Pavia v. NCAA: The Echoes of NCAA v. Alston?

[1]

The National Collegiate Athletic Association’s ("NCAA’s")  rules have been under attack since the 2021 decision of National Collegiate Athletic Association v. Alston, with student-athletes challenging the NCAA’s junior college eligibility rules in recent months.[2] Specifically, student-athletes are challenging NCAA Bylaw 12.02.16, which has now been re-numbered 12.02.3, which states that “intercollegiate competition is considered to have occurred when a student-athlete in either a two-year or a four-year collegiate institution [participates in certain activities, such as practice or competition].” [3] Furthermore, Bylaw 12.6 restricts student-athletes to four years of eligibility in a five-year period, and those four years of eligibility include years spent at non-NCAA institutions – e.g., junior colleges – per Bylaw 12.02.3.[4]

Pavia v. NCAA leads the way, with many other eligibility lawsuits following his argument that seasons used at junior colleges should not count towards NCAA eligibility, and some other cases have been stayed until the preliminary injunction in Pavia was decided on appeal.[5] Pavia has now been decided at the Sixth Circuit Court of Appeals and has the opportunity to change the landscape of eligibility lawsuits, just as Alston did with lawsuits against the NCAA generally.[6]

The Decision in District Court:

Vanderbilt quarterback Diego Pavia is a “2-4-4 transfer,” meaning that he competed at a two-year institution, then transferred to two separate four-year institutions.[7] Pavia began his football career at the New Mexico Military Institution in 2020 and 2021, then transferred to New Mexico State University for 2022 and 2023, before landing at Vanderbilt University for the 2024 season.[8] Under current NCAA bylaws, Pavia has exhausted all eligibility, after using the allotted four seasons, plus a fifth season due to the extra year of “COVID” eligibility given to athletes whose competitions were affected in 2020.[9]

Pavia argued that Bylaw 12.02.16 – now Bylaw 12.02.3 – unreasonably restrains trade under antitrust laws, as it does not allow student-athletes to take advantage of their NIL potential.[10] NIL is incredibly lucrative at the four-year institution level while being almost nonexistent at the junior college level, so Pavia believes he – and other athletes – should not be barred from obtaining those lucrative NIL opportunities for four years at a four-year institution, regardless of time spent at a junior college.[11] 

The judge in Pavia favored this argument and granted Pavia a preliminary injunction in December of 2024, giving Pavia one more year of eligibility, which disappears only when the judge rules on the merits in favor of the NCAA.[12] A preliminary injunction is granted after the court looks at several factors: “(1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff is likely to suffer irreparable harm absent the injunction; (3) the balance of equities; and (4) the impact of the injunction on the public interest.”[13] The court clearly viewed the NCAA negatively, which shows in the appeal of Pavia’s preliminary injunction.[14] 

The NCAA’s Blanket Waiver

In response to Pavia’s preliminary injunction, the NCAA Division I Board of Directors approved a blanket waiver granting an extra year of eligibility to all athletes who competed at a non-NCAA institution, e.g., a junior college, for at least one year and who would exhaust eligibility after the 2024-25 season.[15] However, the blanket waiver does not broadly give an extra year of eligibility to a student-athlete who would otherwise meet the requirements but did not exhaust eligibility after the 2024-25 season, leading to uncertainty about their futures.[16]

The Decision in the Sixth Circuit Court of Appeals

The Sixth Circuit Court of Appeals viewed the NCAA in a negative light – much like we have seen in previous cases, such as NCAA v. Alston -  and ruled in favor of Pavia.[17] The court ruled that because the NCAA enacted the aforementioned blanket waiver, confirmed it would cover Pavia, and announced that the blanket waiver would remain in place regardless of the outcome of the appeal, the appeal of the preliminary injunction was moot.[18] This does not on its own provide strong precedent against the NCAA, as the appeal was only moot for Pavia and student-athletes that fall under the blanket waiver, but the scathing concurrence by Circuit Judge Hermandorfer harkens back to Justice Kavanaugh’s nearly precedent-setting concurrence in Alston.[19]

The Concurrences

In Alston, Justice Kavanaugh wrote a concurrence that sent shockwaves through the collegiate athletics world:

I add this concurring opinion to underscore that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws . . . [T]here are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary rule of reason scrutiny. Under the rule of reason, the NCAA must supply a legally valid procompetitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification . . . Businesses like the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product.[20]

Although not the majority opinion, Justice Kavanaugh’s concurring opinion has been vastly cited by courts ruling in favor of student-athletes versus the NCAA, including in Pavia.[21] This was a “rallying cry” from a Supreme Court Justice, which has been used as precedent without an inherent precedential value.[22]

A similar rally cry came from Circuit Judge Hermandorfer’s concurrence in Pavia:

Under prevailing theories of antitrust harm, NCAA member schools’ market coordination through the JUCO Rule raises red flags . . . [M]any restraints on labor markets in professional sports operate only by virtue of exceptions to the antitrust laws, like the statutorily implied one covering collective bargaining . . . or the judicial invented one covering baseball . . . . No such exception applies to the NCAA at present.[23]

There are many eligibility challenges still being considered by both District Courts and Courts of Appeals: Larry v. NCAA, Boyd v. NCAA, Bellamy v. NCAA, Fourqurean v. NCAA, Agee v. NCAA, Manu v. NCAA, Patterson v. NCAA, Zeigler v. NCAA (where the Court asked the parties to “file a joint status report addressing the impact of the Sixth Circuit’s Pavia decision”), Braham v. NCAA, Elad v. NCAA, Robinson v. NCAA, Moore v. NCAA, Martinson v. NCAA, Bustard v. NCAA, Hasz v. NCAA (stayed until both Pavia and Elad are decided on appeal), Giles v. NCAA, and Osuna v. NCAA (stayed until Pavia was decided on appeal).[24] The Pavia decision, and likely the concurrence, will certainly affect those cases where judges have expressly shown interest in the decision.

It is not clear whether this will have the same effect as Justice Kavanaugh’s concurrence in Alston, but with student-athletes bringing new eligibility lawsuits every day and the NCAA appealing each loss at the District Court, we have certainty not heard the last of the blistering criticisms of the NCAA.

Victoria Pineschi (staff writer) is a 3L at Villanova University Charles Widger School of Law. She graduated from Texas A&M University with a BS in Political Science. Growing up, she played volleyball and was (and still is) a massive San Francisco Giants fan. At any point in time, you could find her watching the San Francisco Giants or the Texas A&M football team, basketball team, baseball team, or volleyball team. Tory hopes to work in the athletic compliance office of a DI college or university upon graduation.

References:

[1] Photo by Gene Gallin on Unsplash

[2] See Darren Heitner, Jett Elad v. NCAA: A Game-Changing Ruling for College Athlete Eligibility, Heitner Legal (Apr. 27, 2025), https://heitnerlegal.com/2025/04/27/jett-elad-v-ncaa-a-game-changing-ruling-for-college-athlete-eligibility/.

[3] Bylaw 12.02.3, NCAA (Jul. 1, 2025), https://web3.ncaa.org/lsdbi/bylaw?ruleId=7705&refDate=20251019.

[4] See Bylaw 12.6, NCAA (Jul. 1, 2025), https://web3.ncaa.org/lsdbi/search/bylawView?id=144905.

[5] See, e.g., Osuna v. Nat’l Collegiate Athletic Ass’n, No. 3:25-CV-62, 2025 WL 1463149 at *4 (E.D. Tenn. May 21, 2025)

[6] See generally Pavia v. Nat’l Collegiate Athletic Ass’n, No. 24-6153, 2025 WL 2787816 (6th Cir. Oct. 1, 2025).

[7] See Morgan Moriarty, Diego Pavia Lawsuit, Explained: Vanderbilt QB Granted Preliminary Injunction, Eligible to Play in 2025, The Sporting News, https://www.sportingnews.com/us/ncaa-football/news/diego-pavia-lawsuit-ncaa-eligibility/a779e213ea1440b26533a549.

[8] Id.

[9] See generally Heather Dinich, NCAA Votes to Give Extra Year of Eligibility to Division I Fall Athletes, ESPN (Aug. 21, 2020), https://www.espn.com/college-sports/story/_/id/29712267/ncaa-votes-give-extra-year-eligibility-division-fall-athletes.

[10] See Moriarty, supra note 5.

[11] Id.

[12] Id.

[13] Pavia v. Nat’l Collegiate Athletic Ass’n, 760 F. Supp. 3d 527, 535-36 (M.D. Tenn. 2024), appeal dismissed as moot, No. 24-6153, 2025 WL 2787816 (6th Cir. Oct. 1, 2025).

[14] See id.; Pavia, No. 24-6153, 2025 WL 2787816.

[15] See Eli Lederman, NCAA Grants Waiver to Ex-JUCO Players While Appealing Pavia Ruling, ABC News (Dec. 24, 2024), https://abcnews.go.com/Sports/ncaa-grants-waiver-juco-players-appealing-pavia-ruling/story?id=117079035.

[16] See id.

[17] See Pavia, No. 24-6153, 2025 WL 2787816 at *5.

[18] Id. at *2.

[19] See id.; Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 108-10 (2021) (Kavanaugh, J., concurring).

[20] Alston, 594 U.S. at 108-10 (Kavanaugh, J., concurring).

[21] See, e.g., Pavia, 760 F. Supp. 3d at 539.

[22] Sean Gregory, Why the NCAA Should be Terrified of Supreme Court Justice Kavanaugh’s Concurrence, TIME (June 21, 2021), https://time.com/6074583/ncaa-supreme-court-ruling/.

[23] Pavia, No. 24-6153, 2025 WL 2787816 at *9 (Hermandorfer, J., concurring).

[24] Exploring Ongoing Cases in College Sports Litigation, College Sports Litigation Tracker, https://www.collegesportslitigationtracker.com/tracker.