Antitrust Law Daily Wrap Up, ANTITRUST—D.R.I.: Re-enrolled basketball players fail to obtain temporary restraint of NCAA '5-in-5' rule, (Oct 26, 2026)

By Justin Marcus Smith, J.D.

The players could not rely on the market definition in Alston, at least not without data to support it here, and the NCAA Division I Cabinet’s interpretation of the new five-year rule appeared to be reasonable and consistent with public policy.

Two basketball players who, having already graduated from college, re-enrolled to play a fifth year of Division I basketball failed to show a likelihood of success on the merits of their claims against the National Collegiate Athletic Association (NCAA), held the federal district court in Providence, Rhode Island, in denying their motion for a temporary restraining order (TRO). The court found the players did not have a likelihood of success on their Section 1 Sherman Act claim because they relied on a market definition lifted from Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 93 (2021), yet the United States Supreme Court never reviewed the market definition in Alston, and the players’ expert lacked the data to conclude that the market was NCAA Division I intercollegiate athletics. The players and their expert also did not discuss substitutes. The court also found the players did not have a likelihood of success on the merits of their third-party beneficiary breach of contract claim because the new NCAA five-year rule did not appear to make them retroactively eligible for play and breach of contract would not pertain if the NCAA had made a reasonable interpretation of its rule. The court accordingly denied the players’ motion for temporary restraints that would have enjoined the NCAA from enforcing its interpretation of its new five-year rule (Simpson v. National Collegiate Athletic Association, No. 1:26-cv-00737-MRD-AEM (D.R.I. Oct. 22, 2026)).

Background. Two basketball players who had already graduated from St. Joseph’s University and the University of South Florida, respectively, sought to compete on the Providence College men’s basketball team for this upcoming 2026-2027 season. Both were members of the high school class of 2022 and had competed in Division I men’s basketball for the past four seasons. When they tried to take advantage of the new five-year rule, the NCAA called foul and barred them. The NCAA deemed them ineligible because they had exhausted their four seasons of eligibility before the NCAA adopted its new five-year rule, colloquially dubbed the “5-in-5” rule, which allows five athletic seasons within five years. The new rule took effect on August 1, 2026. Previously, the NCAA only permitted four seasons of eligibility within five years with a waiver process for “redshirting” under certain criteria.

The players sued the NCAA claiming (1) restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) breach of contract as intended third-party beneficiary; (3) declaratory judgment. They immediately moved for a temporary restraining order insofar as the 2025-26 season was already underway. The parties agreed the rule of reason applied to the players’ Sherman Act Section 1 claim.

“5-in-5” play. The court described more than one possible outcome for players who graduated from high school in 2022, depending on the facts: (1) if they redshirted for a year, they would have one year remaining to compete during the 2026-27 season; (2) if they competed for all four seasons starting 2022-23, they would not be eligible for a fifth season under the new “5-in-5” rule. According to the NCAA, the players fell into the second category.

First-to-file doctrine. The court declined to stay the case while another case was on appeal with the Tenth Circuit Court of appeals. The NCAA invoked the first-to-file doctrine and moved to stay on the basis that the players were mandatory members of the class certified in Wisne v. NCAA, 1:26-cv-3063-CNS-KAS, ECF No. 37 (D. Colo. July 31, 2026). The players argued deference to Wisne was merely discretionary insofar as there was no final judgment in it. The Wisne court deemed a group of student-athletes ineligible for the upcoming season for the same reasons as the plaintiffs in this matter. The Wisne district court granted the Wisne players’ request for a restraining order and certified a class, but the NCAA requested a stay of the TRO and appealed to the U.S. Court of Appeals for the Tenth Circuit. The Tenth Circuit granted the NCAA’s request and stayed the district court’s restraining order.

The instant court said the concern about inconsistent rulings was real. There was a danger here that the players, if denied relief in the instant matter, would try to argue they were members of the Wisne class. The court said it indeed viewed the players as members of the Wisne class. However, it declined to exercise its discretion to delay ruling on the instant TRO motion because of the current posture of the Wisne class. It was likely the Tenth Circuit Court of Appeals would soon rule on the merits of the NCAA appeal from the TRO in that matter.

Antitrust claim. The court held the players had no reasonable likelihood of success on their Section 1 Sherman Act claim because, even at this early stage in the proceedings, they failed to define a convincing relevant market with reference to data.

The players, in a quantitative microeconomist’s declaration in support of their motion, defined the market as the “nationwide market for athletes in Division I sports” and relied on Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 93 (2021). The NCAA disputed whether the plaintiffs carried their burden on market definition as lifted from Alston. Second, and more importantly, the NCAA contested whether the declaration provided enough information and data to support the players’ asserted market definition.

The court agreed with the NCAA on both points. As the NCAA correctly noted, the Supreme Court never reviewed the district court market definition in Alston. Furthermore, as the NCAA also noted, several circuit courts have rejected district court findings that relied on Alston to define the relevant labor market. Last, the district court in Alston defined the market after a 10-day bench trial based on expert and lay testimony and volumes of evidence.

The court also agreed with the NCAA’s next argument that the economist’s declaration was not a “fact-specific assessment” of market power and structure. The NCAA noted that the economist lifted the definition from Alston, had not applied quantitative tools like the small but significant and non-transitory increase in price (SSNIP) test, and failed to provide specifics on measurable prices like “revenue-sharing payments and NIL compensation.” The NCAA also argued that descriptive statistics about “Olympic participants, NFL and NBA roster counts, and aggregate [professional league] draft possibilities” were not the same as showing that student-athletes would decline to substitute if Division I terms changed. Claiming that opportunities were scarce was not the same as saying student-athletes would not switch to other athletic opportunities if Division I terms changed. The court added that the substitution opportunities available for Division I basketball players at Providence College were nothing like those available to the Fairfield University women’s rowing team.

The court agreed with the NCAA that the economist’s declaration, while describing a helpful framework and relevant questions for defining the market, lacked the data to conclude that the market was NCAA Division I intercollegiate athletics, wherein each athlete participates in his or her specific sub-market. The economist did not provide specific data about name, image, and likeness (NIL) compensation or revenue sharing. His claim that the NCAA had all of the data did not move the court or excuse the data requirement where it appeared he and the players could have obtained some data from NIL collectives, schools, conferences, coaches, or known websites that report on this information and did not explain whether he had tried to collect it.

The court further analyzed that the economist’s declaration did not discuss substitutes. The NCAA had asked where athletes go when Division I terms worsen, yet the players did not answer that question.

Contract breach. The court said it was not convinced that the players were still subject to the NCAA Constitution and Bylaws such that they could be fairly considered intended third-party beneficiaries. Although courts have found student-athletes are intended third-party beneficiaries of the contractual relationship between the NCAA and its member instructions under the NCAA Constitution and Bylaws, the Amended Bylaw 12.6 establishing the “5-in-5” rule at issue became effective on August 1, 2026, when the players no longer had any remaining eligibility as student-athletes. The court reasoned here that they lacked standing to enforce a contractual right where they were not entitled to it.

In any event, the players had not established a likelihood of success on proving the NCAA breached the contract as to them. The players said the plain language of the rule meant they were still in the eligibility window because it did not contemplate an enrollment-year limitation or explicit exclusion of the high school class of 2022. The NCAA pressed that statutes are not applied retroactively, that its rule expressly stated an effective date of August 1, 2026, and that it publicized the rule in a way that explained it would not be retroactive because the 2026-27 cycle was already underway. The court found it compelling that there could be no breach of contract as long as the NCAA Division I Cabinet’s interpretations of Bylaw 12.6 were reasonable and consistent with public policy.

The court found, on the record so far, that the plaintiffs were unlikely to succeed in showing that the NCAA breached the contract with respect to the players or acted in any unreasonable manner when declining to allow the rule to benefit them retroactively.

The Case is No. 1:26-cv-00737-MRD-AEM.

Judge: DuBose, M.

Attorneys: Jeffrey M. Desisto (DeSisto Law LLC) for Derek Simpson. M. Hamza Chaudary (Adler Pollock & Sheehan PC) for National Collegiate Athletic Association.

Companies: National Collegiate Athletic Association

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