The NCAA and University of Memphis Tigers freshman sensation James Wiseman, a projected top 3 pick in the 2020 NBA draft, are off to a rocky and litigious start.
On Friday, the NCAA communicated to Memphis officials that the 7’1" Wiseman is “likely ineligible” to play, possibly for the remainder of the ’19-20 college basketball season. Although the NCAA has not issued a final ruling on Wiseman, the NCAA appears to have determined that Memphis head coach Penny Hardaway paid for Wiseman and his family to move from Nashville to Memphis in 2017. Hardaway, who was not Memphis’s coach at that time but was nonetheless considered a booster of the Tigers' basketball program, allegedly paid $11,500 for those expenses. According to the university, Wiseman was completely unaware of the payment.
Undeterred by the forthcoming suspension, Memphis attorney Leslie Ballin and other attorneys who are representing Wiseman sought and obtained a temporary restraining order from a judge in Shelby County (Tennessee) late Friday. The order rendered Wiseman, who scored 28 points and grabbed 11 rebounds in his Tigers debut on Tuesday, eligible to play for the Tigers in Friday night’s 92-46 win over Illinois-Chicago. Wiseman started for Memphis and scored 17 points. According to The Athletic's John Martin, a court hearing is scheduled for Nov. 18.
There’s a lot to unpack in this situation, particularly since the NCAA might eventually order the forfeiture of every game in which the Tigers play Wiseman. More on that below.
How NCAA rules relate to Wiseman and Hardaway
Wiseman has been associated with Hardaway for several years. The association began no later than 2017, when Wiseman joined Team Penny, a Nike-sponsored AAU team that Hardaway oversaw.
Later that year, Wiseman and his family moved from Nashville to Memphis. Contemporaneously, Wiseman transferred from The Ensworth School in Nashville to Memphis East High School. Hardaway, at the time, was an assistant coach at Memphis East and then became its head coach. In March 2018, the University of Memphis hired Hardaway, who is a distinguished alumnus, as head basketball coach. Eight months later, the university signed Wiseman, who was widely considered one of the two or three best recruits in the country.
Even though Hardaway was not employed by the university at the time he allegedly paid for Wiseman’s moving expenses, Hardaway can still count as a “representative of Memphis’s athletic interests” or, more colloquially, a booster. Boosters include those who provide a donation to obtain season tickets, promote the school’s athletic program, hire student-athletes or assist in providing benefits to enrolled students or their families.
NCAA Bylaw 13.02.15 places the onus on the school to monitor its boosters. Schools are required to be aware of any individual or organization who is known, or should be known, by a member of a school’s administration to have assisted in the recruitment of prospective student athletes.
Prohibited “assistance” includes a wide range of recruitment activities. One obvious example is providing “cash or like items” to recruits. Paying for a recruit’s moving expenses would count as a “like item” since it is functionally equivalent to a cash bribe.
Also, once a person is viewed as a booster, he or she remains that permanently.
Chances are, Hardaway counted as a booster in 2017. He is one of the greatest players in Tigers history. In fact, Memphis (which was called Memphis State at the time) retired his jersey in 1994, one year after the Orlando Magic made Hardaway the third overall pick in the 1993 NBA Draft. The NCAA might also suspect that Hardaway was motivated to assist Wiseman in 2017 in order to boost his own chances of landing the Memphis head coaching job. The Tigers, at the time, were under-performing under coach Tubby Smith. Memphis fired Smith in March 2018 and promptly hired Hardaway.
The NCAA could also punish both the Tigers basketball program and Hardaway
While the NCAA has initially punished Wiseman, it’s possible that the NCAA could eventually punish Hardaway and the athletic program, too.
The NCAA will want to assess if Hardaway was in communications with the basketball program or other university officials in 2017. The key will be whether there are any links between university officials and Hardaway allegedly helping Wiseman and his family.
If Hardaway coordinated with the university, both he and the school could face sanctions. The NCAA could suspend him while stripping Memphis of scholarships and banning the team from the postseason. Moreover, if the NCAA ultimately deems Wiseman ineligible, any win the Tigers secure with Wiseman in the lineup could be vacated. In fact, the NCAA could do more: 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.
Expect the NCAA to try to remove Wiseman’s case to federal court, specifically the U.S. District Court for the Western District of Tennessee. Shelby County judges are elected officials. The NCAA likely figures that a judge whose employment is beholden to Memphis voters might, all things being equal, be inclined to favor a University of Memphis basketball star. Such a judge might also be inclined to disfavor the NCAA, a sports organization with many critics and relatively few friends.
A federal district judge, in contrast, is nominated by the President, confirmed by the U.S. Senate and appointed to a life term. The NCAA would likely argue that its ability to enforce amateurism rules raises federal legal questions. Therefore, the NCAA would insist, Wiseman’s case would more appropriately be heard by a federal judge.
Whether or not removal succeeds, the NCAA will insist in court that the restraining order ought to be lifted and the case dismissed. To that point, don’t equate the granting of a restraining order as a sign the NCAA will lose in court. It’s not clear at this time if the NCAA even had an opportunity to contest Wiseman’s petition for an order before it was granted by a judge. The NCAA, which in a statement Friday night described Wiseman as “likely ineligible,” might also insist that the situation is not yet “ripe” for judicial review: a court should not act on a NCAA matter until the NCAA has made a final determination in that matter.
The NCAA will also assert that Wiseman’s case fails to meet the relevant legal standards. A person or organization seeking a restraining order must show that immediate and irreparable injury or loss would occur unless an order is granted. The NCAA will likely insist that it has reasonably applied NCAA rules—of which Hardaway, Wiseman and Memphis have duties to follow—and thus judicial intervention would be inappropriate and unwarranted.
The NCAA might also contend that a college player being ruled ineligible for games does not amount to irreparable injury. The player can continue to take college courses and develop their basketball skills outside of the suspension. If the player lost his or her athletic scholarship as a result of a suspension, that would be a different story, but there is zero reason to believe that would happen with a player as heralded as Wiseman.
On the other hand, a college player who is ineligible for game does suffer a form of irreparable harm: he or she loses out on opportunities to develop their athletic skills. Plus, games they miss while on suspension will never be replayed.
Memphis has stakes in this matter beyond whether Wiseman plays and helps the team win games: If the NCAA ultimately prevails in court, it could vacate or, through the Restitution Rule, claw back TV revenue from any games in which Wiseman played. Not so subtly warning of that possibility, the NCAA’s statement Friday night stresses that the university “chose” to play Wiseman against Illinois-Chicago despite his likely ineligibility. The NCAA also highlighted that Memphis is “ultimately is responsible for ensuring its student-athletes are eligible to play."
Wiseman has leverage
Wiseman obviously wants to play for the Tigers and for Hardaway, who was one of the most dynamic basketball players in the 1990s before suffering injuries. But the marketplace for players of Wiseman’s caliber and age is not limited to NCAA college basketball. As explained below, that dynamic could play a key role in his decision making going forward.
Taking a step back from the current controversy, the’19-’20 basketball season is essentially a bridge year for Wiseman until he enters the NBA. Sure, he wants to help the Tigers win games, but he also wants to improve his skills and impress NBA scouts in hopes of becoming the first overall pick next June.
Wiseman is also mindful of potential endorsement deals: the better he plays in ’19-’20 and the more the basketball community becomes aware of his stardom, the more marketable he will become when he begins his NBA career next year.
Consider the attention that Zion Williamson received while at Duke in ’18-‘19. Even though Williamson wasn’t paid as a college player, he gained substantial value when the media and fans focused on him and the Blue Devils. That attention no doubt played an instrumental role in Williamson securing a five-year, $75 million endorsement deal with Jordan Brand.
Memphis may not be as much of a national draw as Duke, but the Tigers are ranked 14th in the Associated Press preseason poll. Some of Wiseman’s games at Memphis will be aired nationally on ESPN, CBS, TBS and other networks that have contracts to broadcast men’s college basketball. Wiseman thus has clear incentives to fight the NCAA in court or appeal his suspension back to the NBA and hope for leniency: he wants to build his brand while in college.
If the NCAA succeeds in excluding Wiseman, he won’t lack backup options. In fact, if Wiseman finds the battle to play college basketball to be too much of an aggravation, pro teams would be calling.
The G League, for example, could offer Wiseman a “select contract” where he would be paid $125,000 for months of play. A select contract would also provide Wiseman full health care benefits and financial literacy courses, among other perks offered by the NBA’s rapidly improving minor league.
Wiseman would also attract interest from pro teams in Australia, Asia and Europe. LaMelo Ball and R.J. Hampton—both of whom, like Wiseman, are expected to be selected in the first round of the 2020 NBA draft—are getting paid to play in Australia’s National Basketball League instead of having to complete college homework assignments and worrying about NCAA rules. If Wiseman signed with a team abroad, he would stand to earn at least several hundred thousand dollars in salary, plus be able to sign endorsement deals. Wiseman might also obtain superior preparation for playing in the NBA should he spend this season playing against polished professionals instead of inexperienced teenagers.
Alternatively, Wiseman could adopt the strategy of Oklahoma Thunder forward Darius Bazley, who signed an “internship” contract with New Balance instead of attending college. That contract is worth up to $14 million.
If it banishes Wiseman, the NCAA might be “cutting off its nose to spite its face”
The NCAA has an important stake in enforcing compliance rules. Member schools and conferences expect the NCAA to treat all members equally. That means the NCAA must prevent one school from gaining unfair recruiting advantages over competitors.
At the same time, the NCAA may want to rethink its apparent quest to banish Wiseman for something that he (apparently) claims he knew nothing about. Given that most teenagers probably don’t ask their parents about how family moving expenses are being financed, it stands to reason Wiseman may genuinely not have known.
The exclusion of Wiseman from men’s college basketball would hurt the NCAA’s ability to market college hoops. Sure, Wiseman is one of many college players, but consider the impact that Williamson had on college basketball last season: he attracted new fans and new viewers. Wiseman probably isn’t the next Williamson, but he would nonetheless have a positive impact on attendance to Tigers games, TV ratings and the sale of apparel. It’s also safe to assume the TV networks that are collectively paying billions of dollars to air men’s basketball games want Wiseman to play.
Also consider this: if the NCAA excludes Wiseman, it might unwittingly help a rival basketball organization—be it the G League or a pro league in another country. While the NCAA controls the marketplace for star football players who are too young to qualify for the NFL’s age eligibility rule (which requires players be three years out of high school), the NCAA is just one of several major basketball organizations for teenage hoops stars. In that same vein, the more often that five-star recruits bypass college to play in the G League or abroad, the more often similarly situated payers in the future will do the same.
The NCAA should be careful what it wishes for.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.