By Patrick Hincks
In the aftermath of the landmark US Supreme Court case, Nat’l Collegiate Athletic Ass’n v. Alston, the NCAA’s widespread latitude in the antitrust context was curtailed.[1] In his concurrence, Justice Kavanaugh stated that “there are serious questions whether the NCAA’s remaining compensating rules can pass muster under the ordinary rule of reason scrutiny.”[2] In a rule of reason analysis, the plaintiffs have the initial burden of proving that there was some sort of anti-competitive behavior. If successful, the defendants can point to a pro-competitive benefit in the market. If a pro-competitive benefit is properly pointed to, the plaintiffs have the final challenge of coming up with a less restrictive and equally beneficial way to accomplish the objective. In these cases, the NCAA has historically dominated; their argument was that in the name of amateurism, there was a pro-competitive benefit in favor of having eligibility rules.[3] However, after Alston, the strong presumption that their amateurism argument would work no longer appears to be the case, which has made the NCAA nervous to fight an ever-growing number of challenges to their eligibility rules. In granting eligibility to players that may have played professionally or that would not have been eligible under previous NCAA eligibility rules, the NCAA avoids the prospect of being sued and risking a further painful antitrust defeat—one that Kavanaugh thinks is inevitably coming. This ruling, in the sport of basketball, has led to a few players that have played professionally in the G-League, the NBA’s de facto minor leagues, to return to the college level (i.e., Charles Bediako at Alabama and James Nnaji at Baylor).
The challenge that faces—and scares—the NCAA is the inevitable argument that a player that has played in NBA games should be allowed to return to the college level. An unfavorable ruling for the NCAA in this context would destroy the current infrastructure and upend the current idea that players who play professionally in the NBA cannot return to college. This would create a world in which players who may be fringe NBA draft prospects can get drafted, test their ability in the NBA, and if it does not work out, come back to college and continue as if they never left. NCAA President, Charlie Baker, has made clear that the NCAA will fight this case and stated shortly after Alabama’s Charles Bediako was deemed eligible by an Alabama judge that, “[a] judge ordering the NCAA to let a former NBA player take the court Saturday against actual college student-athletes is exactly why Congress must step in and empower college sports to enforce our eligibility rules.”[4]
The case the NCAA has feared may be coming with the attempted return to college basketball of former UCLA player, Amari Bailey, who has played in 10 NBA games. Bailey’s camp has yet to file a lawsuit, but if they do, they will bring forth the same argument that has been brought in a lot of these other eligibility cases that the NCAA’s eligibility rules are an unreasonable restraint of trade. However, the NCAA may have a strong pro-competitive argument in this setting. The number of players that have played in the NBA and have not exhausted their eligibility is significant and allowing them to come back to college would disproportionately hurt incoming players from the high school level, which would contradict the NCAA’s focus on “student-athletes” that has been at the core of their operating model. The problem the NCAA has had is that courts have looked at their increasingly relaxed transfer rules and have had a harder time buying their pro-competitive benefit argument. In the case of Vanderbilt quarterback Diego Pavia, the court found “it highly implausible that frequent transfers, even those within NCAA institutions, benefit an athlete’s academic career and promote natural and standard degree progression” in response to the NCAA’s pro-competitive benefit argument that their eligibility rules differentiate between collegiate and professional sports.[5] However, transferring schools still for the most part keeps the student-athlete on track to graduate, just at another school. Going to the NBA and returning to college completely upends any degree progression. If the NCAA can successfully make the argument to protect traditional high school recruits, a court may be willing to find a pro-competitive benefit in preventing the NBA players from coming back.
Patrick Hincks is a 2L at Vanderbilt Law School. He plans on pursuing a career in Corporate M&A after law school.
[1] Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021).
[2] Id. at 108 (Kavanaugh, J., concurring).
[3] See McCormack v. Nat’l Collegiate Athletic Ass’n, 845 F.2d 1338 (5th Cir. 1988); Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328 (7th Cir. 2012).
[4] Dan Murphy, Amari Bailey, with 10 Games in NBA, Seeks College Eligibility, ESPN (Jan. 30, 2026, 15:38 ET), https://www.espn.com/mens-college-basketball/story/_/id/47780686/amari-bailey-10-games-nba-seeks-college-eligibility.
[5] Pavia v. Nat’l Collegiate Athletic Ass’n, 760 F. Supp. 3d 527, 543 (M.D. Tenn. 2024).