 games
during the regular season, with total game counts reaching 35 to 40+ games for teams that
advance to conference and national postseason tournaments. Andy Wittry, NCAA.com,
How many games are in a college basketball season? It depends, Oct. 29, 2020,
https://www. ncaa . com/news/basketball-men/article/2020-1 0-27/how-many-games-are-c
ollege-basketball-season (last visited Sept. 29, 2026).
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exception applies, the NCAA counted Lorient’s seventy-four (74) total minutes as an entire
season of competition. [Id. at ¶ 33]; [id.]. Plaintiffs assert the facts demonstrate that
neither Lorient nor his then-school advisors understood that this limited participation would
count as a full season of competition. [Id. at ¶[ 34]; [id.].
In spring 2024, FAU’s head coach, Dusty May, left FAU for the University of
Michigan. [Id. at ¶[ 35]. Lorient then transferred to the University of North Texas. [Id.].
In 2025, North Texas’s head coach, Ross Hodge, left for WVU and Lorient followed Coach
Hodge to WVU. [Id. at ¶ 36]. Lorient competed for WVU during the 2025—26 season and
graduated from WVU in August 2026. [Id. at ¶ 37].
Lorient then sought a waiver from the NCAA’s former four-year
seasons-of-competition limit to play a fifth year at WVU or another Division 	I institution
while pursuing a master’s degree; was supported in this pursuit by his former coach’s,
Coach Dusty May, admission that he had mishandled Lorient’s playing time, but the NCAA
denied the request. [Id. at ¶ 38]; [Doc. 16 at 10].
Lorient desires to pursue a master’s degree and compete during the 2026—27 at
WVU or another Division 	I institution. [Id.]. The Motion argues under the Five for Five Rule,
Lorient—born on April 29 and eligible under the age-based model—would be permitted a
fifth year of competition. [Id. at 11]. And under the prior rules, Lorient would be eligible for
a waiver for what should have been treated as a “redshirt” freshman season. [Id.].
The Motion also states Lorient is a standout WVU basketball player who started all
thirty-four (34) games last season and earned College Basketball Crown All-Tournament
Team honors. [Doc. 16 at 10—11]. Before WVU, he excelled at North Texas, earning First
V 	12
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Team All-Conference and Sixth Man of the Year honors. [Id.]. His size, shooting ability,
defensive versatility, and continued development have made him a legitimate NBA
prospect, although he ultimately did not sign a professional contract. [Id.]. His return
would provide WVU with significant talent and depth while making him a strong candidate
for grant-in-aid, revenue sharing, and NIL opportunities. [Id.].
2. Javan Buchanan (Basketball)
Javan Buchanan attended Indiana Wesleyan University, a NAIA institution, for two
(2) seasons before transferring to Boise State University. [Doc. 12 at ¶~ 17—18]; [Doc. 16
at 12]. Buchanan competed in two (2) seasons at Boise State and completed his
undergraduate degree in May 2026, for a total of four (4) seasons of participation in
competition. [Id. at ¶ 19]; [id.].
Buchanan was accepted at WVU to pursue a master’s degree while continuing his
athletic career. [Id. at ¶ 20]; [id.]. The Motion argues the inequity is particularly apparent
when compared to the NCAA’s treatment of junior college athletes, for whom courts and
the NCAA have recognized that rigid eligibility rules can unfairly disadvantage athletes who
develop through alternative collegiate pathways. [Doc. 16 at 12—13]. The Motion asserts
Buchanan faces the same issue because his pre-NCAA playing years are being treated
as exhausting eligibility even though those years occurred outside the NCAA’s direct
governance. [Id. at 13]. Unlike athletes covered bythe NCAA’s new age-based framework
or transition relief, Buchanan is denied a fifth year despite remaining within the five-year
period the NCAA now recognizes as appropriate for collegiate competition. [Id.].
The Motion also notes his circumstances closely resemble cases involving Ben
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Humrichous and Elijah Malone, both of whom received waivers allowing additional eligibility
after competing at the NAIA level, making Buchanan’s narrower waiver request particularly
difficult to justify. [Id.].
3. Jason Chambers (Football)
Jason Chambers attended North Carolina Central University during the 2022—23
academic year. [Doc. 12 at ¶ 40]; [Doc. 16 at 14]. Chambers subsequently competed at
Appalachian State University and WVU. [Id.]; [id.]. Chambers completed four (4) seasons
of competition by the conclusion of the 2025—26 academic year. [Id. at ¶ 41]; [id.].
Chambers seeks only to compete during his fifth year in 2026—27, without
requesting any extension, sixth year, or guaranteed benefits. [Id. at ¶ 42]; [id.]. As a
2022—23 enrollee who completed four (4) seasons by 2025—26, he seeks only the benefit
of the NCAA’s amended Bylaw 12.6 during the fifth year it now recognizes. [Id. at ¶ 44];
[id.].
4. Benjamin McDougal (Baseball)
Benjamin McDougal attended Potomac State College in 2022 before transferring
to WVU. [DoG. 12 at~J 48]; [Doc. 16 at 15]. McDougal’s 2026 season was severely limited
by two (2) significant injuries, including a back injury that kept him out until late January and
a flexor strain that sidelined him for nearly two (2) months. [Id. at ¶~J 49—52]; [id.].
Although he was charged with a full season of eligibility, he appeared in only thirteen (13)
games and pitched 14.1 innings, with restricted workloads even after returning. [Id. at
¶ 55—56]; [id. at 15—16]. He therefore argues that treating the injury-shortened season as
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a full season of competition is arbitrary and inequitable, particularly because he remains
within the NCAA’s recognized five-year eligibility period. [Id. at ¶IJ 57—58]; [id.].
III. Legal Standard
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. See 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 plaintiffs
request for preliminary injunction.” See Pavia v. NCAA, 760 F.Supp.3d 527, 536 (M.D.
Tenn. 2024) (quoting Enchant Christmas Light Maze & Market Ltd. v. Glowco, LLC,
958 F.3d 532, 539 (6th Cir. 2020) (citation omitted)).
Federal Rule of Civil Procedure 65 provides
Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its term specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or
other document—the act or acts restrained or required.
IV. Analysis
The Court will first address the parties’ arguments under the Winter framework as
to plaintiffs’ likelihood of success on the merits and whether, absent injunctive relief,
plaintiffs will suffer irreparable harm before turning to the balancing of the equities and the
public interest prongs.
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A. Likelihood of Success on the Merits
While a plaintiff is required to make a clear showing that he is likely to succeed on
the merits in order to obtain injunctive relief, a plaintiff is not required to establish with
certainty that he will succeed on the merits. Pashby v. Delia, 709 F.3d 307, 321
(4th Cir. 2013); Roe v. Dep’t oI Defense, 947 F.3d 207, 219(4th Cir. 2020). Indeed “‘[a]
district court’s determination that such a showing [of likelihood of success on the merits]
has been made is best understood as a prediction of a probable, but necessarily uncertain,
outcome....” Stinnie v. Holcomb, 37 F.4th 977, 982 (4th Cir. 2022) (quoting Smyth ex
rel. Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir. 2002)); Stinnie v. Holcomb, 77 F.4th
200, 208 (4th Cir. 2023). Moreover, in showing a likelihood of success on the merits, a
plaintiff is not required to demonstrate a likelihood of success on all claims.
Power Balance LLC v. Power Force LLC, 2010 WL 5174957, at *5 (C.D. Cal. Dec. 14,
201 0)(Guilford, J.); see Hudson v. AFGE, 292 F.Supp.3d 145, 153 (D. D.C. Nov. 9, 2017)
(Boasberg, J.) (“the Court begins with [movant’s] likelihood of success on the merits of at
least one claim” [emphasis added]); see also Miller v. Garland, 2023 WL 3692841, at *34
(E.D. Va. May 26, 2023) (Alston, Jr., J.); see also Winter, 555 U.S. at 19 n.4 (Circuit
Court’s discussion limited to a single claim of plaintiff’s multi-claim complaint).
Plaintiffs allege that the Five for Five Rule violates Section 	1 of the Sherman
Antitrust Act of 1890 (“the Sherman Act”),12 which provides that “[e]very contract,
combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
12The Supreme Court of the united States “has already recognized that the NCAA
itself is subject to the Sherman Act.” Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S.
69, 96 (2021) (emphasis in original).
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commerce among the several States, or with foreign nations, is declared to be illegal.”
15 U.S.C. § 1.
1. Commercial Restraint
Section 1 of the Sherman Act outlaws contracts “in restraint of trade or commerce.”
15 U.S.C. § 1. “Restraint” means an “unreasonable,” State Oil Co. v. Khan, 522 U.S. 3,
10 (1997), or “undue,” NCAA v. Alston, 594 U.S. 69, 81(2021), restraint. See also Ohio
v.Am. Express Co., 585 U.S. 529, 540 (2018) (explaining “unreasonable” and “undue”
are synonymous in Section 1 context). But fundamentally, Section 	1 of the Sherman Act
outlaws commercial restraints. See, e.g., Robinson v. NCAA, 172 F.4th 271,287(4th Cir.
2026). Thus, to meet their burden, plaintiffs must show that the challenged conduct is
commercial in nature.
The NCAA concedes that the Fourth Circuit in Robinson determined that the
NCAA’s eligibility rules are commercial and subject to the “rule of reason” analysis used
in Section 1 Sherman Act claims. See [Doc. 22 at 6].
As noted by the NCAA and as stated by the Fourth Circuit in Robinson:
We must review the eligibility rules based on their commercial or
non-commercial nature, not the nature of the NCAA overall, because “the
dispositive inquiry is whether the transaction is commercial, not whether the
entity engaging in the transaction is commercial.” Va. Vermiculite, Ltd. [v.
W.R. Grace & Company- Connecticut], 156 F.3d [535,] 541 [(4th Cir.
1998)].
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Review of NCAA v. Board of Regents of the University of
Oklahoma, 468 U.S. 85 (1984), does not clearly identify whether NCAA
eligibility rules are commercial or non-commercial. See id. at 102. At most,
the Court suggested NCAA eligibility rules are procompetitive, which implies
that they are commercial. See id.; cf id. at 121 (White, J., dissenting)
(“[T]he Court errs in treating intercollegiate athletics under the NCAA’s
control as a purely commercial venture in which colleges and universities
participate solely, or even primarily, in the pursuit of profits.”). The Court
observed that the NCAA’s collusive behavior is only permissible because
“a certain degree of cooperation is necessary if the type of competition that
[the NCAA] and its member institutions seek to market is preserved.” Id. at
117 (majority opinion). It explained that horizontal restraints on competition
are essential if the product of college sports is to be available at all. See id.
at 98—105. It specifically gave the example that leagues require the joint
establishment of certain rules such at the “size of the field” or the “number
of players on a team.” Id. at 101. Indeed, “[un order to preserve the
character and quality of the ‘product,’ athletes must not be paid, must be
required to attend class, and the like.” Id. at 102. The Court found that these
eligibility restrictions in fact “widen consumer choice—not only the choices
available to sports fans but also those available to athletes—and hence can
be viewed as procompetitive.” Id. To be sure, the majority in Board of
Regents primarily focused on the NCAA’s rules limiting universities’
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broadcast rights and it contrasted the procompetitive effects of certain
eligibility rules with the broadcast rules that it found in violation of antitrust
laws. See Id. at 98—105. But the language heavily implies that eligibility rules
should be considered presumptively procompetitive. See Id. at 117 (“[M]ost
of the regulatory controls of the NCAA are justifiable means of fostering
competition among amateur athletic teams and therefore [are]
procompetitive because they enhance public interest in intercollegiate
athletics.”).
Almost four decades later, in Aiston, the Court echoed some of its
prior conclusions from Board of Regents. It observed that “[w]ithout some
agreement among rivals—on things like how many players may be on the
field or the time allotted for play—the very competitions that consumers value
would not be possible.” AisLon, 594 U.S. at 90; see also id. at 110
(Kavanaugh, J., concurring) (“Everyone agrees that the NCAA can require
student athletes to be enrolled students in good standing.”). But it cautioned
that though some restraints are necessary, that does not mean all aspects
of the interleague cooperation are. Id. at 90 (majority opinion). It noted that
an abbreviated review (i.e., quick look) of restraints is appropriate for those
rules “necessary to produce a game,” though a fuller review (i.e., rule of
reason) may be appropriate for others. See Id. But it expressly rejected any
suggestion that the NCAA was exempt from the Sherman Act because the
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challenged restrictions “happen to fall at the intersection of higher education,
sports, and money.” Id. at 94.
Courts have found the question of whether eligibility rules are
commercial to be a close issue in the wake of Aiston. On the one hand,
several courts have concluded that eligibility requirements are not
commercial because there is no money guaranteed from participation in
Division 	I football. See, e.g., Goldstein v. NCAA, 2025 WL 662809, at *4
(M.D. Ga. Feb. 28, 2025) (describing the Aiston decision as “more scalpel
than ax” and concluding that the Five-Year Rule is not commercial in nature
and thus not subject to antitrust scrutiny); Coley v. NCAA, 792 F.Supp.3d
634, 643—44 (E.D. N.C. 2025) [(Dever, Ill, J.)] (same); Brzovic v. NCAA,
2025 WL 1370758, at *4 (D. S.C. May 11, 2025) [(Norton, J.)} (same);
Johnson v. NCAA, 2025 WL 1790345, at *10 (D. Mont. June 26, 2025)
(same). On the other hand, with the advent of revenue sharing and NIL
compensation (sometimes facilitated by the educational institution), there is
a legitimate argument that participation in college sports results in
compensation such that eligibility rules are commercial and subject to review
under the Sherman Act. See, e.g., Pavia v. NCAA, 760 F.Supp.3d 527,
537—38 (M.D. Tenn. 2024) (concluding NCAA’s eligibility rules are
commercial because only eligible players can negotiate NIL agreements),
appeal dismissed as moot, 154 F.4th 407(6th Cir. 2025); Braham v. NCAA,
794 F.Supp.3d 824, 833 (D. Nev. 2025) (concluding that the post-Alston
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collegiate athletic world means that eligibility rules are intertwined with
commercial rules and benefits such that they are essentially commercial in
nature), appeal docketed, No. 25-5040 (9th Cir. Aug. 11, 2025); Martinson
v. NCAA, 804 F.Supp.3d 1109, 1124—25 (D. Nev. 2025) (concluding NCAA
eligibility rules are commercial because they determine the ability of
Division 	I athletes to participate in the labor market and be compensated for
their labor), appeal docketed, No. 25-5962 (9th Cir. Sept. 22, 2025).
We join the two courts of appeals to have considered this question
post-Alston in concluding that the challenged eligibility rules are subject to
the Sherman Act. See Elad [v. NCAA], 160 F.4th [407,] 41 4—15 [(3d Cir.
2025)] (holding that Alston superseded the Third Circuit’s prior precedent
characterizing NCAA eligibility rules as categorically non-commercial);
Fourqurean, 143 F.4th at 863. The challenged eligibility rules limit college
athletes’ participation in a labor market. Elad, 160 F.4th at 415. This
restraint on labor through association rulemaking interferes with student
athletes’ free exercise of their rights to engage in commerce (i.e., participate
in Division 	I football). See Anderson v. Shipowners’ Ass’,, of Pac. Coast,
272 U.S. 359, 362—63 (1926) (applying section 	1 of the Sherman Act to
shipping associations’ restrictions on seamen’s access to the labor market);
Radovich v. Nat’l Football League (NFL), 352 U.S. 445, 448—54 (1957)
(applying section 	1 to the professional football association’s blacklisting of
players who played football for a rival professional football conference). As
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such, we conclude the challenged eligibility rules are commercial and
therefore subject to review under the Sherman Act.
172 F.4th 271, 277—290.
While Robinson dealt with a different set of challenged rules, it is even clearer that
the Five for Five Rule is a horizontal restraint on commerce because it directly impairs the
supply of labor from the market of Division 	I intercollegiate athletics by fully removing
one-fifth of the entering class cohorts—just for this year—that otherwise would be eligible
to participate next year, and, in effect, prior years through applicable waivers and
exceptions that no longer apply.
Having established that the Five for Five Rule is commercial in nature, the “only
question left is whether that restraint is an unreasonable restraint on trade.” Elad, 160
F.4th at 415.
2. Rule of Reason13
As laid out by the Fourth Circuit in Robinson:
Section 	1 of the Sherman Act prohibits agreements “in restraint of
trade or commerce.” 15 U.S.C. § 1. The “[Supreme] Court has long
recognized that, in view of the common law and the law in this country when
the Sherman Act was passed, the phrase ‘restraint of trade’ is best read to
mean ‘undue restraint.” Ohio v. Am. Express, 585 U.S. 529, 540 (2018)
(citation modified). “Determining whether a restraint is undue for purposes
13ln the Amended Complaint, plaintiffs state they are “challeng[ing] the restraints
under the full rule of reason and do not rely on per se or abbreviated quick-look treatment.”
[DoG. 12 at ¶ 205].
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of the Sherman Act ‘presumptively’ calls for what we have described as a
‘rule of reason analysis.” Alston, 594 U.S. at 81 (first quoting Texaco Inc.
v. Dagher, 547 U.S. 1, 5(2006); and then quoting Standard Oil Co. of N.J.
v. United States, 221 U.S. 1, 60—62 (1911)). In practice, there are three
avenues of analysis under section 	1 of the Sherman Act that apply
depending on how obviously anticompetitive the challenged conduct is:
(1) per se liability, (2) quick-look scrutiny, and (3) rule of reason analysis.
N.C. State Bd. of Dental Exam’rs v. FTC, 717 F.3d 359, 373 (4th Cir.
2013). . . . Rule of reason analysis requires “a three-step, burden-shifting
framework,” [Am. Express, 585 U.S. at 541], whereas quick-look analysis
directs courts to “undertake only a cursory examination before imposing
antitrust liability,” Texaco, 547 U.S. at 7 n.3.
[Quick-look analysis] should be rarely applied because “[m]ost restraints
challenged under the Sherman Act—including most joint venture
restrictions—are subject to the rule of reason.” [Alston, 594 U.S. at 88]; see
also Robertson v. Sea Pines Real Est. Cos., 679 F.3d 278, 290 (4th Cir.
2012) (explaining that rule of reason traditionally applies to joint venture
cooperation that has possible procompetitive justifications). In other words,
“[t]he rule of reason applies if the reasonableness of a restraint cannot be
determined without a thorough analysis of its net effects on competition in
the relevant market.” N.C. State Bd. of Dental Exam’rs, 717 F.3d at 373
(citation modified).
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172 F.4th at 290—91.
The Supreme Court of the United States:
has “long recognized that in view of the common law and the law in this
country when the Sherman Act was passed, the ‘restraint of trade’ is best
read to mean ‘undue restraint” Ohio v. American Express Co., 585 u.s.
529, 540 (2018) (brackets and some internal quotation marks omitted).
Determining whether a restraint is undue for purposes of the Sherman Act
“presumptively” calls for what we have described as a “rule of reason
analysis.” Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006); Standard Oil
Co. ol N. J. v. United States, 221 U.S. 1, 60—62 (1911). That manner of
analysis generally requires a court to “conduct a fact-specific assessment of
market power and market structure” to assess a challenged restraint’s
“actual effect on competition.” American Express, 585 U.S. at 541 (internal
quotation marks omitted). Always, “[t]he goal is to distinguish between
restraints with anticompetitive effect that are harmful to the consumer and
restraints stimulating competition that are in the consumer’s best interest.”
Ibid. (brackets and internal quotation marks omitted).
Alston, 594 U.S. at 81.
When analyzing a claim under Section 1 of the Sherman Act to determine whether
a restraint violates the rule of reason, courts use a “three-step, burden shifting framework.”
Am. Express, 585 U.S. at 529. Under this framework,
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the plaintiff has the initial burden to prove that the challenged restraint has
a substantial anticompetitive effect that harms consumers in the relevant
market. . . . If the plaintiff carries its burden, then the burden shifts to the
defendant to show a procompetitive rationale for the restraint. . . . If the
defendant makes this showing, then the burden shifts back to the plaintiff to
demonstrate that the procompetitive efficiencies could be reasonably
achieved through less anticompetitive means.
Id.
At the “inception” of any “rule-of-reason analysis,” courts must “adequately define
the relevant market.” Elad, 160 F.4th at 416. See also Am. Express, 585 u.s. at 543
(“[C]ourts usually cannot properly apply the rule of reason without an accurate definition
of the relevant market.”); Pavia v. NCAA, 154 F.4th 407, 416 (6th Cir. 2025) (“[A]nalysis
of anticompetitive and procompetitive effects—the key to many antitrust cases—relies on
market definition.”) (Thapar, J., concurring).
The Court will first analyze the relevant market and market definition. See Am.
Express, 585 u.s. at 543. The Court then will analyze plaintiffs’ claims under the rule of
reason’s three (3)-step framework.
i. Market Definition
Plaintiffs contend that the relevant market “is the labor market for the athletic
services for Division 	I intercollegiate athletics in which Division 	I men’s basketball[, football
and baseball are] sub-market[s}.” [Doc. 12 at ¶11 79, 93, 101]. Plaintiffs further contend
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that they have put forth sufficient evidence to support their market definition. [Doc. 16 at
23—28].
Various Circuit Courts have chastised District Courts from simply using the market
definition utilized in Alston,14 citing changes in the market realities since Alston. However,
the relevant market has not changed with respect to eligibility—the NCAA is still the gorilla
in the room. An individual can freely transfer now, but only if the NCAA says he or she is
eligible. An individual can receive NIL money, but only if he or she is eligible. An individual
can get revenue sharing, but only if he or she is eligibile.
The Fourth Circuit, however, finds Alston’s definition to be insufficient and that more
is needed.
The NCAA argues that plaintiffs do not accurately or reliably identify the relevant
market and that this failure forecloses their request for injunctive relief. See [Doc. 22 at
8—12]. The NCAA contends that plaintiffs’ expert Ted Tatos’s market definition is deficient
for three (3) reasons: (1) he did not perform standard economic analyses to test the
market’s boundaries, (2) he relies heavily on outdated pre-Alston evidence that does not
account for major changes in college athletics, and (3) his proposed market is overly broad
because it treats all Division 	I athletes within a sport as competing in the same market
despite significant differences in compensation, skill level, and professional opportunities.
[Id.]. Defendants therefore argue that plaintiffs have not demonstrated that the NCAA
14Fourqurean v. NCAA, 143 F.4th 559 (7th Cir. 2025); Elad v. NCAA, 160 F.4th
407 (2025); Robinson v. NCAA, 172 F.4th 271.
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currently possesses the alleged monopsony power and have not met their burden of
establishing a relevant market. [Id.].
Robinson provides guidance:
Indeed, in cases like this one, the rule of reason analysis requires courts to
conduct a fact-specific assessment of market power and market structure to
assess the restraint’s effect on competition. [Am. Express, 172 F.4th] at
541. Courts cannot properly apply this analysis without an accurate
definition of the relevant market. Id. at 542—43. The relevant market is
defined as “the area of effective competition,” meaning “the arena within
which significant substitution in consumption or production occurs.” Id.
(citation modified). In the labor market context, the market is comprised of
those employers seen by workers as reasonably good substitutes.
Fourqurean, 143 F.4th at 869 (citing Todd v. Exxon Corp., 275 F.3d 191,
202 (2d Cir. 2001)). The plaintiff bears the burden of proof on the issue of
the relevant product and geographic markets in an antitrust case.
Satellite Television & Associated Res., Inc. v. Cont’I Cablevision 01 Va.,
Inc., 714 F.2d 351, 355 (4th Cir. 1983). Market definition is essentially a
question of fact. E.l. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 442 (4th Cir. 2011).
* 	* 	*
As the Third Circuit wrote in Elad, “[r]ule-of-reason analyses under Section
1 of the Sherman Act,” when relying on a showing of market power, “require
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a well-defined relevant market and cannot rely on antiquated market
definitions accepted on different evidence and in a different posture.”
See 160 F.4th at 417; Queen City Pizza, Inc. v. Domino’s Pizza, Inc~, 124
F.3d 430, 436 (3d Cir. 1997) (“Where the plaintiff fails to define its proposed
relevant market with reference to the rule of reasonable interchangeability
and cross-elasticity of demand[] or alleges a proposed relevant market that
clearly does not encompass all interchangeable substitute products ... the
relevant market is legally insufficient.”).
We are not specifying the exact quantity of evidence required for an
antitrust plaintiff to meet their burden of proof to establish market definition
to be granted a preliminary injunction.
172 F.4th at 294.
The inquiry, then, is twofold. Plaintiffs must first present sufficient evidence to
support their proposed relevant market. Robinson, 172 F.4th at 293. The Court must
then make the factual findings necessary to determine whether plaintiffs have carried their
burden. Id. at 294. At the preliminary-injunction stage, however, the Court need not
resolve every factual dispute concerning the precise contours of the market. Rather, the
question is whether plaintiffs have presented sufficient evidence from which the Court can
identify the relevant arena of effective competition and proceed to assess the challenged
restraints. Id.
Unlike the plaintiffs in Robinson who relied on an expert affidavit pulled from
another case’s docket and precedent from other circuits, and unlike the plaintiffs in Trotter
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v. NCAA, Civil Action No. 3:26-0523 [DoG. 20] (S.D. W.Va. Sept. 9, 2026) (Chambers, J.),
who did not disclose an expert opinion in support of their motion for preliminary injunction,
plaintiffs here rely principally on the declaration of Mr. Ted Tatos, who provided a
declaration specifically for the above-styled case. See [Doc. 16 at 23—28]; see generally
[Doc. 13-1]. Mr. Tatos has extensively studied and written academically concerning the
antitrust relevant market definition for Division 	I intercollegiate athletics for years.
[DoG. 13-1 at~[ 1—5]. He opines that other NCAA Divisions are not viable substitutes for
Division 	I and professional leagues such as the NBA and NFL do not discipline the NCAA’s
monopsony power. [Id. at ¶~f 29—49]. His declaration supports those opinions with
evidence addressing the “market realities for college sports,” Fourqurean, 143 F.4th at
870, and that includes “cold, hard data,” Pavia, 154 F.4th at417(Thapar, J., concurring).
At the hearing, Mr. Tatos testified that if there is direct evidence of monopsony
power, running the hypothetical monopolistlmonopsonist test (“HMT”) and Small but
Significant and Non-transitory Increase in Price or Other Worsening of Terms (“SSNIPT”)
test superfluous. His support for this position is outlined in his declaration.
First, Mr. Tatos addresses whether other NCAA Divisions are viable substitutes for
Division I. [Doc. 13-1 at ¶~J 29—34]; see also [Doc. 12 at ¶ 193]. He notes, as the NCAA
itself explains, Division 	I is “the biggest stage in college sports.” [Id. at ¶ 29 (quoting
https://www.ncaa.org/division-i/)]. He states Division 	I players make up the vast majority
of rosters in the NFL, NBA, WNBA, and international games. [Id. at ¶~J 	30—32].
For example, Division 	I Football Bowl Subdivision players made up 92.7 percent of NFL
rosters in 2025. [Id. at ¶ 30]. Mr. Tatos further states that these top athletes at Division 	I
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institutions also frequently receive full scholarships. [Id. at ¶ 33]. By contrast, Division II
provides partial scholarships with strict eligibility limits, while Division Ill does not allow any
athletic scholarships at all. [Id. at ¶IJ 33—34]. Mr. Tatos therefore opines that these
financial and eligibility differences make the lower divisions poor substitutes for Division I.
[Id.]. This evidence provides support for plaintiffs’ market definition arguments. See, e.g.,
Le v. Zuffa, LLC, 216 F.Supp.3d 1154, 1166 (D. Nev. 2016) (“To find whether the Plaintiffs
defined a relevant market within a sport, therefore, the Court must take into consideration
how athletes in their respective fields are ranked with regards to one another.”).
Mr. Tatos likewise provides evidence that the Division 	I labor market is distinct from
professional sports. [Id. at ¶~J 35—49]; see also [Doc. 12 at ¶ 193]. He addresses the
NCAA’s contention that a recent decline in underclassmen entering the NBA draft
demonstrates that college basketball now operates as a substitute for professional play,
thereby weakening the NCAA’s market power. [Id. at ¶ 35]. Mr. Tatos explains that this
argument misinterprets draft entry data, which functions more like a job application than
a guaranteed roster spot. [Id. at ¶ 36]. He notes historically that top talent only left early
to escape the NCAA’s strict compensation limits. [Id. at ¶ 37]. And, because the NBA has
a severely restricted number of roster spots compared to the hundreds of college teams,
professional leagues do not provide enough alternative positions to meaningfully discipline
the NCAA’s market power. [Id. at ¶~J 39—42]. He argues the NCAA’s own data concerning
the probability of athletes competing in professional athletics further supports this point,
indicating that only a small fraction of athletes ultimately participate in the major
professional sports leagues:
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Estimated probability of competing in professional athletics
The table below outlines the estimated percentage of NCAA athletes that move on to compete professionally in sports like baseball, basketball, football, ice hockey and
lacrosse.
NCAA Participants Approsirnate B Draft Eligible B Draft Picks S NCAA Drafted % NCAA to Major Pro % NCAA to Total Pro
Baseball 	41,580 9,240 	615 	452 4.9% —
M Basketball 19,617 4,359 	56 	43 	1.0% 	21.8%
W Basketball 16,623 	3,738 	36 30 0.8% 	9.1%
Football 83,794 	18,621 	257 	257 	1.4% 	—
M Ice Hockey 4,558 	1,013 	224 	76 	7.5% 	—
W Ice Hockey 3,074 683 	48 43 6.3% 	—
M Lacrosse 	16,691 3,709 	32 	31 	0.8% 	—
Note: Msjor Pro is defined as being drafted into the following U.S. professional leagues: MLB, NBA, WNBA, NFL, NHL, PWHL, and PLL NWSL and WPF were previously included,
but the leagues have since discontinued their drafts. Men’s soccer is not included because of the numerous professional opportunities available (e.g., MLS, USL). As additional
opportunities and athlete databases become available, NCAA Research intends to expand the definition of both “Major Pro” and “Total Pro” for future iterations of this
document.
NCAA, Probability of Competing Beyond High School,
https:Ilwww. ncaa .org/student-athletes/probability-of-com peting-beyond-high-school/.
Mr. Tatos provides a succinct explanation:
39. Athletes cannot unilaterally choose to “go to the NBA” or another
professional league. A match must occur between the individual athlete and
a team that needs that athlete’s skill sufficiently to pay for it. In other words,
labor markets require agency on both sides of the transaction: the
requirements of the worker (athlete) must match the requirements of the
employer (team). This relationship contrasts with one-sided agency in
product markets. Given that the consumer is willing to pay the price, a gallon
of gasoline, a carton of milk, or a vacuum cleaner has no say in whether (or
which) consumer purchases them. The entire decision rests with consumer.
In labor markets, a match must occur.
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* 	* 	*
43. The NCAA’s own data explains why this is the case. Athletes must
have sufficient skill to obtain a contract in a professional league like the NFL,
NBA, and so on, just as they must have sufficient skill to participate in NCAA
Division 	I athletics. A high school football player cannot declare that he will
play for West Virginia, Indiana, Ohio State, and so on. The player must be
recruited and receive an offer.
44. Recent examples evince this conclusion. Former Missouri basketball
player Mark Mitchell entered the 2026 NBA draft but was not selected.
However, 	I understand that he received lucrative offers from two top
basketball programs in NCAA Division I: Kentucky and Louisville, from which
he chose the former. Likewise, Seth Trimble, a former standout for the
University of North Carolina basketball team, was not selected in the draft
and returned for a fifth year to compete for Louisville. These examples
underscore the market realities that the vast majority of athletes do not have
other viable options that would discipline the restraints that the NCAA
imposes. Further, the NBA-NB PA collective bargaining agreement stipulates
that a player must be one year removed from his high school graduation to
be eligible for the NBA draft. Thus, the vast majority of top talent entered the
NCAA prior to its loosening of compensation rules and they continue to do
so.
[Doc. 13-1 at ¶~J 39, 43—44].
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Mr. Tatos further opines that the data does not demonstrate that the NCAA lacks
market power. Rather, he contends that players are remaining in college because recent
legal changes have permitted them to receive fairer compensation. [Id. at ¶11 45—49].
He also notes that the NCAA continues to actively restrict athlete earnings through its
Clearinghouse or specific committees, including the College Sports Commission (“CSC”).
[Id.]. For example, recent data from July 2026 reveals that the CSC blocked over 1,800
Name, Image, and Likeness (“NIL”) deals worth nearly $90 million, or 20% of the NIL
money offered, with a heavy focus on rejecting the largest, most lucrative offers. [Id. at
¶1146—47]. Mr. Tatos opines this ongoing scrutiny demonstrates that the NCAA continues
to exercise substantial monopsony control over college athletic compensation. [Id. at
ITIJ 48—49].
The NCAA resists Mr. Tatos’s declaration as adequate evidence, as well as the
evidence that Mr. Tatos marshals in providing it. See [Doc. 22 at 8—12]. The NCAA
argues that plaintiffs cannot establish an anticompetitive effect because Mr. Tatos’s
analysis fails at the threshold issue of defining the relevant market. [Id.]. Specifically, the
NCAA contends that Mr. Tatos does not employ any standard methodology for defining the
market, relies principally on evidence predating the significant changes in college athletics
following Alston and House,15 and defines the market too broadly by treating all Division
I athletes within a particular sport as participants in the same market. [Id.]. According to
the NCAA, Mr. Tatos acknowledges the hypothetical-monopsonist test but does not
151n re Coil. Athlete NIL Litig., 803 F.Supp.3d 959 (N.D. Cal. 2025), appeal
dismissed, 2025 WL 2831020 (9th Cir. July 29, 2025) and objections overruled, 2025 WL
3501920 (N.D. Cal. Nov. 13, 2025).
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perform it or calculate cross-price elasticities to assess substitution among available
alternatives. [Id. at 8—9]. The NCAA further maintains that Mr. Tatos relies on outdated
evidence of NCAA monopsony power despite recognizing the substantial changes in
athlete compensation, NIL opportunities, revenue sharing, and transfer-portal mobility.
[Id. at 9—101. Finally, the NCAA argues that the proposed market obscures meaningful
differences among student-athletes based on skill level, compensation, conference
affiliation, and professional opportunities, including the availability of professional leagues
as substitutes for certain athletes. [Id. at 10—12]. Thus, the NCAA contends that plaintiffs
have not established a relevant market or demonstrated that the Five for Five Rule has an
anticompetitive effect.
The Court observes that Mr. Tatos’s opinion is not an isolated one; other experts
have reached the same conclusion. In Wisne, the NCAA criticized the plaintiffs’ expert,
Dr. Bern. According to the NCAA, Dr. Bern improperly “suggest[ed] that all Division 	I sports
are part of the same market, [and therefore that] all Division 	I sports are interchangeable
for each other.” Wisne, 2026 WL 2214234, at *13. The V’disne Court found that Dr. Bern
did not:
suggest all Division 	I sports are interchangeable. Instead, his declaration is
evidence that for NCAA Division 	I sports the NCAA is the sole ‘buyer’ for all
athletes in the “submarkets” of individual sports. Dr. Bern opine[d], and
provide[d] evidence in support of, the proposition that Division 	I athletics
constitute a distinct labor market from any other divisional (e.g., Divisions II
and III) or professional counterpart (e.g. NBA or MLB) for Division 	I athletics.
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In other words, evidence that other divisions or associations do not constitute
“good substitutes” for Division 	I athletics. Todd, 275 F.3d at 202 (citation
modified). Regardless, at this stage Plaintiffs are not required to, for
instance, offer evidence about every single Division 	I sport’s revenue or
attendance for the Court to make its own findings as to the relevant market.
Instead, Plaintiffs have, as they must, put forth statements from Dr. Bern that
are “based on specific facts pertaining to the proposed market”—i.e., NCAA
Division 	I athletics. Berlyn, Inc. v. Gazette Newspapers, Inc.,
223 F.Supp.2d 718, 727 (D. Md. 2002) [(Smalkin, C.J.)], aff’d sub nom.
Berlyn Inc. v. The Gazette Newspapers, Inc., 73 Fed .App’x. 576 (4th Cir.
2003).
The NCAA’s related observation that there are alternative markets,
such as the NBA and Europeans Leagues, see ECF No. 32 at 14, does not
undermine Dr. Bern’s analysis. The point is not that there are no alternative
markets. The point is that, as a function of market realities—and as a
doctrinal antitrust matter—alternative markets such as professional leagues
are insufficient substitutes for Division 	I athletics. See, e.g., Todd, 275 F.3d
at 202; Fourqurean, 143 F.4th at 869. (And they are.)
Id. (footnotes omitted).
The Court agrees with plaintiffs. Plaintiffs have defined their market as the labor
market for NCAA Division 	I intercollegiate athletics, with each athlete participating in the
sport-specific submarket applicable to his or her sport. This definition identifies both the
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“product market”—labor—and the “geographic market”—Division 	I athletics in the United
States. See 2311 Racing LLC v. Nat’I Ass’n for Stock Car Auto Racing, LLC,
809 F.Supp.3d 371, 379 (W.D. N.C. 2025) (Bell, J.) (concluding that “geographic scope of
the relevant market, which [was] the United States,” satisfied market definition
requirement); Ohio v. NCAA, 706 F.Supp.3d 583, 592 (N.D. W.Va. 2023) (Bailey, J.).
Plaintiffs also address, through Mr. Tatos’s declaration and the quantitative data therein,
the “reasonable interchangeability of use orthe cross-elasticity of demand between” NCAA
Division 	I athletics and divisional or professional substitutes. Queen City Pizza, Inc.,
124 F.3d at 436.
The evidence likewise addresses contemporary changes in the market. Mr. Tatos’s
declaration provides “cold, hard data” that “grapple[s] with recent changes” in the relevant
market, Pavia, 154 F.4th at 417 (Thapar, J., concurring), including changes in market
realities since Alston, see Fourqurean, 143 F.4th at 870. Cf Robinson, 172 F.4th at 295
(holding plaintiffs did not meet market definition burden of proof where they “presented no
factual evidence” of market definition). Nor did Mr. Tatos “exclusively rel[y] on Aiston to
define the relevant market,” or fail to cite “[any] market evidence or economic data” in his
declaration. Elad, 160 F.4th at 416. To the contrary, Mr. Tatos identifies and relies upon
evidence from which he draws conclusions concerning the relevant market.
At this stage, that evidence is sufficient. It is current, empirical, and directed to
whether Division 	I athletics has “good substitutes,” Todd, 275 F.3d at 202. Plaintiffs have
presented evidence supporting their contention that Division 	I athletics lacks “commonality
[or] interchangeability,” id., with other NCAA Divisions or professional leagues for Division
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I sports. See also Am. Express, 585 u.s. at 543 (“The relevant market is defined as the
area of effective competition. Typically, this is the arena within which significant
substitution in consumption or production occurs.” (citation modified)). Mr. Tatos’s
conclusions are bolstered by evidence of a statement made by Charlie Barker, the current
NCAA president, that “98% of the 550,000 NCAA student-athletes will go pro in something
other than sports,” [Doc. 16 at 26], underscoring that the NCAA Division 	I labor market is
unique. See Todd, 275 F.3d at 205 (“Industry recognition is well established as a factor
that courts consider in defining a market. It is significant because we assume that the
economic actors usually have accurate perceptions of economic realities.” (citation
modified)). Even the NCAA’s own counsel acknowledged its cartel classification
economically, infamously spinning the necessary conclusion in this way: “It is a cartel that
does good things, as opposed to a cartel that does bad things.” [Doc. 13-1 at ¶ 20 (citing
Dennis Dodd, O’Bannon trial: NCAA lawyer says it’s a cartel that ‘does good things’, CBS
Sports, 	June 	26,2014, 	available 	at
https://www.cbssports.com/college-football/news/obannon-trial-ncaa-lawyer-says-its-a-c
artel-that-does-good-things/)].
At this stage, plaintiffs are not required to, for instance, offer evidence about every
single Division 	I sport’s revenue or attendance for the Court to make its own findings as to
the relevant market. Instead, plaintiffs have, as they must, put forth statements from
Mr. Tatos that are “based on specific facts pertaining to the proposed market”—i.e., NCAA
Division 	I athletics. Berlyn, Inc. v. Gazette Newspapers, Inc., 223 F.Supp.2d 718, 727
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(D. Md. 2002) (Smalkin, C.J.), affd sub nom. Berlyn Inc. v. The Gazette Newspapers,
Inc., 73 Fed.App’x. 576 (4th Cir. 2003).
Having considered the parties’ arguments and evidentiary submissions, and
consistent with the above analysis, the Court finds that, based on the preliminary injunction
record, plaintiffs have met their market definition burden. See Robinson, 172 F.4th at 294;
Elad, 160 F.4th at 416. The Court therefore rejects the NCAA’s contention that plaintiffs
have failed to define a relevant market and that their request for injunctive relief must fail
on that basis. The evidence supports the existence of a defined and unique labor market
for Division 	I athletics and demonstrates that contemporary market realities distinguish that
market from other NCAA Divisions and professional leagues. Accordingly, the Court
proceeds to its rule of reason analysis. See Am. Express, 585 U.s. at 543; Pavia, 154
F.4th at 416 (6th Cir. 2025) (Thapar, J., concurring).
ii. Substantial Anticompetitive Effect
Applying the rule of reason, plaintiffs bear the initial burden to “prove that the
challenged restraint”—the Five for Five Rule—”has a substantial anticompetitive effect.”
Alston, 594 U.s. at 96 (citation modified). See also Law v. NCAA, 134 F.3d 1010, 1017
(10th Cir. 1998) (“A rule of reason analysis first requires a determination of whether the
challenged restraint has a substantially adverse effecton competition.” (citation modified)).
Regarding anticompetitive effects, the “reasonableness of a restraint is evaluated based
on its impact on competition as a whole within the relevant market.” Robinson, 172 F.4th
at 292 (citation modified)). Plaintiffs may meet their step one, anticompetitive effect burden,
with indirect evidence. See Am. Express, 585 U.s. at 542 (“Indirect evidence would be
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proof of market power plus some evidence that the challenged restraint harms
competition.” (citation modified)).
The eligibility regulations imposed by the NCAA and its member organizations
generally constitute horizontal agreements. See Business Elec. Corp. v. Sharp. Elec.
Corp., 485 u.s. 717, 730 (1988) (explaining that horizontal agreements are agreements
between competitors at the same level in a particular industry). There is no question that
the NCAA and its members hold monopsony power over the labor market for college
football and, therefore, have “market power.” See Alston, 594 U.S. at 109 (Kavanaugh,
J., concurring) (“[The] NCAA acknowledges that it controls the market for college athletics”
and “accepts that its members collectively enjoy monopsony power in the market for
[college athlete services[.]”).
At issue is whether plaintiffs have presented some evidence that the Five for Five
Rule harms competition.
Plaintiffs argue the Five for Five Rule implementation will harm them because the
Five for Five Rule “exclude[s] otherwise qualified athletes from supplying NCAA Division
I men’s basketball, football, and baseball services, prevent[s] institutions from competing
for Plaintiffs’ services, reduce[s] the available supply and output of qualified athlete labor,
eliminate[s] independent institutional decision making concerning Plaintiffs, suppress[es]
the athletic aid, NIL compensation, institutional revenue sharing payments, and other
benefits that competition for Plaintiffs’ services would otherwise produce, reduce athlete
and institutional choice, and foreclose[s] Plaintiffs from the unique educational, athletic,
and economic opportunities tied to active NCAA Division 	I eligibility.” [Doc. 12 at ¶ 197].
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In other words, that by excluding a defined cohort of otherwise eligible student-athletes, the
NCAA is restricting competition within the labor market. Plaintiffs argue the anticompetitive
effects are “direct rather than speculative. WVU and other NCAA Division 	I institutions
cannot lawfully roster or obtain Plaintiffs’ basketball, football, and baseball services while
the challenged determinations remain in effect, and Plaintiffs [as well as all other
individuals in the same age cohort,] cannot offer those services to any Division 	I institution
subject to the NCAA’s uniform enforcement system.” [Id. at ¶ 198].
Indeed, the NCAA explains that Division lis “the biggest stage in college sports.”
[Doc. 13-1 at ¶ 29 (quoting NCAA.org, https://www. ncaa.org/division-i/, last accessed Aug.
30, 2026)]. Mr. Tatos agrees, concluding, “Other NCAA divisions do not exert any pricing
discipline on NCAA Division I.” [Id.]. This truth is intuitive and reinforced by plaintiffs’ own
career developments. For example, for Lorient who declared for the NBA draft—regarded
by commentators as having “a clear path to NBA minutes”—the reality is that out of 4,359
NBA draft eligible NCAA participants, only 58 were selected.
Mr. Tatos’s conclusions are consistent with opinions recognized by other courts,
including the District of Colorado in Wisne, where Dr. David Bern defined a relevant market
as “the labor market for Division 	I college athletes.” Wisne, 2026 WL 2214234, at *14.
Dr. Bern explained that “Division 	I college sports are a unique labor market [and] distinct
from other college divisions, minor league professional sports, and major league
professional sports,” outlining substantiating market evidence concerning revenue and
attendance data showing that other markets are not reasonable substitutes. Id. at *11.
Stated simply, the economic data confirms what is intuitive: student athletes do not have
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a meaningful alternative to NCAA Division 	I athletics because there are no reasonable
substitutes. In search of substitutes to counter-act overwhelming evidence of monopsony
power, the NCAA bypasses sub-markets with less developed professional markets and
focuses on the most developed pipeline for professional athletes in the United States—the
National Basketball Association. In other litigation, the NCAA has argued that the “market
realities” have changed following the House settlement due to its loosening of
compensation restrictions on athletes. For example, the NCAA argued that in 2025—26,
underclassman entered the NBA at “dramatically reduced rates.” [DoG. 13-1 at ~ 33]. As
Mr. Tatos explains, however, NBA draft declaration does not mean that the player will
make a roster.16 And because economists expect labor supply elasticity to be higher at the
monopsony rate, “the more talented the athlete, the greater the anticompetitive harm of the
NCAA’s compensation restrictions on the athlete.” [Id. at ¶ 37]. In other words, with a
greater restraint, more athletes “often made decisions to enter the draft, when, absent the
restriction, they would have remained in college.” [Id.]. But because the number of picks
in the draft is fixed and unrepresentative of the market as a whole, the NCAA thus “focuses
on the wrong denominator” by looking to changes in numbers declared as opposed to
numbers selected. [Id. at ¶ 36].
More fundamentally, however, Mr. Tatos explains that the NCAA misconceives the
proper interpretation of this development, because “this loosening of restrictions does not
16[Doc. 13-1 at ¶ 27 (“In fact, anyone older than 19 who submits the correct
paperwork can technically ‘enter the NBA draft.”) (citing Tim Reynods, People with no
chance at playing in the NBA can still enter the NBA draft, Associated Press, June 21,
2 	0 2 3 	, 	a v a 	i 	I 	a 	b 	I 	e 	at
https://apnews. com/article/nba-draft-2023-eligibility-7929025cf6a22 1 305c1 0a09689f3cb
2b)].
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indicate that the relevant market is now broader, as the NCAA erroneously concludes.”
[Id. at ¶ 28]. He explains succinctly, “The fact that judicial and legislative pressures have
compelled the NCAA to loosen its restraints does not mean that other potential substitutes
can now discipline any affempt by the NCAA to exercise market power. The question still
remains: does the NCAA also need to control any other potential substitutes to restrain
competition? The answer is no.” [Id. at ¶ 45].
Plaintiffs are correct in that the implementation of the Five for Five Rule harms
competition in the relevant market by excluding a qualified cohort—namely, 2022 high
school graduates. As Mr. Tatos observes, there is no economic logic in arguing that the
Five for Five Rule somehow affects the 2022—2023 class differently. [Doc. 13-1 at ¶ 52].
He states:
In its Wisne emergency motion, the NCAA argued that “If Plaintiffs are
permitted to join a roster, they will take a spot from someone else who is
eligible—including those who expect to use the first of their five years under
the Age-Based Eligibility Rule.” 	I understand that this is the “substitution
effect” to which the District Court in VVisne referred in its ruling. But [the]
exact same “substitution effect” can apply every year after the matriculating
class of 2023—2024 enters their fifth year of eligibility and will apply every
year after the matriculating class of 2026—2027 enters their fifth year of
eligibility, according to this same rule. In the 2027—2028 academic year,
athletes who would enter their fifth year of eligibility would, by the same rule
that the NCAA now calls pro-competitive and by the same argument that the
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NCAA offers above, take the a [sic] spot from someone else who is eligible
and entering their first of five years under the rule.
[Id.].
Mr. Tatos also finds no rationale for why the NCAA’s Five for Five Rule
“mysteriously only becomes pro-competitive beginning in 2026-2027 and not a moment
earlier.” [Id. at ¶ 51]. Nor does the NCAA’s asserted “substitution effect” supply one.
The concern that fifth-year student-athletes may displace incoming freshman—and thereby
create a cascading effect on later classes—misunderstands the NCAA’s own rule.
The same substitution effect will occur once the Five for Five Rule takes effect in 2026—27.
[Id. at ¶ 52]. It is inherent to the age-based model, and it cannot be cured by forcing a
single transition cohort to absorb the full loss. Indeed, the NCAA’s stated concern that
underclassmen may be out-competed for roster spots confirms that the challenged
exclusion is designed to reduce, not promote, competition.
The Court finds it curious that the NCAA would draw a hard line excluding the Class
of 2022 rather than make an exception similar to the one it made in response to the
COVID-19 pandemic. When the NCAA granted an additional year of eligibility to athletes
who competed during the 2020—2021 academic year because of COVID-related
disruptions, the same purported “substitution effect” would have applied. Nevertheless,
the NCAA chose to grant that additional year of eligibility. The question, then, is why the
NCAA has taken a different approach here—effectively excluding an entire class of
student-athletes based solely on the year in which they were born. These student-athletes
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were, in effect, born in the wrong year. The Five for Five Rule is really the Five for Five But
Not For You Rule.
This Court also finds unfairness and arbitrariness in the implementation of the Five
for Five Rule as shown in the below table that was prepared by the NCAA:17
Student-athletes 	Which eligibility rules apply
Student-athletes who used their final season of competition (under
~ 	No additional eligibility.
previous rules) during 2025-26.
Current student-athletes with eligibility remaining (under previous Either the previous rules OR the new age-based model, whichever
rules) after the 2025-26 academic year. 	is most beneficial to the student-athlete.
Prospects who initially enroll full time at any college or university Either the previous rules OR the new age-based model, whichever
during 2026-27. 	is most beneficial to the student-athlete.
Prospects who initially enroll full time at any college or university in The age-based model only.
fall 2027 or later.
Under this framework, current student-athletes and new prospects can select
between the previous eligibility rules or the Five for Five Rule, whichever is more beneficial
to the student-athlete. The previous rules would necessarily include the waivers which
were part of the old regime.18
With respect to plaintiffs’ cohort, no eligibility, period, leading to the moniker “Five
for Five But Not For You.”
‘7Meghan Durham Wright, NCAA.org, Division I adopts age-based eligibility model,
https://www. ncaa .org/d ivision-i-adopts-age-based-eligibility-model/, June 23, 2026 (last
visited Sept. 28, 2026).
181f the waivers were not included, the student-athlete would be left with a Hobson’s
choice — five (5) years to play four (4) seasons or five (5) years to play five (5) seasons.
And it cannot mean just previous waivers since new student-athletes would not have
previous waivers.
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Further evidence of the unreasonable and unfair implementation of the Five for Five
Rule is found in the Rule itself, which provides:
An individual’s period of eligibilityfor practice and competition shall be limited
to five years. An individual’s five-year period of eligibility begins with the
earlier of the following:
(a) The regular academic term (semester or quarter) of an academic year in
which the individual enrolls in a collegiate institution (domestic orforeign; see
Bylaw 14.02.4) in a minimum full-time program of studies and attends a class
in that term while enrolled full time; or
(b) The beginning of the regular academic year immediately after the
individual’s 19th birthday.
[DoG. 13-3 at 25—26].
Plaintiffs are individuals whose five (5) year period of eligibility began in the
2022—2023 academic year. Accordingly, the fifth academic year would be the 2026—2027
year — for which the NCAA has decreed these very athletes ineligible.
In its pronouncements, the NCAA refers to plaintiffs’ cohort as “student-athletes,”
but the Bylaws refer to them as individuals.
There is a difference. Bylaw 12.01.2 notes the distinction providing:
“Individual” vs. “Student-Athlete.” NCAA eligibility may be lost as a result
of activities before enrollment in college. If NCAA rules specify that an
“individual” may or may not participate in certain activities, this term refers to
a person before and after enrollment in a member institution. If NCAA rules
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specify a “student-athlete,” the legislation applies only to that person’s
activities after enrollment.
[Doc. 13-3 at 14].
The distinction between “individuals” and “student-athletes” is important because
Rule 12.01.2 clearly designates that Article 12 Rules governing “Eligibility for Athletics
Participation” will be governed by specific definitions: individual— “a person before and
after enrollment in a member institution;” and student-athlete— “legislation [that] applies
only to that person’s activities after enrollment.” This means that eligibility is extended to
individuals with remaining eligibility under the age-based model, even if they are not
currently enrolled (i.e., “before enrollment”). And by its own terms, the NCAA is failing to
honor that agreement for individuals.
The NCAA contends that despite the clarity of Rule 12.6, plaintiffs do not qualify
because they are no longer “student-athletes.” The Rule, however, refers not to
“student-athletes” but to “individuals.”
The controversy in this case arises not out of the Rule itself, but its implementation.
In a web post authored by the NCAA, the NCAA explains that “[s]tudent-athletes who
used their final season of competition (under previous rules) during 2025—26” have “[n]o
additional eligibility.” [Doc. 23 at 4 (quoting Meghan Durham Wright, NCAA.org, Division
I 	adopts 	age-based 	eligibility 	model,
https://www. ncaa.org/division-i-adopts-age-based-eligibility-model/, June 23, 2026
(emphasis added))]. This breaches Rule 12.6 in two (2) critical ways:
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• First, by applying the restriction to student-athletes, the NCAA takes away a
fifth year of eligibility that student-athletes (who are by definition enrolled)
had at the end of 2025—2026 under the prior rules.
• Second, by applying the implementation to student-athletes, the NCAA
conflicts with Rule 12.6 that applies to individuals.
This Court is aware that the NCAA claims that it has universal authority to interpret
the Bylaws. This Court finds, however, that the claim of such authority over a clear and
unambiguous provision violates the spirit, if not the letter of Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024).
The above discussion not only confirms the unfairness and arbitrariness of the
NCAA’s actions, it also establishes an additional basis for finding a likelihood of success
on the merits; specifically, on plaintiffs’ breach of contract claim.
The NCAA claims that plaintiffs may not maintain an action for breach of contract
due to a lack of standing. The NCAA contends that plaintiffs were not “sole” beneficiaries
of the NCAA framework.
Plaintiffs are certainly beneficiaries. The NCAA Manual’s stated purpose is not
merely to regulate institutions, but to serve student-athletes. In the Preamble, the NCAA
announces its member institutions’ “commit[ment] to the well-being and development of
student-athletes, to sound academic standards and the academic success of
student-athletes, and to diversity, equity and inclusion.” [DoG. 13-3 at 3]. Those purposes
are carried forward in the NCAA Constitution’s Article 	1 “Principles” and reinforced by
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structural rights that give student-athletes a voice in NCAA governance, including “voting
representation on the Board of Governors” and the Division 	I Board of Directors. [Id. at 9].
Individually and collectively, the Division 	I Manual and Bylaws furnish strong
evidence of the NCAA’s intent to confer student-athletes with what the NCAA calls “the
life-changing experience of college athletics” and the “life-changing benefits college sports
provides.” [Doc. 23 at 10 (quoting NCAA News, @NCAA_PR on X,
https:/Ix.comINCAA_PRJstatusI2O699O973 1364249863, last accessed Sept. 28, 2026)].
The Court reads these principles, rights, responsibilities, rules, regulations, policies,
procedures, and statements all centered on giving the “gift” of college athletics as words
of intention.
In United Dispatch, Inc. v. E.J. Albrecht Co., the Supreme Court of Appeals of
West Virginia noted “wherein the plaintiff was one of a class of persons designated in a
contract for whose benefit the contract was made; and that a member of such class could
maintain an action at law, although not a party to the contract.” 135 W.Va. 34, 42, 62
S.E.2d 289, 294 (1950). See also Gofi v. Penn Mut. Life Ins. Co., 229 W.Va. 568, 729
S.E.2d 890 (2012).
In the Monroe County, Indiana case, Judge Krothe cited and relied upon a decision
from the Chancery Court of Davidson County, Tennessee, which held:
When reading the Bylaws at issue in this case, they are all largely devoted
to regulating the eligibility, participation, welfare, and compensation of
student-athletes. They repeatedly identify student-athletes as the objects of
the Bylaws, indicating an intent to benefit them. The Bylaws are not limited
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to allocating rights and obligations among member institutions. Rather, they
establish detailed rights, privileges, obligations, eligibility requirements,
procedural protections, and benefits that directly govern the relationship
between the NCAA and every student-athlete participating in NCAA
competition. Those provisions demonstrate that student-athletes are not
merely incidental beneficiaries of the contractual arrangement but are among
its principal intended beneficiaries.
The Court further finds it significant that student-athletes are required to
review and execute acknowledgments agreeing to comply with the NCAA
Bylaws before participating in athletics at NCAA member schools. (Trial
Testimony of Jerry Vaughn). This requirement demonstrates that the
contractual framework was intended to operate directly upon student-athletes
and not merely upon member institutions. Therefore, this Court finds that the
Plaintiffs are the intended beneficiaries of the contracts at issue in this case.
Washington v NCAA, Case No. 26-0896-Ill, Chancery Court of Davidson County,
Tennessee, July 31, 2026 Order Granting Temporary Injunction. See also Bloom v.
NCAA, 93 P.3d 621, 623—24 (Cob. Ct. App. 2004) (“the NCAA’s constitution, bylaws, and
regulations evidence a clear intent to benefit student-athletes”); Battle v. NCAA, 2024 WL
4685604, at *5 (N.D. W. Va. Nov. 4, 2024) (Bailey, J.) (holding that student-athlete
sufficiently alleged he was a third-party beneficiary to the Bylaws and Constitution of the
NCAA); Smith v. NCAA, Case No. 2026-CP-39-00073 (S.C. Ct. C.P. June 12, 2026)
(entering injunction on a claim for breach of NCAA Bylaws); Borovicanin v. NCAA, Case
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No. A2603352 (Ohio Ct. C.P. July 9, 2026) (order granting preliminary injunction) (“the
NCAA Manual and Bylaws are clearly intended to benefit student-athletes”).
This Court finds breach of contract to be another theory upon which plaintiffs have
a likelihood to prevail on the merits.
The NCAA’s position is particularly difficult to reconcile with its treatment of the
Class of 2023, for example. One could argue that the Class of 2022 received what they
bargained for when they entered college—four (4) years of eligibility. But the same
reasoning applies to the Class of 2023: those student-athletes likewise entered college
expecting four (4) years of eligibility. Yet, the NCAA permits the Class of 2023 to continue
competing while denying the same opportunity to the Class of 2022. The distinction
appears arbitrary and is difficult to reconcile with the NCAA’s treatment of eligibility during
the COVID-19 pandemic.
The Court is not persuaded that the NCAA has adequately explained this distinction.
If the NCAA were willing to recognize an additional year of eligibility when circumstances
created an overlap between otherwise eligible athletes and subsequent recruiting classes
during the COVID-19 pandemic, it is not apparent why the same concern regarding a
potential substitution effect warrants a different result here. At a minimum, the NCAA’s
explanation does not adequately account for why the Class of 2022 should bear the
consequences of the asserted “substitution effect” while similarly situated student-athletes
in the Class of 2023 are permitted to continue competing.
The Court therefore finds the NCAA’s distinction between these two (2) classes
difficult to justify on the record presently before it. Whatever legitimate concerns the NCAA
may have regarding the effects of an additional year of eligibility, those concerns do not,
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without more, explain why an exception was appropriate for one cohort but not the other.
The NCAA’s treatment of the Class of 2022, particularly when viewed in light of its prior
decision to grant additional eligibility during the COVID-19 pandemic, raises substantial
questions concerning the consistency and rationale of the eligibility restriction at issue
here.
With respect to roster space, Mr. Tatos states a “scenario where an incoming
athlete would need to compete for [sic] a fifth year athlete would only occur if the rosters
were already full and could not accommodate an additional athlete. 	I have not seen any
evidence that this would be the case, and to my knowledge, the NCAA has not identified
any specific players that would lose their roster space if the Plaintiffs in this case were
deemed eligible.” [Id. at ¶ 58].
The Court finds this observation significant. Although the NCAA relies upon the
potential displacement of other student-athletes as a justification for its position, the record
presently before the Court does not identify any particular student-athlete who would
actually lose a roster position as a result of plaintiffs receiving an additional year of
eligibility. Nor has the NCAA identified evidence demonstrating that the relevant rosters
are, in fact, full or that granting plaintiffs an additional year of eligibility would necessarily
result in the displacement of incoming or current student-athletes. Thus, the NCAA’s
asserted concern regarding roster space appears, at this stage, to be based largely on a
theoretical possibility rather than evidence of an actual consequence. A favorable ruling
granting an injunction would not displace any student athlete. Such a ruling would only
permit plaintiffs to compete for a roster spot on a team. The ruling would not compel any
team to accept the player and force the team to have a roster spot for the player.
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That distinction is important. The Court does not discount the possibility that
granting an additional year of eligibility to certain student-athletes could affect roster
composition or opportunities for other athletes. But where the NCAA relies upon such a
potential effect to justify excluding an entire class of student-athletes, the Court would
expect some evidentiary basis demonstrating that the asserted harm is likely to occur.
On the present record, the NCAA has not sufficiently connected its generalized concern
regarding roster space to any concrete impact on a particular student-athlete or roster.
The rosters for the 2026—27 seasons have essentially been set, and the
“destabilized rosters for the 2026—27 season” do not exist. What does exist is that some
schools have reserved roster spots that, without this Court’s intervention, will go
unfilled—it was represented by plaintiffs at the hearing that roster spots for all four (4)
plaintiffs have been reserved. Therefore, the Court finds plaintiffs have met their burden
of showing a substantial anticompetitive effect.
2. Procompetitive Rationale
The burden now shifts to the NCAA to set forth a “procompetitive rationale” for its
restraint (which is to say, the Five for Five Rule). Alston, 594 u.s. at 96 (citation
modified). The NCAA may meet its burden by showing that such rationale, or rationales,
“justify the anticompetitive effects.” Law, 134 F.3d at 1021 (citation modified)). See also
Alston, 594 U.S. at 99 (“[A]t step two the NCAA had to show only that those same rules
collectively yield a procom petitive benefit.” (citation modified)).
The NCAA says it has met its burden because the Rule has procompetitive benefits.
See [Doc. 22 at 15—17]. specifically, the NCAA argues that the Five for Five Rule provides
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procompetitive benefits by preserving the structure and unique character of college
athletics, including ensuring opportunities for incoming high school athletes and aligning
athletic eligibility with the typical four (4)-year undergraduate experience. [Id. at 15].
The NCAA further argues that applying the new age-based eligibility rule retroactively
would disrupt the 2026—27 season because roster spots, playing time, scholarships, and
other team resources are limited, potentially displacing athletes who currently expect to
compete. [Id. at 16—17].
The NCAA’s argument proceeds from a flawed premise: that excluding athletes from
the labor market is actually procompetitive. In the NCAA’s own words:
The decision to apply the new age-based framework going forward protects
competitive opportunities and reliance interests of thousands of other
student-athletes entering the 2026-27 season. The opportunities to
participate in college sports are zero-sum. Roster spots are fixed.
If Plaintiffs are permitted to join a roster, they may take away a spot from
someone else who is eligible. Each contest has a fixed number of minutes
in a game and opportunities to see the field or court at a given position.
If Plaintiffs can compete, it will crowd out other student-athletes looking for
their first opportunity, or opportunities to develop as their collegiate careers
progress.
[Doc. 22 at 16]. Its argument about the Rule specifically not only suffers this same flaw
(and assumes that all rosters are zero-sum, which evidence in the preliminary injunction
record contradicts). But antitrust law does not endorse—or sustain—this understanding
of markets or market output, i.e., that reducing laborers in a market is somehow
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procompetitive. “[T]his justification runs afoul of the basic economic principle that greater
competition in a labor market generally leads to beffer outcomes for workers.” Martinson
v. NCAA, 804 F.Supp.3d 1109, 1130 (D. Nev. 2025) (citation modified). And the Court
shares Martinson’s concern that this rationale is an artificial attempt to “even the playing
field” that “leads to lower wages for all workers.” Id. See also Law, 134 F.3d at 1021
(“Justifications offered under the rule of reason may be considered only to the extent that
they tend to show that, on balance, the challenged restraint enhances competition.”
(citation modified)); New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 659
(2d Cir. 2015) (“While introducing [a product] may be procompetitive, that argument
provides no procompetitive justification for withdrawing [another product].” (original
emphasis)); Realcomp II, Ltd. v. F.T.C., 635 F.3d 815, 834 (6th Cir. 2011) (noting
defendants can meet step two (2) burden by demonstrating “some countervailing
procompetitive virtue—such as, for example, the creation of efficiencies in the operation
of a market or the provision of goods and services.” (citation modified)).
Ultimately, the Supreme Court explained the same concepts which were undisputed
in the compensation litigation at issue in Alston:
No one disputes that the NCAA’s restrictions in fact decrease the
compensation that student-athletes receive compared to what a competitive
market would yield. No one questions either that decreases in compensation
also depress participation by student-athletes in the relevant labor
market—so that price and quantity are both suppressed.
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594 U.S. at 86 (citing 12 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 2011 b, p. 134 (4th
ed. 2019) (emphasis in original).
The same economic reality applies here. Aiston recognized the close relationship
between price and quantity in a monopsonized labor market: a restraint on compensation
suppresses not only wages, but also participation. The converse follows as well. A direct
restraint on the quantity of available labor—here, excluding a defined cohort of otherwise
eligible student-athletes—distorts competition in the same market. That point is especially
clear where the restraint operates as a categorical prohibition on one (1) transition class,
no different in principle from randomly declaring one (1) out of every five (5) athletes
ineligible so that the remaining athletes face less competition for roster positions. Nor can
the NCAA justify the exclusion as necessary to preserve the character or quality of college
athletics. The same fifth-year participation barred for the 2022—23 cohort will be permitted
under the NCAA’s own rules beginning next year. The challenged exclusion is therefore
not a product-preserving eligibility rule; it is an exercise of monopsony power to restrict
competition in the labor market.
Because the NCAA has not met its step two, procompetitive rationales burden, the
Court’s rule of reason analysis could conclude here—and conclude that plaintiffs have
shown a likelihood of success on the merits of their Section 1 claim. Yet for the sake of
completeness, the Court proceeds to analyze the third rule of reason step, which is
whether—presuming that the NCAA actually met its step two, procompetitive
burden—plaintiffs have shown the NCAA’s proffered procompetitive rationales could be
achieved through less restrictive alternatives.
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3. Less Restrictive Alternatives
Presuming the NCAA has met its procompetitive effects burden, plaintiffs must now
show that “the challenged conduct is not reasonably necessary to achieve the legitimate
objectives or that those objectives can be achieved in a substantially less restrictive
manner.” Law, 134 F.3d at 1019 (citation modified). See also Alston, 594 U.S. at 100
(observing that plaintiffs met third step burden where “they were able to show that the
NCAA could achieve the procompetitive benefits it had established with substantially less
restrictive restraints”).
The NCAA contends that simply increasing roster sizes would not eliminate these
concerns because playing time and other resources remain finite and would be spread
among more athletes. [Doc. 22 at 17].
Plaintiffs simply want to be treated like all other athletes under the Five for Five
Rule, which is to say they want to be eligible for a fifth season of competitive play.
And they identify a practical alternative to achieving their goal that would be entirely
consistent with the Rule: granting them a waiver under the Rule for an additional year of
eligibility, notwithstanding they are otherwise ineligible for such a year based on the year
they graduated high school and the number of seasons in which they have competed so
far.
Plaintiffs’ proposed waivers, whose administration appear entirely possible and
feasible under the NCAA’s current Bylaws, would “eliminate the anticompetitive harm” that
plaintiffs and class members face under the Rule’s impending implementation.
Bra ham, 794 F.Supp.3d at 837. And granting plaintiffs eligibility waivers, to the extent that
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they would qualify for them, is consistent with the NCAA’s own proffered procompetitive
rationale, insofar as expanding the number athletes in the relevant market—rather than
artificially and arbitrarily limiting it—would expand output. See Chicago Pro. Sports Ltd.
P’ship v. Nat’l Basketball Ass’n, 961 F.2d 667, 673 (7th Cir. 1992) (“Rivalry makes for
a more attractive product, which then attracts a larger audience—the very expansion of
output that the antitrust laws foster.”); Israel Travel Advisory Serv., Inc. v. Israel Identity
Tours, Inc., 61 F.3d 1250, 1253 (7th Cir. 1995) (“Output often grows in the process as
competition intensifies.”); Town ol Concord, Mass. v. Bos. Edison Co., 915 F.2d 17,
21—22 (1st Cir. 1990) (“[A practice] harms that [competitive process] when it obstructs the
achievement of competition’s basic goals.” (citation modified)). Thus, “Plaintiff’s proposed
alternative eliminates the anticompetitive harms discussed above while appearing to
satisfy” the procompetitive rationale “advanced by the NCAA.” Pavia, 760 F.Supp.3d at
543.
B. Irreparable Harm
The parties dispute whether plaintiffs will suffer irreparable harm absent injunctive
relief. Compare [Doc. 16 at 3] with [Doc. 22 at 23—24]. The Court need not dwell on this
issue.
Courts have repeatedly found that “[c]ollege students suffer irreparable harm when
they are denied the opportunity to play sports.” S.A. v. Sioux Falls School Dist. 49-5,
2023 WL 6794207, at *9 (D. S.D. Oct. 13, 2023) (quoting Portz v. St. Cloud State Univ.,
401 F.Supp.3d 834, 868 (D. Mm. 2019); see also McCormick ex rel. McCormick v. Sch.
Dist. ol Mamaroneck, 370 F.3d 275, 302 n.25 (2d Cir. 2004); Navarro v. FIa. Inst. of
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Tech., Inc., 2023 WL 2078264, at *16_17 (M.D. Fla. Feb. 17, 2023) (courts have
consistently held that losing the opportunity to participate in sports is irreparable harm);
Biediger v. Quinnipiac Univ., 616 F.Supp.2d 277, 291 (D. Conn. 2009) (“Courts have
consistently held that, given the fleeting nature of college athletics, plaintiffs will suffer
irreparable harm by losing the opportunity to participate in their sport of choice on a
continuous and uninterrupted basis.”); Brooks v. State Coil. Area Sch. Dist.,
643 F.Supp.3d 499, 510 (M.D. Pa. Dec. 1, 2022); Mayerova v. E. Mich. Univ., 346
F.Supp.3d 983, 997 (E.D. Mich. 2018); but see Doe v. Portland Pub. Sch., 2023 WL
7301072, at *16 (D. Me. Nov. 3, 2023); Revesz v. Pa. Interscholastic Ath. Ass’n, Inc.,
798 A.2d 830, 837 (Commonwealth Court of Pa. May 21, 2002).
The Court agrees with plaintiffs that they face the loss of a season of competition
and exclusion from sports teams for which they might otherwise be eligible. This harm is
certainly impending19 and the inability to play in the upcoming (or ongoing) seasons cannot
be “compensated after the fact by money damages.” DTC Energy Grp., Inc. v.
Hirschfeld, 912 F.3d 1263, 1270 (10th Cir. 2018) (internal quotations and citations
omitted). To the extent that plaintiffs face a loss of NIL compensation2° as well, this harm
does not displace the fundamental and irreparable harm they face if they are excluded
from playing in the upcoming season. See, e.g., Denver Rockets v. All-Pro Mgmt., Inc.,
19For Jason Chambers, the harm is current. WVU Football has already played four
(4) games.
20At least one (1) court has observed that lost NIL opportunities are not purely
economic. See Braham, 794 F.Supp.3d at 838 (“Regardless of whether such offers may
result in calculable monetary compensation, the foregone opportunity to ‘market’ one’s
‘name’ and ‘likeness’ and to ‘showcase abilities to future employers’ cannot be estimated
or quantified.” (citation modified)).
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325 F.Supp. 1049, 1057 (C.D. Cal. 1971) (finding that “[i]f [movant] [were] unable to
continue to play professional basketball . . . he w[ould] suffer irreparable injury in that a
substantial part of his playing career will have been dissipated”).
Accordingly, plaintiffs have met their irreparable harm burden.
C. Balance of the Equities
Plaintiffs argue that the balance of the equities “strongly favors preliminary relief”
because, absent injunctive relief, they “will permanently lose the opportunity to compete
during the 2026—27 academic year, together with the educational, athletic, NIL,
revenue-sharing, exposure, and professional-development opportunities that attach to that
competition.” [DoG. 16 at 36].
Moreover, an injunction that preserves this ability imposes “no cognizable prejudice”
on the NCAA, given that granting plaintiffs injunctive relief would allow plaintiffs “the same
opportunity to compete for available positions during the fifth year of eligibility that the
NCAA now recognizes as appropriate under its own amended eligibility framework.” [Id.].
The NCAA argues that granting plaintiffs’ request for relief would be inequitable
because plaintiffs’ requested relief would not eliminate harm but merely shift it to other
student-athletes. [Doc. 22 at 24—25]. Because college athletics are inherently competitive
and roster spots, playing time, and scholarships are limited, the NCAA argues allowing
plaintiffs to compete could displace other athletes who are not parties to the litigation. [Id.].
The NCAA also argues that granting relief to these plaintiffs could encourage similar
challenges by other student-athletes, creating broader instability in NCAA eligibility rules.
[Id.].
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The Court is persuaded, like the Court in Wisne was, “upon review of the parties’
arguments and the preliminary injunction record, that the harms the NCAA faces are much
less severe. Fundamentally, Plaintiffs face irreparable harm, and the NCAA itsell faces
challenges in administering Plaintiffs’ relief and ensuring their eligibility for the upcoming
season. There is no contest between the two, and they resolve in Plaintiffs’ favor.
See, e.g., Tennessee [v. NCAA], 718 F.Supp.3d [756,] 766 [(E.D. Tenn. 2024)] (“Here,
the balance of the equities weighs heavily in favor of Plaintiffs because neither the NCAA
nor any other affected individual or entity will face substantial harm with the issuance of an
injunction, whereas, as explained above, student-athletes face irreparable harm.”); Ohio,
706 F.Supp.3d at 600 (“This Court does not see substantial harm to the NCAA that would
result from this Court granting a temporary injunction. A prohibition on enforcing the
Transfer Eligibility Rule causes no harm to the NCAA or any other entity or individual.”);
Braham, 794 F.Supp.3d at 839; Pavia, 760 F. Supp. 3d at 544.” Wisne, 2026 WL
2214234, at *22 (emphasis in original).
Granting four (4) athletes on three (3) teams relief will not destabilize college sports.
Plaintiffs only seek the same opportunities as those who came before, and those who will
come after.
D. The Public Interest
Finally, the parties dispute whether issuance of a preliminary injunction would be in
the public interest. Compare [Doc. 16 at 36—37] with [Doc. 22 at 24_25].21 “As a practical
21The NCAA contends that the public interest weighs against an injunction because
the judiciary should not be placed in the position of repeatedly determining individual
eligibility under NCAA bylaws. [Doc. 22 at 24—25]. According to the NCAA, granting
plaintiffs relief could create ripple effects throughout Division 	I athletics and disrupt the
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matter, if a plaintiff demonstrates both likelihood of success on the merits and irreparable
injury, it almost always will be the case that the public interest will favor the plaintiff.”
Am. Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d, 1421 1427 n.8
(3d Cir. 1994).
Plaintiffs have met their burden of showing the public interest favors injunctive relief.
As they observe, ensuring the NCAA’s compliance with federal and state antitrust laws will
serve the public interest, thus satisfying this factor. See, e.g., Tennessee, 718 F.Supp.3d
at 766 (“Finally, the requested injunctive relief will serve the public interest because it will
prevent anticompetitive behavior.” (citation modified)); Ohio, 706 F.Supp.3d at 600
(“Free and fair competition in labor markets is essential to the American economy.”);
Bigelow v. RKO Radio Pictures, 327 U.s. 251, 266 (1946) (“The dominant purpose of
the Anti-Trust Acts is protection of the public interest by prohibiting unjustifiable restrictions
upon competitive enterprise.”) (Frankfurter, J., dissenting).
V. Rule of Restitution
Plaintiffs ask this Court to enjoin the NCAA’s Rule of Restitution (Bylaw § 12.9.4.2)
in addition to the Challenged Rules. [Doc. 6 at 23—24]. The NCAA does not address this
in their Response.
NCAA Bylaw 12.9.4.2, commonly known as the “Rule of Restitution” provides:
expectations of other student-athletes, teams, and schools. [Id.]. Rather than eliminating
harm, an injunction would simply reallocate limited roster spots and playing opportunities
from other athletes to plaintiffs. [Id.].
In the preface to this Opinion, the Court gives its two cents regarding the weight
increasingly being placed on the judiciary to resolve disputes arising from the
ever-changing landscape of college athletics. But the reality is that the Court’s hands are
tied. Until something is done to bring greaterclarity and consistencyto the rules governing
college sports, these difficult questions will continue to find their way into the courts.
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12.9.4.2 Restitution. If a student-athlete who is ineligible under the terms
of the bylaws or other legislation is permitted to participate in intercollegiate
competition contrary to such NCAA legislation but in accordance with the
terms of a court restraining order or injunction operative against the
institution attended by such student-athlete or against the Association, or
both, and said injunction is voluntarily vacated, stayed or reversed or it is
finally determined by the courts that injunctive relief is not or was not
justified, the Board of Directors may take any one or more of the following
actions against such institution in the interest of restitution and fairness to
competing institutions:
(a) Require that individual records and performances achieved during
participation by such ineligible student-athlete shall be vacated or
stricken;
(b) Require that team records and performances achieved during
participation by such ineligible student-athlete shall be vacated or
stricken;
(c) Require that team victories achieved during participation by such
ineligible student-athlete shall be abrogated and the games or events
forfeited to the opposing institutions;
(d) Require that individual awards earned during participation by such
ineligible student-athlete shall be returned to the Association, the
sponsor or the competing institution supplying same;
(e) Require that team awards earned during participation by such
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ineligible student-athlete shall be returned to the Association, the
sponsor or the competing institution supplying same;
(f) Determine that the institution is ineligible for one or more NCAA
championships in the sports and in the seasons in which such
ineligible student-athlete participated;
(g) Determine that the institution is ineligible for invitational and
postseason meets and tournaments in the sports and in the seasons
in which such ineligible student-athlete participated;
(h) Require that the institution shall remit to the NCAA the institution’s
share of television receipts (other than the portion shared with other
conference members) for appearing on any live television series or
program if such ineligible student-athlete participates in a contest
selected for such telecast, or if the Board of Directors concludes that
the institution would not have been selected for such telecast but for
the participation of such ineligible student-athlete during the season
of the telecast; any such funds thus remitted shall be devoted to the
NCAA postgraduate scholarship program; and
(i) Require that the institution that has been represented in an NCAA
championship by such a student-athlete shall be assessed a financial
penalty as determined by the Committee on Infractions.
[Doc. 13-2 at 58]. As this Court held in Ohio:
The breadth of the Rule of Restitution is staggering and goes well beyond
final adjudication on the merits in the NCAA’s favor. It is in fact a measure
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designed to inhibit a person’s access to the courts.
Knowing this, many Division 	I institutions wiN not permit the
student-athlete to compete, even if a court issues a temporary restraining
order or a preliminary injunction finding that those rules are likely illegal.
This, in turn, deters student-athletes from challenging the NCAA’s
substantive eligibility rules, such as the Transfer Eligibility Rule.
It appears to this Court that the Rule of Restitution’s purpose is to
punish challenges to the NCAA’s anticompetitive rules by attempting to
deprive courts of the ability to grant effective relief and depriving individual
student-athletes and member institutions of the practical ability to rely on
court orders in their favor. The Rule of Restitution forces student-athletes to
run the risk of severe personal punishment and the risk of subjecting their
institutions or teammates to the harsh sanctions of the Rule of Restitution
simply by following the terms of a court order. For instance, suppose this
Court issues an injunction that allows a student-athlete, like RaeQuan Battle,
to play for the remainder of the 2023—2024 basketball season.
Suppose, hypothetically, WVU goes on to win the Big 12 Championship and
National Championship. If this Court does not enjoin NCAA Bylaw
12.11.4.2,22 NCAA could require that WVU be stripped of the Big 12 and
National Championship Titles, all over WVU following a court order
22The Rule of Restitution was revised on June 6, 2025, and effective on July 1,
2025. Since this Court’s Opinion in Ohio, the number of the Rule of Restitution has
changed to NCAA Bylaw 12.9.4.2.
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instructing WVU that RaeQuan Battle is good to play on gamedays. Thus,
this Court will enjoin NCAA from enforcing the Rule of Restitution against
student-athletes and their respective institutions.
706 F.Supp.3d at 600—602. See also Pavia, 760 F.Supp.3d at 545 (enjoining the NCAA
from enforcing the Rule of Restitution); Elad, 2025 WL 1202014, at *10_li (same);
Braham, 2025 WL 2017162, at *10 (same).
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. Consistent with its decision in
Ohio, this Court sees no reason to depart from that reasoning and holds that the Rule of
Restitution must be enjoined for the injunction to have effect.
VII. Conclusion
For the reasons set forth above, the Court will GRANT plaintiffs’ Motion for
Preliminary Injunction [Doc. 13]. The NCAA will be ENJOINED from enforcing the Five for
Five Rule as it applies to Brenan Lorient, Javan Buchanan, Jason Chambers, and
Benjamin McDougal. Brenan Lorient, Javan Buchanan, Jason Chambers, and
Benjamin McDougal are permitted to compete for available roster positions at West
Virginia University, or another NCAA Division 	I member institution as applicable, during the
2026—27 academic year without the NCAA treating that participation as a violation of its
eligibility rules. No security will be required.
Finally, the NCAA is ENJOINED from enforcing its Rule of Restitution (Bylaw
§ 	12.9.4.2) against Brenan Lorient, Javan Buchanan, Jason Chambers, and
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Benjamin McDougal and/or West Virginia University for complying with, and relying on,
this Order.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: September 30, 2026.
~
UNITED STATES DISTRICT JUDGE
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