The NCAA on Friday sued Ohio Gov. Mike DeWine for violating the U.S. Constitution and state law through his allegedly “misguided attempt” to give colleges in his state “an unfair, unprecedented and unwarranted competitive advantage in stadiums and arenas throughout the country” via an executive order allowing certain athletes deemed ineligible under NCAA rules to play.
Drafted by Rakesh Kilaru, Keith Shumate and other attorneys from Wilkinson Stekloff and Squire Patton Boggs, the NCAA’s complaint was filed in a federal district court in Ohio. The complaint challenges Ohio Executive Order 2026-04D, which was issued Tuesday and 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.
The NCAA accuses DeWine of violating the Commerce Clause, First Amendment and 14th Amendment of the U.S. Constitution. He is also accused of exceeding his authority under Ohio law by failing to identify any statutory or constitutional source of legal authority for his order.
The governor, himself an attorney, is depicted as unlawfully interfering with eligibility rules that member schools, including those in Ohio, have contractually agreed to follow. These rules are not imposed by the NCAA but instead, the NCAA stresses, “come from the members themselves,” with member schools proposing and voting on rules.
“Having rules means abiding by them,” the NCAA asserts. “As children learn the first time they step on any field, there are rules to every sport that must be followed. College sports are no different.”
The complaint seeks a declaration that DeWine’s executive order is unlawful. It also seeks an injunction blocking DeWine from directing Ohio schools to disregard NCAA eligibility rules.
The fact that the NCAA has sued and raised these legal arguments is not a surprise, as Sportico explained Wednesday. By swiftly challenging DeWine, the NCAA sends a message to other governors who are contemplating similar executive orders: We’ll sue you.
DeWine depicted the executive order as a measure to ensure that schools in his state are not disadvantaged by other states allowing for ineligible players. Numerous athletes from the high school class of 2022 have sued the NCAA in recent months over the NCAA’s June change to its rule allowing up to five years of eligibility but not retroactively applying it to athletes who finished college in May or June and had already played four seasons.
These players want the opportunity to return to college, even though their college careers are over, and in some instances, the players have signed with professional teams. They know they can earn NIL and revenue-sharing money in college.
But if they return to the NCAA, these players will displace eligible athletes from rosters—or at least reduce the playing time available to eligible athletes. Some of those who lose out are freshmen who chose their colleges based on assurances that they had a roster spot and an opportunity to play.
To that point, the NCAA’s complaint against DeWine emphasizes the “settled expectations and reliance interests” of eligible athletes and how “sports eligibility is zero-sum; as one example, there are 200 minutes of total playing time in a basketball game, and every minute played by a returning fifth-year player would be a minute lost by an eligible student-athlete.”
DeWine’s state is familiar with this topic. Last week, an Ohio appellate court reversed a trial court’s issuance of an injunction allowing Xavier basketball player Filip Borovicanin and nearly two dozen other college basketball players to play this fall despite having exhausted their NCAA eligibility. The Ohio Supreme Court this week stayed the appellate court’s mandate, meaning that, for now, the trial court’s order is back in effect. The court wants the parties to clarify the impact of DeWine’s executive order on the case.
The NCAA’s legal arguments
The Commerce Clause of the U.S. Constitution gives Congress authority to regulate interstate commerce. A recognized corollary is the “Dormant Commerce Clause,” which bars states from adopting laws that discriminate against or excessively burden other states’ economies.
The NCAA points to several ways the executive order runs afoul of the Commerce Clause by conferring an advantage on in-state schools and allowing them to play ineligible “experienced veteran players in competition against other schools throughout the country that are bound to continue to follow NCAA rules.”
This dynamic, the NCAA insists, could harm athletes and schools outside Ohio, because Ohio schools’ success affects financial distributions. Schools that advance in the NCAA Division I men’s and women’s basketball tournaments, for example, receive a greater share of NCAA revenue.
“Those extra funds,” the NCAA notes, “are often used to subsidize other sports” and “will only further increase the competitive advantage of Ohio schools.”
The NCAA has previously used a Commerce Clause argument to then-Nevada Gov. Robert Miller, who in 1991 signed into law a requirement that colleges and coaches in Nevada receive various procedural rights that colleges and coaches in other states lacked. This gave Nevada colleges a competitive advantage over colleges in other states and carried economic implications.
The NCAA’s First Amendment argument centers on the association and its member institutions being able to express certain values, including which athletes should be eligible. The NCAA depicts the executive order as “flouting the Association’s rules” by allowing Ohio colleges to play athletes who NCAA members “do not want to have on the field.”
The NCAA’s state-law argument centers on depicting DeWine as not citing any law or other legal support “to order Ohio colleges and universities to roster ineligible student-athletes.” The complaint notes that Ohio law requires a government official to act within their authority; otherwise, their actions are illegal and void. DeWine cited the “public interest” as a justification, but the NCAA insists that a “general appeal to public policy” is not a substitute for a source of law that provides the requisite authority.
Forecasting Likely Defenses for DeWine
In the days ahead, DeWine will answer the NCAA’s complaint and likely invoke several lines of defense.
One probable defense is ripeness. DeWine might assert that until an Ohio school relies on the executive order and puts an ineligible player on the roster, the dispute remains too contingent to be ripe for judicial review. A related defense would be that the NCAA lacks standing, because it hasn’t been directly harmed by the executive order and won’t be unless an Ohio school relies on it.
The NCAA could try to rebut these defenses by arguing the executive order is already destabilizing the NCAA’s eligibility system, because the order interferes with the NCAA’s ability to enforce its membership rules. It has also sparked confusion for some ineligible athletes as to whether they can return and for some eligible athletes as to whether they might lose roster spots or playing time. Even the Ohio Supreme Court seems perplexed as it seeks briefing on the order’s impact on Borovicanin v. NCAA. The order also creates incentives for other governors to try similar measures.
Another possible defense is sovereign immunity, which generally protects states and state officials sued in their official capacities, but the NCAA has already anticipated this defense by asserting that “sovereign immunity is no bar to this claim.” To corroborate that assertion, the NCAA cites U.S. Supreme Court precedent that sovereign immunity is not an effective defense when a government official is acting “ultra vires,” meaning beyond their legal authority. The NCAA contends that DeWine acted ultra vires by issuing an executive order without support from the state’s constitution, statutes or case law.
Other possible defenses include an argument that allowing Ohio athletes to play doesn’t unduly burden interstate commerce or other states’ economies, and that the First Amendment shouldn’t apply because the executive order doesn’t compel the NCAA to engage or not engage in speech. DeWine might also cite powers as governor to justify the executive order.
The NCAA would likely try to rebut these points by arguing the order unduly burdens interstate commerce, interferes with the NCAA and its members’ associational rights, and exceeds DeWine’s authority under Ohio law.