Silvio De Sousa v. NCAA (Part I: The Press Release)

I

Why?  I mean, really, why would I choose such a complex topic for my first substantive post?  Feel free to chime in because I need answers.  I’ve burned over a week combing through articles, judicial opinions, doctoral dissertations, and oh yeah, the NCAA’s own Division 1 Manual.  It’s a tight read.  Book of the year material.  Because of the magnitude of the De Sousa situation, it has generated dozens of questions, each spiraling into more peripheral and tangential issues that have dragged me, not only through the NCAA rulebook, but all the way to the U.S. Constitution.  The biggest question I discovered is one that I had never before thought to ask, and yet on its face, is so simple that I cannot believe how I had overlooked it for so long:  Where does the NCAA get its authority?

This story will be released in a four-part series.  In Part I, I will dissect the NCAA’s Public Press Release that you should read, then leave open for reference by clicking here.  In Part II, I will examine what I believe are the “statutes” from the 2018-19 Division I Manual  most relevant to the De Sousa situation.  You can download the Division I Manual for free here.  Part III will focus on some key judicial opinions from actual NCAA lawsuits and how they might affect the very real prospect of De Sousa in a potential lawsuit against the NCAA.  In Part IV I will bring it all together, make my case, and let the (BLUE) chips fall where they may.

“That’s what it is, it’s a %#&damn heart.  You guys show me you got one of these things, and we’ll go out there and win this game tonight!” –Pete Bell (Nick Nolte); Blue Chips (Paramount Pictures 1994).

II

Think of the NCAA Press Release as a judicial opinion (the judge’s written explanation of the decision of the court); a judicial opinion that doesn’t have to cite sources of authority for its conclusions; a judicial opinion that doesn’t feel the need to indicate precisely where to find the rules that give rise to the violation; a judicial opinion that declines to provide all the facts that aided in the decision.  It’s marvelously deficient, but it’s all we’ve got.  It isn’t lengthy.  It’s quite easily digestible.  Indeed, being untethered from the encumbrances of precedent and fairness could give it ultimate freedom to pursue fantasy in a way genuine judicial opinions are restrained, although it cunningly demurs toward a compact canard.  After all, too much information is dangerous in the hands of a critical reader.

That said, we want to extract something, right?  What should we look for?  What is the useful information?  Once the key facts are listed, most attorneys use the IRAC formula in both writing and analyzing.  The I = Issue, R = Rule(s), A = Application of facts to the rule(s), C = Conclusion.  This is how we will approach the Press Release.

“I don’t expect to win enough games to be put on NCAA probation.  I just want to win enough to warrant an investigation.” –Bob Devaney

III

FACTS

Other than the student-athlete or other personnel under the umbrella of the NCAA, the press releases do not tend to give names.  Scanning through the release we can see the following facts:

(1) “De Sousa’s guardian received payment of $2,500 from an agent and booster of the [University of Kansas].” NCAA provides reinstatement decision for Kansas’ Silvio De Sousa, Nat’l. Coll. Aths. Assoc., http://www.ncaa.org/about/resources/media-center/news/ncaa-provides-reinstatement-decision-kansas-silvio-de-sousa (February 1, 2019, 6:05pm).  And,

(2)  “[De Sousa’s guardian] agreed to accept additional payment of $20,000 from the same individual and an Adidas employee for securing De Sousa’s enrollment at Kansas.” Id.

I submitted a list of questions to the NCAA in a media inquiry last week, hoping to establish a clearer understanding of the facts contributing to their decision.  As of this writing, the NCAA has withheld a response.  I will, of course, update the post should I ever get one.

ISSUE

I must give credit where credit is due.  The best opinions state the issue right away, and the Press Release does just that.  It makes everything else easier to understand if the reader knows the controversy under consideration.  It boils down to, what question are we trying to answer?  The issue is whether “Silvio De Sousa must sit out…because his guardian received payment from a university booster and agent and agreed to receive additional funds from the same person.” Id.  The answer, according to the NCAA, is yes.

(Slight digression:  Maybe you’ve also noticed that it is difficult to determine exactly how many third parties are involved.  The issue statement gives the impression that the initial $2,500 payment and the agreed additional $20,000 were offered by the same singular individual.  However, Fact 1 above stated an acceptance of money from “an agent and booster,” and Fact 2 tells us that there was an agreement to accept more money from the “same [agent/booster] AND an Adidas employee” (emphasis added). Id.  Did the guardian have an agreement with the agent/booster and a separate Adidas employee, or is the third party an agent/booster/Adidas employee?  I don’t know.)

RULE

A rule is just what it sounds like.  It defines a party, conduct and/or circumstances, and consequences triggered by the party engaging in that conduct and/or existing within those circumstances.  The third paragraph states a very clear rule.  “[W]hen a prospective student-athlete allows a third party to involve himself in the recruitment process, the prospective student-athlete is then responsible for the actions of that person regardless of whether the prospective student-athlete had knowledge or if benefits were received.” Id.

There is actually one other rule in the Press Release, but since it pertains to the school, not De Sousa, we will ignore it for now.

In order to get to the application section, we will need to compartmentalize the rule into its fundamental parts so we can easily see what facts are relevant.  Very briefly, rules can be broken down into either elements or factors.  Element rules require that all the elements be present in order for the rule to apply.  Factor rules do not require all the factors to be present, and each factor may be treated with more or less importance than others, depending on circumstances.  Luckily, this is an element rule.  In order to find the elements, we can restate the rule to help determine what must be demonstrated.

“Regardless of whether a prospective student-athlete [PSA] had knowledge or if benefits were received, a [PSA] is responsible for the actions of a third party [when],

[1] a prospective student-athlete

[2] allows a third party

[3] to involve himself in the recruitment process.” Id.

APPLICATION

Now we have to plug in the facts to see if we meet the requirements.  This is something the Press Release does not do, and you may already sense a problem.

Do we have a prospective student athlete?  Yes, Silvio De Sousa satisfies element one.

Did De Sousa allow a third party to do something?  Well, we have a third party…the booster/agent (and yes, the guardian, which will be explored in Part II), but what facts do we have that show De Sousa allowed him to do anything?  The NCAA does not tell us.  I cannot say element two is satisfied at all.

Did the third party involve himself in the recruitment process?  We are told that the payment received by De Sousa’s guardian was to “secure his enrollment at Kansas,” Id, so the NCAA certainly thinks so, although the NCAA is flaunting knowledge of the third party’s intent that we cannot corroborate without additional facts.

You can see right away that use of this rule is flawed.  It’s bad enough that we do not have sufficient facts to even know if it applies to the situation, but also where does the NCAA draw the boundary line of the PSA’s responsibility for the actions of the third party?  The NCAA has no jurisdiction outside of its own rules, of course, so if the agent robs a liquor store, then De Sousa cannot be responsible for that.  Hypothetically, what if it could be shown that De Sousa allowed the third party to become involved in the recruitment process with no violations taking place, except the same third party did pay money to another recruit without De Sousa’s knowledge?  Can De Sousa be held responsible for that?  Read it again.  The rule does not express that the responsibility of the student-athlete ceases to exist beyond the sphere of his own recruitment.

What does that mean?  I’m not certain, but it could mean that, if there is a booster in contact with multiple PSAs, and if one of those PSAs is discovered to have received impermissible benefits from that booster, then even without knowledge of it by the other PSAs, the NCAA can start with the presumption that any PSA who came into contact with the booster has violated the rule, and could effectively shift the burden of proof onto the PSAs to defend themselves, without the NCAA holding any evidence against them whatsoever.  Wild.

CONCLUSION

The NCAA’s conclusion is that De Sousa has committed a violation.  Maybe they have the facts, and if so, the rule is the rule, right?  The 2018-19 NCAA Division I Manual is 440 pages long.  It contains both the NCAA Constitution and all the Bylaws that govern every player, coach, and school.  The rule above; the rule the NCAA states in its press release; the only rule the NCAA cites in disqualifying Silvio De Sousa…is not in that Manual.

“You use trick plays when you don’t think you can beat them straight up.” –Lou Holtz

Stay tuned for Part II…