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NEW YORK — Assistant U.S. Attorney Ted Diskant was arguing in front of Judge Lewis A. Kaplan that the three men Diskant convicted back in October of defrauding universities by paying college basketball recruits deserved no leniency here at their sentencing.
Part of the argument was that the impact of the crimes went beyond tangible monetary value, such as the lost scholarship when a player they paid became ineligible. Diskant pointed to Louisville, one defrauded school, and how the university was in the process of trying to build a reputation as "much more than a basketball team."
"Yet it became involved in a basketball scandal," Diskant said.
Judge Kaplan couldn't help but interject, cutting Diskant off.
"They were involved in some problems before," Kaplan noted of the historically scandal-plagued Louisville program.
Diskant had to agree. Facts are facts, after all. Louisville was, indeed, already on NCAA probation and had been stripped of its most recent national championship before Jim Gatto, Merl Code and Christian Dawkins decided to kick some money to the father of Brian Bowen II so the top-30 recruit would play for the Cardinals.
Prior scandals included prostitute-powered parties in the basketball dorm and tabloid personal foibles of Rick Pitino, the school's longtime coach.
Thinking quickly, Diskant noted that even prior mistakes didn't merit being "re-victimized." It was a fair enough point. It also appeared to carry no weight with Kaplan.
Moments later, the judge all but tossed the federal sentencing guidelines out the 21st-floor window of the Daniel Patrick Moynihan federal courthouse and decided to make it clear what he thought about this entire case.
Gatto, a 48-year-old Adidas executive, was facing a recommended 46 to 57 months in prison. Instead, he got nine months.
Dawkins, a 26-year-old basketball middleman, and Code, a 45-year-old Adidas consultant, were staring at 30 to 37 months. They got six.
Kaplan then afforded them the courtesy of choosing their prison, namely whatever minimum-security federal camp was closest to their homes. How's a few months in Club Fed for you? Not that any of them are due to report until after they exhaust appeals, which could take years. It's not out of the question that the Federal Bureau of Prisons just gives them house arrest. Anything is possible.
Simply put, sentencing day couldn't have gone much better for the convicts.
"It's a fair sentence," said Dawkins’ attorney Steve Haney. "It's a lenient sentence."
As much as Kaplan wanted to take this seriously, as often as he noted that they were clearly guilty and knew what they were doing was wrong and just saying that everyone else does it also isn't a real defense ... well, this is still college basketball. Here at the Southern District of New York, cases are routinely about insider trading, drug-trafficking and terrorism.
It felt like he just couldn't work up the outrage. Louisville as the victim of Adidas, which pays the school $160 million to outfit its athletes?
"You have not seen Louisville or any of the other schools try to get out of its contract with Adidas," said Code's attorney Mark Moore, questioning just how upset everyone really is.
Kaplan said he felt obligated to give Gatto and company some prison time as a deterrent to others — "a great big warning light to the basketball world." That was pretty much the only reason, though. It almost sounded like he wanted to just hand out probation and move on.
The short sentences didn't just take the air out of the government's convictions in a case that began 18 months ago with bold talk and the promise of significant punishments. It sets the stage for the second trial in April, where Dawkins and Code are charged with bribing college assistant coaches to steer top NBA prospects to them for future representation.
If the defense has its way, then that is going to be a trial as much about the culture, and reality, of college basketball, as it is their clients.
Although Kaplan won't preside over the second trial, his sentencing suggests there’s a potential winning argument that this entire sport is a fraud, and turning NCAA rules into pseudo-federal statutes isn't fair. Diskant may have deftly won with the jury, but in the end, Judge Kaplan was sympathetic to reality.
"It's going to be a street fight," Haney promised. "I have very strong feelings about the case."
The defense has already issued subpoenas to compel testimony from Arizona head coach Sean Miller and LSU coach Will Wade. Each are on federal wiretaps talking to Dawkins about recruiting in conversations that could be played during the trial. Haney wasn't ruling out further subpoenas of additional figures in the sport. Asked how many college coaches he wants to put on the witness stand, he didn't hesitate.
"As many as I can get in the courtroom," Haney said. "We are going to pull back the curtains [on the sport].”
The possibility for fireworks should make the second trial even more newsworthy than the first — and plenty of NCAA dirt emerged from that one. What Kaplan never accepted was that there was a victim. He noted that players such as Bowen II had his "life wrecked" by losing his NCAA eligibility and common path to the NBA —Bowen is currently playing in Australia. But he also noted Bowen's own father played a big role in that. There isn't a lot of innocence here.
As for the schools — which first took Adidas’ money and then took the recruits that Adidas sent them, but never questioned how — that one remained a tough sell. Kaplan brought up a wiretapped conversation between Dawkins and Code where they discussed how Pitino maintained "plausible deniability" about how Bowen committed to Louisville.
"I'll never forget that," Kaplan said. "They knew it was wrong and they were covering their tracks. And they were making sure they were covering Rick Pitino's tracks. Why were they covering Rick Pitino's tracks? Because they knew he was out if he did know."
Pitino was fired anyway when the federal charges were first announced. He is the only head coach to lose his job thus far.
Louisville, Kansas and North Carolina State all offered victim-impact statements prior to sentencing. Louisville even claimed the case had demoralized alumni and defeated the fanbase. But as Moore noted, two of Louisville's own assistant coaches were involved in possible NCAA violations, "yet they have not yet been prosecuted." And if the school wasn't willing to fire Pitino after prostitutes entertained players and recruits at parties in the dorm, then how demoralizing could this have been?
"I think the way Louisville handled 'StripperGate' was telling," Moore said after the sentencing.
Haney was even more direct, mocking the entire concept that the Cardinals could be an aggrieved party, labeling it, "one of the most non-compliant and dirtiest basketball programs in the history of the NCAA."
That's the kind of rhetoric that is coming, and the defense was emboldened on Tuesday. Dawkins and Code are both determined to fight their additional charges. With such minimal sentences, the concept of years in prison no longer seems a remote possibility even if they are convicted again.
Both say they want to use the trial to force a change to the amateurism rules that prevent players to get their fair-market value and turned a nothing scandal into an actual federal case. Maybe something good can come of this, they argue.
"Something needs to change," Code said.
"This could transform college basketball," Haney said.
Full of confidence following Kaplan's sentencing, the fight is on, two defendants more than willing to tear everything down because they have nothing much to lose — and maybe so little time to serve even if they do.
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