Ohio Gov. Mike DeWine signed an executive order Tuesday allowing colleges and universities in the state to decide whether athletes who graduated from high school in 2022 can compete for a fifth season. The order challenges a new NCAA eligibility rule that excludes those athletes.
“When the rules change, fairness has to remain part of the equation,” DeWine, a Republican, said in a statement. “We want Ohio’s student-athletes to have the same opportunity as student-athletes in other states.”
Under DeWine’s order, Ohio colleges and universities may allow eligible athletes to compete despite the NCAA’s position that those who have already played four seasons cannot receive another year of eligibility.
In a statement exclusively obtained by OutKick, Ryan Downton, an attorney representing a group of athletes in a key eligibility case pending in an Ohio court, said: “We are thankful that Gov. DeWine took action to ensure that all student-athletes in Ohio are treated equitably with their peers. Hopefully, the NCAA will stop its misguided quest to deny the Class of 2022 the same fifth year offered to everyone else. If not, we hope other governors will follow suit.”
Sources told OutKick’s Trey Wallace Tuesday night that other governors could “follow suit” with their own versions of similar orders as soon as next week.
The NCAA pushed back against DeWine’s order Tuesday. In a memo to the organization’s member schools, which was also obtained by OutKick, NCAA President Charlie Baker said DeWine “cannot legislate NCAA eligibility rules.”
“One elected official seeking to make their own rules for their own schools’ advantage is a terrible way to run athletic competitions,” Baker wrote. He also urged Congress to pass the Protect College Sports Act, a sweeping bill that aims to establish guardrails for how colleges compensate athletes and what those athletes can challenge in court. Baker added, “This is precisely why Congress must pass the PCSA as soon as possible.”
Baker’s statement continued:
“And not only did NCAA members vote unanimously to implement the age-based eligibility change in this way, the Ohio Court of Appeals just recently agreed with that decision.
“The Ohio Court of Appeals isn’t alone in siding with the NCAA on this issue. Multiple appellate courts have now recognized the importance of consistently applying NCAA eligibility rules and the significant disruption that results when eligibility standards vary from institution to institution or state to state.
“The NCAA will protect the interests of all member institutions and student-athletes.”
There was no immediate response from any of Ohio’s eight Division I programs, including Big Ten powerhouse Ohio State, Big 12 member Cincinnati and six Mid-American Conference schools.
The executive order is reminiscent of California’s decision to clear the way for name, image and likeness compensation by passing a state law that other states quickly followed with similar measures. The NCAA was essentially forced to allow NIL payments for thousands of athletes.
The NCAA eligibility rule is being challenged in multiple courtrooms across the country, with plaintiffs saying it is both unfair to the class of 2022 and deprives them of the chance to earn money off their celebrity through NIL deals and share in revenue now flowing from schools to their athletes under the House settlement.
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The Ohio order came the same day a key eligibility case, Wisne v. NCAA, saw a new development involving how the players would establish the economic harm they say they suffered as a result of the eligibility change.
A lower-court judge initially sided with the players, granting all NCAA athletes who graduated from high school in 2022 a fifth year of eligibility for the current school year.
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 did not immediately rule. All three asked multiple questions to plaintiff attorney Robert Shelquist over the plaintiffs’ attempts to define the market for the players.
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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.
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.
With the Ohio executive order, more litigation could be on the horizon.
The Associated Press contributed to this report.
