Former NC State coach Mark Gottfried's attorneys are questioning whether the NCAA's enforcement staff can import evidence and testimony from recent federal criminal trials involving bribes and other corruption in college basketball because the defendants' convictions are under appeal.
In a 41-page response to the NCAA notice of allegations that NC State received in July, Gottfried's attorneys argued that new NCAA bylaws exclude evidence and testimony from court cases that are under appeal.
Much of the information included in the notices of allegations sent to NC State and Kansas derived from an October 2018 federal criminal case in the Southern District of New York. A jury convicted former Adidas executive James Gatto, Adidas consultant Merl Code and aspiring business manager Christian Dawkins on conspiracy and fraud charges for their roles in a pay-for-play scheme to steer top recruits to Adidas-sponsored schools, including Kansas, Louisville and NC State.
Each of the three defendants appealed his conviction.
The NCAA has alleged two Level I violations (the most serious) against the Wolfpack, including a failure to monitor charge against Gottfried, who has since been hired at Cal State Northridge.
Former NC State assistant Orlando Early is accused of helping facilitate $40,000 from Adidas consultant T.J. Gassnola to former Wolfpack star Dennis Smith Jr.'s father to ensure he enrolled at the school. Gassnola testified during the criminal trial that he gave the money to Early, who said he was forwarding the money to Shawn Farmer, Smith's former trainer, who was then supposed to give the money to Dennis Smith Sr.
In its response to the NCAA, NC State questioned whether Adidas was the source of the money, and if Early delivered the cash to Farmer or Smith's father.
In August 2018, the NCAA adopted new bylaws that allowed its enforcement staff, committee on infractions and independent resolution panels to rely on decisions and positions made by outside entities -- such as courts and accrediting bodies -- and import the evidence used by those groups into the NCAA infractions process.
NCAA bylaw 126.96.36.199.1 reads: "Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal, or by a commission, or similar review of comparable independence, authorized by a member institution or the institution's university system's board of trustees and regardless of whether the facts are accepted by the institution or the institution's university system's board of trustees, may be accepted as true in the infractions process in concluding whether an institution or individual participating in the previous matter violated NCAA legislation. Evidence submitted and positions taken in such a matter may be considered in the infractions process."
Because United States vs. Gatto, et al., is still under appeal, Gottfried's attorneys, Scott Tompsett of Kansas City, Missouri, and Elliott Abrams of Raleigh, North Carolina, argued in their response to the NCAA that the enforcement staff improperly imported evidence from the federal criminal trial.
"Because United States v. Gatto et al. is under appeal and has been under appeal since March 2019, it is not a matter from which facts found may be accepted as true or evidence submitted may be considered 'in the infractions process,'" the attorneys wrote. "Thus, not only is the Committee on Infractions prohibited from considering any of the facts found or evidence submitted in the Gatto et al. matter, the enforcement staff [is] also prohibited from considering any of the facts found or evidence submitted in Gatto et al. in determining whether to issue a Notice of Allegations.
"Therefore, the Committee cannot import facts from or consider evidence submitted (or positions taken) in, the matter of Gatto et al. Moreover, the allegations involving the alleged payment from Gassnola and Gottfried's alleged failure to monitor Early's recruitment of Smith must be withdrawn because they are based on evidence submitted in Gatto et al., and the enforcement staff was prohibited from relying on that evidence in determining whether to bring allegations."
"The NCAA broke their own rule when they considered evidence from a court case on appeal and then relied on that evidence to charge Mr. Gottfried with a Level I violation," Tompsett told ESPN. "They should withdraw the allegation and let the court case run its course."
Gottfried's attorneys also criticized two NCAA executives for publicly commenting about the ongoing investigations at NC State and other Division I programs.
In May 2019, Kevin Lennon, NCAA vice president of Division I governance, said, "Now that the court cases are done, now we're in a position where you're likely to see notices of allegations going to institutions that have violated NCAA rules, etc."
About a month later, Stan Wilcox, NCAA vice president for regulatory affairs, told CBS Sports that the NCAA would charge head coaches in future notices of allegations for allegedly breaking NCAA rules.
"Those top coaches that were mentioned in the trials where the information shows what was being said was a violation of NCAA rules, yes. They will be a part of these notices of allegations," Wilcox told CBS Sports.
"These public statements of prejudgment by the NCAA executive administration prior to a notice of allegations being issued are virtually unprecedented in an NCAA infractions case," Gottfried's attorneys wrote. "They are unprecedented because it is improper for the NCAA executive administration to state publicly that a notice of allegations is coming in a case in which information is still being gathered, reviewed and analyzed. It is impossible now for Gottfried to get a fair hearing after the NCAA executive administration has prejudged and told the public that rules have been violated, that there will be consequences, and that 'top coaches' are a part of the violations."
Gottfried's attorneys argued that the NCAA was using its "awesome and untethered power to call him a cheater."
"In short, through the actions and public statements of its top officials, the NCAA has made clear that a decision has already been made," the attorneys wrote. "Such a decision was made well before any facts have been found at an infractions hearing, and well before Gottfried had an opportunity to challenge those facts or any related allegations. Indeed, the NCAA's prejudicial public statements were made not only before Gottfried received the notice of allegations, but before the NCAA's investigation had concluded."
The NCAA did not immediately respond for comment.
In May, a jury convicted Code and Dawkins in a separate federal criminal case for their roles in bribing assistant coaches to influence their players to sign with Dawkins' new sports management company and certain financial advisers once they turned pro.
Code and Dawkins have appealed those convictions as well.
Oklahoma State announced in November that it had received an NCAA notice of allegations, which included a Level I unethical conduct charge against Evans.
Arizona and USC officials have indicated in court records that there are ongoing NCAA investigations into their men's basketball programs.