Roddy Gayle, Jr. is a twenty-three year old basketball player who has spent the last four academic years playing at Ohio State and Michigan, making seven figures along the way and winning a national championship during his senior year. After his last season finished, Gayle was not drafted by an NBA team, tried to earn a contract over the summer, was unable to do so, and… enrolled back at Michigan for a fifth year of college. At the same time, Gayle filed a suit in the state of New York to enjoin the NCAA to deem him eligible to compete in the 2026-27 college basketball season. On September 24, Gayle was granted a preliminary injunction and is currently eligible to play, though the decision will be appealed.

Jalen Washington is a twenty-two year old basketball player who has spent the last four years playing at the University of North Carolina-Chapel Hill and Vanderbilt, making seven figures along the way and playing in the NCAA March Madness tournament. After his last season finished, Washington was not drafted by an NBA team, tried to earn a contract over the summer, was unable to do so, and… enrolled at the University of Tennessee for a fifth year of college. Washington also filed a suit in the state of Tennessee against the NCAA and was granted a preliminary injunction. However, the injunction was stayed on August 26 by the Tennessee Court of Appeals, pending briefing on the merits. This means that Washington is currently ineligible for the upcoming season, which starts in just one month.

Whether hundreds of athletes like Gayle and Washington can play may depend on the court in which they sue the NCAA. The ambiguity stems from the NCAA’s new eligibility model, approved in June. Previously, the NCAA allowed athletes to play for four years within a five-year eligibility clock. Tools such as redshirts and various waivers were used to manage that clock. The new rule instead grants athletes five full years of eligibility and limits almost all such tools (the “5-in-5” rule). Simple enough.

Not so for those, like Gayle and Washington, who have just played four straight years of college basketball. These athletes occupy an unusual position in the sport’s transition because they exhausted their traditional eligibility just before the new system was implemented. As a result, most of them would not be able to take advantage of a fifth year on the basketball court. Rushing instead to courts of law, these players all ask: if the NCAA has now determined that five years is the proper eligibility period, can it lawfully deny a fifth year to those who have just exhausted their eligibility?

This is not merely a legal inquiry; athletes are asking to remain “students” because of the potential economic value of doing so. For those at the top of the sport, another year in school means another year to generate seven-figure NIL income and improve their stock to play professionally. And for many who do not have professional prospects but are good enough to play college basketball, it means generating more income than they probably would otherwise and that they perhaps will rely on for years to come, as well as access to health insurance, meals, housing, and other benefits.

The result has been chaos. Athletes have filed numerous suits in courts across the country, bringing a host of antitrust and contract claims. On the theory that the NCAA’s new rules exclude athletes and thus act as a horizontal restraint over the relevant labor market in violation of §1 of the Sherman Act, the District of Colorado granted a preliminary injunction for all athletes who had just exhausted their eligibility. However, the injunction was quickly stayed by the Tenth Circuit, pending briefing on the merits. Oral argument was held on October 13, just a few weeks before the college basketball season begins.

In state court cases like those brought by Gayle and Washington, athletes are largely arguing that the NCAA has applied its rules inconsistently in a way that has left them, as third party beneficiaries to contracts between the NCAA and its member institutions, uniquely disadvantaged. Several courts have agreed and provided temporary relief to athletes. The NCAA has predictably appealed each preliminary injunction and obtained stays by state appellate courts.

This surge in litigation and ephemeral eligibility has created significant uncertainty. Some players are currently eligible through preliminary injunctions while others must wait for their cases to be decided on appeal. Coaches and players are left largely in limbo awaiting courts’ final judgments while watching the clock tick toward the upcoming season. As one head coach who had rostered a player with exhausted eligibility stated, “I don’t think anybody knows what’s going on with this… hopefully it’ll land right for us.”

Without addressing the uncertainty, on September 28, the Senate finally passed the Protect College Sports Act (“PCSA”) and sent it to the House. The PCSA largely affirms the NCAA’s prospective eligibility rule but leaves the status of athletes with recently exhausted eligibility unanswered. Though it is unlikely to become law any time soon, if it does, Congress will leave potential eligibility disputes to the courts and let them play out, no matter the patchwork of results.

The background conditions giving rise to this chaos point to more than just the question of whether the current crop of recent graduates should be able to play college basketball for a fifth year. They exemplify a structural asymmetry of power. At first glance, that the NCAA’s new rule only applies prospectively does not seem unjust. Its application is universal. It will establish consistent age-based guidelines. And retroactive application invites a slippery slope: if athletes with recently exhausted eligibility became eligible, why not those who exhausted their eligibility two, three, ten years ago? The problem lies in the NCAA’s ability to do so arbitrarily; at its discretion and on its own timeline. Athletes have no input and yet must bear the various consequences of the NCAA’s unilateral decision-making.

Nevertheless, within the chaos may be a way to challenge the NCAA’s power through the countervailing power of the courts. As one state trial court judge who granted a set of athletes temporary relief and concomitant eligibility concluded, the “NCAA’s eligibility rules have been applied in an arbitrary and capricious manner.” If courts quickly issue judgments in the athletes’ favor, they will provide relief from the organization’s unchecked ability to grant or deny player eligibility while also demonstrating their role as institutions through which athletes can successfully challenge the NCAA’s power going forward. That is a hopeful picture.

The next month may realize a less hopeful one. Appellate courts have almost all stayed the host of recently issued preliminary injunctions, some explicitly writing that they did so given the NCAA’s likelihood of “success on the merits.” It remains to be seen how these courts will actually rule, but there is every chance that their decisions, while perhaps legally sound, will enable the NCAA to continue exercising its power over athletes as it sees fit—over eligibility and the rest. Chaos may settle into even stronger institutional authority, further solidifying the NCAA’s control over college athletes.