Brian C. KONKEL'S Article Entitled, "Wiseman case shows difficulty in suing, prevailing against NCAA" was published in the Chicago Daily Law Bulletin.

Last Thursday, just days after a Tennessee judge granted a temporary restraining order in the plaintiff’s favor allowing him to play in college basketball games pending a more finite determination of his eligibility, University of Memphis star forward James Wiseman suddenly withdrew his lawsuit, which had been scheduled for further hearings on Monday.

The move was somewhat unexpected given that Wiseman had prevailed initially, but the case demonstrates how the NCAA bylaws and procedures discourage litigation.

Wiseman’s suit had challenged the NCAA’s initial determination of likely ineligibility due to $11,500 allegedly paid to Wiseman’s family by Memphis head coach Penny Hardaway.

The money, which was for moving expenses, was allegedly paid in 2017, before Wiseman enrolled at Memphis, and before Hardaway was hired to be the school’s head basketball coach. The predicate of the NCAA’s ruling was that Hardaway had donated $1 million to the university in 2008 for the purpose of building an athletic hall of fame, which, according to the NCAA, rendered Hardaway a booster and the payment improper.

Some legal analysts believe that Wiseman actually had a strong chance of prevailing against the NCAA, largely because the designation of Hardaway as a booster, under NCAA rules, is questionable at best. In addition, the timing of the ruling, after initially ruling Wiseman eligible, suggest that a trier of fact could find that the NCAA acted arbitrarily and capriciously in the application of its own bylaws and procedures (the standard required for a challenge of a private association’s application of its own rules).

Wiseman’s arguably strong legal position was bolstered by the fact that Memphis and the school’s president backed him publicly and agreed to allow him to continue to participate while the case was pending. This was rather unusual in the context of challenges to NCAA punishment, since the NCAA is actually an association of its member institutions, of which Memphis is one.

Yet, Wiseman dropped his case, and Memphis declared him immediately ineligible, leading many to wonder why.

The answer likely lies in nuances in the NCAA bylaws and the practical realities of suits against the NCAA. By dropping the suit now, Wiseman may give himself and Memphis the best chance for him to participate for at least part of this season, without risking future infractions against the school, jeopardizing future seasons.

Different NCAA procedures apply to student-athlete reinstatement cases, in juxtaposition to enforcement and infractions cases. At its core, the reinstatement process deals exclusively with student-athletes and involves a streamlined procedure handled by the student-athlete reinstatement committee and its staff, whereas infractions cases deal with institutional culpability, including that of employees and coaches.

The reinstatement process is expedited and the student-athlete is deemed ineligible until a determination is made in accordance with a predetermined penalty matrix.

A staff decision is rendered, and then the university, on behalf of the student-athlete, is afforded a chance to appeal to the committee, which has five members from institutions and conferences as well as a nonvoting student-athlete member.

Under the penalty guidelines, Wiseman will have to repay the $11,500, and will likely have to sit out some percentage of Memphis’ games this season. Without taking into consideration potentially aggravating or mitigating factors (such as, for example, the questionable determination of Hardaway’s booster status), Wiseman might face a suspension of about 30% of Memphis’ season (nine to 10 games).

This possible outcome is indicative of Wiseman’s dilemma — continue to fight, and potentially lose, missing the entire season or accept a lesser punishment and return to the team.

Timing is also a critical factor. The NCAA endeavors to resolve reinstatement cases fairly quickly, usually in about a week for routine cases. Infractions cases, on the other hand, usually last months, or even years, factoring in the lengthy investigative process.

Litigation, likewise, can drag on, sometimes well after a student-athlete’s eligibility has been exhausted. This is particularly critical in Wiseman’s case, because he is expected to declare for the NBA after just one season of collegiate competition.

Another NCAA rule also discourages litigation in cases such as this. NCAA Bylaw 19.13 essentially states that if member institutions allow student-athletes to participate while litigation is pending, and a ruling is ultimately made in the NCAA’s favor, the NCAA may still punish the school for the student-athlete’s participation during the interim period.

The rule has been challenged before, and many have criticized the rule as depriving student-athletes access to the courts because schools are reluctant to take the chance of allowing participation during the pendency of litigation.

Memphis took a stand in support of Wiseman, allowing him to participate, but the rule placed Memphis at risk of a potential major infractions case in the future.

While the school publicly backed the player, there was likely internal pressure to resolve the matter and avoid such a result. Presumably there have been discussions between the institution and the NCAA to resolve this matter through the reinstatement process and avoid drawn out litigation with a potential infractions case even after the lawsuit gets resolved.

The restitution rule is particularly problematic because when student-athletes sue the NCAA based on eligibly determinations, the NCAA wins more often than not. According to a 2014 report by Bloomberg Businessweek, between 1973 and 2014, in 45 cases student-athletes prevailed against the NCAA at the trial court level less than half the time, and of those, the NCAA succeeded on appeal over 70% of the time.

Short of arbitrary and capricious conduct, courts are reluctant to disturb the policies and procedures of private member institutions such as the NCAA.

Even though Wiseman may have had a strong case based on the facts, and despite having the public support of the university, the practical reality is that Wiseman faced an uphill battle.

Wiseman could have taken on the NCAA and may have won, but the economic cost of doing so, coupled with the significant downside of a loss, weighed against pursuing the matter further.

The student-athlete reinstatement process is the pragmatic approach and gives all parties the best chance of putting this matter behind them and may allow Wiseman to contribute on the court this season.

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