Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—D. Nev.: NCAA five-year rule strictly commercial and subject to Sherman Act, (Sep 22, 2025)

By Justin Marcus Smith, J.D.

“This is now a labor market with compensated workers.”

In yet another antitrust challenge to the National Collegiate Athletic Association (NCAA) so-called “Five Year Rule” (FYR), the federal district court in Las Vegas held the rule a likely undue restraint on a relevant input labor market for competitive college football services. The court based its holding on a determination that the NCAA has monopsony power in that market. The court said Division I is an exclusive market with schools simultaneously colluding and competing in concert through the NCAA as the sole arbiter of participation through bylaw horizontal agreements. A quick look was all that was necessary to find anticompetitive effect under the rule of reason. Having found the Winter factors weighed strongly in Martinson’s favor, the court enjoined the NCAA from enforcing the FYR against him. The court pointedly eviscerated various NCAA contentions, including the contention that Division I football is unique, and its procompetitive justifications (Martinson v. National Collegiate Athletic Association, No. 2:25-cv-01376-RFB-DJA (D. Nev. Sept. 18, 2025)).

Background. In July 2025, Martinson filed a complaint for declaratory and injunctive relief and damages against the NCAA. Martinson asserted claims for violation of Section I of the Sherman Antitrust Act and breach of contract. Two days later, he filed the instant motion for a temporary restraining order or preliminary injunction. The court found reason to expedite the motion and ordered service on the NCAA with a briefing schedule. The NCAA opposed, and Martinson replied.

Martinson, a defensive lineman on UNLV’s football team, initially attended a two year junior college (JUCO) from 2019 to 2021. He played JUCO football for two full seasons. As in many of these suits, the COVID-19 pandemic disrupted seasonal play. In 2021, after his second JUCO season, the parties agreed to a “walk-on” Division I football position at UNLV. During the 2022 season, Martinson “red-shirted” under NCAA bylaw 12.8.3.1.6 allowing football players to play up to four games per season without losing a season of eligibility.

In 2023 and 2024, Martinson competed for two full seasons and earned a full athletic scholarship for a master’s degree as well as play for the 2025-2026 season. However, the NCAA declared him ineligible under the FYR. UNLV filed a waiver request, the NCAA denied it, and UNLV appealed to no avail.

Since being declared ineligible, Martinson said he lost one NIL opportunity for a video game, an opportunity contingent on his eligibility the 2025-2026 season.

The court held a hearing and initially entered a minute order granting a preliminary injunction on the ground that the University of Nevada, Las Vegas (UNLV) would only hold Martinson’s spot on its football team for the next day or two. The court expanded on its minute order in a written opinion.

Hybrid injunction. As an initial matter, the NCAA asserted Martinson sought a mandatory injunction, but the court analyzed he asked for hybrid mandatory and prohibitive relief. The court reasoned that Martinson’s request to enjoin enforcement of the FYR altered the status quo because the existing FYR rule existed from when Martinson first began playing Division I football. That pointed to taking action and therefore mandatory relief, but the court analyzed further the relief requested did not require the NCAA to take an affirmative action. Instead, it would prohibit the NCAA from preventing UNLV from keeping Martinson on the UNLV roster for the 2025-2026 season.

The court noted how Pavia v. NCAA, Civ. No. 24-01336, 2024 WL 5159888 (M.D. Tenn. Dec. 18, 2024) already enjoined the NCAA from an enforcement of the FYR. The Pavia injunction prohibited the NCAA from counting Pavia’s year at a JUCO to bar his competition during a fourth season of Division I play. The NCAA Division I Board of Directors granted a waiver to all students similarly situated granting an additional season of competition to former JUCO athletes provided they have not exhausted the five-year eligibility clock.

Given the developments following Pavia, the court said it was difficult to see what “affirmative action” an injunction here would require the NCAA to take. The court found Martinson satisfied the standard for a mandatory injunction because the law and facts clearly favored his position, but it was not clear the standard should be as exacting as the NCCA argued.

Likely success. Turning to the Winter factors, the court crucially held that Martinson had a likelihood of success on the merits because the FYR has become an essentially commercial rule. See Winter v. Nat. Res. Def. Council, Inc., 550 U.S. 7 (2008). The court diverged from both O’Bannon and Alston on the basis that the analysis of the NCAA bylaws in those cases “did not and could not” account for the explosion of NIL compensation since Alston.See O'Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1066 (9th Cir. 2015); NCAA v. Alston, 594 U.S. 69 (2021).

In addition, schools can now pay students directly for their athletic competition services. Accordingly, the court said it is no longer tenable to argue that the FYR is non-commercial. The court cited other very recent cases. See, e.g., Braham v. Nat’l Collegiate Athletic Ass’n, No. 3:25-CV-00253-MMD-CSD, 2025 WL 2017162 at *5 (D. Nev. July 18, 2025); Robinson v. Nat’l Collegiate Athletic Ass’n, No. 1:25-cv-00075-JPB (N.D. W. Va. Aug 20, 2025).

The court continued that it rejected any insistence that there should be any NCAA exemption from antitrust eligibility rules based on the uniqueness of college sports, and especially not on the basis that athletes are in any sense unpaid amateurs.

Relevant market. The court found Martinson defined two relevant markets in the U.S.: (1) an input labor market for competitive college football services; and (2) an output product market for competitive college football events. Inasmuch as Martinson primarily alleged antitrust injury from NCAA monopsony in the input market, the court focused on that.

The court analyzed that the NCAA has exclusive power over the buyer side of the market for competitive football players’ athletic services. Alston already found monopsony power, which has only become more certain inasmuch as NCAA Division I sports account for about 99% of NIL opportunities, and NCAA members now recruit by providing student athletes with direct compensation. Division I is an exclusive market with schools simultaneously colluding and competing in concert through the NCAA as the sole arbiter of participation through bylaw horizontal agreements.

The court said expert analysis was not necessary to properly define this market. JUCO and the NFL are not plausible substitute buyers, especially not after NCAA protests that Division I athletics are a unique product that had to be preserved as distinct from JUCO and NFL athletics.

Rule of reason. Turning to rule of reason analysis, the court found first that Martinson met his burden to establish the FYR has substantial anticompetitive effect on the labor market for competitive college football services. A quick look analysis was sufficient given the NCAA’s uncontested monopsony power and the FYR horizontal agreement to exclude former JUCO athletes like Martinson. The horizontal agreements disputed here were an even more direct restraint on trade than the compensation rules Alston addressed. In the court’s view, the FYR obviously limits who NCAA members can directly pay, creating recognized antitrust harms due to “categorical exclusion” of otherwise qualified workers by a monopsonist, including reduced labor market competition.

The harm here was also not speculative because the court found Martinson lost a NIL deal for a video game only due to his ineligibility for play in 2025-2026 due to the FYR. UNLV applied for a waiver, but the NCAA denied it, ultimately preventing UNLV from offering Martinson access to resources and benefits in exchange for his services.

As for the purported neutral effect of the FYR insofar as it simply operates to disqualify athletes with eligible ones replacing them, the court said that required an assumption of player fungibility with uniform compensation based on roster position. This case, with UNLV seeking a waiver, effectively disproved fungibility.

The FYR also did not harm just one individual. It excludes a category of otherwise qualified athletes (workers). A quick look was all that was required here. The court ruled the FYR works an anticompetitive distortion on the labor market for competitive college services.

Next, the court found the NCAA did not articulate procompetitive justifications for the FYR. The NCAA did not offer evidence that consumers think of college football events to be a “unique product” based on FYR differentiation from other competitive sports. Harm to JUCO athletes was not a benefit to consumers that could justify antitrust harm. Exceptions for military service and professional careers in sports also undercut the “unique” and “differentiated product” justifications.

The “expanding opportunities” justification also failed for multiple reasons. Among them, it ran afoul of the basic economic principle that greater labor market competition generally leads to better outcomes for workers.

As for synchrony with baccalaureate scholarship timing, that did not make sense in light of graduate student eligibility. The NCAA also did not explain why the “social good” aspect of encouraging student athletes to complete college and move on would be procompetitive. The court also found potential alternatives to achieving procompetitive effects with less anticompetitive means. For example, the bylaws themselves already require student-athletes to maintain progress toward a degree.

Irreparable harm. As already mentioned, the court found Martinson stands to suffer immediate and irreparable harm to video game NIL potential and a scholarship through 2025-2026 disqualification, and many courts have already found the loss of play opportunity to be irreparable. Martinson sought judicial relief promptly.

Balance of equities. In the balance of equities, the court rejected the NCAA argument that injunctive relief would adversely affect other student-athletes who will purportedly lose their roster slots to Martinson and other JUCO student-athletes. It failed to address antitrust harm at issue, i.e., reduced competition arising from the different treatment of JUCO athletes under the FYR. In contrast, again, Martinson would suffer immediate and irreparable harm.

The court also agreed with Martinson and other courts that enjoining anticompetitive eligibility rules would serve the compelling public interest of promoting participation and competition in the competitive college football services labor market.

Rule of restitution. As for the rule of restitution, the court found the NCAA had to be prevented from punishing Martinson for obtaining judicial relief. The court deemed the rule a measure to inhibit court access.

No bond. The court did not find a bond necessary in this instance. The court accepted Martinson’s representation the injunction would not cause the NCAA any costs or damages.

The Case is No. 2:25-cv-01376-RFB-DJA.

Judge: Boulware, R.

Attorneys: Gregg E. Clifton (Lewis Brisbois Bisgaard & Smith) for Tatuo Martinson. Ben Kappelman (Dorsey & Whitney) for National Collegiate Athletic Association.

Companies: National Collegiate Athletic Association

Cases: CoverageLiability TortClaims RemediesDamages Procedure NevadaNews