By Joshua D. Winneker[1] and David Gargone[2]
Last year, the University of Wisconsin sued the University of Miami alleging that a Miami staff member and an alumnus tampered with Wisconsin defensive back Xavier Lucas by offering him money to leave Wisconsin to play for Miami. Wisconsin further alleges that this interaction occurred directly after Lucas signed a two-year Name, Image and Likeness (NIL) contract with Wisconsin and that the meeting did cause Lucas to transfer to Miami. The crux of Wisconsin’s lawsuit is that Miami tortiously interfered with Wisconsin’s contract with Lucas.[3] This case is currently pending and has yet to reach the merits.
Recently, a more high-profile and arguably more blatant tampering allegation was levied against a prominent college football program and coach. Clemson University football coach Dabo Swinney claimed that University of Mississippi’s (“Ole Miss”) football coach Pete Golding tampered with Clemson’s recent transfer linebacker, Luke Ferrelli. Ferrelli transferred to Clemson from University of California, Berkeley, enrolled at the school, moved into an apartment and for a week went to classes and team workouts. According to Swinney, Ferrelli then suddenly left Clemson for a bigger pay day at Ole Miss. Swinney alleged that Golding texted Ferrelli during Ferrelli’s 8 a.m. class and said, “I know you’re signed. What’s the buyout?” Golding then allegedly sent a photo of a $1 million contract offer. Subsequently, Ferrelli entered the portal again two days later and transferred to Ole Miss. Swinney publicly declared that he was going to share the evidence with the NCAA. Golding responded to Swinney’s allegations and said that Ferrelli had previously visited Ole Miss but at the time there was not an open roster spot for Ferrelli’s position until Ole Miss later lost a player to Louisiana State University and Ole Miss’s former coach Lane Kiffin, thereby opening up a spot. The NCAA has yet to rule on Swinney’s accusations and as of this date, Clemson has not filed a lawsuit against Ole Miss.
These are just a few of the many incidents of tampering in college sports. Recently, University of Connecticut’s men’s basketball coach Dan Hurley said that tampering is a constant issue and occurs throughout the year. In fact, in 2025 alone, the NCAA investigated nearly 90 cases involving tampering. While Wisconsin and Clemson’s claims are just allegations at this point, there have been previous confirmed cases of tampering. For example, the University of Iowa’s football program self-imposed one-game suspensions for the 2024 season for two members of the coaching staff, including head coach Kirk Ferentz, involved in the tampering of a quarterback transfer in 2022. The NCAA recently handed down additional punishments, including vacating four wins from Iowa’s 2023 season. The NCAA is still deciding how to police these issues, but what is evident from these types of allegations is that they likely form the basis for successful tortious interference with contractual relations lawsuits.
Generally, tortious interference with contractual relations for both current contracts and prospective contracts have similar elements: (1) the existence of a contract between the plaintiff and a third party, a business relationship, or a prospective advantage or opportunity; (2) the defendant’s knowledge of the contract, business relationship, or prospective advantage or opportunity; (3) the defendant’s intentional, unjustified interference with the contract, business relationship, or prospective advantage or opportunity; (4) the proximate cause between the alleged interference with the contract, business relationship, or prospective advantage or opportunity; and (5) the injury to the plaintiff as a result of the defendant’s actions.[4] Tort law is a creature of state law meaning that the specific elements of this tort can vary by state. The elements above are therefore a general summation of tortious interference with contractual relations. In order for a plaintiff to win a tortious interference with contractual relations claim, the plaintiff must successfully prove each of the stated elements.[5]
Taking these general elements and applying them to Swinney’s accusations for example, it is evident that tortious interference with contractual relations has likely been committed. Clemson had a NIL contract with Ferrelli that Ferrelli signed when he transferred to Clemson from University of California, Berkeley. Ole Miss had knowledge of this NIL contract when Golding said “I know you’re signed”, referring to Ferrelli signing a contract with Clemson. Golding then intentionally interfered with this contract by asking what the buyout was and sending a photo to Ferrelli of a $1 million check. Golding’s interference then caused Ferrelli to leave Clemson evidenced by the fact that just two days later Ferrelli entered the transfer portal again and transferred to Ole Miss. Finally, Clemson losing their signed player to Ole Miss clearly satisfies the injury element. If Clemson opts to instead take this fight to the courtroom, they have a strong likelihood of success.[6] Success with a tort lawsuit means that Clemson or Wisconsin could obtain a large monetary judgement against the offending schools.
Given the current state of college athletics, it certainly appears that schools do not fear the NCAA or its possible punishments, but they will fear a tort lawsuit and potential large monetary judgments. With tampering admittedly out of control currently, a lawsuit for tortious interference with contractual relations seems to be the best deterrent.
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These authors have previously argued that tortious interference with contractual relations claims should be valid in other aspects of sports. See, e.g., Joshua D. Winneker, et. al., Pitcher-Victims of Major League Baseball ‘Illegal’ Sign Stealing Should Have Viable Tortious Interference with Contractual Relations Claims Against the Opposing Teams, 58 N.E. L. Rev. Online (2023). ↑
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Restatement (Third) of Torts: Liab. Econ. Harm § 17 (Am. L. Inst. 2020). ↑
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Id. ↑
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If either Ole Miss or Miami in its lawsuit makes the argument that the NIL contract is for the use of the players’ name and image and not for the player to play for a specific school, this argument would ring hollow. No school is going to promote the name and image of a player who does not attend or play for their school. ↑
