That kind of prosecution would have real impact. Think about it: The next time a high-dollar donor uses his influence to hijack a university and run it like a mafia town, when cash is laundry-funneled to blue-chip recruits in order to grab at prestige and a bigger share of $1 billion in NCAA tournament revenue, slap a RICO case on him. And on the chancellor and coach who tolerate academic frauds, and the athletic director who makes the back-scratching, multimillion-dollar financial deal with a sneaker company. That would fix the NCAA with one fell swoop of indictments.
But what’s happening in a Manhattan courtroom at the moment is a weak inversion of justice. Federal prosecutors for the Southern District of New York are aiming low, not high. They are arguing a nonsensical case that claims major colleges are somehow the defrauded victims of the elaborate black-market recruiting economy that the schools themselves created. They might as well say that Carlo Gambino was the victim of his bag men.
Invoking organized crime is not a stretch here. U.S. District Judge Lewis A. Kaplan did it the other day during the trial of Adidas executives Jim Gatto and Merl Code and aspiring agent Christian Dawkins for wire fraud. Kaplan, quite rightly, forbade defense attorneys from arguing their clients should be acquitted because “everyone is doing it.” Such arguments don’t hold up in cases of insider trading or mafia cases, either, Kaplan pointed out. “The guys in the Five Families are just doing their jobs, too, I suppose,” he said.
With that statement, Kaplan questioned the underlying premise of the entire trial.
At the heart of the matter is this: If coaches and school officials were aware that sneaker execs and other middlemen were making illicit payments to secure five-star recruits on their behalf, then they are hardly the dupes or injured parties in a fraud. They are participants in one.
This is a fundamental flaw in the Southern District’s case: It has failed utterly to identify the real perpetrators or victims.
A year ago, the feds boasted that this investigation, which included arrests of 10 minor figures, would roll up the corruption in college athletics. “We have your playbook,” FBI assistant director William Sweeney Jr. boasted to all those engaging in corrupt practices.
But in fact, they don’t have the playbook at all. That, or they are hopelessly naive.
If prosecutors want to bring a case in which they know conviction is difficult or uncertain, but feel it’s important to fire a warning shot across the bow of wrongdoers, that’s fine. But make it count. Make it important. And take proper aim. So far, the proceedings are a small, petty show trial that seem unlikely to deter the truly guilty power brokers from proceeding with business as usual once the gavel comes down.
Instead of headline-hunting, prosecutors could have charted the real structure of illegal activity. Just as they do with any other racket, they would build a triangle. They’d start low and move upward to indictments of the kingpins. That hasn’t happened here. On Monday, T.J. Gassnola, the former Adidas bagman, continued his testimony, in which he has done a fine job of undercutting the prosecutors’ case that schools are victims.
Defense attorneys presented text messages between Gassnola and Kansas Coach Bill Self that showed the coach was well aware of Adidas’s efforts to steer recruits to him, if not the method. Gassnola assured Self that Adidas was “here to help” in getting players for the school, which was finalizing a 12-year, $191 million sponsorship deal with the sneaker company.
Gassnola also testified that he agreed to pay $20,000 to Fenny Falmagne, the guardian of power forward Silvio De Sousa, to get the big kid out from under an alleged cash deal with a large Maryland donor.
“I don’t remember the words, but Fenny told me he was under this umbrella from the [Maryland] booster,” Gassnola said in court.
What Gassnola is describing is a conspiracy. A racket.
And let’s be perfectly clear on who the real victims and perpetrators of it are. The real victims are not school officials who lunged at huge financial arrangements with shoe companies and boosters, then tried to isolate themselves from shady dealings with implausible deniability.
The primary victims are those collegiate athletes who are being defrauded from the legitimate educational value of their scholarship agreements, by the illicit financial forces that create academic fraud, pressure them into unwanted lesser majors, make it harder to graduate and corrode their collective reputations. Secondary victims are the 97 million viewers of the NCAA tournament who expect a reasonably fair and transparent playing field.
Six months ago, a report issued by the Condoleezza Rice-led NCAA Commission on College Basketball did a better job of delineating this conspiracy than professional prosecutors. The Rice report contained two important statements. First of all, Rice averred, “Everybody knows.” The commission was told time and again that all parties, from the top down, were aware of these financial arrangements. Rice also stated this: “Intercollegiate athletics is a trust based on a promise; athletes play for their school and receive a realistic chance to complete a college degree in return.” The continual violations of that trust and the promise are the real crimes.
The cases that the Southern District should be bringing, if any, are RICO cases against universities. In RICO language, athletic departments, shoe companies and high-dollar donors have had an “association in fact.” They have operated as loosely joined enterprises, engaged in a common purpose with an underlying pattern of fraud.
If prosecutors want to call recruiting schemes criminal, then roll up the whole networks. Go after the Five Families of college athletics.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.