Category Archives: Crime and Punishment

Crime may not pay, but amateurism does.

This piece, on what I see more and more as the utter absurdity of the FBI attempting to criminalize the NCAA rule book, is so damned good.  Here’s the lengthy prelude:

Last September, the U.S. Department of Justice announced that federal charges had been brought against major figures in college basketball. A group of 10 assistant coaches, agents and sneaker executives were indicted with conspiracy to commit bribery, solicitation of bribes, mail fraud and wire fraud. The defendants are accused of paying—“bribing”—some of the nation’s most heralded high school basketball players, along with their families.

The purported bribes had a simple objective: persuade star recruits to attend a particular college and embrace the sneaker company sponsoring that college. A year or two later, those players would turn professional and pursue the National Basketball Association (NBA). At that time, the players would hire agents who had previously partaken in the conspiracy to bribe them. Through those agents, the players would sign multi-million dollar contracts with NBA teams and also lucrative endorsement deals with their alma mater’s sneaker company.

It was a multi-year, multi-step transaction in which everyone seemingly gained: the player and his family, who might be economically disadvantaged, received five or six-figure payments; the college matriculated a star player who would help the basketball program win games and, in turn, generate broadcasting, merchandise and ticket revenue; the agent earned valuable commissions as well as professional recognition; and the shoe company secured the endorsement of a young and marketable phenom who would help the company sell products.

NCAA Amateurism Rules as the Foundation for Criminal Charges

There’s a reason why many regard this sequence of mutually beneficial events as unseemly or even criminal. It’s the same reason why the sinister-sounding “bribe,” rather than the evenhanded “trade” or “exchange,” is the noun most typically used to describe payments to high school recruits. That reason: the National Collegiate Athletic Association, a.k.a. the NCAA.

The NCAA is a voluntary organization that features nearly 1,300 members, most of whom are colleges and college athletic conferences. Founded in the early 20th century to make college sports safer, the NCAA now claims to aid college athletes in balancing their “academic, social and athletics” experiences. To that end, the NCAA has promulgated numerous rules that fall under the umbrella of “amateurism.”

In its broadest conception, amateurism refers to the principle that college athletes ought to be clearly distinguished from professional athletes. College athletes are, after all, students, whose studies presumably take priority over sports. If sports agents and financial temptations distract students, they might lose their academic focus. They might also become less connected to their classmates and squander the traditional college experience.

There’s the romance and the foundation for the romance.  Now comes the economic consequence.

With building frustration over the inability of star college athletes to fully reap the value of their labor and identity, it is not surprising that a “black market” for paying recruits has materialized. But in reality, such payments are hardly a revelation—they have, much to the NCAA’s dismay, been taking place for decades. The NCAA simply has limited resources to police interactions with recruits.

Human nature, for the win.  The heart wants what the heart wants, and as long as there are sources of money and kids with valuable services to acquire, there’s only so much the NCAA can do about it.

Enter the FBI.  Enter the absurdity.

The government’s theory of crime stresses the harm caused when colleges enroll bribed athletes on scholarships. The government claims a stake in this harm given that it funds colleges through grants, loans, financial aid guarantees and other instruments. Colleges that enroll ineligible scholarship athletes could have used those same scholarships to recruit eligible athletes. Those colleges also become at risk of serious NCAA penalties. In that sense, the government is something of a partner to colleges in ensuring that college athletes play by the rules. Further, when bribes take place across state lines and use the Postal Service and wires, fraud charges are possible.

Attorneys for the indicted defendants dismiss this theory as implausible and disingenuous. First, they stress the absence of supporting case law—when has it ever been a crime to offer financial incentives to a high school student to attend a college? They also contend the Justice Department is attempting to criminalize NCAA amateurism rules. Further, the alleged victims—the colleges—may actually benefit: a star recruit joins a school and helps that school win games and generate assorted kinds of institutional value, be it revenue, increased student applications, enhanced alumni relations and greater alumni giving. To that end, as my late and esteemed colleague Cheryl Hanna once wrote in the Harvard Law Review, “the purpose of criminal law is to serve the greater public good.” A sensible read of the situation suggests that the Justice Department has its work cut out.

The supposed “wrongness” of payments to recruits should also be questioned. As acknowledged above, amateurism may provide a good deal for many college students. But for the superstars who generate considerable revenue and who attend college mainly to hone their athletic skills, the deal doesn’t appear so good. This is particularly apparent when viewed in conjunction with eligibility requirements for the NBA and the National Football League (NFL). The NBA and NFL require that players wait one and three years, respectively, after high school before they are eligible. While young basketball stars can bypass college to sign contracts in other (albeit inferior) professional leagues, football players are essentially stuck. There is no substitute for Division I college football for college-age players.

If these athletes’ special talent were instead in music or acting, there would be no “age restriction” to turning pro. If they excelled at different sports, like hockey, golf, tennis, or baseball, they could turn pro right out of high school, if not sooner. The reality is they thrived in the two sports where the college game is a de facto minor league for the pro leagues.

The only reason this is a problem is because the schools, through their voluntary association known to us as the NCAA, have created the structure that has allowed it to fester.  The FBI’s presence doesn’t change that.

So, yes, that’s absurd, but you know what may be even more absurd?  Expecting the same actors to reform the structure in a way that doesn’t benefit them.  You want an example?  Okay, I’ve got one for you.

The Big East knows it doesn’t have the leverage to force the NBA to do something straight-up about its one-and-done rule, so it’s come up with a suggestion for a power play over the group with whom it does have leverage.

The Big East’s plan calls for the elimination of the NBA’s one-and-done rule, which prohibits its teams from drafting players until they are at least 19 or a year removed from high school.

Two-or-none would be an NCAA policy requiring basketball players who decide to go to college to commit for at least two seasons. Meanwhile, high school players who declare for the NBA draft would forfeit future college eligibility.

Tough luck, then, if you’re a high-schooler who submits his name to the NBA and doesn’t get drafted.  There’s no logic to that, other than to force kids who, remember, can’t consult with advisers and retain college eligibility, to stay in school for two years.

Also, keep in mind there’s no legal way the schools can enforce such an arrangement on their own.  A player leaves after his first year of school for the NBA and what’s the school gonna do about that?  In other words, the only way this proposal works is for the NBA to agree to abide by it as well.  Thus, the Big East’s reform amounts to nothing more than an agreement between the schools and the NBA to collude actively to prevent student-athletes from being paid for their skills for a longer period than is already the case now.  If you can explain to me how that benefits the student-athlete or how it curtails the black market the schools have created, I’d love to hear it.

Oh, and don’t miss that the Big East also thinks it would be a swell idea for the NCAA to regulate agents.  Oy.  It’s hard to tell whether these people are bigger idiots or assholes.  One thing’s for sure — they’ll never miss an opportunity to look out for themselves.  Remember that, FBI.

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Filed under Crime and Punishment, It's Just Bidness, The NCAA

Black market blues

The more I read about the FBI investigation of college basketball, the less convincing it seems.  And I wasn’t very convinced when the news first dropped.

First of all, the heart of the matter is this:  the feds are attempting to criminalize NCAA rules violations.

The charges at the core of these cases are based on an unusual legal theory that casts universities — who stood to benefit from recruits playing for wildly profitable basketball teams — as victims of fraud. What prosecutors call bribes, legal experts note, would be considered signing bonuses and referral fees in other industries. The payments are illicit only because the NCAA prohibits amateur athletes from making money from their talents and bars coaches from facilitating, and profiting from, meetings between agents and athletes.

“If you take away the NCAA rules, there’s no criminal case here,” said Randall Eliason, a former federal prosecutor and law professor at George Washington University. “There are some legitimate questions about whether this was a wise use of resources.”

There are more questions than that, it seems to me.  But that’s a good place to start.

Perhaps a good place to finish is by asking who’s been hurt.

The prosecution’s theory of the case has raised eyebrows in legal circles. Gatto, Code and Dawkins defrauded Louisville and Miami, prosecutors argue, by conspiring to pay families of top recruits to ensure they attended the schools, despite knowing this would break NCAA rules. Their scheme “created a risk of tangible economic harm,” the indictment states, because if these payments came to light, the NCAA could have penalized Louisville and Miami, potentially depriving the schools of revenue disbursements from the lucrative men’s basketball tournament.

Perhaps the most notable criticism of this theory has come from Eliason, former assistant U.S. attorney in D.C. who specialized in white collar crime and ran his district’s public corruption unit for two years.

The typical fraud case, Eliason explained in a phone interview, includes a few hallmarks: an intent to harm the victim, deception and a benefit at the victim’s expense.

“Those are all absent here. These guys didn’t want to harm the universities; they wanted to help them . . . and according to the prosecutors, they were working with top representatives of these universities’ basketball programs,” Eliason said. “How can you say the university was deceived?”

This is like the worm eating itself.

According to Haney, the lawyer for Dawkins, this theory is particularly dubious with regards to Louisville, which just became the first school in the history of the NCAA to be stripped of a men’s basketball title, over an earlier scandal in which a basketball assistant hired prostitutes to entertain teenage recruits.

“They were documented to be entertaining recruits with strippers and prostitutes, and now this same school has somehow been victimized by my client?” Haney said. “They got what they wanted: a five-star recruit. . . . They’ve made millions of dollars off of five-star recruits, and they’ve cheated to get them.”

It seems logically inconsistent to punish a criminal victim, but that’s just what the NCAA did with Louisville.  Now it’s the federal criminal system’s turn to have a crack.

The four assistant coaches arrested, accused of taking bribes to steer recruits to Dawkins, a business manager and specialty suitmaker, are scheduled for separate trials in the early 2019. Those cases involve a longer list of criminal counts — including conspiracy to commit bribery and solicitation of bribes — but NCAA rules again are central to the cases. The victims of these bribery schemes, the indictments state, are not the athletes these coaches agreed to influence but the schools, under the same legal theory that the coaches’ actions exposed Auburn, Oklahoma State, Arizona and Southern California to potential NCAA penalties.

“The criminality of all of these cases rest upon these NCAA rules,” Eliason said. “Maybe the NCAA needs to clean house . . . but should it really be the subject of this massive federal criminal investigation, when nobody was harmed?”

This is nuts.  Especially when you consider the bottom line reason this stuff goes on.

These figures may seem exorbitant for the services of a teenage basketball player, but according to one economist, they’re likely bargains. For his 2016 paper, “Paying NCAA Athletes,” David Berri, a professor at Southern Utah University, analyzed the finances of the 2014-15 Duke team that won the national championship and speculated about how much money the players would have earned if, like in the NBA, they shared about 50 percent of the team’s revenue. That Duke team generated $33.7 million, according to data the school filed with the Department of Education. If Duke had been forced to pay its players half of that, the average player would have made $1.4 million, Berri calculated.

“And that’s just average. The top players in college basketball are worth well over $2 million or $3 million per year,” Berri said. “If you’re paying $100,000 to get one of these players on campus, that’s a good deal.”

Creating a false economy and then watching things spiral out of control is peak NCAA.  Yeah, I’m sure they’ll do a great job cleaning house.

I’m looking forward to the coming bang-up job to clean up college football, too.

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King Midas in reverse

Could there be any development somehow both more appropriate and more ironic to the federal criminal investigation of college basketball recruiting than this?

The Wall Street Journal reported on Thursday morning that an FBI agent involved in the case in an undercover capacity is under criminal investigation for misappropriating money for drinking, gambling and eating. Ultimately, the Journal reported, it could compromise the FBI agent’s ability to serve as a witness for the prosecution.

And the “No shit, Sherlock” Award today goes to this genius.

“This is a bad development for the prosecution,” said a person with direct knowledge of the case. “The general public and sports fans were promised a bill of goods by the prosecutors. It’s pretty clear early on in this case, they’re not the white knights they said they were.”

‘Ya think?

This is what happens when you try to give criminal enforcement cover for a corrupt organization.  It rubs off.  And since we’re talking about the NCAA here, surely there’s more to come.

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Filed under Crime and Punishment, See You In Court, The NCAA

Gone Gatah

Long way down from this…

… to this.

I’d like to think it’s a metaphor for our times.

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Filed under Crime and Punishment, Gators, Gators...

Emmert defends Emmert.

If you didn’t think the NCAA president would lay low after the article in The Athletic asserting he had knowledge shortly after taking office that there was a sexual assault problem with Michigan State athletics, well, you’d be right.

A day after a report suggested the NCAA could have years ago looked into problems at Michigan State, President Mark Emmert said Saturday that sexual assault allegations against Spartans athletes in 2010 were “widely reported” and already being investigated by law enforcement and the school.

Emmert made the comments in an email to the NCAA Board of Governors and other university presidents. Spokeswoman Stacey Osburn provided Emmert’s email to The Associated Press.

If you’ve already gotten the hint that maybe this wasn’t the best defense, don’t let me convince you otherwise.

Emmert noted he met with the coalition’s Katherine Redmond and legal expert Wendy Murphy in November 2010. A letter sent by Emmert, dated Dec. 6 and addressed to Redmond and Parker, was also provided to AP. It detailed programs the NCAA was helping to implement on campuses to address sexual violence and student behavior, though it made no specific reference to Michigan State.

As for his role, Emmert told the NCAA board in his email: “The MSU cases were widely reported in the press and already being investigated by law enforcement and university officials. Kathy did not imply that these were unreported cases or that she was acting as a whistleblower to report unknown information to the letter’s recipients.”

You see the holes there, don’t you?  If not, let the author of The Athletic piece spell out the first.

Evidently, if you don’t spell things out completely for Mark Emmert, he’s at a loss about what you want.  Obviously the many programs the NCAA sponsored at the time that Emmert mentioned in his response have had a great impact at member institutions like Baylor and Michigan State.

The other hole?  “The MSU cases were widely reported in the press and already being investigated by law enforcement and university officials.”?  Really, that’s your defense for avoiding direct involvement?  Emmert wants to go there after tearing up the NCAA procedures manual to go at Penn State even as the Sandusky tragedy was being reported and investigated extensively?  If that was the standard at the time, why is the NCAA wading into what’s happened at Michigan State now?

This is the look of a fish flopping around on the shore, frantically trying to throw itself back into safe waters.  I can’t help but wonder what was going through Stacey Osburn’s mind when Emmert asked her to pass this on to the Associated Press.  If it was anything other than “geez, this isn’t going to end well”, she’s dumber than I thought.

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The enablers among us

I gather from the emails and comments I’ve already received that many of you have read the disheartening pieces at ESPN and The Athletic related to the unfurling scandal at Michigan State over sexual assault that appears to have permeated every level of sports administration from the coaching staffs at the school all the way to the upper reaches of the NCAA.  If you haven’t read them yet, by all means take the time to do so.

I suppose I should say at this point that it was almost a relief to find myself getting so angry as I read each.  It’s good to know that my jaded cynicism still has its limits.

That being said, there’s a huge difference here between being angry and being surprised.  And I am most assuredly not taken aback by the notion that powerful coaches of successful programs at best turned a blind eye and at worst… well,

Over the past three years, MSU has three times fought in court — unsuccessfully — to withhold names of athletes in campus police records. The school has also deleted so much information from some incident reports that they were nearly unreadable. In circumstances in which administrators have commissioned internal examinations to review how they have handled certain sexual violence complaints, officials have been selective in releasing information publicly. In one case, a university-hired outside investigator claimed to have not even generated a written report at the conclusion of his work. And attorneys who have represented accusers and the accused agree on this: University officials have not always been transparent, and often put the school’s reputation above the need to give fair treatment to those reporting sexual violence and to the alleged perpetrators.

Even MSU’s most-recognizable figures, football coach Mark Dantonio and basketball coach Tom Izzo, have had incidents involving their programs, Outside the Lines has found.

Since Dantonio’s tenure began in 2007, at least 16 MSU football players have been accused of sexual assault or violence against women, according to interviews and public records obtained by Outside the Lines. Even more, Dantonio was said to be involved in handling the discipline in at least one of the cases several years ago. As recently as June, Dantonio faced a crowd of reporters who were asking questions about four of his football players who had been accused of sexual assault. Six questions in, a reporter asked Dantonio how he had handled such allegations previously.

“This is new ground for us,” Dantonio answered. “We’ve been here 11 years — it has not happened previously.”

Please don’t get me wrong here.  There are monsters among us who deserve everything the criminal justice system can throw at them.  Larry Nassar is a monster.  Jerry Sandusky is a monster.

But monsters don’t operate, don’t successfully seek out and find their prey over a number of years without institutional support, whether that comes from coaches protecting their programs, their reputations and their seven-figure annual salaries, or from administrators with similar motivations.

On Thursday, Outside the Lines reported that MSU officials in 2014 did not notify federal officials that the university had dual Title IX and campus police investigations of Nassar under way even though federal investigators were on campus that year scrutinizing how MSU dealt with sexual assault allegations. The Outside the Lines report also found that MSU administrators still have not provided to federal officials all documents related to the Nassar allegations.

Don’t overlook this part, either.

The previously unreported cases that Outside the Lines discovered include three reports of physical violence and three reported sexual assaults by football players. Each was investigated by campus police.

As part of a 2014 reporting effort spanning 10 universities, ESPN requested copies of all police reports involving football and basketball players from campus and local police departments over six seasons. In Michigan State’s case, the university supplied the reports but marked out the players’ names — something East Lansing police did not do. ESPN ultimately sued MSU for the release of material, and Michigan courts ruled that the school had violated the state’s open records laws, awarded ESPN the unredacted records, and told MSU to pay ESPN’s attorneys’ fees. When ESPN submitted a subsequent records request last year, MSU took the unusual step of proactively suing ESPN to defend its withholding of the documents. A judge, in dismissing the lawsuit, wrote that a public body filing suit against a requestor could create a “chilling effect” and dissuade people from requesting records in the first place.

The tl;dr version of that:

That a school president could be a part of something like that and turn around and confidently assert that “there is no cover-up” on her way out the door while collecting a large buyout should tell you all you need to know about the institutional attitude of Michigan State.

Of course, as the second linked piece indicates, the buck didn’t stop at the desk of MSU’s president.  No, this one managed to climb higher.  Much higher.

NCAA president Mark Emmert was specifically alerted in November 2010 — six months after he was hired as the organization’s president — to 37 reports involving Michigan State athletes sexually assaulting women.

Kathy Redmond, the founder of the National Coalition Against Violent Athletes, provided The Athletic with a copy of the letter she sent to Emmert urging him to better protect women with new, stronger gender violence policy measures.

In the letter, which was sent after Redmond and Emmert met in person in Indianapolis to discuss the topic, she specifically highlighted concerns about Michigan State. Emmert was unavailable for comment to The Athletic on Friday afternoon.

That sound you hear is that of wagons circling.

If you look up the word naive in the dictionary, it’s hard to improve upon this as a definitional example.

“Mark Emmert was brand new, and he’d initially said, ‘One sexual assault is one too many,’ ” Redmond told The Athletic on Friday. “As soon as I heard that, I thought I might have an ally.”

How’d that work out?

“What I really got from the experience with Mark Emmert was, that governing body governs him,” Redmond said. “He met with me, which was great and I appreciated that. But the governing board has an awful lot of power. … It’s a strange setup. You do kind of get the fox guarding the hen house mentality. You do feel like the NCAA doesn’t like to do investigations because they like their relationships (with university officials and conferences). I think Mark Emmert came in with the right tone but quickly realized, ‘There’s not a lot I can do here.’ ”

I think we just have seen the epitaph for Emmert’s NCAA career.

The thing unanswered here — you may have already thought of it yourself — is that less than two years later, Emmert himself is ripping up the NCAA procedures manual in an effort to bring Penn State to heel.  But crickets on Michigan State.  Until now.

I’ve already asked what Emmert thinks he can accomplish, given that events on the ground have moved quickly in the wake of Nassar’s conviction, but that question takes on a different perspective when Redmond asks it.

“What are they going to look at, exactly?” Redmond said. “We know they haven’t complied with federal law. They haven’t been helpful with investigations, we know that. … Mark Emmert, when he met with me, said the NCAA can’t be ‘state actors.’ So, what is the policy that he’s going for? Or is he looking to create a different one?”

Still, Redmond said she fully supports the NCAA getting involved at Michigan State now and, in particular, probing the welfare and safety of female athletes treated by Nassar. She hopes the NCAA can help and listen to others, even if it hasn’t listened to her policy ideas or her warnings in the past.

“They shouldn’t ignore the whistleblowers, or dismiss them,” Redmond said. “And they’ve done that.”

Why would anyone expect better, knowing what we know now?  The only way things change is if outside force is applied.

It is time to recognize that collegiate sports at the highest level are a fundamentally corrupt exercise.  Money, power and authority combine to make a toxic brew.  The NCAA exists as an institution to enforce the flow of cash to those with power and authority and away from those without.  It is there, in other words, to have the collective backs of conference commissioners, school presidents and athletic directors on the business side of things.  That’s it.  There’s nothing else there, despite protestations to the contrary by the Emmerts and Remys of the world.  To pretend that these institutions are imbued with some nobility of purpose that drives their actions in the athletics sector is to be even more naive than Kathy Redmond was.

One more point of naivete:  if you still believe that events at Penn State, Baylor and Michigan State are isolated incidents, you need to disabuse yourself of that notion and quickly.  Don’t kid yourself.  Power corrupts and there are a lot of powerful people in D-1 college athletics.

I’m not saying that those who enable monsters are more evil than the monsters they enable.  More disgusting, though?  Yeah, I could go there.

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Filed under College Football, Crime and Punishment, The NCAA

Old dog, old tricks

Color me shocked, shocked by this:

The NCAA departed from custom — if not violated procedure — in announcing an investigation against Michigan State, several sources indicated to CBS Sports.

Primarily, the NCAA seemingly deviated from a general principle in speaking to the New York Times about the beginning of an investigation. On Tuesday, the Times quoted an NCAA statement that read, “The N.C.A.A. has sent a letter of inquiry to Michigan State University regarding potential N.C.A.A. rules violations related to the assaults Larry Nassar perpetrated against girls and young women, including some student-athletes at Michigan State. We will have no further comment at this time.”

“It’s like FBI announcing it’s going to investigate,” said Sue Carter, Michigan State’s former faculty athletic representative.

The NCAA typically does not announce letters of inquiry, the process by which a preliminary investigation begins into wrongdoing. In doing so at Michigan State, the NCAA seemingly violated its own bylaw 19.5.2 which pertains to public statements: “The enforcement staff shall not publicly confirm or deny the existence of an infractions case before complete resolution of the case …”

But how would we learn that Mark Emmert’s heart remains pure?

If anything, this move appears like an even more futile gesture than his sanctioning of Penn State was, because the authorities — excuse me, the relevant authorities — have already stepped up.

The same criticisms of NCAA overreach have surfaced with the Michigan State case. Critics have wondered why the NCAA is moving in — once again — to a criminal case that has been adjudicated.

Nassar has been sent away basically for life after pleading guilty to widespread sexual abuse of gymnasts. President Lou Anna Simon has resigned. Carter, a journalism professor, resigned her FAR position in response to Michigan State’s handling of the Nassar situation.

“I don’t think the NCAA is set up to investigate this type of thing,” Potuto said. “Look, Simon has resigned. The state legislature is after it. It isn’t as though the faculty hasn’t spoken up or the students haven’t spoken up …

“If this is indeed [going to be pursued], as member associations we need to talk about it, write some bylaws and have something to tag institutions with if the institution has responsibility.”

Eh, that’s too much like work.  Emmert wants to feel good now.  Who cares about the aftermath?

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