More than a year and a half after the FBI and federal prosecutors in New York announced the arrests of 10 men as part of an investigation into corruption in college basketball recruiting, the inquiry appears to be coming to a close this week having thus far inflicted minimal damage to the sport. At this point, just two scenarios remain that could elevate the probe into the game-changing scandal some predicted, and legal experts say neither appears likely, leaving the NCAA to decide what to do with the provocative but inconclusive testimony given at the trials.
The four assistant coaches arrested in September 2017 for taking bribes from agents and financial advisers all pleaded guilty, and none appear to have provided information implicating others at Auburn, Oklahoma State, Arizona and Southern California. No head coaches have been charged with crimes, and none have had to testify.
Former aspiring NBA agent Christian Dawkins and former Nike and Adidas official Merl Code were found guilty on bribery charges Wednesday, likely marking an end to the involvement of FBI officials and federal prosecutors in New York. One remaining trial, of luxury tailor Rashan Michel, will not happen, as a result of Michel’s decision this week to plead guilty to bribing former Auburn assistant Chuck Person.
Federal prosecutors still could approve a wave of new arrests, but given the length of time that has passed without a new arrest, legal experts said, the investigation likely has concluded. A spokesman for the U.S. attorney’s office in the Southern District of New York, which is overseeing these cases, declined to comment.
The NCAA also might be able to obtain the evidence the FBI collected through months of wiretapped phone calls of Dawkins and other dealmaking middlemen that did not publicly emerge through the two trials. During a news conference at the men’s Final Four, NCAA President Mark Emmert said his organization would try to convince judges and prosecutors in New York to share evidence that remains under seal.
“We’re going to continue to argue aggressively that they should provide that information so we can get to the facts, since there’s so much interest, not just on our part, but across the country in knowing what really transpired there,” Emmert said.
But according to legal experts, that possibility is remote. As a rule, the Justice Department doesn’t release investigative material not made public through trials or court proceedings to private citizens or private agencies.
“An investigation by the Justice Department is done for one purpose: to determine whether or not a crime is going to be charged. . . . They’re not in the business of providing information to people . . . just because there might be some ethical violation or rule violated,” said Nick Akerman, partner at Dorsey & Whitney law firm in New York and a former assistant U.S. Attorney in the Southern District of New York who also served on the Watergate prosecution team.
“I don’t think there’s a chance in hell that the NCAA will be able to get anything,” said Paul Rothstein, professor at Georgetown Law and an expert on rules of evidence in federal courts. “I suppose there is a small chance that a tiny amount of evidence that’s rather benign and doesn’t reflect anything of further use to the Department of Justice might be revealed.”
The NCAA has made an initial attempt to get a targeted amount of evidence: a set of exhibits, including wiretapped calls, that a judge barred defense attorneys from using during the October trial of Dawkins, Code and former Adidas official Jim Gatto. The decision will be up to the judge, but the prosecutors who tried the case will have significant influence, and they have already filed a letter in court informing the judge they oppose releasing any more evidence to the NCAA.
For the prosecutors, experts said, there’s little to gain in releasing more evidence after securing convictions, and always risk, albeit minimal, new evidence could create problems in appeals courts. (Gatto, Code and Dawkins are all appealing.)
The NCAA likely will have to make do with the evidence that has been made public, which could create an ample workload of enforcement investigations. Wiretapped calls and text messages across both trials could prompt investigations at Kansas, Arizona, Louisville, Auburn, LSU, Clemson, USC, North Carolina State and other schools.
But not much of that evidence qualifies as “smoking gun,” meaning NCAA investigators will have some work to do. A few cases seem to be open-and-shut — Louisville, in particular, in which the father of a recruit testified under oath to taking money from Adidas and a former Louisville assistant — but much of the rest of the evidence is circumstantial or hearsay.
The FBI and federal prosecutors already have learned the risk of interpreting literally what wannabe NBA agents and shoe company consultants say on wiretapped phone calls. When the charges were first announced, federal officials alleged they’d uncovered a scheme involving a Miami coach asking Adidas officials to pay the family of a top recruit, and arrested a Florida youth travel coach who was accused of trying to broker the deal. A few months later, however, federal prosecutors quietly dropped all charges against the coach, after learning he’d been falsely representing he had influence over prospect Nassir Little, who ultimately attended North Carolina.
“Even though it seems in the public that there’s fairly clear-cut violations here, I think it’s going to be challenging for the enforcement staff to establish that . . . payments were in fact made to the players or their parents,” said Tim Nevius, a former NCAA investigator turned sports lawyer who represents college athletes.
The NCAA will encounter the same difficult task faced by FBI agents, prosecutors and jurors over the past few months: determining when people such as Dawkins were discussing payments for top recruits that they actually had influence over, and when they were just trying to shake down shoe company officials, financial advisers and undercover FBI agents for their own benefit.
“We were definitely paying players, yes,” Dawkins said, when he took the stand to testify in his defense last week. “Everyone was paying players.”