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  • Merl Code, Christian Dawkins and James Gatto got shorter sentences than prosecutors recommended for their roles in college basketball's seedy underbelly. What does it mean?
By Michael McCann
March 05, 2019

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U.S. District Judge Lewis Kaplan on Tuesday handed out prison sentences to three men—Adidas director of global marketing James Gatto, Adidas consultant and basketball organizer Merl Code and client recruiter (aka runner) Christian Dawkins—involved in the FBI’s investigation into college basketball recruiting corruption. The sentences were shorter than what was requested by prosecutors and (most likely) shorter than the NCAA would have preferred. The defendants will remain free on conditional release and will appeal their convictions in hopes of seeing reversals by appellate judges.

Tuesday’s sentencing stems from a verdict issued by a federal jury in Manhattan last October. After a three-week trial, the jury returned guilty verdicts on wire fraud and conspiracy charges.

Per Judge Kaplan’s sentencing, Gatto has been ordered to spend nine months in prison, while Dawkins and Code each received six-month sentences. Judge Kaplan had discretion on sentencing length, and he acknowledged that his sentences were shorter than what is often ordered for these types of convictions, which sometimes run several years. The sentences also fell short of Deputy U.S. Attorney Robert Khuzami’s recommendation of a minimum of one year for Gatto and a minimum of eight months each for Code and Dawkins. The judge explained his leniency on account of the defendants having already “learned their lesson” by being convicted of federal crimes and experiencing the accompanying hardship.

Attorneys for the defendants have confirmed they will appeal their convictions to the U.S. Court of Appeals for the Second Circuit. The appellate process will take months, and potentially years, to play out. Judge Kaplan ruled that defendants will not begin their sentences unless and until their appeals prove unsuccessful (or unless they get in trouble with the law in the meantime). This means that, provided the defendants abide by the law, they will not be reporting to prison any time soon. In fact, should they prevail on appeal, they’ll avoid prison time altogether, at least for these particular convictions.

Understanding the unusual theory that led jurors to reach a guilty verdict

The case against Gatto, Code and Dawkins for breaking NCAA amateurism rules was strong. Multiple sources of evidence and implicating testimony by cooperating witnesses, including former Adidas consultant and AAU coach T.J. Gassnola and Brian Bowen Sr., left no plausible doubt that the three defendants had schemed to funnel payments to high school basketball stars. These payments often effectively convinced the players to commit to college basketball programs sponsored by Adidas. These players also became more inclined to sign endorsement deals with Adidas once they turned pro. It was textbook “pay-to-play”.

The case against the defendants for breaking criminal law was far more tenuous. Prosecutors from the Southern District of New York had to persuade jurors that the payments constituted more than mere NCAA rule violations. This was a challenge, since these types of payments have happened with regularity in college basketball recruiting for years, yet until last October’s verdict, it had never been a crime to pay someone to attend a particular school. If prosecutors had only proved that the defendants violated NCAA rules or other contractual requirements, the jury would have returned not guilty verdicts.

To meet the high hurdle of proving a crime beyond a reasonable doubt, prosecutors persuaded jurors that the defendants’ misconduct had exhibited the required elements of wire fraud. This offense involves using interstate wire communications (such as phone calls, emails, texts and bank transactions that cross state lines) and relying on false or fraudulent pretenses in order to defraud a victim of its assets, money or property.

Prosecutors had little difficulty proving that the defendants used interstate wire communications and relied on false and fraudulent promises. The harder part was proving that there was a legally cognizable victim of the defendants’ actions. Who really suffers when high school basketball stars are paid to attend particular colleges, particularly when their counterparts in other parts of the world can be paid to play basketball when they’re as young as 13? The three defendants, the paid players, the players’ families and Adidas were not victims. Each had gained in some way from the pay-to-play scheme.

Prosecutors identified the schools that enrolled the paid players as the victims. The two relevant schools for these convictions were Louisville and Kansas, though several other programs, including NC State and Miami, are connected to the larger college basketball corruption probe.

At first glance, schools that enrolled elite, if potentially ineligible, recruits might not seem like victims. Think of what these schools gained: an excellent player who, if he had not been paid, might have chosen a rival school or a school sponsored by a different shoe company. The player helped his school’s basketball program win games, sell tickets and merchandise, attract television viewers, recruit new players and draw in prospective students who were more likely to attend a college with an elite sports program. The player also assisted the school’s foundation office’s efforts to solicit donations from alumni invested in the success of their alma mater on the court.

Prosecutors told a very different story: Schools were defrauded by players who claimed to be NCAA eligible but had forfeited their eligibility when they accepted illicit payments. If the player’s transgressions were caught by the NCAA, either while he was in college or after he turned pro, the school would be left with the fallout.

According to prosecutors, when Louisville enrolled five-star recruit Brian Bowen, Louisville became a victim of fraud because Bowen’s family had accepted payment for Bowen to choose the Cardinals, who are sponsored by Adidas—thus, Bowen enrolled in the university under false pretenses. This led to a violation of NCAA rules, and Louisville will eventually be penalized by the NCAA for those violations. Also, Louisville lost “property” in the sense that it awarded an athletic scholarship and financial aid package to a student who was technically ineligible to receive such property. The school could have directed those resources to an eligible recruit, albeit one not as skilled at basketball.

Jurors regarded the prosecutors’ theory of fraud as sufficiently persuasive and thus returned convictions, which in turn motivated defendants in related trials to cut deals with prosecutors. Former USC assistant coach Tony Bland, former Arizona assistant coach Emmanuel “Book” Richardson and former Oklahoma State assistant coach Lamont Evans have all pleaded guilty to crimes related to receiving or handling illicit payments. They await sentences. For their part, Code and Dawkins could face additional sentences. They are currently scheduled to stand trial on April 22 for similar charges related to alleged payments of assistant coaches employed by USC, Oklahoma State and Arizona. It’s possible they could reach plea deals before then. In addition, former NBA player and Auburn assistant coach Chuck Person is scheduled to stand trial on June 17 for related offenses.

Appealing the convictions and the NCAA’s vested stake

Going forward, the defendants and their attorneys will attempt to craft persuasive appeals. Appellate review isn’t about second-guessing jurors. Instead, an effective appeal is one that both identifies an alleged mistake by the trial judge in his or her administration of the trial and persuasively contends that the mistake was so meaningful that it led to an erroneous or unjustified verdict.

A potential area of appeal will be the instructions that Judge Kaplan provided jurors. Expect the defendants’ attorneys to assert that jurors were confused by the instructions and misapplied the law. Perhaps the jurors didn’t fully understand the need, under the relevant statute for wire fraud, for finding that the defendants’ falsehoods materially influenced their victims (Louisville and Kansas). If jurors thought that the schools would have enrolled five-star recruits irrespective of questions about those recruits’ eligibility, then it’s not certain that the actions of Gatto, Code and Dawkins actually harmed the schools.

In addition, it’s not clear that jurors understood the need for the government to establish that the defendants intended to defraud the schools. A common-sense reading of the situation is that while the defendants intended to gain from the pay-for-play scheme, there was no obvious desire on their part to harm the schools who enrolled the players.

Further, appellate judges might be skeptical of the core idea that paying recruits should lead to a criminal conviction. This is a novel interpretation of the law and one that some jurists will question.

All of that said, the odds of a successful appeal are low.

For starters, most appeals fail, as appellate courts are deferential in many aspects of their review of trial judges’ decision-making. For instance, although appellate courts typically apply “de novo” review (meaning starting anew/without deference) as to whether the jury instructions contained correct statements of law, they usually apply a more deferential “abuse of discretion” standard in assessing a trial judge’s decision to deny a requested jury instruction.

Second, Judge Kaplan is usually not reversed on appeal. According to data compiled by Westlaw’s judicial reversal report service, only 11% of Judge Kaplan’s criminal cases are vacated or remanded on appeal, while another 6% are affirmed in part and vacated in part. The 74-year-old judge has been on the federal bench for the last 25 years. He is seasoned and respected. While that dynamic doesn’t insulate Judge Kaplan from the scrutiny of appellate judges, it signals that he usually gets it right.

Third, a defendant is entitled to a fair trial, not a perfect trial. This basic point is sometimes lost in appeals. Identifying that a trial judge made a mistake does not automatically lead to a successful appeal. The mistake must be significant and impactful.

The NCAA will certainly be watching the appeals. It’s easier to enforce amateurism rules when people who pay athletes under the table are sent to prison, especially for long sentences. There is no greater deterrent than the possibility of incarceration.

Yet if Gatto, Code and Dawkins succeed on appeal, the NCAA’s sense of victory will recede. In addition, the NCAA could face major challenges in its amateurism rules after U.S. District Judge Claudia Wilken rules in the grant-in-aid litigation. A decision is expected this spring and could land at any time. Should Judge Wilken permit schools to offer basketball and football players more than the value of a full ride to college, amateurism could undergo yet another judicially-imposed evolution.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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