Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Court denies motion of NCAA to stay the court’s preliminary injunction regarding the ‘Five Year Rule’, (Aug 12, 2026)

By Sara Cracau, J.D.

Court denies NCAA’s motion to stay court’s preliminary injunction enjoining enforcement of Five Year Rule pending appeal finding that NCAA did not meet its burden to show that a stay was warranted.

The federal district court in Denver has denied the National Collegiate Athletic Association’s (NCAA’s) emergency motion to stay the court’s preliminary injunction enjoining enforcement of the group’s “Five Year Rule” for athletic eligibility, finding that the NCAA failed to meet its burden of showing that a stay was warranted. The court agreed with the student athletes that they met their preliminary injunction burden of showing they are likely to succeed on the merits of showing that the rule and its implementation have an unlawful, anticompetitive effect on a defined market. Although the court’s analysis could have ended there, it proceeded to explain why the NCAA has failed to meet its burdens under the remaining stay factors (Wisne v. National Collegiate Athletic Association, No. 1:26-cv-03063-CNS-KAS (D. Colo. Aug. 10, 2026)).

Background. College and university athletes in the United States are promoted and regulated by the National College Athletic Association (NCAA). The NCAA’s participation eligibility rules and included a “Five Year Rule” which, subject to some exceptions, limited student athletes to playing four seasons of intercollegiate competition in any one sport within a five-year period. Twelve student-athletes filed a putative class action lawsuit against the NCAA on July 8, 2026 claiming that they each completed four years of collegiate sports since first enrolling in college, are below 24 years of age and that they were being deprived of a fifth year of Division I competition with the accompanying professional development opportunities and NIL payment receipts. In response to the student-athletes' motion challenging enforcement of the Five Year Rule, the court issued a preliminary injunction order requiring the NCAA to allow the student athletes to compete.

The preliminary injunction was issued on July 31, 2026, one day before the NCAA's revised rule took effect. On August 1, 2026, the NCAA's counsel filed an emergency motion for clarification of preliminary injunction and the next day, the court issued a six-page clarifying order. The order reiterated that the NCAA was enjoined from prohibiting the class members from competing in a fifth season of collegiate athletics. It stated "that the NCAA is enjoined from prohibiting Plaintiffs and Class Members from competing in a fifth season of collegiate athletics." It also stated that the court’s order does not enjoin any provisions of the House settlement agreement; does not enjoin the operation of transfer rules; and specified the scope of the class.

The NCAA appealed and filed an emergency motion for administrative stay and motion to stay the preliminary injunction pending appeal. The student athletes replied, in further support of their motion to enforce the court’s preliminary injunction order.

Request to stay issuance of a preliminary injunction. The court concluded that the NCAA failed to meet its burden of showing that a stay of the court’s preliminary injunction was warranted. In considering applications to stay issuance of a preliminary injunction, courts consider the following factors based on Nken v. Holder, 556 U.S. 418 (2009): (1) whether the stay applicant has made a strong showing of success on the merits; (2) whether the applicant would be irreparably injured if a stay is not granted: (3) whether granting the stay would substantially injure the other parties who are interested in the proceeding; and (4) where the public interest lies. The court noted that the first two of these factors were the most critical.

Likelihood of success on the merits. The court agreed with the student athletes that they met their preliminary injunction burden of showing they are likely to succeed on the merits of showing that the Five Year Rule and its implementation have an unlawful, anticompetitive effect on a defined market. Despite the NCAA’s arguments, the student athletes put forth sufficient evidence of the relevant market from which the court could make factual findings regarding that market. The student athletes put forward evidence showing that the rule would reduce output, decrease wages, and decrease quality in the relevant market which demonstrated exactly what the NCAA claimed that the student athletes failed to show: harms to “output, price, or quality” in the market of NCAA Division I athletes. The court found that they did more than “suggest” that “competition on the field would be harmed by removing experienced student-athletes.

The court briefly discussed how the NCAA’s arguments regarding the definition of the relevant market, the plaintiffs’ showing of anticompetitive effects, and that their eligibility rules, including the Five Year Rule at issue, are procompetitive, were all unpersuasive. The NCAA motion basically rehashed arguments that it previously made, and which had been rejected, in the court’s preliminary injunction order. These arguments failed to persuade the court previously and also failed to persuade it in this instance.

The court said that its job here was “asking whether the NCAA has made a strong showing that it is likely to succeed on the merits of its appeal of the [c]ourt’s prior order,” and that “the NCAA would be required to show that the [c]ourt’s legal conclusions were erroneous under a de novo standard of review, as well as that the [c]ourt’s factual findings were clearly erroneous.” However, the NCAA, beyond its evocation of evocation of Tenth Circuit’s decision in Christy Sports, which is not dispositive here, the NCAA in its stay motion “hardly contends with this standard of review.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1198 (10th Cir. 2009). The court’s conclusions set forth in its prior orders were bolstered by the NCAA’s failure to explain how the court’s findings of fact were clearly erroneous, or lacked a rational basis in the preliminary injunction record.

Irreparable harm. The court disagreed with the NCAA that it has met its irreparable harm burden in this stay posture. Even assuming that the court’s injunction order may “drastically alter the status quo, the court agreed with the student athletes that the scope of this “alteration” was attributable to the NCAA’s own rulemaking and decisions.

Student athletes’ harm absent a stay. The court rejected the NCAA’s argument that the student athletes would not be harmed absent a stay noting that it had rejected this argument in its preliminary injunction order and did so again in this decision.

Public interest. The court reiterated that the “public interest lies,” in ensuring compliance with federal antitrust law, and ensuring that competition is fostered rather than foreclosed.

In concluding, the court said it had taken seriously the NCAA’s arguments as to the effect of the injunction, but the task at hand was to consider burdens allocated to the parties in seeking injunctive and stay relief. The student athletes met their burdens, but the NCAA did not.

The Case is No. 1:26-cv-03063-CNS-KAS.

Judge: Sweeney, C.

Attorneys: Adrian G. Johnson (Leventhal Puga Braley PC) for Brock Wisne. Andrea Ahn Wechter (Dorsey & Whitney LLP) for National Collegiate Athletic Association.

Companies: National Collegiate Athletic Association

MainStory: TopStory Antitrust ColoradoNews GCNNews