Friday, February 11, 2011

AUBurgeddon: Precedent for use of federal evidence in NCAA cases

JailAubie Via email and Twitter late yesterday and through the evening, I was peppered with questions regarding the likelihood that evidence developed during federal cases would ever come to light in sufficient weight to be used in an NCAA case against the Auburn athletics program. 

Specifically, if evidence of pay for play is uncovered, can the Department of Justice provide it to the NCAA?

The answer is not only “YES,” there is already precedent for it.

From USC Title 18, Part 1 Chapter 119: 


§ 2517. Authorization for disclosure and use of intercepted wire, oral, or electronic communications

(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.

(3) Any person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.

(4) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.

(5) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.


Apparently, someone has posited the theory that, if evidence of NCAA violations is uncovered in a federal criminal investigation, that evidence will never come to light because the NCAA violations aren’t violations of federal law.

Well, some are, and some aren’t. A booster giving a fraudulent loan is both a federal and NCAA violation, but a booster cutting a check or handing over an envelope of cash isn’t both, unless the money is laundered. You can come up with all sorts of hypothetical separations and unions of the two jurisdictions, but that would be moot to the question at hand: Would the evidence (wiretap recordings, for example) ever come to light?

There’s already a very high profile precedent for cooperation between the FBI and the NCAA in cases where the two jurisdictions intersect. Look no further than the Michigan Fab Five case of the 1990’s. which, interestingly enough, all got started with an investigation of a gambling operation.

Cliff Notes Version:

A Michigan booster was running a numbers game in Ford Motors plants throughout the Detroit area. As the investigation expanded, relationships between the booster and the Michigan basketball program were discovered, including improper loans and other illegal benefits. Players, coaches and school officials ended up being hauled before the grand jury, and one player—Chris Webber—eventually pled guilty to a reduced charge of criminal contempt.  The investigation spanned six years, by the way.

Throughout that case, federal officials produced and shared evidence with the NCAA, and as spokesman Bob Williams points out, "The NCAA has established relationships with law enforcement agencies at the local, state and federal levels and works with them as appropriate."


"When they get involved, the NCAA's job becomes a lot easier," Jim Delany, the Big Ten commissioner and a former NCAA investigator, said of the feds. "We're not talking about freedom of information. We're talking about subpoena power. If you lie to an FBI agent, you are violating the law. You can go to jail if you are caught doing that."

A few days after allegations of a pay-for-play scheme involving Newton and his father Cecil became public, an FBI spokesman confirmed to USA TODAY that the bureau wanted to interview John Bond. He's a former Mississippi State quarterback who spoke of being approached about the scheme and making the school aware of it. His attorney, Phil Abernethy, subsequently confirmed Bond was interviewed by a federal agent and a representative of an unnamed state agency. No details of the FBI interest were revealed.

Delany said he cannot predict when and why federal agents become involved.

"They get in and out," he said. "There's no consistency to it. You can't always count on them being there. But I always tell people, be careful because you may have tax laws that are in effect; you may have wire laws that are in effect; you may have state agency laws that are in effect."

Sometimes, Delany said, a local FBI office might take a particular interest.

"Each area has its own unique set of challenges and priorities," he said. "I don't know why they are involved down South (with Newton). They may view this as really a corrupting influence, but they may not view it the same way in Iowa."


Anyone thinking that the FBI and the NCAA don’t, won’t or can’t cooperate is foolishly whistling past the graveyard. They certainly do cooperate, and there is already a big time scandal featuring such cooperation. Indeed, paragraph 5 in the US Code quoted above lets a judge decide when and where such cooperation is proper. And to even suggest that the Feds’ involvement makes the NCAA’s job much more difficult is delusional.

The end result of the Michigan Fab Five case was criticized for its seeming lack of severe punishment for the institution by the NCAA. But consider this:  Head Coach Steve Fisher was fired. Michigan forfeited a 1992 Final Four victory and runner-up status in the 1992 Tournament.  They also forfeited the entire 1992–93 season, removed the 1992 and 1993 Final Four banners from the Crisler Arena rafters, and deleted Webber's records from its record book. The NCAA also ordered Michigan to disassociate itself from Webber until 2012.

In effect, it was as if the 1992 season had never even existed.

Southern Cal fans can relate.

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