Judges sound a skeptical note about players arguments in key college eligibility case

The attorney representing athletes in a key case regarding the NCAA's new five-year eligibility rule took a series of questions Tuesday from federal judges who sounded skeptical about the players' ability to pinpoint the depth of the economic harm they have suffered from the change.

A lower-court judge in the case, Wisne vs. NCAA, initially ruled in favor of the players, granting all NCAA athletes who graduated high school in 2022 a fifth year of eligibility for this school year after the NCAA had excluded them from the new rule.

An appeals court blocked that ruling and its full hearing came in front of a three-judge panel of the U.S. 10th Circuit Court of Appeals in Denver, which will rule at a later date. All three asked multiple questions to plaintiff attorney Robert Shelquist over the plaintiffs' attempts to define the market for the players.

That definition would be key to determining how the players are being harmed by being declared ineligible. It's the benchmark the judges said was key to winning an antitrust lawsuit such as this.

“It doesn't seem there's been a definition of the market from a huge, huge division — golf, everything,” said U.S. Circuit Judge Paul Kelly, a nod to the wide difference in earning power between, say, a college football player and golfer. “And you're lumping them all together and you never looked at commonality and interchangeability of the various buyers."

Shelquist argued an analysis presented by the plaintiffs that was prepared by University of Mississippi legal scholar William Berry III provided a framework of what the market for the players would look like if they were deemed eligible.

Arguing for the NCAA, attorney Rakesh Kilaru argued the plaintiffs' analysis takes all the players and “lumps all of those individuals together in a way that does not make economic sense.”

If the judges rule in favor of the NCAA, it would set what could be an important precedent but would not necessarily end the legal wrangling.

After they blocked the initial ruling, cases in state courts across the country went on — most notably one in Louisiana that led LSU to look into bringing on two football players who had spent time this summer in NFL training camps. More recently, the NCAA has won cases in Kentucky, Ohio and Arizona.

The judges also asked both attorneys if they should delay their decision to see whether Congress passes the Protect College Sports Act, a bill that made it through the Senate last month that would limit these sorts of lawsuits in the future.

The bill would not preempt active lawsuits, and both attorneys urged the court not to wait, with Shelquist reminding the judges of the narrow window for this group of players who left high school in 2022, with this school year's football season halfway over and basketball season about to begin.

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