“The new rules make eligibility easier to administer and more predictable for student-athletes, families, coaches, compliance staff and schools,” noted the NCAA in its Eligibility 101 release.
Problems have arisen because this applies to student-athletes who began college in 2023 or after. It does not recognize those student-athletes who began in 2022 and completed four years of eligibility earlier this year. In an era of name, image and likeness (NIL) and potentially big payouts these rules can be financially devastating for some individuals.
“That is what spawned huge litigation all over the United States,” said Kenneth A. Jacobsen, Practice Professor of Law and Director of the Sports Law Program at Temple University Beasley School of Law. “College football season is here and college basketball season is not far behind, and the athletes in the high school class of 2022 who were denied eligibility for that fifth year were running to court in order to get that eligibility.”
Suits were initially filed in federal court under an anti-trust theory. Jacobsen noted that courts have not been consistent on anti-trust matters. Then lawyers for the student-athlete pivoted to state courts, instead filing breach of contract cases.
“The bylaws of the NCAA and the member schools are a contract,” explained Jacobsen. “The schools agree to abide by those contracts, and the NCAA has to abide by those contracts, and the athletes, when they sign on to play sports, they agree to abide by those bylaws as well. So, the argument from the athletes is ‘We have a contractual relationship with the NCAA.’”
In a contract, it is implied that both sides are going to operate in good faith and honor the terms of the contract. The student-athletes from 2022 say the NCAA has not acted in good faith. “That is a theory more easy to explain; it’s more easy to prove than a complicated anti-trust case,” Jacobsen said.
While some states have NIL laws, Jacobsen noted that these laws are not consistently enforced. Also, the NIL landscape is ever-changing, so the state NIL laws are largely ignored and generally not mentioned in litigation.
Jacobsen has created a graphic showing that star football players in college potentially make more money than first-year NFL players. Only one NFL rookie quarterback made more than five student-athletes who stayed in school.
The College Sports Litigation Tracker details the dozens of cases that have been filed. There are currently around 79 lawsuits representing 450 plaintiffs. The NCAA continues to defend these cases.
Dr. Lisa Delpy Neirotti, director of the master’s in sport management program at George Washington University School of Business and an associate professor of sport management, noted that should the courts find in favor of the plaintiffs and order the NCAA to grant an extra year of eligibility it will cause chaos for incoming freshmen and the programs that recruited them.
“It’s destabilizing these set limits,” Neirotti said. “[Institutions] are trying to follow what the NCAA has listed about how many scholarships you can offer and how many people on your roster. When it’s up in the air if you have to take somebody back and you’ve already offered a spot to somebody new, how is that working?”
If former student-athletes are granted another year of eligibility, a team or sport’s required roster limits are then upended. Perhaps the freshmen won’t play, but most—at least for football and men’s basketball—were guaranteed certain NIL money. “It’s going to impact your budget, and it’s already tight,” said Neirotti.
Furthermore, there are also new age-based eligibility rules that state that the five years can begin no later than the academic year after a student-athlete’s 19th birthday. If someone misses two years due to injury, that student-athlete will have five years from when he or she began. If someone doesn’t start college athletics until they’re 21, they only have three years of eligibility because the clock started when they turned 19.
In Eligibility 101, the NCAA clearly wrote: “The age-based rules actually centers on a student-athlete’s age and when the student initially enrolls full-time in college, and it does not guarantee five years for all student-athletes, particularly those who delay enrollment.”
While this goes on in the courts, the Protect College Sports Act is still pending in Congress. The House Settlement is still on appeal with the federal appellate court—with some parts going forward and others on hold.
“I just don’t understand why the NCAA just didn’t give [the extra year],” Jacobsen said. “The classes of 2023, ’24, ’25…all got an extra year. If they’d have just given it to [class of 2022], they would have been applauded for finally adopting a rule that could be justified administratively and enables athletes to have that extra year within guardrails.”
“This is confusion in the marketplace,” Neirotti said. “The seasons are starting and you have all this administrative confusion...and you have to make these adjustments that weren’t budgeted for.”
Lois Elfman is an award-winning journalist whose work often focuses on higher education. She has examined complex contemporary issues, including gender equity, best practices for military veterans, innovative approaches to higher education, the enduring value of arts education, the impact of NIL of college sports, and LGBTQ inclusion. You can follow her on Twitter @LoisElfman.
