NCAA Basketball Indictments Say: Alumni Booster, Thy Home Might be the Federal Pen

The college basketball indictments have taken a new turn: more specific allegations about payments by some college coaches to players have been added to the previous charges that Adidas had colluded with agents and financial advisors to insure that players might attend specific schools, with the expectation that those players (advancing toward what would, presumably, be lucrative careers), would later also sign on with the agents or financial advisors.


The indictments last fall, and the new ones, have changed the entire NCAA enforcement paradigm, though you’d never know by listening to the NCAA. They don’t even know it. They are paralyzed. Yes, NCAA executive director has set up the ‘blue ribbon’ Condi Commission, chaired by Condoleeza Rice. But all of NCAA has, like some misbehaving schoolchild, gone into ‘time-out,’ in several respects. First, Emmert insists that no investigations concerning all these allegations can be undertaken by the NCAA, while the U.S. Attorney, and the FBI, complete their work. This is nonsense, for two reasons. First, the standard of proof for NCAA violations — preponderance of the evidence — is tiny and easy compared to the “beyond a reasonable doubt” standard in the criminal setting. Second, the NCAA, dependent as it is upon self-reporting, also depends heavily upon what are called ‘interim’ or ‘provisional’ orders, imposed either by the NCAA or, oftentimes, the school itself. This practice is built upon the high-minded NCAA notion that its games, and participants, must always be lily-white and without any hint of taint — even if that requires provisionally suspended participants who have only been charged with some violation. Countless players have been, as a result, “held out” of games, in order to preserve their purity.

But the NCAA has refused to investigate any of the circumstances arising out of the recent indictments; as a result, it has also failed to take any minimal steps to determine the foundation for, and then act upon, the need for such provisional suspensions of involved coaches, schools, and even players.

And even though the NCAA and all their member-school compliance operations spend significant resources to alert and scold their constituency about the need to avoid any possible violation of any NCAA rules, they have failed to alert those constituencies about the game-changing nature of the 2017 and 2018 federal indictments: that the violation of NCAA ‘extra-benefits’ legislation is now, according to the U.S. Attorney for the Southern District of New York, a solid, ripe basis for federal criminal charges.

For a simple example of this new, serious federal criminal peril which any potential booster might encounter, look only at the 2017 NCAA heavy penalties for Ole Miss, associated with an number of different violations, many generated by boosters providing ‘extra,’ proscribed benefits to athletes. Because the statute of limitations on those actions have not yet run, every single one of those booster violations, well-documented by the NCAA COI, are open, obvious, potential federal criminal statute violations, based upon the premise behind the recent indictments. Illegal boosters always had reason to fear the NCAA enforcement arm; now, all those boosters, over the last five years, ought be worrying about federal indictments related to those same underlying NCAA violations.

Alumni booster, thy home might be the federal pen.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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