- Here's what to expect from a legal perspective as the latest scandal to strike college sports unfolds.
By themselves, the criminal charges in the college basketball corruption cases constitute a groundbreaking development: for the first time, assistant coaches, investment advisors and sneaker executives face felony charges over alleged wrongdoing that, in the past, would have merely constituted NCAA violations. As detailed in my legal analysis on Tuesday, the defendants are accused of funneling money, through bribes and payoffs, as part of an unlawful conspiracy. The purpose of the conspiracy was simple enough: influence star recruits into matriculating into certain colleges and influence NBA prospects into hiring certain investment advisors. If convicted, each defendant faces decades in prison.
The fallout of these prosecutions could travel far and wide, and radically change the landscape of college sports.
Here are answers to 10 key questions:
Will head coaches be criminally charged?
Chances are, other persons in college basketball will face charges as part of the litigation. Watch for those persons to include coaches. Athletic directors and even university presidents might also have reason to worry.
The Justice Department and FBI’s interest in prosecuting college basketball corruption extends as far as findings of corruption take them. As federal authorities gather more evidence and knowledge, other individuals will likely face charges. In fact, authorities have probably mapped out a pyramid or row of names of significant figures in college basketball. Notes detailing possible ties to criminal acts likely accompany some of those names.
Think of college basketball, then, as a network of crime families with various syndicates and associations. Now think of FBI agents as learning of new entanglements as the investigation continues. As more names and linkages are unearthed, the full extent of the network becomes more known.
From the government’s perspective, not all of those names are equal. Obtaining a conviction of a defendant who had ultimate authority over corruptive acts would lead to a more impactful prosecution than one of a defendant who only carried out the corruption.
This is why the coach and athletic director at implicated universities ought to be worried. The same would be true if the university president played a direct role in athletic matters. If reliable evidence surfaces that high-ranking university officials directed, authorized or even acquiesced to assistant coaches partaking in bribes, those officials will almost certainly face charges. To the extent the government wishes to expose an industry rife with corruption and also educate Americans on how certain acts constitute crimes, taking down the coach or athletic director would produce a much more lasting impression than going after the assistant coach.
With that in mind, the Justice Department will likely engage in plea bargain discussions with attorneys for the assistant coaches and the other named defendants. In a plea deal, the defendant pleads guilty or pleads no contest to lesser charges. Also, prosecutors often recommend to the sentencing judge that he or she impose a relatively light punishment on a cooperating defendant.
But the Justice Department doesn’t give away plea deals for free. The defendants must possess something useful and also a willingness to share it.
One category of useful materials consists of implicating records. Those records include emails, text messages, direct messages on social media, recordings, written documents, financial statements and other correspondences that would help the Justice Department prove the guilt of other persons. The government would also be receptive to sworn statements by cooperating defendants. Along those lines, cooperating defendants are usually obligated to testify against other defendants. As a result, an assistant who reaches a plea deal may be required to testify against his coach.
The Justice Department not only gains direct evidence and knowledge from a cooperating defendant, but it can then use those acquisitions to obtain additional search warrants and subpoenas.
Again, think of the investigation as a network. The network has lines connecting various persons. As the investigation continues, more lines and names become known. It’s safe to say that an assistant coach has a direct line to a head coach; whether that line will lead to charges against the head coach is unknown at this point.
But wouldn’t an assistant coach feel disloyal to “rat” on his coach?
In the old world, where the NCAA employed the investigator, an assistant coach might have been unwilling to implicate his coach in any wrongdoing. This is, after all, the same coach hired that the assistant. The assistant might rather fall on his sword, take a suspension and save his coach.
That old world is gone.
The federal government now employs the investigator. And instead of facing a sanction that would temporarily disrupt a career, the assistant coach sees the prospect of spending many years in federal prison. Loyalty probably went out the window the moment the assistant coach learned that he had been charged with federal felonies. If it didn’t then, it did when the assistant coach met with an attorney who explained the gravity of the situation.
Will universities now become much more scrutinizing of their basketball coaches?
It’s something of a myth that college coaches operate on an island away from the mainland university. Athletic departments employ compliance officers—many of whom are attorneys—to ensure that teams, coaches and student-athletes adhere to NCAA rules. Some university structures also direct senior-vice president level administrators to oversee aspects of the athletics department. Such an approach ensures that the university president and provost are continuously informed as to athletic department happenings.
That said, it’s obvious that some college coaches “do their own thing.” It’s also obvious that some universities accept such coach autonomy as a necessary evil to obtain a winning and lucrative program. Further, a compliance officer is not always well positioned to confront a coach. If the coach is paid millions of dollars a year, he or she enjoys a far more secure employment status than the compliance officer or anyone else in the athletic department, for that matter. Try to imagine a 20-something-year-old compliance officer, fresh out of law school, attempting to reprimand Rick Pitino. Exactly.Pitino. Exactly.
This week’s criminal charges change this dynamic. It is now more incumbent than ever for university leaders to oversee athletics. Perhaps that means a more direct, rather than dotted, line between the office of the university general counsel and the athletic department. Or maybe it means certain employees in the athletics department report not to the coach or athletic director but instead to the general counsel or the office of the university president.
While administrative approaches will vary by university, college coaches—even the most prominent among them—are likely going to experience far more restriction and oversight over their decision-making than they have ever before experienced.
Given what you just wrote, should we expect college coaches to bolt for the pros?
Don’t be surprised if some college coaches pursue pro sports jobs with much more zeal than they had in the past. If they stick around college, many of them will see their positions become more integrated into the university. From the vantage point of some coaches, more integration will mean more “red tape.” Those coaches can expect more compliance oversight and a longer list of meetings, interactions and expenditures that must be documented.
Of course, some college coaches won’t leave their jobs until they retire. Some have been at their universities and become legends there. Some enjoy working with college students and educating them as part of the coaching experience. Some probably would not be good fits with pro players, who are older than college players, often wiser and in some cases paid much more than their coaches.
Could the student-athletes implicated in the corruption scandal face criminal charges?
Yes, student-athletes who knowingly accepted “bribes” as part of a conspiracy that led them to attend a particular college or sign with a particular investment advisor could face charges for bribery and conspiracy. They could also be charged with wire fraud depending upon the circumstances in which they arranged for payments. Also, assuming taxes weren’t paid on those payments, tax evasion would become another possible charge. These same charges could also be threatened against any family members who partook in such dealings. Therefore, student-athletes and their family members could face a similar plate of charges as the assistant coaches, Adidas officials and investment advisors who are now defendants.
This dynamic should be a source of concern to Brian Bowen, a five-star recruit to Louisville. Bowen appears to the unnamed player whom authorities contend received a $100,000 payment as a payoff to attend Louisville. The university, which is set to fire Pitino after a 10-day notice window stipulated in his contract expires, has suspended Bowen indefinitely.
In actuality, don’t expect Bowen or any other student-athlete or their family members to face charges—at least so long as they fully cooperate with the FBI. The Justice Department has given no signals that it plans on prosecuting these young athletes.
For one, these players and their family members are invaluable witnesses for the prosecution. The government wants them on its side as it prosecutes the defendants.
Also, these athletes could be viewed as victims, rather than perpetrators. Coaches, universities, investment advisors and sneaker executives have all exploited these athletes for their own personal and professional gain.
The Justice Department also knows that if Bowen were a baseball, hockey, soccer, golf or tennis star, he could have signed a contract with the top professional league right of high school (or earlier in some instances). And if he were a musician or an actor, he could have received wages and licensing money and then attended college. All of those transactions would have been “over the table” and reportable to the I.R.S. Instead, because of what some describe as “antiquated” amateurism rules, Bowen allegedly took money “under the table” and is now in a very difficult spot.
Should the NCAA decline to impose eligibility penalties on Bowen and other implicated student-athletes?
The NCAA finds itself in a strange place. For perhaps the first time in its 111-year history, the NCAA has no control over a college sports corruption scandal. It is also obligated to fully cooperate with the entity in control: the federal government.
On one hand, the NCAA can use findings by the federal government to sanction various offenders of amateurism rules. If the Justice Department’s accusations are accurate, those offenders include assistant coaches and their employing universities. Offenders also include student-athletes who received payments or whose families received payments “under the table.”
Instinctually, the NCAA might reason that it ought to punish those student-athletes. After all, violations occurred and the NCAA doesn’t want to be accused of overlooking punishments for some student-athletes while the NCAA punishes others. The NCAA could be depicted as hypocritical if it ignores the Justice Department’s allegations.
On the other hand, the NCAA’s entire system of amateurism is now under a microscope. Worse yet for the NCAA, those peering in are FBI agents and federal prosecutors.
The NCAA might conclude that a more sensible approach in these circumstances would be to permit Bowen and other players to play—at least until the federal cases play out. The NCAA could reason that it did not uncover the wrongdoing and will withhold judgment until the court system renders a verdict.
The NCAA might also want Bowen consumed with playing NCAA basketball, rather than sitting out indefinitely in no man’s land. If Bowen sits out, he would have more time to criticize the NCAA. Bowen might also be inclined to leave college basketball altogether and pursue pro basketball opportunities or in the G League. In either scenario, he would be less worried about the reputational consequences of taking aim at the NCAA and its amateurism rules.
Could impacted athletes sue their universities for their lost eligibility?
Yes, impacted players who lose NCAA eligibility could sue their universities. They would contend that university employees committed fraudulent acts, which in turn caused the players to lose eligibility and become implicated by a reputation-tarnishing scandal.
Universities are obligated to treat students in accordance with various contractual provisions, including provisions found in letters of admission, scholarship offers, codes of conduct and employee and student handbooks. If a university fails to adhere to such provisions, a student could sue the university for breach of contract. To that end, an impacted athlete might contend that he was owed certain procedural safeguards that are expressed in contracts for student-athletes.
This athlete might also assert that the university engaged in fraud and negligence by permitting an employee to commit crimes in ways that adversely impacted the athlete. Arguably, the university also invaded the privacy of the athlete by arranging for university employees or persons associated with the university to solicit influence from the athlete’s family members.
This athlete could then attempt to demonstrate damages by establishing how a lost year of basketball harms a player’s career. As another form of damages, player reputations can be badly denigrated by a corruption scandal. Indeed, any player associated with this scandal could later experience substantial difficulty in trying to land endorsement deals.
In response, a university-defendant would contend that such claims are speculative. It would also assert that any wrongdoing occurred while university employees acted outside of the scope of their employment. Universities also know that courts are often deferential to universities.
Could impacted athletes sue Adidas?
Yes, Adidas could be sued as well. A player might contend that Adidas, by employing persons who commit crimes that adversely impacted the player, has interfered with that player’s prospective business relations. To that end, the player would charge that he is no longer as marketable with other sneaker companies because his brand is now associated with Adidas.
Further, the player could assert that Adidas conspired with his university to damage his prospective business relations. Likewise, the player could insist that becoming associated with the scandal has placed him in a “false light” in that he is connected to an Adidas scandal when he is not in contract with Adidas.
Should schools worry about their association with Adidas?
Not necessarily. To be sure, many colleges and high schools are associated with Adidas. It stands to reason that schools with direct connections to James Gatto, who was charged earlier this week, have particular reason to worry.
That said, it’s unknown if Gatto was more a “rogue agent” than a loyal Adidas employee. If his alleged misconduct reflected his own agenda, the apparel company would be better positioned to distance itself from corruption case (while still being responsible for failing to supervise Gatto). If Adidas’ ties to corruption are more pervasive, however, then the apparel company—and schools connected to Adidas—could be in for some long days ahead.
Will college football be next?
It stands to reason that if bribes occurred in college basketball, the same may be true in college football. Both are big time, big money sports with deep ties to apparel companies and investment advisors.
Also, it’s certainly possible that the FBI’s investigation has uncovered, or could uncover, corruption in college football. Likewise, it’s possible the Justice Department could eventually seek criminal charges against persons in college football.
But common sense suggests bribery in football may not be as impactful as in basketball. One star college basketball player can radically change a team’s fortunes. It’s also not uncommon for a star recruit to contribute as a freshman.
In contrast, while one star college football player can make a difference to his team, he probably won’t have the same degree of impact as a star basketball player, at least not immediately in his college career. Sure, there are exceptions, particularly at running back and quarterback, but the incentive to bribe in football may not be as powerful.
Then again, a star college football player will need to stick around three years, since the NFL’s age eligibility rule requires that players be three years out of high school. A star college basketball player can be one and done and playing in the NBA by the time he would have been a college sophomore.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.