Editor’s Note: This is an op-ed written by Marc Mukasey, attorney for Rick Pitino, in the wake of the Adidas college basketball trial verdict. Mukasey serves as Global Co-Chair of Greenberg Traurig’s White Collar Defense & Special Investigations Practice.
By MARC MUKASEY
At this time of year, Rick Pitino would normally be getting his team ready to start the college basketball season and striving to get the most out of his players – on and off the court. But Pitino has been forced out of the game, without cause, by the actions of others who were serving their own interests.
While Pitino sits idle, the jury returned a guilty verdict this week in the federal criminal trial of United States v. Gatto et al. The case centered around the corrupt plans of the three defendants on trial to funnel payments to the families of high school basketball recruits in order to steer those recruits to play at particular universities sponsored by Adidas, including the University of Louisville, Pitino’s former team. Among other charges, the defendants were convicted of scheming to make payments to the father of top high school recruit Brian “Tugs” Bowen to help steer Tugs to play at Louisville, an Adidas-sponsored school.
When the charges were announced last year, the U.S. Attorney’s Office for the Southern District of New York heralded the case as one that would expose the “dark underbelly” of college basketball. That never happened. As The Washington Post put it, “the three-plus-year federal inquiry has resulted in the arrests of mostly low-level figures in the college sports black market, and the criminal charges they face stem from NCAA rules many economists deem quaint and outmoded, if not exploitative.” Indeed, the head basketball coaches whose programs were called into question by the case all remain in their positions, readying their teams for the upcoming season. All but Pitino. The allegations led Louisville to fire Pitino, even though neither Pitino, nor any member of his Louisville staff, were charged with any wrongdoing.
Most of the facts presented during the trial were never really in dispute. Both sides agreed that sneaker companies like Adidas want to develop relationships with young recruits who will serve as human billboards if they should strike it rich in the NBA. Both sides agreed that the defendants schemed to make payments to the father of top high school recruit Brian “Tugs” Bowen to help steer Tugs to play at Louisville, an Adidas-sponsored school. And, both sides agreed that paying a player’s father is a clear violation of NCAA rules.
The sole dispute was whether the defendants’ actions constituted a criminal fraud. Neither side’s argument was particularly compelling. From the prosecution’s perspective, the defendants defrauded the “victim” universities by causing them, unknowingly, to offer scholarship money to recruits who had been rendered ineligible to play as a result of the recruiting violations. The defendants, for their part, claim that they did not act with intent to defraud the schools, but, rather, they were trying to help the universities secure the top basketball talent the schools craved. In the end, the prosecution’s theory carried the day.
So what did the trial show about Pitino? Well for starters, we know that after an intensive government investigation that utilized FBI wiretaps, undercover agents, financial analysis, phone records and numerous other investigative techniques, there was not a scintilla of proof that Pitino committed any NCAA violation, let alone any crime.
We know that the government interviewed scores of people in connection with the case. And if there’s one thing we’ve learned from current events, it is that prosecutors routinely offer lower- level investigative subjects the opportunity to mitigate the punishment they face if they can provide substantial assistance in the form of information about the illicit activities of their superiors or other higher-level targets. Nobody was a bigger name in this drama than Hall of Famer Rick Pitino, nobody a more juicy target. Yet nobody with any degree of credibility implicated Pitino.
We also know that in its opening statement, the government argued that the defendants “needed to conceal” the corrupt payments “from the schools….to make sure that the universities did not know.” That has been Rick Pitino’s position all along. That is what the jury found.
What about the man at the center of the scandal, Tugs Bowen’s father, Brian Bowen, Sr.? He was granted immunity from prosecution by the government under an agreement that required him to testify truthfully and completely about his son’s recruitment by the University of Louisville and Coach Pitino. If Bowen Sr. lied on the witness stand, he could be charged with perjury and suffer criminal prosecution for his receipt of payments to steer his son to Louisville. Bowen Sr. testified that he never told Coach Pitino about his plan to receive corrupt money from Adidas.
Another witness who cooperated with the government, Adidas consultant TJ Gassnola, admitted on the witness stand that he was lying when he wrote a text message claiming he spoke to Pitino when Tugs Bowen committed to Louisville. He had not, in fact, spoken to Pitino. Indeed, not a single witness at the trial said that Pitino knew about, or was involved in, or condoned, the illegal payments.
Finally, the government was clear in its closing argument that no Louisville coaches knew about the scheme to pay Bowen Sr. And in the government’s rebuttal summation, it cited evidence that suggested the defendants took pains to avoid telling Pitino about their conspiracy.
Both sides in this case used Rick Pitino to further their own ends. Perhaps for publicity, perhaps to shift blame. At bottom, there is no proof that Rick Pitino knew about or was involved in the illegal payments. His banishment from the college game is unfair, unwarranted and unjust.
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