Booster v. NCAA over an NIL issue? There would be some court cases that NCAA would welcome

Don’t get lost in the weeds of the relatively light penalties levied Friday by the NCAA against the University of Miami’s women’s basketball program – including one year of probation, recruiting restrictions and a three-game suspension for coach Katie Meier – because of impermissible contact and a dinner shared between billionaire alumnus John Ruiz and then-transfer prospects Hanna and Haley Cavinder.

The most significant takeaway from the NCAA’s first NIL-related infractions case is in the message the Committee on Infractions sent publicly – hammered home by bold, italicized type atop the final ruling – that it is “troubled” by the absence of a disassociation of Ruiz from the school and that it will “strongly consider” such a penalty for boosters in future NIL-adjacent cases. While the NCAA has disassociated boosters for years in traditional infraction cases, this is among the clearest signs of a new NIL-era phase in the age-old battle between college sports’ beleaguered governing body and deep-pocketed boosters helping to recruit athletes.

“This is a warning shot,” Peter Schoenthal, CEO of Athliance, told On3.

Schoenthal said the NCAA’s message is “we know people were pushing the envelope. We are letting you know right now – watch yourself. We are not going anywhere. We still have power.”

As the NCAA moves to investigate more NIL-related cases, expect plenty of bluster: NCAA threats – empty or not – about disassociating boosters, and booster threats – empty or not – about suing the NCAA.

The NCAA and disassociation

Because the NCAA lacks subpoena power, boosters can tell the NCAA to, basically, pound sand when investigators ask for emails, texts and records pertaining to their NIL-related interactions and transactions with athletes. But the NCAA, if it so chooses, can ultimately impact boosters directly with the one penalty it can levy against them: disassociating them from the university. That could prevent them from special in-venue seating, booster memberships, interactions with coaches and more. 

The NCAA clearly wants everyone in the NIL space to believe it will use a disassociation penalty when warranted in future NIL-related cases. The question is whether the NCAA – whose decades-old issues with policing college sports range from toothless penalties to selective enforcement – actually will do it. But both Schoenthal and Mit Winter, a sports attorney at Kansas City-based Kennyhertz Perry, believe the COI is serious about disassociating boosters in NIL-adjacent cases. 

“If it just threatens the penalty a few times and doesn’t use it, people will quickly realize there is no intention of using it and it won’t have the intended effect of changing behaviors,” Winter told On3. “That said, the COI is not going to use disassociation as a penalty in every NIL-related case. The right factual circumstances would have to present themselves.”

Atop the final ruling, the COI stated that because NIL has ushered in a new day, “boosters are involved with prospects and student-athletes in ways the NCAA membership has never seen or encountered. In that way, addressing impermissible booster conduct is critical, and the disassociation penalty presents an effective penalty available to the COI.”

David Ridpath, a professor of sports business at Ohio University who has appeared before numerous Congressional committees regarding college athletics, calls disassociation a “milquetoast” punishment. He told On3 that while he doesn’t believe the penalty ever has dissuaded overzealous boosters from going rogue, the NCAA is certainly “keeping it in their quiver just in case. I suppose it may keep some (boosters) at bay if the school takes it seriously, but I have my doubts. The problem is it is likely a layup lawsuit for (Ruiz) against the NCAA, considering there are state laws in play if he were disassociated.”

Ruiz, who has given millions of dollars to more than 100 athletes through NIL deals, has become one of the faces of the space because he is brash and brazen, often posting on social media about the deals before the athletes sign with a university. Had the NCAA sanctions “personally impacted on me or my company,” Ruiz told Sports Illustrated, “I would have sued the NCAA, and they would have had a big battle.”

Discovery process could deter some boosters

But Schoenthal said Booster v. NCAA is one hypothetical courtroom battle the NCAA actually may invite. 

“The best thing for the NCAA is a court case because once it is initiated by a potential booster we have discovery process,” he said. “Both parties are entitled to all of the discovery – aka, the evidence – involved in the case. If the right case is brought, there are certainly going to be implicating emails and text messages, which is going to allow the NCAA to say, ‘See, we told you so.’ ”

It could open Pandora’s box. Both Schoenthal and Winter said that the booster could be compelled to produce a treasure trove of records pertaining to his interactions with all high school and college athletes, not merely the ones involved in that particular infractions case.

“The NCAA is going to ask the booster to produce all of his emails, texts, DMs and other communications with high school and college athletes,” Winter said. “It would depend on the specific claims in the lawsuit, but arguably any communications that booster had with a high school athlete or a current college athlete would be relevant to the claims and, therefore, discoverable. NCAA enforcement might then be able to bring more charges using the information produced in the lawsuit.”

Even in that scenario, Ridpath said, he doesn’t think deep-pocketed boosters would be deterred from suing the NCAA. The boosters have “enough money and lawyers to fight all that stuff,” he said, “but the real leverage – the state law trumps NCAA rules. And if he is punished and damaged, I think he has all he needs to win. The NCAA has a bad track record in court lately.”

How the Miami case was processed may not stand as what’s to come on the enforcement front. This was an NIL-adjacent case in which the transgressions related to impermissible contact and an inducement – a dinner the Cavinder twins attended at Ruiz’s home last April – and findings did not directly link NIL activity around the recruitment to or the decision to enroll at Miami. The case also was processed before the new so-called “NCAA Presumption” standards took effect January 1. The threshold used to establish an infraction occurred now is much lower, as the enforcement staff can use circumstantial evidence to presume a school violated NCAA rules. The onus will be on universities to prove that a violation did not occur.

That said, the message from the COI about disassociating boosters does telegraph where all this is likely headed: more billable hours for lawyers and more courtrooms. 

“And, boy,” Schoenthal said, “does the NCAA need a few wins right now.”