The NCAA Is Right That Ohio Can't Rewrite Its Eligibility Rules. It May Have Sued Too Soon.

On Tuesday, October 13, Ohio Gov. Mike DeWine signed an executive order letting the state's colleges give athletes from the high school class of 2022 a fifth season of eligibility. That class was left out when the NCAA moved this summer to a five-season model that starts with the class of 2023, and its members have filed a wave of lawsuits.

On Friday the NCAA sued DeWine in federal court in the Southern District of Ohio. The complaint argues the order violates the Commerce Clause and the First Amendment, calls it a misguided attempt to hand Ohio schools an unfair competitive advantage, and asks the court to declare it without force of law. It is the first time the NCAA has sued a sitting governor. Separately, the Ohio Supreme Court has asked for briefing on how the order affects a pending fifth-year case, Borovicanin v. NCAA.

College athletes do not have a collective bargaining agreement with the NCAA, so there is no bargained deal for the governor to bypass. The NCAA's eligibility rules are the private rules of a voluntary association its members agree to follow.

The NCAA's main weapon is the dormant Commerce Clause, which limits states from regulating commerce beyond their borders. Its best precedent is NCAA v. Miller (9th Cir. 1993). Nevada passed a law requiring the NCAA to give Nevada schools and athletes specific procedural protections and letting Nevada courts block NCAA proceedings that did not comply. The Ninth Circuit struck it down: to keep its enforcement uniform, the NCAA would have had to apply Nevada's rules everywhere, which let one state regulate a national association's conduct in every other state. The Supreme Court declined to review it.

The NCAA has the stronger principle. A national competition cannot work if each state gets to decide who is eligible to play in it. If Ohio can add a season, another state can subtract one, and the NCAA would be left either running fifty eligibility systems or applying the most generous one everywhere. That is the exact problem Miller identified.

But DeWine wrote his order to sit outside Miller. The Nevada law commanded the NCAA and let state courts stop its proceedings. Ohio's order commands no one. It gives Ohio schools an option, it tells the NCAA nothing, and no Ohio school has said it will use it. A court asked to strike down a permission that nobody has exercised may well ask what injury the NCAA has suffered yet. Miller also binds only the Ninth Circuit. Ohio sits in the Sixth, where the case is persuasive but not controlling.

That makes the timing the weak point of the NCAA's case, not the theory. The real conflict arrives the day an Ohio school puts a fifth-year player on the field and the NCAA declares him ineligible or sanctions the school. Then the order is no longer an abstraction. It is a state telling a national association it cannot enforce its own rules against an Ohio member, which is Miller's fact pattern almost exactly.

The counterargument is that waiting would be worse. Once games are played, results, eligibility and the NCAA's credibility get harder to unwind, and the NCAA is right that a state-by-state race to grant extra eligibility would break the system. That is a fair reason to move fast. It is not the same as having a ripe case. NCAA president Charlie Baker's own statement pointed to Congress, and the Protect College Sports Act, as the real answer, which is the most candid thing anyone has said about this fight.

The NCAA, on the law, if the dispute ripens. Ohio, on the calendar: as long as no school uses the order, the NCAA is challenging a permission rather than an act. The Ohio schools hold the deciding card, and none has played it.

A state can't set a national league's eligibility rules. That's the 1993 Miller case. But Ohio's order commands no one, and no school has used it. The NCAA's real fight starts when one does.

Watch for an NCAA motion for a quick injunction, Ohio's likely argument that the case is premature, and the Ohio Supreme Court's briefing in Borovicanin. The moment that matters most is the first Ohio school to roster a class of 2022 player under the order.