NCAA Eligibility Litigation Court Showdown Arrives

Tuesday brings a key courtroom hearing in the ongoing legal battle over whether former Division I athletes who began college play in 2022–23 and completed four years of eligibility should be able to play another season against the NCAA’s wishes. At 9 a.m. CT, Judges Carolyn B. McHugh, Paul J. Kelly and Nancy L. Moritz of the U.S. Court of Appeals for the 10th Circuit will hear dueling oral arguments, with attorneys for a dozen players led by former University of Northern Colorado basketball player Brock Wisne on one side and the NCAA on the other. Although similarly situated athletes have filed lawsuits across the country, Wisne v. NCAA is arguably the most consequential. A couple of months ago, U.S. District Judge Charlotte N. Sweeney certified the case as a nationwide class action on behalf of potentially thousands of athletes who are like Wisne and his co-plaintiffs. This is the only related eligibility case currently certified as a nationwide class action. A victory for Wisne—who signed with a professional basketball team in Spain after graduating from college—would mean class members across the country could benefit from the ruling and seek another season of eligibility. The same isn’t true if the NCAA wins, since athletes elsewhere can still try their luck with judges near them. This was apparent recently when a judge in Louisiana ruled that players who signed NFL contracts over the summer could return to play their fifth college season at LSU. Still, the NCAA is better off with a win than a loss in Wisne. Also, a decision by a federal appeals court binds federal district courts within its jurisdiction—here, Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming—and serves as influential precedent elsewhere. The Wisne v. NCAA scorecard A month before Sweeney issued a preliminary injunction, the NCAA Division I Cabinet adopted a new eligibility rule that provides for up to five years of eligibility. The NCAA didn’t make the rule retroactive for former players who completed college in May or June. Those former players contend it is unfair they were able to play four seasons, while others can play five. The NCAA has countered that allowing former players to return could create roster disruption, because roster limits are a condition of the House settlement, and the inclusion of ineligible players would mean the exclusion of eligible players. Sweeney agreed with the players that the NCAA’s denial likely violated antitrust law and caused them harm. The NCAA’s refusal to extend eligibility prevented these athletes, many of whom are 22 or 23 years old, from having a chance at another year of NIL and revenue-share earnings, as well as further development of their games at the college level in hopes of pursuing professional careers. The players’ win brought confusion over whether the injunction applied only to eligibility rules or extended to related rules, such as the transfer portal. The ability to switch schools from their previous school mattered: If their only option was the school they played for in 2025–26, that school might not have a 2026–27 roster spot for them. Interpretive debates about the wording of Sweeney’s order were punted in August, when a different three-judge panel on the 10th Circuit granted the NCAA a stay of the nationwide eligibility injunction. Absent judicial intervention, the stay will last until the 10th Circuit issues a ruling on the merits, most likely many weeks or months from now. Kelly, along with Judges Timothy M. Tymkovich and Veronica S. Rossman, didn’t explain the granting of the stay other than noting that Rossman wanted to deny it. The other two judges, Kelly and Tymkovich, concluded the NCAA made a sufficient showing under the factors governing stays pending appeal, including on the merits and irreparable harm. Tuesday’s likely oral arguments Entering Tuesday’s hearing, the NCAA knows Kelly, who voted to grant the stay, is on the panel, but that doesn’t necessarily mean he will rule again for the NCAA. The NCAA also needs to convince McHugh and Moritz. To that end, expect the NCAA to argue that the prospect of former college players returning would endanger the roster spots and playing time of eligible players, including freshmen who relied on assurances from coaches when deciding to attend one school instead of others. Coaches would likely find seasoned, older players preferable to less experienced, younger ones. This line of defense didn’t persuade Sweeney, who reasoned that adding athletes with expired eligibility would mean more, not less, market competition. In theory, that makes sense, since coaches would have more players to choose from. In its briefing to the 10th Circuit, the NCAA insists that adding ineligible players wouldn’t improve its product. The NCAA says part of intercollegiate athletics’ appeal is that the athletes fit a distinct college-athlete model. Fans care about rivalries among teams made up of students who generally progress through college and exhaust their eligibility alongside their classmates, rather than athletes whose college careers extend well beyond the traditional timeline. The NCAA has also warned that if one eligibility rule is blocked by a court order, athletes who are ineligible for other reasons—such as bad grades or betting on sports—might challenge other eligibility rules. Any eligibility restriction might seem unfair when applied to individual athletes. But a key rationale for eligibility rules is to establish bright-line, predictable rules that should promote fair play and competition, with colleges, coaches and athletes treated similarly in similar situations. In discussing the wide scope of eligibility lawsuits, the NCAA has pointed to basketball player Trey Kaufman-Renn—whom the Minnesota Timberwolves drafted in the second round of the 2026 NBA Draft and who played in the NBA Summer League—securing an injunction to play a sixth college season in 2026–27. A litigious outlook The NCAA’s legal battles over eligibility rules could last for a while. That is particularly true given the uncertain future of the federal Protect College Sports Act, which, among other things, would grant the NCAA antitrust immunity on eligibility matters. The PCSA passed the Senate but is reportedly facing resistance in the House of Representatives. Many players have obvious economic incentives to seek to extend their collegiate careers for as long as possible. Some relatively “older” college players aren’t quite good enough to play in the NFL or NBA, but are stars in college, where they can potentially earn millions of dollars in NIL and revenue-share money. Consider the player who started the eligibility litigation, former Heisman Trophy runner-up Diego Pavia. In his sixth college football season, Pavia reportedly earned millions of dollars to play at Vanderbilt and turned down an NIL transfer offer from another SEC school for as much as $4.5 million. Pavia, 24, wasn’t selected in the 2026 NFL Draft and was cut by the Baltimore Ravens as a rookie free agent over the summer. While the 5’10” quarterback could still have an NFL future, there’s a chance his career will pivot to another profession. The 10th Circuit’s decision in Wisne won’t resolve the broader topic of eligibility litigation, but it will set important precedent.