If you were surprised to learn that college basketball is infected by money, you really haven’t been paying attention. But the story told in the criminal complaint filed this week against Auburn University basketball coach Chuck Person and Rashan Michel is fascinating and disturbing at the same time.
The story reads like a tragic fall from grace for a former college and NBA star who allegedly sold out his players and single-handedly destroyed the reputation of Auburn University in exchange for cash. The government’s allegations were dramatized by colorful language at a headline-grabbing press conference earlier this week.
Undoubtedly, the press conference was designed to convict these men before they ever saw the inside of a courtroom. That’s a shame because there is no legal basis to support the various conspiracy, bribery and fraud charges that led to their arrests. Coach Person and Mr. Michel are not guilty.
I’m not saying they didn’t do anything wrong. They appear to have shattered a number of NCAA and school rules, although that’s not even clear since this was all a big sting operation. Even if this is the biggest NCAA rules infraction in the history of college sports, I do not believe Coach Person or Mr. Michel broke any federal criminal laws.
The government has repeatedly called the payments “bribes’ and the conduct “fraud,” but labels don’t prove anything in court. If you examine the charges count by count to see what the government actually has to prove to convict these men, it’s not hard to see why Coach Person and Mr. Michel are not guilty.
In order to prove the conspiracy charged in Count One, and the substantive bribery charges in Count Two, the government must show that the payments to Coach Person were illegal “bribes” under the federal bribery law.
To prove that the payments were bribes, the government has to prove that the money was paid to influence or reward Coach Person for “a transaction or a series of transactions” relating to an organization that gets a lot of money from the federal government (in this case, Auburn University). While Coach Person definitely received something of value – he got almost $100,000 in cash – the money he received had nothing to do with any “transaction or series of transactions” relating to Auburn.
It’s complicated, but the government’s bribery case hinges on characterizing college players’ subsequent professional careers, and the decisions they make relating to those careers, as “a transaction or a series of transactions” relating to Auburn. But, obviously, it’s not Auburn’s business to determine or even influence how its college players manage their prospective professional careers.
Although Coach Person and Mr. Michel probably violated the NCAA’s internal rules by arranging to exchange money for the coach’s influence over his players, they did not solicit or accept any illegal “bribes” because Coach Person’s advice to his players about what to do, who to hire, and what clothes to wear doesn’t have anything to do with Auburn University. Just because the players go to school there, and are scholarship athletes on the school’s basketball team, doesn’t mean that their every decision is Auburn’s business. That’s especially true when the decisions involve what the players intend to do after they leave Auburn.
In a real bribery case, the elements are crystal clear. For example, if Coach Person had taken money under the table from a shoe company to influence Auburn’s decision to sign a deal with that shoe company, then he would have accepted an illegal bribe. The difference is that the shoe deal is a transaction that relates to Auburn. It’s Auburn’s decision to enter into a shoe deal, and that’s part of what Auburn does as a school that has sports teams. In other words, it’s a “transaction” of the university. Not so with a basketball player’s decision about what agent or advisor they may want to hire after they leave school, assuming they are lucky enough to need an agent or advisor.
The government also claims that Coach Person and Mr. Michel engaged in “honest services wire fraud” when they solicited payments from certain advisors in exchange for Coach Person “steering” his players to retain those advisors once the players went pro.
The crime of “honest services fraud” is a strange one, and it has a muddy history in the courts. Basically, the law is intended to ensure that employees act honestly within the scope of their employment and not engage in conflicts of interest that could harm their employer. A worthy goal, no doubt, but it’s completely misapplied in this case.
To convict Coach Person and Mr. Michel of “honest services fraud,” the government must prove that they knowingly participated in a scheme to deprive Auburn of the right to Coach Person’s “honest services” through “bribery or kickbacks,” and that they acted with “an intent to defraud.” The government must also show that Person knew or should have known that Auburn “might suffer economic harm” as a result of his actions.
Of course, there was nothing that Coach Person did that in any way harmed Auburn. If anything, Auburn benefitted from Coach Person’s actions by getting top notch talent to play on its basketball team. The idea that Auburn was somehow a victim because it wouldn’t have otherwise awarded scholarship money to these blue chip players is absurd. Coach Person did a lot for Auburn, and in no way did he ever defraud or cheat them.
While the agreement between coaches and advisors to steer players to those advisors may have breached NCAA rules and could be considered unethical, these coaches were not engaging in a conflict of interest (they weren’t doing this to help Alabama basketball, for instance), and they were not causing Auburn financial harm when they recommended certain financial advisors to the players for when they left the school.
Finally, the government also accuses these men of both a wire fraud and “travel act” conspiracy. These charges are just as shaky as the others.
Wire fraud occurs when someone uses the “wires” (this can be the phone, internet, radio, whatever) to carry out a fraudulent scheme across state lines. Although the payments made to Coach Person were based on an agreement between him and Mr. Michel, and money was paid to one of Coach Person’s players, the government can’t prove that these actions defrauded Auburn or caused it any financial damage. Auburn got good players, won some games, and made a bunch of money. The school was hardly a victim of any fraud.
A “travel act conspiracy” is based on an obscure racketeering law intended for mobsters. It applies to interstate travel or transportation in aid of organized crime schemes like drug trafficking or prostitution. To prove it in this case, the government would have to show that one of these guys traveled across state lines to promote or carry out an “unlawful activity.” Because the activity at issue in this case – the payments made to Coach Person and his advice to his players – was not unlawful, there is no travel act violation
I understand that many people are appalled that Coach Person and Mr. Michel engaged in what appears to be a number of serious violations of the NCAA rules that govern college athletics. But NCAA rules, no matter how sacrosanct the NCAA thinks they are, are not criminal laws. And no one should go to federal prison for breaking them.
I hate to see these men get convicted in the media based on a prosecutor’s narrative that is not based on sound legal theory. The government calls it a “bribe” and the media runs with it, failing to really analyze whether the alleged rules violations are actually crimes. Just because they say it’s so doesn’t make it so.
Intentionally or not, this entire prosecution distracts us from the real problem – the exploitation of these young men by major universities to generate lucrative TV and licensing contracts while the men and their families can’t scrape together enough money to pay rent at home.
If the Justice Department really wants to do some justice here, they should go after the reason why there is so much shady money in college sports – the antiquated and misinformed NCAA rules that give birth to and perpetuate this ugliness. To paraphrase the old saying – “Don’t indict the player, indict the game.”
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.