Lawrence
The timetable, officially, has begun to move forward.
On Wednesday, the day of a guilty verdict in a federal court case that centered on corruption in college basketball, the University of Kansas responded. Jayhawks sophomore Silvio De Sousa was withheld from games pending a review of his NCAA eligibility. Chancellor Douglas Girod and athletic director Jeff Long released a joint statement for their first comments on allegations against KU made public in the trial, while men’s basketball coach Bill Self held an impromptu press conference to strongly defend the integrity of his program.
Self said he and his staff “have not and do not offer improper inducements” to recruits or their families “nor are we aware of any third-party involvement to do so.” But he also didn’t address specific allegations against the program made during the trial, saying he couldn’t comment on “information disclosed that has the potential to be related to a future inquiry.”
That echoed the Girod-Long statement, which said, in part, that: “Two additional federal trials are set for February and April 2019. Thus, we remain unable to fully comment on the issues before us. By limiting our comments, we are able to protect the integrity of the federal matters and the work of the NCAA.”
Testimony about De Sousa’s guardian receiving improper benefits was only one of the allegations involving KU basketball during the trial, which raised the possibility other NCAA violations occurred.
So could the KU basketball program face sanctions based on sidebar discussions, testimony and evidence introduced during the federal court case?
A scenario like that is possible, according to Josephine Potuto, University of Nebraska law professor and past chair of the NCAA Division I infractions committee.
Potuto doesn’t know exact details of KU’s situation and only agreed to speak in generalities, making clear her comments are not in relation to any specific incident. She said, though, that new material learned from court could potentially be used in an NCAA committee hearing, if it could be proven to be credible and sufficiently vetted.
“Yes (the NCAA) can use information from somewhere else. It still has to be reliable information,” Potuto said. “Had the information at the trial been developed under oath with a witness at the stand and with cross-examination, that would certainly make it more reliable than a sidebar.”
And this is why KU’s particular situation might be less clear than others.
Some material the defense claimed was an indication KU’s coaches knew about Adidas payments to student-athletes was admitted into evidence. That included an Aug. 9, 2017 text exchange between Adidas consultant T.J. Gassnola and Self that started with discussion about then-recruit Silvio De Sousa and his guardian Fenny Falmagne before appearing to transition to an upcoming KU-Adidas extension.
Gassnola, 9:33 p.m.: I talked with Fennie
Self, 9:34 p.m.: We good?
Gassnola, 9:34 p.m.: Always. That’s was light work.
Ball is in his court now
Self, 9:34 p.m.: Spoke to Sean. All good. (Prosecution attorney Eli Mark said during the trial that Self is speaking about KU deputy athletic director Sean Lester. KU announced a still-unsigned 12-year contract extension with Adidas the next month.)
Gassnola, 9:35 p.m.: Will it be done by Tuesday Deadline ?
Self, 9:36 p.m.: From what I was told yes
Gassnola, 9:36 p.m.: Great. Thank u boss
Gassnola also testified that Adidas executive Jim Gatto, one of the three men convicted Wednesday, told him he got a call from Self thanking him after De Sousa committed to KU on Aug. 30, 2017.
Many of the other defense allegations against KU’s coaches in the federal court case, though, were revealed in sessions between the lawyers and judge — conversations that were not heard by the jury.
That includes a wiretapped phone conversation between KU assistant coach Kurtis Townsend and Adidas representative Merl Code. The call — which the defense said involved the two discussing the financial demands of recruit Zion Williamson’s family — was only discussed by the lawyers and judge before being denied as evidence because it was outside the scope of the trial.
Though the NCAA’s infractions committee now is able to take into account information from another forum, like this court case, it’s unclear whether a discussion about non-admitted evidence would be deemed trustworthy.
“The lawyer is saying, ‘Here’s the evidence I want to get in, and here’s what I tell you, judge, the evidence is.’ So it’s not frivolous,” Potuto said, talking generally about sidebar conversations. “You wouldn’t as a lawyer say something to a judge when you didn’t think you could support your claim. On the other hand, the lawyer is representing a particular client, and there may be two or three inferences that might be drawn from the information. She’s drawing the inference most favorable to her client.
“So it’s reliable, (but) it doesn’t mean it’s going to be sufficient in itself.”
Which takes us to another unknown: Can the NCAA obtain these talked-about wiretaps and texts?
The NCAA infractions committee cannot force outside entities to cede evidence. However, Potuto admits that if the NCAA was able to obtain a potential wiretapped phone conversation to examine that it could make for “pretty good evidence.”
There’s little doubt that the stakes here will be high for both KU and Self.
If it is deemed, in future years or months, by the NCAA infractions committee that Townsend or Self knew of or helped with “improper inducements” made to student-athletes, the punishment would fall to the head coach, Potuto said. This falls under section 11.1.1.1 of the NCAA manual, which states a head coach is “presumed to be responsible for the actions of all institutional staff members who report, directly or indirectly, to the head coach.” In addition, head coaches must “promote an atmosphere of compliance.”
On Wednesday, Self stood by his assistants, including Townsend, when answering a question.
“I have total confidence in all members of my staff, including the one you mentioned,” Self said, “and feel as strongly about that today as I did five, 10, 15 years ago.”
If the defense allegations were proven true, Self could face a “lack of institutional control” charge. That would potentially be a Level I violation — the most serious of three degrees — with the NCAA manual making clear the potential punishments for specific cases.
Level I violations fall into three separate categories of their own: Aggravated, Standard and Mitigated. The punishment for each is different; “Standard” would carry a coach suspension of 30 to 50 percent of the season, while “Mitigated” would be up to 30 percent. That also doesn’t account for potential postseason bans, financial penalties, scholarship reductions and recruiting visit restrictions outlined in the rule book. (By already speaking publicly about cooperating with the NCAA, the most-serious “Aggravated” charge likely wouldn’t apply to KU if violations were found.)
A recent example of a “lack of institutional control” finding came in 2015. Syracuse coach Jim Boeheim was suspended nine games, as his basketball program was found to have issues with improper benefits, academic misconduct and the proper enforcement of drug policy. Boeheim and Syracuse had to vacate 108 of their wins, while the school was put on probation for five years with scholarship reductions and added financial penalties.
Something else to note from that Syracuse punishment, though: It came at the end of an eight-year NCAA investigation. A potential KU inquiry likely wouldn’t take that long … but it also could be something that would be resolved well into the future.
It’s widely reported that the NCAA has been told by the federal prosecutor’s office to not pursue any potential violations until after all the federal court cases have been completed. In addition, Potuto said NCAA investigations of big cases — with a lot of moving parts and people involved — can easily take one to two years.
KU could start its own probe now, but again, nothing could be fully settled until the NCAA becomes involved.
When it comes to infractions, Potuto said, the steps usually go like this. The university looks into a matter and decides whether it should self-report a violation. Even if the school decides to not self-report, the NCAA enforcement staff could make its own allegation based on information it has gathered. Either of those would result in an NCAA hearing where evidence is presented to infractions committee members, who decide the extent of the violations and if further action is needed.
That’s not a certainty to happen at this point. For now, the crucial factor for KU is something that was referenced by Big 12 commissioner Bob Bowlsby when he was asked about federal trial testimony that players’ families might have been paid.
“I’ll react to those allegations when they become matters of fact,” he said. “At this point, they are not that.”
So will the NCAA infractions committee ever be able to obtain what’s needed to pursue whether KU violated rules?
That appears to be the most pressing question.
“I can tell you what the penalties are if you make a finding, and I can tell you that the committee on infractions is entitled to look at evidence developed somewhere else. That’s also true,” Potuto said. “But the finding still has to be based on reliable, credible information that reasonable people would think lead to a conclusion.”
Jesse Newell
Jesse Newell covers University of Kansas athletics for The Star.