Diego Pavia (“Pavia”) is the quarterback for the Vanderbilt University (“Vanderbilt”) football team, a member of the Southeastern Conference. Prior to attending Vanderbilt, Pavia played two seasons at New Mexico Military Institute, a junior college, and two seasons at New Mexico State University. After two seasons of NCAA Division I play at New Mexico State University, Pavia transferred to Vanderbilt and played the 2024 football season.
NCAA rules allow athletes to play four seasons of “intercollegiate competition” “within five calendar years”. The definition of “intercollegiate competition” includes seasons played at both two-year and four-year college institutions, i.e. the JUCO Rule.
Pavia filed suit under Section 1 of the Sherman Act against the NCAA alleging that counting years of competition at the junior college level was anticompetitive. Accordingly, in his suit, Pavia requested eligibility for the 2025 and 2026 football seasons. Pavia moved for a temporary restraining order and preliminary injunction allowing him to play only the 2025 football season. Pavia’s application for preliminary injunction was granted by the District Court. The NCAA, thereafter, appealed to the Sixth Circuit.
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 enrolled full-time and used a season of competition at a non-NCAA school could play in the 2025 season, as long as he used his fourth and final season of competition in 2024 and was otherwise eligible. The NCAA later confirmed the waiver applied to Pavia. The NCAA further represented that the waiver would remain in effect for the 2025 season no matter the outcome of the preliminary injunction appeal. Pavia agreed as to the waiver’s scope and effect.
As a result of the waiver, the Sixth Circuit declared the appeal moot and dismissed the appeal for lack of jurisdiction. No matter the outcome of this appeal, the Sixth Circuit stated Pavia has already obtained the full relief he initially sought by requesting a preliminary injunction. The NCAA’s blanket waiver covers Pavia because he was otherwise eligible to play in 2025 without the JUCO Rule. Pavia can play—and is playing—quarterback for Vanderbilt during the 2025 football season. Because he can play in the 2025 season, Pavia has already obtained all the relief he requested in the preliminary injunction. Because the NCAA has voluntarily permitted Pavia to play, a ruling in its favor would have no “practical effect.”
A defendant generally cannot moot a case just by voluntarily ceasing its challenged practice. Otherwise, a defendant could start the practice again once the suit is dismissed. Instead, voluntary cessation creates mootness only when it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. In short, for the case to be moot, the defendant must not be free to return to its old ways. The Sixth Circuit stated the NCAA’s legal representations indicate that it will not revoke the waiver. It is standard practice for courts to accept a party’s representations to the court as parameters for decision. The NCAA promised in briefing and at oral argument that it will honor the waiver regardless of the outcome of the appeal in this case. Neither party, however, argued in briefing that the Sixth Circuit has jurisdiction because of the voluntary cessation doctrine, so that argument is forfeited.
Circuit Judges Thapar and Hermandorfer wrote concurring opinions addressing, to some extent, the underlying claims and the need to further flesh out the record before the District Court. A few keys points from the concurring opinions are as follows:
- 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. And at the end of oral argument, Pavia’s counsel suggested that the NCAA was, in effect, boycotting a class of athletes like Pavia.
- The NCAA’s expert hypothesized that the JUCO Rule helps make NCAA college football a special athletic product. Yet he did not cite 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.
- 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 are not controversial. But depending on how courts resolve challenges to the JUCO Rule, these other eligibility rules could also face antitrust review.
- 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.
- 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.
- Pavia’s predicament is not some one-off harm to a lone competitor, since the JUCO Rule operates market wide.
- If the JUCO Rule disproportionately excludes such high-earning-capacity players, it might drive down, not increase, Division I football compensation and product appeal. The NCAA agreed at oral argument that such effects on price and output could prove cognizable antitrust harm.
- 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.” Under Alston, the NCAA need not “employ the least restrictive means of achieving [its] legitimate business objectives.” But neither can the NCAA 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.
For any questions, contact Christian Dennie at cdennie@denniefirm.com.
