NCAA defends rickety eligibility rules at Ninth Circuit

(CN) — A three-judge panel of the Ninth Circuit on Friday tossed around the costly question of whether college football athletes constitute a labor market during a dispute over junior college eligibility.

If the judges decide they do, it could make the NCAA more vulnerable to antitrust litigation. But the college sports organization says that would be wrong call and have asked the Ninth Circuit to referee a pair of lower court decisions.

In June 2025, a multibillion-dollar settlement in House v. NCAA allowed Division I schools to directly pay college athletes for the first time. In the span of four years, college athletes went from being unable to cash in on any publicity rights to now having very few restrictions on what they can earn.

Since the settlement took effect, multiple football players including San Diego State University defensive lineman Tatuo Martinson have sued the NCAA, challenging rules that allow Division I athletes to only play four seasons within a five-year time frame.

Martinson had played two years of junior college football and one year at the University of Nevada, Las Vegas before transferring to SDSU, where he played in the 2023 and 2024 seasons. He wanted to also play in the 2025 season under the settlement terms and disputed NCAA eligibility rules, which had counted his junior college football years even though junior colleges are not NCAA members.

In September 2025, U.S. District Judge Richard Boulware, a Barack Obama appointee, agreed with Martinson, preventing the NCAA from counting junior college experience toward his five years of eligibility.

Boulware was emphatic in his decision, saying the NCAA’s distinction between college and pro sports ended once the settlement was in place. He called the players a “labor market for competitive college football services.” Other cases, including a lawsuit filed by University of Memphis wide receiver Cortez Braham Jr., have seen similar results, but many courts have also sided with the NCAA. The NCAA cried foul on the Martinson and Braham cases, bringing the dispute into play at the Ninth Circuit.

Speaking to the panel on Friday, NCAA attorney Rakesh Kilaru said recurring lawsuits like these — often filed right before the season — have blocked the organization from enforcing all its rules and are creating harm.

He said these eligibility rules were different from the compensation rules created by last year’s settlement, since they were noncommercial and “outside of the scope of the Sherman Act,” the nation’s foundational antitrust law.

U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, questioned whether the case was moot, since Martinson had already finished his season under the lower court injunction.

“I’m not seeing why this issue would evade review under the right circumstance," he said — like if “a plaintiff appeals in one of the many cases the NCAA actually won.”

In response, Kilaru argued the legal environment was creating confusion, including when it came to determining wins and statistics for seasons that might include ineligible athletes. Under the NCAA’s so-called “rule of restitution,” the NCAA can punish institutions if they allow an ineligible athlete to play under an injunction and that injunction is later voided.

The plaintiffs lacked evidence of antitrust behavior by the NCAA since they did not cite any expert analysis, Kilaru said. He also noted the time-sensitive nature of these legal questions.

“It’s not like we can go to the student and say, ‘Hey, we think you might want additional eligibility in three years, so let’s go litigate that now,’” he said. “We have to be in a position of waiting until they sue us, and that lawsuit is almost inevitably happening on the eve of the season.”

But taking Sanchez’s question and running with it, Martinson’s attorney Gregg Clifton said the case was in fact moot. He argued the rule of restitution didn’t apply here, because the universities from which the NCAA would theoretically seek restitution were not parties in the lawsuit.

His client was a college student, Clifton said, and thus lacked the funding to pay for expert opinions.

In rebuttal, Kilaru reinstated the injunction stops the NCAA for potentially following through on seeking restitution because the universities “rostered players who are ineligible under the rules they agreed to as members of the NCAA.”

U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, and U.S. District Judge David Ezra, a Ronald Regan appointee, sitting by designation, rounded out the panel.