In two stunning orders late Friday, U.S. District Judge Charlotte N. Sweeney certified a nationwide class of Division I college athletes who began college play in 2022–2023, completed four years of eligibility by this past spring and are barred from a fifth season. She also issued a preliminary injunction barring the NCAA from preventing them from playing a fifth season.

Later in the evening, the SEC and Big Ten said they now support the Protect College Sports Act, a bill that would, among other things, grant the NCAA antitrust immunity on eligibility matters. Their support increases the odds the U.S. Senate will vote on and pass the bill, which has the support of President Donald Trump but would still need the approval of the House of Representatives.

These developments are separate and involve different branches of government, but are connected: if the PCSA becomes law, antitrust-based eligibility lawsuits would be rendered moot. But it might take months before the PCSA could become law, and by that point college rosters for football and basketball will be largely set.

The rulings by Judge Sweeney, who presides in Colorado, came in Wisne et al. v. NCAA, a case brought by University of Northern Colorado basketball player Brock Wisne and 11 other male and female Division I athletes whose NCAA eligibility has expired. Wisne appears to have turned pro, with EuroBasket reporting in June that the Spanish team Alimerka Oviedo Baloncesto signed Wisne after he graduated from college.

Friday’s rulings empower athletes who finished college this past spring and who want to return. Their return could potentially take away roster spots intended for incoming freshmen or transfers.

The rulings are also likely to face a swift appeal by the NCAA to the U.S. Court of Appeals for the Tenth Circuit. 

In a statement issued on Saturday, NCAA chief legal officer Scott Bearby called Judge Sweeney’s rulings “egregiously wrong” and hastily made “with virtually no evidence, and without witness testimony or even so much as a hearing.”

To those points, one probable appellate ground is the extraordinary speed at which the class was certified. Another is Judge Sweeney bypassing a temporary restraining order (TRO) to issue a more lasting preliminary injunction (PI).

How Wisne v. NCAA Started

In June, the NCAA’s Cabinet approved a new eligibility rule that provides for up to five years of eligibility. However, athletes who graduated high school in 2022 and who have completed their collegiate experience aren’t beneficiaries. The NCAA declined to retroactively make those players eligible since it could spark “roster chaos.”

Over the last month in state and federal courts across the country, athletes who are from the high school graduating class of 2022 have sued the NCAA over the same basic issue. 

These athletes contend it’s an antitrust violation for the NCAA and member schools to agree, through denied eligibility, not to compete for their athletic services and to deprive them of potential NIL and revenue share earnings. They argue it’s unfair that they spent four years competing against athletes who were granted a fifth year through COVID-era waivers and that the NCAA now allows former G League players to play.

In response, the NCAA has insisted it has the right, like other sports associations, to set eligibility rules. 

The NCAA has further noted college sports are unique since the athletes are students and that gives college sports a distinct and marketable quality. While college athletes nowadays can earn NIL and revenue share payments, they’re still full-time, degree-seeking students. College students are also expected to finish college and move on to another phase of life. College sports isn’t a “career” or “profession.”

College athlete plaintiffs haven’t sued in a vacuum. They’ve been enabled by colleges and coaches that assure them a roster spot if they can defeat the NCAA in court. The irony is those same colleges are NCAA members, meaning they’re contractually bound to follow NCAA bylaws that athletes challenge in court.

Wisne’s case was filed on July 8, about three weeks ago. Class certification is a process that normally involves an extensive briefing and usually takes months or years. In the seminal antitrust lawsuits brought by Ed O’Bannon, Shawne Alston and Grant House, more than a year — and sometimes four years— passed before certification.

Unpacking Judge Sweeney’s Reasoning

Despite the newness of the case, Judge Sweeney concluded Wisne’s group sufficiently met certification requirements. Impacted athletes have only weeks before they would re-enroll in college, which gave the judge reason to expedite the process.

The NCAA argued it’s nonsensical for there to be a nationwide class when there are similar, unresolved lawsuits raised in other courts. Also, athletes trying to extend their NCAA clock have very different circumstances; some could earn a great deal in NIL and revenue share while others might not net anything.

Judge Sweeney wasn’t persuaded. Although she conceded class members have “different factual circumstances,” she insisted they raise the same basic antitrust arguments.

In an appeal, expect the NCAA to stress that common questions of fact are normally required for certification. The NCAA could argue that even if Judge Sweeney is correct about Wisne and his co-plaintiffs, she shouldn’t have certified a nationwide class involving different athletes so quickly, with limited evidence, testimony and fact-finding.

Judge Sweeney jumping to a preliminary injunction is also likely to face NCAA rebuke.

As the judge noted in a footnote, the plaintiffs sought a TRO and, alternatively, a PI. A TRO usually lasts days or weeks, whereas a PI normally runs through a trial. Typically, a judge decides to grant a TRO and then, after more substantial briefing, decides on a PI. Judge Sweeney concluded there were already sufficient grounds to grant a PI.

Judge Sweeney rejected other arguments likely to surface in an appeal. As members of the House settlement, the 12 plaintiffs released claims against the NCAA. One release provision governs “number of seasons/length of time student-athletes are eligible to receive benefits.”

The judge concluded the NCAA’s cited language didn’t specifically address eligibility as a standalone topic. She also reasoned the release language is intended to cover NIL monetary benefits.

The NCAA further argued eligibility rules ensure athletes finish college and incoming freshmen take the roster spots. Judge Sweeney found this defense unconvincing; the presence of both athletes who stay in school past their NCAA eligibility and incoming freshmen arguably creates more, not less, competition.

The PCSA Could Render Eligibility Lawsuits Moot

The PCSA had stalled in the Senate as the SEC and Big Ten objected to language regarding media rights sharing and other topics. The conferences have now been sufficiently assuaged, which makes it more likely U.S. Senate Majority Leader John Thune (R-S.D.) will schedule a vote on the bill before the Senate takes a five-week recess beginning Aug. 7. 

Even if the PCSA advances in the Senate, its future in the House is unknown. The PCSA’s timeline is likely too slow to help the NCAA in cases involving fall rosters. The NCAA could decide to simply make players from the high school class of 2022 eligible. That kind of move would end cases like Wisne v. NCAA, but mean some incoming athletes lose roster spots.

In a statement Friday night, NCAA president Charlie Baker urged Congress to pass the PCSA. He warned “without targeted intervention from Congress, college sports cannot set nationwide rules,” adding “failed professionals will continue to use college sports as a fallback option — robbing the next class of young athletes of college scholarships.”

Attorney Ryan Downton, who represents class of 2022 athletes in eligibility litigation, criticized Baker’s reference to “failed professionals.”

“Mr. Baker,” Downton said, “derides these athletes as ‘failed professionals’ [but] that rhetoric is as disappointing as it is inaccurate.” Downton went on to say these athletes generate “billions of dollars” for colleges and others, and says they ask only “to receive the same eligibility as every athlete they competed against.”

UPDATED: This story was updated shortly after publication with a statement provided by the NCAA.