The NCAA’s 5‑in‑5 Plan: Restraint of Trade by Another Name
OPENING STATEMENTS
The NCAA is about to do what it does best: push through a sweeping eligibility rule that reshapes athletes’ lives without giving them a real say. The organization this week circulated guidance to schools on its proposed “5‑in‑5” rule, a strong signal that formal adoption is coming this month.
The structure seems as expected: five years to play up to five seasons, no traditional redshirts, no discretionary waiver years, with only narrow carve‑outs for military service, religious missions, and maternity. The eligibility clock would start at the earlier of a student‑athlete turning 19 or graduating high school.
Legally, the NCAA is setting up a fight it already understands. Courts have grown skeptical of eligibility rules framed as non‑commercial when they determine who can enter the most valuable pipeline to professional leagues and high‑end NIL money. The 5‑in‑5 rule is a classic restraint of trade: member schools, acting through the NCAA, are coordinating when and how they can purchase and deploy athletes’ labor.
Any athlete forced out after four seasons or denied additional time because of injury, late development, or non‑traditional pathways will have a straightforward antitrust story: lost years of competition, lost institutional and third‑party NIL, and lost revenue‑sharing tied directly to lost eligibility. It’s what happens when you want to run a commercial empire with amateur rules.
So expect quick challenges, starting with the 2026 class, which is capped under a rule student-athletes never had the chance to bargain over, and a second wave in early fall from athletes who unfortunately endure significant injuries that may cost them parts of two seasons, and can’t rely on redshirts or medical waivers.
This fits a larger pattern. The business model of college sports has been remade through litigation and legislation, but the governance model has not caught up. Athletes are being paid by schools, courted by collectives, and packaged into private‑equity‑style deals, yet the core rules that determine eligibility, mobility, and career length are still drafted in closed rooms by administrators and conference officials.
When those rules go too far, the fixes increasingly come from courts rather than athlete‑inclusive processes. That’s why we see more injunctions against eligibility limits, more class actions over redshirt rules and prize‑money caps, and more Title IX suits challenging how revenue‑sharing dollars are distributed and how Olympic sports are cut. The 5‑in‑5 proposal is one more bright‑line cap adopted unilaterally, almost inviting judges to answer how far NCAA control can stretch in a fully commercialized environment.
Under antitrust law, the attacks on 5‑in‑5 will be familiar. Athletes will argue that the NCAA and its members operate as a joint venture that restrains competition in the market for their labor by limiting supply: who can play, and for how long, without any meaningful bargaining with those workers. Courts applying the rule of reason will be asked to weigh claimed justifications (competitive balance, academic integrity, administrative simplicity) against concrete harms: fewer seasons, compressed careers, and lost NIL and revenue‑sharing income. Plaintiffs will lean on recent decisions that recognized Division I participation as a commercial opportunity in its own right, and that rejected older NCAA arguments that “amateurism” automatically justifies broad restraints.
Hockey may be the clearest early pressure point, given that its development pipeline runs through junior leagues, prep schools, and delayed enrollments. But so will older students, late developing high school athletes, lower-end scholarship and roster players and every athlete in an Olympic sport.
Given all of that, here’s what families should do now:
If you’re a parent or guardian, start treating eligibility the same way you would treat a contract or a job offer.
Map the eligibility clock early.
Demand documentation.
Treat waivers like legal filings.
Get qualified advice before you hit a crisis.
There is another path, of course. If eligibility rules were negotiated through collective bargaining with recognized college athlete unions, whether sport‑specific, conference‑based, or both, they could be shielded by labor law rather than constantly litigated under antitrust. But college sports keeps trying to keep the restraints without providing the bargain. As 5‑in‑5 barrels toward adoption, the real question is whether this is finally the rule that forces the system to admit that athletes can’t be both workers and bystanders when their careers are being capped.
EXHIBIT A
In a follow-up to last week’s analysis of Arkansas eliminating men’s and women’s tennis, the program just made an amazing statement that showed both the hope, and, sadly, the danger. Alumni and supporters reportedly raised about $5 million, and are fighting for reinstatement, a powerful response showing that so‑called non‑revenue sports carry real value and community. Here’s the problem: every AD, president, and, soon enough, private equity partner, is reading that as a template, not a warning. If tennis can be “saved” entirely on outside money, why not treat every Olympic and non‑revenue sport the same way: fully self‑funded or gone. All while football, men’s basketball and select other programs keep the institutional dollars? That quietly flips these programs from part of the educational mission into charity projects, likely making for deliberate choices to turn broad‑based participation into a pay‑to‑play ecosystem where only the sports with wealthy, organized boosters get to exist.
EXHIBIT B
I was reminded of that famous line from former president Ronald Reagan this week: “The nine most terrifying words in the English language are: ‘I’m from the government, and I’m here to help.’” Ok, maybe an overstatement. But AL.com reporter Matt Stahl looked into some parallels with horse racing and college sports - the first which sought and received government protection, the second which is seeking it. His story offers a warning that federal help may sound like a quick fix, but horse racing should be taken as a cautionary tale. After years of fractured, state‑by‑state rules, racing’s Horseracing Integrity and Safety Act was sold as a play for “uniformity” and stability. Instead, it triggered federal lawsuits, deeper fragmentation, and what insiders now call a looming “world of storms” – the same constitutional and governance risks that could follow any federal fix for the NCAA.
ON THE DOCKET
The NCAA has officially expanded its men’s and women’s basketball tournaments, while the American Football Coaches Association is openly backing a 24‑team playoff. Putting aside the timing - that these are happening while tennis, golf and swimming programs are being cut - I wonder whether this access to more money ends up paying off on a macro level. Because there are downstream costs. More rounds mean longer seasons, more missed class time, and more wear and tear on athletes who are still, theoretically, students first. They also crowd the calendar for every other sport, making it even harder for non‑revenue championships to find oxygen, media windows, or campus attention. At some point, when the ninth‑best SEC team is playing in front of a half‑empty neutral site, the market will send a message: you can’t keep monetizing mediocrity at the top without shrinking everything else that makes college sports worth watching.
FOOTNOTES
“I do think we’ll get to a bifurcated system, that will have two pay-per-play models. One is that you will be paid to play your game, and others you’ll have to pay if you’re going to play your game. And so that’s where we’re going to end up, I think, at some point.”
Bubba Cunningham, University of North Carolina AD
