Why James Wiseman and Memphis Should Tell the NCAA to Pound Sand
A lawyer who beat the association in court explains how the college hoops star and his school can do the same
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University of Memphis basketball player James Wiseman has decided to fight the National Collegiate Athletic Association over his contested eligibility. But can his lawyers make a winning case in court?
Last Friday, Wiseman sued the NCAA for ruling that he was “likely ineligible,” obtaining a temporary restraining order from a state judge that allowed him to play in a game that night against Illinois-Chicago.
At issue, according to reports, is the NCAA’s contention that Penny Hardaway likely broke association rules governing booster conduct by providing Wiseman’s family with $11,500 in moving expenses in 2017.
In 2008, Hardaway—a former Memphis player and NBA star who became the school’s basketball coach in March of 2018—made a $1 million contribution to the school to help build an athletic Hall of Fame.
Nine years later, Hardaway allegedly gave money to Wiseman’s mother, Donzaleigh Artis, to help her family move to from Nashville to Memphis.
At that time, Hardaway was the coach at a local high school where Wiseman ended up enrolling. Wiseman already had been playing for Team Penny, a Nike-sponsored AAU squad that Hardaway oversaw.
The NCAA reportedly has deemed Hardaway a Memphis booster because of his 2008 contribution to the school. The organization’s rules state that boosters are not permitted to recruit prospects or provide them with financial incentives or “benefits that were not previously provided.”
Wiseman’s attorneys are challenging the NCAA, and Memphis president M. David Rudd is publicly supporting the player, Hardaway, and the school’s basketball program. A court hearing to determine Wiseman’s eligibility reportedly has been scheduled for Nov. 18.
As Wiseman’s story unfolded over the weekend, Johnson posted a series of Tweets outlining how the potential top pick in the 2020 NBA Draft could win a case against the NCAA.
To better understand Johnson’s reasoning, Hreal Sports subsequently spoke to him.
(The following conversation has been lightly edited for brevity and clarity).
Hreal Sports: A lot of the reporting around and reaction to the Wiseman story has hinged on the idea that while people may not like the NCAA’s rules—because they’re petty, dumb, immoral, or all of the above—those rules are still the rules. And those rules were clearly broken.
But you’re saying not so fast—there’s a winning argument to be made that nobody involved in this case actually broke any NCAA rules. Do I have that right?
Johnson: Yes. I first responded to the guy who writes for The Athletic, Seth Davis. I tried to be polite. But I quoted what he said, and I said, “you don’t have any support for this. You’re wrong.”
If you skip everything and buy the NCAA’s whole storyline, then sure—people are guilty as sin! But you can’t do that. It’s like assuming someone is a killer and then asking, “will he get convicted?”
You can’t assume the predicate. You have to prove the predicate.
Let’s talk about that! The crux of the NCAA’s case against Wiseman seems to be:
Hardaway qualifies as a booster under the association’s definition of the term;
Hardaway did something boosters aren’t allowed to do, which was to give Wiseman’s mother money to move to Memphis while Hardaway was a high school coach.
You argue that Hardaway isn’t actually a booster under the NCAA’s own definition. Why not?
The way I understand it, Hardaway didn’t give money to a booster club or the athletic department. He gave money to the University of Memphis to pay for an athletic hall of fame. Where does it say in the NCAA’s rules that giving money to a university makes you a booster?
This reflects how imprecise the NCAA’s rules are. It’s impossible to give money to an athletic department, because athletic departments are generally not legal entities. They are part of universities, which [themselves] are organized as charitable nonprofits under the IRS tax code.
Alternately, if you’ve created an athletic department that is legally separate from a school, then functionally that department is no longer part of the NCAA—because they no longer are under the governance and control of that university’s president.
(Hreal Sports note: the NCAA’s website defines a booster as anyone who has:
Provided a donation in order to obtain season tickets for any sport at the university.
Participated in or has been a member of an organization promoting the university’s athletics programs.
Made financial contributions to the athletic department or to a university booster organization.
Arranged for or provided employment for enrolled student-athletes.
Assisted or has been requested by university staff to assist in the recruitment of prospective student-athletes.
Assisted in providing benefits to enrolled student athletes or their families.
Been involved otherwise in promoting university athletics.)
And let’s look at the reason the NCAA’s booster definition and rules exist in the first place. What are they trying to prevent? Recruiting violations and improper benefit violations that a university can’t do on its own, so they do it through a secret network of boosters—basically, people giving money to players so they’ll go to a particular school.
Well, what is an athletic hall of fame? It doesn’t do anything for recruiting. It’s alumni tool. It does a lot for alumni! It gives them a reason to come back to campus. A reason to invite other alumni who may have been of a certain athletic caliber where you could put them into that hall.
Once you do that, you reestablish a connection with those alumni. And now it’s a fundraising tool for your school. My high school does this. Any smart prep school or college or university does this. These halls of fame are affinity tools to increase alumni affinity to the school—to extend the connection that has been broken or lessened through the passage of time.
The alumni department, the endowment department, the planned giving department—whatever you call at at a particular school, before you can get alumni to give you money, they have to love you. How do you get them to love you? Have a little ceremony. How many alumni won’t come back for their induction? And if they are wealthy, they’ll do a dinner and tour the campus and see the present, and then at some point the school will ask, “will you include us in your will?”
Everything Penny did with that donation has nothing to do with athletic recruiting—and everything to do with alumni affinity, the school’s endowment, and so on. I don’t expect the NCAA to understand those concepts. But I do.
You also wrote that the NCAA’s definition of “booster” isn’t enforceable. What do you mean by that, and why not?
For a court—or for the NCAA—to enforce a booster rule, you have to know who a booster is. You can’t have a definition that is so vague that there is no threshold for it, which in this case means no minimum amount of giving. There has to be a threshold. Otherwise anybody who attends a college game and pays a dollar is now a booster. So every sports fan that attends a college event is now a booster.
That’s obviously not what was meant when the NCAA’s rules were written, and it doesn’t serve the purposes of what they were trying to stop. But a rule that puts everybody in the category of the criminal is void for vagueness on its face. That is how a court would look at it. It’s so over-inclusive that it has no meaning.
Another way that there’s no threshold, and how you don’t know who a booster actually is? Just for argument’s sake, let’s assume Penny was a booster back in 2008 when he gave money to the University of Memphis. When does he cease becoming a booster? The term booster implies a current intent to act on behalf of the school. If Penny doesn’t give money in 2009, can you infer current intent? Maybe. What about 2010, 2011, 2012, all the way to 2018? If he doesn’t give money, can you say that? When does the booster definition wear off?
This all goes back to what the booster rules are designed to identity. They are designed to identify someone who is going to circumvent NCAA rules to help athletic departments with recruiting and improper benefits. Giving a charitable contribution to the university to build a building is so f—king far away from what the booster rules are all about—especially nine years later.
Moving on from the NCAA’s definition of booster, you write that even if Hardaway qualifies, he didn’t violate the actual NCAA bylaws that regulate booster behavior. What’s the argument there?
Okay, say in 2008 that Penny was a booster, and nine years later he is still a booster. Unless it is a recruiting violation, it doesn’t matter that he gave Wiseman’s family money in 2017. The booster has to violate a NCAA rule. If Penny was in a car on the highway, you can’t pull him over and say, ‘you are a booster and you were speeding.’ You have to be able to show, “I clocked you doing 75 [miles per hour] with a speed gun.’
So, did Penny engage in illegal recruiting by giving the money? In my opinion, no way, no how. He never recruited James in 2017 to attend Memphis. He wasn’t the coach at Memphis. He was coaching high school basketball! And even if that had violated high school athletic association rules—I’m not aware that it did—that doesn’t violate NCAA rules.
Moreover, James was not enrolled in college. So it was not an improper benefit under NCAA rules.
And let’s not forget the context here. From what I have read, Penny is a very generous person. His reputation in Memphis is kind of as a one-man charity. James’ mother is not the only person he has helped. Most of his players when he was a high school and AAU coach were steered away from Memphis, not toward it. If he was a cog in their recruiting wheel, you would have expected to see an unusual stream of players going from his organizations to Memphis. But you don’t see that. There’s no evidence of that. Which also goes back to the question, is he a booster?
We’re taking about Wiseman, Memphis, and Hardaway playing defense against the NCAA. You write that they could play legal offense, too—that all three have actionable claims against the NCAA for breach of contract and tortious interference with contract. In addition, you write that Wiseman’s mother has a claim for invasion of privacy. Can you explain what those claims are and how they potentially apply here?
Sure. Start with James. The contract he has that would be breached is the contract between the NCAA and Memphis, to which he is a third-party beneficiary. That means the NCAA has a duty of good faith and fair dealing that applies to him. That duty is violated if the NCAA acts in an arbitrary and capricious manner.
Well, arbitrarily and capriciously deciding—for no good reason on Earth!—that a charitable contribution in 2008 makes Penny a booster, and that James’ mother’s receipt of a gift when her son had no intention of going to Memphis violates NCAA rules qualifies. The NCAA just made it up.
James’ interference with contract claim is based on the NCAA interfering with his contract with Memphis. His right to attend the school and avail himself of every opportunity that Memphis can offer and chooses to offer. He has a contractual right to play basketball if he qualifies. And he does qualify. And the rules violations the NCAA is alleging are fake. They’re saying that it’s a plausible claim, but it’s not.
Penny’s claims are the same as James’. He is a third-party beneficiary to a contract between the NCAA and Memphis. By making up this essentially false allegation that he is a booster who has violated either recruiting or impermissible benefit rules, the NCAA is failing to act in good faith. The NCAA is also interfering with his coaching contract with Memphis.
Memphis has a claim against the NCAA for trying to interfere with its basketball program. Again, the NCAA is required to act in good faith and deal fairly with Memphis—but by making up claims about player and coaches, it hasn’t. And it has damaged the school’s ability to compete this year in basketball. It also has brought adverse publicity to Memphis, possibly harming the school’s future ability to fundraise and recruit. There’s just a litany of ways the NCAA’s unfair dealing could affect the program.
James’ mom has an invasion of privacy claim. The NCAA has no right to publicize and disclose that she got help to move because she presumably couldn’t afford it herself. Think about that. She wants to move her family to be closer to James’ sister in Memphis and allow her son to move to a private school where he can be coached by a former NBA star. She is doing what she can for her kid! Is it fair to her that the whole world now knows her personal financial situation and that you and I are discussing it? I would say no.
My parents got divorced when I was young. My mom taught school. Times were tough. I remember her crying about it. Being a single mother is f—king hard. When you don’t have money and feel like you have to provide for your kids—it is devastating. You feel not good enough. So I think that James’ mom is a big part of this. She’s collateral damage. The NCAA is making her seem like a criminal. This is just a mom trying to do the best she could for her son. I’ve never met her, and I don’t know much about her. But human nature being what it is, I can’t imagine she is not appalled by all of this. And embarrassed. We’re programmed in this country that if you don’t have money, it’s your fault. So there’s a shame associated with it, too. If you asked for a loan because you were out of money, would you want that circulating around? What if that was being discussed on radio and TV?
While we’re talking about James’ mom, we should talk about the legal concept of impossibility.
Okay. What’s that, and how does it apply here?
The law doesn’t allow anything that is impossible. For instance, you cannot legally make a child responsible in the future for their parents’ actions now. That concept has been forgotten here. The NCAA rules in this case are attempting to condition the eligibility of a young adult on something that somebody else did when that young adult was a child—and had no ability to control anything. That is not legally enforceable!
Regarding the claims we just discussed, you write that they would be “tried in state court in Memphis, and the NCAA would get hammered.” Why?
I’ve been a trial lawyer for 30 years. I know how juries respond to information. A David versus Goliath situation where you have the NCAA—which is largely white—picking on two black guys and a black lady without any cause at all, attempting to interfere with their ability to be successful in this world? As long as you don’t get any Proud Boys on your jury, in my opinion, in this world, they’re going to f—king kill the NCAA.
I sue lawyers for a living. The people I sue huff and puff the whole way to trial, but once we get there, they want to talk settlement and write big checks. They don’t want to take the risk with a jury. Because people hate lawyers. Well, people hate the NCAA. You just have to tell a cohesive story to a jury. A story that is factually true, but also creates emotion. You don’t want to—or have to—overstate it. Just state it so the jury gets mad on their own. If you do it right, they almost always do.
Here, you have a poor black family trying to make it. A wealthy black basketball coach who is charitable and an example of success. And the NCAA is trying to bring them all down. If you just lay out how these people are being treated by a Goliath who wants to stomp on them, that is hatable.
Plus, because this would be tried in Memphis, you’ll have a local jury—and from what I saw with my Twitter thread blowing up, if you get a cross-section of people in Memphis on the jury, they might physically hang the NCAA. These people are pissed!
You’re speaking from a place of personal experience—a decade ago, you represented former Oklahoma State pitcher Andy Oliver in a high-profile and pretty consequential eligibility case against the NCAA. What lessons did you learn from that experience that you think would be helpful to other people taking on the NCAA in court?
Lesson No. 1: the NCAA is the system. They come into court with national lawyers who have handled their cases for 20 years. They almost always win. They have a strategy of what has won before. And they almost always go against someone representing a player who is a first-timer who has never done one of these cases, because most players can’t afford to hire a big-time law firm that has people flying all around the country handing all of their cases.
So what the NCAA does is file these big, thick briefs that overwhelm the players’ lawyers. And more importantly, they overwhelm the judges. They file so much f—king paper that the judges just want those cases out of their courts. It’s too much work!
But here’s the thing. The NCAA lies. They did this in the Oliver case like 100 times. Lied and lied and lied. They would say that something in another case said one thing, and if actually you went and read it, 95 percent of the time it didn’t say that! Whether the NCAA’s lawyers believe their own bulls—t or just think they can get away with it, I don’t know. But that killed them in the end. All you have to do is go read everything and start chipping away at their credibility. And then the judge stops listening to them.
The other larger lesson is that the NCAA will come into court and say, “sure, people are upset here, and people always complain about us. But we’re just a membership organization. We are like mom, apple pie, and [Chevrolet]. We’re just the umpire here, trying to do our job to stop cheating. Aw shucks, don’t pick on us.”
Judges are programmed to accept that. They are very receptive to law and order arguments. So you have to deprogram the judge. You have to explain what the NCAA really is. Explain how much money there is in college sports. Explain that while they say they are doing this all for the kids and for education, while their PR and advertising has said that for decades, they also say in court they have nothing to do with education. You have to show that they created the term “student-athlete” to fool everybody so that injured football players can’t get workers’ comp, because that would cost the NCAA’s member schools too much money. Think about how insidious that is!
You have to change the narrative from law-and-order, good guy umpire to rich white people who don’t give a s—t about the black labor on the field.
Part of the reason the NCAA has been so successful over the years, and that’s also true in court, is that they actually have subliminally programmed people to believe their bulls—t. That’s why I call it deprogramming. Every time I would see the judge in the Oliver case, I would have to deprogram him from all the crap talking points the NCAA would keep repeating from our last meeting with him.
Let’s get back to the Wiseman case. You praised Memphis president David Rudd for standing up to the NCAA. Is that unusual for a school president to do? Why do you think he’d doing it?
Not only is it unusual—it’s unique. I’m not aware of any college present or athletic director at the beginning of an investigation ever taking this kind of position, other than the Texas A&M chancellor in the Johnny Manziel case. And that was purely political. If he had suspended Manziel, he no longer would have been the chancellor. Texas lives for football!
Anyway, what people don’t understand is that the NCAA is run by a concept of presidential control. Only the schools can suspend athletes. The presidents usually try to stay out of these matters and delegate them to their athletic directors and NCAA rules compliance people because they are time-intensive and confrontational. They’re like family law matters.
It’s not a win for a president to take on the NCAA—they threaten their own members. They are run as a dictatorship out of Indianapolis. Unless you sit on your hands and say, “thank you, spank me again,” they are going to retaliate against you. I think they wear schools and everyone else down.
That’s why I’ve said that this is a watershed moment. The reason to take this stand is to say—and this comes in the context of everything going on nationally with the NCAA—that enough is enough. I am Dr. Rudd. I’m the president of his university. Some bureaucrat in Indianapolis made this decision. But this organization is organized around presidential control. In the end, I get to make the decision. If the NCAA thinks I’m wrong, then file a major infractions case against me.
The tail has been wagging the dog for too long. I think these college presidents are sick of it. If Rudd is wiling to go to the wall on this, other college presidents will see that.
You can only go against the NCAA when you are 100 percent right. This is one of those cases. You have a poor black woman moving from Nashville to Memphis to better her son’s life—to help him, an unpolished diamond of a basketball player, have an opportunity to get cut and polished. You have Penny’s generosity, doing something good out of the goodness of his heart. And the NCAA is going to try to say that this is wrong and then shoehorn this into some bulls—t definition of a booster with an allegation of misconduct that is provably, demonstrably false? Go f—k yourself.
This has been Hreal Sports, a weekly-ish newsletter written by Patrick Hruby about sports things that don’t stick to sports. If you have any questions or feedback, contact me at my website, www.patrickhruby.net. And if you enjoyed this, please sign up and share with your friends.