In late December, University of Illinois standout basketball player Terrence Shannon Jr. was arrested by Kansas officials for alleged digital penetration of a woman’s vagina without her consent at a bar in Lawrence, Kansas, back in September. The criminal complaint filed against Shannon included two counts: one for felony rape, and another one (in the alternative) for misdemeanor sexual battery. No grand jury or judge has yet heard or reviewed any evidence, and Shannon adamantly denies the charges. When it learned of the arrest, the University of Illinois Department of Intercollegiate Athletics (DIA) immediately and indefinitely suspended Shannon from all team activities (including team practices and games), invoking a disciplinary policy adopted several years ago that governs student athletes at the U of I. DIA has not conducted any factual investigation or made any factual findings of criminal guilt or other wrongdoing. Indeed, DIA has proclaimed its respect for the “presumption of innocence” in such matters. Nonetheless, pending further findings or resolution of the case by Kansas authorities, or findings made pursuant to a general student discipline process governing all U of I students (not just athletes) that is just beginning to gear up, DIA concluded that indefinite suspension from team activities was warranted in light of the seriousness of the allegations, and DIA’s zero-tolerance policy for sexual misconduct.
A little over a week later, Shannon, who before his arrest was projected to be a first- or second-round NBA draft pick this summer and who currently earns an undisclosed but significant amount of money under his Name, Image and Likeness (NIL) deals, filed suit to undo the suspension. On January 19, a federal district court judge granted Shannon a preliminary injunction and ordered the University to reinstate him, on the ground that he had a reasonable chance of showing that the University was violating his rights under the Fourteenth Amendment. More specifically, the court determined that Shannon had a colorable argument that he enjoyed a protectable property or liberty interest in being able to show his stuff on the court (given his NIL money and NBA future), and that the University’s suspension was depriving him of these interests without affording him the “due” process the Fourteenth Amendment requires, all of which was creating harm to Shannon that was “irreparable” in that it could not be undone later.
Right after the court’s ruling, the University reinstated Shannon to the program, and he played (28 minutes) in a home game versus Rutgers two days hence. Four days later he was back in the starting lineup in the game at Northwestern.
Some sports journalists around the country have been sharply critical of the decision by Illinois basketball coach Brad Underwood to play Shannon, notwithstanding the federal court’s ruling. Representative of this criticism are the writings and podcasts of CBS Sports’ basketball analyst Gary Parrish. On a blog, Parrish wrote:
A court ruled Shannon, who has been charged with rape, is no longer suspended, but it’s Underwood’s call to have him play in games. [The Illini have their best player back on the court], [b]ut should they? That’s a question that will continue to be asked. What some Illinois fans will tell you is that Illinois simply had no choice but to play Shannon 28 minutes Sunday after a federal judge granted an injunction in his favor on Friday. Respectfully, that’s not true.
Did the injunction put Illinois in a position where it had to reinstate Shannon to the program or risk facing legal consequences? Yes. And could Shannon theoretically sue the school if he were reinstated but still not allowed to play? Sure, I guess, if only because anybody can sue anybody for anything in America. But no federal judge is in charge of a coach’s rotation. College coaches have historically refused to play players for any number of reasons—for everything from committing crimes to taking bad shots or not diving for loose balls or missing curfew. It’s totally up to the coach—or, more broadly speaking, the school—which players play and which players do not. So the idea that Illinois had “no choice” but to play Shannon 28 minutes Sunday is nonsense. Terrence Shannon . . . played 28 minutes while facing a rape charge on Sunday because Brad Underwood allowed him to do it. Underwood can rationalize that however he likes. But that’s what happened.
In a separate podcast, Parrish went on (in a similar fashion) to say it was “brazen” for Illinois to play Shannon:
After talking to multiple attorneys out there in the past, I [Parrish] was left with the understanding that a [court order] does not force Illinois or any other school facing these kinds of situations to do what Illinois is doing. . . There is no federal judge who can alter or influence Brad Underwood’s rotation. Historically coaches are able to give minutes or not give minutes to anybody for any reason.
In the space below, I explain why criticisms like Parrish’s are wide of the mark. (Indeed, they are, to use Parrish’s word, nonsense.) Before I do so, though, two disclosures: (1) I am an avid Illinois basketball fan; I follow the team carefully and have greatly enjoyed (and been impressed by) Shannon’s work ethic and play on the court, as well as his off-the-court statements to the media over the past few years prior to his suspension; and (2) I believe (and told anyone who cared to listen, both before and after the district court’s decision), that I find Shannon’s due process challenge (which was successful in the district court) to be quite credible as a legal matter.
To me, the entitlement to an injunction boiled down to three factors. First, even though the arrest itself in Kansas (over which the University has no control and which should be distinguished from the University’s suspension) is undoubtedly causing some of the irreparable harm Shannon is experiencing through his NIL earnings and draft stock, the University’s suspension and his inability to play over the next few months to show his basketball chops and continue to improve in high-level competition also contribute to his injury in both of these respects, especially if outsiders draw the inference that the University thinks the (as of yet completely unproven) charges against him have merit. This harm to Shannon exceeds the harm the University purports to suffer if Shannon is allowed back on the team pending further process; to be sure, the University legitimately cares about who “represents” it to the outside world, but the fact is the University wouldn’t, absent more process and findings of actual wrongdoing, prevent all students who are arrested on similar charges from participating in extracurricular activities. Nor would the University summarily fire teachers and other employees (who continue to identify themselves to the outside world as U of I affiliates) based on charges alone, without more process. And these other students and employees also “represent” the University. If, in all these settings, the University stands by a commitment to due process and the presumption of innocence, it’s hard to see how much harm it would suffer by keeping Shannon in the program pending such process.
Second, I think in a world of NIL, where top student athletes in sports like football and men’s basketball are increasingly (for better or worse, and whether I like it or not) in reality athlete students who get big paydays, Shannon’s claim to a protectable property or liberty interest in being able to show his stuff on the court is plausible at least. The district court’s conclusion that Shannon had, for purposes of a preliminary injunction, sufficiently demonstrated he had a Fourteenth Amendment interest at stake was thus completely reasonable.
And third, I don’t think the fact that a non-neutral, elected prosecutor’s office decided to initiate an arrest amounts to much in the way of due process. The hallmarks of due process when you are threatened with a loss of property or liberty are an impartial decisionmaker, the ability to present evidence on your side, and a chance to challenge evidence against you. As noted earlier, there has been no impartial grand jury, much less a judge or petit jury or administrative factfinder, who has looked at the evidence and decided what the facts are or are likely to be. A zero-tolerance policy for sexual misconduct is one thing. A zero-tolerance policy for being accused of sexual misconduct is quite another, at least from the perspective of due process.
But whether or not one agrees with the district court’s ruling as a faithful implementation of the Fourteenth Amendment, Parrish’s criticism reflects an ignorance of law in general, and constitutional law in particular. If you don’t agree with the ruling, you can blame the district court judge, but you certainly can’t blame Coach Brad Underwood for faithfully adhering to the ruling, which is precisely what Underwood is doing. I don’t know which attorneys Parrish has been talking to, but they must not be sophisticated constitutional thinkers or federal court practitioners.
In essence, the district court order says: “You can’t punish Shannon without more process first. You must not treat him differently on account of the allegations that have not yet been proven, lest he be deprived of his important interests without due process.” That means (as the U of I’s public statement last week rightly observed) that Shannon must be treated the same “as . . . any other member of the team in good standing, and not [have his] participation limit[ed] based on the . . . allegations” against him.
What about Parrish’s suggestion that a court can’t order a coach to play a player? If by that Parrish means a court could not, as a practical matter, enforce such a command, because micromanaging a coach’s player-usage decisions is likely beyond the institutional capability of the federal judiciary, Parrish would be right. But he would also be beside the point. Law is more than a court’s ability to enforce an order; law is about what is legally right and wrong, regardless of how enforceable those norms may be. If, by his remarks, Parrish means that a court has no lawful authority to tell a coach what factors may not lawfully be considered by the coach in deciding whom to play, Parrish would be flatly wrong.
A few simple examples make the point. Suppose Player A is suspended because the coach learns that Player A identifies as Black or as Muslim, and Player A sues over his suspension. The coach couldn’t very well respond to a judicial order finding the coach’s conduct illegal under the Fourteenth or First Amendments by saying, “OK, I’ll reinstate him, but I won’t play him.” In such a case the judicial order, faithfully understood and obeyed by the coach, would require that the coach not consider Player A’s race or religion in managing game minutes. The same would be true if a player were disciplined because of his political viewpoint. To say that a coach can decide not to play a player for many reasons is not to say that all reasons are permissible. And, in effect, what the district court in Shannon’s case told the University of Illinois and Coach Underwood was: “absent more process, these unproven allegations do not constitute a permissible reason.” And if the court weren’t already clear on this point, at the end of its ruling, it added: the University’s “obligations under this Order” to be fairer to Shannon and provide him more process before holding the allegations against him “are to be construed as broadly as possible.”
The examples Parrish offers—of a player being benched for taking bad shots or missing a curfew—are completely inapposite because those misdeeds by a player do not involve mere allegations as to which there hasn’t been adequate process. The coach saw the bad shots. Or the assistant coach saw the player come in after curfew. There has been a process (actual observation) there, and the coach is entitled to make findings about a player’s disregard for team instructions and rules and act on those findings. In Shannon’s case—unlike a case of missed curfew or disobedience of a coach’s directions about on-the-court play—the DIA and basketball program (completely correctly) have eschewed any institutional ability to investigate or make findings about the particular allegations of wrongdoing.
It should go almost without saying that, absent consideration of the allegations against him, Shannon’s basketball importance to the team would warrant his starting for and getting major minutes for the Illini. He is generally regarded as Illinois’ leader and its best overall player, and one of the very top (perhaps All-American status) players at his position not just in the Big Ten Conference, but in the nation as a whole. Now if Shannon’s play on the court were to decline, or he began acting out and getting into conflict with his teammates, neither of which seems to be happening, obviously Underwood could play him less or not at all for those reasons. If his play were to meaningfully decline because of the stress he is under relating to the criminal case, that might raise some interesting questions. Imagine, for example, Shannon were playing poorly because opposing fans’ taunts were getting to him. It would seem that a coach should be able bench him based on that diminished basketball performance. But would we say the same thing if a player’s poor performance were attributable to racial epithets hurled by opposing fans? Interesting as these questions may be, they do not seem to be implicated by the current situation.
It is somewhat ironic that Parrish (and others) are criticizing Coach Underwood (not that I expect Coach Underwood cares too much about such criticism). After all, by focusing on basketball considerations only, Coach Underwood is faithfully complying with the law—as declared and commanded in the federal court order. And the ostensible basis on which Parrish and others criticize Illinois is Illinois’ supposed disrespect for the laws prohibiting sexual misconduct. But Parrish can’t have it both ways—due process is just as much a foundational part of the law as are prohibitions on sexual violence.