"The NCAA Commission's Report and Recommendations on College Basketball
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GOVERNANCE Ryan P. Mulvaney, Esq. Partner; NBPA certified basketball agent; FIBA licensed basketball agent [email protected] McElroy, Deutsch, Mulvaney & Carpenter, LLP, New Jersey The NCAA Commission’s report and recommendations on college basketball - some layups, some airballs On 11 October 2017, resulting from the arrests of numerous college coaches, Adidas representatives, and a recruiter for a now defunct sports agency in connection with the United States Attorney’s Ofce for the Southern District of New York’s (‘DOJ’) investigation into corruption in “the dark underbelly of college basketball1” - paying coaches, players and/or their families - the National Collegiate Athletic Association (‘NCAA’) President Mark Emmert announced the formation of the Commission On College Basketball (‘Commission’) to examine Division I basketball2. In this article, Ryan P. Mulvaney, Esq., Partner at McElroy, Deutsch, Mulvaney & Carpenter, LLP, provides his analysis of the resulting report and recommendations (‘R&R’) published by the Commission to address the issues in collegiate basketball in the US. Introduction when it comes to opining on monetarily Christian Dawkins of now defunct ASM In its R&R, the Commission noted rewarding players who are targeted by Sports, a financial advisor, Munish Sood, that those it interviewed not only Division I programs in grammar and high and a suit maker, Rashan Michel (‘Agent/ confirmed the DOJ’s allegations but school not for their academic prowess Advisor Defendants’);11 and an executive, highlighted concessions of actual but for their athleticism (ability to earn James Gatto, and representatives, knowledge: “everyone knew what universities and conferences money), Merl Code and Jonathan Augustine12, was going on3” and “many informed the Commission’s silence is deafening. of Adidas (‘Adidas Defendants’)13. [the Commission] that when the U.S. The universities identified in the Attorney’s Ofce announced the Although the Commission casts blame indictments are all public universities charges that led to this Commission, on the NCAA for its kangaroo court- (because they receive federal funding) the reaction was that ‘everyone like and inconsistent adjudications to which players were influenced to knows’ that these payments occur4.” of investigations, it largely shifted commit through improper payments - responsibility to third parties to fix Auburn14, NC. State, Louisville, Miami, To be sure, a literal pay-to-play the NCAA’s problems. To assess Kansas15, South Carolina, Oklahoma environment has knowingly existed the recommendations, however, we State, Arizona, and U.S.C16. at the intersection of education and must discuss from where we came. athletics. Why? The lure of money. Money The DOJ’s allegations of the two- generated and earned by the ‘student- The investigation and indictments pronged scheme are plentiful, athletes’ for the NCAA, universities, After a two year investigation7 that substantive, and set forth in particularised broadcast and cable television included a cooperating witness, fashion17. In the first prong, the ‘Coach companies, and apparel companies undercover agents and wiretaps, the Bribery Scheme,’ Agent/Advisor has grown to epic proportions and, FBI arrested ten people for their alleged Defendants allegedly paid Coach with it, pressures on coaches to win participation in a widespread conspiracy Defendants and sometimes players or for their programs and temptations by to commit and solicit bribes, wire fraud, their parents in exchange for Coach all to profit of players while they can. honest services fraud, and to defraud Defendants exerting pressure over Rather than make recommendations the US8. The investigation started players and parents to retain Agent/ concerning the root of the problem - with the assistance of a cooperating Advisor Defendants18. In the second money in basketball, and coincidentally, witness, Louis Martin Blazer III9, a prong, the ‘Sportswear Company Bribery a stance on whether players should financial advisor who pleaded guilty to Scheme,’ Agent/Advisor Defendants receive monetary recognition for securities fraud for misappropriating worked with Adidas Defendants, their eforts - the Commission took money from clients including professional including high school and Amateur no position despite recognising that athletes. Blazer coincidentally Athletic Union (‘AAU’) coaches whose “Division I men’s basketball… [is a] possessed and ofered his personal teams were sponsored by Adidas, to multi-billion dollar enterprise5.” Odd, knowledge of the alleged corruption pay players or their parents in exchange because although the Commission lacks in college basketball to cooperate for the players to commit to universities jurisdiction to change the NBA’s ‘one- for a lesser sentence in his case. sponsored by Adidas and a promise to and-done’ rule, it began its R&R and sign with Agent/Advisor Defendants19. devoted ten pages to opining how the Those arrested were Chuck Person, rule has “significant[ly] corrupt[ed] and Lamont Evans, Emanuel Richardson, and The Commission and R&R destabilize[ed] college basketball6.” Yet, Anthony Bland (‘Coach Defendants’)10; The Commission was established to 12 WORLD SPORTS ADVOCATE examine Division I basketball and ‘to involves only approximately 10 to 20 of Indeed, student-athletes should not be identify bold legislative, policy and the thousands of Division I basketball punished for staying in the Draft but structural modifications to improve the players. The Commission’s opinion not being drafted. The Commission’s integrity of our processes and the well- disguised as recommendation simply recommendation is a good start (as is being of our student-athletes20.’ The jumps on the bandwagon of recent its recommendation that players who Commission focused on the relationships public sentiment, and supports the leave college after two years be allowed of the NCAA, its universities, student- appearance that the R&R largely blames to complete their degree with funds athletes and coaches with apparel others because, as the Commission designated for them)31, but that would companies, with AAU programs, and acknowledged, ending one-and-done significantly limit players’ potential to with agents or advisors; the relationship is not within the NCAA’s jurisdiction26. sign undrafted free agent contracts, between the NCAA and the NBA, Summer League contracts, and two- including the one-and-done rule; No real reform can be had without a way and G-League contracts and would and ‘promot[ing] transparency and position and recommendation on the compel players to return to school. The accountability’ between the NCAA false notion of ‘amateurism.’ Although NCAA, NBA and NBPA should therefore and its universities21. In April 2018, the Commission briefly reviewed establish a deadline beyond the Draft for the Commission issued its R&R. the arguments involving financially undrafted players’ ability to be signed compensating players for the NCAA’s and still maintain collegiate eligibility. End one-and-done and universities’ use of their name, image The Commission recommended that and likeness, and financially recognising “If we take care of everybody and the NBA and NBPA end the 2006 players for the untold billions generated everything is done, we control collectively-bargained rule that by them for others, the Commission everything… You can make prohibits high school players from being took no position and chose to await millions of of one kid32.” immediately eligible for the NBA Draft. the outcome of pending litigation. The According to the Commission, ‘[o]ne- Commission missed an opportunity to set The Commission also recommended that and-done has played a significant role forth an opinion in support of the players. the NCAA ‘develop strict standards for in corrupting and destabilizing college the certification of agents, and authorize basketball, restricting the freedom of Allow student-athletes to test and make opportunities for those choice of players, and undermining the professional prospects with the certified agents to engage with student- relationship of college basketball to assistance of agents sooner while athletes at school at specific times33.’ To the mission of higher education22.’ The maintaining eligibility do so, the Commission suggested that Commission considered, but did not While declaring that the NCAA ‘should the NCAA develop an agent certification recommend, that the NBA and NBPA provide both high school and college program34 separate from existing adopt the ‘baseball rule […] which would players with additional flexibility in NBPA agent certification to ‘create make student-athletes who attend retaining collegiate eligibility while opportunities for ‘good’ agents to talk college ineligible for the draft of the assessing their professional prospects,27’ with high school and collegiate players G-League for two or three years23.’ the Commission recommended that and make their cases so that players the NCAA should allow players to would have all available options before Ultimately, ending one-and-done is declare for the NBA Draft but maintain they enter the professional market’ and correct because it will allow those who their eligibility if they do not sign a ‘intends NCAA-certification to provide are skilled enough to immediately and professional contract. The Commission’s these opportunities for “good” agents35.’ freely pursue their chosen profession. recommendation here is valid and The Commission also recommended To be sure, not every high school player