James Wiseman case inspires federal legislation that would change NCAA's infractions process

Mark Giannotto
Memphis Commercial Appeal
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Almost two years ago, when the fallout over James Wiseman’s eligibility consumed the entire Memphis basketball fan base and the national college basketball conversation, U.S. Rep. David Kustoff (R-Shelby County) promised an investigation into the NCAA practices that led to such a controversy.

It initially appeared to be political grandstanding to score points with his constituency over an issue involving Kustoff’s alma mater (University of Memphis), the Memphis area’s most historic sports passion (Tigers basketball), one of its greatest athletic products (Penny Hardaway), and the No. 1 recruit in the country at the time (Wiseman). 

Now, though, Wiseman’s situation could be the impetus for a new federal law.

Memphis Tigers center James Wiseman walks off the court after their season opening 97-64 win over  the South Carolina State Bulldogs at the FedExForum on Tuesday, Nov. 5, 2019.

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Kustoff delivered a speech to the U.S. House of Representatives in Washington Tuesday morning to announce bipartisan legislation drawn up as a direct result of the Wiseman case. If enacted, the proposal would completely alter the NCAA’s infractions and investigation process and give Congress and the Department of Justice oversight into the governing of college sports. 

The NCAA Accountability Act of 2021 is designed to establish and administer due process protections for NCAA member institutions, student-athletes, coaches or administrators who are involved in investigation related to alleged NCAA bylaw infractions. 

After decades in which the Supreme Court and Congress largely upheld or allowed the nonprofit organization to operate without interference under its own bylaws, Kustoff is hopeful this legislation will put the NCAA’s enforcement and infractions protocols more in line with the traditional legal system. 

“When you consider that the NCAA, when it starts an investigation and goes through an investigation, it’s the prosecutor, the judge, the jury and the executioner,” Kustoff said in an interview with The Commercial Appeal, “that seems to me to be a violation of due process.”

Among the bill’s notable features are a requirement that the NCAA complete any investigation one year after it begins, as well as a statute of limitations that would prohibit the NCAA from penalizing a violation from more than two years prior.

The bill also sets up a revamped appeals process that would involve an independent arbitration panel, calls for the NCAA to submit annual reports on its infractions cases to the Department of Justice, and allows the DOJ to remove any member of the NCAA's Board of Governors and fine the NCAA up to $15 million should it not follow the regulations set forth by this legislation.

Kustoff said the federal government has the authority to regulate the NCAA through the Commerce Clause of the Constitution since the NCAA’s activities substantially affect interstate commerce.

U.S. Rep. David Kustoff speaks at an event to celebrate the Union Row development and talk about the importance of Opportunity Zones incentives in Downtown Memphis, Tenn., on Friday, Oct. 4, 2019.

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Several of the proposals in the bill, such as a requirement for the NCAA to provide a notice of inquiry and a notice of allegations, as well as a prohibition on using confidential sources, already exist in the NCAA’s current infractions process. This legislation would codify those rules into law and expand upon them.   

“But others like making binding arbitration available are new and should be considered,” Scott Tompsett, an attorney who has represented institutions, coaches, administrators, and student-athletes in NCAA infractions investigations for over 30 years, wrote in an email. 

Tompsett noted transparency is often the biggest problem with the NCAA’s infractions and enforcement policies. Kustoff’s bill would prohibit the NCAA from publicly disclosing information related to an ongoing investigation until formal charges are filed in a notice of allegations, but permit institutions to release information at their discretion. 

“Because NCAA investigations are matters of public interest and reputations are involved,” Tompsett wrote, “the NCAA should be prohibited from punishing institutions and involved individuals for making public statements about allegations.”

Brian Kappel, a Birmingham, Alabama-based attorney who has also represented institutions in front of the NCAA’s committee on infractions, said the one-year timeline for the resolution of cases is “something the NCAA would love to abide by, but I would have concerns that it’s feasible in all situations.”

"This is maybe worth exploring, but I'm not sure it makes it any better in terms of trying to achieve the goals of fairness, efficiency, timeliness," added Atlanta-based attorney Stu Brown, who is also a veteran of NCAA-related litigation. "The NCAA is an easy target and they've made themselves an easy target over the last decade by mishandling a wide range of issues."

This isn’t the first time a lack of due process in NCAA infractions cases has come under scrutiny. The NCAA commissioned a report in 1991 that made 11 recommendations on how to improve the fairness of its procedures.

However, a 2004 hearing before the House Judiciary Committee related to due process and the NCAA noted that the NCAA “failed to take action on several recommendations,” including the hiring of independent judges to hear infractions cases and opening proceedings to the public. 

Kustoff's legislation, which is co-sponsored by Rep. Burgess Owens (R-Utah) and Rep. Josh Harder (D-California), is being filed one day after CBS Sports reported that 72 Football Bowl Subdivision athletics directors signed an 84-page document that also called for sweeping changes to the NCAA’s enforcement model.

Putting an end to the Independent Accountability Resolution Process that is currently adjudicating the infractions case involving Memphis and Wiseman, and allowing decisions made by the IARP to be appealed, are among the recommendations put forth by the group of athletics directors.  

The NCAA is scheduled to convene at a constitutional convention this month in order to propose dramatic changes to its governance structure.   

“I find almost universal dislike of how the NCAA conducts business among Democrats and Republicans,” Kustoff said. “The fact that the NCAA has monopoly power and zero government oversight is an issue.”

A Memphis Tigers fan wears a “Free Wiseman” jersey, referencing James Wiseman’s NCAA suspension, as the team takes on Ole Miss at the FedExForum on Saturday, Nov. 23, 2019.

The controversy over Wiseman’s eligibility at Memphis revolves around $11,500 in moving expenses that Hardaway provided Wiseman’s mother when Hardaway was the head coach at East High School. Since Hardaway had previously donated money to Memphis, the NCAA considered him to be a university athletics booster in perpetuity, according to its bylaws. The NCAA eventually ruled Wiseman to be “likely ineligible” as a result. 

In a lawsuit filed in Shelby County Chancery Court in November 2019, Wiseman claimed the NCAA initially granted him eligibility only to later rescind it before the season. Wiseman was then granted a temporary injunction by a Shelby County judge and appeared in the Tigers’ first three games of the season. The Memphis IARP case stems from the university’s decision to play Wiseman against the NCAA’s eligibility ruling.

Wiseman was given a 12-game suspension after dropping the lawsuit but elected to leave Memphis before the conclusion of those sanctions. He was selected by the Golden State Warriors with the No. 2 pick in the 2020 NBA draft. 

Kustoff acknowledges, even if his bill passes and similar legislation eventually makes its way through the Senate, that it is likely too late for there to be recourse for Memphis and Wiseman.

But what began with Memphis basketball fans storming the gates of the NCAA with their proverbial pitchforks has now set the stage for Congressional legislation that could serve as a battering ram to how the NCAA operates. 

You can reach Commercial Appeal columnist Mark Giannotto via email at [email protected] and follow him on Twitter: @mgiannotto

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