Antitrust Law Daily Wrap Up, ANTITRUST—D. Colo.: Judge clarifies preliminary injunction regarding NCAA's enforcement of revised ‘Five Year Rule’, (Aug 3, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Plaintiff student-athletes "want to be treated like all other athletes under the Rule, which is to say they want to be eligible for a fifth season of competitive play."

A federal district court judge in Denver, Colorado has clarified its previous preliminary injunction order enjoining the NCAA from denying participation eligibility to student athletes who would otherwise be eligible to play sports for five years under the NCAA's revised rule, but were denied eligibility by the NCAA because they had exhausted their eligibility under the previous version of the rule. The clarifying order reiterated "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 (Wisne v. National Collegiate Athletic Association, No. 1:26-cv-03063-CNS-KAS (D. Colo. Aug. 2, 2026)).

Background. College and university athletics in the United States are promoted and regulated by the National College Athletic Association (NCAA), an unincorporated nonprofit organization. The major professional athletic teams and leagues focus on NCAA Division I colleges and universities in their recruitment efforts; playing for Division I schools has become the de facto primary if not sole route to a professional athletic career for many sports. In 2021, a U.S. Supreme Court decision [NCAA v. Alston, 594 U.S. 69 (2021)] induced the NCAA to permit student-athletes to receive compensation from others, including the schools in which they are enrolled, for the use of their names, images, and likenesses (NIL).

The NCAA's participation eligibility rules had included the so-called "Five-Year Rule," whereby, subject to certain exceptions such as military duties or pregnancy, student-athletes were limited to playing four seasons of intercollegiate competition in any one sport within a five-year period. Following several court rulings in cases brought by student-athletes regarding the four-season limitation, the NCAA revised its "Five Year Rule" on June 24, 2026 to give blanket authorization for student-athletes to play five seasons during the five years. The five-year eligibility period begins on the earlier of the (1) first day of the academic semester or quarter in which the student-athlete enrolls in the school; or (2) the "beginning of the regular academic year immediately after the individual’s 19th birthday."

In implementing its revised rule, which took effect on August 1, 2026, the NCAA took the position that student-athletes who completed their eligibility time under the old "Five-Year Rule" would not be granted any additional playing eligibility. Twelve student-athletes who each have completed four years of collegiate sports since first enrolling in college and are below the age of 24 years claim that they are being deprived of a fifth year of Division I competition and its accompanying professional development opportunities and NIL payment receipts by "NCAA's monopsony market power and [its] arbitrary decision." The 12 student-athletes filed a putative class action lawsuit against the NCAA on July 8, 2026.

In response to the student-athletes' motion, the court issued a 50-page preliminary injunction order requiring the NCAA to allow the 12 student athletes to compete. The preliminary injunction was issued on July 31, 2026, the 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. The next day, August 2, 2026, the court issued a 6-page clarifying order.

The NCAA motion. The NCAA's motion requesting clarification expressed potential confusion on the terms of the preliminary injunction. The NCAA motion contended that the terms of the order granted the motion "without any further specification." This, the NCAA asserted, fell short of the particulars required for setting forth the contents and scope of a preliminary injunction [Fed. R. Civ. P. 65(d)]. The motion also noted that the 12 scholar-athletes were class members in a California federal court case that had settled (the House settlement) [In re College Athlete NIL Litigation, Case No. 4:20–cv–03919–CW (N.D. Cal.)], and sought clarity regarding whether and to what extent the preliminary injunction related to the House settlement. The NCAA motion additionally sought further clarification that the preliminary injunction did not require the NCAA to not enforce its Transfer Rules or Age-Based Eligibility Rule.

The court's clarification. The clarifying order reiterated "that the NCAA is enjoined from prohibiting Plaintiffs and Class Members from competing in a fifth season of collegiate athletics." In its preliminary injunction, the court noted that the student-athletes had met their burden for showing the propriety of a preliminary injunction; this included granting the waiver that was available under the old version of the "Five-Year Rule" to allow the students to compete for a fifth season, even though the new version of the Rule specifically provided "There shall be no waivers of the application of the five-year period of eligibility legislation." [NCAA 2026-27 Division I Manual, Rule 12.6.8].

As for the House settlement, that only applied to the NIL monies; the terms of the preliminary injunction did not implicate that settlement's provisions. Similarly, the preliminary injunction did not address and therefore did not enjoin the NCAA's application of its rules regarding student-athletes' transfers between educational institutions.

The NCAA's motion also sought clarification on the scope of the class. The court had previously, on July 31, 2026, granted class certification, in which the class was defined as "All persons in the United States who began to play in collegiate sports in the 2022–2023 season, competed in NCAA Division I sports, and completed four years of eligibility as defined by the NCAA's prior rules by the conclusion of the 2025–2026 season, and are therefore barred from playing a fifth season due to the NCAA's adoption and immediate implementation of the Five-Year Eligibility Rule." This class definition was sufficiently clear on its face.

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

Judge: Sweeney, C.

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

Companies: National Collegiate Athletic Association

Cases: Antitrust ColoradoNews