As if the legal landscape for college athlete eligibility weren’t chaotic enough, Ohio Gov. Mike DeWine on Tuesday added a new twist that all but invites the NCAA to sue him.
DeWine signed Executive Order 2026-04D, which authorizes Ohio colleges not to enforce NCAA eligibility rules regarding certain former Division I athletes from the high school class of 2022 who have exhausted four seasons of competition.
Those players, who finished college earlier this year, are ineligible under NCAA rules. Yet DeWine has told schools in his state they may allow at least some of those athletes to compete.
The executive order doesn’t apply to athletes who participated in a professional sports league, with the NFL, NBA and WNBA specifically mentioned as examples. But it applies to other athletes from the high school class of 2022.
DeWine’s move is designed to ensure that Ohio colleges can compete for athletes from the high school class of 2022 when colleges in other states gain a competitive advantage through court orders allowing those athletes to play.
Across the country, athletes who completed college and, in some cases, signed with professional teams have sued to return to college, where they could earn NIL and revenue-sharing money. These experienced and skilled athletes, who are often 22 or 23 years old, are appealing to coaches, especially when compared with inexperienced and physically less developed freshmen.
These athletes maintain it’s unfair that the NCAA now permits up to five years of eligibility but didn’t make the change retroactive to the high school class of 2022, whose members could only play four seasons.
The NCAA declined to extend the benefit to those players in part because their return would lead to some eligible players—including freshmen who relied on coaches’ assurances when they selected their schools—losing roster spots or playing time.
These cases against the NCAA have produced varying results. Some courts, such as those in Louisiana and Indiana, have allowed the athletes to play.
However, last week the NCAA scored a win in DeWine’s state when an Ohio appellate court reversed a preliminary injunction that had allowed Xavier basketball player Filip Borovicanin and nearly two dozen other college basketball players to play this fall after exhausting their NCAA eligibility.
Also on Tuesday, in Wisne v. NCAA, the U.S. Court of Appeals for the 10th Circuit appeared poised to reverse a nationwide injunction in favor of similarly situated athletes in that jurisdiction. The 10th Circuit governs federal district courts in six states—Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming—and its rulings are influential, though not binding, elsewhere.
In a statement shared with member schools and obtained by Sportico, NCAA President Charlie Baker on Thursday said DeWine “cannot legislate NCAA eligibility rules.” Baker, who served as governor of Massachusetts from 2015 to 2023 and, like DeWine, is a Republican, added that “one elected official seeking to make their own rules for their own schools’ advantage is a terrible way to run athletic competitions.”
Baker went on to note that NCAA members “voted unanimously to implement the age-based eligibility change in this way.” He further stressed that “multiple appellate courts” have recognized “the importance of consistent application of NCAA eligibility rules and the significant disruption that results when eligibility standards vary from institution to institution or state to state.”
Possible NCAA challenges
Just like a statute, an executive order can be challenged in court. The NCAA is armed with arguments that DeWine’s order is vulnerable to constitutional challenge under the Dormant Commerce Clause and Contract Clause theories, particularly by authorizing NCAA member schools—which, as members, owe contractual duties to the NCAA—to violate NCAA rules.
This isn’t an abstract playbook.
It’s based on the NCAA’s successful lawsuit against then-Nevada Gov. Robert Miller in the early 1990s, after Miller signed into law a statute that required NCAA investigators to honor due-process safeguards. The statute was a response to the NCAA’s investigation into UNLV basketball and coach Jerry Tarkanian, as well as criticisms that the school and coach were owed greater procedural protections.
The Nevada statute was problematic, because it caused a direct conflict between state law and NCAA rules. The NCAA rules contemplated that a committee on infractions would conduct hearings, while the state law required an impartial hearing officer.
The NCAA sued and won in both a district court and before the U.S. Court of Appeals for the 9th Circuit. The NCAA’s legal argument centered primarily on the Commerce Clause of the U.S. Constitution, which gives Congress authority to regulate interstate commerce. A recognized corollary of the clause is the “Dormant Commerce Clause,” which prohibits states from adopting laws that unduly interfere with other states’ economies.
Given that the NCAA is a national organization that needs to enforce the same set of rules in each state, Nevada had effectively forced the NCAA to enforce its statute in the 49 other states, thereby interfering with the business of those states.
The Nevada statute could further complicate things, because it could trigger a “patchwork problem”—other states, seeing that Nevada schools and coaches would receive preferential legal treatment, would pass similar laws. Given how the legislative and political process works, each state law would likely vary in some ways, making it impossible for the NCAA to enforce a national rule.
If that sounds similar to an NIL issue, with different state laws, it is—and it’s a leading rationale for passage of the Protect College Sports Act, which would establish a national set of rules for NIL as well as provide antitrust immunity in eligibility lawsuits.
It’s also a reason other governors could follow DeWine’s lead and issue similar executive orders.
NCAA v. Miller also drew from the Contract Clause of the U.S. Constitution. The clause makes it illegal for states to pass laws that impair contractual obligations. NCAA members are in a contractual relationship with the NCAA and one another, so a state law that requires preferential treatment for member schools in one state would run the risk of violating those contractual relationships.
These potential lines of attack are applicable to DeWine’s order, which authorizes colleges in his state to disregard NCAA rules.