Analysis: Understanding what matters and what doesn't in the NCAA's case against KU

The pregame men's basketball crowd at Allen Fieldhouse is shown in this file photo from Dec. 2, 2009.

Read the message boards or chat rooms and it has been apparent for awhile that KU basketball fans were in for a rude awakening. The alarm began blaring on Monday when the NCAA document came in the mail.

That document — a Notice of Allegations, which is the NCAA’s equivalent of an indictment — claims the men’s basketball program was involved in some shady recruiting practices and could face some of the stiffest penalties the NCAA can levy. A loss of scholarships, a suspension of head coach Bill Self and a ban on postseason appearances are all in play.

In their response, it seems like KU officials understand what this case hinges on, but the sports radio and online chatter make it clear that many fans and some pundits don’t. KU fans have been building defenses for KU that probably won't matter much in the end. The case hinges on whether Adidas employees — people like T.J. Gassnola, James Gatto and Merl Code, all convicted of federal fraud charges — are categorized as boosters of the university.

This is not unexpected. The Journal-World has been reporting since February that the case took a major turn when the NCAA ruled in a related case that Gassnola was a booster of KU. If he is a booster, the NCAA rule book seems to make it clear that KU is on the hook for a lot of violations. Forget the money he paid the family of recruits. He was making contact with recruits, seemingly with the knowledge of KU basketball coaches. That is a classic activity that a booster can’t do and an automatic activity that coaches are supposed to report as soon as they become aware of it.

It is important to note that KU hasn’t argued that boosters are allowed to make such contact. Instead, KU says it “emphatically rejects” the notion that Gassnola and other Adidas executives are boosters of the school.

We don’t know the details behind KU’s rejection of that notion. We won’t see KU’s formal response to the allegations for several months. For what it is worth, the Journal-World in February talked to two experts on NCAA rules. One expert, Josephine Potuto, a former chair of the NCAA infractions committee, said it was pretty clear to her that a representative of an apparel company could be a booster, if that person is doing something to steer a recruit to a particular school.

William H. Brooks, an Alabama lawyer who has represented universities facing NCAA infractions, said there may be a little bit of a gray area in whether someone who has a corporate connection to a university also can be a booster. KU’s hopes for the future seem to be residing in that gray area. How KU crafts its arguments over the next several months likely will be the next big development in this case.

But once you understand that the case hinges on whether Gassnola and others are boosters, you can start to see how much of what fans and some pundits are talking about really doesn’t matter. Here’s a look at some of those arguments:

The NCAA’s case is weak because Billy Preston never played in a regular season game for KU. As a reminder, Gassnola has admitted to paying Preston’s mother $90,000 to steer Preston to KU. The fact that KU held Preston out of regular season games, though, doesn’t matter to KU's case. Exhibit No. 1 that it doesn’t matter: the University of Kansas.

After the 1988 National Championship, KU was banned from postseason play for one year. The reason: Boosters provided impermissible benefits to a student athlete who was thinking about transferring to KU. The student-athlete never transferred to KU. He was even less a member of the KU basketball team than Preston was. And KU still got a one-year postseason ban.

KU can’t get in trouble for Silvio De Sousa because he already sat out a season, and the NCAA has ruled he’s now eligible. As a reminder, Gassnola has admitted to paying the guardian of De Sousa $2,500 and arranged to pay more for De Sousa to attend KU. It is true that De Sousa has been ruled eligible by the NCAA. But this also doesn’t matter to KU’s case. To understand why, think of it in terms of a normal workplace. There is an employee and an employee’s boss. The employee does something wrong (in this case it was De Sousa’s guardian who did something wrong but that is a different argument for a different day.) The employee gets punished. Just because the employee’s punishment has been handed down, that doesn’t mean that the employee’s boss is now exempt from punishment. The athletic department is the boss in this analogy. Its boss — the NCAA — is now saying, either you knew of this transgression or should have known. We’re done dealing with the employee. Now we have turned our attention to you.

KU can’t get punished in this case because federal prosecutors said KU was a victim in the federal fraud case. Indeed prosecutors did argue KU was a victim in the case. But that won’t matter when it comes to the NCAA proceedings. One of the odd twists in all of this is that Monday's action by the NCAA kind of proves the point of federal prosecutors that KU is a victim. The actions of Gassnola and others have KU on a path to major penalties from the NCAA. KU is going to feel like a victim if its record streak of postseason appearances ends. But how can a victim also end up getting punished? It really isn't that uncommon. Think of it like a store that is a victim of shoplifting. The shoplifter may get punished in a court of law. That, however, doesn’t mean the store’s department of security also isn’t going to get punished by the store’s management for not doing enough to prevent shoplifting. In this analogy, the NCAA is the store’s management. The athletic department is the store’s department of security.

KU and Self can’t be punished for the money Gassnola paid to Preston and De Sousa’s representatives because Gassnola has testified Self didn’t know about the money. It is true that Gassnola has testified that KU coaches didn’t know about the money that was paid to lure recruits to Kansas. But that doesn’t matter. The NCAA isn’t alleging that Self or coaches knew of those payments. Here is the part that is particularly hard for fans to understand. The money is nearly immaterial at this point. The NCAA doesn’t need to tie KU to knowing about illicit payments to make its case against the university. This is where the idea of Gassnola as a booster is so critical. All the NCAA has to prove is that KU was getting assistance from a booster to land recruits. NCAA rules generally prohibit boosters from helping schools get recruits. Impermissible assistance from a booster can be as simple as a booster talking up a school to a recruit.

It is not even clear that the school has to know that a booster was engaging in such activities in order to get in trouble from the NCAA. That may sound unfair, but it also probably won’t play much of a factor in this case. The NCAA is alleging that KU officials did know that they were getting help from boosters — although they didn’t know of the illicit payments. What type of help? The NCAA alleges that Self and assistant coach Kurtis Townsend encouraged Gassnola to call a representative of a recruit (believed to be De Sousa.) Boosters can’t do that, and coaches certainly can’t ask a booster to do that. The federal fraud trial earlier this year brought forward information about multiple instances where Self and Townsend had communication with Gassnola and other Adidas officials. In those conversations, KU coaches seemed to be trying to get information about what a recruit said or which direction he was leaning. As a fan, maybe you think that is no big deal. But the NCAA seems to think it is a big deal. It puts strict limits on how many people in a basketball program can be engaged in recruiting activities. It doesn’t want an outside entity like Adidas to become a third-party recruiter for programs. It certainly doesn’t want money changing hands, but this case seems to illustrate it doesn’t even want shoe companies working in other ways to steer kids to specific schools. You can say that is a disingenuous belief by the NCAA, but that too probably won’t matter much. The NCAA can point to the fact that booster assistance in recruiting has long been against the rules.

All of this shows why Kansas will be arguing that the NCAA has erred in determining that the Adidas officials are boosters. Otherwise, it is a very tough hill to climb to argue that boosters can have this much contact with recruits. This could be a landmark case for the future of NCAA regulation.

Based on its initial response, another strategy KU likely will employ is that the NCAA simply has some of its facts wrong. It will argue that the NCAA has misinterpreted the conversations of KU coaches and Adidas officials. In his official statement, Self said the NCAA’s narrative is “based on innuendo, half-truths, misimpressions, and mischaracterizations.” He said he and KU would present verifiable facts that will “expose the inaccuracies of the enforcement staff’s narrative.”

Exactly what facts KU officials have, and what arguments their attorneys will make, probably will be the biggest issues for a KU fan base to follow in decades.

Comments

Len Shaffer

Thanks for laying things out clearly, Chad. It certainly doesn't look good for KU, but hopefully the evidence they have will be overwhelming enough to change the NCAA's mind. And of course we all know that the NCAA has a stellar reputation for listening reasonably to arguments against their positions ...

2 months, 3 weeks ago

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Stuart Corder

How can one individual be a “booster” for multiple schools?

One would have to stretch or redefine what a “booster” is for the accusations to be valid.

2 months, 3 weeks ago

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Brett McCabe

Easy. A booster is someone who has an interest in a school succeeding. It doesn’t mean you can only be interested in one school succeeding. If, as a booster, my pockets get lined by multiple schools succeeding, then I’m all-in on multiple schools.

Instead of making excuses for this program, real Jayhawks will demand much, much, much better from it.

2 months, 3 weeks ago

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Mike Hart

Spot on, Brett

2 months, 2 weeks ago

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Brian Wilson

Chad....thank you for laying out what I clearly stated yesterday in my comments. This is about who is a booster. I am afraid KU will have to take this into a real court of law. I am sure that no matter what you say to the NCAA they are going to find KU guilty just because they say so. But in reality their arguments should be on thin ice.<br><br>
IMO, the NCAA's interpretation, definition of the word "Booster" is Overly Broad and should be thrown out! The NCAA definition would have to include any company that holds a contract with KU or with the State of Kansas for that matter as a booster especially if they recommended a player in any sport to attend the University of Kansas. So recruits should not be allowed to eat at Chick-Fil-A on campus or speak to their employees or there could be a recruiting violation. <br><br>With respect to Adidas, I am sure that they go around recommending players attend Nike schools....after all, Adidas, and all Kansas contractors want great athletes to attend UK! (I'm afraid NOT!) Such activity is in the course of normal business.

I have too much more to say here.....so for now ....KU should fight this tooth and nail and when timing is right take this to a real court.

2 months, 3 weeks ago

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Barry Weiss

Well, I would try to get this into the legal system somehow, maybe by filing a lawsuit against the NCAA over this issue of how a booster is defined or determined. A judge could decide that. I would not want the NCAA to be able to determine who is and who is not a booster. By what is stated in the article above, just about any sales rep or account rep or whatever they are called for Adidas or Nike would fit into the booster category. Of course those employees of those companies what recruits to go to a school they have a contract with. Indeed that employees compensation is probably tied to that.

2 months, 3 weeks ago

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Dane Pratt

Well that certainly paints a bleak picture. Sounds to me like we are screwed.

2 months, 3 weeks ago

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Michael Sillman

KU coaches’ conversations with Adidas employees should be strictly limited to apparel colors and nothing more. There’s no legitimate reason for a recruit’s name to even come up in such a conversation. Obviously names were discussed based on the evidence presented at trial.

2 months, 3 weeks ago

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Brian Wilson

That's pretty impossible when it's Adidas and Nike, etc.... that are putting on, sponsoring, funding, and providing apparel for all of these leagues, teams, and tournaments that the coaches attend for recruiting purposes.<br><br>
What you could really be saying is that it should be illegal for the apparel companies to put on such events and then it wouldn't be an issue.....or that coaches can no longer attend events sponsored by these companies.<br><br>

But,,,,as long as they are putting on the events and the NCAA is ok with it, they will be discussing and inviting the players that the coaches are interested in seeing. Hence, the NCAA should take control or shut up because their use and definition of "Booster" in this case is Overly Broad and doesn't hold water.

2 months, 3 weeks ago

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Layne Pierce

Coach Self has the issue dead on, "the NCAA because of the Rice commission, and the trial of the gassnola and the others is under immense pressure to put some pelts on the wall. Especially big time pelts. So how about Arizona? KU should go full bore on this. No school should be put on probation because of heresay or public pressure. And yes, just like in the cAVENAUGH case, a school should be innocent until proven guilty. Actually this case could seriously threaten the NCAA, if KU shows that the NCAA is capricious in its charges and its penalties. Have been enraged by the DeSouza episode, I am now ready to go the mat on this one. For KU to be put on probation show that KU asked Gassnola to do what he did, and that KU paid him to do it. Show that Kurtis Townsend knew Gassnola was paying players. I think what is realistic is that KU knew that Gassnola was urging players to go to schools his company had affiliations with, and Townsend in the message meant "we will do whatever we have to do" meant anything legal that could be done. How does one imply that he meant anything, even if it was illegal.

I fear, however, that as usual, the NCAA wants to hit KU harder than others, it wants to make an example of us. This time we must force the issue. Being great does not meat we should be assumed to be guilty or fulfill the need for a pelt.

RcJH

2 months, 3 weeks ago

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Armen Kurdian

So here's the case agains the 'booster' definition. By the standards the NCAA seems to be defining, a booster could hide his or her actions and do things in the absence of all knowledge by a school in order to bring darkness around said school. Say some employee or business development rep of an apparel company is disgruntled about something with a school, so all he or she has to do is find someone to give money, payment, or other benefit to in order to tarnish the school.

The NCAA is defining a rule book that the school doesn't have sufficient control over and is being held responsible to enforce, despite the fact it cannot control the actions of an individual who is not employed by the school. This will go to court, and I don't see KU giving up until every last legal channel is exhausted.

2 months, 2 weeks ago

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Brett McCabe

When was the last KU penalty? So, out of all the big-time schools in the country, the NCAA has randomly picked Kansas as their prize pelt?

My goodness, the victim-hood on this site would make Antonio Brown squeamish.

The program is dirty. Has been for a long time. Time for a power wash. If the NCAA is what it takes....welcome in.

2 months, 3 weeks ago

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Layne Pierce

If the evidence unequivocally shows that KU is dirty, then so be it. Let justice be done. But if KU is just being used as a scapegoat, if the evidence does not really matter, if KU seems an easy target, then KU should fight it to the last breath.

RCJH

2 months, 3 weeks ago

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Bret Eckert

McCabe

Stop with your rants. Nobody likes you or the BS you type.
The following is how the NCAA defines a Booster:

"representatives of the institution's athletic interests," include anyone who has: Provided a donation in order to obtain season tickets for any sport at the university. Participated in or has been a member of an organization promoting the university's athletics program.

2 months, 3 weeks ago

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Robert Brown

The definition of booster also includes:

-Assisted or has been requested by university staff to assist in the recruitment of prospective student-athletes.
-Assisted in providing benefits to enrolled student athletes or their families.
-Been involved otherwise in promoting university athletics.

There probably is a gray area, but the text messages seems to indicate that KU staff requested assistance in recruitment. It would seem that all shoe companies to some extent promote university athletics.

2 months, 3 weeks ago

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Brian Wilson

Unless you are making all sponsors automatically boosters then the definition is too broad. Adidas is a sponsor not a booster. Boosters make donations and may receive tax deductions. Sponsors pay for marketing rights and advertising and it's the cost of doing business. A part of that cost is the Sponsors helping promote the school, team, events and venues where they advertise and use for marketing. So it shouldn't matter if the school asks for assistance or not....it's the job of Adidas to help promote and is has been normal business practice. <br><br>
When kids attend Adidas sponsored leagues tournaments and events, Adidas promotes the schools that they sponsor in order to get the best players for it's schools and to make their teams the best in order to have greater attendance, notoriety, and bigger and better advertising. i am sure that Adidas communicates with it's schools(marketing channels) to identify which players those schools have interest in recruiting so that they can be invited to events. IMO, the NCAA may be walking a thin line as Adidas and every other sponsor may have a law suit if the NCAA is saying that Adidas does not have the right to conduct business and promote it's products.

2 months, 2 weeks ago

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Layne Pierce

There is a really dirty side to this "booster" argument, and that is that KU was forced by the NCAA to call the man a "booster" in order to get DeSouza reconsidered. At that time KU stated that it was under duress, and that Grassola was not a booster.

So it looks like the NCAA was forcing the definition of Grassola as a booster onto KU, so they could then put a penalty on them. I'm sorry but that is not right!!! Coercion is not evidence.

RCJH

2 months, 3 weeks ago

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Robert Brown

It has not been clear what happened here. Long made a comment about “hypothetically” claiming the Adidas rep as a booster. Those were his words. I’m not sure why you are claiming the NCAA forced Long to make that claim. He didn’t have to make the booster claim.

2 months, 3 weeks ago

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Doug Horn

The NCAA required KU to label Grassola a booster in order for them to consider the DeSouza appeal. That came out a long time ago.

2 months, 3 weeks ago

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Craig Carson

Which seems highly illegal..imagine being accused of a murder you know you didn't do but the judge tells you the only way they will allow your case to even have a trial is if you agree to a plea deal.....which is basically you admitting guilt of a crime you know you didn't commit

2 months, 2 weeks ago

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Doug Horn

I hope/wish KU recorded the conversation or the email communication so that they can show the world how the NCAA made them declare Grassola a booster. KU needs to take this to federal court.

2 months, 2 weeks ago

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Doug Horn

Bottom line is that the NCAA is in big trouble here because a lot of Division 1 schools have this kind of thing going on. If you think that this is limited to KU, Arizona, Oklahoma State, Louisville, NC State and the other schools named in the Adidas trial you really need open your eyes. The only reason Nike schools aren't in the headlines is because one of the people involved tried to blackmail Nike. Nike called the FBI and so everyone thinks what the guy says is a lie. KU made a big mistake calling Gassnola a booster in order to have DeSouza's appeal heard by the NCAA. I respect the fact that KU stood by it's player and did what had to be done. But based on the definition of a booster above, couldn't every shoe manufacturer be considered a booster? If they received tickets to games it would seem that Adidas, Nike, Under Armour or any shoe manufacturer could all be labeled as a boosters. All of the shoe manufacturers want the best players to go to one of their sponsored schools. They want a return on their investment. One could also take the testimony that is being used against us to point the finger at a Nike school. Does everyone think that Zion only asked Adidas for a job for his step dad, a house for his family and money? If you believe that once again open your eyes. We can not say that we are 100% clean in this situation. So we need to come clean, accept responsibility for our actions, accept the penalties, but DO NOT let the NCAA run over us.

2 months, 3 weeks ago

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Jeff Kallmeyer

Has AZ received an NOA for the Ayton debacle? Didn't that take place before the DeSousa and Preston cases?

2 months, 2 weeks ago

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Doug Horn

Ayton occurred the season before last. The FBI has on tape the head coach saying to the Nike rep to talk to him and not his assistant about Ayton. It is my understanding that the head coach payed Ayton $10,000 per month for 10 months while he was at AZ. The Nike rep testified to that fact that Sean Miller paid Ayton with his own money.

2 months, 2 weeks ago

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Titus Canby

Great article. Thanks for the clarification Chad.

Heres' my question. What power does the NCAA really have? It can ban us from the NCAA tournament because the NCAA owns it.. But can it really take victories outside the tournament away from us? Conference championships?

If we all hate the NCAA so much, what stops schools from forming their own group such as NAIA?

2 months, 2 weeks ago

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Mike Greer

Again, California may make this whole MCAA thing do away if they stick to their beliefs that NCAA rules and the NCAA itself are irrelevant.

If this were to go to a real court of law it could take years to be settled. And the NCAA would be hard pressed with their booster definition.

I'm one of those that thought long ago that the NCAA was entrapping KU with the Silvio case and making them call Gassnola a booster inable to get a review of his eligibility. It now looks like that is their entire case against KU, is he or is he not a booster?

2 months, 2 weeks ago

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Craig Carson

That's because the NCAA did entrap KU..they literally forced KU to admit to something they didn't do because they knew KU needs something from them

2 months, 2 weeks ago

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Barry Weiss

ya to me the NCAA should never have gone forward with their NOA agains KU until they knew they could prevail on the California matter. They are too closely related in some ways and to smear our name and penalize us when other states and courts may shoot down their whole no compensation model is totally unfair and wrong.

2 months, 2 weeks ago

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