Nyzier Fourqurean v. NCAA

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 25-1187

NYZIER FOURQUREAN,

Plaintiff-Appellee,

v.

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 25-cv-68 — William M. Conley, Judge.

____________________

ARGUED MAY 28, 2025 — DECIDED JULY 16, 2025

____________________

Before RIPPLE, ST. EVE, and KOLAR, Circuit Judges.

ST. EVE, Circuit Judge. Nyzier Fourqurean, a member of the

University of Wisconsin-Madison (“UW-Madison”)’s football

team, contends that the National Collegiate Athletic Associa-

tion (“NCAA”) has unreasonably restrained trade, in viola-

tion of § 1 of the Sherman Act, by restricting student-athletes

to four seasons of intercollegiate competition per sport—an

aspect of the NCAA’s Five-Year Rule. He sought, and the

2 No. 25-1187

district court granted, a preliminary injunction enjoining the

NCAA from enforcing its Five-Year Rule to prevent him from

playing a fifth season of college football.

The district court reasoned that the Supreme Court’s deci-

sion in NCAA v. Alston, 594 U.S. 69 (2021), established that

men’s NCAA Division I Football Bowl Subdivision (“FBS”)

football is a relevant market, and because the Five-Year Rule

excludes Fourqurean from this market, it has likely anticom-

petitive effects. The court thus concluded that Fourqurean is

likely to succeed on the merits of his § 1 claim.

Market definition, however, was not at issue in Alston.

Fourqurean must independently define the relevant market,

which he has not attempted to do. Furthermore, even if men’s

NCAA Division I FBS football is the relevant market, Four-

qurean’s exclusion from this market alone does not suffice to

show likely anticompetitive effects. At this stage of the litiga-

tion, Fourqurean has therefore failed to meet his burden of

establishing some likelihood that he will prevail on the merits

of his § 1 claim, and the district court should not have granted

his motion for a preliminary injunction.

I. Background

An effort among Harvard, Princeton, and Yale to reduce

violence in college football through rule adjustments led to

the creation of the NCAA in 1905. Alston, 594 U.S. at 75–76.

Since then, the NCAA’s membership and responsibilities

have grown, turning the NCAA into a “sprawling enterprise.”

Id. at 79. Its membership comprises about 1,100 schools. Id.

And the NCAA has adopted a “thicket” of bylaws governing

not only playing rules but also eligibility to play and compen-

sation, among other aspects of college sports. Id.

No. 25-1187 3

The NCAA has long defended its bylaws against Sherman

Act § 1 challenges on the ground that they do not regulate

commercial transactions, so § 1, which prohibits agreements

“in restraint of trade or commerce,” 15 U.S.C. § 1, does not

apply. This argument has met mixed success in the appellate

courts. Compare Bassett v. NCAA, 528 F.3d 426, 433 (6th Cir.

2008) (reasoning that rules combatting commercialism in col-

lege sports by restricting payments to athletic recruits are not

restraints on “commerce”); Smith v. NCAA, 139 F.3d 180, 185–

86 (3d Cir. 1998) (holding that the Sherman Act does not apply

to “the NCAA’s promulgation of eligibility requirements” be-

cause they “primarily seek to ensure fair competition in inter-

collegiate athletics”), vacated on other grounds by NCAA v.

Smith, 525 U.S. 459 (1999), with O’Bannon v. NCAA, 802 F.3d

1049, 1066 (9th Cir. 2015) (holding that the NCAA’s compen-

sation bylaws fall within the ambit of the Sherman Act). Our

court flatly rejected this argument in Agnew v. NCAA, 683 F.3d

328, 340–41 (7th Cir. 2012) (holding that “the Sherman Act ap-

plies to the NCAA bylaws generally”).

Alternatively, the NCAA has argued that its bylaws sur-

vive scrutiny under § 1 of the Sherman Act because they are

necessary to create the product of college sports. In its seminal

case applying the Sherman Act to the NCAA, NCAA v. Board

of Regents of the University of Oklahoma, 468 U.S. 85 (1984), the

Supreme Court rejected this argument as a justification for the

NCAA’s restrictions on televising college football games. The

Court held that these restrictions were unnecessary to market

college sports or maintain competitive balance, and ulti-

mately that they violated § 1. Id. at 113–15, 117–19. Along the

way to reaching its holding in Board of Regents, the Court dis-

tinguished restrictions on televising football games from rules

that help maintain the “revered tradition of amateurism in

4 No. 25-1187

college sports” or “the preservation of the student-athlete in

higher education,” id. at 120.

After Board of Regents, rising revenue from college basket-

ball and football, alongside looser restrictions on the benefits

NCAA member schools could provide to student-athletes,

put increasing pressure on the NCAA’s arguments that re-

strictions on student-athlete compensation were not commer-

cial in nature or that the promotion of amateurism in college

sports justified them. See Alston, 594 U.S. at 93 (noting these

changes in market realities). These circumstances eventually

led to the Supreme Court’s watershed Alston decision.

In 2014, current and former student-athletes who played

NCAA basketball and football filed a class action against the

NCAA and several of its conferences challenging the NCAA’s

student-athlete compensation framework. After years of liti-

gation and a bench trial, a district court agreed that NCAA

limits on education-related compensation or benefits violated

the Sherman Act, and it enjoined those limits. See id. at 80, 84–

85. Both sides appealed to the Ninth Circuit, which affirmed.

See id. at 85–86. Only the NCAA appealed to the Supreme

Court, which in 2021 also affirmed. Id. at 86, 107.

The Alston Court rejected both a request by the NCAA for

“special dispensation from the Sherman Act on the ground

that” the NCAA “seeks to maintain amateurism in college

sports as part of serving the societally important non-com-

mercial objective of higher education,” id. at 94–96 (citation

modified); and two versions of the argument that its bylaws

are necessary to produce college sports, id. at 90–91, 101–02;

see also id. at 109–110 (Kavanaugh, J., concurring).

No. 25-1187 5

Alston paved the way for significant changes in student-

athlete compensation—far beyond the direct effect of the Al-

ston ruling, which concerned only education-related compen-

sation and benefits. Indeed, shortly after oral argument in this

appeal, in a trio of antitrust cases against the NCAA and sev-

eral of its conferences, a district court granted final approval

for a settlement that permits the NCAA’s member schools to

directly pay student-athletes for the first time. In re Coll. Ath-

lete NIL Litig., No. 20-CV-03919 CW, 2025 WL 1675820 (N.D.

Cal. June 6, 2025). Under a new revenue sharing model estab-

lished as part of the settlement, each NCAA Division I mem-

ber school party to the settlement can distribute about $20 mil-

lion in name, image and likeness (“NIL”) revenue to student-

athletes over the 2025–26 season. Id. at *18.

In addition, Alston emboldened plaintiffs to challenge not

just NCAA bylaws regulating compensation but also those

concerning eligibility. A coalition of states filed suit against

the NCAA in 2023, challenging the NCAA’s transfer eligibil-

ity rule, which required students-athletes who transfer more

than once to sit out one year of competition. The parties ulti-

mately resolved the case through a settlement permanently

barring restrictions on transfer eligibility. Ohio et al. v. NCAA,

No. 1:23-cv-00100 (N.D. W.V. final judgment and permanent

injunction entered Aug. 30, 2024).

More recently, some student-athletes have challenged as-

pects of the NCAA’s “Five-Year Rule,” which restricts stu-

dent-athletes to four seasons of competition in any one sport

within a five-year window. See Elad v. NCAA, No. CV 25-1981,

2025 WL 1202014 (D.N.J. Apr. 25, 2025) (granting a prelimi-

nary injunction allowing the plaintiff additional eligibility);

Pavia v. NCAA, 760 F. Supp. 3d 527 (M.D. Tenn. 2024) (same).

6 No. 25-1187

But see Goldstein v. NCAA, No. 3:25-CV-00027-TES, 2025 WL

662809 (M.D. Ga. Feb. 28, 2025) (rejecting a request for a pre-

liminary injunction). Fourqurean, too, challenges an aspect of

this rule. He has already played four seasons of college foot-

ball: two seasons at Grand Valley State University (“GVSU”),

in the NCAA’s Division II, and two seasons at UW-Madison,

in the NCAA’s Division I. He graduated from UW-Madison

with a bachelor’s degree in December 2024, but he would like

to play another season at UW-Madison—in part to profit from

the new revenue-sharing opportunities created by the settle-

ment in In re College Athlete NIL Litigation.

The NCAA’s Five-Year Rule stands in his way. So in De-

cember 2024, UW-Madison filed a request with the NCAA on

behalf of Fourqurean for a waiver of the Five-Year Rule, citing

circumstances present during his first season: the fewer total

snaps Fourqurean completed in this season relative to later

seasons, the lack of roster depth, team injuries, blow-out vic-

tories, and the death of his father. The NCAA denied Four-

qurean’s waiver request in January 2025, and Fourqurean re-

sponded by immediately filing this suit.

Fourqurean argues that the Five-Year Rule constitutes an

illegal restraint of trade or commerce under § 1 of the Sher-

man Act because it prevents student-athletes like Fourqurean

from competing in NCAA Division I football. Along with his

complaint, Fourqurean filed a motion under Federal Rule of

Civil Procedure 65 for a preliminary injunction enjoining the

NCAA from enforcing its Five-Year Rule. Fourqurean sought

a ruling on this motion by February 7, 2025, the deadline to

declare for the National Football League (“NFL”) draft.

On February 6, 2025, after briefing and a preliminary in-

junction hearing, the district court concluded that Fourqurean

No. 25-1187 7

had shown a likelihood of success on the merits of his Sher-

man Act claim. To reach this conclusion, the court relied on

Alston and the “trend in the law since Alston.” Fourqurean v.

NCAA, 771 F. Supp. 3d 1043, 1050 (W.D. Wis. 2025). The court

reasoned that Fourqurean did not need to define the relevant

market because the “Supreme Court had already defined it”

in Alston as men’s Division I football—and under Alston, per

the court, the NCAA and its members enjoy monopsony

power in this market. Id. at 1051. In the court’s view, the

NCAA’s monopsony power, combined with Fourqurean’s ev-

idence that the Five-Year Rule excludes student-athletes from

playing college football after four seasons of competition,

“when their marketability for NIL income is more likely than

not to be at its apex,” sufficed to establish that the Five-Year

Rule has an anticompetitive effect. Id. at 1052.

The district court agreed with the NCAA that the Five-

Year Rule also has a procompetitive benefit by “linking a stu-

dent-athlete’s college athletic career to ordinary degree pro-

gression,” which “differentiates NCAA Division I football

from professional football leagues like the NFL.” Id. But the

court concluded that the NCAA could achieve this benefit

with a less anticompetitive means: a Five-Year Rule with

“meaningful exceptions . . . to avoid unfairness to student-ath-

letes whose individual circumstances may justify a depar-

ture….” Id. at 1054. After evaluating the other requirements

for a preliminary injunction, the district court granted a pre-

liminary injunction enjoining the NCAA from enforcing its

Five-Year Rule against Fourqurean “absent a more meaning-

ful demonstration that exceptions to that rule should not ap-

ply to [his] requested, additional season of eligibility given

the unique circumstances surrounding his 2021–2022 season

at Division II GVSU.” Id. at 1058–59.

8 No. 25-1187

The NCAA appealed the preliminary injunction, invoking

our appellate jurisdiction under 28 U.S.C § 1292(a)(1).

II. Discussion

“A preliminary injunction is an extraordinary remedy

never awarded as of right.” Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 24 (2008). To secure a preliminary injunction,

a plaintiff “must establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in the ab-

sence of preliminary relief, that the balance of equities tips in

his favor, and that an injunction is in the public interest.” Id.

at 20. In evaluating the merits element, courts “approach the

record from a neutral and objective viewpoint, assessing the

merits as … they are likely to be decided after more complete

discovery and litigation.” Doe v. Univ. of S. Indiana, 43 F.4th

784, 792 (7th Cir. 2022). This approach differs significantly

from the approach at the motion to dismiss stage or the sum-

mary judgment stage. See id. at 791 (at the preliminary injunc-

tion stage, a court does not accept the plaintiff’s allegations as

true, nor give him the benefit of all reasonable inferences, nor

give him the benefit of conflicting evidence).

In an appeal from a grant of a preliminary injunction, we

review the district court’s legal conclusions de novo, its fac-

tual findings for clear error, and its balancing of the equities

for an abuse of discretion. Id. We start and end our analysis

here with Fourqurean’s likelihood of success on the merits.

Fourqurean claims that the NCAA’s Five-Year Rule vio-

lates the Sherman Act’s prohibition on agreements “in re-

straint of trade or commerce….” 15 U.S.C. § 1. The Supreme

Court “has ‘long recognized that in view of the common law

and the law in this country when the Sherman Act was

No. 25-1187 9

passed, the phrase ‘restraint of trade’ is best read to mean ‘un-

due restraint.’” Alston, 594 U.S. at 81 (quoting Ohio v. Am. Ex-

press Co. (“Amex”), 585 U.S. 529, 540 (2018)); see also State Oil

Co. v. Khan, 522 U.S. 3, 10 (1997) (“[T]his Court has long rec-

ognized that Congress intended to outlaw only unreasonable

restraints.”). Whether a challenged restraint is undue or un-

reasonable for purposes of the Sherman Act depends on its

effect on competition, “especially its capacity to reduce out-

put and increase price.” Alston, 594 U.S. at 88; see also Cal. Den-

tal Ass’n v. FTC, 526 U.S. 756, 780 (1999) (identifying the “es-

sential” question in this context as “whether or not the chal-

lenged restraint enhances competition” (quoting Bd. of Re-

gents, 468 U.S. at 104)). The inquiry needed to make this de-

termination changes with “the circumstances, details, and

logic of a restraint.” Cal. Dental, 526 U.S. at 781.

A. Sherman Act Framework

Caselaw recognizes three Sherman Act frameworks: the

rule of reason, which the district court applied, “quick look”

analysis, and per se rules. “Determining whether a restraint is

undue for purposes of the Sherman Act ‘presumptively’ calls

for … ‘rule of reason analysis.’” Alston, 594 U.S. at 81 (quoting

Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006)). This analysis in-

volves a fact-specific assessment of “whether the challenged

agreement is one that promotes competition or one that sup-

presses competition.” Nat’l Soc. of Pro. Eng’rs v. United States,

435 U.S. 679, 691 (1978). To prevail under the rule of reason, a

plaintiff must offer evidence of anticompetitive effects.

Certain kinds of restraints, however, qualify as illegal per

se: agreements between two or more competitors to fix prices,

otherwise known as horizontal price-fixing agreements, see

Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647 (1980) (per

10 No. 25-1187

curium); market allocation, see United States v. Topco Assocs.,

Inc., 405 U.S. 596, 608 (1972); certain types of group boycotts

or concerted refusals to deal, see Nw. Wholesale Stationers v.

Pac. Stationery & Printing, 472 U.S. 284, 294–95 (1985); and

some kinds of tying arrangements, see Illinois Tool Works Inc.

v. Indep. Ink, Inc., 547 U.S. 28, 34–37 (2006).

When challenging a restraint that falls within one of these

per se categories, the plaintiff can establish a violation of § 1 of

the Sherman Act without evidence of anticompetitive effects

because the Supreme Court has deemed these restraints “so

plainly anticompetitive and so often lack any redeeming vir-

tue that they are conclusively presumed illegal....” Broad. Mu-

sic, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 7–8 (1979) (ci-

tation modified); see also Car Carriers, Inc. v. Ford Motor Co., 745

F.2d 1101, 1108 (7th Cir. 1984), abrogated on other grounds by

Schmees v. HC1.COM, Inc., 77 F.4th 483 (7th Cir. 2023) (ex-

plaining that “when the plaintiff adequately states a per se vi-

olation of § 1 of the Sherman Act,” “an allegation of anticom-

petitive effects is not required” because “conduct constituting

a per se violation is viewed by the law as so inimical to free

competition that the pernicious effects are conclusively pre-

sumed; stated in another manner, per se violations of the anti-

trust laws are anticompetitive by definition”); Havoco of Am.,

Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980) (same).

Between the rule of reason and per se rules, an abbreviated

or “quick-look” analysis may suffice when the anticompeti-

tive or procompetitive effects of a restraint are sufficiently ob-

vious—but the restraint does not fall neatly within a per se il-

legal category. On one side, an “abbreviated or ‘quick-look’

analysis” may be appropriate when “an observer with even a

rudimentary understanding of economics could conclude

No. 25-1187 11

that the arrangements in question would have an anticompet-

itive effect on customers and markets.” California Dental, 526

U.S. at 770. On the flip side, “some restraints may be so obvi-

ously incapable of harming competition” that a court can ap-

prove the restraints in the “twinkling of an eye.” Alston, 594

U.S. at 88 (quoting Bd. of Regents, 468 U.S. at 110 n.39).

Both parties nominally agree that ordinary rule of reason

analysis applies in this case. Fourqurean agreed at oral argu-

ment, and the NCAA ‘s brief noted, “the rule of reason stand-

ard … applies here.” At the same time, however, the NCAA

argues that its eligibility bylaws should be considered pre-

sumptively procompetitive, which amounts to an argument

for quick-look approval, not the rule of reason.

In Alston, the Supreme Court left open the possibility that

“restraints necessary to produce a game,” such as agreements

“on things like how many players may be on the field or the

time allotted for play,” might qualify for quick-look approval.

594 U.S. at 90–91 (citation modified). In this case, the NCAA

does not argue that the Five-Year Rule is necessary to produce

a game in the same way as rules about the number of players

on the field or playing time. Rather, the NCAA makes the sub-

tly different argument that the Five-Year Rule is necessary to

produce “collegiate athletics.” In support of this argument,

the NCAA relies on our comment in Agnew that eligibility by-

laws “define what it means to be an amateur or a student-ath-

lete, and are therefore essential to the very existence of the

product of college football.” 683 F.3d at 343.

The NCAA relies too heavily on Agnew. Eligibility bylaws

were not at issue in Agnew, which concerned compensation

bylaws. In that case, prior to Alston, we interpreted language

in Board of Regents as “a license to find” a presumption of

12 No. 25-1187

procompetitiveness in favor of NCAA bylaws “clearly meant

to help maintain the ‘revered tradition of amateurism in col-

lege sports’ or the ‘preservation of the student-athlete in

higher education’….” Id. at 341–43 (quoting Bd. of Regents, 468

U.S. at 120). We reasoned that this category included eligibil-

ity bylaws—but not the compensation bylaws actually at is-

sue in Agnew. Id. at 343–45. That is, Agnew discussed eligibility

bylaws only as a foil for compensation bylaws. In this context,

while Agnew may suggest that courts should consider the spe-

cific characteristics of different NCAA bylaws when assessing

competitive effects, Agnew does not resolve whether eligibil-

ity bylaws are necessary to produce college football—or what

other procompetitive benefits they may have.

Furthermore, to the extent the NCAA is attempting to “re-

label [the Five-Year Rule] as a product feature and declare [it]

‘immune from § 1 scrutiny,’” Alston, 594 U.S. at 101 (quoting

Am. Needle, Inc. v. NFL, 560 U.S. 183, 199 n.7 (2010)), the Su-

preme Court already rejected this type of maneuver in Alston,

id. The key question for determining whether the Five-Year

Rule is so incapable of harming competition so as to justify

quick-look approval is whether college football can proceed

without this rule. See id. at 91. The NCAA has not offered any

argument or evidence that its member schools would disband

their football teams if the NCAA eliminated this rule.

Accordingly, the district court properly applied the rule of

reason—and we, too, apply the rule of reason here.

B. Likelihood of Success on the Merits

As evidence of anticompetitive effects from the NCAA’s

Five-Year Rule, Fourqurean offers his own exclusion from

participating in college football. The Sherman Act does not

No. 25-1187 13

condemn all agreements that exclude competitors. See Nw.

Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472

U.S. 284, 289, 295–98 (1985) (concluding that the expulsion of

Pacific Stationery and Printing Co. from a cooperative buying

group “was certainly a restraint of trade,” but the adverse ef-

fect on Pacific did not, on its own, establish a Sherman Act

violation); Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2,

26–31 (1984), abrogated on other grounds by Ill. Tool Works Inc. v.

Indep. Ink, Inc., 547 U.S. 28 (2006) (finding insufficient evidence

in the record to show that an exclusive contract between a

hospital and a group of anesthesiologists unreasonably re-

strained competition in violation of the Sherman Act, alt-

hough the contract prevented a non-affiliated anesthesiolo-

gist, the plaintiff, from providing anesthesia to his patients at

the hospital); Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d

380, 394 (7th Cir. 1984).

To decide whether an agreement that excludes competi-

tors unreasonably restrains trade or commerce in violation of

§ 1 the Sherman Act, we consider its potential to deprive the

public of the benefits of competition, especially competitive

prices, taking into account market power and market struc-

ture. See Alston, 594 U.S. at 88 (describing the rule of reason as

“‘a fact-specific assessment of market power and market

structure’ aimed at assessing the challenged restraint’s ‘actual

effect on competition’—especially its capacity to reduce out-

put and increase price” (quoting Amex, 584 U.S. at 541)); Apex

Hosiery Co. v. Leader, 310 U.S. 469, 500–01 (1940) (a restraint

does not violate § 1 “unless the restraint is shown to have or

is intended to have an effect upon prices in the market or oth-

erwise to deprive purchasers or consumers of the advantages

which they derive from free competition”).

14 No. 25-1187

For restraints that exclude competitors, including exclu-

sive dealing agreements and group boycotts, the usual anti-

trust concern is that the parties to the agreement are trying to

create, protect, or enhance a dominant position in the market.

See United States v. Dentsply Int'l, Inc., 399 F.3d 181, 191 (3d

Cir. 2005) (artificial teeth manufacturer’s exclusivity policy

with dealers helped keep “sales of competing teeth below the

critical level necessary for any rival to pose a real threat to [the

manufacturer’s] market share”); Fashion Originators' Guild of

Am. v. FTC, 312 U.S. 457, 461–62, 466–68 (1941) (clothing de-

signers’ refusal to sell to retailers who also purchased clothing

from manufacturers of knockoffs of clothing designs operated

to exclude those manufacturers from the market). A dominant

position can confer market power, or the ability to set prices

and output (e.g., an employer’s ability to depress wages be-

low the competitive level). See Alston, 594 U.S. at 86.

One of the cases the dissent cites, Radovich v. NFL, 352 U.S.

445 (1957), involved such a theory. The Radovich plaintiff, a

football player in the now-defunct All-America Conference,

alleged that his blacklisting by the NFL was part of a conspir-

acy by the NFL’s members to destroy the All-America Con-

ference “and thus to strengthen the monopolistic position of

the National Football League.” Id. at 449.

Fourqurean has made no effort to establish this theory of

anticompetitive effects. To prove a Sherman Act violation un-

der this theory, a plaintiff “must prove that [the agreement] is

likely to keep at least one significant competitor of the defend-

ant from doing business in a relevant market” and that “the

anticompetitive effects (if any) of the exclusion outweigh any

benefits to competition from it.” Roland, 749 F.2d at 394. The

threshold issues are the relevant market and the defendant’s

No. 25-1187 15

market share. See Prods. Liab. Ins. Agency, Inc. v. Crum & Forster

Ins. Cos., 682 F.2d 660, 644 (7th Cir. 1982). “[T]he relevant mar-

ket is defined as the area of effective competition,” which is

typically “the arena within which significant substitution in

consumption or production occurs.” Amex, 585 U.S. at 543 (ci-

tation modified). In the labor market context, as here, the mar-

ket is comprised of those employers seen by workers as rea-

sonably good substitutes. See Todd v. Exxon Corp., 275 F.3d

191, 202 (2d Cir. 2001) (discussing market definition in cases

involving buyer-side restraints challenged under § 1).

As an initial matter, Fourqurean relies entirely on Alston

to define the relevant market. In his and the district court’s

view, the Supreme Court in Alston established that men’s

NCAA Division I FBS football is a relevant market. But Four-

qurean overstates the scope of the Court’s ruling. The Alston

Court did not decide the question of market definition. In-

stead, it noted that the parties did not challenge the district

court’s definition of the relevant market as “the market for

athletic services in men’s and women’s Division I basketball

and FBS football” and “observ[ed] that the NCAA enjoys near

complete dominance of, and exercises monopsony power in,”

that market. Alston, 594 U.S. at 81 (citation modified).

We are also cognizant that “[w]hether an antitrust viola-

tion exists necessarily depends on a careful analysis of market

realities.” Id. at 93. The market realities for college sports have

changed in the four years since Alston. Indeed, Fourqurean

explains that he “would rather return to UW-Madison to play

Division I football” than declare for the NFL draft for reasons

including opportunities to profit from revenue sharing and

NIL—which did not exist pre-Alston.

16 No. 25-1187

Recognizing that Alston does not define the relevant mar-

ket in this case, the dissent turns to Fourqurean’s complaint.

In the dissent’s view, Fourqurean’s assertions that “[t]he

NCAA and its member institutions control the highest and

most popular level of collegiate athletics” and that the NCAA

“possesses a dominant position in the relevant market” are

sufficient to define the market and establish the NCAA’s mar-

ket power at the preliminary injunction stage. In support of

this view, the dissent cites cases concerning the standard to

survive a motion to dismiss. As these cases recognize, “courts

hesitate to grant motions to dismiss for failure to plead a rel-

evant … market” because “market definition is a deeply fact-

intensive inquiry….” Todd, 275 F.3d at 199–200; accord Newcal

Indus., Inc. v. Ikon Off. Sol., 513 F.3d 1038, 1045 (9th Cir. 2008).

The preliminary injunction inquiry, however, is a “decidedly

far more searching inquiry than the question of whether a

complaint properly alleges a claim for relief.” In re Fed. Bureau

of Prisons’ Execution Protocol Cases, 980 F.3d 123, 134 (D.C. Cir.

2020). We think that Fourqurean needs more than the sparse

and conclusory allegations the dissent identifies.

Even if men’s NCAA Division I FBS football is the relevant

market, Fourqurean has a more fundamental problem. To es-

tablish the theory of anticompetitive effects in cases such as

Dentsply, Fashion Originators’ Guild, and Radovich, Fourqurean

would need to show that the Five-Year Rule creates, protects,

or enhances the NCAA’s dominant position in the market—

and thus the NCAA’s ability to depress student-athlete com-

pensation below the competitive level—by making it more

difficult for the NCAA’s existing or potential rivals to com-

pete against the NCAA. But Fourqurean relies solely on his

own exclusion from participating in college football as proof

of anticompetitive effects. He is not a rival of the NCAA, and

No. 25-1187 17

he has not drawn a link from his exclusion to an adverse effect

on an existing or potential rival of the NCAA. Compare Fashion

Originators' Guild, 312 U.S. at 461–62, 466–68 (boycott of retail-

ers who sold knockoffs of clothing designs caused retailers to

stop carrying knockoffs, which impaired knockoff manufac-

turers’ ability to compete against Guild members).

The dissent concludes that the Five-Year Rule depresses

student-athlete compensation by pushing out the most expe-

rienced players (a different theory of anticompetitive effects).

Fourqurean has offered no evidence in support of this mech-

anism for depressing compensation. Under ordinary princi-

ples of supply and demand, a restraint that limits the supply

of workers in a labor market would increase, not decrease,

worker compensation. * The Five-Year Rule may operate dif-

ferently, but the record contains no evidence that would allow

us to draw that conclusion.

* A restraint that limits the supply of workers in a labor market is dis-

tinguishable from a restraint that limits the mobility of workers within a

labor market, such as a no-poach agreement. As this court recognized in

Nichols v. Spencer Int’l Press, Inc., 371 F.2d 332 (7th Cir. 1967), one of the

cases the dissent cites, no-poach agreements diminish competition among

employers for each other’s workers. See id. at 336–37. They “make it im-

possible for the participants to ‘steal’ an employee from a different em-

ployer by offering a better salary or other terms,” which can depress

worker compensation, in the same way that market division agreements

among producers or distributors can increase customer prices. Phillip E.

Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust

Principles and Their Application ¶ 2013a (5th ed. May 2025 Update). The

Five-Year Rule does not reduce competition among the NCAA’s member

schools for each other’s players. Rather, the Five-Year Rule forces member

schools to compete over a smaller pool of eligible players.

18 No. 25-1187

Given the dearth of evidence (or even allegations) of anti-

competitive effect offered by Fourqurean so far, he has failed

to show some likelihood that the Five-Year Rule constitutes

an unreasonable restraint of trade—and thus some likelihood

of success on the merits of his Sherman Act claim.

We do not exclude the possibility that on a fuller record,

Fourqurean will succeed in establishing his claim. We also

recognize that the 2025–26 college football season begins

soon. In this context, we encourage the parties and the district

court to expediate the coming litigation. While it is not our

prerogative to direct the parties how to proceed, we also note

that the NCAA’s bylaws allow the NCAA’s Committee for

Legislative Relief to grant “relief from application of NCAA

legislation to a particular situation in which no other entity

has the authority to act,” which appears to create some flexi-

bility for the NCAA to address the hardship to Fourqurean

that concerned the district court.

* * *

The judgment of the district court is

REVERSED.

No. 25-1187 19

RIPPLE, Circuit Judge, dissenting.

The panel reverses the district court’s grant of Mr. Four-

qurean’s motion for a preliminary injunction. Because, in my

view, Mr. Fourqurean plausibly alleges a relevant market in

which the NCAA has monopsony power and has engaged in

anticompetitive conduct not justified by procompetitive effi-

ciencies, I respectfully dissent.

I begin with the standard of review we employ when con-

sidering the grant of a preliminary injunction. I then assess

whether Mr. Fourqurean is likely to succeed on the merits of

his antitrust claim brought under § 1 of the Sherman Act. Fi-

nally, I turn to Mr. Fourqurean’s likelihood of suffering irrep-

arable harm.

I

A.

We review an appeal of a preliminary injunction for abuse

of discretion. See Lukaszczyk v. Cook County, 47 F.4th 587, 598

(7th Cir. 2022). “A district court abuses its discretion ‘when it

commits a clear error of fact or an error of law.’” Id. (quoting

Cassell v. Snyders, 990 F.3d 539, 545 (7th Cir. 2021)); see also Doe

v. Univ. of S. Indiana, 43 F.4th 784, 791 (7th Cir. 2022).

The concerns motivating deferential review are particu-

larly present here. “[S]ubstantial deference” is warranted

when we review district courts’ decisions on preliminary in-

junctions, “bearing in mind that the district judge had to act

in haste.” American Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780

F.2d 589, 594–95 (7th Cir. 1986); see also Roland Mach. Co. v.

Dresser Indus., Inc., 749 F.2d 380, 390 (7th Cir. 1984) (discuss-

ing thoroughly the standard of review for the grant of a pre-

liminary injunction); Abbott Labs. v. Mead Johnson & Co., 971

20 No. 25-1187

F.2d 6, 13 (7th Cir. 1992) (“[T]he district court’s ultimate

weighing of all four factors is entitled to great deference.”).

We are cognizant that “in dealing with the parties and their

witnesses and counsel in the hectic atmosphere of a prelimi-

nary-injunction proceeding the judge may have developed a

feel for the facts and the equities that remote appellate judges

cannot obtain from a transcript.” American Hosp. Supply Corp.,

780 F.2d at 595. “To reverse an order granting or denying a

preliminary injunction, therefore, it is not enough that we

think we would have acted differently in the district judge’s

shoes; we must have a strong conviction that he exceeded the

permissible bounds of judgment.” Id.

In Mr. Fourqurean’s case, time was especially of the es-

sence. He filed his complaint on January 29, 2025, the same

day that the NCAA denied his waiver request. The district

court entered its order granting a preliminary injunction on

February 6, 2025, the day before the deadline to enter the NFL

draft.

Additionally, when the grant of a preliminary injunction

is appealed, the Supreme Court counsels that we ought to

consider whether “the potential harms from reversing the in-

junction outweigh those of leaving it in place by mistake.”

Ashcroft v. ACLU, 542 U.S. 656, 670 (2004). Here, reversing the

injunction potentially deprives Mr. Fourqurean of a season of

collegiate play to which he may be entitled, at a time when he

can no longer enter the NFL draft and therefore has, as a prac-

tical matter, no other way of forwarding his football career. In

stark contrast, the NCAA has identified no harm it would suf-

fer were the injunction to stand.

No. 25-1187 21

B.

The parties (and all the judicial officers who have partici-

pated in this case) agree that Mr. Fourqurean’s claim should

be evaluated under the rule of reason. Mr. Fourqurean there-

fore bears “the initial burden to prove that the challenged re-

straint has a substantial anticompetitive effect” in the relevant

market. NCAA v. Alston, 594 U.S. 69, 96 (2021) (quoting Ohio

v. American Express Co., 585 U.S. 529, 541 (2018)). 1 If he suc-

ceeds, the burden shifts to the NCAA “to show a procompet-

itive rationale for the restraint.” Id. (quoting American Express

Co., 585 U.S. at 541). “If the defendant can make that showing,

‘the burden shifts back to the plaintiff to demonstrate that the

procompetitive efficiencies could be reasonably achieved

through less anticompetitive means.’” Id. at 96–97 (quoting

American Express Co., 585 U.S. at 542).

1.

I cannot accept my colleagues’ heavy reliance on the ex-

clusive dealing cases—cases that arise in a very different eco-

nomic ambiance from the rather complex present situation. In

my view, the analogy to exclusive dealing arrangements does

not reflect with the requisite precision the economic

1 The rule of reason requires a more nuanced investigation. Indeed, it is

this requirement that distinguishes this analytical tool from per se and

quick look analyses. See Jefferson Par. Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2,

28–32 (1984) (finding an exclusive contract was not illegal per se under the

Sherman Act and remanding for further proceedings), abrogated on other

grounds by Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006); Nw.

Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 295–

97 (1985) (finding that the expulsion of a member of a cooperative buying

group was not a “group boycott” and should be analyzed under the rule

of reason, not as a per se violation); Maj. Op. at 13.

22 No. 25-1187

arrangement before us. We are confronted, in essence, with a

competitive restriction on the labor market for football play-

ers in Division I of the NCAA. Therefore, the appropriate in-

quiry before us is whether the NCAA’s imposition of the Five-

Year Rule has an anticompetitive effect on the Division I foot-

ball labor market.

Mr. Fourqurean’s case is hardly the first time the judiciary

has been called upon to adjudicate the application of the pol-

icies embodied in the Nation’s antitrust laws to athletic labor

markets. For instance, in Radovich v. National Football League,

352 U.S. 445 (1957), the Supreme Court determined that a foot-

ball player’s antitrust claim challenging the legality of the

NFL’s blacklisting him from competing in affiliated leagues

was viable. See id. at 448, 453–54. We had occasion to interpret

Radovich in Nichols v. Spencer International Press, Inc., 371 F.2d

332 (7th Cir. 1967). We reasoned that Radovich’s claim was

viable because

the service supplied to the public by a profes-

sional football club was highly dependent upon

the ability of the players employed by the club,

and a black-listing agreement was, from the

point of view of the public, an impairment of

competition as to the quality of the service sup-

plied, even though, as between player and club

it is only a restriction on freedom to employ.

Id. at 336 (citation modified).

In Nichols, the plaintiff alleged that his former employer

entered into “no-switching” agreements with its rivals,

through which the competitors refused to hire each other’s

employees. Id. at 333. Nichols brought an antitrust action

No. 25-1187 23

challenging the agreements and seeking “damages resulting

from loss of opportunity for employment.” Id. We held that

Nichols had stated a cognizable antitrust claim and reasoned

that even though

the antitrust laws were not enacted for the pur-

pose of preserving freedom in the labor market,

nor of regulating employment practices as such,

nevertheless it seems clear that agreements

among supposed competitors not to employ

each other’s employees not only restrict free-

dom to enter into employment relationships,

but may also, depending upon the circum-

stances, impair full and free competition in the

supply of a service or commodity to the public.

Id. at 335–37; see also Phillip E. Areeda & Herbert Hovenkamp,

Antitrust Law: An Analysis of Antitrust Principles and Their Ap-

plication ¶ 352c, p.320 (5th ed. 2021) (“Antitrust law addresses

employer conspiracies controlling employment terms pre-

cisely because they tamper with the employment market and

thereby impair the opportunities of those who sell their ser-

vices there.”). 2

Accordingly, rather than considering whether a competi-

tor of the NCAA is kept from doing business, 3 we must

2 I cite Radovich v. National Football League, 352 U.S. 445 (1957), and Nichols

v. Spencer International Press, Inc., 371 F.2d 332 (7th Cir. 1967), only for the

proposition that labor markets properly may be the subject of scrutiny un-

der the antitrust laws of the United States.

3 This consideration was key in the exclusive dealing cases cited to support

the majority’s theory of anticompetitive conduct, United States v. Dentsply

24 No. 25-1187

instead determine whether the NCAA rule excludes

Mr. Fourqurean and other similarly situated athletes from

competing in the labor market of NCAA Division I football

and whether that exclusion reduces competition in that mar-

ket. See Agnew v. NCAA, 683 F.3d 328, 346 (7th Cir. 2012)

(“[L]abor markets are cognizable under the Sherman Act.”);

see also Smith v. Pro Football, Inc., 593 F.2d 1173, 1185 (D.C. Cir.

1978) (recognizing the “player-service market” and finding

the NFL draft “undeniably anticompetitive”). 4 By enacting

and enforcing its eligibility rules, the NCAA operates as an

organization of employers who are, in essence, forcing play-

ers out of the league in order to limit the labor market.

We need not spend a great deal of additional time on this

question. In Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012), we

indicated that identifying the relevant market as the “labor

market for student-athletes … would meet plaintiffs’ burden

of describing a cognizable market.” Id. at 346. In his com-

plaint, Mr. Fourqurean alleges that “[t]he NCAA and its

member institutions control the highest and most popular

level of collegiate athletics.” 5 Elsewhere he states that the

NCAA “possesses a dominant position in the relevant

International, Inc., 399 F.3d 181 (3d Cir. 2005), and Fashion Originators' Guild

of America v. FTC, 312 U.S. 457 (1941).

4 See also Banks v. NCAA, 977 F.2d 1081, 1095 (7th Cir. 1992) (Flaum, J.,

dissenting) (defining as the relevant market “the nationwide labor market

for college football players” and explaining that “NCAA member colleges

are the purchasers of labor in this market, and the players are the suppli-

ers”). We revisited Banks in Agnew v. NCAA, 683 F.3d 328 (7th Cir. 2012),

and rejected the Banks majority’s view that “the market for scholarship

athletes cannot be considered a labor market.” Agnew, 683 F.3d at 346.

5 R.1 ¶ 8.

No. 25-1187 25

market.”6 With these assertions, the NCAA was on notice that

the relevant market was Division I football. See Fed. R. Civ. P.

8(a)(2); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

(requiring plaintiffs to plead “only enough facts to state a

claim to relief that is plausible on its face” in order to survive

a motion to dismiss). And “[b]ecause market definition is a

deeply fact-intensive inquiry,” Todd v. Exxon Corp., 275 F.3d

191, 199–200 (2d Cir. 2001), I would hesitate to require a more

detailed showing from Mr. Fourqurean before he has had an

opportunity for discovery.

Within the relevant market of Division I football, the

NCAA cannot plausibly dispute that it possesses monopsony

power. Therefore, the remaining inquiry is whether the

NCAA’s Five-Year Rule has an anticompetitive effect within

that market. In my view, it plainly does.

The NCAA’s Five-Year Rule decreases competition in the

labor market by forcing out the market’s most experienced

athletes. In so doing, the NCAA depresses NIL compensation

by declaring ineligible the very players who would be entitled

to the most lucrative financial arrangements because they

have spent years developing their skills. Cf. Elad v. NCAA,

No. 25-1981, 2025 WL 1202014, at *8 (D.N.J. Apr. 25, 2025) (un-

published) (explaining that another rule that restricts players’

eligibility “distorts the labor market by reducing competition,

depressing the prices at which Division I schools can acquire

athletes, and the pay athletes can earn in NIL agreements”).

As a result, I do not doubt that Mr. Fourqurean will be able to

demonstrate the anticompetitive effect of the Five-Year Rule.

The elimination of experienced players like Mr. Fourqurean

6 Id. ¶ 54.

26 No. 25-1187

also lowers the level of competition in Division I, making it a

less desirable form of athletic entertainment, and makes it

more difficult for the participating schools and conferences to

put on such entertainment. Moreover, this restriction de-

presses the ancillary industries, such as television, which have

a symbiotic relationship with Division I athletics. This depres-

sion of competition will, in time, harm the compensation of

all Division I players.

2.

As a procompetitive justification for this constraint, the

NCAA submits that its Five-Year Rule preserves differentia-

tion between collegiate and professional football by linking

eligibility to an athlete’s academic progression. But other

NCAA bylaws undercut the current legitimacy of the

NCAA’s interest in keying athletic eligibility to degree pro-

gression and amateurism. Whatever the legitimacy of such an

argument in the past, the NCAA revised recently its bylaws

to allow athletes to transfer schools as many times as it ap-

pears economically advantageous to the individual player.

Permitting athletes to change schools with such frequency im-

peaches significantly the NCAA’s professed interest in aca-

demic progression within the Division I market. See Pavia v.

NCAA, 760 F. Supp. 3d 527, 543 (M.D. Tenn. 2024) (“The Court

finds it highly implausible that frequent transfers, even those

within NCAA institutions, benefit an athlete’s academic ca-

reer and promote ‘natural and standard degree progres-

sion.’”). Moreover, Division I teams now perform against the

backdrop of a lucrative NIL industry that, in its current state,

is significantly divorced from higher education. When

viewed in the context of an industry drastically changed by

No. 25-1187 27

these lucrative compensation arrangements, 7 the notion that

the NCAA protects its athletes’ amateur status appears disin-

genuous.

To support its proffered procompetitive justification, the

NCAA’s expert nevertheless maintained that without the

Five-Year Rule, athletes would be “older and less aligned

with standard collegiate progression.” R.20 at 8. But the Five-

Year Rule excepts years spent in military service, on religious

mission, or engaged in foreign assistance programs from the

years counted toward an athlete’s eligibility,8 seemingly ena-

bling other older athletes to compete at the collegiate level.

That some older athletes may compete, but not those like

Mr. Fourqurean, undermines the NCAA’s argument that it is

preserving the league’s youthful demographic. See Pavia, 760

F. Supp. 3d at 541–42; Elad, 2025 WL 1202014, at *9. 9

Nor is the NCAA’s interest in permitting new athletes to

take the place of athletes who have exhausted their eligibility

a legitimate justification for the Five-Year Rule. The transfer

portal allows universities to select players who have already

gained experience and developed as athletes to fill vacant

spots on their rosters. This practice belies significantly the

professed concern with Division I filling its roster spots with

“new blood.” As now organized, the Division must focus on

7 See R.4-5 at 3 (explaining that the NIL market has grown “to an expected

$1.67 billion in 2024–25,” and that revenue sharing is expected to increase

athletes’ compensation even further).

8 See R.4-6 at 66 (NCAA Bylaw 12.8.1.2).

9 The district court was entitled to consider the factual assessments and

economic analyses of earlier decisions in making its decision on the pro-

priety of a preliminary injunction.

28 No. 25-1187

a steady stream of highly competitive games that produce tel-

evision revenues, alumni donations, and support for a myriad

of related industries (including gambling interests). From the

point of view of its member institutions, the economic beat

must go on at a steady pace. The NCAA has failed to offer a

legitimate procompetitive justification for its Five-Year Rule,

as applied to Mr. Fourqurean. 10

C.

Finally, I agree with the district court’s assessment that

Mr. Fourqurean would suffer irreparable harm without a pre-

liminary injunction. If Mr. Fourqurean is entitled to play the

2025–26 football season but he misses out on that season, that

loss cannot be compensated through monetary damages. See

E. St. Louis Laborers’ Loc. 100 v. Bellon Wrecking & Salvage Co.,

414 F.3d 700, 703 (7th Cir. 2005) (“An injury is irreparable for

purposes of granting preliminary injunctive relief only if it

cannot be remedied through a monetary award after trial.”);

Ohio v. NCAA, 706 F. Supp. 3d 583, 597 (N.D. W. Va. 2023)

(“Courts have repeatedly found that ‘[c]ollege students suffer

irreparable harm when they are denied the opportunity to

play sports.’” (alteration in original) (quoting S.A. v. Sioux

Falls Sch. Dist. 49-5, No. 23-CV-04139, 2023 WL 6794207, at *9

(D.S.D. Oct. 13, 2023))) (collecting cases).

Even disregarding the inherent value of athletics or the

opportunity to improve his future NFL opportunities,

Mr. Fourqurean would also lose compensation from NIL

10 Because I believe that the NCAA has offered no legitimate procompeti-

tive justification for its Five-Year Rule, I do not reach the question of

whether there are alternative means of achieving the stated procompeti-

tive justifications for the Five-Year Rule.

No. 25-1187 29

opportunities. This is not a speculative injury, as it is virtually

certain to occur, and it would be very difficult to calculate. See

E. St. Louis Laborers’ Loc. 100, 414 F.3d at 705 (“A plaintiff may

suffer irreparable harm if the nature of the loss makes mone-

tary damages difficult to calculate.”). Not playing in the

NCAA’s 2025–26 football season, even if he could play a later

season of collegiate football, would cause immeasurable harm

to Mr. Fourqurean’s marketability for NIL deals and to his de-

velopment as a player.

The NCAA also contends that Mr. Fourqurean delayed in

bringing this action, indicating that the harm would not be

irreparable. See Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 903 (7th

Cir. 2001) (explaining that delay is relevant in that it “may

raise questions” regarding irreparable harm). This argument

is without merit. Although the University of Wisconsin did

not request an exemption for Mr. Fourqurean until December

2024, Mr. Fourqurean moved with haste to bring this action

against the NCAA. His attorney contacted the NCAA multi-

ple times as it reviewed Mr. Fourqurean’s application, and he

filed a complaint and motion for a temporary restraining or-

der and injunction on the same day he received the NCAA’s

denial. The record does not reveal any delay that casts doubt

on Mr. Fourqurean’s harm being irreparable.

In sum, the district court did not err in finding that

Mr. Fourqurean would suffer irreparable harm without a pre-

liminary injunction.

Conclusion

Because I believe Mr. Fourqurean adequately alleges that

the NCAA engaged in anticompetitive conduct in regulating

Division I football, for which the NCAA has offered no

30 No. 25-1187

legitimate procompetitive justifications, I would affirm the

district court’s grant of the preliminary injunction. I respect-

fully dissent.