Fallout from the U.S. Justice Department’s prosecutions of sneaker executives, coaches, recruiters and other figures in the muddy world of college basketball recruiting continued to spread on Monday. After months of anticipation, the NCAA sent the University of Kansas its notice of allegations. This development was first reported by Pat Forde, Pete Thamel and Dan Wetzel of Yahoo Sports. By Monday evening, the public university had posted a partially redacted version of the 20-page notice; had it not done so voluntarily, the university may have been obligated to do through public records requests.
The NCAA portrays Kansas Athletics as flagrantly violating amateurism
The NCAA’s notice of allegations refers to multiple Level I violations. A Level I violation is the highest of four possible NCAA infraction levels. It refers to “any violation that provides or is intended to provide a substantial or extensive recruiting, competitive or other advantages, or a substantial or extensive impermissible benefit.” Here, NCAA enforcement administrators contend there is sufficient evidence of the Jayhawks men’s basketball program seriously undermining or threatening the integrity of the NCAA collegiate model. Stated more bluntly, the NCAA insists that Kansas cheated in the world of basketball recruiting.
As depicted by the NCAA, Kansas exhibited a glaring absence of institutional control in recent years. NCAA bylaws require that member schools implement and enforce procedures to ensure that the athletic department complies with NCAA rules. As an overarching point, schools must abide by the NCAA’s core tenet of amateurism. Amateurism is the principle that college athletes are amateurs, not professionals. Amateurs, as the NCAA sees it, can’t be paid beyond the grant-in-aid. Essential compliance procedures for NCAA members include, among other things, regular education on compliance, extensive monitoring of coaches and players and timely actions upon a finding of a violation.
The NCAA’s notice details repeated interactions between T.J. Gassnola, a former Adidas consultant and AAU coach, and Jim Gatto, who served as Adidas director of global sports marketing for basketball. The two men contemplated strategies for the recruitment of high school basketball stars who were of interest to Kansas and other Adidas-sponsored schools. Gassnola, Gatto and other individuals partook in a conspiracy that relied on banking transactions and electronic communications to bribe high school basketballs stars and/or their family members and guardians. The payments constituted impermissible inducements to attend certain colleges, including, the NCAA argues, Kansas.
Gassnola and Gatto are both familiar names. They were key figures in the college basketball corruption prosecutions. After being caught on a government wiretap discussing paying bribes to players, Gassnola cut a deal with federal prosecutors from the Southern District of New York. He agreed to both plead guilty to conspiracy to commit wire fraud and testify against other witnesses. He also pledged to turn over all relevant electronic evidence. This deal led to Gassnola avoiding jail time. Earlier this month Gassnola was sentenced to a one-year term of supervised release.
Gatto was less fortunate. Aided by Gassnola’s damning testimony and shared evidence, Gatto was convicted on wire fraud and conspiracy charges last October. In March he was sentenced to nine months in jail. Gatto is appealing the verdict.
The NCAA was able to rely on court testimony—which is inherently reliable since it was made under penalty of perjury—and multiple sources of evidence related to the prosecutions in order to bolster its investigation into Kansas. The notice claims that Gassnola, with Gatto’s approval, bribed either Kansas recruits or their family members or guardians.
Among the Kansas recruits believed to be connected to the alleged payments are two former five-star recruits, Billy Preston and Silvio De Sousa. Preston, who attended Kansas as a student during the 2017-18 academic year, would never play in a game for the Jayhawks. While the subject of an investigation by Jayhawks compliance staff, Preston withdrew from school and signed with a pro team in Bosnia. He currently plays for the Texas Legends of the G League. Gassnola allegedly paid Preston’s mother $90,000. De Sousa is a student-athlete at Kansas. The NCAA had ruled him ineligible to play in 2019-20 but he successfully appealed the ruling. He is currently eligible to play. Gassnola previously testified that he paid a guardian for De Sousa $2,500.
The NCAA enforcement staff contends that Level I violations are appropriate classifications for Kansas’s alleged infractions given that the violations were neither isolated nor limited, and that persons acted on behalf of Kansas’s interests to provide both “substantial” recruiting advantages and “extensive” impermissible benefits. NCAA enforcement staff also faults the university’s athletic department for failing to know, or take sufficient action in response to, third parties’ interfering with university compliance.
The NCAA sharply criticizes Bill Self
Head coach Bill Self also faces multiple Level I charge for allegedly violating, among other NCAA rules, Bylaw 184.108.40.206 (titled “Responsibility of Head Coach”). This bylaw makes clear that 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.” Along those lines, head coaches are obligated to “promote an atmosphere of compliance” and “monitor the activities” of those who report to him or her. The bylaw therefore ensures that the “buck stops” with the head coach, even if the actual wrongdoer was an assistant coach or another figure associated with the program. The logic behind holding the head coach responsible is to incentivize him or her to stress that everyone in the program must abide by compliance requirements. A head coach saying, “it wasn’t me”, is not a viable defense under this bylaw.
The NCAA offers an especially harsh account of Self, with details on multiple instances where he, allegedly, broke rules. For instance, Self and assistant coach Kurtis Townsend are accused of engaging in a pattern of impermissible recruiting inducements and contacts. Along those lines, Self allegedly urged Gassnola to engage in unauthorized recruiting activities on behalf of the school. Self and Gassnola also reportedly exchanged texts about recruits. Self is criticized for not only willfully defying basic compliance requirements but also neglecting to emphasize the value of compliance in his program.
The Jayhawks football program also faces allegations, though they are Level II violations. Such alleged violations are lower in severity than the ones faced by the basketball team. Here they concern alleged services provided by an additional football coach.
Kansas will appeal
The NCAA’s notice of allegations is neither a neutral document nor should it be perceived as containing certain truths. The notice describes the facts as told from the perspective of NCAA enforcements staff. The notice explains the NCAA’s reasoning as to which rules Kansas allegedly violated.
Kansas has an opportunity to challenge the notice and rebut its assertions. A university statement released Monday evening indicates the university will do so. The school also “emphatically rejects the assertion that Adidas and Adidas employees and associates were boosters and agents of the University.”
Per NCAA rules, Kansas will have up to 90 days to respond to the notice of allegations in writing. Attorneys retained by Kansas will have an opportunity to review applicable NCAA evidence, which may include recorded interviews, summaries of purported facts and transcripts. The school’s response will be examined by the NCAA Committee on infractions, which will have 60 days to reply to Kansas.
Eventually, Kansas officials and attorneys would have an opportunity to appear before the Committee on Infractions. The Committee would issue a ruling in a matter of months. Kansas could then appeal to the NCAA Infractions Appeal Committee. This multi-step process likely won’t be resolved until 2020.
If Kansa is eventually found to have committed a Level I infraction, it could face such penalties as a reduction in scholarships, a postseason ban, and a fine costing millions of dollars.
Self will also appeal—and he’ll need to in light of potential show-cause penalty and contract termination
Like his employer, Self has an opportunity to defend himself with assistance from legal counsel. The university’s public statement Monday evening included written remarks from Self in which he indicated that he will appeal. Self dismisses the NCAA’s narrative as “based on innuendo, half-truths, misimpressions and mischaracterizations.”
To successfully defeat the NCAA���s claim, Self will need to rebut the presumption of responsibility and also establish that the various instances of alleged misdeeds never occurred. Accomplishing those tasks could prove challenging, particularly since the NCAA is relying in part on sworn testimony. An effective rebuttal by Self would, at a minimum, convincingly establish that he promotes an atmosphere of compliance within the program and that he effectively monitors the activities of those who report to him.
An adverse finding against Self could lead to a series of negative outcomes for the 56-year-old coach. First, he would be at risk of an NCAA “show-cause” penalty, which reflects a penalty that remains with the coach even if he or she takes a coaching job at another school.
A show-cause penalty would require any NCAA member that wishes to employ Self to convince the NCAA that it can credibly monitor the coach’s compliance with NCAA rules. Only if the NCAA is convinced can the school then employ Self in an athletic role. A school granted the opportunity would do so at its own peril: it would be punished if Self violates rules in the future.
Second, Kansas could eventually fire Self, who will be paid approximately $4.1 million in 2019. Worse yet for Self, the school could classify a firing as “for cause,” which would in turn substantially reduce Kansas’s obligation to pay him. The $52 million contract Self signed with Kansas in 2012 indicates that he can be fired for cause in the event of “major violations of NCAA rules and regulations.” The contract, which lasts from 2012 to 2022, also notes that Self would be paid a diminished amount if fired with cause. The specific compensation formula that would be applied to such a firing is indicated below (as shown in a posting of his contract):
"In the event [Kansas] terminates [Self’s] employment agreement for cause, [Self] shall receive an after-tax payment for every year which amounts have vested as $500,000 for every full year Self has been employed as head basketball coach after April 1, 2011, through the date of termination. A full year shall be defined as a year beginning on April 1 and ending on March 31. In the event of Self’s termination with cause before the end of any full year, this payment shall include an amount established by dividing by dividing by 365 a numerical figure obtained by multiplying the number of calendar years served during the partial year (that begins on April 1) by the amount of after-tax $500,000"
Kansas and Self are not alone in facing the wrath of an NCAA reliant upon federal prosecutions. In July, NC State and former head basketball coach Mark Gottfried were hit with Level I violations. Other schools and their head coaches implicated by the prosecutions could be next.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.