The Wild West of name, image, and likeness: Judge Bailey’s NIL Ruling - A Turning Point in NCAA Eligibility Litigation

This week, U.S. District Judge John Preston Bailey issued one of the most consequential rulings to date in the ongoing legal battles over NCAA eligibility. Granting a preliminary injunction, Judge Bailey allowed four West Virginia University football players to compete this season despite the NCAA’s claim that they had exhausted their eligibility under the Five-Year Rule due to time spent at junior colleges.

What sets Judge Bailey’s 67-page opinion apart is not just the outcome, but his clear-eyed recognition that the name, image, and likeness (NIL) era has fundamentally reshaped the commercial nature of college athletics.

As he wrote: “Eligibility is even more commercial now that the settlement has been approved in In re College Athlete NIL Litigation… NCAA member institutions in the five (5) most prominent conferences can share up to 22% of the revenue from media rights, ticket sales, and sponsorships with student-athletes.”

This statement goes to the heart of the transformation in college sports. Judge Bailey didn’t merely acknowledge NIL. He recognized that the approved House settlement creates a direct revenue-sharing model. Eligibility is no longer just a matter of amateur status—it’s now a commercial gateway to revenue and financial opportunities.

From “Non-Commercial” to Commercial: A Judicial Shift

In pre-NIL cases, courts consistently held that NCAA eligibility rules were “explicitly non-commercial” and even “anti-commercial.” The Bassett court, for example, warned that paying athletes would “violate the spirit of amateur athletics.” Judge Bailey’s decision marks a clear departure. He concluded that in today’s NIL landscape, eligibility rules are inherently commercial:

“In the current era of NIL compensation, eligibility rules are commercial in nature. They dictate the number of years a student-athlete can market and profit from an NCAA Division I career.”

That recognition aligns with other recent cases—Pavia, Elad, and Braham—which likewise found eligibility rules to be commercial in effect. But Bailey openly acknowledged the judicial split. His own review of similar cases revealed an 8-4 split among district courts over whether junior college participation should reduce NCAA eligibility. As he noted, the same facts that win relief in one courtroom may fail in another.

This patchwork is unsustainable. As Judge Bailey observed, appellate courts—and potentially the Supreme Court—will need to resolve the growing divide.

Why the Stakes Are Higher Than Ever

The decision makes clear how NIL changed the calculus. NCAA institutions now offer not just coaching and exposure, but direct financial benefits through NIL deals and revenue-sharing payments. Each lost year of NCAA eligibility can mean:

• Hundreds of thousands of dollars in foregone NIL compensation.
• Missed opportunities to build a professional profile.
• Delays that can force athletes to forgo a professional season altogether.

As Judge Bailey put it, the “math is simple”: every JUCO season costs a football player one year of NCAA eligibility—and in the NIL era, that lost year is a lost commercial opportunity. He likened the NCAA’s restrictions to a scenario where major insurers collusively refuse to work with doctors affiliated with smaller providers.

The Road Ahead

Judge Bailey’s ruling acknowledges that eligibility is no longer just about preserving amateurism. It’s about access to real, substantial financial opportunities. The law is beginning to catch up to that reality—and the next round of appellate decisions may decide how far and how fast it goes.

For now, his ruling is a blueprint for how courts should analyze eligibility rules in the post-NIL, revenue-sharing era. Whether appellate courts adopt that blueprint will shape not only the future of NCAA eligibility, but the very structure of college athletics.

The NCAA has already filed appeals in multiple cases, and the Pavia appeal is set for argument on October 23, 2025. Circuit courts will soon have the opportunity to set binding precedent. Until then, the fate of athletes hinges on which judge hears their case—a reality Judge Bailey himself recognized as deeply problematic. 

See our recap of all previous "The Wild West of name, image, and likeness articles," which offers insight on navigating NIL laws within college athletics. For legal counsel regarding compliance, NIL structure, or education law implications, contact author Mitchell Capp.