Ohio Gov. Mike DeWine signed an executive order Tuesday giving the state's colleges and universities the option of allowing athletes who graduated from high school in 2022 to play a fifth year in defiance of the NCAA's new eligibility rule.
“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 the order, public and private universities in Ohio can allow athletes to play, even though the NCAA's new guidance excludes those who have already played four seasons.
In a letter to the NCAA's member schools, the governing body's president, Charlie Baker, said Tuesday that 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 said, while also pushing Congress to pass the Protect College Sports Act, a sweeping bill aiming to institute guardrails around how colleges pay their players and what those players can and cannot go to court to fight.
There was no immediate response from any of the eight Division I programs in Ohio, which includes No. 4 Ohio State of the Big Ten, Cincinnati of the Big 12 and six schools in the Mid-American Conference.
“It’s important we do not deprive our current student-athletes of the same opportunities enjoyed by their peers,” said Lt. Gov. Jim Tressel, a former coach who won national championships at both Ohio State and FCS-level Youngstown State.
The executive order is reminiscent of a decision by California to clear the way for name, image and likeness compensation by passing a state law that was quickly emulated by other states. 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.
The Ohio order came on the same day that the attorney representing athletes in a key eligibility case took a series of questions from federal judges who sounded skeptical about the players' ability to pinpoint the depth of the economic harm they have suffered from the change.
A lower-court judge in the case, Wisne vs. NCAA, initially ruled in favor of the players, granting all NCAA athletes who graduated high school in 2022 a fifth year of eligibility for this 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.
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.
“It doesn't seem there's been a definition of the market from a huge, huge division — golf, everything,” said U.S. Circuit Judge Paul Kelly, a nod to the wide difference in earning power between, say, a college football player and golfer. “And you're lumping them all together and you never looked at commonality and interchangeability of the various buyers.”
Shelquist argued an analysis presented by the plaintiffs that was prepared by University of Mississippi legal scholar William Berry III provided a framework of what the market for the players would look like if they were deemed eligible.
Arguing for the NCAA, attorney Rakesh Kilaru argued the plaintiffs' analysis takes all the players and “lumps all of those individuals together in a way that does not make economic sense.”
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 seems likely.
The judges also asked both attorneys if they should delay their decision to see whether Congress passes the Protect College Sports Act, a bill that made it through the Senate last month that would limit these sorts of lawsuits in the future.
The bill would not preempt active lawsuits, and both attorneys urged the court not to wait, with Shelquist reminding the judges of the narrow window for this group of players who left high school in 2022, with this school year's football season halfway over and basketball season about to begin.
