Overview
Overview
For the past several years, NCAA eligibility disputes have played out athlete-by-athlete and court-by-court across the country. Now, for the first time, a sitting governor has used an executive order to try to impact NCAA eligibility. On October 13, Ohio Governor Mike DeWine signed Executive Order 2026-04D, which directs Ohio colleges and universities not to uphold any rule that would prevent certain members of the high school "Class of 2022" from competing during the 2026–27 academic year.[1] Three days later, the NCAA filed a lawsuit against the Governor in the US District Court for the Southern District of Ohio, challenging the Executive Order.[2] The complaint argues that the Executive Order violates the dormant Commerce Clause, the Constitution's horizontal separation of powers, and the First Amendment, and that it exceeds the Governor's authority under Ohio law.[3]
The underlying question—whether athletes who exhausted their eligibility in the 2025–26 academic year should receive a fifth season under the NCAA's new eligibility model—is not new. The issue has already generated dozens of lawsuits in state and federal courts nationwide.[4] What is new is the vehicle for addressing that question. Rather than an athlete seeking an injunction from a court, a state executive has sought to grant blanket relief to an entire class of athletes at every college and university in the state.
A Recurring Eligibility Dispute
In June 2026, the NCAA adopted an Age-Based Eligibility Model, often called the "five in five" rule, under which athletes receive five years of eligibility beginning on the earlier of their initial full-time college enrollment or the start of the academic year following their 19th birthday.[5] The model largely eliminated eligibility waivers, whereby athletes could obtain additional eligibility by showing they were deprived of the ability to participate "for reasons that are beyond the control of the student-athlete or the institution," such as injuries or severe illnesses, and which had become a frequent source of litigation.[6] Instead, the model retains only narrow exceptions for pregnancy, religious missions, and active-duty military service.[7] The NCAA adopted the rule to simplify eligibility determinations and to give schools more certainty for recruiting and roster planning.[8]
The new model, however, only applies prospectively. Athletes who used their final season of competition in the 2025–26 academic year—largely those who started college in 2022 and did not redshirt—receive no additional eligibility.[9] The NCAA explained that those athletes already received the full measure of eligibility available under the rules in effect during their careers, and that giving them a fifth season on the eve of the 2026–27 season would disrupt rosters and take playing opportunities away from incoming athletes.[10]
The decision to adopt the five in five model has become the latest flashpoint in a college sports landscape that is rife with disputes. According to the NCAA, roughly 100 athletes filed more than 80 lawsuits challenging the prior eligibility framework before the new model was adopted.[11] The new rule prompted yet another wave of litigation. Here are three prominent examples, although there are many more:
- A nationwide class of Class of 2022 athletes obtained a preliminary injunction in federal court in Colorado in Wisne v. NCAA, only for the Tenth Circuit to stay that injunction pending an expedited appeal.[12]
- In Louisiana, a state court temporarily required the NCAA to allow former NFL players to return to college football, which prompted the NFL, the Big Ten, and the SEC to adopt measures barring such returns.[13]
- In Ohio, Xavier University basketball player Filip Borovicanin and other Class of 2022 athletes obtained a preliminary injunction in state court, which cleared them to compete for a fifth season despite having used all four seasons permitted under the prior rules.[14] The NCAA secured a stay pending appeal, and on October 2, 2026, the Court of Appeals reversed the preliminary injunction, leaving Borovicanin and the other plaintiffs ineligible to compete.[15] Less than two weeks after this decision, Governor DeWine issued Executive Order 2026-04D (the EO).[16]
The Executive Order: A New Layer
The EO directs that no public or private college or university in Ohio "shall uphold any rule, requirement, standard, or other limitation" preventing a Class of 2022 athlete from fully participating in intercollegiate athletics in 2026–27, "regardless of any athletic authority's interpretation or application of applicable NCAA eligibility bylaws," so long as the athlete (a) was within five years of his or her 19th birthday and five years of first enrolling in college at the start of the 2026–27 academic year; (b) was academically and otherwise eligible at the end of his or her last season; and (c) has not played in a professional sports league.[17] An institution that permits such an athlete to practice or compete "does so at the direction of the State of Ohio and in compliance with the public policy of this State."[18]
The EO frames this action as a matter of fairness. It notes that courts in several states have allowed Class of 2022 athletes to compete while their claims proceed, and that Ohio schools will face those programs while "similarly situated student-athletes in Ohio remain unable to compete."[19] It also points to the NCAA's own support for the federal Protect College Sports Act, section 113 of which would make the Class of 2022 eligible for 2026–27, but which has passed only the US Senate.[20] The EO also states that it "is not about the legal causes of action" asserted by athletes in the various lawsuits across the country that are challenging the five in five rule.[21]
Several features of the EO appear designed to work around the obstacles that have limited previous court-ordered relief. The EO cites a statement by NCAA counsel at a September 25, 2026 hearing in Hudson v. NCAA that "the schools themselves determine whether a student is eligible under the rules."[22] It also asserts that the NCAA's restitution rule, Division I Bylaw 12.9.4.2—which the EO says has discouraged schools from allowing athletes to compete under court orders—does not by its terms apply to actions that presidents or chancellors take in response to EOs.[23] The EO also notes that when Governor DeWine previously issued Executive Order 2021-10D to protect athletes' ability to earn name, image, and likeness (NIL) compensation, the NCAA adopted an interim policy under which activity "protected by law or executive order" would not affect eligibility[24]—this seem to be a suggestion by Governor DeWine that the NCAA should accommodate this EO as well.
The EO also contains several limitations. It preserves each institution's right to enforce its own academic standards, conduct rules, and disciplinary policies; it does not require any school to offer a roster spot or athletic aid to any particular athlete; it disclaims any intent to direct a court or to require an institution to act contrary to a court order; and it creates no private right of action.[25] The EO expires on July 31, 2027, unless it is modified, rescinded, or superseded earlier.[26]
The NCAA's Complaint
The NCAA filed suit on October 16, 2026, naming Governor DeWine as the sole defendant, in his official capacity, and seeking prospective declaratory and injunctive relief.[27] The complaint describes the EO as an attempt "to give Ohio institutions a hall pass to break the rules" and argues that, whatever its practical effect, its intent "is to provide a permission structure for schools in Ohio to disregard NCAA rules."[28] The NCAA also disputes the EO's fairness rationale. It contends that the court orders on which the EO relies cover only about 340 athletes nationwide and are all on appeal, whereas the EO could reach thousands of Ohio athletes and extends beyond Division I to Divisions II and III.[29] The complaint asserts four causes of action:
- Dormant Commerce Clause. The NCAA's lead claim is that the EO discriminates in favor of in-state institutions and regulates commerce beyond Ohio's borders.[30] The NCAA relies heavily on NCAA v. Miller, in which the Ninth Circuit struck down a Nevada statute imposing state-specific procedural requirements on NCAA enforcement proceedings because it would force the NCAA to regulate the integrity of its product according to one state's rules.[31] The complaint advances all three recognized theories. First, the EO is discriminatory because Ohio schools could roster experienced players who are ineligible in the other 49 states.[32] Second, it is extraterritorial because it would force out-of-state schools to host and play against ineligible athletes and pressure the NCAA to change its rules everywhere.[33] Third, its burdens on interstate commerce clearly exceed any local benefit under Pike v. Bruce Church.[34] The NCAA highlights concrete effects, including that NCAA revenue distributions tied to men's and women's basketball tournament success could flow to Ohio schools that advance further with otherwise-ineligible players.[35]
- Horizontal separation of powers. Relying on the Supreme Court's discussion of territorial limits on state authority in National Pork Producers Council v. Ross, the NCAA seeks a declaration that the EO unconstitutionally regulates collegiate competition outside Ohio by allowing Ohio schools to disregard national rules even when playing in other states.[36]
- First Amendment. The NCAA argues that the EO infringes its members' right of expressive association. Citing Boy Scouts of America v. Dale and Roberts v. United States Jaycees, the complaint contends that the NCAA transmits values of fairness, integrity, and academic primacy, and that forcing or permitting Ohio schools to roster athletes the NCAA has deemed ineligible communicates to the public that the NCAA condones violations of its rules.[37] This claim asserts that the NCAA's eligibility decisions are protected associational choices.[38]
- Ultra vires under Ohio law. Finally, the NCAA argues that the Governor lacked authority to issue the EO at all. The complaint notes that the EO cites no statute or constitutional provision, that Ohio's General Assembly is the "ultimate arbiter of public policy," and that Ohio law vests authority over public universities in their boards of trustees under Ohio Revised Code § 3345.021, not the Governor.[39] The NCAA adds that the Governor has no authority over private institutions and that sovereign immunity does not bar the claim because the EO is ultra vires.[40]
The NCAA asks the court to declare the EO unlawful and to enjoin Governor DeWine from directing Ohio institutions to disregard NCAA eligibility rules.[41] Outside the courtroom, NCAA President Charlie Baker described the dispute as part of a "state-by-state and court-by-court race to the bottom" and urged NCAA members to press Congress to pass the Protect College Sports Act.[42]
Potential Impact on Athletes, Universities, and the NCAA
For Ohio institutions, the EO creates an immediate and potentially uncomfortable choice. Schools weighing whether to rely on the EO should consider the risk of NCAA penalties or restitution if the EO is enjoined, the status of related litigation such as Borovicanin, conference obligations, and the need to document the basis for any eligibility decision.[43]
For out-of-state institutions and conferences, the dispute raises questions about scheduled competition against Ohio programs and about competitive balance and revenue distribution, as emphasized by the NCAA in its complaint.[44]
For Class of 2022 athletes in Ohio, the EO offers a potential, but uncertain, path to a fifth season, along with the NIL and revenue-sharing opportunities that come with it. That path may change quickly depending on how the Southern District of Ohio and the Supreme Court of Ohio rule.
More broadly, NCAA v. DeWine may represent a new frontier in which state executives are active participants in eligibility disputes. The complaint cites reporting that other governors could "follow suit" with similar executive orders. If other states follow Ohio, eligibility could increasingly turn on state lines, adding to the present patchwork approach that the pending Protect College Sports Act purports to address.[45] However, officials in some states, including Nebraska's Attorney General, have questioned the EO's validity.[46]
Steptoe's Sports Integrity Team is monitoring NCAA v. DeWine, the Borovicanin proceedings, and related eligibility litigation nationwide, as well as governance and legislative developments. We can provide strategic advice on eligibility compliance and risk and can handle eligibility litigation.
[1] Ohio Exec. Order No. 2026-04D, Fairness for Ohio's NCAA Student-Athletes (Oct. 13, 2026), ¶ 1.
[2] Charlie Baker, NCAA President Charlie Baker Announces Legal Filing in Ohio Federal Court, NCAA (Oct. 16, 2026), https://www.ncaa.org/news/ncaa-president-charlie-baker-announces-legal-filing-in-ohio-federal-court; Compl., NCAA v. DeWine, No. 2:26-cv-01452-MHW-SCS, ECF No. 1 (S.D. Ohio Oct. 16, 2026).
[3] Compl. ¶¶ 22–25, 79–120.
[4] Andrew C. Adams, et al., NCAA-Eligibility Disputes Emerge Amidst New Five-Year Eligibility Rule, Steptoe (Sep. 29, 2026), https://www.steptoe.com/en/news-publications/ncaa-eligibility-disputes-emerge-amidst-new-five-year-eligibility-rule.html.
[5] Id. ¶¶ 49–50, 54.
[6] Id. ¶ 11; NCAA Division I 2025-26 Manual, Art. 12 § 12.6.1.7, https://perma.cc/5BKM-MGH6.
[7] Compl. ¶¶ 11, 52.
[8] Id. ¶¶ 51, 53.
[9] Id. ¶¶ 12–13, 55, 59.
[10] Id. ¶¶ 13, 56–57, 62.
[11] Id. ¶ 48.
[12] Wisne v. NCAA, No. 1:26-cv-03063-CNS-KAS, ECF No. 38 at 18–20, 50 (D. Colo. July 31, 2026); Doug Samuels, Latest Court Ruling Puts Class of 2022 Athletes Back in Limbo, Football Scoop (Aug. 21, 2026), https://www.footballscoop.com/2026/08/21/latest-court-ruling-puts-class-of-2022-athletes-back-in-limbo. See also Patrick F. Linehan, et al., Court Enjoins NCAA's "Five-for-Five" Eligibility Rule as Applied to the Class of 2022, Adding to Nationwide Eligibility Litigation (Aug. 19, 2026), https://www.steptoe.com/en/news-publications/court-enjoins-ncaas-five-for-five-eligibility-rule-as-applied-to-the-class-of-2022-adding-to-nationwide-eligibility-litigation.html.
[13] Max Olson, Louisiana Court Rules for the Players: Now What?, ESPN (Sep. 5, 2026), https://www.espn.com/college-football/story/_/id/49815660/college-football-2026-louisiana-decision-five-years; Phil Harrison, Big Ten, SEC Ban Conference Members from Taking NFL Players Back, Yahoo Sports (Aug. 26, 2026), https://sports.yahoo.com/articles/big-ten-sec-ban-conference-232712245.html.
[14] Compl. ¶¶ 60–61, 63; Alex Lawson, NCAA Sues Ohio Gov. Over Athlete Eligibility Expansion, Law360 (Oct. 16, 2026), https://www.law360.com/articles/2538933.
[15] Compl. ¶¶ 17, 63.
[16] Exec. Order 2026-04D. Since the issuance of the EO, the Borovicanin plaintiffs sought review in the Supreme Court of Ohio, which stayed the Court of Appeals' mandate and requested additional briefing on the effect of the EO. Compl. ¶ 63. The NCAA has stated that the stay of the mandate did not reinstate the injunction and that schools reading the order differently "bear the risk of that interpretation." Baker, supra note 2.
[17] Exec. Order 2026-04D ¶ 1.
[18] Id. ¶ 2.
[19] Id. at 1.
[20] Id.
[21] Id.
[22] Id. at 2. Hudson v. NCAA is a Texas state-court action by a group of Class of 2022 athletes in multiple sports, who seek eligibility for the 2026–27 season by challenging the NCAA's transition rule, its counting of junior-college competition, and the Rule of Restitution under Texas constitutional, contract, tort, consumer-protection, and antitrust law. No. DC-26-16417, Dallas County District Court, State of Texas, filed August 27, 2026.
[23] Id.
[24] Id.
[25] Exec. Order 2026-04D ¶¶ 3–5.
[26] Id. at 3.
[27] Compl. ¶¶ 29–30.
[28] Id. ¶¶ 1, 22.
[29] Id. ¶¶ 66, 69, 76.
[30] Id. ¶¶ 23, 79–95.
[31] Id. ¶¶ 82, 85 (citing NCAA v. Miller, 10 F.3d 633, 638–39 (9th Cir. 1993)).
[32] Id. ¶ 90.
[33] Id. ¶ 91.
[34] Id. ¶¶ 89, 92.
[35] Id. ¶¶ 75, 90.
[36] Id. ¶¶ 96–100.
[37] Id. ¶¶ 24, 101–112.
[38] Id. ¶¶ 105–108.
[39] Id. ¶¶ 20, 25, 113–117.
[40] Id. ¶¶ 116, 118–119.
[41] Id. at 37–38.
[42] Baker, supra note 2.
[43] Exec. Order 2026-04D at 2; Compl. ¶ 63.
[44] Compl. ¶¶ 74–75, 91.
[45] Id. ¶¶ 5, 72; Baker, supra note 2.
[46] Id. ¶ 77 & nn.10–11.
