From the moment indictments came down against James Gatto, Merl Code, Christian Dawkins, Chuck Person, Book Richardson, Tony Bland and others, many of us have been fascinated by this case. At first I thought it might clean up college basketball and make the playing field a little more even for schools that don't want to cheat. Then I thought it would accomplish nothing. As the case proceeded through closing arguments toward a verdict, I started to puzzle out the legal arguments, wonder why certain arguments were being made, and have some doubt that the government would be able to make a case. All the way through it, though, two statements that writers, coaches and fans persistently asserted always ground my gears, because they show a profound ignorance of the controlling law guided by a desire for these charges to fail.
The first of these statements is that "NCAA violations are not federal crimes", or that NCAA regulations are not federal statutes. The second is that the universities were not victims because the defendants were helping the universities get basketball players for their teams at the request and with the assistance of their coaches.
In part I and II, I will tackle each of these statements in turn, and show why they are completely wrong and why despite the fervently held beliefs of many people, a jury found the defendants guilty. In part III, I will explore what this verdict could mean for these defendants, the defendants whose trials are upcoming, and for college basketball generally.
I. "Mail Fraud" Is a Shoehorn
A man who can be forgiven for not knowing better (a sports journalist who got his degree from that fake "university" in North Carolina) tweeted a quotation from a man who should know better (a bigshot lawyer of long experience):
Still waiting on some journalist to ask a follow-up about Code’s commentary and connection to death in college basketball, know it’s Halloween, but murder is almost a motif at this point pic.twitter.com/XcDuxaKdLI— Tate Frazier (@tatefrazier) October 24, 2018
Apologies to Tate because he's a smart guy and I like him, but Code absolutely should know better. It's almost a rite of passage in law school to get to mail fraud in criminal law class and confront the limits of your ability to shed your previous belief that Law was somehow solid and meaningful and recognize that man has written laws more malleable than a tub of salt water taffy on a 95 degree day. Having graduated from law school, Merl F. Code should know very well that the mail fraud statute is the granddaddy of all shoehorns, and the feds have been using it to shoehorn garden variety state law frauds into federal crimes for literally generations.
"Mail fraud" is using the mail in a scheme to defraud. Because the United States Postal Service is a federal service, the feds have jurisdiction over it, and the use of the mail in furtherance of criminal activity falls under the federal bailiwick. If I come up to you on the street and tell you that my sister is dying and I need a thousand bucks to save her life, can you please give it to me, that is state law fraud (I'm an only child) and the feds have no juice. However, if I write a letter that says "my sister is dying and I need a thousand bucks to save her life, can you please give it to me?" and hand that letter to a United States Postal Service employee to deliver it to you for me, that is mail fraud - a federal crime. That's it. It's that simple.
Keeping up with the modern age, Congress some time back passed a statute creating the crime of "wire fraud," which is simply mail fraud through email (electronic communication). The only difference here is that one electronic communication in the scheme has to cross state lines. This is not a low bar to limbo under these days. Going back to my dying sister, if I sitting here in Seattle send you in Virginia an email saying "my sister is dying and I need a thousand bucks to save her life, can you please give it to me?" I have now committed wire fraud - a federal crime.
So, yes, Merl F. Code, the government can shoehorn NCAA violations into federal statutes - if those NCAA violations meet the definition of fraud and one of the conspirators sent one piece of mail, or one text message across a state line.
II. Victim or Beneficiary?
The federal nexus is the easy part. Just as the Interstate Commerce Clause has been interpreted to allow Congress to regulate pretty much anything it wants (growing tomatoes in the back yard was held by the Supreme Court to impact "interstate commerce"), the mail fraud statute has given the feds jurisdiction over pretty much any fraud ever committed. The question of the university's victimhood is a little murkier and the defendants' arguments here resonate further. They are, however, just as wrong, and the judge explained why in a memorandum opinion back in February 2018. You can read the opinion for yourself here.
The argument goes like this: The government says that the victims of the fraud were the universities on whose ostensible behalf the defendants were working. But the defendants were not trying to defraud the university of money - they were trying to help the university by bringing basketball players to help its team win games. And the head coaches knew about it, assisted, and requested the assistance. Therefore, the university was not a victim, but rather a beneficiary and even participant.
This argument is logical. It makes sense to us.
It's also complete bollocks. It is like so many other arguments we read or hear that sound great when we hear them, but that fall apart into a dusting of rotted thread upon more than cursory analysis. The defendants' attorneys failed to fool the judge (and jury) with the argument, but they have done far better with the aaucbb cognoscenti, who lap it up like puppies then snuggle up against the warm breast of the bitch that whelped them.
Let's break it down.
Crimes have "elements" and to convict a defendant of a crime, the jury has to find beyond a reasonable doubt that the prosecution has proved every element of that crime. One reasonable doubt in the mind of one juror on one element? No conviction.
The elements of wire fraud are:
 a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises"; and
 use of "wire, radio, or television communication in interstate or foreign commerce ... for the purpose of executing such scheme or artifice."
That first element has a lot of sub-parts that may or may not need to be proved in any particular case, and the defendants here attacked many of those sub-parts. The defendants did not attack the second element, and I think we all can agree that the use of electronic communications in interstate commerce was amply proved.
Some of the sub-elements of element  that the defendants attacked were:
(a) That "some actual harm or injury" to the universities "was contemplated by" the defendants. They argued that they were intending to help, not harm, the universities by bringing them talented basketball players who would help them win lots of games. They also argued that they could not have intended to harm the universities because they were acting at the request of and with the assistance of (or at least the knowledge of) those universities' basketball coaches.
(b) That the object of the fraudulent scheme "was to deprive the Universities of money or property." They claimed that they were not intending to nor did they obtain property from the universities in their scheme. Rather, they were paying money to recruits of those universities.
(c) That whatever misrepresentations they made to "the Universities" were not material, again because the universities' basketball coaches were part of the scheme.
The first and to me most glaring fallacy in the defendants' argument was their contention that the knowing participation of a university's head basketball coach equals the knowing, intentional participation of "the university." It does not.
Think of it in terms of a corporation: a head basketball coach is like the manager of a factory. Just because the manager of a factory takes part in a scheme to defraud the corporation does not mean that the corporation itself was involved, or that the corporation can't be the victim. The head basketball coach no more speaks for or identifies as "the university" than the plant manager does for "the corporation." A basketball coach is not part of "the control group" of a university. Heck, even if he were, he could still be a participant in a fraudulent scheme with the university as a victim, just as boards of directors and CEOs of companies can be guilty of defrauding their corporations. Even shareholders can be guilty of defrauding the corporation. No single stakeholder in an entity equates with that entity. I can't defraud myself but I can defraud the corporation that I own.
The judge in this case hit this point when he denied the defendants' motion to dismiss the case. "A jury would be entitled to infer that the coaches were not acting solely in the interests of their employers.... [T]he coaches [may have] had substantial personal interests - financial, reputational, career, and competitive interests - in fielding the most successful teams possible and ... those interests [may not have been] entirely aligned with the interests of their employers."
But surely the universities have an interest in fielding the most successful teams possible. They do, but they may differ with the coach in prioritizing that interest vis-a-vis other interests - like avoiding NCAA penalties or doing things a certain way. "The university" might feel that the benefits of the extra games its basketball team might win with ineligible players is not worth the potential harm of being caught using ineligible players. It might even have a desire to do the right thing and compete under the rules. Naïve, I know, but I think I did see a unicorn the other day.
As the judge laid out in his memorandum opinion, under NCAA rules:
(1)[A]ny financial assistance to student-athletes other than from the school itself or from the athletes' parents or legal guardians is prohibited unless expressly authorized by the NCAA, and (2) student-athletes, prospective student-athletes, and their relatives are prohibited from accepting any benefits, including money, travel, clothing or other merchandise, directly or indirectly from a financial advisor or an agent....
Student-athletes who are recruited in violation of NCAA rules are ineligible to play.... [There are] various penalties to which any school or individual found to be in violation of an NCAA rule may be subject, including limitations on the school's participation in post-season play in the relevant sport, limitations on the school's funding from the NCAA, and various financial penalties.
In order to comply with these NCAA rules, as well as for their own reasons, universities establish a set of policies controlling their athletic programs and the recruitment of athletes into those programs. The university has an interest in its coaches adhering to these policies separate and apart from the coach's interests.
So the jury was entitled to find that the University was a separate entity whose interests were not necessarily identical to the basketball coaches' and that the basketball coaches were not acting entirely in the university's interests. The jurors apparently found that to be the case.
Cynicism about these universities is not uncalled-for, and I can hear many people saying to themselves, "I'm sure the university was more than happy to have those players and the money they brought in." That cynicism may be well-founded, but the jury was entitled to find that the defendants had deprived the universities of the opportunity to make that call.
The defendants also tried to argue that the involvement of the coaches absolved them of liability because it made the misrepresentations to the university not material. Not all lies and misrepresentations give rise to fraud liability. A misrepresentation must be material, to have "a natural tendency to influence or be capable of influencing, the decision of the decisionmaking body to which it was addressed." The false statements that the government relied on in this scheme were the certifications by the student-athletes and the coaches that "they were unaware of NCAA violations." The defendants argued that the coaches' false certifications were not material because "they could not possibly have affected their own recruiting decisions."
Again, the defendants have identified the coaches with the university. Not only does this argument rest on the same fallacy as identified above, but it also wrongly assumes that the coaches are the final decision-makers on admission decisions. Ask any football or basketball coach at the University of Virginia or several other schools if the coach is the final arbiter of who gets a scholarship. As the judge put it, the defendants were aware "that responsible, unconflicted university officials" might not have approved of their actions. Had the coaches involved put on their certification forms, "I am aware that this player was paid $15,000 to accept our scholarship offer," school officials might have chosen not to admit that player. The right to make that decision is a property right owned by the institution, and taking it away injures that university.
The arguments that "NCAA rules are not federal statutes" and that "the coaches were in on it" were two arguments that rang false from the start. I could understand sportswriters and lay fans running with them, but I could never follow why experienced, smart defense lawyers would rely on them - or why experienced, smart prosecutors would allow them to. As it turns out, upon reading the judge's order, I now know that the prosecutors did not let them go - nor did the judge.
The case presents many other legal nuances and interesting arguments. The prosecution had other weaknesses that the defense went after. The judge kept in mind his role and allowed the jury to decide. I will be happy to delve into those issues more if you have questions, but for now, let's ask ourselves what this verdict might mean for different stakeholders going forward.
III. Who Is Sweating Now?
In his column today, Dan Wetzel calls the U.S. attorney for New York City "the most powerful man in basketball." His office gets to decide where the case goes from here. What to ask for in sentencing. What deals to make if these convicts want to deal. What to offer the defendants in the two upcoming trials. Who to go after next. When to let the NCAA get to work. What he decides to do, and what the defendants in these cases decide to do, could have wide-ranging ripples.
The attorneys for all three of the convicts declared their intention to appeal. Not only do they face the odds that only 7% of federal convictions get overturned in the Circuit Court of Appeals, but they don't appear to me to have any compelling legal arguments. On appeal, a losing party can make two kinds of arguments: The judge got the law wrong in a way that affected the outcome, or the evidence was so weak on one point that the judge should not have let the case go to the jury. On the first kind of issue, the appellate judges take a fresh look and can overturn the decision if they disagree with the trial judge. On the second, the appellate judges have to give every inference and presumption to the decision below, and have to find that no "reasonable trier of fact" could have done what the jury did with the evidence in the case. The second ground of reversal is far more difficult for an appellant to argue (although one could say in modern America it's harder to find twelve reasonable people).
What the convicts have in their favor is that mail and wire fraud cases are incredibly nuanced and seemingly minor distinctions can be the difference between an overturned conviction and an affirmance. I could give you ten opinions from the Second Circuit (the court that will hear any appeals in this case) to read, and after reading them you would be so confused as to what is or is not "a scheme or artifice to defraud" that you would be tempted to conclude it's all just random. Still, the prosecution has home court advantage and in most cases the defendant does better for himself by using what uncertainty does exist as leverage to cut a deal. How much incentive these convicts have to cut a deal may depend on which federal prison they are likely to call home for 2-4 years. The feds have some swanky digs for those who can afford them.
The U.S. attorney has two other groups of defendants lined up for trials, including all of the assistant coaches. While those cases will be tried in front of different judges and juries, he has a written opinion approving his theory of the case and a jury verdict in his pocket. The pressure on those defendants to cut a deal has increased. Most defendants in their shoes will deal and squeal. Squealing is not always part of plea dealing - most plea bargaining simply spares the prosecution and judicial system the time and expense of a trial - and whether the feds demand it in these cases depends on their intentions for the wider case. Do they want to take this further and go after additional targets - perhaps the head coaches and even higher? If so, they will require cooperation with investigators and prosecutors as part of any deals.
If I am Andy Enfield, Bruce Pearl or Sean Miller, I'm sweating through my shirt right now (if I'm Sean Miller, I was already sweating through my shirt). Especially Miller. A lot came out in this trial that implicates Miller, and you can be certain the feds have a lot more than we saw. Each of the assistant coaches facing a trial has ample incentive to give up his former boss to save himself. These cases tend to start with the small fish and then move up the food chain. Because college head coaches operate like crime bosses and keep themselves insulated from direct contact with the contraband, they keep plausible deniability and potential reasonable doubt until their immediate lieutenants roll over on them. Most likely the government grouped these cases and scheduled them for trial so as to gradually increase the pressure on the lieutenants. Not only the lieutenants: might one of the at-risk head coaches decide he would do better to get ahead of this and go state's evidence before charges can be filed? Maybe he can avoid charges altogether....
As other writers have said, anyone who has participated in this game is potentially at risk of prosecution. Just because the U.S. attorney did not bring charges against any head coach, athletic director, student-athlete or family member does not mean that he could not have done so had he wished. The allegations of the indictment, the judge's upholding of that indictment, and the jury's verdict all make it clear that the same allegations and evidence could be used to convict anyone involved in the paying of players to attend particular colleges:
[S]tudent-athletes and coaches are required to make certain representations related to NCAA rule violations to the Division I schools for whom they play and work. Student-athletes are required annually to attest their amateur status and to report any violations of NCAA rules involving the student-athlete and the school. Coaches are required to certify annually that they have reported to their school any knowledge of NCAA rule violations involving the school. ...
The indictment alleges that the defendants and their co-conspirators, who included ... certain basketball coaches as well as prospective basketball players and/or their family members, "conspired ... to obtain athletic-based financial aid for the student-athletes from (the) ... universities." It alleges in particular that the objects of the conspiracy included "causing the universities to agree to provide athletic scholarships to student-athletes who ... were ineligible to compete as a result of the bribe payments." ... The indictment therefore is sufficient.
Will this deter agents and the shoe companies from offering these bribes going forward? Will it make families and players more hesitant to seek and/or accept them? Will more coaches resist the temptation to take this recruiting shortcut? Will some athletic or university administrations enact tighter oversight and make clear to their coaches that they want no part of bribing players? The answers to these questions depend on what the U.S. attorney does next, what the NCAA ultimately does, and even more on what the people in the game expect them to do.
Once the shock of the initial indictments wore off, it appeared that everybody went pretty much back to business as usual. Doubt was expressed about the strength of the government's case. More and more of it was expressed as time went on. The cbbaau cognoscenti were virtually unanimous in scoffing at the case. Nobody - and I mean nobody - expects the NCAA to do a damn thing about it. Powerful programs whose head coaches are apparently caught on tape have stood behind their coaches and shrugged off the evidence. But now that a jury of twelve people in New York City have unanimously agreed with the government that these three operators were guilty of felonies under federal law, all of the players in The Game have to be aware that they are committing federal felonies if they offer or accept these payments. If a couple of new indictments come down, it will signal the market that the Feds might not pack up and move on, that ongoing enforcement could be the future.
One writer hypothesized that this verdict could make the NBA's new G League initiative more attractive to players. Maybe they could get more cash to go to Duke or Arizona or Kansas or Louisville or Miami than to sign with the G League - but at least that G League cash doesn't come with the risk of a federal rap. A couple new indictments would make this more likely. If the players start signing with the G League, much of the shoe and agent money will follow them. Remember, these guys have no interest in a college player per se - they are interested in his future pro value. If most of the players with the future pro value go to the G League (or get drafted) instead of to college, the money will go with them. We could eventually see the NBA and the G League franchises get into the youth business like European clubs and the MLS. Youth basketball could split into two tracks: one for those who will go straight to a professional league, and the other for those who will go to college. Fear of the FBI could result in a change in behavior and concomitant market alteration.
The question on everyone's mind, of course, is "What will the NCAA do?" The answer most of us expect is: "Nothing" or some variation thereof. That answer is probably too simplistic, but the answer I would like to see is comically unlikely: "Follow the FBI investigation wherever it goes and mete out the punishment called for in its rules to all who are found to be complicit." The likelihood of that approach leading to a couple of NCAA tournaments lacking 80% of the top 25 programs and seeing several Hall of Fame coaches suspended for significant game action makes it virtually certain that the NCAA will not do this. Still, the NCAA faces a crisis of legitimacy. Given its mandate, its public statements, and the recent rule changes allowing its enforcement staff to use outside information in investigations, failure of the organization to punish severely at least those programs implicated in the evidence introduced into court would be the deathblow to its public credibility. Cynicism is already widespread and was intensified by the uNCheat fiasco. Expectations of no action need to be proven wrong in a decisive way, or let's just get rid of the regulations and close the enforcement arm.
What I think will play out is that there will be another round of indictments, defendants will plead, and the ripples will fade out. The FBI will be out there to deal with targets of opportunity in the future, but the active investigation will be closed. The NCAA will issue punishments against a couple of the programs and individuals most publicly implicated, the cbbaau cognoscenti and the fans of those programs and the coaching fraternity will all scream and howl how unfair the NCAA is being and how extreme the punishments are, and after a year or two those punishments will be slashed to a joke without ever having been served. Then ... nothing. However, due to the lurking potential of FBI involvement, the development of the G League, and the removal of the NBA's OAD rule, the amount and brazenness of bribery at the youth level will recede.
In the end, I see three truths from all this:
Corruption is endemic in our society today. Corporate corruption, political corruption, police corruption, personal corruption. Why should the sports we love be any different? Sports reflect society. Cynicism, distrust, "get what you can"/"every man for himself" philosophy are all rampant in society - why not in sports?
Truth number two flows from that one: That no audience in all of this cares enough about cheating to change its behavior based on the prevalence of cheating and the absence of consequences. Fans of the cheaters only care that they are winning and don't get punished. Players and their families either want to get paid or would rather do things the right way. Coaches and universities will either do what they can get away with or adhere to the rules. Fans of the programs that don't cheat will continue to grouse and snipe - but keep watching. General sports fans will continue to tune in come March then tune out after the first weekend of April. Then there's me: thoroughly disgusted with it all and inclined to drop the sport the way I have the NFL, but far too attached to this University community; to an athletic department that is committed to following the rules; to Tony Bennett who in a better world would be leading a far larger and more important community than a college basketball team; and to the young men who sign on every year to play for him - young men who are as I wrote previously "the finest group of young men in college basketball" - to stop supporting them.
Given that context, what incentive does the NCAA have to launch this big investigation, drag down most of the big name coaches in the game, and put half the top 15 on probation and out of the tournament? What stakeholder in the game wants to see them do that? The broadcast partners certainly don't! Only self-righteous finger-pointing moralizers like myself would appreciate it. The NCAA is in a precarious legal situation with its amateur model as it is, the last thing it needs to do is take a bat to the hornets' nest. Really, the NCAA cannot win: do nothing and confirm all cynicism and get roundly criticized; do something and get lambasted for being unfair and arbitrary while simultaneously the same people lead a chorus of scoffing that your efforts will do nothing. Given that, why do anything? And that's truth number three.
Go Hoos! Final Four or bust!