RASHADA v. HATHCOCK
Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION
JADEN RASHADA,
Plaintiff, v. Case No. 3:24-cv-219-MCR-HTC HUGH HATHCOCK, et al.,
Defendants.
_________________________________/
ORDER
Plaintiff Jaden Rashada sued Defendants Hugh Hathcock, William Napier, Marcus Castro-Walker, and Velocity Automotive Solutions, LLC for allegedly engaging in a fraudulent scheme to secure his commitment to play football for the University of Florida and to deny its rivals of his athletic talents. See ECF No. 37. Each Defendant subsequently moved to dismiss the Amended Complaint. See ECF Nos. 45, 46, 47, 48. [1] Rashada responded in opposition to each motion. See ECF Nos. 49, 50, 51, 52. With leave of Court, Napier and Velocity filed briefs in reply, to which Rashada sur-replied. See ECF Nos. 61, 63, 65, [2] 67. The Court heard oral argument on the motions to dismiss. For the reasons below, the Court concludes that Defendants’ motions are due to be granted in part and denied in part.
I. Background [3]
This case arises out of the failed recruitment of high school football standout, Jaden Rashada, to the University of Florida (“UF”) between 2022 and 2023. This was a volatile period in the governance of name, image, and likeness (“NIL”) rights for college student athletes in the wake of Nat’l Collegiate Athletic Ass’n v. Alston , 594 U.S. 69 (2021). Following that decision, the National Collegiate Athletic Association (“NCAA”) began allowing student athletes to be compensated based on their NIL rights for the first time. ECF No. 37 at ¶ 21. [4] Contemporaneously with Alston and the NCAA policy changes, some states implemented their own rules for use of NIL, including Florida. See, e.g. , Fla. Stat. § 1006.74 (2021) (amended 2023). The Florida NIL statute in effect at the time of Rashada’s recruitment, Fla. Stat. § 1006.74, included conditions on NIL compensation, namely that it must “not be provided in exchange for athletic performance or attendance at a particular institution” and could “only be provided by a third party unaffiliated with the intercollegiate athlete’s postsecondary educational institution.” Id. at § 1006.74(2)(a). Likewise, an “officer, director, or employee of [a postsecondary educational] institution or entity [could] not compensate or cause compensation to be directed to a current or prospective intercollegiate athlete for her or his name, cannot and must not shy away from requiring the NCAA to play by the Sherman Act’s rules”), the Supreme Court unanimously held in Alston that the NCAA’s restrictions on non-cash education- related benefits violated the antitrust laws. 594 U.S. at 107. Justice Kavanaugh went further, observing in his concurrence that “[t]he NCAA’s [then-existing] business model would be flatly illegal in almost any other industry in America.” Id. at 109 (Kavanaugh, J., concurring). Only days after Alston was issued, the NCAA, in an extraordinary reversal, announced that it would permit student-athletes to engage in—and be compensated for—NIL activities with third parties, effective July 1, 2021. NCAA, NCAA adopts interim name, image and likeness policy (June 30, 2021), https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness - policy.aspx (last accessed Apr. 8, 2025). Since then, college sports have only become more professionalized. Among other things, it has been publicly reported that collectives supporting big-time college football programs have spent up to $20 million on NIL deals to build a roster. See, e.g. , David Ubben, How much do NIL roster budgets really matter for College Football Playoff teams? , T HE A THLETIC (Dec. 17, 2024), https://www.nytimes.com/athletic/5998305/2024/12/17/college-football-playoff-nil-roster- budgets/ (last accessed Apr. 8, 2025) (“Ohio State athletic director Ross Bjork . . . said this summer that the Buckeyes players received about $20 million [in NIL] funds”). And a preliminarily- approved settlement in House, et al. v. Nat’l Collegiate Athletic Ass’n, et al. , Case No. 4:20-cv- 03919-CW (N.D. Cal.) promises—if ultimately approved—to fundamentally reshape the landscape of college sports for the second time in five years by establishing a revenue-sharing framework between members schools and student-athletes up to $20.5 million per year. image, or likeness.” Id. at § 1006.74(2)(c). As described by Rashada, “[t]his new NIL regime opened the door to the formation of so-called ‘collectives’—groups of donors who agreed to fund NIL contracts with athletes in exchange for the athletes’ de facto commitment to a particular university.” ECF No. 37 at ¶ 21. This morass of unprecedented operational change, alongside novel legislation and new NCAA policy guidance, provides the backdrop to the events underlying Rashada’s suit.
After graduating from high school in Spring 2022, Rashada—seventh-ranked nationally among “Class of 2023 college-bound quarterbacks”—was recruited by several college football programs nationwide, including blue bloods like Louisiana State University, Texas A&M University, the University of Oregon, the University of Mississippi, the University of Miami (“Miami”), and UF. ECF No. 37 at ¶ 2. In June 2022, Rashada visited UF in person as a part of the school’s recruitment efforts. Id. at ¶ 23. According to Rashada, “[d]uring the visit, [he] and his family met with UF’s director of NIL and player engagement, Defendant [Marcus] Castro-Walker,” who “was scheduled to present on the topic of NIL” during the day—purportedly at the behest of Defendant William Napier, UF’s head football coach. Id. Castro- Walker told Rashada’s father that a prominent UF booster, Hugh Hathcock, was on campus for a photo shoot with his Lamborghini and wanted to meet Rashada. Id. Alert to the NIL rules in place at the time, Castro-Walker told Rashada’s father, “you didn’t see [Hathcock].” Id. Hathcock entered the UF athletic facility meeting room “from a back entrance” and “explained who he was, bragged that he was a big financial supporter of UF’s football program, and assured [Rashada] that UF’s football program was going to achieve much success under Coach Napier.” Id. at ¶ 24. Additionally, during the meeting, “Hathcock told Castro-Walker that whatever [Rashada] needed to come to UF from an NIL standpoint, Hathcock would make [it] happen,” and “suggested that he could secure employment for [Rashada’s] father . . . if [Rashada] were to commit to UF.” Id.
According to Rashada, Hathcock ultimately offered him “approximately $11 million” later that summer in a “UF-affiliated NIL deal,” id. at ¶ 25, with funding split between Velocity and a collective named “Gator Guard,” which was “Hathcock’s NIL collective.” Id. at ¶ 31. However, by that point—in or around June 2022—Rashada had committed verbally to play for Miami—a commitment made public on June 26, 2022. Id. at ¶ 26. In connection with that commitment, Rashada made a $9.5 million NIL deal with a Miami-affiliated collective. Press outlets like Sports Illustrated publicly reported this $9.5 million deal. Id. at ¶¶ 26, 28 n.1.
Despite the public commitment elsewhere, efforts to recruit Rashada to UF continued. For example, Castro-Walker reached out to Rashada’s NIL agents, telling them on October 27, 2022, to “Get us the QB.” Id. at ¶ 28. [6] Additional messages a few days after from Castro-Walker to at least one of Rashada’s agents stated, “We need to lock down Jaden!” and “[UF would] want [Jaden] to flip this week.” Id. at ¶ 29 (alterations in original). Hathcock also made calls to Rashada’s agents between November 9 and 10, stating “he would do whatever Castro-Walker and Napier said was necessary to secure a talented player” and he “just listen[s] to them.” Id. at ¶ 30.
In early November 2022, Defendants upped the ante; a $13.85 million proposal was presented to Rashada, with the money to be paid out over a four-year period at UF. Id. at ¶ 31. The same two sources of funding would support the payments: Velocity, Hathcock’s automotive company, and Gator Guard, his NIL collective. Id. According to Rashada, “Hathcock’s representations to [his] agents . . . led [him] to believe that Castro-Walker had authority to negotiate the NIL agreement that Hathcock and Velocity Automotive would fund.” [7] Id. at ¶ 32. Hathcock then intimated that a changed commitment was imminent by making online posts on Twitter. [8] On November 9, 2022, Hathcock tweeted, “Tomorrow will be a Great Day Gator Fans!!!” Id. at ¶ 33. Hathcock again tweeted on November 10, 2022, “All Good!!! Just a little longer!!!” Id. at ¶ 40. [9]
At some point “[b]efore the deal was finalized,” however, Hathcock pivoted and “declined to use his company or the Gator Guard to directly fund the promised NIL payments,” citing his plans to sell Velocity soon. Id. at ¶ 35. Instead, Hathcock and Castro-Walker proposed that funds “pass through” a different UF-affiliated collective, “the Gator Collective,” even though the money would still come from Hathcock and Velocity. Id.
Ultimately, both Castro-Walker and Hathcock “partnered” with Edward Rojas, CEO of the Gator Collective, on the deal. Id. at ¶¶ 6, 36. Jennifer Grosso, a lawyer for the Gator Collective, purportedly told Rashada’s agents “Hathcock would wire money monthly so that all necessary payments could be made to [Rashada],” and “confirmed that she frequently worked with Mr. [David] Penney, Velocity’s director, or employee of such institution or entity may not . . . cause compensation to be directed to a current or prospective intercollegiate athlete for her or his name, image, or likeness.” Fla. Stat. § 1006.74 (2021) (amended 2023). “Since the events of this suit, Twitter has merged into X Corp. and is now known as X.”
Murthy v. Missouri
,
contract memorializing the agreement was close to being ready to sign. ECF No. 37 at ¶ 34. CEO, to facilitate the monthly payments it made to the Gator Collective.” Id. at ¶ 36.
Specifically, on November 10, 2022, Grasso told Rashada “that Hathcock would fund the first $500,000,” to be wired in two weeks’ time, of the deal with Gator Collective, and “UF was ‘serious’ about securing [Rashada’s] commitment.” Id. at ¶ 37. She also texted one of Rashada’s agents, “I might go to sleep if I had $500K headed my way in two weeks . . . But we need a commitment to get there!!!” Id. at ¶ 41. Rojas was also in touch with one of Rashada’s agents on November 10 about his excitement for Rashada joining UF, texting, “We are going to have to dodge the freaks in Miami[.] I hate Miami. This is going to be fun to watch.” Id. at ¶ 38 (alteration in original).
Late in the evening on November 10, 2022, Rashada publicly announced a verbal commitment change from Miami to UF. Id. at ¶ 42. Rashada also signed a contract with the Gator Collective the same day, memorializing the $13.85 million NIL deal. See ECF No. 47 at 41. [11] Rojas appears to have signed on November 10 at 10:16 pm EST. ECF No. 47 at 41. [12]
Under that contract, the first payment to Rashada, $500,000, was due on December 5, 2022. Rashada alleges that “Ms. Grosso informed [his] representatives that Mr. Penney would coordinate Hathcock’s payments,” and “Penney, in turn, informed [his] agents that he was waiting on Hathcock’s direction before paying” the initial $500,000. ECF No. 37 at ¶ 47. Likewise, “Castro-Walker also represented that he was communicating with Hathcock about the payment, and that Hathcock was finalizing the logistics of the payment.” Id. When Rashada’s agents asked Castro-Walker about the payment on December 4, Castro-Walker responded that when he spoke with Hathcock previously, Hathcock indicated “was working something out with his accountants.” Id. at ¶ 49.
On December 6, 2022, just after the initial payment due date, “the Gator Collective sent [Rashada] a letter purporting to terminate the $13.85 million NIL contract.” Id. at ¶ 51. The next day, Castro-Walker represented to Rashada’s agents that the NIL deal, still totaling $13.85 million, would be “assigned” to Gator Guard, Hathcock’s collective, and that Hathcock would personally guarantee the obligation. Id. at ¶ 53; see also id. (“To facilitate this new arrangement, Hathcock, Velocity, and/or Castro-Walker represented that the Gator Collective would retract its unfounded termination, and once the agreement was ‘un-cancelled,’ the $13.85 million obligation would be assigned to the Gator Guard collective.”). Shortly after, on December 9, Penney wired $150,000 to Rashada on Hathcock’s behalf. Id. at ¶ 54. The purpose of this payment by Hathcock was to avoid litigation between Rashada (“and presumably also Hathcock and Velocity”) and John Ruiz, a Miami booster “who was seeking repayment from the $9.5 million NIL deal after [Rashada] flipped his commitment.” Id. According to Rashada, it also served as a partial payment towards his $500,000 signing bonus. Id. at ¶ 56.
Less than two weeks later, December 21, 2023, was the 2023 NCAA football early-commitment National Letter of Intent signing day. Historically, this is an important day on the college football recruiting calendar. Filled with fanfare and pageantry, this is the day many of the nation’s top football recruits, formally accept one of the finite number of athletic scholarships available at their institution of choice for the next academic year. On signing day, though, Rashada was still awaiting the $350,000 remaining of his $500,000 signing bonus and the “assignment” of the $13.85 million contract to Hathcock’s NIL collective, prompting him to ask his agents if he should sign a Letter of Intent for Florida; they responded, “not yet.” Id. at ¶ 58 (internal quotations omitted).
As the signing day delay grew, Napier called Rashada and his father, and “explain[ed] that he did not want to go into [a] press conference without his quarterback signed.” Id. at ¶ 59. Rashada’s father responded that the hold up was because there was still no NIL deal in place. Id. Napier later called the Rashadas back and represented that “Hathcock would pay [Rashada] $1 million as a partial payment towards the promised $13.85 million,” and urged Rashada to sign his Letter of Intent. Id . Rashada’s agents counseled him not to sign the Letter of Intent without an NIL deal in hand and “offered to discuss the issue with Castro-Walker” again, which they did. Id. at ¶ 60. In that conversation, Castro-Walker emphasized that “Napier would ‘get it done.’” Id. Castro-Walker also threatened that if Rashada did not sign quickly, “Napier might pull back his scholarship offer.” Id. Rashada signed his Letter of Intent with UF about an hour after his call with Napier. Id. at ¶¶ 61–63.
But, by January 2023, a secondary or “assigned” NIL contract still had not materialized. Castro-Walker provided “assurance that [Rashada] would receive the signing bonus and all promised payments going forward” during the early part of that month. Id. at ¶ 64. However, when this did not happen, Rashada sought and was permitted to withdraw his Letter of Intent on January 18, 2023. He then began his college football career at Arizona State University and later transferred to the University of Georgia for the 2024-25 school year. Id. at ¶¶ 66–67. Rashada states he “neither sought nor was promised any type of NIL commitment from Arizona State,” and his later “decision to attend Georgia [in 2024] was not in response to any promises, assurances, or offers connected to NIL money.” Id.
On May 21, 2024, Rashada filed the present action against Hathcock, Napier, Castro-Walker, and Velocity, which he then amended as of right on August 13, 2024. The Amended Complaint contains eight counts, each arising out of Florida common law: fraudulent misrepresentation and fraudulent inducement (Count I); aiding and abetting fraud (Count II); conspiracy to commit fraud (Count III); the independent tort of conspiracy (Count IV); negligent misrepresentation (Count V); tortious interference (Count VI); aiding and abetting tortious interference (Count VII); and, solely against Velocity, vicarious liability for acts taken by Hathcock (Count VIII).
II. Applicable Standards
A Rule 12(b)(6) motion seeks dismissal of a pleading for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a
Rule 12(b)(6) motion, the Court accepts factual allegations as true and construes
them in the light most favorable to the plaintiff.
Mills v. Foremost Ins. Co.
, 511 F.3d
1300, 1303 (11th Cir. 2008). Rule 12(b)(6) requires that the allegations of a
complaint “state a claim to relief that is plausible on its face.”
See Iqbal
, 556 U.S.
at 678 (quoting
Bell Atl. Corp. v. Twombly
,
Rule 12(e) provides that “[a] party may move for a more definite statement of
a pleading to which a responsive pleading is allowed but which is so vague or
ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P.
12(e). Where Rule 12(e) relief is warranted, the proper remedy is to require a
repleader in order to set the proper boundaries for discovery.
See Paylor v. Hartford
Fire Ins. Co.
,
III. Discussion
a. Fraud Claims (Counts I, II, and V)
Rashada asserts various fraud-based claims against Defendants, including for
fraudulent misrepresentation and fraudulent inducement (Count I), aiding and
abetting fraud (Count II), and negligent misrepresentation (Count V). ECF No. 37
at ¶¶ 69–87, 105–108;
see Lamm v. State St. Bank & Trust
,
A fraudulent misrepresentation claim under Florida law has four elements:
“(1) a false statement concerning a material fact; (2) the representor’s knowledge
that the representation is false; (3) an intention that the representation induce another
to act on it; and (4) consequent injury by the party acting in reliance on the
representation.”
Butler v. Yusem
,
Negligent misrepresentation claims under Florida law share many of the same
ingredients. A plaintiff is not required to allege that the defendants had knowledge
that the misrepresentation was false; a plaintiff can likewise prevail on a lesser
showing—that the defendant made the misrepresentation “without knowledge of its
truth or falsity” or that the defendant “should have known the representation was
false.”
Osorio v. State Farm Bank, F.S.B.
,
As noted above, where a party alleges fraud, the party “must state with
particularity the circumstances constituting fraud,” but “conditions of a person’s
mind may be alleged generally.” Fed. R. Civ. P. 9(b);
see Lamm
,
Defendants contend that Rashada failed to adequately plead agency relationships among the various individuals, parties and non-parties alike, involved in his failed UF recruitment, and Hathcock, in particular, urges the Court to apply Rule 9(b)’s heightened pleading standard to those assertions of agency. Rashada rejoins that, even under Rule 9(b), he has met his burden of showing a variety of agency relationships—including Hathcock and Castro-Walker acting as Napier’s agents; Hathcock as an agent of Velocity; and Castro-Walker as an agent of Hathcock—existed amongst the Defendants at the time of the alleged fraud.
Viewed in the light most favorable to Rashada, and heedful that parsing
agency relationships is a fact-intensive exercise best reserved for later stages of
litigation, the Court concludes that Rashada’s allegations on this score are sufficient
for present purposes.
See Larach v. Standard Chartered Bank Int’l (Ams.), Ltd.
, 724
F. Supp. 2d 1228, 1239 (S.D. Fla. 2010) (determination of whether an agency
relationship exists is fact-intensive and not properly resolved at the motion to dismiss
stage) (citation omitted);
Roche v. Rushmore Loan Mgmt. Servs., LLC
, 2020 WL
1452346, at *14 (S.D. Fla. Mar. 25, 2020) (same) (collecting cases);
cf.
Sheikhalizadehjahed v. Gaudiosi
,
Larach
,
relationships alleged, the Court’s conclusion would be the same.
See Savoia-McHugh v. Glass
,
This means Rashada’s alleged agency relationships just need to be plausible.
And they are.
See Iqbal
,
The Amended Complaint specifically alleges a myriad of mutually reinforcing, interlocking actions and statements by Napier, Castro-Walker, and Hathcock over the course of Rashada’s ill-fated UF recruitment. Among other things, Napier allegedly deputized Castro-Walker to lead UF’s NIL efforts and authorized Hathcock (and his Lamborghini) to meet with recruits and arrange NIL deals to secure commitments to UF. , e.g. , ECF No. 37 at ¶¶ 15, 17, 23–25; see also id. at ¶ 59 (alleging that, on signing day, Napier represented to Rashada that Hathcock would wire Rashada $1 million as a partial payment despite the two being unable to confer beforehand). Hathcock allegedly boasted to Castro-Walker, within earshot of Rashada and his family, that he would deliver whatever NIL compensation package was needed to secure Rashada’s commitment to UF. Id. at ¶ 24. And while Hathcock and Castro-Walker were in the thick of the initial negotiations with Rashada’s agents, Hathcock allegedly said that he “just listen[ed] to” whatever Napier and Castro-Walker told him to do. Id. at ¶ 30.
Napier’s putative actions, in concert with the surrounding circumstances
alleged in the Amended Complaint, at the very least created a plausible appearance
that Castro-Walker and Hathcock were acting as Rashada’s apparent agents during
his recruitment to UF.
See Borg-Warner Leasing, a Div. of Borg-Warner
Acceptance Corp. v. Doyle Elec. Co.
,
Turning to the fraud allegations, and applying Rule 9(b), the Court is satisfied
that Rashada’s Amended Complaint adequately alleges each of the fraud-based
claims under Florida law and does so with the particularity required. The twin
lodestars of Rule 9(b) are “alerting defendants to the precise misconduct with which
they are charged and protecting defendants against spurious charges of immoral and
fraudulent behavior.”
United States ex rel. 84Partners, LLC v. Nuflo, Inc.
, 79 F.4th
1353, 1360 (11th Cir. 2023) (internal quotations and citation omitted). It is oft stated
that a plaintiff must therefore sufficiently allege “the who, what, where, when, and
how” of the alleged fraud.
See Gose v. Native Am. Servs. Corp.
,
There is more than enough information in the Amended Complaint to put Defendants on notice of the precise claims against them and to permit them to formulate a defense. The Amended Complaint specifically identifies (i) who participated in the alleged fraud: Napier, Castro-Walker, Hathcock, Velocity, and other non-parties operating on their behalf, such as Velocity’s then-CEO David Penney; (ii) what the allegedly fraudulent activity was: repeated promises of six-to- eight figure NIL payments that Defendants never intend to abide; (iii) where the fraud took place: through specified mediums of communication, including phone calls and text messages; (iv) when the fraudulent representations were made: on crescendoing, pinpointed dates between October 2022 and January 2023; and (v) how the alleged fraud occurred: an NIL scheme in which Defendants baited Rashada to flip his commitment to UF with the prospect of lucrative NIL payments—only to switch the terms of the deal after key recruiting milestones had passed—with the intention of securing a blue chip recruit on the cheap and depriving UF’s rivals of Rashada’s athletic prowess.
As evidenced by the detailed nature of the Amended Complaint, Rashada has
extensive prediscovery evidence to ostensibly support his factual allegations.
Gose
,
Defendants’ efforts to splice and dice the alleged misrepresentations under the
false flag of Rule 9(b) overstates Rashada’s current burden and are unavailing.
Durham v. Bus. Mgmt. Assocs.
,
Rashada, however, alleges that Defendants’ never intended to pay him the promised sums, and that intent formed by October 2022—before he flipped his commitment to UF. See ECF No. 72 at 59:10–21, 61:14–62:9. Among other things, Rashada says that intent not to perform is evinced by the fact Gator Guard, Hathcock’s NIL collective, was undercapitalized and did not exist as a registered corporation. See ECF No. 50 at 6; see also ECF No. 37 at ¶ 31 n.3 (“[N]o entity called ‘Gator Guard Marketing, LLC’ appears to have ever registered with the Florida Secretary of State.”). Gator Guard allegedly raised only “$5 million . . . to fund UF student-athlete NIL contracts,” which is two, nearly three, times lower than the “guaranteed payments,” pledged to Rashada to secure his commitment to UF. ECF No. 37 at ¶ 31 n.3. The Court finds these facts, taken as true, make it plausible that Gator Guard would not have been able to finance the proposed obligations to Rashada, which strongly suggests Defendants could not pay what they represented and never intended to. See Walton Const. Co., LLC v. Corus Bank , 2011 WL 2938366, at *8 (N.D. Fla. July 21, 2011) (Where plaintiff alleged defendants did not negotiate any work change requests or time extensions or pay “for the work it completed on” a project, “it can be reasonably inferred, and it is thus facially plausible, that” defendants did not intend to pay plaintiff for work.). Moreover, the broader context alleged in the Amended Complaint, granting all inferences in Rashada’s favor, suggests that Defendants intended to string Rashada along without payment in order to deny Miami and other rival schools the prestige of signing a highly-touted quarterback as well as, for some period of time, Rashada’s talents on the gridiron.
Speaking of rivals, Rashada has adequately alleged that he relied to his
detriment on Defendants’ putative fraud by committing to UF in lieu of other multi-
million-dollar NIL deals available to him at Miami and other schools.
Prentice
v. R.J. Reynolds Tobacco Co.
,
All things considered, Rashada’s allegations supporting his fraudulent
inducement (Count I) and negligent misrepresentation (Count V) claims are
particularized and plausible enough to proceed to discovery. This finding extends
to Rashada’s aiding and abetting fraud claim (Count II), as the surrounding
circumstances alleged in the Amended Complaint readily allow for the inference that
each Defendant had actual knowledge of the putative fraud.
See Lawrence v. Bank
of Am., N.A.
,
b. Civil Conspiracy (Counts III and IV)
Counts III and IV assert claims against all Defendants for civil conspiracy to commit fraud and civil conspiracy as an independent tort, respectively. ECF No. 37 at ¶¶ 88–104. The Court finds that the Amended Complaint’s allegations are sufficient to support the former, but not the latter.
Under Florida law, the elements of a civil conspiracy are: “(a) an agreement
between two or more parties, (b) to do an unlawful act or to do a lawful act by
unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and
(d) damage to plaintiff as a result of the acts done under the conspiracy.”
United
Techs. Corp. v. Mazer
,
The same is not true, though, for Rashada’s claim that Defendants committed
the independent tort of civil conspiracy. Under Florida law, the gravamen of a civil
conspiracy claim is the underlying tort carried out by virtue of the conspiracy, not
the conspiratorial agreement itself.
See Koch v. Royal Wine Merchants, Ltd.
, 907
F. Supp. 2d 1332, 1346 (S.D. Fla. 2012) (“Unlike a criminal conspiracy, which is an
offense in itself, a civil conspiracy ‘is not a separate or independent tort but is a
vehicle for imputing the tortuous [sic] actions of one co-conspirator to another.’”
(citation omitted)). So ordinarily, if there is no actionable underlying tort, a civil
conspiracy claim will fail.
Williams Elec. Co. v. Honeywell, Inc.
, 772 F. Supp.
1225, 1239 (N.D. Fla. 1991) (observing that an “actionable civil conspiracy must be
based on an existing independent wrong or tort that would constitute a valid cause
of action if committed by one actor.”) (collecting cases). However, a narrow
exception exists where the conspirators possess a “peculiar power of coercion . . . by
virtue of their combination,” which the co-conspirators would not possess on their
own.
See Churruca v. Miami Jai-Alai, Inc.
,
c. Tortious Interference (Counts VI and VII)
Counts VI and VII assert that Defendants tortiously interfered with Rashada’s
business relationship and $9.5 million NIL deal with Miami and that each Defendant
aided and abetted that interference. ECF No. 37 at ¶¶ 109–117. Tortious
interference occurs under Florida law when the defendant “(1) has knowledge of (2)
an enforceable contract between the plaintiff and a third party and (3) intentionally
and (4) unjustifiably interferes with the plaintiff’s rights under that contract, (5)
thereby causing the plaintiff injury.”
Advantor Sys. Corp. v. DRS Tech. Servs., Inc.
,
The somewhat novel question presented here is whether, under Florida law,
Rashada can sue for tortious interference when
he was the one
that allegedly
withdrew from the Miami relationship to pursue an NIL deal represented by
Defendants to be $4 million richer. Put differently, can Rashada sue Defendants for
inducing him to interfere with his own business relationship? The parties agree that
this question turns largely on whether Florida courts have adopted, or would adopt,
§ 766A of the Restatement (Second) of Torts, which provides for a tortious
interference claim when performing one’s own contract.
See KMS Rest. Corp. v.
Wendy’s Int’l, Inc.
,
Although the Florida Supreme Court has previously embraced a related
provision of the Restatement,
Gossard v. Adia Services, Inc
.,
At least one Florida state appellate decision, McKinney-Green, Inc. v. Davis , 606 So.2d 393 (Fla. 1st DCA 1992), strongly suggests that Florida courts would decline to adopt § 766A—despite not referencing the provision explicitly. In that case, the court held that the plaintiff failed to state a cause of action for tortious interference where the plaintiff himself was induced by the defendant “to act in contravention of the agreement” with a non-party. Id. at 398. Those same facts are present here, and Rashada has not supplied any “persuasive evidence” that the Florida Supreme Court would reach a contrary conclusion. Bravo, 577 F.3d at 1325.
Rashada simply asserts that “[the] Court should predict that Florida courts
would adopt section 766A because other Florida courts have already applied
numerous Restatement sections addressing tortious interference,” ECF No. 50 at 34–
35 (collecting cases). Rashada analogizes his case to
Redies v. Nationwide Mut. Ins.
Co
.,
But when making an “educated guess” on matters of state law,
Smigiel v.
Aetna Cas. & Sur. Co.
,
The Court accordingly concludes that Rashada’s tortious inference claim,
Count VI, must be dismissed. Rashada’s claim for aiding and abetting tortious
interference, Count VII, falls with it.
See Lawrence
,
d. Vicarious Liability (Count VIII) Rashada’s last claim, Count VIII, is for vicarious liability against Velocity based on Hathcock’s conduct. ECF No. 37 at ¶ 120 (“Velocity Automotive is vicariously responsible for the acts, errors, and/or omissions of Hathcock as previously set forth herein.”). For the reasons set forth above, the Court will permit this claim to proceed to the extent it pertains to Counts I, II, III, and V, but will be dismissed to the extent it is premised on Counts IV, VI, and VII. See supra Sections III(a)–(c).
e. Sovereign Immunity Finally, there’s an 800-pound gorilla lurking in this case: sovereign immunity. Both Napier and Castro-Walker argue that the claims against them must be dismissed because they are entitled to immunity under Fla. Stat. § 768.28(9)(a), which protects “officer[s], employee[s], or agent[s] of the state or of any of its subdivisions” from tort suits stemming from “any act, event, or omission of action in the scope of her or his employment or function,” save for when individuals “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” ECF No. 45 at 3–11; ECF No. 48 at 29–33. Specifically, Napier claims he is an agent of two supposedly covered entities, UF and the University Athletic Association, see ECF No. 48 at 31, while Castro-Walker avers he was employed by the University Athletic Association at all relevant times, see ECF No. 45 at 5. Those arguments will have to wait for another day.
Under Florida law, “[s]overeign immunity is an affirmative defense that is not
properly asserted in a motion to dismiss unless ‘the complaint itself conclusively
establishes its applicability.’”
City of Tampa v. Fredrick
,
IV. Conclusion
Defendants’ Motions to Dismiss, ECF Nos. 45, 46, 47, and 48, are GRANTED in part and DENIED in part as follows:
1. Counts IV, VI, and VII are DISMISSED without prejudice. Count VIII is DISMISSED without prejudice to the extent premised on Counts IV, VI, and VII. Rashada may file a second amended complaint within fourteen (14) days after the date of this Order.
2. Defendants’ Motions are DENIED in all other respects. A Rule 16 conference will be scheduled by separate order. ECF No. 15.
DONE AND ORDERED this 8th day of April, 2025.
M. Casey Rodgers M. CASEY RODGERS UNITED STATES DISTRICT JUDGE Fla. Aug. 15, 2014) (“‘[I]n the federal system, . . . motions for a more definite statement are not favored’” and “should rarely be granted.” (internal citation omitted)).
Notes
[1] Hathcock also moved under Rule 12(e) for a more definite statement. Fed. R. Civ. P. 12(e).
[2] Velocity filed a reply brief to amend its original filing, ECF No. 64, to address an oversight in complying with the word count requirement for the brief. Because the initial reply was filed in violation of the Court’s Order on word count, see ECF No. 59, the undersigned has only considered the amended briefing, see ECF No. 65.
[3] Given the procedural posture of the pending motions, the Court accepts as true the factual
allegations in the Amended Complaint, drawing all inferences derived from those facts in the light
most favorable to Rashada.
See Randall v. Scott
,
[4] Amateurism served as the bedrock of college sports for the first 115 years of the NCAA’s
existence. For decades, the NCAA maintained that its commitment to amateurism distinguished
collegiate sports from professional leagues and increased their appeal to consumers. In pursuit of
its amateurism designs, the NCAA promulgated and enforced rules that, among other things,
significantly limited the compensation of student-athletes, pervasively regulated the recruitment
process, and restricted the number of athletic scholarships its member schools could award. And
“with surprising success, the NCAA . . . long shielded its [amateurism] rules from ordinary
antitrust scrutiny,”
Alston
, 594 U.S. at 107 (Kavanaugh, J., concurring), in part, due to “stray
comments,”
id.
at 93, made by the Supreme Court in one of its earliest NCAA-related cases,
see Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Oklahoma
,
[5] When NIL collectives took the world of collegiate sports by storm, the NCAA issued
guidance in May 2022 clarifying that collectives may not promise NIL agreements to prospective
recruits that were contingent on their enrollment with a particular school.
Tennessee v. Nat’l
Collegiate Athletic Ass’n
,
[6] Pursuant to Florida’s NIL statute at the time, “an athlete agent representing an intercollegiate athlete for purposes of securing compensation for the use of her or his name, image, or likeness” was required to “be licensed under part IX of chapter 468.” Fla. Stat. § 1006.74(2)(d) (2021) (amended 2023). Rashada’s agents are identified in the Amended Complaint as Jackson Zager and Thomas Thomsen.
[7] If Castro-Walker did hold such authority, it appears this conduct may have violated the Florida NIL statute then in effect: “A postsecondary educational institution; an entity whose purpose includes supporting or benefiting the institution or its athletic programs; or an officer,
[10] It is unclear from the face of the Amended Complaint to whom these statements were made (Rashada, his family, his agents, or otherwise).
[11] This is the page number of the PDF containing the November 2022 NIL contract, which is attached to Velocity’s motion to dismiss. See ECF No. 47. While ordinarily the Court “do[es] not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss,” there is an exception when “a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss.” Fin. Sec. Assurance, Inc. v. Stephens, Inc. , 500 F.3d 1276, 1284 (11th Cir. 2007). Although Rashada has not brought a claim for breach of contract, the Court finds that the November 2022 NIL contract provided by Velocity is still sufficiently germane to the claims asserted in the Amended Complaint. Plus, Rashada has not objected to its authenticity. As the remaining factors are otherwise met, the Court will consider the contract even though it was not attached to the Amended Complaint.
[12] The tweet from Rashada included in the Amended Complaint reflects that he publicly flipped his commitment from Miami to UF after Rojas signed the $13.85 million NIL deal. ECF No. 37 at ¶ 42.
[13] The Amended Complaint alleges that Napier tried to contact Hathcock before calling Rashada back but could not reach him because Hathcock was on a plane. ECF No. 37 at ¶ 59.
[14] The Court denied the motions to dismiss the original Complaint, ECF No. 1, as moot after Rashada filed his Amended Complaint, ECF No. 37. ECF No. 38.
[15] Outside of the Amended Complaint, Rashada also explicitly contends that Penney is an agent of Velocity, and Penney and Grosso are agents of Hathcock. ECF No. 50 at 17–19. Rashada indicates in the Amended Complaint that Grosso acted with authority to negotiate on Hathcock and Rojas’s behalf. ECF No. 37 at ¶ 37. Similarly, Penney is described as Velocity’s CEO and “Manager,” and as sharing responsibility for completing wire payments to Rashada. See id. at ¶¶ 31 n.2, 35, 54. Again, because analyzing these putative agency relationships calls for a fact-intensive inquiry that cannot be resolved in a principled manner at the pleading stage, see
[17] The Court’s decision on this issue today is exceedingly limited; it simply finds that the facts set out in the Amended Complaint are sufficient to raise the agency relationships alleged above a “speculative level.” Twombly , 550 U.S. at 555 (internal citations omitted). Whether discovery will substantiate or augment these supposed agency relationships is another matter.
[18] For the same reason, the Court will not dismiss the Amended Complaint as an improper shotgun pleading. Simply put, “this is not a situation where a failure to more precisely parcel out and identify the facts relevant to each claim materially increased the burden of understanding the factual allegations underlying each count.” Weiland v. Palm Beach Cnty. Sheriff’s Off. , 792 F.3d 1313, 1324 (11th Cir. 2015).
[19] A “false statement of material fact must generally go to a ‘past or existing fact,”’ and
“[f]orward-looking statements can constitute fraud only ‘if the plaintiff can demonstrate that the
person promising future action does so with no intention of performing or with a positive intention
not to perform.”’
See King v. Bencie
,
[20] That there may be some tension between these theories of liability is immaterial for
present purposes because “[l]itigants in federal court may pursue alternative theories of recovery,
regardless of their consistency.”
Brookhaven Landscape & Grading Co. v. J.F. Barton
Contracting Co.
,
[21] The fact that
McKinney-Green
is a decision from the First District Court of Appeal
carries particular importance because, as the “[Florida] appellate court that would have had
jurisdiction over an appeal in [the] case had it been filed in state court,”
Bravo v. United States
,
[22] Novel issues of state law are best resolved by the state’s supreme court.
McMahan v.
Toto,
[23] Hathcock’s embedded motion for a more definite statement pursuant to Federal Rule of
Civil Procedure 12(e) is denied, too. “A motion for more definite statement is appropriate where,
upon a reading of a plaintiff’s pleadings, it is virtually impossible to know which allegations of
fact are intended to support which claims for relief.”
Typhoon Media Corp. v. CVS Pharmacy,
Inc.
,