Mark Emmert, Miami and the College Basketball Investigation

By Patrick Vint on February 23, 2018 at 10:43 am
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Five years ago, the NCAA got itself in some trouble.  In 2011, noted Ponzi schemer and Miami uber-donor Nevin Shapiro, in prison pending trial and feeling wronged by Miami Athletics, detailed an alleged cornucopia of improper benefits he provided to Miami athletes.  The allegations were lurid enough to get the press's attention, and the attention brought the NCAA.

But the NCAA had a problem, the same problem that it has in every investigation: It does not have subpoena power.  The NCAA can request interviews and information from member institutions, and theoretically mete out some sort of disciplinary action if the target institution does not comply, but for anyone outside the university's immediate orbit -- say, former players, for instance -- there's not much the NCAA can do to compel testimony or obtain information.

In the Miami investigation, the NCAA had one thing on its side: The donor at the heart of the scandal had turned against the university.  That same donor was already involved in criminal and bankruptcy proceedings, in which his own lawyer would have subpoena power by virtue of being an officer of the court.  And so the NCAA, desperate for the details that would bring down the Hurricanes, contracted with Nevin Shapiro's lawyers to effectively use their subpoena power to further the NCAA's investigation.  Shapiro's lawyers asked the questions that the NCAA wanted answered but could not compel, and got information that the NCAA needed but to which it did not have access.  On that basis it built the Miami investigation, an investigation that fell apart once that misconduct was uncovered.

NCAA president Mark Emmert ran gravel through his hair and promised better from the NCAA in the wake of the Miami investigation, calling his investigators' actions "shocking" and promising better in the future.  But what is clear from today's Yahoo report on the ongoing federal investigation into college basketball is this: The NCAA hasn't quit looking for lawyers to help it get around its subpoena issue.  It's just found some better lawyers.

When news broke of the FBI investigation into college basketball recruiting practices in September, the allegations were fairly straightforward: Assistant coaches, agents and shoe executives were funneling money to recruits in order to get those recruits to commit to particular programs and, later, sign with particular shoe companies and agents when those players went pro.  It's a tale as old as the NCAA, a recruiting scandal as simple as the Deon Thomas affair a generation ago. 

The only change here was federal indictments.  The U.S. Attorney for the Southern District of New York was issuing federal criminal charges against the players in a commonplace recruiting scandal.  That felt odd, because the heart of those indictments was a list of NCAA violations, and NCAA rules are not part of the federal criminal code.  Where were the grounds for criminal conduct?

Yesterday, I was listening to Jay Bilas discuss the soon-to-be-published Yahoo exclusive story when it all came into focus:

"[The FBI and U.S. Attorney] are using somewhat of a novel theory in going after college basketball: If you break NCAA rules and you put schools at risk of having to take down banners, disgorge profits and lose scholarships, or they play ineligible players without knowing it because of the actions of some coaches and agents and people outside the structure, then the school is the victim.

So if you can stick with me on this one: In order for these not to be federal crimes, federal law would not have to change.  The only thing that would have to change is NCAA rules to make this not an NCAA rules violation....You could take that out further and say 'If you break an NCAA rule in any regard that puts a school at risk, that could be a federal crime."

Everyone has focused on the names and dollar amounts in today's Yahoo report -- Monte Morris got a free meal! -- but reread the lede:

Documents and bank records obtained in discovery during the federal investigation into the underbelly of college basketball detail in meticulous fashion the expenditures of prominent former NBA agent Andy Miller, his former associate Christian Dawkins and his agency, ASM Sports.

These are financial records from a non-public entity obtained in the discovery process.  Unless ASM Sports is a party to the case, which would allow for some voluntary discovery to be conducted, or openly handed its detailed financial statements to a party to the case, these records are only obtainable via subpoena.  These are records of NCAA violations -- now "criminal activity" because the U.S. Attorney claims NCAA violations suddenly also violate federal criminal law -- that would not be available to the NCAA under its normal investigative powers.  The Southern District of New York and the Federal Bureau of Investigation are now doing what the NCAA hired a two-bit criminal defense attorney in South Florida to do: Give it subpoena power to investigate NCAA violations.  The NCAA, beaten by Miami and chastised by allegations of overreach against its investigators, just found some other investigators to show us what overreach really looks like.

Let's call this what it is: Weaponized enforcement of NCAA regulations by the nation's best prosecutors and an investigative body with money and manpower to burn.  And believe me when I say: We don't want this.  If you're a fan of college sports, you don't want this.  If you're a member institution, you don't want this.  If you don't give a damn about college sports but want a functioning federal law enforcement body, you don't want this.  Nobody wants this but the NCAA.  Nobody wants NCAA regulations, written by bureaucrats beholden to a system that leeches hundreds of millions of dollars from the sweat of teenagers and the loyalty of fans to school and state, to now be federal criminal law on par with RICO.  Nobody wants their coaches hauled into federal court for a recruiting violation.  More than anything, nobody wants the people responsible for foul-ups at Miami and Penn State and North Carolina (and soon to be Michigan State, to be sure) to have the full force of the FBI backing their witch hunts.  As sordid as the Louisville scandal is, it's not the mafia.  The NCAA is now openly trying to change that.

The NCAA has convinced federal prosecutors that its rules should have the full force and effect of federal criminal law, and that is should have not just the subpoena power that it has claimed it doesn't want or need, but federal investigators chasing recruiting violations.  The September stories called the first indictments the tip of the iceberg, but if the information released today is any indication, this Titanic is headed straight for it.


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