See You in Court? How the University of Memphis and James Wiseman Defying the NCAA Has Sparked Discussion about Association Rules

See You in Court? How the University of Memphis and James Wiseman Defying the NCAA Has Sparked Discussion about Association Rules

The National Collegiate Athletic Association (NCAA) on Friday made news for attempting to sideline two of its biggest stars. Memphis basketball player James Wiseman and Ohio State football player Chase Young each face allegations from the NCAA of financial misconduct that calls their respective eligibilities into question. The Ringer’s Rodger Sherman opines that the players “are arguably the top prospects in next year’s NBA and NFL drafts, respectively, and two of the most exciting players in all of college sports.” Young and Ohio State are playing it safe—the standout defensive end sat out the Buckeyes’ game against Maryland on Saturday as an investigation runs its course.

Meanwhile, Wiseman and Memphis challenged the NCAA in court and, for the time being, won. Wiseman took his case to a Shelby County court in Memphis, and the court granted him injunctive relief from the NCAA’s adverse eligibility determination—on the heels of this temporary order, Wiseman was able to play Friday night. Litigation will likely ensure, and The Athletic is reporting that a hearing has been set for November 18 on Wiseman’s eligibility. Still, regardless of the court’s ruling, Memphis took a risk by trotting out Wiseman if the NCAA ultimately deems the star ineligible. The NCAA issued a statement on Friday about the events: “The University of Memphis was notified that James Wiseman is likely ineligible. The university chose to play him and ultimately is responsible for ensuring its student-athletes are eligible to play.”

Sports Illustrated put together a tremendous primer on where, from a legal standpoint, we go from here; the piece is worth your time. Some highlights: The NCAA is likely to attempt removal from state court to federal court; SI’s Michael McCann opines that a federal judge may give the NCAA a fairer shake than would a local, elected judge against a popular basketball player on the hometown team. In order for the federal court (the U.S. District Court for the Western District of Tennessee) to have jurisdiction over the case, the NCAA will need to convince a judge that the case presents a federal question—namely, the NCAA’s ability to enforce amateurism rules. Next, both Memphis and Head Coach Penny Hardaway (who is at the center of the Wiseman allegations, for helping finance Wiseman and his family moving to Memphis—to the tune of $11,500—while still being considered a “booster”) may face NCAA sanctions, and the NCAA could vacate any Memphis wins that occurred while Wiseman was on the court. Further, “the NCAA’s ‘Restitution Rule’ provides that if an ineligible college player is able to play through a court injunction and if that injunction is later vacated, the NCAA can demand the school share television receipts for those games.”

Expert reaction to the Memphis decision has been that the university is taking a massive risk. Under the Restitution Rule, Memphis is also putting in jeopardy its ability to play in the postseason this March. The NCAA is clearly not pleased with Memphis’ open defiance of its initial eligibility determination. As Sherman’s piece in The Ringer notes, “the NCAA considers itself its own legal system[.]” Memphis may be thinking about recruiting, as sports lawyer Stu Brown noted for Yahoo!: “‘This is high risk and potentially high reward. But think about it from Memphis’ side. It’s a tremendous reward if he’s eligible when you are recruiting these high-profile kids. They’re saying, ‘We’ll stand up for you if you’re going to fight the NCAA.’”

All of this occurs against the backdrop of the NCAA’s recent promise to change its policies on student-athlete compensation (specifically, whether players may profit from their own names, images, and likenesses). I recently wrote about the player compensation issue for the JSEL blog. Situations like Wiseman’s, however, would probably not fall into the name, image, and likeness category. Assuming Wiseman did accept money in violation of the NCAA rules, the cash exchange was almost certainly not compensation for name, image, or likeness, even under the broadest interpretation of the words. Further, permitting these kinds of deals under the new rules might seriously threaten “the collegiate model” (with which the new rules are directed to be consistent), far more than third-party endorsement deals would; for example, boosters are usually close to individual universities (in this case, Hardaway, a Memphis alum interested in his alma mater’s success on the court) and loosening the rules around boosters could create an arms race. (To be fair, one may wonder how an arms race would change the landscape in a college football environment where the same two programs—Alabama and Clemson—have met in the national championship game in three of the last four seasons and standout teams—like UCF—from second-tier conferences are denied entry into the College Football Playoff even when undefeated.)

That being said, the rules today are the rules today, and CBS Sports’ Gary Parrish writes of the $11,500 that it was “a pretty clear impermissible benefit.” Still, the NCAA is undoubtedly aware of the critical reaction it is receiving from key influencers in the media. Yahoo Sports’ Pete Thamel tweeted that the Young/Wiseman news was “another searing reminder why NCAA rules needs [sic] to evolve, quickly.” Stephen A. Smith also criticized the NCAA harshly on Twitter. The Ringer‘s Sherman even called the NCAA’s very legitimacy as an organization into question (the title of the previously cited blog post stated that the Wiseman and Young rulings “Remind Us Why [the NCAA] Should Not Exist”). In the area of eligibility determinations, some reform could perhaps benefit the NCAA.

In a tweet from Friday, ESPN’s Jay Bilas touched on an area where compromise could be struck: due process. Bilas decried the NCAA system in which, as he put it, “Only athletes are presumed guilty, immediately suspended, and must prove themselves innocent. Quite a contrast to coaches facing allegations in the FBI investigations and federal prosecutions…they are presumed innocent until proven guilty. What an amazing concept.” It may well be logical that the NCAA extend an “innocent until proven guilty” concept to its players and reform the Restitution Rule to only apply after a final determination on eligibility has been made. The question of administrability looms large here—would the extra time required for due process frustrate the NCAA’s ability to adjudicate these questions quickly enough, given the shortness of college seasons?

Vice News ran an article in 2016 outlining the history of the Restitution Rule and the due process question in the NCAA. In the American justice system, procedural due process usually consists of notice and an opportunity to be heard. The Vice essay advocates that the NCAA “reform [its] disciplinary proceedings to provide full due process rights to athletes, including basic notice and a hearing in any infractions action.” In fact, according to Vice, NCAA outside counsel George Gangwere proposed this model in a 1973 memo to NCAA executive director Walter Byers; the NCAA went with the Restitution Rule instead.

The Memphis situation is developing in real time, and I suspect there is a lot more to come. But if schools like Memphis continue openly defying the NCAA, with the public (more specifically, fans of college sports) in their corner, perhaps it is time for the NCAA to re-evaluate its options. That would merit consideration of the more player-friendly “due process” approach (and delaying ineligibility determination until finality of proceedings) to blunt criticism, demonstrating a good-faith effort to achieving fairness in eligibility determinations that turn on unpopular rules necessary to the operation of the system. Such a shift may nudge public sentiment away from the Sherman belief that the NCAA shouldn’t exist and toward the Parrish view that, while unfortunate, the rules are the rules.

“2007-8 University of Memphis Basketball” by yakk0dotorg is licensed under CC BY-NC-SA 2.0 

Eli Nachmany is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).

Not Yet Over the Goal Line: Understanding What Happened with the NCAA Compensation Vote and What Comes Next

Not Yet Over the Goal Line: Understanding What Happened with the NCAA Compensation Vote and What Comes Next

On Tuesday, the National Collegiate Athletic Association (NCAA) made headlines when its governing board voted to “start the process of modifying its rule to allow college athletes to profit from their names, images and likenesses ‘in a manner consistent with the collegiate model.’” This change comes on the heels of California passing the Fair Pay for Play Act into law. This legislation, set to take effect in 2023, would prevent the NCAA from prohibiting college athletes from profiting off of their names, images, and likenesses. I recently wrote a JSEL blog post on the implications of this law on EA Sports’ NCAA Football video game franchise returning; check that out here.

Chris Vannini, a reporter for The Athletic, cautioned on Twitter that mainstream media headlines are overstating what occurred. This news is a big deal, but the NCAA has only agreed to start a process of modifying its rule—a great deal remains to be determined. Key thought leaders in the sports business world, like Professor Andrew Zimbalist, have homed in on a specific clause in the NCAA’s announcement: the new rule will be created “in a manner consistent with the collegiate model.”

What does that mean? We don’t yet know. The “collegiate model” tends to point to the preservation of amateurism in college sports, which some may find incompatible with the concept of compensation altogether. The decision makers are sure to haggle over how the NCAA can reconcile amateurism with compensation in the new rules, consistent with the direction that this vote has given them. This is not the last we will hear of this question.

A recent post on Inside Higher Ed highlighted an interesting division on the political right regarding college athlete compensation following the NCAA vote. U.S. Senator Richard Burr, a Republican from North Carolina, tweeted: “If college athletes are going to make money off their likenesses while in school, their scholarships should be treated like income. I’ll be introducing legislation that subjects scholarships given to athletes who choose to ‘cash in’ to income taxes.”

U.S. Representative Mark Walker, also a North Carolina Republican, responded to his colleague in the upper chamber: “If scholarships are income, that makes them employees, not student-athletes. This isn’t about income. It’s about basic rights that every other American has to their own name.” Rep. Walker is the author of a bill that would amend the Internal Revenue Code to “prevent qualified amateur sports organizations from restricting student-athletes from using or being compensated for use of their name, image, and likeness.” Andrew Distell covered the Walker bill for JSEL back in April 2019. Walker’s point seems to be that the NCAA’s current model is anti-free market.

The NCAA vote likely buys the organization some time to figure out the issue of athlete compensation on its own terms, but the clock is certainly ticking. We are not out of the woods just yet.

 

Image: “SELU LSU 9718 037” by tammy anthony baker is licensed under CC BY 2.0 

Eli Nachmany is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).

It’s In the Game?: EA CEO Expresses Interest in NCAA Football’s Return, as Legal Questions Loom

It’s In the Game?: EA CEO Expresses Interest in NCAA Football’s Return, as Legal Questions Loom

Electronic Arts (EA) CEO Andrew Wilson recently expressed interest in bringing back the once-popular NCAA Football video game franchise, if the legal framework governing college athletics changes in such a way that would permit its existence. Wilson made the comments at the WSJ Tech Live conference in California, favorably citing a newly signed California law that, starting in 2023, would allow college athletes to profit off of their name, image, and likenesses. The hope is that such a law could “clear the way” for NCAA Football’s return. To be sure, the NCAA opposed the California law and prefers to solve the issue of athlete compensation on its own terms.

EA Sports, a division of EA, last released NCAA Football in 2013—reporting indicates that the game was immensely “popular, ranking behind the FIFA soccer game and the NFL Madden game among EA Sports’ titles[.]” In 2013, the NCAA allowed its licensing deal with EA Sports to expire, citing “the current business climate” and litigation, like the Ed O’Bannon lawsuit, that challenged the revenue scheme related to the usage of college players’ names, images, and likenesses in broadcasts and video games.

The NCAA Football franchise is definitely still on the minds of some at EA Sports headquarters. As Business Insider recently pointed out, EA folded some college football gameplay into its latest installment of Madden NFL—Madden 20—but safely included it in a pre-set, scripted mode (QB1: Face of the Franchise) which does not allow for player customization.

It seems unlikely that EA Sports would spite the NCAA and bring back some iteration of NCAA Football with only California schools. After all, EA jeopardizing its relationship with the NCAA could complicate future efforts to re-introduce NCAA Football in full if the legal landscape settles in such a way that creates the conditions necessary for the franchise’s return. Further, given the opposition to the California law from “[t]he University of California system, California State University schools, Stanford and USC[,]” it would be quite a reversal for the schools to come together and make their own deal with EA Sports for a video game, independent of their governing body.

The possibility of NCAA Football returning is sure to excite football fans and sports gamers (this author included). However, given the uncertain legal future of compensation in college athletics, it remains too early to tell if the once-prominent video game franchise will be making its way back to the shelves of local game stores anytime soon. If profit is any incentive, however, there certainly appears to be a deal waiting to be struck here.

Image: Photo a day project: December 2005, Jenny Lee Silver, CC BY-NC 2.0

Eli Nachmany is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2022).