We've never seen anything like this.
At least, that's according to Tulane sports law professor Gabe Feldman, who broke down the complex Will Wade/LSU basketball recruiting saga in an interview Tuesday.
Wade, in his second season as the Tigers head coach, was indefinitely suspended from the team Friday. The suspension was handed down after Wade declined to meet with university officials about comments he reportedly made in a wiretapped phone call with a federally convicted college hoops middleman about an offer made to a recruit, believed to be freshman Javonte Smart.
The comments Wade made were reported on by various media outlets, including Yahoo! Sports and ESPN.
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Q&A interview with Feldman about Wade's situation:
Q: How would you simply describe Will Wade's situation from a legal standpoint?
A: I think his current situation is vague. Frankly, we don't have enough information to really be able to determine what type of exposure Wade might face at this point.
There's at least two fraud categories of exposure -- one obviously being NCAA liability and the sanctions he might face if the allegations prove to be true; then there are the contractual issues that might come up for him where he might be terminated as the coach, potentially for cause if some of the allegations prove to be true.
Then there's obviously the potential criminal liability that is a new concern for those in college basketball because of the investigation going on in New York and the recent trial and sentencing, and obviously the subpoenas that were issued. I think it's really premature to talk about any criminal exposure for Wade, one because we don't have sufficient facts but two because it's not clear that the government would be interested in or has a legal theory to prosecute a head coach, assuming the allegations are true.
Q: How does Wade's situation differ from other high profile college basketball coaches who have been accused of recruiting violations? I.e. a coach like Bruce Pearl of Auburn, previously at Tennessee.
A: Part of the difference is the focus of the FBI and the district attorney's office up in New York has been on this new focus of potential criminal liability for a variety of potential criminal violations including wire fraud and bribery. One of the big differences between Wade's situation and previous coaches in college basketball is the focus has been more on the NCAA and contract issues rather than criminal violations.
When you look at Wade compared to other folks who have been involved in the more recent scandals and the three who were just sentenced were in a different position because they were not employees of universities and they were hit with wire fraud for trying to defraud the universities. Some of the assistant coaches who have pled guilty have pled guilty to bribery charges for the most part, which is accepting money to influence decisions made by the university.
For Wade, if the allegations are true, that he potentially offered money to a recruit -- it's not clear if that would constitute wire fraud even under the government's very broad interpretation of wire fraud. And it's not clearly if it would constitute bribery because he's not accepting any bribes. So, there's a a lot of uncertainty because up until the last year or two, most people did not believe this type of conduct would constitute a criminal violation. It clearly violates NCAA restrictions, and might entail a major NCAA violation, but in the past the thought was the liability would end there and NCAA violations could not serve as the basis for criminal violations.
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Q: Could a player who received payment for playing face any legal ramifications?
A: Theoretically, yes. But that would be unprecedented. It does not appear that's what the government is going after, yet. But it's unclear what their agenda is and how far they want to stretch these legal situations. Whether they want to do it to include these college athletes, their families, or if the focus is on the agents, the runners, the apparel companies and the coaches.
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Q: Is it clear what Wade's role will be in the April 22 trial?
A: I don't know the specifics of what they're looking for from Wade. I know the general theories are similar to wire fraud and commercial bribery, but I couldn't speak to the specifics.
Q: Is there a precedent from the NCAA disciplining a coach from their testimony in court?
A: I think the NCAA is willing to discipline based on any information they receive that they determine to be credible. What the NCAA has made clear at this point is they don't want to interfere with these investigations and they don't want to interfere with these trials. They want to let the criminal justice system play itself out. But if they're able to gather information either through the investigation or through testimony, then that would just be an additional set of facts they would consider for potential discipline. There's nothing that would prevent them from using that potential information.
Q: It seems like this has escalated quickly this last week with the Yahoo report closely followed by Wade's suspension. Is there anything about this case that sets it apart as uncharted territory?
A: I think the uncharted territory is in the criminal exposure. There's so much uncertainty right now because although there have been convictions and guilty pleas, you have at least two complicating factors. One is the appeal of those convictions and two is the ongoing litigation around NCAA's amateurism rules and we just had a decision there in the Alston case with the Northern District of California upholding most of the NCAA's amateurism rules. But that will be appealed to the ninth circuit. So we have criminal violations based on NCAA rules violations where the rules themselves are being called into question in federal court. It's just layers of uncertainty that are involved here. I think all of this is unprecedented. Frankly, regardless of your views on the propriety of NCAA rules and regardless of your view on the wisdom of amateurism restrictions and whether you think college athletes should be paid or not, I think most people are surprised to see there's an interest in and an ability to prosecute criminally. I think this is all uncharted territory in a way.
Q: How significant is the timing of all these separate investigations?
A: It's a timing issue here of the investigation by the school, by the NCAA when you have parallel proceedings. It's hard for a sports organization to investigate or discipline its players or its coaches when they are subject to an investigation and potential criminal discipline. It's very difficult because you want to make sure to protect the rights of those coaches not to incriminate themselves during an NCAA investigation. The reverse doesn't necessarily apply where if they incriminate during that trial or during that criminal investigation that can be used against them in an NCAA investigation.