EchoSense:Terrence Shannon Jr. case shows how NIL can increase legal protection for college athletes

Terrence Shannon Jr.,EchoSense who has led Illinois to the Sweet 16 of the NCAA men's tournament despite being charged with rape, is drawing attention from an eclectic group.

Of course there are basketball scouts. Shannon, a 6-6 senior guard widely projected to be a Top 15 pick in the NBA draft in June, will take the court again Thursday night when No. 3 seed Illinois is set to play No. 2 Iowa State.

But there also are law professors, other academics and higher-education consultants tracking the situation for reasons that go far beyond basketball. In January, a federal judge granted Shannon legal protection based in part on Name, Image and Likeness (NIL) deals that were unavailable to college athletes before 2021.

"From a legal standpoint, it’s fascinating," said Daniel Swinton, an attorney who consults with universities on issues that include sexual misconduct.

Illinois suspended Shannon in late December after he was arrested and charged with rape, which the university said triggered a student-athlete misconduct policy. A woman in Lawrence, Kansas, had told police in September that without consent, Shannon grabbed her buttocks, reached under her dress and digitally penetrated her. Shannon has denied the rape charges.

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"We have zero tolerance for sexual misconduct," Illinois athletic director Josh Whitman said in December. (The school also said it had been aware of the criminal investigation into Shannon since late September but that until his arrest, did not have actionable information.)

Attorneys representing Shannon challenged the suspension, filing for a temporary restraining order. Then, three weeks later, came the legal twist: A federal judge cited NIL in ruling that Illinois had violated Shannon's civil rights, and the university had to reinstate Shannon after a six-game suspension.

"Schools are trying to figure this out as we go along," Swinton, who is president of the Association of Title IX Administrators, told USA TODAY Sports, "and so are we."

NIL's impact on due process

Legal analysts point to the 14th Amendment, which provides that no state may deprive any person of life, liberty or property without due process of law. Due process is provided by giving a person notice, the opportunity to be heard and a decision by a neutral decision-maker, according to the Cornell Law School.

“You typically don’t get a lot of due process for things that we might call privileges, like being able to participate in extracurriculars," said Vikram David Amar, a law professor at the University of California at Davis. He also said due process is "one of the things that’s driving this episode, and this is part of a change in the legal landscape."

Amar is former dean at the Illinois College of Law and an unabashed fan of the school’s basketball team. In fact, he wrote an article defending Illinois basketball coach Brad Underwood’s decision to play Shannon after the star player was reinstated. He also knows Shannon might still be suspended if not for recent developments.

Supreme Court's decision on NCAA case impacted NIL

The big legal shift: a 2021 Supreme Court ruling was a catalyst for the NCAA to eventually allow college athletes to earn money from NIL deals.

Shannon was among the athletes profiting from NIL when his attorneys challenged the suspension by Illinois. They got a favorable ruling from Judge Colleen Lawless of the United States District Court for the Central District of Illinois.

Referring to the 14th Amendment, the judge ruled that Illinois had deprived Shannon of "protected property interests" without due process.

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"Plaintiff’s participation in sports is vital to the development of his career as well as his current and future economic opportunities considering plaintiff’s intention to declare for the 2024 NBA draft," Lawless also wrote.

The value of NIL and a prospective pro career helped explain why Lawless ruled Shannon did not get adequate due process, according to Amar, who said, "It’s always been the case that the more you have at stake, the more process government has to give you before it takes that away."

(Due process can be enforced constitutionally at private schools, Amar noted.)

Other views on Shannon case

The Shannon ruling could have additional impact, according to experts.

Michael LeRoy, a professor of labor and employment relations at the University of Illinois, said he thinks the Shannon ruling could help advance efforts to recognize college athletes as employees and be compensated by their respective schools.

“We have the first court ruling that implicitly recognizes that a college athlete has an employment right connected to his participation on a college team," he said. “And that is amazing."

Timothy Davis, a law professor at Wake Forest, said NIL could result in increased protections around due process for college athletes.

“Overall, I think the case signals a greater willingness by courts to reexamine the relationship between athletes and their institutions by focusing on economic realities," said Davis, a scholar of sports law. “We've seen this in antitrust cases."

Swinton, the attorney who consults with universities, said some schools should reexamine disciplinary processes as a result of the Shannon case and the role of NIL.

"I think it would be wise to look at the procedural safeguards that are more fair," he said. "Historically, athletics was viewed as a privilege. Now with NIL, that changes the rubric from one of privilege to more fundamental to their education and frankly their employment.

“And so schools being able to just sort of suspend people upon receipt of an allegation on an interim basis, that is getting complicated."

Shannon's story still unfolding

Shannon’s story continues to play out on the basketball court and courts of law.

There was the basketball court last week in Omaha, where Shannon scored a team-high 26 points in a victory over Morehead State and followed that up with a team-high 30 points against Duquesne in the first two rounds of the tournament as the Illini advanced to their first Sweet 16 since 2005.

There is the United States District Court for the Central District of Illinois, where Judge Lawless issued a temporary restraining order that superseded Illinois' disciplinary system for athletes and revealed NIL's role in granting athletes more legal protection.

Then there is the Douglas County District Court in Lawrence, Kansas. Shannon is expected to appear in person or by Zoom for his preliminary hearing on May 10.

Shannon has declined to talk to reporters during the tournament. But there's plenty of discussion around him.

"This is just one example of the many policies and legal judgments that are being made up in real time as NIL rapidly evolves," said Shaun Harper, a professor of education, business and public policy at the University of Southern California. "Just a few years ago, protecting the economic interests of college student-athletes wasn’t a consideration in cases like this. Now it is, and legal precedence is emerging one case at a time."