KU’s ‘booster’ designation for Adidas rep can change moving forward, NCAA expert says

KU’s Silvio De Sousa | Rich Sugg | rsugg@kcstar.com

By Jesse Newell jnewell@kcstar.com

Kansas Athletics’ designation of an Adidas representative as a “booster” during a recent reinstatement case should not impact the school when it comes to potential future enforcement matters, according to an expert on NCAA rules.

During a news conference Saturday, KU athletic director Jeff Long spoke in more detail about the school’s process of trying to get basketball forward Silvio De Sousa reinstated. Long said that the NCAA specified that KU had to declare former Adidas representative T.J. Gassnola, who previously testified in federal court that he had made a $2,500 payment to De Sousa’s legal guardian Fenny Falmagne, as a booster of the program “only as a hypothetical for the purposes of reinstatement.”

Josephine Potuto, University of Nebraska law professor and past chair of the NCAA Division I infractions committee, said a scenario like this would not signify a school like KU would be forced to deem Gassnola a “booster” in the future.

“You’re entitled to do that,” Potuto said of a school changing its stance. “You’re not held by a decision you made when you didn’t have full information or you might have been in a rush.”

Potuto, who said she doesn’t know exact details of KU’s situation and only agreed to speak in generalities, made clear her comments are not in relation to any specific incident.

In this case, though, KU’s position appeared to be that of many schools in a similar position: It wanted to expedite the process because a student-athlete’s eligibility was on the line. De Sousa was given a two-year suspension by the NCAA “because his guardian received payment from a university booster and agent and agreed to receive additional funds from the same person.”

There’s precedent for changes of language by schools over time, Potuto said. North Carolina, for instance, started its highly publicized academic fraud case by admitting that NCAA violations took place while saying the school was culpable.

Then, before the final infractions hearing, the school took a contrary position.

“You’re not going to be held if you say, ‘Hey look, we’ve now rethought it. We’ve had more time to look. We’ve got other information,’” Potuto said.

There’s a reason avoiding a “booster” designation for Gassnola could be seen as important for KU in the future. According to NCAA rules, schools are in charge of the conduct of boosters, meaning their violations are the school’s violations as well. That means if Gassnola was considered a booster in an NCAA enforcement case, KU could be hit with additional violations.

Arguing Gassnola is not a booster, though, might be a difficult task for KU. The NCAA definition — “a representative of the institution’s athletic interests” — is intentionally vague because of the way the NCAA operates, according to Potuto.

She said the NCAA acts like a club, while the enforcement is done by that club’s individual members. In essence, if you join the club, you agree to abide by the rules, and you also assure that the people you’re responsible for abide by the rules as well.

That serves an important purpose, according to Potuto, meaning “an institution is going to be more vigilant about the third parties that are out there.”

On Saturday, Long said KU would continue to pursue all appeal options when it came to De Sousa’s case. While the original ruling was made by the NCAA’s staff, the appeal is heard by the Division I Student-Athlete Reinstatement Committee, which is made up of school and conference employees and not paid members of the NCAA.

Potuto said grounds for a reinstatement appeal are narrow. Because the information used for the case is provided by the institution — with the NCAA staff not disputing those claims at the end of the process — a school’s argument has to be that an NCAA guideline is wrong, that there needs to be a new guideline or that a lesser punishment should have been issued.

“You can’t argue the facts, because you gave the facts to the staff,” Potuto said. “It comes from you.”

KU, by holding De Sousa out of competition and starting the reinstatement process, also essentially declared that a violation occurred, with Potuto stating that these cases involve a school self-reporting a violation (even if minor) to the NCAA enforcement staff. This also explains why it was necessary for Gassnola to be labeled as a “booster”; if he had no connection to KU, then the school could not admit any fault or report a violation, which was needed to start this particular process.

The school also had the option of continuing to play De Sousa while claiming no violation had taken place. The danger there, though, is that if a violation is later found during the NCAA infractions process, the school could face additional sanctions for knowingly using an ineligible student-athlete.

“Then you get into institutional control issues, if I intentionally misrepresent it or I was very negligent,” Potuto said.

The bottom line: KU can move forward, as Long claimed, by later saying that Gassnola was not a KU booster.

That doesn’t mean the NCAA will agree, but it’s a stance the school is welcome to use, no matter what was previously stated.

“It depends on the facts whether they will be successful doing it,” Potuto said, “but they certainly have every right to change their mind.”

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