Say what you want about Michael Avenatti, but the attorney and criminal defendant clearly isn’t deterred by the power and influence of those he targets.
President Donald Trump. Supreme Justice Brett Kavanaugh. Paris Hilton. R. Kelly. The National Football League.
You can now add Zion Williamson and Duke Basketball to the list.
Within a series of new tweets that accuse Nike officials of illegally conspiring to direct top elite basketball recruits to Nike-sponsored colleges, Avenatti charges that Nike paid Williamson’s mother, Sharonda Simpson, for “bogus consulting services.” Those purported services, the 48-year-old attorney insists, were part of an alleged “Nike bribe” to convince Williamson to play at Duke as a “one-and-done” in the 2018-19 season.
Avenatti further warns that the Duke basketball staff ought to ask their “close friends” at Nike to review the Nike vendor portal. He says they would uncover payments made to “Sharonda Sampson Consulting” over the last three years.
Nike’s relationship with Blue Devils athletics goes back a long time. In 1992, the world’s largest supplier of athletic footwear and the North Carolina-based university signed a sponsorship deal that has since been extended to 2027. Duke head basketball coach Mike Krzyzewski also has his own deal with Nike, which named its fitness center on Nike’s Oregon campus after him.
Reasons to doubt Avenatti
Avenatti is not a neutral narrator and he might not be a reliable narrator, either. His recounting of alleged facts should be viewed within the context of someone who possesses a clear agenda.
Avenatti’s willingness to accuse Williamson and other prominent players—including Deandre Dayton and Bol Bol—is motivated by his falling out with Nike. As detailed on SI, Avenatti is angry that Nike refused to pay him, an unnamed co-conspirator (who is believed to be attorney Mark Geragos) and an unnamed client (who is described as a California-based AAU coach whose annual $72,000 contract was not renewed by Nike and who is believed to be Gary Franklin Sr.), as much as $26.5 million in March. According to a criminal indictment, most of those millions of dollars would have been directed to Avenatti and his co-conspirator rather than to the client coach.
Avenatti is no doubt furious by Nike’s decision to alert the FBI of his demands. Those demands were allegedly accompanied by Avenatti’s threat to Nike attorneys that if Nike didn’t pay him, he would hold a press conference during the middle of March Madness. During this planned press conference, Avenatti intended to implicate Nike and damage its brand. In turn, he allegedly hoped the negative publicity and damning revelations would lower Nike’s stock price and direct federal prosecutors to charge Nike employees and contractors in the same way that they have charged Adidas employees and contractors.
It wasn’t Nike officials who were charged with crimes. Last month, Avenatti was charged with four federal extortion and conspiracy offenses. Prosecutors from the U.S. Attorney’s Office for the Southern District of New York contend that Avenatti’s alleged threats constituted extortion. Further, Avenatti’s alleged use of both an accomplice and interstate communications justified a conspiracy charge.
The evidence against Avenatti appears compelling. Phone conversations between Avenatti, the other attorney and Nike officials were, unbeknownst to Avenatti, recorded and transcribed. Although Avenatti will likely argue that his threats were merely strong-arm tactics sometimes employed by attorneys while negotiating with other attorneys, federal authorities contend that he overstepped the lines into extortion. If convicted on all four charges, Avenatti could be sentenced to prison for as long as 47 years.
Avenatti’s willingness to “name and accuse” young players and their family members—particularly in response to Avenatti being accused of crimes—should also give pause for concern. In court pleadings against Adidas officials and various persons in the college basketball industry, the Justice Department has refrained from naming players and family members (one exception is when family members agree to serve as cooperating witnesses, such as when Brian Bowen Sr. testified in the recent trial involving Adidas director of global marketing James Gatto, Adidas consultant and basketball organizer Merl Code and client recruiter Christian Dawkins). By excluding the players’ names, the Justice Department implicitly signals that the players are not the “bad guys.” They are caught up in the corrupt world of college basketball recruiting. Such a world stems from NCAA amateurism, where, as NCAA critics often point out, elite players are denied opportunities to profit from their labor, name, image and likeness while seemingly everyone around them—the NCAA, conferences, schools, coaches, staff, and media, broadcast and merchandise partners—can do so.
Avenatti’s approach directly links players and family members to illegal acts. He therefore doesn’t depict the players as victims of circumstance, nor does he seem to ask himself how he would have behaved if he were in the same situation. A skeptic might say Avenatti is throwing everything against the wall to portray himself as a whistleblower. If Avenatti is airing every grievance he can possibly manufacture in hopes that some of them stick, there would be reason to question the accuracy of each grievance.
Along those lines, it’s also not clear how Avenatti has obtained such damning information and related records. It’s known that he represents (or perhaps previously represented) a California-based AAU coach who is believed to be Franklin. Avenatti tweeted a link to a 41-page PDF file on Dropbox. The file contains purported records linking Franklin, Carlton DeBose (Nike’s director of elite youth basketball), Jamal James (a Nike employee) with three basketball players—Ayton, Bol and Brandon McCoy. The records presumably were shared by the AAU coach in California.
There are two potential weaknesses with these records as they relate to Williamson and Duke. First, none of the records concern Williamson, who played AAU ball for the Sumter Falcons in South Carolina. Williamson does not have an obvious connection to Franklin or to California AAU basketball. In contrast, Ayton, Bol and McCoy all played for Franklin’s AAU team, Cal Supreme Elite. Second, if the AAU coach in California partook in “bribes” to direct players to attend Nike-sponsored schools or to sign endorsement deals with Nike, then the coach himself is implicated in the same alleged crimes. The coach might thus not be a reliable or trustworthy person. Alternatively, he could be someone who is attempting to make himself seem useful in the event he eventually faces charges and wants to try to cut a favorable deal with prosecutors.
Avenatti’s past also raises questions about his credibility. For instance, doubts about Avenatti surfaced in connection to his representation of Julie Swetnick. During the Kavanaugh hearings last fall, Swetnick accused Kavanaugh of partaking in “gang-rape” activities while he was a student at Georgetown Prep in the 1980s. Swetnick’s claims could not be corroborated. Further, questions were raised about how Swetnick, who Kavanaugh and dozens of other students from Georgetown Prep and sister schools say they didn’t know, could have been familiar with Kavanaugh during his high school days. Senate Judiciary Chairman Chuck Grassley referred Avenatti and Swetnick for review by Justice Department officials of possible false testimony.
Reasons to believe Avenatti
For starters, Avenatti is in possession of bank records, invoices, text messages and other records linking Nike employees to specific recruits. While it’s theoretically possible that Avenatti doctored all of these documents, the odds of that being the case are extremely low.
Far more likely, Avenatti holds records that connect Nike to the same type of transgressions that led to the convictions of Gatto, Code and Dawkins. Each of those men were found to have defrauded schools. They had facilitated payments to recruits that, in turn, made those recruits ineligible under NCAA amateurism rules. When those recruits became college players, they received scholarships, aid and other types of financial property from colleges under false pretenses.
Avenatti’s records suggest that Nike employees and contractors partook in the same types of acts. The invoices, Avenatti claims, reflect falsified payments that were in reality bribes to direct players to attend certain colleges and become more favorably immersed in Nike’s company culture.
Second, Avenatti has publicly disclosed records that he could have held onto as bargaining chips in any plea deal discussions with prosecutors. If Avenatti is convicted on the extortion charges, he faces a real possibility of a prison sentence that would last several years. In an unrelated federal case in California, Avenatti has also been charged with bank and wire fraud charges and, if convicted, would potentially face years of prison.
If Avenatti intended to strike a deal with prosecutors to resolve the two criminal cases, his insights on specific player transactions and the purported basketball records he has obtained might have been valuable leverage: he would only agree to share them if he received a favorable deal in exchange. Instead, Avenatti is freely tweeting accusations and posting copies of records for anyone to see. This doesn’t necessarily make his accusations true. However, this type of behavior is consistent with someone who is releasing everything he has because he’s so certain in his innocence that he is sure that he will defeat the charges. Thus, Avenatti might reason that he doesn’t need any valuable materials for plea deal negotiations.
Third, none of the persons Avenatti accuses has publicly offered a denial or a rebuttal. DeBose, Williamson, Ayton, Bol and the others have all be silent. As a publicly-traded company with responsibilities to its shareholders, Nike too has not responded to the specifics of Avenatti’s claims. The company publicly explains that someone of Avenatti’s repute—a person who faces federal fraud and extortion charges—does not deserve a response. Further, Nike says that any company dialogue on Avenatti’s claims could “aid in his disgraceful attempts to distract from the athletes on the court at the height of the tournament." Instead, the company explains, it “will continue its cooperation with the government's investigation into grassroots basketball and the related extortion case.”
As to Duke, the school’s athletic director, Kevin White, says that the university will review Avenatti’s allegation as it would any potential NCAA compliance matter. Blue Devils coach Mike Krzyzewski has not yet responded to Avenatti’s claims about Williamson, though he did respond to Avenatti’s cryptic tweet on Mar. 27 in which Avenatti stated simply, “And Duke.” Avenatti’s tweet was in the context of him making accusatory claims about different recruits and basketball programs. The Duke tweet implied that Duke had also engaged in wrongdoing with Nike. In response, Krzyzewski told Yahoo Sports’s Pete Thamel “there’s nothing there.”
Williamson and the other accused players probably won’t respond
Williamson and the other players who Avenatti vilifies do not need to respond to him. Avenatti is a private citizen who has no subpoena power, just as he has no ability to compel a response. At this point in the college basketball recruiting controversy, Avenatti is a polarizing voice on Twitter who many people doubt. At that same time, Avenatti has potentially damaging information about certain players. Eventually, he might be able to compel those players to offer sworn testimony in furtherance of his criminal defense.
Williamson and the other players also possess both public relations and legal reasons to decline comment, at least for the time being. If they respond, they become connected to the controversy in a direct and permanent way. Plus, by commenting, the players might unwittingly amplify Avenatti’s influence over them since he would know that they view him as a threat. A response would also be highly newsworthy and ensure that Avenatti’s claims run in another news cycle. Avenatti would possibly also tweet rebuttals to each player’s denials and maybe post new documents on Dropbox, and thus ensure the controversy worsens and lingers on.
Williamson, in particular, has no incentive to respond to Avenatti. Of the bank and related records that Avenatti has thus far posted on Dropbox, none implicates Williamson. The only accusation against Williamson is in the form of Avenatti’s uncorroborated tweets about him and his mother. Of course, all of that could change if Avenatti posts supporting documents on Dropbox about what he claims to know about Duke.
Williamson has a lot to lose and little to gain in a battle with Avenatti. He projects to be the number one pick in the 2019 NBA draft and could become the most influential—and marketable—player to enter the NBA since St. Vincent–St. Mary senior LeBron James joined the Association in 2003. Famed sports marketing executive Sonny Vaccaro predicts that Williamson will be the beneficiary of the most competitive bidding war ever by sneaker companies who are vying for his endorsement. As he enters this crucial phase in his professional development where he transitions from amateur to pro, Williamson doesn’t need to partake in a public squabble with a controversial lawyer he presumably doesn’t know.
Williamson and the other accused players must also be mindful of the consequences of publicly lying. If Avenatti’s claims about them are true, any of the players who denies the claim risks averse public relations consequences if the truth later become publicly known. Specifically, the player would seem like a liar, a distinction that wouldn’t help him in negotiations for endorsement deals. Sometime the best response is simply to ignore.
Likewise, a player is unlikely to sue Avenatti for defamation. On one hand, Avenatti falsely claiming that a player partook in a recruiting bribe would be defamatory. It would allege a specific and untrue fact and harm the player’s reputation. Even though a player would likely be classified as a public figure for purposes of defamation law—meaning he would have to show that Avenatti acted with actual malice (that is, Avenatti either knowingly published false and defaming information about the player or had reckless disregard for the information’s truth or falsity)—that hurdle would be obtainable if Avenatti intentionally lied.
On the other hand, it would be a costly mistake for a player to sue if they know Avenatti is telling the truth. The litigation would likely prove that Avenatti is telling the truth. Even if they believe that Avenatti is lying, a lawsuit could lead to pretrial discovery where Avenatti would seek to depose the players and family members under oath and require them to turn over various records. That process would have little upside for the players.
Of similar concern, players need to be mindful that a public denial—particularly if it calls Avenatti a liar—could empower Avenatti to sue the player (or his family member) for defamation. The same litigation risks mentioned above would apply.
Even though the players probably shouldn’t respond to Avenatti at this time, they could eventually be legally obligated to respond. This might occur should Avenatti’s defense against criminal charges require sworn statements from the players. The players could thus become witnesses in Avenatti’s extortion case.
Forecasting likely courses of action for Duke and the NCAA
White, Duke’s athletic director, says his school will treat the accusation against Williamson and Williamson’s mother, Sharonda Simpson, as a potential NCAA compliance matter. Like other NCAA member schools, Duke has an internal system in place to review compliance matters. Duke administrators know that if the university fails to make reasonable efforts to uncover wrongdoing and if Duke fails to self-report such wrongdoing to the NCAA, the NCAA will not be pleased. The NCSA more likely to punish a school, and more likely to punish a school in meaningful ways, such as by stripping scholarships or imposing a post-season ban, if a school passively searches for potential compliance violations.
Duke’s ability to investigate is limited by the fact that Williamson is leaving the school for the NBA. From Williamson’s perspective, his compliance with NCAA amateurism is irrelevant at this point. He will never again be a college player. While universities can attempt to require cooperation of students by threatening honor code sanctions and other academic measures, it’s unlikely that Williamson would be too worried. If Williamson decides to return to college part-time while playing in the NBA, or after his NBA career ends, it will be on his own terms. It’s safe to say that no shortage of colleges would welcome his enrollment.
Besides, Duke also has little incentive to aggravate Williamson or his family. If Williamson lives up to expectations, he will be a generational talent in the NBA. He could potentially donate enormous amounts of money to Duke. Likewise, Williamson could help (in NCAA-compliant ways) Duke in the Blue Devils’ recruitment of the next great talents.
As to the NCAA, it has taken a “wait-and-see” approach with schools implicated in the sneaker scandals. It does not want to get ahead of the legal process. Don’t expect the NCAA to suddenly investigate Duke because Avenatti is publishing accusatory tweets and posting documents on Dropbox.
Further, the NCAA’s ability to investigate Nike’s alleged hiring of Sharonda Simpson is complicated by the fact that Nike is a private company with no obligation to cooperate and Duke, to the extent it was involved in the alleged contract, is a private university. Not only does that mean Duke is not subject to public records requests and state-imposed document retention policies, but unlike public universities, which are often required by state law to engage in competitive bidding for consulting services over a certain dollar threshold, Duke is only governed by its own internal rules (which do require competitive bidding in certain instances). The paper trail with any hiring of Simpson might not be extensive.
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.