How deeply will NCAA dig into KU’s recruiting? That question and others still loom after trial
photo by: Nick Krug
The trial is over but the questions aren’t for the University of Kansas and its involvement in a college basketball recruiting scandal that may well send some former KU partners to prison.
Former Adidas employee James Gatto, former Adidas consultant Merl Code and aspiring NBA agent Christian Dawkins all were convicted of various fraud charges by a federal jury in New York on Wednesday. Various media outlets have cited legal analysts who believe their sentences likely will range from two to four years in prison, assuming appeals are not successful.
KU officials were never on trial as part of the legal proceedings. But testimony and evidence at the trial have left several questions, including:
• Has the trial made it more likely that the NCAA will launch a major investigation into KU’s recruiting practices? The federal case produced everything from wiretapped phone conversations to sworn testimony that create questions about potential NCAA violations.
Matt Mitten, a law professor at Marquette University and executive director at the National Sports Law Institute at Marquette’s law school, said he thinks KU officials should expect the NCAA to do a deep dive into the school’s recruiting practices.
“I think it makes it more likely that they will,” Mitten said. “It is going to be hard for the NCAA enforcement (office) to not take a long, hard look when there has been criminal prosecutions.”
There has been some speculation that because KU was listed as a victim in the case that the NCAA will assume the basketball program played no role in the alleged rules violations. Indeed there was testimony that KU head coach Bill Self was never made aware of the pay-for-play scheme. Defense attorneys, though, argued that he did know, which Self has denied. Ultimately, though, the prosecutors’ case didn’t rely on proving that the coaches were ignorant of the scheme.
“But prosecutors convinced jurors that they should regard the basketball program and its coaching staff as possessing disparate interests from the rest of the university,” Michael McCann, an associate dean at the University of New Hampshire School of Law and a legal analyst for Sports Illustrated, wrote in a recent column for SI. “While the coach may gain from the enrollment of a superior player, the university provided that same player a full athletic scholarship and financial aid under a false pretense.”
Ultimately, Mitten thinks the NCAA enforcement staff is going to see the trial as an opportunity to conduct a detailed investigation.
“In some way this is quite a windfall for the NCAA enforcement staff,” Mitten said. “There is information that has come out at trial that might have been very difficult for the NCAA to get otherwise.”
• Did KU Assistant Coach Kurtis Townsend act improperly in recruiting matters? It was revealed in court that federal officials have a wiretapped phone conversation in which Townsend learns that prized recruit Zion Williamson allegedly is interested in being paid to attend KU. Townsend, in part, says: “I’ve got to just try to work and figure out a way because if that’s what it takes to get him here for 10 months, we’re going to have to do it some way.”
The court proceedings didn’t reveal a whole lot of context around those comments, but as it stands now, they do create a question of whether Townsend was willing to break a fundamental NCAA rule to get a recruit to KU. Even if such a payment wasn’t made — Williamson ended up at Duke — would the mere willingness of Townsend to break such a rule create concerns for KU administrators?
In statements released after Wednesday’s verdict, neither KU nor Self directly addressed Townsend’s comments. Both sets of statements said there were still issues they could not address because legal proceedings were not yet complete in the federal matter.
• Does Merl Code have more to say about KU? Code was the other person on the phone with Townsend during the Williamson conversation. Code was found guilty as part of this trial and faces prison time. But Code’s legal problems are not yet done. Code also is named as a defendant in one of the two remaining federal cases that are scheduled to go to trial in early 2019.
Multiple media outlets have reported that legal analysts think it is now much more likely that the defendants in the remaining trials will seek plea deals with federal prosecutors. If Code goes that route, does he have information about KU that he could trade to prosecutors for consideration of a lesser prison sentence?
McCann, the Sports Illustrated legal analyst, didn’t discuss KU and Code specifically in his recent article but did write that it is likely the remaining defendants in the two trials will be considering plea deals that involve their trading information for potentially lesser sentences.
“This is why Wednesday’s convictions should worry anyone in college basketball who has partaken in NCAA-violating payments to recruits and who are in any way connected to those still facing trial: their names and wrongdoing could soon become bargaining chips in plea deals,” he wrote.
• Is Silvio De Sousa going to create a problem for KU? KU already decided to hold De Sousa out of KU’s first exhibition game while the NCAA and KU review the sophomore’s eligibility. During the trial, Gassnola — who already has pleaded guilty to a fraud charge — testified he paid De Sousa’s guardian $2,500 so he could take some online classes to become academically eligible. But Gassnola also testified that it was his belief that De Sousa’s guardian received $60,000 from a University of Maryland booster designed to get De Sousa to attend that school.
Either payment potentially could mean that De Sousa was ineligible when he played for the Jayhawks last season. Pundits have speculated that KU isn’t in jeopardy of having wins, championships or last year’s Final Four appearance vacated because the NCAA had cleared De Sousa to play.
Josephine Potuto, a University of Nebraska College of Law professor and former chair of the NCAA committee on infractions, said De Sousa’s case brings up two possible rules violations: inducement of a recruit and violation of amateurism. If the $2,500 payment were the only issue De Sousa faced, there could be a path for him to be ruled eligible. Some players have received more and have been suspended from games and paid back the money as a punishment rather than being ruled ineligible.
But De Sousa also could be ruled ineligible based on the alleged $60,000 De Sousa’s guardian received from a booster for the University of Maryland. Potuto said it does not matter if the money was meant to send De Sousa to a different school from KU. Accepting the cash would make the player no longer an amateur and in violation of NCAA codes.
“Amateurism violations are not specific to a school. They bring their players ineligible regardless of what NCAA school it is,” she said, noting it must be proved that the payment was received for it to be a violation.
If De Sousa’s family received the alleged $60,000, he would not have been eligible to play for KU last season, but that does not necessarily mean KU will face retroactive penalties — like vacating the Final Four appearance — because of it, Potuto said.
“These schools are responsible for making decisions on eligibility, but you can only go on what information you have available at the time,” she said. “If you’ve done due diligence, that’s the most anyone can ask you. Due diligence doesn’t mean you are going to turn out a thousand times out of a thousand times to be right. It means you did the best with what you knew.”
Mitten largely agreed with that assessment but added that the NCAA not only considers what a school knew but what it reasonably should have been expected to know. That could be an important distinction as NCAA investigators potentially review the evidence that was presented at trial. The trial produced multiple text messages where KU coaches were communicating with Adidas officials about conversations Adidas representatives had with De Sousa and his guardian. Did KU disclose those conversations to NCAA officials during De Sousa’s eligibility review last year? Was it relevant information?
If the NCAA believes KU shared everything it knew about De Sousa during last year’s review process, retroactive penalties are less likely than if the NCAA believes a coach or KU officials held back relevant information.
“It all depends on who knew what and when,” Mitten said.
— Journal-World reporter Dylan Lysen contributed to this report.