Antitrust Law Daily Wrap Up, ANTITRUST—10th Cir.: NCAA secures reversal of preliminary injunction enjoining new ‘Five Year Rule’ on appeal, (Nov 9, 2026)

By Justin Marcus Smith, J.D.

Individual athletic programs within a Division I university, not all NCAA university members, were ultimately the employers for purposes of market-definition analysis, and they were not interchangeable.

Student-athlete plaintiffs who brought a Sherman Act claim against the National Collegiate Athletic Association (NCAA), in connection with the NCCA decision not to apply its new Five Year Rule (FYR) retroactively, implausibly insisted the relevant antitrust market comprised all Division I sports in the United States, ruled the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit analyzed that individual Division I sports team “employers” were not interchangeable because the athletes competing in different sports were not fungible. The district court clearly erred with respect to market definition, and without a viable market definition, there was no way to apply the rule of reason. The district court consequently erred in concluding the plaintiff student-athletes had shown a likelihood of success on the merits. The Tenth Circuit reversed and vacated the preliminary injunction entered against the NCAA (Wisne v. National Collegiate Athletic Association, No. 26-1309 (10th Cir. Nov. 6, 2026)).

Background. In August 2026, a federal district court in Denver, Colorado clarified a previous preliminary injunction order that enjoined the National Collegiate Athletic Association (NCAA) from denying participation eligibility to student athletes who would otherwise be eligible to play sports for five years under the NCAA's revised FYR rule, but were denied eligibility by the NCAA because they had exhausted their eligibility under the previous version of the rule.

The plaintiffs had brought an action on behalf of themselves and a class of similarly situated athletes. They argued that every NCAA rule indicated an agreement among the NCAA and its member institutions to restrict the market for Division I athletic labor with direct implications for the ability of hundreds of thousands of athletes to receive compensation for the skill and effort they invest. The plaintiffs claimed the putative agreement amounted to a group boycott, but they emphasized they were not challenging the new FYR as a whole in this action, only the decision not to apply it retroactively to them.

The NCAA chose not to apply the rule retroactively to student-athletes, like the plaintiffs, who had already competed in the maximum number of seasons permitted under the old rule. The NCAA said it reasoned retroactive application would have destabilized rosters just ahead of the current season by disrupting settled expectations about expected roster spots and playing time.

The district court’s clarifying order reiterated “that the NCAA was enjoined from prohibiting Plaintiffs and Class Members from competing in a fifth season of collegiate athletics.” It also stated that the preliminary injunction order did not enjoin any provisions of the House settlement agreement; did not enjoin the operation of transfer rules; and specified the scope of the class (see Antitrust, Aug. 3, 2026). A few days later, the district court denied the NCAA’s emergency motion for a stay of the preliminary injunction pending appeal (see Antitrust, Aug. 12, 2026).

On appeal, the U.S. Court of Appeals for the Tenth Circuit said the question of market definition was dispositive. Accordingly, the Tenth Circuit did not address other matters the district court ruled on, such as anticompetitive effect, procompetitive rationale, and less anticompetitive alternatives.

Market definition. In the district court, the plaintiffs argued for a market definition as “the labor market for Division I college athletes” without distinguishing between different sports or genders. The NCAA challenged that market definition on the basis that the plaintiffs failed to provide any data to support the notion that all Division 1 athletes see all Division I programs as reasonable substitutes.

The Tenth Circuit said recent circuit-level decisions reversing or vacating pro-athlete preliminary injunctions for lack of evidence in support of market definition were instructive. In Fourqurean, for example, the Seventh Circuit reversed a district court preliminary injunction largely because the plaintiff’s only effort to define the relevant market was to claim the Supreme Court’s Alston decision established NCAA Division I football bowl subdivision football as a relevant market. See Fourqurean v. NCAA, 143 F.4th 859 (7th Cir. 2025); see also NCAA v. Alston, 594 U.S. 69 (2021). The Seventh Circuit disagreed, noting that antitrust liability requires “a careful analysis of market realities.” Things had changed since Alston due to the advent of name, image, and likeness (NIL) payments. The court analyzed two other cases standing for fact-specific findings about the relevant market definition.

The instant plaintiffs, seeking to avoid the outcome in Fourqurean and the other cases, offered a sports economics expert’s declaration in support of their theory that Division I college sports are a unique labor market and that the NCAA has clear monopsonistic control over it. The expert focused on Division I being unique both relative to other college sports divisions and relative to professional minor and major league sports. The district court challenged the expert as to uniqueness relative to professional league sports and the inclusion of all Division I sports in a single market.

The expert contended that the National Basketball Association developmental league (G-League) does not get as much media attention and fan interest as Division I basketball, so it could not generate as much NIL money. The expert also said his data showed that more undergraduates are choosing the NBA draft after NIL became available in 2021, which one would not expect if men’s basketball players now see Division I as a reasonable substitute for the NBA. Third, the expert presented data as showing that, post-NIL, the number of players taken in the Major League Baseball draft who chose to sign a professional contract mostly went up. In the expert’s view, NIL money was not keeping baseball players in college, thus showing they did not view staying in college as a reasonable substitute for signing a professional contract. Fourth, the expert noted that the Women’s National Basketball Association (WNBA) does not admit players younger than twenty-two, such that women’s college basketball players could not view the WNBA as a reasonable substitute for Division I play until late in their college careers. Fifth, the expert stated that professional league sports for other college sports are very small or nonexistent.

The NCAA’s expert rebutted that the market definition was implausible because it assumed interchangeability between sports and across genders. He also challenged the interpretations of the data attempting to distinguish some men’s Division I markets from the professional leagues in those sports. In particular, he challenged a putative lack of hard data about actual NIL earnings, which are thought to vary widely, such that NIL variations would call the plaintiff expert’s math into question, among other criticisms. In sum, the NCAA expert argued the data showed, at best, the possibility of sport-by-sport, conference-level analysis of competition (submarket analysis). He argued the data did not support a market definition assuming that all Division I athletes, regardless of sport or gender, view all Division I programs as reasonable substitutes.

The district court concluded the plaintiffs’ expert provided the kind of data missing in Fourqurean and other recent cases. It also found the plaintiffs’ expert more convincing insofar as the NCAA is the sole “buyer” for all athletes in the submarkets of individual sports. The district court ruled the relevant market was Division I athletics in the United States.

Analysis. Applying clear error review, the Tenth Circuit held that a market defined as all Division I athletics in the U.S. was not plausible. The district court clearly erred in accepting the plaintiffs’ market definition keyed to the NCAA as the relevant employer. Beyond that, the Tenth Circuit said it would not have been convinced even treating the universities as the employers and discounting professional sports organization competition.

The question was whether the student-athlete “laborers” see all Division I university “employers” as reasonably good substitutes. The Tenth Circuit said the answer was a clear “no.” Among the problems noted, the Tenth Circuit said a football player would not view the 101 schools without a football program as reasonably good substitutes. The same dynamic applied to other sports, like women’s gymnastics.

The Tenth Circuit concluded that individual athletic programs within a Division I university, not all NCAA university members, are ultimately the employers for purposes of market-definition analysis. While the relevant market likely would include multiple universities with a Division I program in the athlete’s sport, it would not include all Division I athletics in the United States.

Without a plausible market definition, the antitrust challenge to NCAA failure to apply the new rule retroactively could not proceed to a rule of reason analysis.

Submarkets. The Tenth Circuit further analyzed that the plaintiff expert’s suggestion that individual sports within Division I are merely submarkets, each dominated by the NCAA, did not rescue the analysis. Like any market definition, the plaintiffs had to supply data in support. Brown Shoe demonstrated that a submarket is not a dependent subset of a broader market, as though inheriting all the analysis of the broader market. See Brown Shoe Co. v. United States, 370 U.S. 294 (1962).

The plaintiffs did not allege any submarkets in their complaint, nor did they assert the existence of submarkets or define any when they moved for a preliminary injunction. Again, the NCAA was not the employer here, and student-athletes did not view the actual Division I team employers as reasonable substitutes. The plaintiffs’ expert failed to provide any data for most of the sports offered at Division I universities.

The Case is No. 26-1309.

Judge: McHugh, C.

Attorneys: Elliot Sol Abrams (Cheshire Parker Schneider & Abrams PLLC) for Brock Wisne. Daniel Epps (Wilkinson Stekloff LLP) for National Collegiate Athletic Association.

Companies: National Collegiate Athletic Association

MainStory: TopStory Antitrust KansasNews ColoradoNews NewMexicoNews OklahomaNews UtahNews WyomingNews GCNNews