Opinion

Blythe v. National Collegiate Athletic Association

Court
Court of Appeals for the Ninth Circuit
Filed
Sep 9, 2026
Status
Published
Cited by
0 cases

The opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NOAH BLYTHE, No. 26-1106

D.C. No.

Plaintiff - Appellee,

3:26-cv-00100-

ART-CSD

v.

NATIONAL COLLEGIATE OPINION

ATHLETIC ASSOCIATION,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Nevada

Anne R. Traum, District Judge, Presiding

Argued and Submitted April 7, 2026

San Francisco, California

Filed September 9, 2026

Before: Mark J. Bennett and Gabriel P. Sanchez, Circuit

Judges, and David A. Ezra, District Judge.*

Opinion by Judge Sanchez;

Concurrence by Judge Bennett

*

The Honorable David A. Ezra, United States District Judge for the

District of Hawaii, sitting by designation.

2 BLYTHE V. NCAA

SUMMARY**

Antitrust

In an antitrust case under § 1 of the Sherman Act, the

panel vacated the district court’s order preliminarily

enjoining the NCAA from enforcing against college baseball

player Noah Blythe its Five-Year Rule, which limits

collegiate athletes to only four seasons of eligibility within

five years of college enrollment.

The panel vacated the preliminary injunction in a prior

order, and it provided the full rationale for that decision in

its opinion.

Joining other circuits, the panel held that the Five-Year

Rule is a commercial restraint subject to the Sherman

Act. The panel held that under NCAA v. Alston, 594 U.S. 69

(2021), so long as non-compensation-related NCAA

eligibility rules, such as the Five-Year-Rule, affect

commerce, they are not immune from antitrust scrutiny.

The panel held that the district court nonetheless erred in

finding that Blythe established a likelihood of success on the

merits of his Sherman Act claim given the sparse evidentiary

support for his motion for a preliminary injunction. The

district court erred in defining the relevant market as the

Division I collegiate baseball labor market, and it further

erred in finding that Blythe met his burden to prove a

substantial anticompetitive effect in that market. Given the

dearth of evidence of anticompetitive effects offered by

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BLYTHE V. NCAA 3

Blythe, the district court erred in finding that he showed a

likelihood that the Five-Year Rule constitutes an

unreasonable restraint on trade or commerce.

Concurring, Judge Bennett wrote that he concurred in the

majority’s merits analysis of Blythe’s claim under § 1 of the

Sherman Act and agreed that the injunction should be

vacated, but he disagreed with the majority’s decision to

reach the issue of whether the Five-Year Rule is a

commercial rule subject to the Sherman Act.

COUNSEL

Steven A. Caloiaro (argued), Dickinson Wright PLLC,

Reno, Nevada, for Plaintiff-Appellant.

Rakesh Kilaru (argued), Wilkinson Stekloff LLP,

Washington, D.C.; John M. Naylor and Jennifer L. Braster,

Naylor & Braster, Las Vegas, Nevada; Ben D. Kappelman

and F. Matthew Ralph, Dorsey & Whitney LLP,

Minneapolis, Minnesota; for Defendant-Appellant.

4 BLYTHE V. NCAA

OPINION

SANCHEZ, Circuit Judge:

Plaintiff Noah Blythe is a college baseball player who

sued the National Collegiate Athletic Association

(“NCAA”) asserting that the NCAA’s Five-Year Rule

violates Section 1 of the Sherman Act. See 15 U.S.C. § 1.

We previously vacated the district court’s preliminary

injunction. See Order, Blythe v. NCAA, No. 26-1106 (9th

Cir. Apr. 8, 2026). We now provide our full rationale for

that decision. We hold that the NCAA’s Five-Year Rule,

which limits collegiate athletes to only four seasons of

eligibility within five years of college enrollment, is a

commercial restraint subject to the Sherman Act. But we

conclude that the district court erred in finding that Blythe

established a likelihood of success on the merits of his

Sherman Act claim given the sparse evidentiary support for

Blythe’s motion for a preliminary injunction.

I.

NCAA’s Bylaw 12.6, which contains the Five-Year

Rule, governs seasons of competition and years of eligibility

in college athletics. It provides in relevant part:

12.6 Seasons of Competition: Five-Year

Rule. A student athlete shall not engage in

more than four seasons of intercollegiate

competition in any one sport . . . . An

institution shall not permit a student-athlete

to represent it in intercollegiate competition

unless the student-athlete completes all

BLYTHE V. NCAA 5

seasons of participation in all sports within

the time periods specified below:

12.6.1 Five-Year Rule. A student-athlete

shall complete the student-athlete’s seasons

of participation within five calendar years

from the beginning of the semester or quarter

in which the student-athlete first registered

for a minimum full-time program of studies

in a collegiate institution, with time spent on

an official religious mission, in the armed

services or with recognized foreign aid

services of the U.S. government being

excepted. For international students, service

in the armed forces of the student’s home

country is considered equivalent to such

service in the United States.

12.6.1.1 Determining the Start of the Five-

Year Period. For purposes of starting the

count of time under the five-year rule, a

student-athlete shall be considered registered

at a collegiate institution (domestic or foreign

. . . ) when the student-athlete initially

registers in a regular term (semester or

quarter) of an academic year for a minimum

full-time program of studies, as determined

by the institution, and attends the student’s

first day of classes for that term.

These rules apply equally to all collegiate institutions, and

Bylaw 14.02.4 defines “collegiate institutions” as

institutions of higher education that (1) are accredited by an

entity recognized by the Department of Education and are

6 BLYTHE V. NCAA

“legally authorized to offer at least a one-year program of

study creditable toward a degree,” (2) “[c]onduct[] an

intercollegiate athletics program, even though the institution

is not accredited at the college level and authorized to offer

at least a one-year program of study creditable toward a

degree,” or (3) are “located in a foreign country.” Bylaw

14.02.4 defines “intercollegiate competition” as any athletic

competition at either two-year or four-year collegiate

institutions.

At the time Blythe filed this lawsuit and sought

injunctive relief, he had completed his five years of

collegiate enrollment eligibility as maximally permitted

under the NCAA’s rules. Blythe initially enrolled in Hawaii

Pacific University in 2020, a NCAA Division II baseball

college, where he began his collegiate baseball career. After

his first year, Blythe transferred and completed three years

of eligibility at University of Antelope Valley (from 2021 to

2023), a California Pacific Conference college baseball

school associated with National Association of

Intercollegiate Athletics rather than the NCAA. University

of Antelope Valley closed during his final baseball season

there, and he transferred back to Hawaii Pacific University

in 2024 where he completed his fifth year of eligibility.

Blythe then transferred to the University of Nevada,

Reno (“UNR”), a NCAA Division I baseball school, and

UNR applied for a waiver of the Five-Year Rule on Blythe’s

behalf in the hopes that he could compete in the 2026

collegiate baseball season.1 UNR’s request was denied by

the conference, as was its appeal to the NCAA.

1

The NCAA accepts eligibility-waiver applications only from its

member institutions and not directly from the student-athletes.

BLYTHE V. NCAA 7

Blythe then filed his complaint in district court against

the NCAA. Relevant to this appeal, Blythe asserted a claim

that the NCAA’s Five-Year Rule violated Section 1 of the

Sherman Act, and he moved to enjoin the NCAA from

enforcing its Five-Year Rule so that he could compete in the

2026 baseball season. The district court granted Blythe’s

motion and imposed a preliminary injunction. The NCAA

appealed, and moved for an expedited resolution of its

appeal, which we granted.

At the time we heard oral argument in April 2026, Blythe

was playing in the ongoing 2026 college baseball season at

UNR pursuant to the terms of the district court’s injunction.

We vacated the injunction on April 8, 2026, and noted that

this opinion would follow.

II.

“We review a district court’s grant of a preliminary

injunction for an abuse of discretion. A district court abuses

its discretion if it ‘base[s] its decision on an erroneous legal

standard or on clearly erroneous findings of fact.’”

Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1017 (9th

Cir. 2016) (alteration in original) (citation omitted) (quoting

Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.

2009)).

A “preliminary injunction is ‘an extraordinary and

drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of

persuasion.’” Apartment Ass’n of Los Angeles Cnty., Inc. v.

City of Los Angeles, 10 F.4th 905, 911–12 (9th Cir. 2021)

(quoting Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir.

8 BLYTHE V. NCAA

2012). 2 The party seeking an injunction “must satisfy

Winter’s four-factor test. A plaintiff seeking a preliminary

injunction must show that: (1) she is likely to succeed on the

merits, (2) she is likely to suffer irreparable harm in the

absence of preliminary relief, (3) the balance of equities tips

in her favor, and (4) an injunction is in the public interest.”

Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)

(en banc) (internal quotations omitted) (citing Winter v.

NRDC, 555 U.S. 7, 20 (2008)). “The first factor under

Winter is the most important—likely success on the merits.”

Id. “Because it is a threshold inquiry, when ‘a plaintiff has

failed to show the likelihood of success on the merits, we

‘need not consider the remaining three [Winter elements].’”

Id. (quoting Ass’n des Eleveurs de Canards et d’Oies du

Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013)).

Although we hold that the district court correctly found

that the NCAA’s Five-Year Rule is a commercial restraint

subject to the Sherman Act, we vacate the injunction because

Blythe failed to demonstrate a likelihood of success on the

merits of his claim. The district court abused its discretion

in holding otherwise given that Blythe presented almost no

evidence to support his claim.

2

We need not decide whether the injunction at issue here is a mandatory

or prohibitive injunction. Under the typical standard of review applied

to prohibitive injunctions or the heightened standard of review applied

to mandatory injunctions, see Fellowship of Christian Athletes v. San

Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 684 (9th Cir. 2023),

overruled on other grounds by Arizona All. for Retired Americans v.

Mayes, –– F.4th ––––, No. 22-16490, 2026 WL 2277101 (9th Cir. Aug.

7, 2026), the outcome of this case is the same.

BLYTHE V. NCAA 9

III.

Section 1 of the Sherman Act applies only to “restraint[s]

of trade or commerce.” 15 U.S.C. § 1. The NCAA argues

that the district court erred in finding the Five-Year Rule is

a commercial restraint subject to the Sherman Act. We

disagree.3

In 2021, the Supreme Court initiated a sea change in

antitrust law concerning college athletics in National

Collegiate Athletic Association v. Alston. 594 U.S. 69

(2021). Alston rejected the NCAA’s argument that the

NCAA’s educational compensation rules were

noncommercial amateurism rules, explaining that the rules

“affect interstate trade and commerce and are thus subject to

the Sherman Act.” Id. at 94. The Supreme Court refused to

extend any “sort of judicially ordained immunity from the

terms of the Sherman Act for its restraints of trade—that we

should overlook its restrictions because they happen to fall

at the intersection of higher education, sports, and money.”

Id. Though Alston did not reach non-compensation-related

3

The NCAA principally relies on O’Bannon v. National Collegiate

Athletic Association. 802 F.3d 1049 (9th Cir. 2015). But O’Bannon does

not control the outcome of this case. In O’Bannon, we held that the

NCAA’s compensation rules are commercial rules subject to antitrust

scrutiny, rejecting the NCAA’s argument that its compensation rules

were merely noncommercial eligibility rules. Id. at 1053. In dicta,

distinguishing the facts presented from a now-overturned Third Circuit

case, O’Bannon suggested that there may be some noncommercial “true

‘eligibility’ rule[s], akin to the rules limiting the number of years that

student-athletes may play collegiate sports or requiring student-athletes

to complete a certain number of credit hours each semester.” Id. at 1066

(discussing Smith v. NCAA, 139 F.3d 180, 185 (3d Cir. 1998), overruled

by Elad v. Nat’l Collegiate Athletic Ass’n, 160 F.4th 407 (3d Cir. 2025)).

The NCAA ignores, however, that this was not a holding in O’Bannon,

and therefore the district court did not err by ignoring this dictum.

10 BLYTHE V. NCAA

rules, like the Five-Year Rule at issue in this appeal, its

reasoning suggests that so long as NCAA eligibility rules

affect commerce, they are not immune from antitrust

scrutiny.

We join our sister circuits which have unanimously held

that the Five-Year Rule is a commercial restraint subject to

the Sherman Act. See Elad v. Nat’l Collegiate Athletic

Ass’n, 160 F.4th 407, 415 (3d Cir. 2025); Fourqurean v.

Nat’l Collegiate Athletic Ass’n, 143 F.4th 859, 868 (7th Cir.

2025); Robinson Nat’l Collegiate Athletic Ass’n, 172 F.4th

271, 289 (4th Cir. 2026). The Third Circuit reversed its prior

precedent holding otherwise and held that the district court

properly found the Five-Year Rule commercial, noting that

“[i]n light of changed market realities, and the NCAA’s

ability to reframe even compensation rules as eligibility

rules, we can no longer per se exclude all NCAA-labeled

eligibility rules from Sherman Act scrutiny without first

asking whether the specific rule at issue is commercial.”

Elad, 160 F.4th at 415. Elad explained that the district court

properly found the Five-Year Rule

commercial because it interferes with [the

plaintiff’s] desire to compete in NCAA

Division I athletics and profit from that

participation. Stated differently, [the

plaintiff] alleges that the JUCO Rule limits

his participation in a labor market. And the

Supreme Court has long recognized that

restraints on labor through association

rulemaking that “unduly interfere with the

free exercise of the[ ] rights by those

engaged, or who wish to engage, in trade and

commerce” are subject to the Sherman Act.

BLYTHE V. NCAA 11

Id. at 415 (citing Anderson v. Shipowners’ Ass’n of Pac.

Coast, 272 U.S. 359, 362–63 (1926)). Likewise, the Seventh

Circuit held that the district court properly applied the rule

of reason to the Five-Year Rule and noted that

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, 141

(quoting Am. Needle, Inc. v. NFL, 560 U.S.

183, 199 n.7 (2010)), the Supreme Court

already rejected this type of maneuver in

Alston. 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.

Fourqurean, 143 F.4th at 868. And the Fourth Circuit

reasoned that the Five-Year Rule “limit[s] college athletes’

participation in a labor market.” Robinson, 172 F.4th at 289

(citing Elad, 160 F.4th at 415). “This restraint on labor

through association rulemaking interferes with student

athletes’ free exercise of their rights to engage in commerce

(i.e., participate in Division I football).” Id. at 289–90

(citing Anderson, 272 U.S. at 362–63 (applying section 1 of

the Sherman Act to shipping associations’ restrictions on

seamen’s access to the labor market); Radovich v. Nat’l

Football League, 352 U.S. 445, 448–54 (1957) (applying

section 1 to the professional football association’s

12 BLYTHE V. NCAA

blacklisting of players who played football for a rival

professional football conference). We find our sister

circuits’ reasoning persuasive and, for the same reasons,

hold that the Five-Year rule is a commercial rule subject to

review under the Sherman Act. Thus, we turn to the merits

of Blythe’s claim.

IV.

To satisfy the threshold inquiry of demonstrating a

likelihood of success on the merits, a plaintiff must proffer

evidence that is at least sufficient to raise serious questions

going to the merits. See All. for the Wild Rockies v. Cottrell,

632 F.3d 1127, 1135 (9th Cir. 2011); see also Mazurek v.

Armstrong, 520 U.S. 968, 976 (1997) (per curiam) (reversing

court of appeals decision holding that plaintiffs had shown a

likelihood of success “merely by alleging” their claim and

without “rely[ing] on any evidence”); Gonzalez v. Arizona,

485 F.3d 1041, 1050 (9th Cir. 2007) (holding that plaintiffs

had not demonstrated a likelihood of success on the merits

because there was “no evidence in the record . . . to support

[their] conclusion”); K-2 Ski Co. v. Head Ski Co., 467 F.2d

1087, 1088–89 (9th Cir. 1972) (holding that “[a] verified

complaint or supporting affidavits may afford the basis for a

preliminary injunction,” but not if the facts alleged “consist

largely of general assertions which are substantially

controverted by counter-affidavits”). We conclude that the

district court erred in finding that Blythe established a

likelihood of success on the merits of his Sherman Act claim

given that Blythe proffered almost no evidence to support

his claim.

A.

The Sherman Act only prohibits restraints of trade or

commerce that are undue. Alston, 594 U.S. at 81. There is

BLYTHE V. NCAA 13

“a three-step, burden-shifting framework” for

“distinguish[ing] between restraints with anticompetitive

effect that are harmful to the consumer and restraints

stimulating competition that are in the consumer’s best

interest.” Id. at 96 (alteration in original) (internal

quotations omitted) (quoting Ohio v. Am. Express Co., 585

U.S. 529, 541 (2018)). Under this framework, “the plaintiff

has the initial burden to prove that the challenged restraint

has a substantial anticompetitive effect that harms

consumers in the relevant market.” Am. Express Co., 585

U.S. at 541. “Should the plaintiff carry that burden, the

burden then shifts to the defendant to show a procompetitive

rationale for the restraint. 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.”

Alston, 594 U.S. at 96–97 (internal quotations omitted)

(quoting Am. Express Co., 585 U.S. at 541–42).

1.

Before a court can assess whether a rule has an

anticompetitive effect, it “must first define the relevant

market.” Am. Express Co., 585 U.S. at 542. Without

defining the relevant market, “there is no way to measure the

defendant’s ability to lessen or destroy competition.” Id. at

543 (cleaned up) (quoting Walker Process Equip., Inc. v.

Food Mach. & Chem. Corp., 382 U.S. 172, 177 (1965)). The

validity of the “relevant market” is “a factual element rather

than a legal element.” Newcal Indus., Inc. v. Ikon Off. Sol.,

513 F.3d 1038, 1045 (9th Cir. 2008) (citing High Tech.

Careers v. San Jose Mercury News, 996 F.2d 987, 990 (9th

Cir. 1993)).

14 BLYTHE V. NCAA

“The relevant market is defined as ‘the area of effective

competition,’ meaning ‘the arena within which significant

substitution in consumption or production occurs.’”

Robinson, 172 F.4th at 293 (quoting Am. Express Co., 585

U.S. at 543). “The outer boundaries of [the relevant] market

are determined by the reasonable interchangeability of use

or the cross-elasticity of demand between the product itself

and substitutes for it.” Newcal Indus., Inc., 513 F.3d at 1045

(quoting Brown Shoe Co. v. United States, 370 U.S. 294, 325

(1962)). “In the labor market context, as here, the market is

comprised of those employers seen by workers as reasonably

good substitutes.” Fourqurean, 143 F.4th at 869–70 (citing

Todd v. Exxon Corp., 275 F.3d 191, 202 (2d Cir. 2001)). The

relevant market also “encompasses notions of geography,”

and a “geographic market extends to the ‘area of effective

competition’ where buyers can turn for alternate sources of

supply.” Oltz v. St. Peter’s Cmty. Hosp., 861 F.2d 1440,

1446 (9th Cir. 1988) (cleaned up) (quoting Moore v. James

H. Matthews & Co., 550 F.2d 1207, 1218 (9th Cir. 1977)).

And it “must ‘correspond to the commercial realities of the

industry.’” Am. Express Co., 585 U.S. at 544 (quotation

marks omitted) (quoting Brown Shoe Co., 370 U.S. at 336).4

4

Thus, as aptly pointed out by the Fourth Circuit in a similar context

(student-athlete football players challenging the Five-Year Rule), the

relevant market analysis likely requires the resolution of numerous

critical questions:

For example, is the correct market definition that of all

college football (i.e., including NCAA Division I, II,

and III as well as JUCOs) or is it just NCAA Division

I? Are players from Division II and III schools

reasonable substitutes, such that these schools should

be part of the market definition? What about JUCOs?

Are any athletes choosing JUCOs over Division I

BLYTHE V. NCAA 15

The NCAA contends that the district court erred at this

threshold step by relying on Alston, other district court

orders, and Blythe’s argument in his motions and unverified

allegations in his complaint, rather than any evidence

presented by Blythe concerning the relevant market. We

agree. In defining the relevant market as the “Division I

collegiate baseball labor market,” the district court relied on

Alston and other district court preliminary injunction orders

that also relied on Alston to define college football or

basketball labor markets in those cases. These markets are

not interchangeable. Alston’s market definition was cabined

to “athletic services in men’s and women’s Division I

basketball and FBS football,” and in no way discussed

college baseball or its markets. Alston, 594 U.S. at 81.

More importantly, the district court’s cursory analysis of

the relevant market in Blythe’s action, and the evidence that

Blythe presented to the district court to define the relevant

schools and, if not, is it because of the JUCO Rule?

How does the availability of revenue-sharing

change the market’s recruitment? How does

foreclosing experienced former JUCO players from

their would-be third and fourth years of NCAA

competition affect the Division I football labor

market? Do NCAA Division I football teams compete

with NFL teams for players post-Alston?

Robinson, 172 F.4th at 294 n.15. The NCAA here poses additional

questions that may need to be answered in defining the relevant market:

Are any athletes choosing professional baseball leagues over Division I

schools? Does the alleged labor market extend to foreign student athletes

and institutions? We do not purport to identify all the questions that

would need to be resolved to define the relevant market here. Rather,

like the court in Robinson, we pose these questions to demonstrate that

“there are many aspects of the market that should be considered when

finalizing a market definition.” Id.

16 BLYTHE V. NCAA

market, fall far short of what is necessary under Supreme

Court authority. See Am. Express Co., 585 U.S. at 541 (“The

rule of reason requires courts to conduct a fact-specific

assessment of market power and market structure to assess

the restraint’s actual effect on competition.” (cleaned up));

Alston, 594 U.S. at 93 (“Whether an antitrust violation exists

necessarily depends on a careful analysis of market realities.

If those market realities change, so may the legal analysis.”

(citation omitted)).

Recently, the Third, Fourth, and Seventh Circuits

reversed the grant of preliminary injunctive relief against the

NCAA by district courts that had similarly relied on Alston

to define the relevant labor market for NCAA Division I

football. See Fourqurean, 143 F.4th at 870; Elad, 160 F.4th

at 417; Robinson, 172 F.4th at 293–94. In finding that the

district courts had abused their discretion, our sister circuits

explained that “[r]eliance on a previously accepted market,

without inspection of current market realities, is antithetical

to antitrust legal principles.” Elad, 160 F.4th at 417. Rather,

the “‘[r]ule-of-reason analyses under Section 1 of the

Sherman Act,’ when relying on a showing of market power,

‘require a well-defined relevant market and cannot rely on

antiquated market definitions accepted on different evidence

and in a different posture.’” Robinson, 172 F.4th at 294

(alteration in original) (quoting Elad, 160 F.4th at 417).

“[W]hether an antitrust violation exists necessarily depends

on a careful analysis of market realities,” Fourqurean, 143

F.4th at 870 (quoting Alston, 594 U.S. at 93), and “[t]he

market realities for college sports have changed in the four

years since Alston” because the profit opportunities plaintiff

sought from another season of college football play “did not

exist pre-Alston,” id.

BLYTHE V. NCAA 17

Blythe’s evidentiary offering to define the relevant

market here is as paltry as that of the plaintiffs in Elad,

Fourqurean, and Robinson. Even if Alston had discussed the

college baseball market, the NCAA correctly points out that

the realities of college athletics as it stood in Alston have

dramatically changed in the subsequent five years. For

example, before Alston, the NCAA capped the education-

related benefits permitted for student-athletes—the subject

of the injunction affirmed by Alston. 594 U.S. at 74, 107. It

was only after Alston that the NCAA began allowing

student-athletes to earn compensation for their athletic

performance and their name, image, and likeness (NIL),

unrelated to their education. See Fourqurean, 143 F.4th at

864.

Despite these far-reaching changes to college athletics,

Blythe presented almost no concrete evidence to define the

alleged collegiate baseball market, let alone its changes post-

Alston. Blythe attached as an exhibit the 2024–25

Opendorse Report which provides some generalized

statistics about the current state of the collegiate NIL market

at large. Beyond some statistics about average NIL

compensation for college baseball (among other sports), this

report contains nothing to assist the district court in defining

the purported relevant market—the collegiate baseball labor

market. This report is inadequate for defining that market:

it does not address market dynamics, the relevant market

participants, or whether any market participants are

employers seen as reasonably good substitutes. For the same

reasons, Blythe’s evidence showing that “71 percent of all

2025 MLB Draft picks were drafted out of DI baseball

teams” fails to define the relevant market.

The district court also cited Blythe’s declaration for the

fact that Blythe “personally observe[d] that despite playing

18 BLYTHE V. NCAA

at an elite level in the NAIA and Division II programs, he

was never offered an NIL opportunity.” As the NCAA aptly

explains, “[t]he personal observations of a single player who

was unable to previously obtain NIL compensation and a

single statistic that measures NIL compensation for DI

athletes is not the market evidence or economic data needed

to support a definition of the relevant market.” Indeed,

Blythe presented no evidence regarding how to define the

relevant labor market as a whole, including any concrete

demonstration of what other employers might be acceptable

or unacceptable substitutes (e.g., professional baseball

leagues or other college baseball leagues).

Finally, Blythe asserts that the Five-Year Rule is a

horizontal restraint and therefore the market definition

requirements should be loosened. We disagree. Only where

“horizontal restraints involve agreements between

competitors not to compete in some way” has the Supreme

Court “concluded that it did not need to precisely define the

relevant market to conclude that th[o]se agreements were

anticompetitive.” Am. Express Co., 585 U.S. at 543 n.7

(discussing FTC v. Indiana Federation of Dentists, 476 U.S.

447 (1986), and Catalano, Inc. v. Target Sales, Inc., 446

U.S. 643 (1980) (per curiam)). In Alston, where the NCAA

had not contested the market definition and the Supreme

Court had evaluated the NCAA’s “admitted horizontal price

fixing,” 594 U.S. at 86, the Supreme Court nevertheless

stated that “[w]hether an antitrust violation exists necessarily

depends on a careful analysis of market realities,” id. at 93.

This pronouncement defeats Blythe’s argument for a lesser

market definition requirement in this case. Moreover, for the

reasons discussed below, it is not immediately apparent that

the Five-Year Rule is anticompetitive such as would warrant

BLYTHE V. NCAA 19

a less precise market definition. Therefore, we conclude that

the district court erred in defining the relevant market.

2.

Even had the district court adequately defined the

relevant market, the court further erred in finding that Blythe

met his burden to prove a substantial anticompetitive effect

in that market. Blythe provided no evidence beyond his own

personal exclusion from that market to support his claim. As

the Seventh Circuit recently explained,

To establish the theory of anticompetitive

effects, . . . [the plaintiff] 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 compensation below

the competitive level—by making it more

difficult for the NCAA’s existing or potential

rivals to compete against the NCAA. But

[the plaintiff] 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 he has not

drawn a link from his exclusion to an adverse

effect on an existing or potential rival of the

NCAA.

Fourqurean, 143 F.4th at 870. Blythe, like the plaintiff in

Fourqurean, presents no evidence beyond his own exclusion

which would allow the district court to conclude that the

Five-Year Rule depresses labor compensation or has any

other anticompetitive effect on the market. Indeed, the

district court relied entirely on other cases finding

20 BLYTHE V. NCAA

anticompetitive effects and discussed no evidence presented

by Blythe.

Blythe argues that the Five-Year Rule is a horizontal

restraint that harms competition by excluding from the

market a whole cohort of student-athletes seeking to sell

their labor. While it is true that a restraint causing substantial

anticompetitive harm to sellers is cognizable under the

Sherman Act, see O’Bannon, 802 F.3d at 1070–71

(discussing in the context of price-fixing), Blythe presents

no evidence to establish either directly or indirectly that the

student-athlete sellers/laborers are substantially

anticompetitively harmed by the Five-Year Rule “as a

whole” in the relevant market. See Epic Games, Inc. v.

Apple, Inc., 67 F.4th 946, 985 (9th Cir. 2023) (quoting

PLS.Com, LLC v. Nat’l Ass’n of Realtors, 32 F.4th 824, 839

(9th Cir. 2022)). In fact, as the Seventh Circuit explained,

the Five-Year Rule may actually increase competition in

some ways: “Under ordinary principles of supply and

demand, a restraint that limits the supply of workers in a

labor market [like the Five-Year Rule] would increase, not

decrease, worker compensation.” Fourqurean, 143 F.4th at

871.5 That Blythe was personally injured by the Five-Year

5

Blythe cites Connell Construction Company, Inc. v. Plumbers &

Steamfitters Local Union No. 100 for the proposition that the Supreme

Court found a union agreement with various contractors to make

nonunion subcontractors “ineligible to compete for a portion of the

available work” substantially anticompetitive. 421 U.S. 616, 625 (1975).

But Connell merely determined that such an agreement between unions

and private contractors was not exempt from federal antitrust scrutiny

under the organized labor exemption. Id. at 622. Having declared the

agreement not exempt, the Supreme Court remanded “for consideration

whether the agreement violated the Sherman Act.” Id. at 637. Connell

does not support Blythe’s proposition, nor does he cite any other caselaw

BLYTHE V. NCAA 21

Rule does not evidence the Rule’s anticompetitive effect on

the market as a whole. Cf. McGlinchy v. Shell Chem. Co.,

845 F.2d 802, 812 (9th Cir. 1988) (“The elimination of a

single competitor, without more, does not prove

anticompetitive effect.”); Brantley v. NBC Universal, Inc.,

675 F.3d 1192, 1200 (9th Cir. 2012) (“Plaintiffs may not

substitute allegations of injury to the claimants for

allegations of injury to competition.”).

Given the dearth of evidence of anticompetitive effects

offered by Blythe, the district court erred in finding that

Blythe showed a likelihood that the Five-Year Rule

constitutes an unreasonable restraint on trade or

commerce—and thus a likelihood of success on the merits

of Blythe’s Sherman Act claim, on which the preliminary

injunction rests. Because Blythe failed to demonstrate a

likelihood of success on the merits, we need not reach the

remaining Winter factors. See Garcia, 786 F.3d at 740.

VACATED.

finding similar restraints limiting workforce eligibility to be

anticompetitive.

22 BLYTHE V. NCAA

BENNETT, Circuit Judge, concurring:

I concur in the majority’s merits analysis of Blythe’s

claim under Section 1 of the Sherman Act, and thus I agree

that the injunction should be vacated. I disagree, however,

with the majority’s decision to reach the issue of whether the

Five-Year Rule is a commercial rule subject to the Sherman

Act. I would not decide that issue. First, it is unnecessary

to resolve the issue to decide this appeal. Second, the

antitrust analysis is “sensitiv[e]” to “market realities.” Nat’l

Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 93 (2021).

But, as noted by the majority, Blythe offered only “sparse

evidentiary support” below. Maj. Op. 4. I therefore believe

that the more prudent course would have been to assume

without deciding that the Five-Year Rule is a commercial

rule.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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