Tuesday, October 17, 2017

Analysis: Understanding the legal case building against the college basketball world

Allen Fieldhouse is shown in this Journal-World file photo.

Allen Fieldhouse is shown in this Journal-World file photo.


Monday was a day of confusion around the University of Kansas basketball program.

An Associated Press article reported that KU was one of 28 universities that acknowledged it had launched an “internal review” of its recruiting practices following the bombshell announcement last month that federal prosecutors had found evidence of bribery and other illegal schemes related to college basketball recruiting.

Then, later on Monday, a KU Athletics Department spokesman said KU hadn’t launched an internal review of its recruiting practices, but rather was just monitoring the national situation.

Then, yet even later on Monday, KU Athletic Director Sheahon Zenger said KU does — or at least soon will — have an internal review underway, but that is because the NCAA is mandating all Division I basketball programs to conduct such a review.

Review? No review? The better question, it seems, is why wouldn’t KU have an internal review underway?

Before you Rock Chalk chanters come after me with a bucket of rocks, let me explain. None of this is to presuppose that Kansas coaches are guilty of some of the allegations made against coaches at other schools.

Instead, the need for an internal review highlights the fact that KU still could receive significant damage even if none of its coaches or employees did anything illegal. To understand how, though, you need to understand the case federal prosecutors are attempting to make against the college basketball world.

Here’s a look at what college basketball fans may want to know about the legal case federal officials are building against college basketball.

What’s actually illegal here? You don’t have to dig very deep into the internet to find respected news outlets questioning what crime has been committed if college players are receiving money to attend a particular school. After all, the money allegedly isn’t coming from the schools or public coffers, but rather is coming from a private company. Yes, it certainly would be a violation of NCAA rules against paying student athletes, but that is an NCAA rule violation, not a crime.

“Last month, Adidas agreed to pay $160 million over 10 years for the University of Louisville to wear its apparel,” columnist Joe Nocera wrote for Bloomberg late last month. “That’s called a ‘deal.’ But if the company then pays a high school athlete to attend the school, that’s called a bribe?”

I’ve heard that rationale before, but the feds aren’t buying any of it. The federal complaint against Adidas executive James Gatto and others spells out the law violation clearly. It goes like this: 1. The Adidas representative or his intermediaries give money to a college basketball recruit. 2. The recruit agrees to go to the school of the Adidas rep’s choosing, which of course is a school that has a contract with Adidas. 3. The recruit signs a document called a “Student-Athlete Statement,” in order to get his scholarship money from the university.

Step 3 is where things get illegal, the feds say. The student-athlete is signing a document saying that he complies with the amateur status of the NCAA, meaning no one has paid him to play basketball at this school. But that is not true. He is lying to get tens of thousands of dollars in scholarship money. The Adidas rep and his agents are on the hook because they allegedly paid an individual to conduct an illegal act.

Notice in this scenario, a basketball coach hasn’t done anything. Granted, the NCAA is alleging that there are cases where basketball coaches act as intermediaries and help direct these payments. But, theoretically, a shoe company doesn’t need direction from a basketball coach to pay a kid to sign with the coach’s basketball program.

If such a situation exists where Adidas has paid a basketball player to go to Kansas — without the knowledge of the KU coaching staff — it seems like KU would want to know that sooner rather than later. There are plenty of questions an internal review could seek to answer about relationships involving past recruits and their families.

Isn’t this a victimless crime? Not hardly, the feds say. The complaint spells out that the victims in these crimes are the universities. If the universities have unknowingly allowed an ineligible student-athlete to play, the university could face significant penalties. Forfeited games. In KU’s case, that would mean bye-bye conference winning streak. Heaven forbid, if a violation dated back to 2008, the National Championship could be revoked. If banned from the postseason, there goes KU’s record streak of consecutive NCAA tournament appearances. Plus, there is another victim here. Remember, the purpose of college athletics is to provide an education to a student-athlete. KU has a limited number of student-athlete scholarships to give. If someone who is ineligible receives one of those scholarships, then that means someone who was eligible to receive one is being deprived of that opportunity. KU is a public institution. If it has been the victim of a crime, wouldn’t it want to know?

Should KU be worried? Unless you are a federal investigator, you don’t know the answer to that question. But when you read the complaint, there are details that would make a fan nervous. This recorded conversation from defendant Merl Code, another Adidas executive, stands out to me: “You guys are being introduced to ... how stuff happens with kids getting into particular schools, and so this is kind of one of those instances where we need to step up and help one of our flagship schools, you know, secure a five-star caliber kid." Flagship school. The school being discussed in this instance likely is the University of Louisville. But KU, prior to this scandal breaking, described itself in those very terms. KU is a flagship school for the Adidas brand. By itself, it doesn’t mean anything. But it doesn’t provide any comfort.

Speaking of uncomfortable, there is one other statement in the legal document that surely has some schools worried. It is easy to overlook because it is almost boilerplate language. It comes from the FBI’s special agent on the case: “Because this affidavit is being submitted for the limited purpose of establishing probable cause, it does not include all of the facts that I have learned during the course of the investigation.”


Bryce Landon 4 years ago

As far as I'm concerned, until a federal investigator comes out and identifies KU as being one of the schools where this garbage took place, there is nothing for us to worry about.

Jim Stauffer 4 years ago

Duh! Of course there is nothing to worry about until it hits the fan out loud. Many are still concerned because as he article says, we do not possess all the facts investigators have uncovered in their investigation. There could or could not be damning info boiling underneath the surface waiting to be presented.

Titus Canby 4 years ago

So the illegal act is that the student falsely signed a document saying that no one has paid him to play?

If that's the case, wouldn't the long term solution be to remove that language from the document?

Ben Kane 4 years ago

pay the players 50% of all merchandise sales with their likeness, problem solved. A lot of these kids come from bad situations where money is needed asap and basketball (or another sport) is their eventual ticket and it's hard to expect them to turn down money being offered to them in the short term.

Dirk Medema 4 years ago

The big from Chicago is the one that worries me. They could be mums with the toothless NCAA but not so much with the Feds.

Jeff Foster 4 years ago

So why can't the shoe companies, or whatever company, pay the kid's family? The kid doesn't technically get any money. I'd guess they'd loop that in given in most or some cases the kids are still under a parent's guardianship so they indirectly benefit. Still, lots of those companies employ really smart dumb people, you'd think they would have covered their own asses on this.

Patrick Bryant 3 years, 12 months ago

Most freshmen are 18, their own guardians. Don't think that 5 Star basketball recruits are the ones that judges are awarding their parents guardianship.

Dale Rogers 4 years ago

Let me think this through. North Carolina puts athletes through fake classes but skates because the NCAA says the non-classes were open to everyone. But, if a university unknowingly played a player who took money without the knowledge of the school or any of its personnel, then that school could be severely punished by the NCAA. Right? Maybe those schools should change their name to University of North Carolina.

Humpy Helsel 4 years ago

Follow the money. So what KU players (OAD more than likely) who have gone on, Embiid, Wiggins, Josh Jackson, and have signed contracts with Adidas right after completing the "so called" one year of college? Does anyone know? Not that it means guilt, but it might look suspicions in the context of what is going on right now.

Dang, Chad. I read your story about 2am this morning and got back to sleep around 5am. Not to kill the messenger, but it was a bummer to read it. Not that I disagree with you. All seems reasonable for consideration.

Spencer Goff 4 years ago

Andrew Wiggins = Adidas Joel Embiid = Adidas Josh Jackson = Under Armour

Not a definitive list, but not looking good so far....

The sad part is, everybody knows this has been happening this way for over a decade. They think it's Calipari or Coach K's "great recruiting skills" that are pulling these kids in. No, it's the shoe companies funneling them where they want them. If they stop this investigation with only Adidas I will feel cheated. Bring them all down.

Tim Bingaman 3 years, 12 months ago

Adidas has the best looking and most comfortable shoes on the market. Check out their stock price.... up 200% in 2 years while Nike is down 30% and UA down 85%... So not being naive here, fellas, but Adidas is where it's at right now. Plus you think some 18 year old with a new set of agents is going to stay loyal to a company that gave his mom 20k when there's a lot more on the line... I don't see the translation into the NBA... Let's hope the Hawks were clean...

Spencer Goff 4 years ago

Although having just looked at most of Duke's OAD, it should be noted, almost all of theirs signed with Nike. And we all know Coach K is super clean, therefore, we should be fine....

Joe Ross 4 years ago

The following makes no sense. Something must have been omitted:

"Isn’t this a victimless crime? Not hardly, the feds say. The complaint spells out that the victims in these crimes are the universities. If the universities have unknowingly allowed an ineligible student-athlete to play, the university could face significant penalties. Forfeited games. In KU’s case, that would mean bye-bye conference winning streak."

Notice that Lawhorn begins this paragraph talking about the perspective of the FBI when he says, "...the feds say". Then a handful of sentences later, he's talking about forfeited games and the like, which the feds don't have jurisdiction to adjudicate. Whether games are vacated or not is the jurisdiction of the NCAA. NOT the feds. Notice how Lawhorn, in sentence two of the excerpt, says the (federal) complaint establishes universities as victims, and describes the victimization in terms of games that can be stricken from the win column, clearly establishing a DIRECT CONNECTION between the two.

The feds can find someone guilty of a crime. They CAN NOT determine who the winner is of an NCAA college basketball game.

LJ Gee 4 years ago

I read it like this: There has to be a victim for their to be a crime, in this case. There has to be measurable harm for there to be a victim. Feds are claiming two victims - the students who dont get scholarships bc ineligible players knowingly falsified legal documents (i.e. claiming amateur status) and the universities who could be forced to forfeit games and potentially lose out on the money that comes with postseason play. It doesnt matter that the FBI isnt the one who doles out that punishment to universities. All that matters is that there is potential harm that can come to the universities due to ineligible players lying about amateur status. Its definitely still odd but it makes sense to me anyway. Whether the FBI has anything to do with NCAA is irrelevant. They recognize that these schools are legally bound by their relationship with the NCAA and the rules they've agreed to operate under and that within that system, they can be victimized by players claiming amateur status falsely. Actually its pretty interesting bc the FBI is calling the Universities victims where the NCAA would usually punish them. I really hope this doesnt land on our doorstep but I gotta say, Im pretty interested to see how this plays out and what affect it has on the NCAA

Joe Ross 3 years, 12 months ago

Astute, insightful comment. One that I mostly agree with, in fact! (I love intelligent rebuttals.) But I do disagree with your perception that, in this particular response, whether the FBI has anything to do with the NCAA is irrelevant.

When the FBI says this is not a victimless crime, we need to clearly understand from them whether or not we are speaking apples to apples. That is to say whether someone has been CRIMINALLY victimized or whether, on the other hand, there are some unfortunate realities that flow from a course of action that might come indirectly from criminal activity. I realize this sounds like hair-splitting, but it rests on the point that any victimization must ultimately arise OUT OF THE PURVIEW OF THE FBI TO PROSECUTE. Most people, when victimized, have civil or criminal avenues they can pursue as a direct result of their victimization. Here, the FBI, contrary to what they're saying, can not claim that victims exist within their ability to prosecute! True enough, there ARE people and institutions that can be harmed indirectly, but these repercussions are not within the jurisdiction of the FBI. What this means is that in one sense these situations DO amount to victimless crimes, but in another they don't.

It's confusing. But true to the nature of this whole situation, that's where we are.

Humpy Helsel 3 years, 12 months ago

I think the NCAA is going to have to follow along right after the Justice Dept investigation and look whomever, wherever it turns up. Interestingly enough, the NCAA is going to get the North Carolina's ("I guess we are going to rule on the letter of the law and to hell with the spirit of it") deal thrown up all the time in their faces if schools are penalized because a kid/family cut a deal with a shoe company for however much, and the school truthfully had no knowledge of the arrangement. I get it this is how it is going to go down. If it does, every school hit with it will believe they were unfairly treated and their rivals will laugh out loud, and if not, they will at least laugh very quietly as they cross their fingers behind their back. How deep and how wide is this moat? Man, it could get pretty deep. If it gets ugly it could get ugly on a whole bunch of elite programs. Geez Louise.

Dale Rogers 3 years, 12 months ago

I have no fear that any of our coaches are dirty. However, who knows how many players, including ours, might have taken cash on the QT, unbeknownst to anyone on our staff? That could be big trouble.

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