NCAA files lawsuit against Ohio Gov. Mike DeWine over state executive order regarding fifth-year players

In the most volatile era in college sports history, full of defining moments and never-before-seen events, the latest episode is one of the most revolutionary yet.

NCAA sues sitting state governor.

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The association filed a federal lawsuit Friday against Ohio Gov. Mike DeWine in an effort to thwart the governor’s executive order issued earlier this week, which could pave the way for Ohio colleges to enroll ineligible athletes.

The 41-page complaint, filed in the U.S. District Court for the Southern District of Ohio, viscerally attacks DeWine’s executive order, calling it a “misguided attempt” to give Ohio universities an “unfair, unprecedented and unwarranted competitive advantage.” DeWine’s missive directs the state’s colleges to flout NCAA eligibility rules by ordering schools to allow Class of 2022 athletes a fifth season of eligibility.

DeWine gives Ohio colleges “a free pass to break the rules, in violation of several provisions of the United States Constitution as well as state law,” the suit says.

The NCAA changed its eligibility standard this summer, moving to an age-based model that grants athletes five seasons of eligibility, not four as was the case under the previous rule. However, the association – an organization made up of members who appeal to schools – did not apply the rule retroactively to the class of seniors who completed their fourth season last spring. Many of those seniors, part of the 2022 signing class, have sued to get a fifth year.

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The NCAA’s lawsuit asks a judge to declare that DeWine’s executive order violates the U.S. Constitution, declare it does not have the “force of law” and enjoin the governor under federal and state law from any enforcement of the executive order.

“Using state law to undermine fair national competition threatens the viability of college sports and the basic lesson all athletes learn early in their careers: play by the rules,” the NCAA complaint states.

The NCAA suing a sitting governor is believed to be a first in the organization’s more than 100-year history, and yet another historic moment in an industry going through its most transformational era. The court rulings, some backed by member schools themselves, have reshaped the NCAA’s longstanding rules regarding athlete movement, compensation and, now, eligibility — so much so that U.S. senators last month passed a bill in one chamber of Congress to regulate college athletics.

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The NCAA lawsuit comes at a remarkable time.

In fact, two power conferences have recently filed lawsuits against their own member schools and one of them, in the SEC (against LSU), remains active. The league, like the NCAA in the case against DeWine, is asking a judge to grant it the authority to enforce its rules, which could include expelling LSU from the conference. A similar case was filed in June, when the Big 12’s federal lawsuit against Texas Tech ended the Red Raiders’ plans to play quarterback Brendan Sorsby, who admitted to betting on his own team.

The governor’s executive order Tuesday came a week after an Ohio appeals court overturned a decision to grant a fifth season of eligibility to a group of athletes in a lawsuit, Borovicanin v. NCAA.

Since June, about 330 players have been granted an extra year of eligibility as part of more than 150 lawsuits filed against the NCAA. About 300 others were denied eligibility. Most of these athletes play men’s basketball, but a handful are football players, swimmers, soccer players and other non-profit sports.

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As with this lawsuit, many of the NCAA’s eligibility cases were led by the Washington, D.C. firm of Wilkinson Stekloff and lead counsel Rakesh Kilaru.

In the NCAA’s complaint, the organization claims the impacts of the order will be felt most in other states, at schools against which Ohio schools compete. The order gives a “competitive advantage” to all Ohio institutions because “they can recruit experienced fifth-year seniors, in violation of the NCAA rules to which they have agreed to be bound, and allow these individuals to compete with other schools that cannot recruit such players under the bylaws.”

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“This will harm both Ohio student-athletes – who lose roster spots to ineligible athletes – and student-athletes outside of Ohio – who face competitive disadvantages simply because they and their schools continue to follow the rules,” the lawsuit states.

The NCAA says the order is illegal for three main reasons. Order (1) violates the Commerce Clause by prohibiting any state action that burdens interstate commerce or regulates conduct across state lines. “A state may not enact laws intended to reshape competition nationally by conferring advantages on in-state institutions at the expense of out-of-state competitors; (2) infringes on the NCAA’s First Amendment rights to ‘purport to provide Ohio institutions with legal cover to maintain their membership in the NCAA while simultaneously flouting the association’s rules;’ and (3) violates state law because the order is illegal because DeWine does not have the authority to order Ohio colleges and universities to enroll ineligible athletes.