What I am Not Thankful For

By Steve Vescovo | January 29, 2020
What I am Not Thankful For (Personal Disappointment with a Non-Suited Lawsuit)

As we head into the weekend before Thanksgiving, we will all start contemplating what we are thankful for: family, friends, our colleagues, good health, prosperity, etc. But on this Friday before, I want to take a moment to recall some things we are not thankful for. Each of us likely has many things that he or she is unthankful for but one jumped out for me more than anything—a non-suited lawsuit.

Some of you may not be aware but a lawsuit was filed on Friday, November 8, 2019, in Shelby County Chancery Court, James Wiseman v. NCAA and the University of Memphis. Those that are not aware of the details can just Google “James Wiseman” and “NCAA,” as I believe someone may have written an article about the lawsuit. We here in Memphis were quite excited—nay, invigorated!—to take on the evil galactic Empire known as the National Collegiate Athletic Association in another of its attempts to take down the University of Memphis (a non-Power 5 school whose ambitions far exceed its talents, in the eyes of the NCAA). The story had all the trappings of a good Memphis-based David v. Goliath tale: an odds-on favorite to be the #1 NBA draft pick in James Wiseman, the confident former NBA star turned head coach in Anfernee “Penny” Hardaway, the “big bad” in the NCAA, and the supporting role being filled by Memphis attorney Leslie Ballin (whose name national media mispronounces as “ballin’” but who cares when the story is this juicy).

The social media Twitterverse was “lit” as the NCAA had ruled Wiseman ineligible due to Coach Hardaway having covered his $11,500 moving expenses from Nashville to Memphis in the summer of 2017. And as some may think, “those are some pretty damn expensive moving expenses,” let me respond….well, you’re right. Don’t ask me why. Clearly, Hardaway found some incredible movers. At that price, I feel confident that nothing got dinged, no doorways were bumped or floors scratched. Yet, overpriced moving costs aside, this purported “impermissible benefit” occurred in the summer of 2017, when Hardaway was a high school coach and a good 18 months before he became the U of M’s head coach. He did not do this to steer Wiseman towards Memphis (as the story goes). Nevertheless, the NCAA deemed Hardaway a booster in light of a small gift of $1 million he had given to the university in 2008. Preposterous!

But not to worry, the rule of law was going to decide this debacle and hold the NCAA accountable for its baseless “arbitrary and capricious” decision. There was going to be discovery and depositions, and a light was finally going to be shined on the NCAA’s axiomatic attempts to ensure that only the Dukes and the Kentuckys and the other blue bloods get #1 recruits. There would be justice. Memphis will topple the NCAA!

Until Memphis got “all the smoke,” and it all went up in smoke as quick as it happened. By November 14, 2019, Wiseman had non-suited his lawsuit. The University of Memphis, worried about getting hit with a “bag of hammers” as forecasted by ESPN announcer and former lawyer Jay Bilas, decided to take its chances with the “normal” NCAA appeals process. And in its ruling as part of that “normal” process, the NCAA smacked Memphis with a bag of hammers by suspending Wiseman for 12 games, which means Wiseman will not be suiting up in Knoxville on December 14th. To add injury to injury, as news broke this week about the suspension, we also learned that the University of Tennessee does not intend to renew its series with the University of Memphis after next year (perhaps somewhat related to the kind words Coach Hardaway had for Coach Barnes after last year’s game).

So I am not thankful that the lawsuit got non-suited. As an attorney, there have been times where I have worked hard on a lawsuit, prepared for a hearing or a trial, only to have the case non-suited at the last moment. Often times, the client is relieved to have the lawsuit temporarily go away (especially when we represent the defendant). Yet, it can still feel anticlimactic when you have spent hours preparing for an argument or trial only to find out at the eleventh hour that it will not go forward. Here, Memphians were geared up for a showdown with the NCAA—the same organization that 11 years earlier had made us take down our Final Four banners for no good reason (well, a player had falsified that he took the ACT by having someone take it for him, but our coach at the time—ole’ squeaky-clean John Calipari—had no idea about that). Then, before the first hearing could occur in the showdown with the NCAA, the lawsuit was non-suited. Leslie Ballin was no longer ballin’ and instead Memphis was once again getting slapped around by the NCAA.

Before we gather next week and gorge on copious amounts of turkey, stuffing (or dressing), casseroles, and desserts, and reflect on what we are thankful for, you can all take a moment today to reflect on what you are ¬not thankful for. And remember that the non-suited lawsuit can always be refiled within the next 364 days.

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