Diego Pavia v. NCAA

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0270p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

DIEGO PAVIA,

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Plaintiff-Appellee, │

> No. 24-6153

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v. │

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NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, │

Defendant-Appellant. │

┘

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.

No. 3:24-cv-01336—William Lynn Campbell, Jr., District Judge.

Argued: September 16, 2025

Decided and Filed: October 1, 2025

Before: THAPAR, READLER, and HERMANDORFER, Circuit Judges.

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COUNSEL

ARGUED: Rakesh Kilaru, WILKINSON STEKLOFF LLP, Washington, D.C., for Appellant.

Ryan Downton, THE TEXAS TRIAL GROUP, Dorado, Puerto Rico, for Appellee. ON BRIEF:

Rakesh Kilaru, Daniel Epps, WILKINSON STEKLOFF LLP, Washington, D.C., for Appellant.

Ryan Downton, THE TEXAS TRIAL GROUP, Dorado, Puerto Rico, Salvador M. Hernandez,

RILEY & JACOBSON, PLC, Nashville, Tennessee, for Appellee. Jessica L. Ellsworth, Reedy

C. Swanson, HOGAN LOVELLS US LLP, Washington, D.C., for Amici Curiae.

THAPAR, J., delivered the opinion of the court in which READLER and

HERMANDORFER, JJ., concurred. THAPAR (pp. 10–15) and HERMANDORFER (pp. 16–

20), JJ., delivered separate concurring opinions.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 2

_________________

OPINION

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THAPAR, Circuit Judge. After a breakout year in 2024, Diego Pavia wanted to continue

playing quarterback for Vanderbilt University during the 2025 football season. But National

Collegiate Athletic Association (NCAA) eligibility rules barred him from playing. So he sued

the NCAA. After he won a preliminary injunction, the NCAA appealed. But in the meantime,

the NCAA gave Pavia exactly what he wanted—a waiver that guaranteed he could play for

Vanderbilt in 2025. Because that waiver provides Pavia complete relief at the preliminary-

injunction stage, we dismiss the NCAA’s appeal as moot.

I.

Diego Pavia was a champion wrestler, but an unlikely football star. As a six-foot-tall

high schooler in the 160-pound weight class, Pavia didn’t profile as the ideal college

quarterback. Top college scouts weren’t exactly breaking down his door. Although he received

two offers to play football at NCAA member schools, they were from Division II programs. But

Pavia dreamed of playing in Division I, the highest level of NCAA football. So Pavia instead

enrolled at the New Mexico Military Institute (NMMI) in 2020.

NMMI is a two-year junior college (JUCO) in the National Junior Collegiate Athletic

Association (NJCAA). Pavia played only eight games for NMMI in 2020, because COVID-19

lockdowns shortened the season. But in 2021, Pavia quarterbacked NMMI to an NJCAA

national championship. His stellar performance earned him a ticket to his Division I dreams—a

transfer to New Mexico State University (NMSU). And after two seasons there, Pavia graduated

and transferred to Vanderbilt University, a member of the storied Southeastern Conference

(SEC).

Pavia and Vanderbilt achieved historic success in the 2024 season. They defeated the

University of Alabama, the top-ranked team in the country, on the way to Vanderbilt’s first

bowl-eligible season since 2018.

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The 2025 season promised Pavia many opportunities. He could write new chapters in

Vanderbilt football history. He could make an impression on scouts from the NFL. And he

could make more money. In fact, Pavia believed he could make more than a million dollars in

compensation for his name, image, and likeness (NIL) in the 2025 season. Multiple

organizations approached him with potential NIL contracts. These offers were a huge change

from Pavia’s junior-college days, when he made no NIL money at all.

But NCAA rules stood in the way. One of those rules prevents college athletes from

playing more than four seasons of “intercollegiate competition” in one sport. NCAA Division I

Bylaw 12.8, R. 1-2, Pg. ID 86. And a player must complete those four seasons “within five

calendar years” of the first academic term in which the player enrolls at a full-time college. Id.

12.8.1, R. 1-2, Pg. ID 86. Most important to Pavia, though, is the “JUCO Rule.” This rule

provides that “intercollegiate competition” includes seasons played for “a two-year or a four-year

collegiate institution . . . in any contest against outside competition.” Id. 12.02.6(a), R. 1-2, Pg.

ID 66. Thus, the NCAA counts junior-college seasons toward a player’s maximum of four

seasons of eligibility.

The JUCO Rule blocked Pavia from playing in the 2025 football season. Recall his path

to Vanderbilt. Pavia first enrolled in 2020 at NMMI, a two-year junior college. He played two

seasons there before playing two at NMSU and one at Vanderbilt. But the NCAA didn’t count

his 2020 season at NMMI for its eligibility rules. Because COVID-19 had shortened athletic

seasons, the NCAA granted all college athletes a waiver—effectively giving them an extra year

of college play. Thus, by the end of the 2024 season, for eligibility purposes, Pavia had played

four seasons of intercollegiate competition. That’s because the JUCO Rule counted his 2021

season for NMMI against his eligibility in Division I. The upshot? Pavia couldn’t play for

Vanderbilt in 2025.

In response to his pending ineligibility, Pavia sued the NCAA in the fall of 2024. He

alleged that by counting junior-college seasons in his four permitted years of intercollegiate

competition, the NCAA violated Section 1 of the Sherman Act. 15 U.S.C. § 1. Among other

remedies, Pavia sought injunctive relief that would allow him to play in the 2025 and 2026

seasons.

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Pavia then moved for a temporary restraining order and a preliminary injunction allowing

him to play in the 2025 season only. He also asked the court to enjoin the NCAA from enforcing

its restitution rule based on Pavia’s participation in the 2025 season. The restitution rule allows

the NCAA to punish a college if an otherwise ineligible player for that college wins an injunction

and plays under it, but a court later eliminates the injunction.

The district court granted Pavia’s motion for a preliminary injunction. It enjoined the

NCAA from enforcing the JUCO Rule against Pavia during the 2025 season. And it enjoined

enforcement of the restitution rule against Vanderbilt and Pavia based on Pavia playing in the

2025 season. The NCAA timely appealed.

After the grant of the preliminary injunction, the NCAA issued a waiver allowing all

players in Pavia’s position to play one more season in 2025. Any player who had enrolled

full-time and used a season of competition at a non-NCAA school could play in the 2025 season,

as long as he had used his fourth and final season of competition in 2024 and was otherwise

eligible. The NCAA later confirmed that the waiver covered Pavia. And it represented that the

waiver would remain in effect for the 2025 season no matter the outcome of the preliminary-

injunction appeal. Pavia shares that understanding of the waiver’s scope and effect.

II.

Because of the NCAA waiver, the appeal is moot. So we must dismiss for lack of

jurisdiction.

Article III of the Constitution limits federal courts to deciding “Cases” or

“Controversies.” U.S. Const. art. III, § 2. Those cases or controversies remain justiciable only

as long as we can grant “effectual relief” to the parties. Brown v. Yost, 122 F.4th 597, 601 (6th

Cir. 2024) (en banc) (per curiam) (quoting Church of Scientology of Cal. v. United States, 506

U.S. 9, 12 (1992)). To be “effectual,” the complaining party’s requested relief must have some

“practical effect” on the litigants. Ohio v. EPA, 969 F.3d 306, 308 (6th Cir. 2020). That remains

true at every stage of a case—including, as relevant here, on appeal of a preliminary injunction.

Id. If intervening events make the preliminary injunctive relief lack “practical effect,” the appeal

is moot, and we must dismiss the appeal for lack of jurisdiction. See Resurrection Sch. v. Hertel,

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 5

35 F.4th 524, 528 (6th Cir. 2022) (en banc). That’s true even if “the underlying lawsuit is not

moot.” Brown, 122 F.4th at 602 (emphasis in original).

In his motion for a preliminary injunction, Pavia requested two kinds of relief. He asked

the district court to stop the NCAA from enforcing several rules “to prevent [Pavia] from playing

college football in the 2025-26 season.” R. 8, Pg. ID 541. And he asked the court to block

enforcement of the NCAA’s restitution rule. The district court granted the preliminary

injunction, and the NCAA asks that we reverse that grant. See Welty v. Dunaway, 145 F.4th 628,

630 (6th Cir. 2025) (per curiam) (observing that an “appeal becomes moot . . . when an

intervening event makes it impossible for us to grant any effectual relief . . . in favor of the

appellant” (cleaned up)).

No matter the outcome of this appeal, Pavia has already obtained the full relief he

initially sought by requesting a preliminary injunction. And the NCAA’s requested relief of

reversal will accomplish nothing, as Pavia will play with or without the preliminary injunction.

The NCAA’s blanket waiver covers Pavia because he was otherwise eligible to play in 2025

without the JUCO Rule. So Pavia can play—and is playing—quarterback for Vanderbilt during

the 2025 football season. His eligibility also makes the restitution rule irrelevant. The NCAA

can’t enforce it against Vanderbilt because Pavia is not competing while “ineligible” or

“contrary” to NCAA rules—the NCAA’s own waiver covers him. NCAA Division I Bylaw

12.11.4.2, R. 1-2, Pg. ID 97. Because he can play in the 2025 season and the restitution rule

doesn’t apply, Pavia has already obtained all the relief he requested in the preliminary injunction.

And because the NCAA has voluntarily permitted Pavia to play, a ruling in its favor would have

no “practical effect.” Resurrection Sch., 35 F.4th at 528. We can’t give either party any further

“effectual relief,” so we lack jurisdiction over the appeal. Brown, 122 F.4th at 602.

The parties’ arguments against mootness fail. Pavia claims that his efforts to prevail on

the merits below depend on our ruling. He notes that the district court stayed discovery pending

our decision, seeming to contend that his lawsuit may proceed in the district court only if we rule

in his favor. He is incorrect. At the preliminary-relief stage, our ruling on the merits will not

affect discovery below. It merely decides the status quo as his lawsuit proceeds. See Adams v.

Baker, 951 F.3d 428, 429 (6th Cir. 2020) (per curiam). And the presence of a live controversy

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 6

below doesn’t change our inability to grant effectual relief—so it doesn’t affect mootness.

Brown, 122 F.4th at 602.

In a similar vein, the NCAA worries that Pavia will seek more years of eligibility and use

the preliminary injunction to support his attempt to play in the 2026 season. Yet this, too,

doesn’t relate to whether we can give either party relief at the preliminary-injunction stage.

Pavia may indeed continue his case on the merits and pursue eligibility for the 2026 season, but

he has received everything he requested at this preliminary stage. Because our review is limited

to the district court’s grant of the preliminary injunction, the fact that “the underlying lawsuit is

not moot” doesn’t affect our inability to grant relief now. Id. (emphasis in original).

Both Pavia and the NCAA also unsuccessfully claim that an exception to mootness

applies. They argue that this issue is “capable of repetition, yet evading review.” Kingdomware

Techs., Inc. v. United States, 579 U.S. 162, 170 (2016) (quoting Spencer v. Kemna, 523 U.S. 1,

17 (1998)). This exception applies “only in exceptional situations” where two conditions are

met. Id. (quoting Spencer, 523 U.S. at 17). First, the challenged action must be so short in time

that the case can’t be fully litigated before the action ends. Id. And second, there must be “a

reasonable expectation that the same complaining party will be subject to the same action again.”

Id. (quoting Spencer, 523 U.S. at 17) (cleaned up). Neither of these conditions is met here.

First, the NCAA’s application of its JUCO Rule to Pavia isn’t so short as to evade

review. “[B]y their nature,” challenges to the JUCO Rule won’t become moot before litigation

ends. Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 396 (6th Cir. 2020) (per curiam).

In fact, if the NCAA had not issued a waiver, we would have had time to review the injunction

and hand down a decision before the end of the 2025 season. Instead, in late 2024, the NCAA

committed to allowing Pavia to play, so the mootness of the appeal made expedited review

through the appellate process less important. And another circuit has ruled on a challenge

similar to Pavia’s in plenty of time to affect the athletic season in question. See Fourqurean v.

Nat’l Collegiate Athletic Ass’n, 143 F.4th 859, 863, 865 (7th Cir. 2025). Because the parties

have time to litigate the validity of the NCAA’s eligibility rules, those rules won’t escape review

indefinitely.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 7

Second, Pavia won’t be subject to the same action again. A party seeking to avoid

mootness must show a “reasonable expectation that the same complaining party [would] be

subject[ed] to the same action again.” Kingdomware Techs., 579 U.S. at 170 (quoting Spencer,

523 U.S. at 17). Here, Pavia is the complaining party. The NCAA’s action was to block Pavia

from playing in the 2025 season based on the JUCO Rule. And all the motion for a preliminary

injunction sought was a ruling permitting Pavia to play in 2025 while his suit continued.

Because the NCAA has now admitted he can play regardless of what we do, he will not be

banned in 2025. Thus, the action now before us—the NCAA’s enforcement of the JUCO Rule to

bar Pavia’s participation in the 2025 season—is not capable of repetition. See Chirco v.

Gateway Oaks, LLC, 384 F.3d 307, 309 (6th Cir. 2004).

The NCAA suggests that Pavia’s ability to sue the NCAA again for another season of

competition might satisfy the exception, but it doesn’t. In this case, Pavia has already sued the

NCAA for an additional season of competition in 2026. That claim involves a different season

and distinct limits on eligibility that the preliminary-injunction decision didn’t address. This

“live controversy” on the merits means the NCAA will have its day in court regarding the 2026

season. Furstenau, 951 F.3d at 396. So the NCAA wouldn’t be “again” subjected to suit,

because that suit is already in progress and amenable to timely resolution. Chirco, 384 F.3d at

309. In sum, the injury to Pavia isn’t “capable of repetition, yet evading review.”

There is one other theoretical obstacle to mootness. A defendant generally can’t moot a

case just by voluntarily ceasing its challenged practice. Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Otherwise, a defendant could start the

practice again once the suit is dismissed. Instead, voluntary cessation creates mootness only

when it’s “absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur.” Id. (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S.

199, 203 (1968)). In short, for the case to be moot, the defendant must not be “free to return to

[its] old ways.” Already, LLC v. Nike, Inc., 568 U.S. 85, 92 (2013) (quoting Deakins v.

Monaghan, 484 U.S. 193, 200 n.4 (1988)).

On one hand, the NCAA may appear free to return to its old ways. It hasn’t signed a

contract that would bar it from retracting its waiver, and the waiver isn’t “unconditional and

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 8

irrevocable.” Id. at 93. So the NCAA could theoretically rescind the waiver and block Pavia

from playing during the 2025 season.

On the other hand, the NCAA’s legal representations indicate that it won’t revoke the

waiver. It is standard practice to accept a party’s representations to the court “as parameters for

decision.” DeFunis v. Odegaard, 416 U.S. 312, 317 (1974). And the NCAA has promised in its

briefing and at oral argument that it will honor the waiver regardless of the outcome of this

appeal. See Appellant’s Suppl. Br. at 13. Pavia believes this representation. See Appellee’s

Suppl. Br. at 5 (“Mr. Pavia understands that the NCAA waiver will remain in

place . . . regardless of this Court’s ruling.”).

In addition, practical realities might prevent the NCAA from rescinding the waiver. The

waiver has been in place since December 23, 2024. NCAA Division I Board of Directors Waiver

Guidance for 2025-26 Eligibility Question and Answer Document, NCAA (July 18, 2025),

https://perma.cc/4QFS-NU2W. That means the athletes who received the waiver have been

relying on the extra year of eligibility for their college decisions and transfer commitments for

the 2025 season. And it’s not just the athletes. Coaches, administrators, and teammates are

relying on the players’ presence. So too are the NIL organizations who make significant

financial investments in the players, including any such organizations at Vanderbilt dealing with

Pavia. And the season has already begun in earnest. Given the enormous effects of rescinding

the waiver, the NCAA might not “reasonably be expected” to enforce its eligibility rules against

Pavia and others in the middle of the football season. Friends of the Earth, 528 U.S. at 189

(quoting Concentrated Phosphate Exp. Ass’n, 393 U.S. at 203).

Though the issue of voluntary cessation is thorny, we need not decide it. Neither party

argued in briefing that we have jurisdiction because of voluntary cessation, so that argument is

forfeited. See Resurrection Sch., 35 F.4th at 530; cf. Taylor v. KeyCorp, 680 F.3d 609, 615 n.5

(6th Cir. 2012) (analyzing forfeiture of an argument for jurisdiction). Although the litigants

discussed voluntary cessation at oral argument at our prompting, such discussion doesn’t save

the argument from forfeiture. Resurrection Sch., 35 F.4th at 530. And even if the parties can’t

forfeit arguments against subject-matter jurisdiction, they can forfeit arguments for it. See

Taylor v. Pilot Corp., 955 F.3d 572, 582 (6th Cir. 2020) (Thapar, J., concurring) (collecting

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 9

cases). Despite a request for supplemental briefing on the topic of mootness—a request that

explicitly referenced the possibility of the NCAA revoking the waiver—neither the NCAA nor

Pavia mentioned voluntary cessation. Because both parties forfeited the argument, we don’t

discuss it further. The appeal is moot.

III.

Since the appeal is moot, we must decide whether to vacate the preliminary injunction.

See United States v. Munsingwear, Inc., 340 U.S. 36, 39–41 (1950). But Munsingwear does not

demand vacatur here. To merit vacatur, the NCAA bears the burden of showing that (1) the

order would have a preclusive effect on later litigation and (2) the NCAA, as the burdened party,

didn’t cause the order’s mootness. Mktg. Displays Int’l v. Shaw, 93 F.4th 967, 971 (6th Cir.

2024). Here, the NCAA caused mootness by issuing the waiver. So we will not vacate the

injunction.

* * *

We dismiss the NCAA’s appeal as moot.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 10

__________________

CONCURRENCE

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THAPAR, Circuit Judge, concurring. A three-point buzzer-beater, a fourth-quarter Hail

Mary, a walk-off grand slam. College sports kickstart careers—but, more importantly, they

inspire young people around the country to learn teamwork, practice self-discipline, and embrace

a commitment to excellence.

Diego Pavia’s remarkable career—from undersized recruit to junior-college champion to

star SEC quarterback—models the American athletic dream. His impressive play deserves close

attention. And so does his challenge to the NCAA’s eligibility rules. Though mootness prevents

us from hearing the merits of the NCAA’s appeal, the appeal highlights open questions about the

purposes and effects of the NCAA’s rules. Since this controversy will continue to exist, those

questions will have to be answered.

I.

The NCAA, like other athletic organizations, creates “agreement[s] among competitors

on the way in which they will compete with one another.” Nat’l Collegiate Athletic Ass’n v. Bd.

of Regents of Univ. of Okla., 468 U.S. 85, 99 (1984). On one hand, those agreements allow the

NCAA to craft rules to promote uniform and fair gameplay—cooperation without which college

sports would not exist in their current form. Id. at 101–02 (citing Robert Bork, The Antitrust

Paradox 278 (1978)); see also Amicus Br. at 5. But on the other hand, formal agreements

among competitors about employment and production look like the type of “restraint[s] of trade

or commerce” that may violate the Sherman Act. 15 U.S.C. § 1.

These rules pose unique difficulties for judges. Courts have struggled to categorize the

procompetitive and anticompetitive effects of NCAA rules over the past four decades. Most

recently, the Supreme Court upheld restrictions on the NCAA’s ability to limit education-related

compensation for college athletes. Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 84–85,

107 (2021). Although the Court has dealt with NCAA compensation rules, it has never analyzed

NCAA eligibility rules, which determine who can play for college teams.

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This case demonstrates the sheer volume of open questions that remain before a court can

thoughtfully analyze such rules.

II.

For starters, the parties disagree over whether Pavia sufficiently defined the relevant

market for antitrust analysis of the JUCO Rule. In antitrust cases, market definition often proves

dispositive. See, e.g., Nat’l Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club

(NHLPA I), 325 F.3d 712, 720 (6th Cir. 2003). Market definition usually requires evidence of

economic competition, substitute products or services, and consumers’ response to price

changes. See Ky. Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc., 588 F.3d 908,

917 (6th Cir. 2009). And if a plaintiff doesn’t meet his burden to define the relevant market, his

claim might fail. NHLPA I, 325 F.3d at 720. Here, although Pavia and his expert pointed to two

possible relevant markets—the labor markets for NCAA Division I college football and for

college football in general—they didn’t introduce substantial economic evidence defining the

boundaries of those markets.

The district court reasoned that the market here doesn’t require “precise” definition

because the JUCO Rule operates as a “horizontal restraint on trade.” R. 41, Pg. ID 1408 n.8

(citing Ohio v. Am. Express Co., 585 U.S. 529, 543 n.7 (2018)). And extensive evidence of

market structure could be less imperative given the lack of dispute here about the NCAA’s

market power. See Am. Express Co., 585 U.S. at 543 & n.7. But analysis of anticompetitive and

procompetitive effects—the key to many antitrust cases—relies on market definition. So no

matter what level of precision is required, more specificity and evidence about the relevant

markets would be helpful as the case progresses.

The parties should also address the appropriate antitrust framework for analyzing the

JUCO Rule. Eligibility rules like the JUCO Rule could resemble concerted refusals to deal,

since the NCAA member schools are agreeing not to employ a class of athletes like Pavia. Such

agreements can be facially anticompetitive. See Nw. Wholesale Stationers, Inc. v. Pac.

Stationery & Printing Co., 472 U.S. 284, 294–97 (1985). And at the end of oral argument,

Pavia’s counsel suggested that the NCAA was, in effect, boycotting a class of athletes like Pavia.

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But Pavia had never mentioned this possibility before—not in his complaint, his arguments for a

preliminary injunction, or his appellate briefing. If Pavia intends to pursue this theory (and the

NCAA intends to rebut it), there’s work to be done on remand.

Additional evidence of the JUCO Rule’s competitive effects would also aid judicial

review. Weighing competitive effects is a vital part of antitrust analysis. Alston, 594 U.S. at 81.

And the plaintiff’s usual burden to show anticompetitive effects isn’t “slight.” Id. at 97. Indeed,

plaintiffs fail to meet that burden in most antitrust suits, meaning a “voluminous record” is often

critical. Id.

Of course, at this early point, the record is not “voluminous.” The district court found

that Pavia showed “some evidence” that the JUCO Rule harmed competition. R. 41, Pg. ID

1409. For instance, Pavia suggested that the rule gives NCAA schools an advantage over junior

colleges in recruiting football players, since the players lose years of NCAA eligibility by

choosing a junior college. Perhaps that’s correct. But Pavia hasn’t yet introduced any statistics

or studies proving that players actually choose NCAA schools over junior colleges because of

the JUCO Rule. Nor has he identified Division I labor-market effects stemming from the

exclusion of JUCO players—even though those players, according to Pavia’s expert, may

comprise some ten percent of the available roster spots for top Division I schools. This type of

evidence would greatly assist judicial review.

And the NCAA’s claimed procompetitive effects have similar shortcomings so far. Its

expert hypothesized that the JUCO Rule helps make NCAA college football a special athletic

product. Yet he hasn’t yet cited any evidence that consumers prefer the sport—and that the

NCAA’s revenue therefore holds steady or grows—because players’ junior-college years count

toward their limit of eligible seasons. Nor has the NCAA’s expert squared the JUCO Rule’s

asserted necessity with the many other NCAA policies and eligibility exceptions that allow older,

more experienced players to compete. Addressing these questions will also help the district

court’s antitrust analysis.

The absence of cold, hard data is especially glaring in a market that is rapidly changing.

It’s hard to perform “a careful analysis of market realities” when the parties haven’t grappled

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 13

with recent changes. Alston, 594 U.S. at 93. Just this year, the NCAA reversed decades of

anti-compensation rules by agreeing to allow member schools to pay players directly. In re Coll.

Athlete NIL Litig., No. 20-CV-03919 (CAW), 2025 WL 1675820, at *7 (N.D. Cal. June 6, 2025).

This shift will undoubtedly have seismic effects on the college-football market.

So too will several other recent developments. Consider the market-altering effects of the

NCAA’s agreement to allow NIL collectives to recruit and negotiate with prospective athletes on

behalf of schools. See Consent Judgment & Permanent Injunction, Tennessee v. Nat’l Collegiate

Athletic Ass’n, No. 24-CV-00033 (E.D. Tenn. Mar. 21, 2025), Dkt. 92 (permanently enjoining

the NIL recruiting ban). Or the NCAA’s decision to allow players unlimited transfers between

schools. Even the waiver giving Pavia and others another year of eligibility may have ripple

effects impacting the merits of Pavia’s case. So Pavia and the NCAA should provide the district

court with the economic evidence it needs to conduct a “careful analysis” of these new “market

realities.” Alston, 594 U.S. at 93.

Many more questions remain. For one, why aren’t junior colleges suing over the JUCO

Rule? If Pavia is right that junior colleges can’t compete with NCAA schools because of the

rule, shouldn’t they have reason to complain? The record gives no indication of any such

complaints from junior colleges.

And what about Division II and Division III schools? The parties don’t discuss these

schools much, even though Division II schools directly competed with junior colleges to recruit

Pavia. Does it matter that seasons played at these schools also count against a player’s limit of

four seasons? Or that these schools, unlike junior colleges, choose membership in the NCAA?

Couldn’t the NCAA’s equal application of the JUCO Rule both internally to its own member

schools and externally to non-member schools impact the competitive effects of the rule? Could

eliminating the JUCO Rule give junior colleges a leg up over Division II or III schools? And

would elimination require similar treatment of Division II or III seasons? Does the Sherman Act

require such results? These questions are likely significant in guiding the district court’s

resolution of the remaining issues.

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III.

The litigants’ answers to these questions could have sweeping ramifications. The JUCO

Rule is one of a host of NCAA eligibility rules governing who can play college sports. These

rules include enrollment and degree requirements, as well as minimum-GPA thresholds. Many

of these rules aren’t controversial. See Alston, 594 U.S. at 110 (Kavanaugh, J., concurring)

(“Everyone agrees that the NCAA can require student athletes to be enrolled students in good

standing.”). But depending on how courts resolve challenges to the JUCO Rule, these other

eligibility rules could also face antitrust review. See Amicus Br. at 12–14. Although Pavia’s

counsel suggested at oral argument that these rules would survive such scrutiny, that result isn’t a

foregone conclusion.

Even if courts uphold these rules, the mere fact of judicial review poses problems for

college athletics. At present, players like Pavia are continuing to challenge these rules, creating a

“seemingly endless wave of litigation.” Appellant’s Suppl. Br. at 4. Those lawsuits could have

substantial and unforeseeable impacts on the world of college sports. Over time, courts could

“become the de facto appeals body for eligibility determinations for over half a million

student-athletes” in all divisions of NCAA sports. Amicus Br. at 19. Unlike football, most of

these NCAA sports are “nowhere close to profitable.” Id. at 8. But any decision about the

eligibility rules for lucrative sports, like football and basketball, has downstream effects for those

other sports, like water polo, lacrosse, and more.

And what would those decisions look like? Consider the line-drawing problems an

analysis of eligibility rules might pose. Does a five-year limit on a college athlete’s career

violate the Sherman Act? If not, what about a four-year limit? Or if it does, what about a six-

year limit? Is a 2.0 GPA requirement reasonable when a 2.5 GPA requirement might not be?

Can colleges require twelve hours of academic credit per term? Most importantly, what are the

economic impacts of each of these rules? Such questions make judges “mindful” of our

“limitations.” Alston, 594 U.S. at 106. We aren’t good “central planners and should never aspire

to the role.” Id. at 103 (cleaned up). Perhaps Congress, the NCAA, and the players can instead

work together to determine a way forward.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 15

College sports deserve careful planning. They provide a unique opportunity for young

men and women to make lifelong friends, develop leadership skills, and learn self-discipline and

self-confidence. And, of course, college sports provide inspiration for young people around the

country. From Doug Flutie’s legendary Hail Mary for Boston College to Lorenzo Charles’s

game-winning dunk for N.C. State in the 1983 men’s basketball championship to Caitlin Clark’s

record-breaking career at Iowa, college athletes have etched themselves into millions of

Americans’ memories. When courts decide who is qualified to participate in this great tradition,

we implicate the line separating college athletics from professional athletics. Our intervention

could have unknown consequences on the intangible benefits from college sports.

Congress should consider stepping in to preserve these benefits for the millions of young

athletes yet to come. Until it does so, judges should tread carefully in this area and insist on a

thorough record from which to rule.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 16

__________________

CONCURRENCE

__________________

HERMANDORFER, Circuit Judge, concurring. All that is before us is a preliminary

injunction covering the 2025-26 football season. But a decision in this appeal has no prospect of

altering anyone’s rights in the 2025-26 football season. So I agree that the NCAA’s appeal is

moot.

Dismissal not only respects Article III’s limits. Deferring a merits decision at this

juncture is also preferable in practice. National Collegiate Athletic Ass’n v. Alston makes clear

that the NCAA may no longer sidestep antitrust scrutiny with an amateurism justification ill-

suited for today’s age of compensated college players. See 594 U.S. 69, 94-95 (2021). But it

remains unclear just how to apply traditional antitrust principles to the NCAA’s catalogue of

evolving policies. Post-Alston, dozens of courts have split on challenges to NCAA rules limiting

player mobility, eligibility, and compensation. See NCAA Suppl. Br. Addendum (collecting 34

cases). Enabling the parties here to refine their theories and evidence through discovery and

final judgment will provide additional information critical to fully assessing the JUCO Rule’s

soundness in antitrust.

Despite today’s dismissal, these appellate proceedings helped clarify important legal and

factual questions that remain open. Judge Thapar notes several, ranging from the role of market

definition to the analytical impact of the NCAA’s latest rule changes. See Thapar Concurring

Op. at 11-13. Most critically to my mind, the parties’ arguments have shown the importance of

distilling the distinct anticompetitive effects alleged: first, the effects on junior colleges’ ability

to compete with NCAA member schools for college football players, and second, the effects on

NCAA Division I football players. The district court considered both angles when finding

anticompetitive harms in the markets for college football players generally and NCAA Division I

football players particularly. But on appeal, Pavia homed in on the JUCO Rule’s effect on the

market for NCAA Division I football players—and specifically, on the argument that Division I

schools have unlawfully restrained labor competition in that market by together agreeing to limit

the NCAA playing careers of former JUCO players.

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 17

That emphasis may be well founded. Alston accepts that antitrust rules apply to the labor

side of the NCAA Division I football market. 594 U.S. at 86-87. And “colleges and universities

essentially ‘hire’ both coaches and players.” Roger D. Blair & Jeffrey L. Harrison, Monopsony

in Law and Economics 10 (2010). Pavia’s expert asserted that, in past years, around 10 percent

of available roster spots in the most competitive Division I football programs go to former JUCO

players. Whatever the number now, it is indisputable that the JUCO Rule annually (i) excludes a

class of experienced former-JUCO players from playing at Division I schools based solely on

their former JUCO affiliation and (ii) shifts the resulting roster spots to new or less-seasoned

players. Indeed, the NCAA lists preventing the “crowding out of younger, less experienced

athletes in Division I football” as among the JUCO Rule’s express aims. NCAA Br. 42 n.7.

Pavia puts a face on this market foreclosure. Prior to the 2025-26 season, he was enrolled

in good standing at Vanderbilt, had participated in only three seasons of NCAA competition, and

was Vanderbilt’s choice for QB1. Yet as things stood before this suit, the JUCO Rule would

have barred Pavia from playing a fourth NCAA season simply because he used to compete for a

JUCO. Pavia’s exclusion would have cost him substantial compensation—estimated at over $1

million. Maj. Op. at 3. Vanderbilt’s noted football turnaround stood to lose too. See generally

Pat Forde, The Serape, Street-Fighter QB and Swagger That Made Vanderbilt an SEC

Contender, Sports Illustrated (Sept. 18, 2025), https://perma.cc/Y5KJ-DUYY. Nor is Pavia’s

predicament some one-off harm to a lone competitor, since the JUCO Rule operates market

wide. See, e.g., Elad v. Nat’l Collegiate Athletic Ass’n, No. 25-cv-1981, 2025 WL 1202014, at

*6 (D.N.J. Apr. 25, 2025) (potential lost compensation of up to $650,000); Braham v. Nat’l

Collegiate Athletic Ass’n, --- F. Supp. 3d ----, 2025 WL 2017162, at *8 (D. Nev. July 18, 2025)

(potential lost compensation “valued at $500,000”).

Under prevailing theories of antitrust harm, NCAA member schools’ market coordination

through the JUCO Rule raises red flags. Employers’ horizonal agreements not to negotiate with

defined segments of the labor force can be problematic in other contexts. See, e.g., Deslandes v.

McDonald’s USA, LLC, 81 F.4th 699, 703-04 (7th Cir. 2023). That includes in professional-

sports cases, where labor-side limitations akin to group boycotts or concerted refusals to deal

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 18

have not fared well under the Sherman Act.1 Still now, many restraints on labor markets in

professional sports operate only by virtue of exceptions to the antitrust laws, like the statutorily

implied one covering collective bargaining, see, e.g., Brown v. Pro Football, Inc., 518 U.S. 231,

235 (1996); Clarett v. Nat’l Football League, 369 F.3d 124, 130 (2d Cir. 2004), or the judicially

invented one covering baseball, Flood v. Kuhn, 407 U.S. 258, 282 (1972). No such exception

applies to the NCAA at present.

Focusing on the market for Division I football labor helps highlight pertinent questions

about the JUCO Rule’s economics. From this lens, it seems less probative how the JUCO Rule

affects the calculus of all graduating high-school football players considering where to start their

intercollegiate careers. What arguably matters more is how foreclosing experienced former

JUCO players from their would-be third and fourth years of NCAA competition affects the

Division I football labor market. And in that market, the NCAA has not disputed that it enjoys

“monopsony[] control” and is thus “capable of depressing wages below competitive levels and

restricting the quantity of student-athlete labor.” Alston, 594 U.S. at 86; see also Blair &

Harrison, Monopsony in Law and Economics, at 189.

The NCAA has suggested that the JUCO Rule does not depress wages. Citing “ordinary”

economic principles, the NCAA asserts that an increased worker supply (here, of eligible

players) normally decreases worker wages (here, player compensation directly by schools and

through name, image, and likeness agreements). From there, the NCAA posits that permitting

additional JUCO players into the Division I market may if anything lead to reduced player

compensation. Cf. Fourqurean v. Nat’l Collegiate Athletic Ass’n, 143 F.4th 859, 871 (7th Cir.

2025) (similar).

But there is reason to doubt that the market for Division I football labor fits that

prevailing supply-wage rule. In standard economic theory, wages reflect workers’ marginal

1See, e.g., Smith v. Pro Football, Inc., 593 F.2d 1173, 1176, 1185-87 (D.C. Cir. 1978) (player draft and no-

tampering rule); Mackey v. Nat’l Football League, 543 F.2d 606, 623 (8th Cir. 1976) (Rozelle Rule); Clarett v. Nat’l

Football League, 306 F. Supp. 2d 379, 408 (S.D.N.Y. 2004) (draft-eligibility rule), rev’d on other grounds, 369 F.3d

124 (2d Cir. 2004); Linseman v. World Hockey Ass’n, 439 F. Supp. 1315, 1318, 1320-23 (D. Conn. 1977) (draft-

eligibility rule); Kapp v. Nat’l Football League, 390 F. Supp. 73, 82 (N.D. Cal. 1974) (Rozelle Rule, player draft,

and no-tampering rule); Denver Rockets v. All-Pro Mgmt., Inc., 325 F. Supp. 1049, 1058, 1066-67 (C.D. Cal. 1971)

(draft-eligibility rule).

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 19

productivity—the value of their output. Ioana Marinescu & Herbert Hovenkamp,

Anticompetitive Mergers in Labor Markets, 94 Ind. L.J. 1031, 1038 (2019). But football prowess

and productivity are not distributed uniformly across players. Skill is highly differentiated,

meaning “[l]esser talent often is a poor substitute for greater talent.” Sherwin Rosen, Economics

of Superstars, 71 Am. Econ. Rev. 845, 846 (1981). Top athletic performers can thus drive far

greater output by their organizations than less-skilled replacement players. See, e.g., Stephen A.

Bergman & Trevon D. Logan, Revenue per Quality of College Football Recruit, 21 J. Sports

Econ. 571, 589-90 (2020). As a result, higher-skilled players may likewise command higher

compensation and generate increased wage competition. Cf., e.g., Mackey, 543 F.2d at 620-21;

Areeda & Hovenkamp, Antitrust Law, ¶ 1505c3(D) n.124. If the JUCO Rule disproportionately

excludes such high-earning-capacity players, it might drive down, not increase, Division I

football compensation and product appeal. See Fourqurean, 143 F.4th at 874-75 (Ripple, J.,

dissenting). And as the NCAA agreed at oral argument, such effects on price and output could

prove cognizable antitrust harm.

None of that is to leave the NCAA defenseless, no matter what level of antitrust scrutiny

the JUCO Rule warrants. It is well settled that sports leagues need—and the Sherman Act

tolerates—certain “horizontal restraints on competition” if “the product is to be available at all.”

Alston, 594 U.S. at 91 (citation omitted). Citing that leeway, Pavia’s counsel maintains that

antitrust challenges to other NCAA limits—like minimum-GPA and credit-hour requirements, or

the five-year eligibility window—would fail. But as I currently understand things, that’s not

because the NCAA can immunize any trade restraint from review by deeming it “eligibility”

related. Otherwise, the price-fixing in Alston could pass unscrutinized if recast as a rule

rendering ineligible any player receiving excessive benefits. Any regulatory leeway instead

reflects that certain NCAA rules policing what it means to be a bona fide student athlete seem

bound to pass antitrust muster.

Whether the JUCO Rule survives Sherman Act scrutiny remains to be seen. The NCAA

principally defends the JUCO Rule as needed to maintain a “high, sub-professional level of

play.” NCAA Br. 42. Under Alston, the NCAA need not “employ the least restrictive means of

achieving [its] legitimate business objectives.” 594 U.S. at 106. But neither can the NCAA

No. 24-6153 Pavia v. Nat’l Collegiate Athletic Ass’n Page 20

prevail on its word or policy aims alone. If Pavia can sufficiently show that the JUCO Rule

works anticompetitive effects within the Division I football labor market, the NCAA must

respond on antitrust terms with economic evidence. Id. at 96-97, 99. In so doing, the NCAA

should consider how changed “market realities” may affect its proffered justifications for the

JUCO Rule. Id. at 93. Such realities now include direct payment from schools to student

athletes, a bar on transfer restrictions, and seemingly prevalent participation by older, non-JUCO

players on Division I football teams through pathways like prep years, waivers, and redshirting.

See Thapar Concurring Op. at 13; Fourqurean, 143 F.4th at 864.

Running parallel with the NCAA’s current legal conflicts are contested public-policy

debates about where antitrust scrutiny has led college sports. Many who have played, coached,

managed, or followed collegiate athletics bring deeply held views about how to best address the

myriad “policy and practical questions” athletic regulation implicates. Alston, 594 U.S. at 111

(Kavanaugh, J., concurring). Concerns range from counteracting player exploitation, to

protecting non-revenue-producing programs and women’s competitive opportunities, to

promoting scholastic success, and more. See id.; Exec. Order No. 14322, 90 Fed. Reg. 35821

(July 24, 2025). Even now, federal lawmakers are considering options for a legislative path

forward. See, e.g., SCORE Act, H.R. 4312, 119th Cong. (2025).

There is no telling how or when the broader policy debate over the NCAA will play out.

So at least for now, courts must follow Alston by endeavoring to address the NCAA’s rules

through the “lens of antitrust law” rather than their broader sense of “social good.” 594 U.S. at

95, 107 (citation omitted). That might be a difficult task given the law’s unsettled state in this

arena. To best position this case going forward, the parties should further develop their

arguments on remand to help ensure that any merits assessment abides by Alston’s antitrust

framework.