Wednesday, October 3, 2018
Although he is not on trial, Silvio De Sousa could be ruled ineligible to play basketball for KU based on the outcome of a federal trial underway in New York, NCAA experts told the Journal-World.
Less certain is whether the University of Kansas may have to forfeit some of last year’s wins and erase its Final Four appearance and conference championship from the record books.
Former NCAA officials and an attorney on Wednesday told the Journal-World that KU may have a defense against NCAA sanctions if it can prove that athletic department officials were unaware that money was paid to get De Sousa to attend KU. But they also said there are ways KU could be punished even if the facts show university leaders weren’t directly aware of the alleged payment.
Much depends on the outcome of the federal fraud case that began this week and is expected to last through this month — or right before KU’s regular season begins on Nov. 6.
At that trial, Casey Donnelly, an attorney for former Adidas executive Jim Gatto, on Tuesday admitted that her client paid $20,000 to get Silvio De Sousa to attend the University of Kansas to play basketball.
William H. Brooks, an Alabama lawyer who has represented universities facing NCAA infractions, told the Journal-World on Wednesday the admission could make De Sousa ineligible to play for KU in the future, but may not result in sanctions for the university.
“As the information comes out, the first thing that comes to mind is that it could create immediate eligibility problems for the player, which is different than saying there has been an institutional violation,” he said. “It depends in part, in respect to these payments, not only the source of the funds but who’s directing the payment.”
Gatto, Adidas consultant Merl Code and aspiring basketball agent Christian Dawkins are facing conspiracy and fraud charges. All three men have pleaded not guilty.
The federal prosecutors consider schools like KU to be the victims because they were unaware of the payments to their players. Defense lawyers, though, placed the blame largely on the schools’ lust for basketball glory, saying blue-chip athletes were used to attract tens of millions of dollars in donations and revenues.
So far in the trial, no KU coaches have specifically been named, but Gatto’s attorney said he was acting on the wishes of coaches in general.
Also at question is whether De Sousa himself knew of the alleged payment, or if only De Sousa’s legal guardian knew of the payment. From a rules standpoint, the distinction is likely moot, officials said.
Cam Newton, the Heisman- and national championship-winning quarterback for Auburn University who is now the quarterback for the NFL’s Carolina Panthers, escaped any punishment after the NCAA ruled he was unaware of his father’s pay-to-play scheme.
But the case was a catalyst that changed NCAA rules, which were changed to include parents as agents, the Associated Press reported in 2012.
De Sousa will likely not be so lucky as Newton. Brooks said the current rule means a parent or guardian accepting money would also disqualify a player from eligibility.
“The effect would be the same on the player,” he said.
Brooks also said it’s possible the NCAA may be able to connect the dots and find the universities aren’t as innocent as the federal prosecutors think, but to do that would likely require an NCAA investigation to substantiate it.
He said there is a range of penalties that could apply when an ineligible player competes, but how the NCAA would decide those sanctions depends in part on whether the school knew the player was ineligible.
But if the university did not know, Brooks said he doesn’t know how the NCAA would move forward. It’s possible KU basketball could be facing the vacation of wins if De Sousa is ruled ineligible, but Brooks thinks the university would also have a case against that.
“I’d imagine the institution would argue there shouldn’t be any vacation of wins,” he said. “But whether or not wins should be vacated is hashed out between the institution and the committee on infractions, ultimately.”
If the NCAA chooses to take action after the trial, a university playing the victim may not be a good enough defense from the NCAA imposing other sanctions, said Josephine Potuto, a University of Nebraska College of Law professor and former chair of the NCAA committee on infractions.
She said she did not know any of the details of KU’s situation, but spoke about how the situation could affect a university generally.
If a university played a student-athlete who received money from outside sources without the university’s knowledge, the NCAA could look into the university’s methods of tracking such information. If the university did everything it could to make sure such things did not happen and was the victim of a “rogue booster,” then it may escape sanctions.
“If it has a good system in place, then it’s in pretty good shape,” she said.
But if the university's systems to monitor those issues are not up to snuff, the NCAA may charge the universities with lack of institutional control, a major NCAA violation, Potuto said.
“In that case, that university would have failed in its responsibility of institutional control, and it would be a major case with potential penalties, notwithstanding the fact that the university didn’t know what was going on,” Potuto said. “If in fact the evidence is the university didn’t know, you then move over to whether the reason why it didn’t know was because it didn’t have a fully engaged compliance oversight system to avoid violations.”
Another wrinkle in the situation is that any ruling on KU would be one of the first to be made since the Rice Commission completed its work to strengthen enforcement rules in college basketball. One of the rule changes may allow the NCAA to take quicker action against De Sousa or KU than it would have previously.
The commission chaired by former Secretary of State Condoleezza Rice modified the rules for the NCAA’s enforcement staff, allowing the NCAA investigations staff to use information that is established by a third party, such as a criminal trial.
“They don’t have to do it over again,” Brooks said. “That’s something that might ultimately come in play, which facts are actually established in the trial.”
Brooks said the defendants’ lawyers claiming to have paid players does not establish fact just yet.
Tom Yeager, retired commissioner for the Colonial Athletic Association who also served on the NCAA committee on infractions, told the Journal-World on Tuesday it is possible De Sousa would be ruled ineligible and KU could be facing code violations.
On Wednesday, Yeager said how the NCAA moves forward with the facts may depend on the results of the court case. The federal government and the NCAA could look at the same case and have different objectives, he said.
But how the NCAA will look at the situation is yet to be determined.
“The fans are probably very anxious about what it means, but it’s just got to play itself out,” Yeager said.