Looking at the potential legal fallout—plus, how Penny Hardaway and Memphis could respond.
James Wiseman’s college basketball career lasted about a week, but its legal aftermath could span years.
The NCAA announced on Wednesday that an unspecified infractions case involving the University of Memphis
has been referred to the Independent Accountability Resolution Process (IARP). As SI's Pat Forde has detailed, the IARP is a new and ostensibly independent method of reviewing select infractions cases. It was created in the aftermath of recommendations from an NCAA college basketball commission committee chaired by former U.S. Secretary of State Condoleezza Rice.The IARP is intended to address “complex infractions cases.” As a structure to some degree removed from the NCAA, the IARP is also expected to adjudicate cases in a less controversial setting. The NCAA’s Committee on Infractions, in contrast, has sometimes faced accusations of procedural unfairness and conflicts of interest. The basic idea is that the IARP will adhere to a more neutral—and, by implication, more credible—process and therefore generate an authoritative decision shielded from rebuke.
The Memphis case, which is believed to involve Wiseman but could concern other topics, is the first case to go through the IARP. The NCAA has not revealed whether the committee on Infractions, the NCAA vice president of enforcement or Memphis—or some combination thereof—sought the review, though any could have done so. As explained below, both the NCAA and Memphis would have reasons for requesting the referral.
Recapping the key legal issues in the Wiseman saga
Wiseman, a 7’1", 240-pound center, played in only three games for the Tigers over a seven-day stretch last November. He played well, averaging 19.7 points and 10.7 rebounds. Still, a three-game college career wasn’t what head coach Penny Hardaway had expected from his prized recruit.
The shortness of Wiseman’s stay stems from a disputed set of circumstances that are entangled with the law.
In early November and right before the season tipoff, Wiseman learned that the NCAA would likely suspend him for an alleged recruiting infraction that occurred in 2017. The alleged infraction concerned the circumstances of Wiseman, then a high school student, and his family moving from Nashville to Memphis. The move meant that Wiseman would enroll at Memphis East High School.
Hardaway, who starred for the Tigers in the early 1990s, was a coach at Memphis East when this move occurred. Although not employed by his collegiate alma mater, the NCAA regarded him as a representative of Memphis’s athletic interests (more colloquially known as a “booster”). This status stemmed from Hardaway’s ties to the university, including through financial donations and his promotion of the Tigers basketball program. Memphis, like other schools, is obligated to follow NCAA Bylaw 13.02.15. It obligates schools to monitor boosters and ensure that they aren’t violating amateurism rules.
Hardaway is accused of paying $11,500 in moving expenses for Wiseman and his family. Memphis later hired Hardaway as head coach. Hardaway, in turn, successfully recruited Wiseman to the Tigers. The NCAA viewed this sequence of events as a quid pro quo: Hardaway would have paid Wiseman as an inducement to attend Memphis. An alternative interpretation is that Hardaway would have paid Wiseman to help land a recruit for the high school program Hardaway coached. At the time, Memphis employed a different coach, Tubby Smith.
Before the NCAA could impose a suspension, Wiseman hired attorneys. They, in turn, successfully sought and obtained a temporary restraining order from a judge in Shelby County, Tenn. Wiseman’s attorneys maintained that their client was a victim of an NCAA bait-and-switch. They argued the NCAA cleared him to play last May while having some knowledge about the moving expense issue. Wiseman felt that he had relied in good faith on the NCAA clearing him to play, only to be shocked and humiliated five months later. If he had known he would have been ruled ineligible by the NCAA, Wiseman could have signed a lucrative contract with a pro team outside of the U.S. for the 2019-20 season.
The court order ensured that Wiseman could continue to play even if the NCAA suspended him. Yet Wiseman’s attorneys knew that the NCAA had a number of legal arguments to contest the temporary injunction. For one, Wiseman had allegedly violated an amateurism rule he was obligated to follow. For another, an NCAA suspension arguably doesn’t amount to the kind of irreparable injury necessary to sustain a restraining order. Wiseman could continue to take college courses and he didn’t face a plausible risk of Memphis nullifying his college scholarship. The injunction, in other words, was tenuous and may not have lasted for the duration of Wiseman’s freshman season.
In addition, the interests of Wiseman and Memphis were not fully aligned. Wiseman sought a court order to play immediately. The long-term NCAA consequences probably weren’t a major worry for him. After all, Wiseman was only expected to play one season at Memphis and then jump to the NBA. Memphis, in contrast, presumably weighed the short-term value of Wiseman playing versus the long-term risk of NCAA sanctions. Notably, the NCAA warned Memphis that the school “ultimately is responsible for ensuring its student-athletes are eligible to play.” That admonition could come back to haunt Memphis and Hardaway.
Memphis was also aware that the NCAA could severely punish the school through the Restitution Rule. This rule can be invoked if Memphis played Wiseman pursuant to a restraining order that is later vacated, such as through a successful appeal in court. Through the Restitution Rule, the NCAA can mandate that a school disgorge television receipts. Hardaway chose to play Wiseman in three games where the NCAA had not yet suspended Wiseman. However, Wiseman was playing through a court order that wouldn’t last and Wiseman was later deemed ineligible.
The litigation was resolved before the NCAA formally suspended Wiseman. Wiseman’s attorneys and the NCAA negotiated a settlement that the NCAA likely viewed as a victory. It called for Wiseman to withdraw his lawsuit. The NCAA then suspended Wiseman for 12 games, a term that was scheduled to last until January 12.
Peculiarly, the NCAA also ordered Wiseman to “donate” $11,500 to a charity. A forced donation is more sensibly called a “fine,” but the NCAA likely opted for the word “donate” since Wiseman was a college student—and, under amateurism, he was denied opportunities to gain from his labor or commercial use of his name, image or likeness. Fining an amateur would unwittingly suggest that the amateur isn’t really an amateur. It’s unknown if Wiseman ever made the “donation.” Wiseman appealed his NCAA suspension, but the appeal failed.
Instead of waiting for the suspension to expire on Jan. 12, Wiseman turned pro on Dec. 19. He signed with an agent Jeff Schwartz from Excel Sports and is currently getting ready for the 2020 NBA draft. It’s widely expected that Wiseman will be a top-five pick, and possibly go No. 1 overall.
Memphis now entering unchartered legal terrain
Wiseman need not worry about NCAA sanctions. The NCAA lost any power over him on Dec. 19, 2019, the day he turned pro. The NCAA also can’t make Wiseman cooperate in an investigation. Plus, given that Wiseman believes the NCAA treated him poorly, odds are he won’t be inclined to help.
It’s a completely different story for both Memphis and Hardaway. Both could face severe sanctions from the NCAA if they violated recruiting rules and played a student-athlete who was later determined to be ineligible.
Whether Memphis broke rules will be determined by the multi-step IARP process. As a starting point, the NCAA’s Infractions Referral Committee (IRC) made the decision to place Memphis into the independent process. The IRC is not fully “independent” of the NCAA. It includes five members, four of whom are connected to the NCAA in various capacities—chair of the Division I council; vice chair of the Division I council; member of the Division I committee on infractions and member of the Division I infractions appeal committee. The fifth member is an independent expert, Jeffrey Benz, a well-known arbitrator and mediator who serves as the IRC’s chair.
In making the decision to transfer a case to the independent structure, the IRC weighs such factors as:
• Cases involving major policy issues that may implicate NCAA core values and commitments to the collegiate model.
• Stale or incomplete facts.
• Lack of acceptance of the core principles of self-governance such as adversarial posturing or refusal to cooperate.
• Actual or perceived misconduct by the involved parties.
• The scope, scale and duration of the case and other factual complications.
• Breaches of confidentiality.
• Increased stakes including potential penalties or other pressures driving institutional decision-making.
It’s unclear why the IRC deemed the Memphis case appropriate for referral. The NCAA hasn’t explained why and also stresses that the entire process is confidential.
However, several factors (to me) seem applicable to the Wiseman situation:
• The facts in the Wiseman matter are in dispute and arguably implicate the NCAA. Did the NCAA know about the 2017 issue when it cleared Wiseman to play in May 2019? If so, why did the NCAA change its mind in November 2019? It makes sense that an entity other than the NCAA ought to consider the NCAA’s own conduct in this matter.
• The facts might also be “stale” in the sense that Wiseman and his family are under no obligation to cooperate with NCAA investigators and, for reasons noted above, may be disinclined to do so. Perhaps they would be more willing to communicate with investigators who don’t take orders from the NCAA.
• Even assuming Hardaway is “guilty” of helping Wiseman’s family move, it’s not certain that Hardaway committed an NCAA infraction. His alleged misconduct would have occurred before he was employed by Memphis and may have been motivated by high school, not collegiate, recruiting interests. Was he a booster at that time? Probably. But would his actions have constituted an impermissible act? A more neutral entity than the NCAA assessing these questions would lead to more credible conclusions.
• An independent investigation can also consider if there is more to the story. Might Wiseman have received other impermissible benefits from Memphis and/or Hardaway? Could other basketball recruits have received them as well? It’s reasonable to assume that a booster who helps his or her alma mater with one recruit might be inclined to do so with other recruits. Likewise, if a school permitted or acquiesced to one booster engaging in illicit recruit activity, the school might have done so with other boosters.
• Is it appropriate for the NCAA to punish Memphis and potentially Hardaway for a student-athlete invoking his or her legal rights in court? Wiseman had a right to seek a restraining order and a judge granted him one. One could argue that Memphis should not be punished for relying on that court order, particularly when Wiseman had not yet been suspended. It makes sense that an entity other than the NCAA should decide that issue.
• The NCAA might also worry about the optics of the Wiseman situation and wish to gain separation from it. The NCAA has been ridiculed for ordering a student-athlete to make a five-figure “donation.” The Wiseman controversy has also surfaced while the rights of student-athletes are central in legislative and policy discussions concerning the commercial use of names, images and likenesses.
Complex Case Unit will investigate
Regardless of the reasoning for the IRC’s referral, the referral places the case in the hands of the “Complex Case Unit” (CCU). The CCU consists of a group of 16 investigators and advocates. These persons are not tied to any school or conference and are employed by other entities. One of the investigators is Louis Freeh of Freeh Group International Solutions. Freeh, you may recall, attracted controversy for his investigation into Penn State in the aftermath of the Jerry Sandusky scandal. The Penn State report has been criticized for its investigative methods and contributed to litigation over the NCAA’s sanction.
The CCU has certain powers that could aid in the investigation. One is the ability to grant limited immunity. This refers to the CCU immunizing a witness from potential NCAA sanction if he or she provides complete and truthful information regarding identified potential violations. Immunity might be attractive to current and prospective players as well as to coaches; it would seem less valuable to a former college player, particularly one about to start a lucrative professional career, since he or she is no longer under the NCAA’s purview.
The Independent Resolution Panel will decide—and potential fallout for Memphis and Hardaway
Following the CCU’s investigation, the “Independent Resolution Panel” (IRP) will review the case and eventually issue a ruling. The IRP has 15 members, who are described as having expertise in “legal, higher education and/or sports.” The 15 members include well known and respected attorneys. These members aren’t employed by the NCAA, though the NCAA pays them $5,000 if they are assigned to a case plus an additional $5,000 per year for being on the IRP. While an NCAA-commissioned panel may not be fully independent, it is indisputably more independent than the traditional NCAA infractions process.
Under IRP procedures, five of the 15 members will be assigned to a hearing panel tasked with reviewing the Memphis case. They will hold hearings and review the evidence provided by the CCU. IRP procedures indicate that the hearing panel isn’t bound by prior NCAA infractions cases. To be precise, those cases “shall have no precedential value.”
The panel will ultimately draft a written decision. There will be two versions of the decision, one for the public which strips the names of involved individuals and the other to the school that contains those names. The decision must reflect a unanimous decision by the panel—no dissenting opinions are allowed. This unity dynamic is important. It’s fair to assume that panel members might reach different conclusions about a case. If so, they would need to reconcile their differences in order to produce a written decision.
The IRP can also stipulate penalties. Penalties could include Level I violations, which refer to infractions that are neither isolated nor limited, and that provide a school with a substantial recruiting advantage. A Level I infraction can lead to such penalties as a reduction in scholarships, a postseason ban and a fine costing millions of dollars. A Level II violation, in contrast, would constitute an ordinary breach of conduct and lead to a lighter punishment.
Hardaway could also face punishment with respect to Wiseman, both for how Hardaway allegedly recruited Wiseman as a booster and Hardaway’s decision to play Wiseman after the restraining order was issued. There would be the risk of NCAA “show-cause” penalty, which remains with a coach even if he or she is hired by another school. A school that seeks to hire a coach saddled with a show-cause penalty must take on the risk that it would be punished severely if the coach violates another rule.
Further, if the investigation leads to a punishment for Hardaway, his employer—Memphis—could potentially use that outcome to justify firing him for cause. Such a designation would reduce or relieve Memphis of the obligation to pay Hardaway the remainder of the three-year, $4.8 million contract he signed in 2018.
No right to appeal doesn’t mean no right to sue
It will likely be months before we know what IARP referral concerns and whether Memphis and any of its coaches are going to be punished. No matter how the process lands, the NCAA makes clear “the resolution is final and not subject to appeal.”
Keep in mind, what is “final” to the NCAA is not necessarily “final” to the legal system. If punished in ways that Memphis deems unfair or unwarranted, the school (and/or a punished coach) could conceivably sue the NCAA. Memphis (and/or a punished coach) could seek to identify possible flaws in the IARP’s process. For instance, witnesses would provide information without having to provide sworn testimony to corroborate their claims. This means witnesses aren’t subject to the risk of a perjury charge if they knowingly lie, conceal or exaggerate. In addition, the IARP process might lead to an incomplete record. Neither the NCAA nor any functionary within the IARP has subpoena powers and can’t compel the disclosure of records, including emails and texts.
The fact that the IARP has never been used before could also motivate Memphis to challenge an adverse outcome. After all, those involved in the IARP can’t rely on past practices. They are pioneers, which means they might be more inclined to err.
So, what does this all mean? By the time the Memphis matter is resolved through the IARP and potential litigation, Wiseman will likely be well into his NBA career. For him, his week as a college basketball player will be a distant memory; for others, it might remain a recurring and divisive topic.
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.
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