Last Saturday I wrote about an executive order that tells you what it can’t do. This week, everyone else tried too.
In the span of five days: two federal circuit courts vacated eligibility injunctions, the NCAA floated a new five-year eligibility rule, over a thousand basketball players entered the transfer portal before lunch, thirty university presidents got on a call with two senators, and the College Sports Commission released a memo that reads like an institution discovering the limits of its own authority in real time. All of this happened simultaneously. None of it was coordinated. Welcome to governance by collision.
Two Courts, Same Week, Same Answer (Sort Of)
On Friday, the Fourth Circuit vacated the preliminary injunction that had let West Virginia defensive lineman Jimmori Robinson and three teammates keep playing after exhausting their eligibility. On Tuesday, the Ninth Circuit did the same to Nevada baseball player Noah Blythe. That’s two appellate courts in five days telling athletes: you don’t get to keep playing just because a district judge said so.
Two wins in a week. But the fine print matters more than the headline.
The Robinson decision is the one that matters analytically, and McCann’s analysis at Sportico lays out why: Judge Floyd did something the NCAA really didn’t want. He held that eligibility rules are subject to antitrust scrutiny. The NCAA had argued that eligibility is educational, not commercial, and therefore immune from Sherman Act analysis. Floyd rejected that. Eligibility rules, he wrote, limit athletes’ participation in a labor market and interfere with their right to engage in commerce. The rules aren’t exempt. They’re just not proven illegal yet, on this record, with this evidence. And rule of reason — the standard Floyd applied — is one that tends to favor defendants.
That distinction between “not proven illegal” and “not subject to scrutiny” is the whole ballgame. The NCAA won on procedure (Robinson didn’t establish a relevant market) while losing on principle (eligibility is antitrust-reviewable). Three circuits have now weighed in. The Fourth says antitrust applies but the evidence was thin. The Seventh rejected the antitrust framing entirely. The Sixth mooted itself when the NCAA granted a blanket waiver. Floyd used the phrase “capable of repetition, yet evading review,” which is as close as a circuit judge gets to writing “Dear Supreme Court: your move.”
The Five-Year Rule Nobody Asked For
While the courts were pulling back injunctions, the DI Cabinet was preparing to meet next week on a proposal that would give athletes five full years of eligibility from their 19th birthday or high school graduation, whichever comes first. No waivers. No redshirts. No exceptions except maternity leave, military service, and religious missions.
On paper, this looks like the NCAA responding to the executive order’s call for a five-year cap. In practice, the NCAA is trying to get out from under a waiver system that’s become unmanageable. Last academic year, the NCAA received 1,450 waiver requests for extended eligibility. It granted about two-thirds. Of the roughly 500 denials, more than 70 resulted in lawsuits. That’s a 14% litigation rate on denied waivers. The administrative apparatus designed to manage eligibility exceptions has become a lawsuit factory.
The five-year rule eliminates the factory by eliminating the exceptions. No waivers means no waiver denials means no lawsuits over waiver denials. Clean. Except for one thing: as McCann noted, any NCAA eligibility rule — including this one — can be challenged as an antitrust violation because it wasn’t collectively bargained. The new rule solves the waiver problem. It doesn’t solve the antitrust problem. It just changes which rule gets challenged.
And then there’s Noah Blythe. He played 21 COVID-limited games at D-II Hawaii Pacific, bounced to NAIA Antelope Valley for three seasons (where he dealt with a hand injury and the school literally went bankrupt), went back to Hawaii Pacific, and then tried to play at Nevada. His five-year clock ran out despite circumstances that no reasonable person would call a full college career. Under the proposed new rule, with no waivers and no exceptions, Blythe doesn’t even get to ask. He’s just done.
The NCAA won two appellate rulings on eligibility this week, and the wins are real. But the five-year proposal, by eliminating all exceptions, will generate more sympathetic plaintiffs than the ones it’s currently facing. The pattern is familiar: solve today’s problem, create tomorrow’s.
A Thousand Players Before Lunch
Meanwhile, on the ground, the system the five-year rule is trying to constrain doesn’t care about governance timelines.
More than 1,000 men’s basketball players entered the transfer portal within ten hours of the window opening on April 7. For context: about 2,100 entered in all of 2024. About 2,700 in 2025. Coaches expect this year to top 3,000. If that holds, roughly one in six Division I men’s basketball players will change schools in a single cycle. On the women’s side, 560 players across 229 schools had entered by the end of the first two days.
Top big men are commanding $4 to $5 million in the portal, according to CBS Sports’ Jeff Goodman, citing more than ten high-major coaches. A New Providence head coach said he hasn’t spoken to a single agent or player who asked for less than a million.
This is the empirical backdrop that makes everything else feel slightly absurd. The DI Cabinet is debating a five-year eligibility window. The courts are adjudicating whether the current window violates antitrust law. The executive order proposes rolling back the one-time transfer rule. And a thousand basketball players entered the portal before anyone finished reading the proposals.
Thirty Presidents, Two Senators, and a Very Notable Absence
On Monday, more than thirty university presidents from at least six FBS conferences got on a call with Senators Maria Cantwell and Eric Schmitt. The primary topic was the Sports Broadcasting Act, which would allow schools to jointly sell media rights across conference lines. That’s a specific antitrust fix — not comprehensive reform, but a targeted mechanism to address revenue disparity between conferences.
The senators were direct. The SCORE Act, as written, will not pass the Senate. Revenue sharing has to be part of any bill. They described the situation as urgent and said they’re hopeful to push legislation through Congress by summer.
Brandon Marcello’s reporting on the call had the attendance detail that matters. Fifteen of sixteen Big 12 presidents showed up. Nine from the ACC. About ten total from the Pac-12, American, and MAC. The Big Ten sent two. The SEC sent zero.
And then Wednesday morning, an update: Ohio State was invited and declined.
The conferences with the most to gain from revenue redistribution were the ones on the call. The conferences that benefit most from the current structure stayed home. It’s possible that’s just how the SEC operates — legislative engagement through the conference office rather than individual presidents. But Ohio State, the biggest brand in the Big Ten, didn’t just pass — they declined an invitation from two sitting senators. That’s not institutional process. That’s a position.
The Cruz-Cantwell bipartisan bill is reportedly near draft stage. Whether the five committees Trump formed after signing the executive order will be involved in drafting it remains an open question. Whether a bill can pass without SEC and Big Ten buy-in remains a bigger one.
The CSC Memo: Writing Rules Without a Pen
The College Sports Commission released a four-page memo this week that I’d encourage anyone following this space to read in full. It’s the most revealing document of the week, not for what it directs, but for what it inadvertently reveals about the limits of the system it’s supposed to govern.
The headlines: deals between $600 and $2,500 won’t be reviewed for range of compensation unless an athlete has hit $15,000 in Associated Entity deals for the year. NIL agreements with Associated Entities must include specific activation plans (no more warehousing rights with no plan to use them). Institutions can’t direct third parties to cover agent fees or buyout obligations to circumvent the benefits cap. Previously cleared deals where athletes never performed their obligations are being investigated.
All reasonable enforcement priorities. But buried in the Associated Entity section is a sentence that tells you everything: the CSC notes that inquiries into whether sponsors are truly “not Associated” are becoming more frequent because “sponsorship revenue that traditionally went to institutions is sometimes being redirected by those institutions to third-party NIL deals for purposes of recruiting and retaining student-athletes.”
That sentence is the CSC admitting, in writing, that institutional money is flowing through third parties specifically to avoid the framework the CSC itself administers. The enforcement body is publishing evidence of the mechanism being used to circumvent its own rules. And it has no subpoena power, no discovery mechanism, and no way to compel the information it would need to actually enforce the rules it’s writing.
Darren Heitner put it plainly on X: “Many schools are doing this. What will the CSC do about it? What tools does it even possess to obtain the proof through some form of a discovery process?”
Heitner’s newsletter this week was kind enough to cite last week’s executive order analysis, and his own breakdown of the legal landscape added two critical pieces I’ll get to in the next section. But on the CSC, his read matches mine: the memo is governance aspiration meeting enforcement reality. The gap between the two is where the system actually lives.
The Consent Decrees Nobody’s Talking About (Until Now)
These are the two pieces Heitner’s newsletter added to the picture, and they’re the ones that make the executive order’s self-limiting clause feel less like a caveat and more like a confession.
The executive order directs the NCAA to reinstate transfer restrictions. But in Ohio v. NCAA, multiple state attorneys general and the U.S. Department of Justice sued the NCAA over its transfer eligibility rules on antitrust grounds. The court granted an injunction. The NCAA withdrew the rule. The parties entered a consent judgment and permanent injunction in May 2024. The same federal government that argued transfer restrictions were unlawful is now, under a different administration, directing their reinstatement.
The executive order directs the NCAA to crack down on NIL collectives. But in Tennessee v. NCAA, a federal court permanently enjoined the NCAA from enforcing rules restricting NIL recruiting activities by collectives and third parties. The settlement requires the NCAA to publish any proposed NIL rules 30 days before any vote and to consult with plaintiff states before implementing new restrictions.
Two federal consent decrees. One blocks the NCAA from restricting transfers. The other blocks it from restricting collectives. The executive order tells the NCAA to do both. And the order’s own Section 4(b) says the NCAA can only act “to the extent permitted by law and applicable court orders.”
Tennessee Attorney General Jonathan Skrmetti — a Republican — told reporters the executive order “probably will not survive litigation.”
Updated Probabilities
Here’s where I see the six reform pathways after this week:
Broad antitrust exemption (SCORE Act as-is): 2–4%, down from 3–6%. Senators told thirty presidents directly that SCORE won’t pass as written. This pathway is effectively dead unless the bill gets fundamentally rewritten.
Executive order as standalone reform: 2–4%, down from 3–5%. The Ohio and Tennessee consent decrees mean the EO’s two biggest directives (transfers and collectives) run into existing federal court orders. The Harvard funding-freeze precedent suggests courts will scrutinize the federal funding lever. A Republican state AG says it won’t survive litigation. This pathway was always aspirational. It’s now aspirational with receipts.
Narrow or hybrid legislation (compromise): 32–38%, up from 27–33%. The Cantwell-Schmitt call is real momentum with a specific legislative vehicle. The SBA is a targeted fix, not comprehensive reform, which makes it more passable. Revenue sharing as a prerequisite for Senate passage is now explicit. The risk factor is SEC and Big Ten absence — legislation without buy-in from the two biggest conferences faces implementation problems even if it passes. But the political momentum is the strongest it’s been.
Conference-level governance: 3–6%, down from 4–8%. The CSC memo demonstrates enforcement ambition without enforcement capacity. The DI Cabinet’s five-year proposal shows the NCAA trying to exercise governance authority, but Robinson confirms any unilateral rule faces antitrust vulnerability without collective bargaining.
Collective bargaining: 20–26%, up from 18–24%. Every failed governance attempt this week makes bargaining look more inevitable. Robinson holds eligibility rules subject to antitrust — the only durable fix is bargained rules. SCORE dead as written means antitrust exemption isn’t coming legislatively. Tennessee AD Danny White publicly endorsing collective bargaining as legally viable. The logic has been there for a while. The institutional resistance is what’s kept this lower. But the resistance is running out of alternatives.
Litigation as governance (default): 88–95%, up from 86–93%. Two circuit rulings in one week. Seventy-plus eligibility cases since 2024. Two consent decrees constraining both transfer and NIL rulemaking. The portal generating over a thousand new potential plaintiffs per cycle. The system is governed by court orders, consent decrees, preliminary injunctions, and settlement agreements. Not by any institution with democratic legitimacy and not by any elected body. The question isn’t whether litigation governs college sports. It’s whether anything else will before the Supreme Court has to sort it out.
So What Actually Happened This Week?
Five different governance structures tried to solve the same problem simultaneously and contradicted each other in the process. Courts pulled back eligibility injunctions while holding eligibility rules antitrust-reviewable. The NCAA proposed a new rule that closes one litigation pathway and opens another. The executive order directed the NCAA to do things two federal consent decrees say it can’t. Thirty presidents called two senators while the two most powerful conferences stayed home. And the CSC published evidence of the mechanism schools use to circumvent its own rules, then asked everyone to follow the rules.
Nobody is in charge. Everybody is governing. The system isn’t broken in the way people usually mean when they say that — it’s not that the parts don’t work. It’s that the parts work fine individually and contradict each other collectively. That’s harder to fix than broken. Broken you can repair. Contradiction you have to resolve, and resolving it requires someone with the authority to choose. Right now, that someone is the federal judiciary, by default, one injunction at a time.
The grill stays hot. More next week.
If you’re finding this analysis useful, share it with someone trying to make sense of the chaos. And if you’re new here, the Saturday post has the full executive order breakdown.
Thnx for this KS and to MM and DH also.
I see a broken system that can be repaired and contradictions that can be resolved. But If leadership won’t choose, the courts will.
The issue isn’t complexity any more….its courage.
For some, yes...for others its inviting.