NCAA determination in Louisville case seems to contradict federal prosecution that sent 3 people to prison
Christian Dawkins is currently in federal prison in Alabama for, in part, defrauding the University of Louisville. Merl Code and James Gatto served between five and seven months this year, for in part the same reason, before being recently paroled.
Gatto and Code were executives and consultants, respectively, for Adidas grassroots basketball. Dawkins was a budding basketball middleman with a fledgling sports marketing agency.
Federal prosecutors accused them of using Adidas funds in 2017 to pay the family of U of L recruit Brian Bowen Jr. so he’d play for the Cardinals. (There were other recruits and schools as well).
The heart of the federal government’s case was that Adidas, due to having a lucrative endorsement contract with Louisville, qualified under NCAA rules as a “representative of Louisville’s athletic interests.” The company was essentially a booster and by providing the money it put the school in violation of NCAA statutes. That meant U of L could be subject to postseason bans, the repayment of NCAA tournament revenue and other penalties. This was the so-called “fraud.”
Prosecutors out of the Southern District of New York even had Louisville’s senior associate director of athletics for compliance serve as a star witness at the trial to say as much.
All three men were convicted. In addition to the incarceration, all had their careers derailed, spent massive sums on legal defenses and will be labeled as convicted felons for the rest of their lives.
On Thursday, the NCAA released its “Public Infractions Decision” on the Louisville case that included the Bowen allegations and other items.
Buried in the report was a stunning reversal. Adidas, the “Independent Resolution Panel” (IRP) ruled, actually wasn’t a “representative of Louisville’s athletic interests” due to its sponsorship agreement and thus its payments to Bowen weren’t a violation of NCAA rules.
“The mere existence of a sponsorship agreement is not enough to trigger the apparel company as a representative of Louisville’s athletics interests,” the panel determined.
Even more stunning, Louisville’s own compliance director reversed his opinion from what he testified in federal court.
“When asked about the relationship between the apparel company and Louisville in an interview with the enforcement staff, the senior associate director of athletics for compliance stated that in his opinion and based on his interpretation of NCAA bylaws he thought the apparel company would fall under the definition of a representative of Louisville’s athletics interests,” the report reads.
“The senior associate director of athletics for compliance testified similarly at the SDNY trial that sponsors per NCAA rules are considered representatives of the university’s athletics interests,” it continued.
“However, in his subsequent interview with the Complex Case Unit [the investigative arm for the IRP], the senior associate director of athletics for compliance hedged his prior testimony and interview responses by suggesting that he thought the specific facts and relationship must be considered along with the plain language of the bylaws,” the report stated.
The panel said it was "concerning" that "such a senior level compliance professional is unable to consistently provide direction and guidance" but it agreed with his new assessment and deemed Adidas to not be a representative. Thus there was no violation.
“So, if there was no NCAA violation, where is the harm to the ‘victim?’ ” said Steve Haney, the attorney for Dawkins at the trials. “The foundation of the wafer-thin fraud argument was based on acts supposedly harming the university which now are apparently determined not to have happened.”
Or as Merl Code told Yahoo Sports on Thursday: “Help me understand this.”
There isn’t an easy explanation.
“It was our interpretation that [Adidas was] primarily motivated by brand promotion and they were trying to take steps to promote their brand, not to promote the institution,” said David Benck, an attorney who chaired the Independent Resolution Panel.
Multiple defense attorneys in the case were dumbfounded by Thursday's revelation.
“The theory of the case was always flimsy but they were able to use the NCAA’s high-minded rhetoric to get a conviction without proving the usual elements of a fraud case, but apparently the rhetoric isn’t even true,” said Craig Mordock, who represented former Arizona assistant coach Book Richardson in a separate part of the investigation. Richardson served three months in prison as part of a plea deal.
“The case was prosecuted under a false premise,” Mordock said.
Another defense attorney called it, “Unbelievable.”
The federal charges were sprawling and involved numerous schools. No single fact can necessarily change the outcome of a trial (let alone two of them). However, the key tenet of the entire government theory and reason for prosecution in the first place was that the defendants had committed NCAA violations.
Yet now the NCAA’s “Independent Resolution Panel” has ruled otherwise. Not only would such information have dramatically changed defense tactics, the cases may never have even been brought to court in the first place.
There are additional stunning conclusions that came from the NCAA ruling, including the NCAA panel determining Brian Bowen Sr., who was a star witness for the government at the first trial, to be “not … credible based on the conflicting accounts and uncertainties in his representation.”
And, of course, that the NCAA now permits shoe and apparel companies to pay high school and college players for their name, image and likeness, which means the concept of “amateurism” that the government tried to protect via prosecution isn’t even adhered to any longer by the NCAA itself.
It’s what has been most frustrating for Code and the others, especially as they sat in prison and watched their previously successful and law-abiding lives upended. And they feel for the players, such as Brian Bowen Jr., who had their college basketball careers ended for no good reason.
Code, a former Clemson basketball player, spent nearly two decades with Nike and then Adidas Basketball, specializing in the grassroots of the sport. While recruiting top high school talent and AAU teams was often cutthroat and colorful, no one ever considered it ran afoul of federal laws. The son of a prominent South Carolina attorney, Code, 48, always said if he suspected that, he would have walked away and done something else.
Instead his old career is over, he missed his son’s 5th birthday while behind bars and despite being a high-function, high-motor employee, he is currently without work and dealing with being labeled a felon. At no time did anyone find or allege he ever misappropriated funds, cheated his bosses or anything like that, but "fraud" is a tough charge to explain to a potential employer.
He supposedly violated NCAA rules, except now the group that rules in complicated NCAA cases has said that maybe he didn’t. And while the “Independent Resolution Panel” isn’t technically the “NCAA,” it all looks the same.
“The truth doesn’t matter,” Code told Yahoo Sports on Thursday. “Upsetting the big business apple cart is what matters.”
As Code sees it, when it was helpful to the NCAA to go along with the federal government and claim Adidas was a representative of the schools it sponsored, then that’s what happened. The fact that relatively anonymous figures were jailed didn’t matter.
Yet when it comes to punishing major universities, famous coaches and potentially losing huge fan bases due to NCAA men's tournament bans, then suddenly it’s a different story.
“They indicted 10 men, all of them but one of color, sent four of us away for this stuff because it’s against NCAA rules, but the NCAA says the exact opposite when it can protect all the wealthy, powerful white coaches,” Code said.
“I don’t care what the NCAA rules now, I don’t want to see any coach or anybody lose their livelihood,” Code continued. “But no one needed to go away for this."
And Christian Dawkins isn’t scheduled for release until July 12, 2023.