Analysis: Understanding what matters and what doesn’t in the NCAA’s case against KU

photo by: Nick Krug

The pregame men's basketball crowd at Allen Fieldhouse is shown in this file photo from Dec. 2, 2009.

Read the message boards or chat rooms and it has been apparent for a while that KU basketball fans were in for a rude awakening. The alarm began blaring on Monday when the NCAA document came in the mail.

That document — a Notice of Allegations, which is the NCAA’s equivalent of an indictment — claims the men’s basketball program was involved in some shady recruiting practices and could face some of the stiffest penalties the NCAA can levy. A loss of scholarships, a suspension of head coach Bill Self and a ban on postseason appearances are all in play.

In their response, it seems like KU officials understand what this case hinges on, but the sports radio and online chatter make it clear that many fans and some pundits don’t. KU fans have been building defenses for KU that probably won’t matter much in the end. The case hinges on whether Adidas employees — people like T.J. Gassnola, James Gatto and Merl Code, all convicted of federal fraud charges — are categorized as boosters of the university.

This is not unexpected. The Journal-World has been reporting since February that the case took a major turn when the NCAA ruled in a related case that Gassnola was a booster of KU. If he is a booster, the NCAA rule book seems to make it clear that KU is on the hook for a lot of violations. Forget the money he paid the family of recruits. He was making contact with recruits, seemingly with the knowledge of KU basketball coaches. That is a classic activity that a booster can’t do and an automatic activity that coaches are supposed to report as soon as they become aware of it.

It is important to note that KU hasn’t argued that boosters are allowed to make such contact. Instead, KU says it “emphatically rejects” the notion that Gassnola and other Adidas executives are boosters of the school.

We don’t know the details behind KU’s rejection of that notion. We won’t see KU’s formal response to the allegations for several months. For what it is worth, the Journal-World in February talked to two experts on NCAA rules. One expert, Josephine Potuto, a former chair of the NCAA infractions committee, said it was pretty clear to her that a representative of an apparel company could be a booster, if that person is doing something to steer a recruit to a particular school.

William H. Brooks, an Alabama lawyer who has represented universities facing NCAA infractions, said there may be a little bit of a gray area in whether someone who has a corporate connection to a university also can be a booster. KU’s hopes for the future seem to be residing in that gray area. How KU crafts its arguments over the next several months likely will be the next big development in this case.

But once you understand that the case hinges on whether Gassnola and others are boosters, you can start to see how much of what fans and some pundits are talking about really doesn’t matter. Here’s a look at some of those arguments:

The NCAA’s case is weak because Billy Preston never played in a regular season game for KU. As a reminder, Gassnola has admitted to paying Preston’s mother $90,000 to steer Preston to KU. The fact that KU held Preston out of regular season games, though, doesn’t matter to KU’s case. Exhibit No. 1 that it doesn’t matter: the University of Kansas.

After the 1988 National Championship, KU was banned from postseason play for one year. The reason: Boosters provided impermissible benefits to a student athlete who was thinking about transferring to KU. The student-athlete never transferred to KU. He was even less a member of the KU basketball team than Preston was. And KU still got a one-year postseason ban.

KU can’t get in trouble for Silvio De Sousa because he already sat out a season, and the NCAA has ruled he’s now eligible. As a reminder, Gassnola has admitted to paying the guardian of De Sousa $2,500 and arranged to pay more for De Sousa to attend KU. It is true that De Sousa has been ruled eligible by the NCAA. But this also doesn’t matter to KU’s case. To understand why, think of it in terms of a normal workplace. There is an employee and an employee’s boss. The employee does something wrong (in this case it was De Sousa’s guardian who did something wrong but that is a different argument for a different day.) The employee gets punished. Just because the employee’s punishment has been handed down, that doesn’t mean that the employee’s boss is now exempt from punishment. The athletic department is the boss in this analogy. Its boss — the NCAA — is now saying, either you knew of this transgression or should have known. We’re done dealing with the employee. Now we have turned our attention to you.

KU can’t get punished in this case because federal prosecutors said KU was a victim in the federal fraud case. Indeed, prosecutors did argue KU was a victim in the case. But that won’t matter when it comes to the NCAA proceedings. One of the odd twists in all of this is that Monday’s action by the NCAA kind of proves the point of federal prosecutors that KU is a victim. The actions of Gassnola and others have KU on a path to major penalties from the NCAA. KU is going to feel like a victim if its record streak of postseason appearances ends. But how can a victim also end up getting punished? It really isn’t that uncommon. Think of it like a store that is a victim of shoplifting. The shoplifter may get punished in a court of law. That, however, doesn’t mean the store’s department of security also isn’t going to get punished by the store’s management for not doing enough to prevent shoplifting. In this analogy, the NCAA is the store’s management. The athletic department is the store’s department of security.

KU and Self can’t be punished for the money Gassnola paid to Preston and De Sousa’s representatives because Gassnola has testified Self didn’t know about the money. It is true that Gassnola has testified that KU coaches didn’t know about the money that was paid to lure recruits to Kansas. But that doesn’t matter. The NCAA isn’t alleging that Self or coaches knew of those payments. Here is the part that is particularly hard for fans to understand. The money is nearly immaterial at this point. The NCAA doesn’t need to tie KU to knowing about illicit payments to make its case against the university. This is where the idea of Gassnola as a booster is so critical. All the NCAA has to prove is that KU was getting assistance from a booster to land recruits. NCAA rules generally prohibit boosters from helping schools get recruits. Impermissible assistance from a booster can be as simple as a booster talking up a school to a recruit.

It is not even clear that the school has to know that a booster was engaging in such activities in order to get in trouble from the NCAA. That may sound unfair, but it also probably won’t play much of a factor in this case. The NCAA is alleging that KU officials did know that they were getting help from boosters — although they didn’t know of the illicit payments. What type of help? The NCAA alleges that Self and assistant coach Kurtis Townsend encouraged Gassnola to call a representative of a recruit (believed to be De Sousa.) Boosters can’t do that, and coaches certainly can’t ask a booster to do that. The federal fraud trial earlier this year brought forward information about multiple instances where Self and Townsend had communication with Gassnola and other Adidas officials. In those conversations, KU coaches seemed to be trying to get information about what a recruit said or which direction he was leaning. As a fan, maybe you think that is no big deal. But the NCAA seems to think it is a big deal. It puts strict limits on how many people in a basketball program can be engaged in recruiting activities. It doesn’t want an outside entity like Adidas to become a third-party recruiter for programs. It certainly doesn’t want money changing hands, but this case seems to illustrate it doesn’t even want shoe companies working in other ways to steer kids to specific schools. You can say that is a disingenuous belief by the NCAA, but that too probably won’t matter much. The NCAA can point to the fact that booster assistance in recruiting has long been against the rules.

All of this shows why Kansas will be arguing that the NCAA has erred in determining that the Adidas officials are boosters. Otherwise, it is a very tough hill to climb to argue that boosters can have this much contact with recruits. This could be a landmark case for the future of NCAA regulation.

Based on its initial response, another strategy KU likely will employ is that the NCAA simply has some of its facts wrong. It will argue that the NCAA has misinterpreted the conversations of KU coaches and Adidas officials. In his official statement, Self said the NCAA’s narrative is “based on innuendo, half-truths, misimpressions, and mischaracterizations.” He said he and KU would present verifiable facts that will “expose the inaccuracies of the enforcement staff’s narrative.”

Exactly what facts KU officials have, and what arguments their attorneys will make, probably will be the biggest issues for a KU fan base to follow in decades.

More coverage: KU and the college basketball scandal

Sept. 23, 2019 — KU officials confirm they have received notice of NCAA violations, will ‘fiercely dispute’ charges

Sept. 20, 2019 — Chancellor: KU has not received rules violation allegations from NCAA

Sept. 10, 2019 — College basketball recruiting fixer with ties to KU sentenced to probation in corruption case

Sept. 9, 2019 — Judge denies NCAA request for unreleased evidence in college basketball corruption trial

June 20, 2019 — KU chancellor waiting for news on NCAA investigations like everyone else

June 16, 2019 — If KU Athletics receives allegations of recruiting violations from NCAA this summer, what happens next?

June 12, 2019 — NCAA set to send notice of major recruiting violations to schools; official confirms NCAA can’t get controversial Townsend wiretap

April 24, 2019 — Girod: KU has changed basketball procedures in wake of FBI case; ‘We have to make sure we do it right going forward’

April 8, 2019 — Former Adidas executive agrees to pay KU for his part in illegal pay-to-play scheme

April 5, 2019 — NCAA ‘aggressively’ pursuing evidence in college basketball corruption trial, NCAA president says

March 5, 2019 — Gatto, others in NCAA basketball scandal sentenced to months in prison

Feb. 27, 2019 — KU wants $1 million in restitution from convicted men in college basketball corruption trial

Feb. 27, 2019 — Report: NCAA seeking more FBI information in college basketball corruption scandal for its own investigation

Feb. 16, 2019 — To avoid sanctions, KU basketball may need to convince NCAA Gassnola is not a booster

Feb. 14, 2019 — Gatto, others in NCAA basketball scandal seek probation; they argue scheme was designed to help KU, other universities

Feb. 2, 2019 — NCAA’s De Sousa ruling raises new questions about whether KU coaches committed violations

Jan. 18, 2019 — KU claims it has $1.5 million in new Adidas money, but when asked to point to it on financial statements, it won’t

Dec. 14, 2018 — KU struggling to explain why it went into ‘stand-down’ mode in investigating basketball recruiting allegations

Dec. 5, 2018 — Report: NCAA won’t punish programs caught in Adidas fraud trial until after 2019 Final Four

Nov. 19, 2018 — New Adidas lawsuit emerges as KU reviews its options with apparel company; civil suit alleges KU coaches knew of payments

Nov. 16, 2018 — A month after KU coach caught on wiretapped phone call discussing recruit and money, chancellor has not talked to coach

Nov. 8, 2018 — Board of Regents member wants KU explanation on issues related to college basketball corruption case

Nov. 7, 2018 — Report: FBI gives NCAA clearance to begin investigating some basketball programs in corruption scandal

Nov. 1, 2018 — Wiretapped phone call of KU coach may become part of NCAA inquiry; AD confirms NCAA hasn’t started on De Sousa review

Oct. 30, 2018 — KU now refuses to share info with public on $1.5M in Adidas payments; last week it said lack of personnel was reason for delay

Oct. 24, 2018 — KU says it’s evaluating options on Adidas contract, doesn’t answer whether it will conduct independent investigation of recruiting practices

Oct. 24, 2018 — KU cites lack of personnel for delay in providing records related to unexplained $1.5M in Adidas payments

Oct. 19, 2018 — Devoted KU basketball fans stand by their team; psychologists not at all surprised

Oct. 18, 2018 — Chancellor won’t say whether he still has ‘complete confidence’ that KU follows recruiting rules

Oct. 17, 2018 — As college basketball corruption trial comes to a close, KU could be facing several NCAA code violations

Oct. 12, 2018 — As allegations mount, KU mum about Adidas ties and extra $1.5M it has received from the company

Oct. 3, 2018 — KU’s De Sousa could be ruled ineligible, NCAA rules experts say; chances of vacating Final Four appearance less clear

Oct. 1, 2018 — Girod, other KU leaders listed as potential witnesses in college basketball corruption trial

July 24, 2018 — KU releases federal subpoenas in college basketball investigation

July 11, 2018 — KU coach Bill Self, new AD Jeff Long discussed ongoing FBI investigation during interview process

July 10, 2018 — KU acknowledges having received federal subpoena in ongoing FBI investigation into college basketball

July 6, 2018 — Report: Feds seeking more information regarding KU forward Silvio De Sousa

April 27, 2018 — Reports: AAU director linked to NCAA bribery case, KU families pleads guilty

April 23, 2018 — KU didn’t produce written report of recent examination of athletic department; chancellor saw no need for external report

April 13, 2018 — Former prosecutor: KU not in clear yet, but one past case provides hope

April 13, 2018 — Chancellor sees no need for independent investigation of KU Athletics in wake of indictment

April 10, 2018 — Employee of apparel company illegally paid 2 KU basketball players’ guardians, federal indictment alleges

Feb. 23, 2018 — Kansas linked to college basketball scandal in Yahoo Sports report

Nov. 28, 2017 — Multimillion-dollar KU-Adidas deal remains unsigned as investigation into Adidas executive continues

Oct. 20, 2017 — KU provides more details of NCAA-mandated basketball review, enlists law firm to help

Oct. 17, 2017 — Analysis: Understanding the legal case building against the college basketball world

Oct. 16, 2017 — Zenger: KU will comply with NCAA requirement of all schools to review basketball program

Sept. 26, 2017 — NCAA basketball coaches, Adidas executive among 10 charged in bribe scheme


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