The University of Louisville says it cannot be held responsible for the misconduct of an Adidas employee and consultant and a former agent runner who promised to pay $100,000 to the father of former Cardinals signee Brian Bowen II, after the same three men were convicted of defrauding the university in a federal criminal trial.
That is the crux of Louisville's argument in a 75-page response to the NCAA notice of allegations it received in May. The Cardinals called the NCAA enforcement staff's position as a "dramatically overbroad theory" and suggested the case should be classified as a Level II-mitigated violation.
The Cardinals are charged with one Level I allegation, the most serious, related to improper recruiting offers for Bowen II and another prospect, as well as three Level II allegations, including one against former basketball coach Rick Pitino.
The NCAA alleges that Pitino, who is now coaching at Iona, did not satisfy his head-coaching responsibility when he failed to promote an atmosphere of compliance, and that the institution failed to adequately monitor the recruitment of a high-profile prospect. Former assistant coaches Kenny Johnson and Jordan Fair are accused of providing impermissible benefits and transportation and having impermissible contact with a recruit.
Louisville's recruitment of Bowen, a former five-star recruit from Saginaw, Michigan, was at the center of the federal government's investigation into bribes and other corruption in the sport.
Former Adidas employee James Gatto, former consultant Merl Code and aspiring business manager Christian Dawkins were convicted in October 2018 for their roles in pay-for-play schemes to steer recruits to Adidas-sponsored schools. The three men are appealing their convictions.
"The NCAA enforcement staff now seeks to turn that fraud conviction on its head," Louisville officials wrote in the response, which was sent to the NCAA last week and released by the school on Monday.
"It contends that, at the very same time the conspirators were actively defrauding the University and concealing their scheme from it, they were actually acting as 'representatives of the institution's athletics interests.' That remarkable contention serves as the predicate for the enforcement staff's allegation that the University is responsible for the offers and payments the conspirators made to a prospective student-athlete's father. And it underlies the allegation that the University and its former head coach failed to monitor and promote an atmosphere of compliance among the conspirators working diligently to hide their misconduct from it."
The NCAA enforcement staff made similar allegations involving Adidas employees' actions in recruiting in infractions cases involving Kansas and NC State.
"This argument is as novel as it is wrong," the response says. "Until the cases arising from the Adidas scheme, the enforcement staff has never alleged that an institution was responsible for the actions taken by its apparel suppliers and their employees. And even if an institution had some responsibility for the conduct of its suppliers, that responsibility plainly does not extend to acts of fraud perpetrated against the university itself. Adopting the enforcement staff's contrary theory would upend widespread practice among Division I schools, make rule violators out of dozens of institutions going back decades, and defy common sense. Once this load-bearing pillar of the enforcement staff's argument is knocked away, little is left of its case."
Louisville disagrees with the enforcement staff's allegation that Pitino failed to promote an atmosphere of compliance during a six-day period in which the Cardinals were recruiting Bowen in May-June 2017.
During the federal trial, prosecutor Ted Diskant showed the jury text messages between Brian Bowen Sr. and Pitino on May 24, 2017, with Bowen Sr. asking Pitino to talk to his son.
The government also played a voicemail that Gatto left for Pitino on May 27, 2017.
"I just got a call about a player I want to discuss with you," Gatto said.
On May 29, 2017, Bowen II, his mother, his father, a friend and Dawkins took an unofficial visit to Louisville. Bowen Sr. told the jury that Dawkins paid for the visit.
On June 1, 2017, Bowen II committed to Louisville and signed a financial aid agreement with the school. Shortly thereafter, Gatto left another voicemail for Pitino, according to the government.
"Coach, Gatto," he said. "Hope all is well. Checking in. Heard the good news, um, and it's going to be good, and I'm excited for you guys."
"The University agrees that Pitino should have informed the compliance staff of Gatto's phone call," the Louisville response says. "But his failure to do so did not constitute a failure to 'promote an atmosphere of compliance within his or her program' as Bylaw 18.104.22.168 requires. ... Moreover, the notion that the basketball program's 'atmosphere' could have materially changed within a calendar week is implausible and unprecedented, particularly because the record reflects that Pitino made reasonable efforts to ascertain the circumstances surrounding (Bowen's) recruitment."
The university agrees that Fair engaged in unethical conduct when he failed to report that he attended a meeting in a Las Vegas hotel room in July 2017, which was being monitored and recorded by the FBI. However, the Cardinals argue that Fair was not involved in offering, providing or arranging payments, as alleged by enforcement staff. The university contends Fair's conduct should be classified as a Level II violation.
Louisville also contends that the "weight of credible and persuasive evidence" does not support that Johnson directed $1,300 to Bowen's father to pay his rent, or that Fair facilitated $800 to grassroots director Brad Augustine in connection with the recruitment of Balsa Koprivica, who now plays at Florida State.
The university also argued that Fair and Johnson committed a Level III violation when they provided improper transportation for Dawkins and Augustine during an unofficial recruiting visit, and when Johnson made improper recruiting contact with a recruit in July 2016.
The NCAA has 55 days to respond to Louisville's arguments. Athletic director Vince Tyra previously said that the university could elect to adjudicate the case through the Independent Accountability Resolution Process (IARP), which includes investigators and hearing officers with no direct ties to the NCAA or its member schools. The IARP is handling similar cases involving Kansas and NC State. Its decisions are final, and there are no appeals.