Notice to Every Auburn BKB Player and Recruit: Run, as Fast as You Can, From Auburn

Auburn head coach Bruce Pearl has just announced that he will not cooperate with any NCAA investigation. He has a contractual duty to cooperate.

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In addition, the ‘vicarious liability’ principle embraced by the NCAA 2 years ago establishes that the head coach is presumed responsible for any violations committed by his assistants. (Pearl’s assistant Chuck Person has been indicted for conspiracy and fraud.) If Pearl will not cooperate, then there will be no evidence to rebut the preumption that Pearl has violated NCAA bylaws.

Pearl has previously been seriously sanctioned by the NCAA, for his recruiting violations at Tennessee, and was the subject of an NCAA show-cause order after those transgressions.

Odd are that Pearl is going down, hard. And that Auburn basketball is going down, hard. Any recruit considering Auburn should no longer do so. Find a program which is not in peril of heavy NCAA sanction.

As to any current players, get out. Tell the AD that, if Pearl will not comply with his contractual duty to cooperate fully with an NCAA investigation, then you should be immediately released by Auburn from your NLI, so that you can immediately transfer elsewhere.

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NLI Signing: Two Written Questions Every D-1 Basketball Recruit Should Get Answered First

Today is the start of the NLI signing period. This is not a normal signing period in D-I basketball, because of the recent indictments of assistant coaches, agents, financial advisors, and Adidas marketers.

Things may be very different by the time you enroll next fall. Many more indictments may issue. Many coaches may resign or be fired. Many new ‘scandals’ may be exposed, at many other schools. The men indicted so far know alot, and are talking to the feds. The school, program, coach, or team you think you are signing up with may be very different next fall, and you may be looking to get released from the NLI you sign this November.

Two Questions for Each Coach, in Writing

Before you sign the NLI, insist that any coach who recruits you, including assistants or head coaches (each of them), respond to these two questions, in writing (by email):

ONE: are you aware of any significant violations of NCAA legislation involving your basketball program? If so, list them.

TWO: Have you reported through the appropriate individuals on your campus to your chancellor/president any knowledge of violations of NCAA legislation involving your institution?

[The second question is lifted from Form 17-2, shown below, which all D-II and DIII coaches have to sign every year, and which D-I coaches had to sign — until the requirement was removed on 8/1/17.]

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You deserve to know these things, in writing, before you sign. (If a coach will not answer these questions, that is a red flag that you should not commit to the school.) And if things later blow up at the school, based upon some NCAA violations which the coach knew about and failed to disclose in his answers, you have a much stronger case for being released from the NLI.

Big-time college basketball may be in the process of blowing itself up. Protect yourself with these two simple written questions.

 

 

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The College Basketball Indictments: NCAA Doing ‘As Little as Possible’

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In the movie Chinatown, Jake Gittis, private eye and former police detective in Chinatown, is in bed with Evelyn Mulwray, who asks him, “What did you do when you worked on the police force?” Gittis’ answer?

“As little as possible”.

In response to the recent college basketball indictments, Mark Emmert and the NCAA have done “as little as possible.” Sure, Emmert’s appointed a committee, with some big names which have generated flash. Sure, they’ve asked D-1 programs to ‘review’ their programs to insure compliance is up to speed. Otherwise the NCAA is doing a whole lot of looking the other way. A giant dodge.

On-the-plane, in-the-field, and on-site enforcement — just like 911

Ask Nerlens Noel, or Ryan Boatwright about the NCAA ‘looking the other way.’ Both basketball players were high school seniors over the past decade, who the NCAA somehow suspected were receiving some benefit which should disqualify them as ‘amateurs’. As a result, the NCAA sent investigators out in “the field”: home visits, lengthy interviews with all manner of characters, asking outrageous questions of unwitting relatives and friends – private citizens — all of them un-lawyered, and most of whom wrongly assumed that the NCAA was some kind of law enforcement, and all of them unaware that they should tell the NCAA gumshoe-bullies to go suck a lemon. This was NCAA robust, pulsating, on-the-plane, in-the-field, and on-site enforcement, with 911-like alacrity – to trammel-down those private-citizen 18 or 19-year-olds. Was the NCAA then doing ‘as little as possible’ to investigate alleged wrongdoing?

Or ask OSU’s former head coach Jim Tressel, who worked a fraud on the NCAA for almost a year, by disclaiming any knowledge of ‘eligibility-threatening’ trinket sales (horrors!) by his players.There had been much discussion, hand-wringing even, as OSU and the NCAA (and Tressel!) all seriously conferred about whether malefactors Terrelle Pryor and five teammate should be allowed to play in OSU’s January 2011 bowl game. (They were, though the players were required to serve a 5-game suspension the following season – and OSU immediately, in late December, filed an appeal of that decision.)

But when OSU found, ten days after that bowl game, a string of Tressel emails over the previous year, which strongly suggested that Tressel had been lying, the school forwarded those emails to the NCAA on the first Friday in February. What happened? The NCAA gumshoes were on-campus at OSU that Monday. The next business dayOn-the-plane, in-the-field, and on-site enforcement, just like 911.

Basically, Nuthin’

But when the feds announced in late September 2017 their indictments of four college coaches, some agents and financial ‘advisors,’ and a couple of Adidas ‘sales’ people, what did the NCAA do?

Basically, nuthin.

You would think that those same NCAA gumshoes who glommed all over Boatwright and Noel, or who jumped right on OSU and Tressel, would have been on-the-plane, in-the-field, and on-site at Auburn, USC, Oklahoma State, Arizona, and Louisville, with that good-ole NCAA alacrity.

Nope. NCAA, As Little As Possible.

Wait. But did someone claim it has to be ALAP, while a criminal investigation unfolds? Well, that can’t explain it. After all, when the NCAA swooped in on OSU in 2010 and 2011, there was a pending federal investigation. And civil and criminal – and yes, even NCAA – investigations can, and often are, concurrent, if only because the civil (and, presumably, NCAA) standard of proof – a preponderance – is so much easier to satisfy than the criminal ‘beyond a reasonable doubt’ standard. In addition, the NCAA loves intermediate remedies, imposed to preclude continuing harm or wrongdoing — just ask the two Auburn players who just got suspended using that very rationale.

Moreover, Louisville has had an appeal pending (just as OSU had an appeal pending) of the NCAA decision rendered in June 2017 – a decision which refused to apply the NCAA’s ‘vicarious liability’ standard to strictly impute the ‘stripper violations’ to head coach Rick Pitino, and also refused to find that Pitino’s claimed ignorance of the violations was not credible. The facts alleged in the September indictments (many of which are, on their face, highly reliable, since they derive from tapped conversations, or accounts from a ‘state’s evidence’ witness) provide a thumping suggestion that: 1) Pitino’s involvement in all the events was significant; 2) those events unfolded prior to the time the NCAA rendered its June 2017 Louisville decision; and 3) there are many more reasons to doubt Pitino’s  credibility — which was the central issue in the NCAA case decided in June! At a minimum, haven’t the new indictments generated sufficient new evidence suggesting that the NCAA must immediately re-open that case? Is it not time for the NCAA to get on-the-plane, in-the-field, and on-site, to Louisville?

A Teeny-Weeny Baby-Step for NCAA Enforcement

Finally, let’s compare the ‘scorched earth’ NCAA investigations of Nerlens Noel and Ryan Boatright with the easy, simple, and cheap baby-step which Mark Emmert and his suddenly mute and paralyzed enforcement-goons could immediately take to minimally “investigate” some of the disturbing allegations in the indictments: require that every coach immediately file a signed affidavit which includes this statement:

By signing and dating this form, you certify that you have reported through the appropriate individuals on your campus to your chancellor/president any knowledge of violations of NCAA legislation involving your institution”

[This is the very language which Jim Tressel signed-onto in September 2010, which the NCAA later used to show that Tressel was “not credible” and had “purposely hid” evidence. It is Form 16-2 language, but the NCAA-Chinatown coaches and administrators acted on April 26, 2017 (six days after Rick Pitino testified before the NCAA) to eliminate Form 16-2, effective August 1, 2017. The coaches and administrators apparently wanted to do “as little as possible” with regard to reporting violations, within an NCAA system which touts its heavy reliance upon self-reporting.]

To mandate that every coach file such an affidavit by the end of today would impose almost no burden on anyone. It requires no commission, no meetings, no manpower, no outlay. No on-the-plane, in-the-field on-site investigations. Simple. Pretty close to As Little As Possible.

Emmert won’t do it. Neither will the NCAA.

A Giant Step for University Presidents and Athletic Directors

It is the end of the movie Chinatown, after the wreckage of events results in the shooting death of Evelyn Mulwray, at the hand of a police detective. And PI Gittis, who unwittingly got drawn into events to try to save Evelyn and her daughter/sister, is heard to utter, almost inaudibly, “as little as possible.” To which the detective responds, “Forget about it, Jake. It’s Chinatown.”

This story about the new college basketball indictments, though, has a different coda. Mark Emmert and his NCAA will continue to do as little as possible, and will not re-impose the coach duty to sign Form 16-2.

But if you are a Power 5 university president or athletic director, justifiably worried a tad about some criminal (or NCAA violation) liability putting you in personal or professional jeopardy, you shouldn’t just forget about it.  Your ass is on the line.

 Here’s a suggestion: immediately demand that every basketball and football coach fill out a signed affidavit which includes the above Form 16-2 “any knowledge of violations’ language. (If he refuses, well, that tells you a whole lot, and is probably grounds for employment sanction.) It’s a tiny form, but a giant step. Make the coach commit. Don’t ‘forget about it.” Don’t do “as little as possible. Draw a line, which separates you from Chinatown, now. Get affidavits from every coach, because we’ve not seen the last of the indictments. 

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How the NCAA’s Mark Emmert is a Madam in a Whorehouse

In late September, the sheriff raided the House of Emmert.

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NCAA President Mark Emmert

The town folk now are now all a-Twitter at the suggestion that Madame Emmert’s charges may not, as it turns out, have been conducting NCAA Bible-readings there in her house of entertainment.

Had money been flowing, all along — they all want to know — for illicit acts?

But Madame Emmert — she of the puffy blown-dry hair, the smarmy air of genuine earnestness, and the perfumey seductions — has been in the business for a while.  She knows many people around town.

And so she has appointed some Pillars of the Community — a respectable group, with whom she is well-acquainted, who know they need not do any investigation at all, because they know Madame Emmett has always been above reproach — to come forth with a respectable report about all the fuss.

In the meantime, Madame Emmert has also whispered, sotto voce, to the Sheriff that she has fired a few of her lowly assistants – room attendants, really: Chuck Person, and a few other assistant coaches across the country. She’s also arranged for the firing of a few of her low-level girls. Good girls — very good girls — but very misguided. Why — just today — Madame Emmert arranged for the firing of a few Auburn basketball players.

But Madame Emmert is a woman of loyalty: her managers all remain. Bruce Pearl. She’s known him forever. And he’s so much fun and such a bright light when he bellies up to the bar, and all gather merrily around to sing while the piano player bangs out the Stein Song and other old standards. Andy Enfield, the USC head basketball coach whose assistant has been suspended, and who preened, as-creepy-as-can-be, to reporters at a press conference when he was hired that, “if you question my recruiting ability, just look at my wife.” These are the kinds of gentleman with whom townsfolk like to do business.

And Pearl and Enfield are, after all, fine upstanding characters who have helped Madame Emmert to achieve her position of prominence and respectability in the town. (Yes, it’s true that Mr. Pearl did some time for promotion of prostitution, but that was a long time ago.) But these are gentleman who deserve the benefit of the doubt. Leaders of men. Protectors of women. Madame Emmert could not possibly jeopardize their livelihood. These are respectable men.

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Auburn Players Suspended — But Not Head Coach Bruce Pearl?

Auburn just announced that it will be “holding out” mens basketball players Austin Wiley and Daniel Purifoy ”indefinitely.” This is, Auburn says, to “avoid any potential eligibility issues.”

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Auburn skipped a step.

The indictment a month ago of Auburn assistant coach Chuck Person moved Auburn to quickly suspend Person without pay. But because of the NCAA’s head coach ‘vicarious liability’ adopted in 2014, Auburn should have, at the same time, suspended head coach Bruce Pearl, without pay.

The vicarious liability rule is simple: any wrongdoing by an assistant coach is imputed to the coach.  What’s Person’s wrongdoing, is Pearl’s wrongdoing. And, just as the lack of final, complete proof of wrongdoing did not prevent Auburn from suspending Person, so also does the lack of final, complete proof of Pearl’s wrongdoing prevent Auburn from suspending Pearl. Person’s suspension requires Pearl’s suspension.

That’s the step which Auburn skipped. Instead, Auburn jumped straight ahead, to quickly sanction two players. This is because of that old NCAA rule that if there exists some colorable question about a player’s eligibility, the school must hold that player out, until the question is resolved. If the school fails to do so, and the player is later found by the NCAA to have been ineligible, then all games in which the player participated will be fofeited or ‘vacated.”

But the suspension of the two players should have made Pearl’s suspension all the more necessary, suggesting as they do that, based upon Auburn’s own internal initial review, there existed some good faith basis for believing that Persons alleged wrongdoings have both some apparent basis, but also some connection to the players.

(It is not unfair or irrelevant that Pearl had previously been subject to NCAA sanction, and show cause order, for circumstances when he was head coach at Tennessee, and had been found to have lied to NCAA investigators. This proven predilection to lie ought to make Auburn and Tennessee all the more suspicious of any protestions now by Pearl that he knew nothing about the transgressions alleged about Person.)

At this point, Pearl has to be suspended without pay.

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The NCAA is Kodak – and the Knight Commission is MySpace

I watched all the proceedings for the half-day of Knight Commission ‘hearings’ in Washington on October 30. These people are lost at sea.

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Arne Duncan

The recent basketball indictments told Mark Emmert that he’s been heading up a rudderless organization, which is now jet-skiing around its harbor, making churn and a big wake, with no direction home. The NCAA is Kodak: 25 years ago, it dominated an entire market, and its producers and consumers were happy to have the NCAA leading the way. Kodak is now shut down. Rochester lost 15,000 workers, because Kodak failed to anticipate the future, and whiffed at any opportunity to radically remake itself.

Radically Re-made Itself

IBM radically re-made itself. Twice. And it wasn’t Thos. Watson the first who did it. It was Junior who forced his father’s outfit to remake itself. Sons of great achievers usually despoil their father’s product, but Thos. Watson, Jr, instead, rammed change down the throat of his father’s blue-ribbon market leader — twice. And each time, it became a radically better organization.

The recent basketball indictments told the Knight Commission that they have been whiffing for years now, so that Knight is now MySpace: old and not even in the way. Irrelevant. Spinning its wheels. Look at the videos of their meeting. They are at a podium, still talking about decimal points on grade-point averages. Clueless.

And the Knight Commission has climbed in bed with an entirely mercantile trade group — LEAD1, the collection of buccaneers who call themselves Athletic Directors, but are panting to engage in influence-peddling in Washington, all in secret, without the kind of transparency and openness which should attend their every move in their capacities as public (mostly) university AD’s.

Somehow, for example, we are told, by some fellow (extraordinarily bright) who used to be an athletic director, but has been assigned — by LEAD1, in concert with the NCAA — to prepare a secret summary as to how some NCAA schools can enter into a joint venture of some sort for purchasing better player health insurance, that he cannot tell us with any explicitness what he has been doing.

But — get this — this fellow shows up and says: 1) we really haven’t finished our work; but 2) we can’t tell you anything about what our work has concluded, anyway, because it “needs to be vetted” by the LEAD 1 members. LEAD1 and the NCAA, apparently, cannot trust any other stakeholders to be involved with developing some position on this issue — better health insurance for players. The NCAA and LEAD1, both private outfits, will bless the rest of those stakeholders with some input when NCAA and LEAD1 have decided what is right, proper, and suitable for those others.

But note what this private citizen, hired by two private outfits (NCAA and LEAD1) did and did not say.  He seemed to endorse, first of all, the current ethic among AD’s and athletic departments, to shop for health coverage based solely upon a lowest-cost standard!  And he said this with a straight face, as though no one could ever argue for some other standard for measuring the need for, and advisability of purchasing, decent health coverage for players (particularly in football) who encounter staggering risk of physical injury, with every play!

The man went on to describe the extraordinary difficulties associated with ‘pooled’ purchasing, among all D-1 schools, of suitable health coverage for players — as if this was the only possible option for retaining such coverage.

But this was not the primary defect in his presentation, because it was devoid of moral, public health, or other principle. Nowhere (and he presumably was speaking on behalf of all those AD’s and former AD’s, all members of a trade group) was there any articulation of some fundamental moral or public policy principle.

What do I mean? If this head of this private, still-secret NCAA/LEAD1 effort had any moral compass, he would’ve told that august assemblage there in D.C. (and all of us who watched the stream) that no school with gross football receipts more than — what? — $1 million? — maybe $10 million — should ever be allowed to avoid providing the complete cost of top-notch health coverage for their football players.

(And excellent means: 1) the school, not player (or family) assumes all cost; 2) the tail provides coverage for at least five years after departure from play at that school.)

Nope. No such statement of principle. Nothing. No consideration of the player’s point of view. Instead, the entire presentation revolved around what the school might possibly afford — using the NCAA and school wacky measure for what is affordable.

This story is not told solely to illustrate the abject lack of moral compass at LEAD1, the NCAA, and the Knight Commission. Or solely to illustrate the extent to which the Knight Commission has become MySpace, left in the dust of events which have long passed.  No. It is also told to illustrate more clearly why the Knight Commission is MySpace.

Created 25 years ago, the Knight Commisison has no idea what is necessary.  So I will suggest what the Knight Commission needs to do to re-invent itself, just as IBM did.

The next meeting, get rid of the silk-tie guys who don’t matter. Invite the Big-Shoes — Nike, Adidas, and UnderArmour, who have colonized colleges sports during the precise 25 years during which Knight Commission has existed. Invite the TV networks, and the conferences, both of whom are mere media-traders, who have also colonized college sports during the precise 25 years since Knight Commission has been created. Force them to discuss issues. Hold their feet to the fire. One tiny example: do either of these behemoths who now reside, figuratively, there at the 50-yard line of every game, have some interest and willingness to fund health coverage for the player-billboards who are the major producers in their electronic or digital, nation-wide promotion-factory?

But also, and more importantly, because no one on the Knight Commission gets this:  invite players.

More important — and this is the most important element: pay for and invite a truly independent person to work for and represent the big-time players who are responsible for the tsunami of money which has flooded college sports just since the Knight Commission was created in the early 1990’s. That independent person might be Alan Sack. Maybe Attorney Rick Johnson. Economist Rod Fort. Economist Andy Schwarz. David Ridpath. Attorney David Vaughn. Ellen Staurovsky. Richard Southall. Attorney Roe Frazer. Ted Tatos. Chris Borland. Attorney Marc Edelman. Ramogi Huma. You have plenty of choices. You have plenty of money. And none of it, Knight Commission, has gone to protect the major producer in the very system you purport to monitor: the player.

Knight Commission: You are MySpace. Passe. Get with it. The indictments made a fool of you. Time to give voice to the player. Time to radically re-make yourself.

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College Basketball Indictments: Adidas, Thy Name is Banned Athlete Agent

Adidas Operated as a Player Agent 

In my previous two postings I said that the recent college basketball indictments provide a reasonable foundation for concluding that Adidas has acted as both a Booster and Runner and must, under NCAA bylaws, therefore be banned from campus, by way of an order from the NCAA to the school to ‘dissociate’ from Adidas. The necessary result is that the schools involved will need to sever their contracts and all relations with Adidas. (The same analysis obviously applied to any other apparel company which arranged any similar payoffs to players and others.) These sanctions to which Adidas is subject would be imposed by the NCAA.

 

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NCAA Executive Director Emmert

 

But Adidas’ action subject it to a different criminal sanction, according to most state laws, and apart from the federally statutory violations alleged in the pending indictments.

The Uniform Athlete Agent Act

By making the payments alleged in the indictment to a recruit, Adidas functioned as an illegal “athlete agent,” as defined under state Uniform Athlete Agent Acts. These statutes were drafted and passed at the behest of the NCAA. It is the NCAA’s very own ‘pet’ statute, in many ways, since it was the prime mover in getting it adopted in 43 states. So the NCAA’s own description of the statute, and the wrongs it is meant to prevent and/or sanction, as displayed at its website, and entitled “Need For and Benefits of the Uniform Athlete Agents Act,” are a good source — and I will quote extensively from them below:

“Many athlete agents are not readily identified to the student-athlete. These unscrupulous individuals include prospective agents who are willing to use any means necessary to ensnare a student-athlete who has even a slight possibility of a professional career. The significant damage caused by impermissible and illegal inducements to student-athletes requires sensible legislation to provide protections for student-athletes and the institutions they attend. There is a real need to have access to information about the individuals who become involved with our student-athletes and to provide strong criminal, civil and administrative penalties along with the tools to ensure that law enforcement can adequately enforce the act.”

The statute requires that any agent register with the state, providing

“important information, both professional and criminal in nature,” [which will] “enable student-athletes, their parents and family, and university personnel to better evaluate the prospective agent.” [and requires that] “that written notice be provided to institutions when a student-athlete signs an agency contract before their eligibility expires.”

By making the payments described in the indictments a

(even if made through an intermediary “runner”) Adidas operated as an athlete agent — but did not register with the states as an agent.

And, as the NCAA website points out, an agency

“contract must contain a notification to the student-athlete informing them that signing a contract may make the student-athlete ineligible for intercollegiate competition.”

The mere fact that no written contract exists does not excuse Agent Adidas from the statutory duty to give this warning, and it is fair to assume (from the indictments), that Agent Adidas never gave any such warning to Brian Bowen or others. (Bowen, now in limbo and not playing basketball — but enrolled — at Louisville, seems clearly destined to be found ineligible.)

As the NCAA’s website states, the act

“provides for criminal, civil and administrative penalties with enforcement at the state level.”

Adidas, it appears, is wide open to prosecution by one or more states for violation of the UAAA, with potential criminal, civil and administrative penalties in play.

Adidas Liability for Louisville Damages?

But here’s a very interesting kicker, in the NCAA’s own words:

“the act provides institutions with a right of action against the agent or former student-athlete for any damages caused by a violation of this act.”

Let your imagination fly here: Louisville’s damages caused by these events (if the school can avoid any finding of its own participation in the alleged bribes, fraud, and conspiracy — which is a bit of an ‘if’) are staggering. And the statute places responsibility for those damages upon Agent Adidas.

Adidas, Thy Name is Banned Athlete Agent

 

Copyright William Wilson 2017

 

 

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College Basketball Indictments: Adidas, Thy Name is Banned ‘Runner’

Adidas’ head of worldwide marketing, Jim Gatto, was one of the ten people indicted last month for involvement in what was alleged to have been conspiracy, fraud, and bribery surrounding four named schools, and several other schools which were unnamed, but implicated. Gatto, according to the indictment, allegedly committed to funnel a total of $100,000 to recruit Brian Bowen, as a part of a scheme which apparently encouraged Bowen both to sign to attend and play for Louisville, but also to hook-up with one or more agents or financial advisors. (Louisville has long had an apparel-supply contract with Adidas; that contract was renewed this year, providing for an Adidas payment of $170 million over ten years.)

 

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Adidas Worldwide Head Of Marketing Jim Gatto

 

In response to these indictments, NCAA president Mark Emmert has appointed an independent commission, headed by Condoleeza Rice, to recommend changes in the NCAA system. But Emmert and his NCAA may be getting a little ahead of themselves, by not recognizing the need to act with some swiftness to address issues raised by Adidas’ conduct (and, possibly, the conduct of Nike, since Nike has recently been served with a subpoena for production of documents.)

Yesterday I wrote that, if it is true that Adidas made payments directly to a player, the company probably functioned as a Booster under NCAA bylaws, which would necessitate banning the company from any further contact with Louisville and, therefore, require Louisville to sever its contract with Adidas.

Adidas also mostly likely functioned as a “runner” under NCAA rules.

Background

First, a little background. A number of NCAA enforcement decisions have roundly condemned the on-campus presence of “runners”: persons paid by a third party to ‘run’ after players on campus, in order to persuade the player to do something of benefit to that third party, who is usually an established professional players’ agent. Most often the runner’s persuasion of the player includes a gift, payment, or loan to that player, to encourage him to eventually sign an agency contract.

In a 2011 NCAA enforcement case involving Georgia Tech, for example, an NCAA staffer had received a tip that such a runner had been spied on campus, providing free clothing (the horror!) to two prominent Tech football players. The decision by the NCAA’s Committee on Infractions excoriated those ‘runners,’ and sanctioned the school and its athletic department employees. And in a March 2012 decision involving the University of North Carolina, as another example, the NCAA Committee on Infractions gravely warned of a shady world inhabited by agents and their runners.

The situation involving agents and their ‘runners’ supplying impermissible benefits to the seven student-athletes is a window into the often unscrupulous world inhabited by those who look to cash in on potentially lucrative future professional contracts to be signed by gifted & talented student-athletes.

Pursuant to Bylaw 12, any ‘student-athlete’ (anyone participating in or who may be eligible in the future to participate in a sport) may not agree verbally or in writing to be represented by an athlete agent in the present or in the future, for the purposes of marketing the student-athlete’s ability or reputation.

Adidas As Two Kinds of Runner

Gatto likely functioned as such an illegal (under NCAA bylaws) runner, in two respects. First, he can be seen as having been a “runner” for his employer, Adidas, by locating and paying Brian Bowen money, as a means of encouraging Bowen not only to sign with Louisville, with whom Adidas has a promotional contract, but also as a vehicle to encourage Bowen to sign with Adidas after his departure from Louisville (whether after a ‘one-and-done’ year there, or after some lengthier period.)

Second, depending upon factual detail which may become more clear as the indictments proceed, it appears that Gatto may also have been simultaneously “running” for Snood and Dawkins (the agent and financial advisor linked to the schemes described in the indictments.) Using this theory, the money passed by Gatto to Bowen had the same aim as the clothing provided by the runner at Georgia Tech whose actions were so heavily criticized by the Committee on Infractions in 2011: to encourage a player to eventually sign with a third-party who held himself out as a classic player’s ‘agent’. (The difference in scope is more than relevant: the Tech players got some apparel; Bowen would, apparently, be receiving $100,000.) In this scenario, Gatto and Adidas were, like the runner in the UNC case, presumably “looking to cash in on a lucrative professional contract” which they expected Brian Bowen would soon be signing.

The NCAA does not like Runners. Like Boosters, they are frequently banned from campus. Adidas, thy name is also Banned Runner.

 

Copyright William Wilson 2017

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College Basketball Indictments: Adidas, Thy Name Is Banned Booster

Don’t be deceived; Mark Emmert’s recently appointed ‘Condi-Commission’ was not created to preserve some allegedly pure principle of amateurism. It was created because the ten recent indictments of assistant college coaches, Adidas marketing personnel, and financial or other player agent/advisors jeopardize a major source of money flow for top NCAA schools. Here’s why:

Pitino

A booster under NCAA Bylaw 13 is a “representative of the institution’s athletic interest,” which is defined as “an individual, independent agency, corporate entity (e.g. apparel or equipment manufacturer) or other organization that is known (or should have been known) by a member of [the school’s) executive or athletics administration to:

(a) Have participated in or to be a member of an agency or organization promoting [the school’s] intercollegiate athletics program;

(b). Have made financial contributions to the athletics department or to an athletics booster organization of Rutgers;

(d) Be assisting or to have assisted in providing benefits to enrolled student-athletes or their families; or

(e) Have been involved otherwise in promoting [the school’s] athletics program.

Adidas is an ‘apparel and equipment manufacturer,’ which has ‘promoted’ many intercollegiate programs’ – including the one at Louisville, with whom it has a $170 million 10-year contract which qualifies as a ‘financial contribution’.

In addition, according to the recent indictments, Adidas is alleged to have ‘assisted in providing benefits to a student-athlete,’ in the form of a $100,000 payment to recruit Brian Bowen.

Adidas Is Probably a Louisville Booster

Assuming the truth of these allegations, then, Adidas is a Louisville booster under NCAA bylaws. And to the extent Adidas made similar such payments to recruits to induce them to attend other universities, Adidas probably qualifies as a ‘booster’ at other such schools. (Louisville should have already self-reported such a potential violation to the NCAA — and remember, the burden of proof for a NCAA violation is the ‘preponderance of the evidence’ standard, rather than the significantly higher “beyond a reasonable doubt” standard which the U.S. attorney must satisfy in prosecuting the charges he has brought.)

And, according to the NCAA, boosters can be — and almost always are – banned from any further contact with the school, or presence on campus. The ban is imposed upon the school, which has an obligation to enforce it, to ensure that the booster ends all contact. 

NCAA chief Emmert and his big-time members, many of whom depend upon mammoth annual contracts with Adidas, Nike, and UnderArmour, are terrified of this notion that the apparel suppliers might be deemed boosters banned from further contact with the school. (Reports are that the U.S..attorney has subpoenaed documents from Nike, suggesting that there may be other evidence that Nike was engaged in some similar scheme.) If for example, the NCAA found that Adidas was acting as a booster, and must be banned from campus, the school’s contract with Adidas would be over. (Adidas’ actions, as described in the indictment, to pay the recruit $100,000 probably also materially breach the company’s contract with Louisville.) And because NCAA rules hold the institution responsible for all actions of its athletics representatives-boosters, those schools are also worried about the extent to which the apparently illegal booster activity by apparel companies will be imputed to the school, to subject the school to its own significant NCAA sanction.  

The Shoe Contracts are In Jeopardy

The result? Louisville is looking at having to sever its $170 million contract with Adidas. And I will speculate that many other schools are frantically consulting with their lawyers to assess whether their mammoth long-term shoe and apparel contracts are in jeopardy. (Though the individual AD’s and school presidents are probably spending even more time with their criminal lawyers, to plan how best to avoid  personal or institutional indictment on conspiracy or bribery charges.)

Emmert claims to have appointed the Condi-Commission to address the payments which were allegedly made to players. But the Rice Commission’s de facto primary mission is to find some way to preserve the  raging river of shoe and apparel money with which universities and/or coaches have been flooded since 1978. Adidas, thy name is Banned Booster.

 

Copyright William Wilson 2017

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NCAA ‘Code of Silence’? Emmert’s In on It

Mark Emmert is, to paraphrase Robert Penn Warren, full of more s___ than a Christmas turkey. He’s just told the Times’ estimable Marc Tracy (Amid Scandal, N.C.A.A. Forms Commission to Reform Men’s Basketball“) that the recent federal indictments of NCAA basketball figures, including some Adidas marketing executives, “seem to have uncovered a code of silence,” because, Emmert explained, people who were aware of things “weren’t coming forward.”

Emmert

NCAA President Mark Emmert

Emmert needs to review his NCAA notes, to discover what I recently discovered. When I read the federal indictments, which suggested that Louisville coach Rick Pitino had, shortly before recruit Bowen ‘committed’ to Louisville, made phone calls in which Pitino directed or suggested that Adidas take steps to funnel money to Bowen’s family, I immediately recalled the NCAA Committee on Infraction’s 2011 decision, which explicitly found that Ohio State coach Jim Tressel was “not credible” and had purposefully “hid” information. (See post, “This Guy is a Hero? Tremblin’ Jimmy Tressel’s Deposition is Embarrassing.”)

At the time of these late-September indictments, Louisville had already been placed on probation by the COI (a decision which Louisville appealed), and the COI refused to find that Pitino, like Tressel, was “not credible,” or that he purposefully “hid” information. Pitino had claimed he knew nothing about the “stripper parties” which had taken place in the Louisville basketball dorm. And the COI refused to saddle Pitino with liability for the “improper” stripper benefits which his chief of basketball operations had aa!!arranged in the dorm for the players. The COI also refused to find that Pitino knew anything about those events, and sanctioned Louisville only for improper oversight of its program.

So when the new Adidas-Payola scandal broke, I immediately recalled that Jim Tressel had been hung high by his own signature on his statement — entered on the mandated NCAA Form 16-2 “Certification of Compliance for Staff Members of Athletics Departments,” which NCAA rules required that every coach annually sign by September 15 — showing his assertion that he was unaware of any NCAA violations.

Why did the COI in Jim Tressel’s case find this Form 16-2 so important? Ask Tim Nevius, at the time an NCAA enforcement staffer, who did a superb — and gentlemanly — job examining Tressel in his deposition. It was the foil against which every Tressel lie was measured, and Tressel could not weasel out of his lies, because his signature was at the bottom of Form 16-2. As every lawyer knows, any written statement is infinitely more valuable, and probative, than an oral statement, and there are thousands of witnesses who are daily cross-examined under oath, as Tressel was, about the truth of an earlier written statement. It is cross-examination gold. Call Tim Nevius, ask him. Nevius made a fool of Jim Tressel, who has no credibility left — because of Form 16-2.

So I intended to write a post, to suggest that Louisville should make sure that Pitino, before he left, signed his Form 16-2 on September 15. But then, out of an excess of caution, I checked the NCAA website — only to be astounded by what I found.

The only form I could find on the NCAA form website was a Form 16-2 (numerically changed to 17-2) which is now restricted to Division II and III. How could that be? I checked the bylaws. (See the page for 2017-18 D-1 forms, and note that there are no such Certificates. Then refer to the D-II 2017-18 form page, and note that the Certificate still must be completed by every D-II coach and assistant coach.)

Byylaw 18.4.2 (as it applied to D-1), before August 1, 2017, required that the school:

certify, through its president or chancellor on a form approved by the Council, the institution’s compliance with NCAA legislation. The certification of compliance shall be completed not later than September
15

Bylaw 18.4.2 (as it applies to D-1), after August 1, 2017, merely states:

Certify, through its president or chancellor, the institution’s compliance with NCAA legislation. The certification of compliance shall be completed not later than September 15

They removed, on August 1, the phrase “on a form approved by the Council”. This is extremely cute. The form is gone, for D-1. This is a Mafia ‘Code of Silence’ move. The NCAA acted, on April 26,  2017 — a mere six months ago — to remove the requirement that every coach in Division I sign the Form 16-2 which Jim Tressel had signed, to show that he knew of no violations. (Division II and III coaches still have to sign the form — here is that form, for 2017-18.)

This move was adopted on April 26, 2017 — two weeks AFTER the NCAA meeting adjourned, so that the group of attendees, in large part, did not know. And it didn’t take effect until August 1, 2017. And understand what these ‘Code of Silence’ NCAA Mafia types did: by deleting the requirement that Division I coaches fill it out, the NCAA gutted the entire self-reporting framework for Division I. And it’s not that this kind of self-reporting framework is unusual or at all burdensome: OSHA, for example, uses it. Many state OSHA offices tell employers: hey, we’ll leave you alone, but just file an annual report on our form, which updates us, and attests that you have thoroughly reviewed  and investigated, and that there are no violations.  We might come in and spot-check, on a random basis, one or two employers, to keep everyone honest — but basically, just file the form. Why does OSHA have that framework?: because it is the most efficient, and cheapest way of regulating.

But Mark Emmert’s NCAA now doesn’t work that way. Last April, some bright NCAA members got together and decided, not just to strengthen the NCAA D-1 ‘Code of Silence’, by eliminating Form 16-2: they gutted most of the entire self-reporting framework which the NCAA pretends is at its very foundation. And they did it in the dark of night, on April 26, two weeks after the meetings adjourned.

Division I coaches do not want to annually attest that the programs they run are clean. They want to be silent. And the NCAA just, six months ago, agreed: Division I no longer has to attest that they are clean. “People,” to use Mark Emmert’s words are “not coming forward,” because the NCAA took steps only months ago to tell them that there is no need to “come forward.” The Division I coaches want to insure that cheating will go unreported — all the while maintaining the appearance that they are running a clean ‘self-reporting’ system. The self-reporting at Division 1 is a sham.

And do you know who is elated by this Mafia move, made effective by the NCAA on August 1, 2017?: Rick Pitino. Look what’s happened, for example, to the federal investigation since it was originally announced: the feds have subpoenaed from Oklahoma State any documents which show what was reported for violations by coaches or assistant coaches. The feds are looking copies of the annual Form 16-2 filed by coaches at OSU.  Starting in 2017, though: there are no such forms.

Mark Emmert is a Mafia Don, spinning events to make it appear as though some strange ‘Code of Silence’ has grown up in his outfit, and that he needs some bigwigs like Condi Rice to rout out that alleged Code of Silence. But Emmert has not been honest with those who he has appointed to his committee. Mark Emmert is full of more s___ than a Christmas turkey.

My challenge to Condoleeza Rice, J. Thompson Jr., Grant Hill, David Robinson, Jeremy Foley: Did Mark Emmert tell you what happened on August 1, 2017, only six weeks before the federal indictments, and only 60 days before your appointment? Did he tell you that his own outfit had quietly gutted its “self-reporting” system, in order to infinitely reinforce the NCAA Division I ‘Code of Silence”?

Why did the NCAA act six months ago, to quickly get rid of Form 16-2 — a form which had been central to catching Jim Tressel’s remarkable long-running deceptions, and which served as the primary bulwark against ‘cheating’ which coaches — like Pitino — are all too prone to engage in? In reality, don Mark Emmert loves his newly fortified Code of Silence.

Condi: what will you do? Your strongest move would be to tell Emmert that you have no intention of wasting your time on this committee, until the NCAA acts to reverse the ‘Code of Silence’ amendment which was made effective on August 1, 2017. Tell them to reinstate Form 16-2, and that you are unwilling to serve until they do. And Condi: the NCAA dons do not want anyone “coming forward.”

 

 

 

 

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