Ohio Governor Mike DeWine Sidesteps NCAA Eligibility Rules with Executive Order for Student-Athletes

Ohio Governor Mike DeWine's Executive Order Challenges NCAA Eligibility Rules, but Charlie Baker Responds That a Governor Cannot Set NCAA Rules

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Ohio Gov. Mike DeWine signed an executive order on Tuesday that allows the state's colleges and universities to decide whether athletes graduating from high school in 2022 can compete for a fifth season. The order challenges the NCAA's new eligibility rule, which exempts those athletes.

"When laws change, fairness must remain part of the equation," DeWine, a Republican, said in a statement. "We want Ohio 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 be eligible for another year.

In a statement provided exclusively to OutKick, Ryan Downtown, an attorney representing a group of athletes in a key jurisdictional case pending in an Ohio court, said, "We are grateful that Gov. DeWine took action to ensure that all student-athletes in Ohio are treated fairly with their peers. We hope the NCAA prevents the Class of 2022 from denying the same fifth year that is offered to everyone else. In this case, we hope that other governors will also follow this process."

Sources told OutKick's Terry Wallace on Tuesday night that other governors could "follow through" with their own versions of similar orders starting next week.

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The NCAA reversed DeWine's order on Tuesday. In a memo to the organization's member schools, also obtained by OutKick, NCAA President Charlie Baker said DeWine "cannot make the NCAA's eligibility rules."

"An elected official seeking to make his own rules to benefit his schools is a terrible way to run sports," Baker writes. He also urged Congress to pass the College Sports Protection Act, a comprehensive bill aimed at creating guardrails for how colleges compensate athletes and what those athletes can challenge in court. "This is exactly why Congress needs to pass the PCSA as soon as possible," Baker added.

"And not only did NCAA members vote unanimously to implement age-based eligibility changes this way, the Ohio Court of Appeals recently agreed with the decision.

The Ohio Court of Appeals is not alone in siding with the NCAA on this issue. Several appellate courts have now recognized the importance of consistent application of the NCAA's eligibility rules and the significant disruption that occurs 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."

No immediate response was received 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.

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The executive order commemorates California's decision to pave 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 thousands of athletes to pay NILs.

The NCAA's eligibility rule is being challenged in multiple courts across the country, with plaintiffs saying it is both unfair to the Class of 2022 and robs it of a chance to monetize its reputation through NIL deals and share in the revenue that schools now receive for their athletes under the House settlement.

Ohio's order came on the same day as a landmark eligibility case, Wisne v. The NCAA saw a new development involving how players who say they suffered as a result of the eligibility change were financially harmed.

A lower court judge initially sided with the players, granting all NCAA athletes graduating from high school in 2022 a fifth year of eligibility for the current school year.

An appeals court blocked the ruling and its full sentencing hearing before a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, which did not immediately rule. All three asked plaintiffs' attorney Robert Shelquist several questions about the plaintiffs' attempt to define the market for players.

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This definition will be key to determining how players are affected by being declared ineligible. It's a standard that judges say is key to winning an antitrust case like this one.

If the justices rule in the NCAA's favor, it would set an important precedent but not necessarily end the legal battles.

After they blocked the initial ruling, cases continued in state courts across the country — most notably one in Louisiana that prompted LSU to seek the return of two football players who spent this summer in NFL training camps. Most recently, the NCAA has won cases in Kentucky, Ohio and Arizona.

More litigation could be on the horizon with Ohio's executive order.

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