A Not-So-Wise Finding Of Impermissible Benefits: The NCAA’s Overreach In Pushing A Rising Star Into The Pros

By: Kirsten Reilly*

James Wiseman, former number one recruit in the men’s basketball 2019 incoming class, announced that he was declaring for the NBA draft.[1]  While it has become common practice for projected top draft picks to leave their respective schools after just one year, Wiseman’s case does not directly fall into that category.[2]  Rather, the projected number three draft pick’s career ended at the University of Memphis after just three games and comes after a dramatic few months defining his college career.[3]

NCAA Bylaws

The NCAA has an exhaustive list of bylaws to substantiate its oversight over collegiate athletics, and what it deems most important, to maintain the division between amateur and professional athletics.[4]  Relevant here is the NCAA bylaw prohibiting perspective student athletes from receiving impermissible extra benefits from a “representative of the institution’s athletics interests,” more generally known as a booster.[5]  Bylaw 13.02.15 provides an inclusive definition of who qualifies as a booster, applying the classification to any individual, agency, or corporation who has donated or provided some material benefit to a school’s athletic department or a particular program.[6]  Further, and of particular relevance in James Wiseman’s case, once an individual is deemed to be a booster for a particular athletic program, they retain that status forever.[7]  These individuals are restricted from providing any type of benefit to a prospective student-athlete, or otherwise influencing them to choose one school over another; providing such benefit or influence results in a violation of the eligibility standards, leading to a sanction against the student-athlete upon the start of their collegiate athletic career.[8]

The Case of James Wiseman

The bylaws prohibiting impermissible benefits to prospective student-athletes appear to be straight forward, but James Wiseman’s case has definitively proven that in practice, application is less than clear when determining violations.[9]  This complicated case starts with Penny Hardaway, a legendary alumnus of the Memphis Tigers men’s basketball program and current head coach, who donated $1 million in August of 2008 to build the Penny Hardaway Hall of Fame on campus.[10]  As an alumnus of an athletic program, Hardaway was already designated as a booster, and the monetary donation and naming rights to the facility further elevated that status into the public view.[11]

Wiseman played his high school freshman and sophomore seasons at Ensworth High School in Nashville, while Hardaway oversaw Team Penny, an elite travel team he founded on the Nike Circuit.[12]  Wiseman joined Team Penny heading into the summer of 2017, and his family then relocated to Memphis that following August.[13]  He enrolled at East High School, where Hardaway was coaching the boys’ basketball program.[14]  Just two months later, Wiseman and his teammate, Ryan Boyce, were ruled ineligible by the Tennessee Secondary School Athletic Association due to the “athletic coaching link” existing between their involvement with Team Penny and subsequent enrollment at East High School.[15]  The Shelby County Board of Education filed a lawsuit on behalf of Wiseman and Boyce, ultimately prevailing in December 2017, as a Shelby County chancellor declared them eligible to play, pending another hearing.[16]

Potential NCAA violations came into the conversation in March of 2018.[17]  Following the firing of Tubby Smith, Penny Hardaway was the rumored favorite to replace him as head coach of the Memphis Tigers.[18]  As someone who grew up in Memphis, played for the Tigers, had a stellar NBA career, and returned to coach high school basketball in the area, all signs pointed to Hardaway.[19]  Wiseman led East High School to a state championship on March 14, 2018, and just three days later, Hardaway was introduced as the new head coach for Tigers, charged with “bringing excitement back to the Tigers’ program and getting Memphis involved with high-level recruits again.”[20]  As the number one prospect in the fall of 2018, Wiseman committed to Memphis on November 20, choosing the Tigers over numerous other top Division I programs, immediately increasing the hype and excitement surrounding Hardaway’s leadership of the program.[21]

Impacted by injuries, Wiseman did not compete in the team’s pre-season tournament or exhibition games, but made his debut in the season opener on November 5, 2019.[22]  After a finding that Hardaway had provided $11,500 in moving expenses to Wiseman’s family in 2017, the NCAA determined Wiseman to be ineligible for competition, as he received an impermissible benefit from a booster of the university.[23]  Wiseman immediately filed suit against the NCAA and received an emergency temporary restraining order from the NCAA’s decision, allowing him to play in the game on the same day.[24]  The NCAA issued a statement midway through Memphis’s game, making clear that the university was notified of Wiseman’s potentially ineligible status.[25]

On November 20, 2019, the NCAA announced that Wiseman would be suspended for a total of twelve games, making him able to return to competition on January 12, 2020.[26]  After averaging 19.7 points, 10.7 rebounds, and 3.0 blocks in just three games as a Memphis Tiger, Wiseman, announced his withdrawal from Memphis on December 19, 2019 in an Instagram post, stating that he was declaring for the NBA Draft.[27]

What This Means For Future Student-Athletes

James Wiseman is the perfect example for supporters of NCAA reform.[28]  In a situation where the applicable NCAA bylaws appear clear, but the facts are so unique that further investigation should have been mandated, critics of the NCAA are using this platform to draw attention to the need to update the rules to fit modern situations.[29]  In arguing against the NCAA’s determination, the key facts to focus on are how Hardaway was not acting as a booster for Memphis when he financially aided Wiseman’s family in their move, and further, that he was in no way acting in the capacity of his current role of head coach of the Tigers.[30]  While there is always good reason to enforce rules to help ensure uniformity in college athletic programs, this situation has made it clear that some of the bylaws are in dire need of adjustment.[31]

James Wiseman’s situation was incredibly distinctive in many ways, but the overarching impression of the potential for outdated NCAA rules to completely derail the projected path for a student-athlete.[32]  With Wiseman as not only the top prospect for college athletics, but also a projected top choice for the NBA draft, this NCAA ruling has caused numerous prominent individuals in the sports world to weigh in on NCAA governance.[33]  It appears, at least facially, unfair for Wiseman to have been punished so severely for an event that occurred early in his high school career, and further, that his seeking of a temporary injunction against the NCAA in order to play was considered an aggravating factor in the investigation.[34]  Being that the University of Memphis fully supported the decisions of Penny Hardaway and James Wiseman throughout the entirety of this situation, from seeking an emergency order to play in the game to declaring for the NBA draft, the legacy of Wiseman’s three-game career at Memphis will serve as a launching point for student-athletes to further challenge NCAA governance.[35]

*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2021, Villanova University Charles Widger School of Law

[1]See Myron Medcalf, James Wiseman Leave Memphis, To Enter NBA Draft, ESPN (Dec. 19, 2020) https://www.espn.com/mens-college-basketball/story/_/id/28335497/james-wiseman-leaves-memphis-enter-nba-draft (reporting James Wiseman’s announcement that he withdrew from University of Memphis).

[2]See id. (stating Wiseman as current number 3 pick in upcoming NBA draft).

[3]See generally id. (detailing NCAA violations and adjudication process against Wiseman and  University of Memphis).

[4]See Amateurism, NCAA (2019) http://www.ncaa.org/student-athletes/future/amateurism (last visited Feb. 20, 2020) (“Prospective student-athletes enrolling for the first time at a Division I or II school must receive a final amateurism certification before being eligible to compete.  This includes transfers from junior colleges, NAIA, international or Division III schools.”).  In order to be eligible to compete for an NCAA member school, a student-athlete must be declared eligible under the standards of amateurism.  Id. (describing eligibility).

[5]Manali Kulkarni and Matthew Kaiser, Why ‘Boosting’ An Athlete’s Career Falls Foul Of NCAA Rules: A Review Of The Wiseman & Hardaway Case, Law In Sport (Jan. 28, 2020) https://www.lawinsport.com/topics/item/how-the-ncca-regulates-boosters-and-why-wiseman-hardaway-fell-foul-of-the-bylaws (providing overview of application of Bylaw 13.02.15 to James Wiseman’s case).

[6]See Role of Boosters, NCAA (2019) https://www.ncaa.org/enforcement/role-boosters (last visited Feb. 20, 2020) (providing definition and explanation of who qualifies as boosters under Bylaw 13.02.15).  Boosters include 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 athletic 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 athletics.”  Id.

[7]See id. (explaining NCAA booster classification).

[8]See Kulkarni and Keiser, supra note 5 (explaining how boosters are unable to provide impermissible benefits to prospective student-athletes in attempt to sway their choice of university).

[9]See Jeff Borzello, Penny Hardaway, James Wiseman And The Memphis Tigers: A Timeline, ESPN (Dec. 19, 2020) https://www.espn.com/mens-college-basketball/story/_/id/28059747/penny-hardaway-james-wiseman-memphis-tigers-line (detailing chronological events of James Wiseman’s case).

[10]See id. (providing detailed timeline of James Wiseman’s situation).

[11]See generally id. (explaining Penny Hardaway’s booster classification for Memphis athletic programs); see also Pat Forde, James Wiseman Will Have To Sit Out 11 More Games, But Memphis’s Fight With The NCAA Isn’t Over, Sports Illustrated (Nov. 20, 2019), https://www.si.com/college/2019/11/20/james-wiseman-ineligible-ruling-ncaa-memphis-penny-hardaway (explaining context of case ruling and steps taken by University of Memphis and James Wiseman to appeal outcome).

[12]See Borzello, supra note 9 (providing detailed outline of James Wiseman’s career before becoming NCAA student-athlete).

[13]See id. (stating Wiseman’s reason for relocating to Memphis area).

[14]See id. (detailing James Wiseman’s high school and AAU career).

[15]Id. (explaining implications of James Wiseman’s transfer to East High School).

[16]See id. (explaining legal dispute filed on behalf of Wiseman and Boyce to have declaration of ineligibility overturned). 

[17]See id. (providing detailed timeline of facts of James Wiseman’s case).

[18]See id. (“March 14, 2018: Memphis fires Tubby Smith after two seasons.  Smith’s ouster comes after weeks of speculation that Memphis planned to fire Smith and hire Hardaway.  Hardaway is the clear front-runner to replace Smith.”).

[19]See id. (highlighting components of public’s rationale for believing that Penny Hardaway would be next head coach for Memphis Tigers).

[20]Id. (explaining rationale for hiring Penny Hardaway as new men’s basketball coach at University of Memphis).

[21]See id. (detailing how James Wiseman became student-athlete at Memphis University).

[22]See id. (stating James Wiseman’s inability to compete in the pre-season portion of his first year as Memphis Tiger).  

[23]See Jeff Borzello and Myron Medcalf, NCAA Rules Memphis’ James Wiseman Ineligible; Top Prospect Gets Stay To Play Friday, ESPN (Nov. 8, 2019) (providing reasoning for NCAA’s determination that James Wiseman was ineligible for competition).

[24]See id. (detailing actions of James Wiseman after receiving determination of NCAA ineligibility); see also Borzello, supra note 9 (explaining how James Wiseman was still able to play game, despite being ruled ineligible by NCAA); Jake Russell, Court Allows Memphis Star James Wiseman To Play Shortly After NCAA Rules Him Ineligible, Washington Post (Nov. 8, 2019) (“Less than an hour after news broke that the NCAA had ruled Memphis freshman James Wiseman ineligible, a Shelby County judge granted the potential top pick in the 2020 NBA draft an emergency temporary restraining order, allowing Wiseman to play Friday night against Illinois-Chicago.”).

[25]See Borzello, supra note 9 (providing NCAA’s statement during Memphis men’s basketball game on November 9, 2019). “The University of Memphis was notified that James Wiseman is likely ineligible.  The university chose to play him and ultimately is responsible for ensuring its student-athletes are eligible to play.”  Id.

[26]See Medcalf, supra note 1 (reporting NCAA’s suspension of James Wiseman); see also Forde, supra note 11 (“The benefit was impermissible because of Hardaway’s status as a Memphis booster.  Hardaway made donations to the school in the past, including $1 million to help build the Penny Hardaway Athletic Hall of Fam at the school.  Boosters cannot provide financial assistance to prospective student-athletes, their family members or friends unless that assistance is generally available to other members of the student body and is not given based on athletics ability.”) (quoting NCAA statement).

[27]See Medcalf, supra note 1 (providing James Wiseman’s statement).  The decision surprised the Memphis coaching staff, understandably so because they lost their best player for the entire season, rather than just for the twelve game suspension.  Id. (explaining reaction to James Wiseman’s decision to withdraw from Memphis University).

[28]See Mark Giannotto, Opinion: Memphis Ready To End Fight Against NCAA Over James Wiseman, But Penny Hardaway Is Not, USA Today (Nov. 15, 2019) (“’Aren’t we all looking at the situation, of why this is bad?’ Hardaway said at one point when asked about the positive national reaction to Wiseman’s lawsuit.  ‘I think that everybody’s looking at it.  I think that everybody is kind of controlling their own narrative, but if you’re looking at it for what it’s worth, you see people in the country saying, How? So that’s why they’re on his side.’”) (quoting Memphis Head Coach Penny Hardaway). 

[29]See id. (“Of all the characters in this week-long soap opera, Wiseman is the least culpable, if he’s even culpable at all.”).

[30]See id. (explaining legal reasoning of James Wiseman against NCAA).

[31]See id. (highlighting how NCAA Bylaws are not perfect rules to govern complex nature of booster relationships with universities, and further, prospective student-athletes).

[32]See generally Borzello, supra note 9 (explaining why James Wiseman’s situation was so unique in today’s world of NCAA enforcement).

[33]See Medcalf, supra note 1 (“I think the trend is – guys are at least starting to think of other options.”) (quoting Steve Kerr, when asked about how players are seeking alternative paths to the NBA to avoid the NCAA); see also Kulkarni and Keiser, supra note 5 (“Although the NCAA rules regulating boosters have been around for years, Wiseman’s case has called into question not only the fairness of the NCAA booster rules but also their antiquatedness in this day in age.”).

[34]See Forde, supra note 11 (“That’s a big risk for three games in November – one of which the Tigers lost.”).

[35]See id. (“We support James’ right to challenge the NCAA ruling on this matter.  The University of Memphis has high standards of ethical conduct for all faculty, staff and students, and we take seriously any allegations or conduct that is not aligned with our mission.  We will acknowledge and accept responsibility for proven violations of NCAA bylaws.  The University of Memphis firmly supports James, Coach Hardaway and our men’s basketball program in this matter.”) (quoting University of Memphis President M. David Rudd’s statement on matter).