The NCAA sued the governor of Ohio on Friday, three days after he signed an executive order giving state universities the option of allowing athletes who graduated from high school in 2022 to play a fifth year in college in defiance of the NCAA's new eligibility rule.
NCAA President Charlie Baker called the lawsuit, filed in federal court in Ohio, an "extraordinary step" designed to prevent Gov. Mike DeWine from making it "impossible for all schools to compete on a level playing field."
The lawsuit itself claimed DeWine, a two-term Republican former state attorney general who cannot seek re-election this fall because of term limits, was trying to give players in his state “a hall pass” from following the rules.
DeWine's executive order and the NCAA's lawsuit in reaction to it marks the latest tit-for-tat in a torrent of legal maneuverings that are creating new rules on a state-by-state basis.
“This whole thing has become comical,” Danny White, the athletic director at Tennessee, said on social media in reaction to the NCAA announcement.
Under DeWine's order, public and private universities in Ohio would be able to allow the Class of ’22 athletes to play, even though the NCAA’s new guidance excludes those who have already played four seasons. The rule, passed in June, is the subject of multiple court fights.
DeWine's office said it was declining comment on the litigation. The NCAA suing a governor is rare but not unprecedented. It won a case in the early 1990s against then-Nevada Gov. Bob Miller over a law there that would have required the NCAA to provide more due process protections in enforcement proceedings.
None of the eight Division I programs in Ohio have commented on DeWine's order, which was also touted by Lt. Gov. Jim Tressel, a championship-winning coach at Ohio State and Youngstown State. The programs include No. 4 Ohio State of the Big Ten, Cincinnati of the Big 12 and six schools in the Mid-American Conference.
In its court filing, the NCAA said it was trying "to halt a misguided attempt to give Ohio colleges and universities an unfair, unprecedented and unwarranted competitive advantage in stadiums and arenas throughout the country.”
“College sports, like all sports, depend on participants following the rules. (DeWine) is attempting to give Ohio institutions a hall pass to break the rules," the lawsuit says.
The Ohio Supreme Court has already said it will determine the legality of the executive order. As part of that, it paused an appeals court ruling in a case there that had declared the ’22 athletes ineligible; the court asked both sides to file briefs in the case, in which basketball player Filip Borovićanin is the lead plaintiff, by next Monday.
Baker said the NCAA did not believe the Supreme Court's order did, in fact, declare those players immediately eligible to compete.
That case, like others around the country, is becoming more urgent by the day, as it involves football players, along with a handful of basketball players whose status for the upcoming season is in jeopardy. Among them: Gonzaga transfer Javon Bennett, Cincinnati's MJ Collins and Borovićanin himself, who played in an exhibition against Tennessee on Thursday night after DeWine's order put him back on the eligible list.
Another case in Louisiana involves basketball player RJ Luis, who has been granted eligibility by the court but not placed on the roster by LSU. The Southeastern Conference is suing the school in an attempt to make it conform to its own policy, which would not allow Luis to play.
The NCAA has long explained that it knew excluding the Class of '22 from the five-year rule would cause those athletes hardship, but the decision was between them and the new class of high school recruits coming into college this year, many of whom would be displaced if the veterans were allowed another year.
Ultimately, the NCAA has argued it made its decision based on which move harmed fewer people.
The NCAA lawsuit goes through the history of the rule and the flood of legal actions that have come since. One of the original cases, a federal lawsuit involving basketball player Brock Wisne, is leaning in the NCAA's direction, though victories there have only spawned more lawsuits in state court.
“The results of this second wave of lawsuits were mixed, with the NCAA winning some and losing others,” the lawsuit said. “But the lawsuits unquestionably destabilized college sports, with ever-more disruptive lawsuits challenging foundational rules at the heart of organized sport.”
During testimony in a similar case in Kentucky earlier this week, an NCAA attorney asked Louisville basketball coach Pat Kelsey why he was among those looking for Class of '22 athletes when the NCAA rules forbid that.
“From a coach's standpoint, every time the NCAA says something, we all shrug our shoulders and say, ‘Is that going to stand up? Is that a rule?’” Kelsey said. “We don't think there are rules right now. That's why we want guardrails, we want Congress to act, we want the chaos to end. Because nobody knows what the crap is going on. No one.”
The NCAA has long called for a federal law to tamp down on the lawsuits undermining its rules for hundreds of thousands of athletes across the country. The Senate has sent a bill with that protection — the Protect College Sports Act — to the House, where its fate is uncertain in this election year.
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