By Rob Lang and Scott Goldschmidt, Thompson Coburn LLP
In Shannon v. Bd. of Trustees of the Univ. of Illinois, (C.D. Ill. Jan. 19, 2024)[1], the court enjoined the University of Illinois from continuing its suspension of the best player on its basketball team. A federal judge found the player had the due process right to immediately play for his team while more fair processes proceeded. This result was greatly impacted by the advent of Name, Image, and Likeness (NIL) opportunities, which can transform participation in college sports from a privilege to a right.
Illinois addressed the Shannon case outside of Title IX. The case should come as a warning to all higher education institutions to review their policies, especially relating to incidents involving athletes outside of Title IX. We also suggest that institutions of higher education review whether they have multiple policies that could apply to an athlete in this situation, and identify any inconsistencies or failure to provide adequate process in the same. Any institution that has not re-evaluated their student-athlete policies in light of NIL should consider doing so at this time.
Background
Terrence Shannon Jr. (TJ) came into the 2023-2024 NCAA men’s basketball season as one of the top five players in the country, touted as a candidate for Player of the Year. He was widely projected to be an NBA lottery pick in what was his fifth and final year playing college ball. TJ rolled through the first 11 games of the season, scoring 30 points against archrival Missouri on December 22.
On December 27, 2023, Illinois said that it learned that TJ was charged with a crime for an incident that occurred in Kansas several months earlier (and of which Illinois was aware almost from the outset). On December 28, 2023, Illinois suspended TJ pursuant to a policy administered by its Department of Intercollegiate Athletics (DIA), specific to athletes. TJ’s draft stock plummeted, and his basketball career looked over.
TJ, however, took the rare step of challenging the DIA suspension in court, as most athletes in his position have felt like they had nowhere else to go. TJ’s case will give athletes more ammunition to do so going forward.
Illinois decided that the underlying incident did not fall within Title IX’s jurisdiction. As Illinois’ athletic director explained the day after the DIA issued the initial suspension (which was later extended), there were three different processes applicable to TJ, operating in “parallel:”
- The DIA policy: Student Conduct Policies (SA Handbook) – University of Illinois Athletics (fightingillini.com)
- The university’s process applicable to all students (student process, which also applies to student-athletes): UIUC Student Disciplinary Procedures (illinois.edu)
- The criminal proceedings (Douglas County, Kansas)
These three options widely varied in terms of process and rights afforded to TJ, or lack thereof:
- The DIA policy: essentially no rights, decision made behind closed doors, without any investigation as the DIA, by its own admission, is not an “investigative body.”
- The student process: more rights than the DIA policy, but still lacking rights lacking in all college processes, such as the right to cross-examine the accuser, subpoena power, and to have counsel directly advocate. Further, the hearings are not in public and not court-reported.
- The criminal proceedings (Douglas County, Kansas): full due process rights.
By January 5, 2024, the DIA suspension of TJ was fully in effect until the criminal charges were resolved, and the university initiated the student process against TJ. TJ filed his lawsuit on January 8, 2024, which was removed to federal court.
The Ruling
On January 19, 2024, United States District Court Judge Colleen Lawless (herself a former college athlete) entered a preliminary injunction requiring Illinois to put TJ back on the court right away, and he played his first game after the suspension two days later, against Rutgers.
Judge Lawless found that TJ proved the relevant injunction factors, including irreparable harm and a likelihood of success on the merits, as to his procedural due process claim under § 1983. Judge Lawless enjoined Illinois from enforcing the DIA Policy against TJ and further enjoined Illinois from suspending TJ from the team “without at least affording him the protections of the [student policy].”
The court first found that TJ had both a property interest and a liberty interest.
TJ had a property interest because his “participation in future games [for the remainder of Illinois’ season] impacts his prospects in the [NBA] draft and his earning potential.” Further, recognizing the higher education context of the case, the court found that TJ’s property right derived from a contract with the school, which can emanate from student catalogs, policies, bulletins, and other publications. Judge Lawless cited Stiles v. Brown Univ., No. 1:21-cv-00497 (D. R.I. Jan. 25, 2022) where a collegiate athlete won an injunction against a suspension from his team at a private university, outside of § 1983 and instead under state contract law.
TJ also had a liberty interest “to follow a trade, profession or other calling,” transforming what was typically characterized as a mere privilege to play college sports to a right to do so. Citing Amy Coney Barrett’s ruling in Doe v. Purdue Univ., 928 F. 3d 652 (7th Cir. 2019) (not involving a student-athlete), Judge Lawless found that Illinois deprived TJ of “his freedom to pursue a career of his choice in basketball,” and that TJ satisfied the “stigma-plus” test because he was suspended for allegations of serious sexual misconduct without due process.
As to the irreparable harm factor, the court pointed to TJ’s personal situation as the suspension, if not enjoined, would eat up the rest of TJ’s college career, including games on national TV (especially considering Illinois’ eventual ascent to the Big 10 Championship and an Elite 8 finish in the NCAA tournament.) Judge Lawless cited State of Ohio v. NCAA (N.D. W.Va. Dec. 13, 2023), a recent case addressing NCAA transfer eligibility rules, relying heavily on NIL opportunities available to student-athletes during their postseason conference and NCAA tournaments. As the State of Ohio Court said:
The success of a team in regular season dictates their entrance into their respective Conference Tournament and NCAA Tournament. Every game is crucial for a student-athlete and their team. Take, for example, March Madness. One good tournament run can cement a student-athlete or team’s legacy in college sports. The absence from student-athletes from teams on gamedays could negatively impact a team’s ranking and selection to tournaments. Moreover, it may have life-altering impacts on the student-athlete’s ability to pursue NIL deals and a professional career in their sport as well as impacts on their mental health. The substantial and very current harm to winter sport Division I student-athletes is irreparable and cannot be easily remedied. However, immediate temporary injunctive relief is necessary to allow these winter sport Division I student-athletes to compete on gamedays going forward in the season.
Also, Judge Lawless found that TJ was irreparably harmed because the DIA suspension could give the public the perception that Illinois presumed TJ to be guilty, “or, in the very least, [that Illinois] actually investigated whether the allegations were substantiated before suspending him.”
The Aftermath
TJ played the rest of the season after resuming play on January 21 against Rutgers. He led Illinois to great postseason success and in June became a late-first round draft pick of the NBA’s Minnesota Timberwolves.
On April 5, 2024, after a three-month investigation, Illinois terminated its student process against TJ, without any sanctions, for insufficient evidence. TJ was interviewed by investigators during this process, something that never occurred prior to the DIA suspension: Illinois drops investigation into Terrence Shannon Jr. – ESPN.
On June 13, 2024, a Douglas County (Kansas) jury found TJ not guilty on all charges after a short deliberation. TJ testified in his defense at the trial and maintained his innocence as he did from the beginning.
The Lessons
First, NIL has the capacity to, in certain circumstances, transform the privilege of playing college sports into a right, which cannot be as easily taken away without process. NIL-related cases are moving through the dockets of various states, and institutions should stay on top of them and continually review their policies upon significant developments in NIL-related law.
Second, the lessons of TJ’s case apply to both public and private institutions of higher education. While § 1983 applied to TJ because the University of Illinois is a government entity (i.e. a state institution) the Stiles v. Brown Univ. court reached a similar result – an injunction enjoining the suspension of an athlete who did not receive due or fair process – based on the contract between the student and the university.
Third, institutions should review their policies and procedures for adjudicating matters involving student athletes to ensure that appropriate process is provided, either under the Constitution for public institutions or based on contract for private institutions.
As noted above, Illinois did not apply its Title IX policies to TJ, instead applying its DIA and other university policy with less process. Applying a policy and procedure with additional process at the outset may have resolved potential issues prior to a lawsuit. For example, compare TJ’s case to that of Pop Isaacs, a Texas Tech University basketball player who on January 7, 2024, was sued for sexual assault in connection with an incident that occurred while his team was playing off campus in the Bahamas, and the accuser was not a student at the same school: Texas Tech leading scorer Pop Isaacs accused of sexually assaulting minor in lawsuit – CBSSports.com. Isaacs was not suspended and continued to play because Texas Tech found that the player “remains in good standing, and there is no reason to withhold him from University activities, including basketball competition.”
Finally, institutions should be prepared for increased litigation relating to student athletics. Along with NIL, the law is in flux with respect to a number of important athletics concepts, such as the amateur or employment status of student-athletes. Institutions should be reviewing their programs and processes with the potential for increased scrutiny in mind.
We suggest the following action steps for institutions of higher education that have athletic programs:
- Review policies that could apply to allegations of misconduct against student-athletes to ensure that any policies provides appropriate process. Consider whether an approach that treats student athletics the same, or similarly, to the rest of the student population is appropriate, and remember that student-athletes are entitled to the same protections as other students, despite their often high-profile stature.
- Review policies and processes regarding when it is appropriate to remove an athlete from their team or separate the athlete from the institution in general pending adjudication. For Title IX matters, this standard is articulated in regulation at 34 CFR §106.44 and requires that the institution perform an individualized safety and risk analysis, determine that an imminent and serious threat to the health and safety of another exists, and provide notice and an opportunity to challenge this decision. Institutions should consider whether similar processes are appropriate for other types of misconduct.
- When criminal charges are pending or likely, consider how such charges would affect the institution’s policies, procedures, and adjudicative processes relating to student athletes.
In closing, we encourage institutions to “stress test” their policies for situations such as TJ’s. How would your school’s policies handle this situation? Doing so now could dramatically mitigate unfair harm to the accused and liability to the institution.
[1] Rob Lang was the plaintiff’s lead counsel in this case and is a partner at Thompson Coburn in its Litigation and Higher Education groups. Scott Goldschmidt is a partner in Thompson Coburn’s Higher Education group.
