Antitrust Law Daily Wrap Up, ANTITRUST—W.D. Wis.: NCAA preliminarily enjoined from applying Five-Year Rule subpart to Wisconsin football player Nyzier Fourqurean, (Feb 7, 2025)

By Justin Marcus Smith, J.D.

The court took issue with the NCAA’s “wooden” application of its eligibility rules and exceptions where they probably impacted the larger market.

The federal district court in Madison, Wisconsin, has preliminarily enjoined the National Collegiate Athletic Association (NCAA) from enforcing its Five-Year Rule against Nyzier Fourqurean, a University of Wisconsin-Madison (UW) football player. The court found Fourqurean was likely to succeed on his Sherman Act claim against the NCAA and would suffer irreparable injury without injunctive relief. The court reasoned the NCAA’s failure to adopt and apply meaningful exceptions to the Five-Year Rule did not account for Fourqurean’s individual circumstances or provide a process that would have allowed him to apply for a waiver himself. The NCAA had less restrictive means to limit student-athlete eligibility so as to differentiate its sports product from professional football (Fourqurean v. National Collegiate Athletic Association, No. 3:25-cv-00068-wmc (W.D. Wis. Feb. 6 2025)).

Background. Fourqurean sought a preliminary injunction to stop the NCAA from enforcing a subpart of the so-called “Five-Year Rule” that would ordinarily limit him to playing four seasons of intercollegiate competition in any one sport. Fourqurean claimed the NCAA’s bylaws violated Section 1 of the Sherman Act and Wisconsin state laws.

Specific to Fourqurean, the COVID-19 pandemic caused the cancellation of his 2020-2021 football season at Grand Valley State University (GVSU), an NCAA Division II school, and Fourqurean apparently qualified for the NCAA approved a “season-of-competition waiver” for that season. Fourqurean also suffered bereavement when his father died in 2021 and other contextual circumstances. At stake now were hundreds of thousands of dollars in name, image, and likeness (NIL) money that Fourqurean might earn if the NCAA would allow him to continue playing football at UW in 2025, or else he could miss the February 7, 2025 deadline to declare for the NFL draft.

UW represented in its waiver application to the NCAA that Fourqurean’s 2021 snap count at GVSU equated to three full contests or less; his initial enrollment year was really the 2021 season due to the canceled 2020 season; and, his personal circumstances supported granting him a waiver. It was not clear whether UW asked the NCAA for a hardship waiver, but it cited circumstances beyond Fourqurean’s control under Article 12.8.1.7.1.1 and under the “totality of circumstances.”

The NCAA summarily denied the UW waiver on the basis that Fourqurean competed in 11 contests, including two post season contests, which exceeded the “legislated” limit. The NCAA provided contemporaneous communications about the waiver application and surrounding circumstances, for example, whether Fourqurean had met with a counselor after his father died. When UW informed NCAA that Fourqurean might seek injunctive relief, discussions among counsel ensued. UW has until the end of February 2025 to appeal the NCAA’s waiver denial. Fourqurean’s attorney explained that Fourqurean wants to stay at UW to take advantage of NIL opportunities and revenue sharing. In the meantime, Fourqurean is facing a February 7, 2025 deadline to declare for the NFL draft.

Likelihood of success. The court opined that Fourqurean had a strong likelihood of success on his claim under Section 1 of the Sherman Act, 15 U.S.C. § 1. The court distinguished that Section I prohibits agreements that unduly restrain trade (emphasis included), and since Alston, “no one can reasonably dispute that the NCAA and its members (like other associations of competitors) amount to a ‘combination, contract, or conspiracy.’” See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 85, 107 (affirming district court’s entry of a permanent injunction against the NCAA in a case brought under the Sherman Act).

Anticompetitive effect. Per Alston, the court applied the rule-of-reason framework to analyzing anticompetitive effects. The court said there was no need to define a relevant market because “the U.S. Supreme Court has already defined it.” NCAA Division I is the relevant market for elite college football. Even if that market is narrowing due to the amount and concentration of money at the top schools, the court said the NCAA and its member schools have the power to restrain student-athlete eligibility, however they wish, and without diminishing their market dominance for college sports. The court continued that they have monopsony power over student athletes who have no other outlet for their labor.

The court said the real issue was whether Fourqurean offered proof of substantial anticompetitive effect in connection with NCAA denial of an additional year of college eligibility. Fourqurean did not present any direct evidence, but Alston held that any restraint would harm competition. In the court’s view, anticompetitive effect was apparent. The court noted that the NCAA itself acknowledged its power in establishing exceptions to the Five-Year Rule.

The court acknowledged that the NCAA “rightly” pointed out the rule did not necessarily reduce roster spots in a way that would reduce total tuition and attendance benefits for all athletes, but even so, the NCAA fundamentally changed the dynamic when it allowed potentially life-changing NIL compensation. The court reasoned that NCAA eligibility rules probably depress competition for roster spots, and by extension, player NIL earnings, by categorically excluding athletes after four seasons of competition, when NIL compensation is likely to be greatest. The court essentially concluded it was logically evident that the Five-Year Rule has an anticompetitive effect.

Procompetitive effect. The court acknowledged the NCAA offered a legitimate, procompetitive rationale for tying academic progress to its eligibility restraints on competition. The court accepted, as the NCAA’s economic expert suggested, that fan interest may be partly based on alignment with standard collegiate progression.

However, the final question in the rule-of-reason analysis was whether that procompetitive benefit could be had by less anticompetitive means. The court said it would not hold, based on the record before it, that the NCAA must achieve its procompetitive interest in differentiating college football from professional football by uniformly allowing more eligibility. Tying eligibility to academic progress over four seasons made sense if the NCAA’s goal was to offer a student-athlete product, but the court said it would still require meaningful exceptions. UW data showed that about 75 percent of college students graduate in about four years. Allowing five seasons of play would be less restrictive without sacrificing much product differentiation, and news reports suggested the NCAA is considering allowing five seasons of competition. Five seasons might be less restrictive, but the Sherman Act might require something else. Tolling an athlete’s eligibility clock until Division I registration, as Fourqurean proposed, appeared unworkable because students might stretch that out over eight years, arguably ending any distinction between college and professional football.

Although the court would not require the NCAA to scrap its Five-Year Rule at this juncture, the court noted “blatant inequity” in current exceptions that “plainly” favor the “more powerful Division I programs over their Division II counterparts.” Division I football players can play four games, rather than three, plus any additional post-season games, without using up a season of eligibility. That makes Division I more attractive.

Although the rule difference was not squarely on-point in this case, because Fourqurean played 11 games in 2021, the “ongoing inequities” helped frame his request for an additional season of eligibility. The “circumstances beyond control” exception also did not appear to apply to Fourqurean’s case, because it applied to inability to participate, whereas Fourqurean participated in 2021; however, the court said that should not have been fatal. First, the waiver process itself appeared to be problematic in that only UW could apply for a waiver, not Fourqurean himself. That further restricted marketability. Second, the court said there should be a meaningful exception for athletes like Fourqurean that participate under difficult circumstances. Fourqurean participated while bereaved, his coach said he was forced into playing despite being unready, and he had a low total snap count. He also started at a Division II school where he did not have the option of playing four-plus games while preserving a year of eligibility. Last, the NCAA’s summary denial of the UW waiver application, even though the NCAA left room to present more evidence, underscored the need for more meaningful exceptions to avoid needless antitrust injury without procompetitive justification.

Antitrust injury. The NCAA argued that Fourqurean only alleged an individual injury based on his own personal circumstances, but the court disagreed that it was not enough to support an antitrust injury. Although it would have been better if Fourqurean had provided other examples of waiver denials, the court felt satisfied that the NCAA’s apparently “wooden” application of its eligibility rules and exceptions probably impacted the larger market.

Irreparable harm. The court said it was troubled that Fourqurean sought a “last-minute” preliminary injunction such that he might miss the February 7, 2025 deadline to declare for the NFL draft, but even so, he remained in an “uncertain limbo that this court cannot cure.” The court remarked that delay is only one factor in assessing whether a plaintiff has shown irreparable harm. The court agreed that at least a portion of the harm would be “too speculative to assign a monetary value” so it was likely to be irreparable.

Legal remedies. Although money damages might cure some missed NIL opportunities, the court found them likely insufficient or too speculative.

Balanced interests. The court held the balance of equities and public interest weighed in favor of an injunction. It would not enjoin defendant’s Five-Year Rule altogether, so it would not cause a flood of litigation the NCAA feared.

The Case is No. 3:25-cv-00068-wmc.

Judge: Conley, W.

Attorneys: Michael Patrick Crooks (Von Briesen & Roper, S.C.) for Nyzier Fourqurean. Kate Gehl (Foley & Lardner LLP) for National Collegiate Athletic Association.

Companies: National Collegiate Athletic Association

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