Last Friday, the NCAA committee on infractions announced a settlement with the University of Miami regarding recruiting violations by women’s basketball coach Katie Meier. Although the violations—impermissible contact with recruits and a free meal—are unremarkable, the committee elevated their importance by warning they could trigger dissociation of an NIL-tied booster.
The NCAA might be signaling a willingness to litigate potential challenges brought by disassociated boosters, recruits and athletes who are denied NIL opportunities.
The committee omits the recruits’ and booster’s names. However, reporting by Sports Illustrated and other media confirm the involvement of the Cavinder twins, Haley and Hanna (who have 4.3 million followers on TikTok and are on pace to earn more than $1 million in NIL), and billionaire Miami alumnus John Ruiz, whose company, LifeWallet, has signed Miami athletes to NIL deals.
The committee explains that Meier met with “a prominent Miami-area businessman” in April 2022, and while she wasn’t aware he was a booster, she knew he was an “NIL guy.” Meier later asked an assistant coach to “contact the prospects,” who played at Fresno State at the time. The assistant was further instructed to “explain that the booster was a legitimate businessperson.” That led to Ruiz hosting the Cavinders for a “chef-prepared dinner.”
Although the twins claimed the dinner didn’t impact their decision, they transferred to Miami for 2022-23.
Meier admits she should have checked with the Hurricanes’ compliance staff before facilitating this style of recruitment. Her penalty is a three-game game suspension, though she already sat out three games as part of a school suspension. Miami faces one year of probation, reduction in official visits, restrictions on recruiting, probation on communications and a fine of $5,000 plus 1% of the women’s basketball budget.
An infraction of this nature wouldn’t typically draw much attention. However, the committee seemed to pursue the spotlight when adding it could have, and might in a similar scenario going forward, disassociate a booster.
“Although the parties asserted that a disassociation penalty would be inappropriate based on an impermissible meal and an impermissible contact, today’s new NIL-related environment represents a new day,” the committee stressed, adding it “will strongly consider disassociation penalties in future cases involving NIL-adjacent conduct.”
Ruiz, who hasn’t taken down a tweeted photo of the twins and him from their recruiting trip to Miami, told the media he’s not changing his business practices. He also bluntly warned “had [the NCAA’s penalty] personally impacted on me or my company, I would have sued the NCAA, and they would have had a big battle. They are interrupting the rules in the wrong way. There was nothing improper.”
The prospect of Ruiz or another NIL-tied booster suing the NCAA over disassociation is not far-fetched.
Unlike an NCAA member school, which contractually agrees to follow NCAA rules and its administration of rules, a booster isn’t in contract with the NCAA. A booster thus hasn’t contractually relinquished any potential claims.
To that end, an expelled booster could sue the NCAA under antitrust law, violation of a state NIL statute, tortious interference and suppressing First Amendment rights.
The NCAA has struggled of late in antitrust cases. In NCAA v. Alston, the Supreme Court made clear that ordinary scrutiny applies to antitrust challenges of NCAA action; the days of the NCAA receiving preferential treatment under antitrust law are over. So whenever the NCAA and its members restrict competition, they could be challenged for harming competition more than helping it.
A booster could maintain the NCAA and its members damaged the markets for athlete recruitment and NIL by disassociating a person whose conduct and engagement increases how schools compete for recruits. In response, the NCAA would insist that boosters who dangle NIL are violating recruitment rules intended to create a level playing field for school competition. Economic analysis would likely play a key role in determining which side offers the better set of facts for assessing market impact.
A booster could also invoke a state NIL statute to claim unlawful interference. NIL statutes generally prohibit colleges from enforcing policies that curtail NIL compensation opportunities. If boosters are excluded from the NIL market, the exclusion could deprive them, as well as recruits, of NIL opportunities. The NCAA would insist that enforcement of amateurism rules is not tantamount to interference.
Tortious interference with contractual or business relationships is another possible claim. A disassociated booster could maintain the NCAA unlawfully impeded a potential NIL deal by depriving the booster of a chance to conduct business with a recruit. That banishment, in turn, might have inflicted economic harm on both the booster and recruit. The NCAA would likely respond by pointing out that boosters have long been regulated in their conduct and are expected to follow NCAA rules.
There is also a potential free speech and free association claim under the First Amendment. A booster could say that preventing discussions with recruits interferes with their right to associate with other people and to engage in speech.
The Supreme Court, the NCAA would note in a rebuttal, held in the 1988 decision NCAA v. Tarkanian that the NCAA is a private entity and is not obligated to comply with constitutional safeguards. But Tarkanian was a 5-4 decision, unlike the 9-0 vote in Alston. It could be ripe for another review.
Many contemporary judges, including both conservative and liberal, are openly hostile to NCAA amateurism. The principle of “stare decisis,” which is Latin for “to stand by things decided” and refers to the Supreme Court honoring its own precedent, is not always firm. And while the NCAA might be private, many of its members are public universities who are obligated to comply with constitutional safeguards.
A booster isn’t the only potential plaintiff. A recruit or college athlete could sue the NCAA on similar grounds. The NCAA already knows that: In House v. NCAA, college athletes argue the NCAA and its members have violated antitrust law by denying NIL for many years and continuing to deny a share of broadcasting revenue.
Maybe with that same spirit in mind, Haley Cavinder tweeted on Saturday, “dear ncaa, scared that female athletes have value? let’s hoop tho..”
(This story has been updated to accurately reflect the school where Haley and Hanna Cavinder played before transferring to the University of Miami.)