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.