Wisconsin's lawsuit against Miami is about tampering, but it could mean much more

Wisconsin’s lawsuit against Miami over the transfer of cornerback Xavier Lucas hinges on one of the most basic tenets of civil law. Tortious interference cases get filed across the country every day.

When someone accuses an entity of tortious interference, they are saying that the entity intentionally caused someone to break a valid contract. That is what Wisconsin has accused Miami of doing with Lucas. The Badgers and their collective VC Connect (Wisconsin’s co-plaintiff) believe Miami coaches tampered with then-Wisconsin player Lucas in December, causing him to break the contract he’d signed with VC Connect and future contracts he would have signed with Wisconsin to enroll at Miami and play for the Hurricanes.

If this were a simple tortious interference case, it might be easier to handicap. If the case does move forward, it could have a huge impact on player movement. A win for Wisconsin or a monetary settlement from Miami likely would force schools to crack down on their own coaches to avoid tampering lest they cost their schools money. On the flip side, a win for Miami or a judge tossing the case would further embolden coaching staffs to try to pry players off of other school’s rosters even if those players aren’t considering the transfer portal.

It’s probably not a simple tortious interference case, though. Like everything else in college sports right now, the reality is more complicated. We’ll let Gabe Feldman, the director of Tulane’s sports law program, explain.

“In most of these cases where there there are no-poaching agreements or no-tampering agreements, they’re typically employment agreements for service providers. And whether it’s an employee or an independent contractor, this is obviously, at least in theory, for NIL,” Feldman said. “But it’s so intertwined with the services that it’s it’s not clear if that distinction will actually have an impact here.”

The “services,” in this case, could be promotion of the school as outlined in the NIL agreement Lucas signed. Name, image and likeness contracts essentially are endorsement deals. But the “services” also could be Lucas’ ability as a football player. Even though anyone with a functioning brain knows these particular payments are actually for playing football, schools continue to ban “pay-for-play” out of fear that specifically paying athletes to play their sports might cause the courts to deem those athletes employees of their schools. 

To a court, the service rendered might be playing football. In fact, Wisconsin’s complaint specifically refers to that.

After a clause about the loss of a “student-athlete with valuable NIL rights” — which makes sense in the context of losing the paid endorser Wisconsin is purporting Lucas to be — plaintiffs’ attorneys wrote this: “Further harms include the loss of financial benefits UW-Madison stood to receive from Student-Athlete A’s continued participation in its football program.” If Wisconsin wasn’t paying Lucas to play football, then why would that matter in the context of the case?

This particular distinction helps explain the razor’s edge Wisconsin rides on by filing this lawsuit. Several potential outcomes could help schools tremendously. Others could be disastrous.

On one hand, either a victory or a settlement in Wisconsin’s favor could provide an effective deterrent against tampering. But Feldman explained that antitrust plaintiffs’ attorneys are watching this case closely because it also could further strengthen a case for athletes as employees depending on how a judge views the contracts between the athletes and the schools.

It’s also possible, though, that the case further proves the difficulty of making and enforcing rules in this environment. That could potentially help the schools and the NCAA in the long run, because it might bolster their appeals to Congress for some exemption to antitrust laws. “It highlights for the NCAA how difficult it is to establish uniform rules unless they are provided some special legal treatment,” Feldman said. “In an upside down way, this might strengthen their argument to Congress.”

For both of these reasons, it will be fascinating to see how Miami responds to the complaint. Miami is a fellow NCAA school. Wisconsin and Miami have agreed to the same set of rules. But Miami presumably doesn’t want to admit any wrongdoing. So will Miami mount a defense that further muddies the waters?

Or the lawsuit be a lot of noise without an intent to follow through. Wisconsin’s complaint is intentionally vague. Often, plaintiffs will include a copy of the contract in question as an exhibit. Wisconsin opted not to do that in this case, presumably because the schools do not want that contract language released to the public. Lucas’ deal, according to the lawsuit, is based on a template created by the Big Ten. If the lawsuit moves forward, that contract — and any language Wisconsin or the Big Ten might have considered proprietary — likely will find its way into the public record. Wisconsin probably would have to be willing to allow a lot more information to go pubic if it hopes to prevail.

Wisconsin also opted not to sue Lucas himself. Already painted as anti-athlete for not placing Lucas in the transfer portal when he asked to be entered, Wisconsin officials probably feared future recruiting issues stemming from a lawsuit against a former player. In fact, plaintiffs’ attorneys didn’t even name Lucas in the complain, instead calling him “student-athlete A.”

But, depending on the language in the contract, Wisconsin may have a legal avenue to seek money from Lucas for breaking the agreement. Earlier this year, Arkansas athletic director Hunter Yurachek announced his support for collective Arkansas Edge to collect on liquidated damages clauses from broken NIL deals. This came a day after quarterback Madden Iamaleava left Arkansas for UCLA. 

That Arkansas-Iamaleava case and the one brought by Wisconsin against Miami have the power to shape the future of player movement in college sports. If there are real financial penalties for moving, it likely would make players think hard before they decide to change schools. If there is a threat of a school having to pay damages if a coach was found to be tampering, then tampering likely would decline dramatically.

That last part hinges on a few important details. How will a court view football deals that masquerade as endorsement deals? Could this be a garden variety tortious interference case, or is it something more complex? Is Wisconsin willing to push the case far enough to produce a resolution?

Everyone in college sports is eager to learn the answers.