Latest Donaghy news raises chance of Congressional investigation
SI.com legal analyst Michael McCann answers the key questions from the recent report that disgraced former NBA referee Tim Donaghy called fellow official Scott Foster 134 times between October 2006 and April 2007, the same period Donaghy was providing information to gamblers.
1) Will Congress now investigate the NBA?
Though still unlikely, the odds of a Congressional investigation increased with news of Donaghy's and Foster's unusual calling pattern. (The calls reportedly tended to last less than two minutes and occur before and after games that Donaghy officiated and has admitted to betting on. No information is known about the nature of the calls, though government investigators have interviewed Foster.)
Rep. Bobby Rush of Illinois, chairman of the House Subcommittee on Commerce, Trade and Consumer Protection, has expressed interest in the Donaghy investigation and more generally in how the NBA safeguards against criminal influences. In fact, in a letter addressed to commissioner David Stern last year, Rush admonished, "If the [Donaghy] allegations prove true, this could be one of the most damaging scandals in the history of American sports." In response, NBA officials met with Rush and assured him that no other league officials were involved.
But last month, Rush wrote again to Stern, firmly insisting that Donaghy's statements to federal investigators raise "serious questions about the validity" of the NBA's assurances and, perhaps ominously for the league, that Rush is prepared "to intervene if necessary." To the extent Foster's role implicates the NBA in its monitoring of referees, Rush will clearly be more inclined to call a hearing. Sharon Jenkins, a spokesperson for Rush, confirmed to SI.com that the congressman is well aware of the Donaghy/Foster phone calls and is closely following the developments. She also said Rush may exercise his right to call a hearing.
Such a move would likely be criticized by those who believe that Congress should stay out of sports. Rush's subcommittee, however, has the authority to investigate any matter that implicates relevant federal policy, and Donaghy's crimes would certainly provide sufficient justification for a hearing. The committee also appears interested in exploring how federal law can regulate sports. In February, it conducted a hearing during which Stern and other league commissioners testified on drug-testing policies. Last month, it held hearings on the safety of thoroughbred horses. A hearing on the NBA and its ties to illegal gambling would fit into this pattern of inquiry.
Then again, the 110th Congress is approaching its end. House members will soon depart for August recess, and they also are expected to adjourn Sept. 26 to campaign for reelection. A hearing on the NBA and its ties to illegal gambling and game-fixing, or a more general one involving other pro sports, seems unlikely as the twilight of this Congress nears. It should be noted, however, that NBA officials may be summoned before the August recess should a rumored hearing on age limits in pro sports occur. Such a hearing would not likely delve into the Donaghy matter.
The 111th Congress may prove to be a more opportune time for the government to examine the relationship among pro sports, illegal gambling and game-fixing. With more days on the legislative calendar, Congress could conduct a comprehensive investigation while waving its best piece of leverage at the leagues: the threat that it could seek modification or outright repeal of the Sports Broadcasting Act. The law provides an antitrust exemption for the pooling of television rights by the NBA, NFL, MLB and NHL -- and thus the lucrative, leaguewide TV contracts. Sen. Arlen Specter of Pennsylvania most recently threatened to explore modification of it when the NFL resisted his requests during Spygate.
2) Given this new development, should Stern retract his characterization of Donaghy as a "rogue, isolated criminal?"
Not necessarily. Though suspiciously frequent and dubiously timed, Donaghy's phone conversations with Foster may emerge as much to do about nothing. Keep in mind, their content remains a mystery and their frequency, timing and duration establish only that those two men spoke often -- much like two good friends or two close co-workers. Also, no allegations have been made of Foster, a similarly exonerating fact. Investigators have probed why Foster and Donaghy would speak so often and so briefly right before and after those particular games, and whether any links might exist between Foster and Thomas Martino, the middleman between Donaghy and bookie James Battista. It should be stressed that no such links have been publicly disclosed or even hinted at by the government.
At least for the time being, then, Stern's bold proclamation remains defensible. Still, the fishy characteristics of the calls invite public skepticism. No matter Foster's role, Stern's remark ignores how the league unwisely, albeit unintentionally, facilitated Donaghy's poor choices. After all, the NBA is entrusted with hiring, training, evaluating and monitoring its referees. It clearly missed signs that either implicated Donaghy or suggested irregularities in his work and activities.
In law, employers can be held civilly liable for the illegal acts of their employees when those employers should have influenced employee behavior. In that sense, Donaghy was not "isolated" but rather connected to the NBA's internal framework, and his misbehavior may have been prevented, or at least mitigated, by a more proactive NBA. The league's hiring last year of former federal prosecutor Lawrence B. Pedowitz to review ties between gambling and the league appears to acknowledge that critique.
So while Stern's label of Donaghy as a "rogue, isolated criminal" may prove technically correct -- as of now, Donaghy appears to have been the only person employed by the NBA who committed a crime -- it disregards the causal, structural dynamics for which the NBA deserves some blame. Those need to be corrected in order to prevent similar misdeeds.
3) What kind of sentence can Donaghy expect July 29 for pleading guilty to felony charges of conspiracy to commit wire fraud and transmitting betting information across state lines?
Under federal sentencing guidelines, which are sentencing recommendations issued by the U.S. Sentencing Commission and are based on the nature of the defendant's crimes and his or her criminal history, Donaghy is expected to receive up to 33 months in federal prison. His sentence will also require him to pay restitution to the NBA, with the league seeking $1.4 million.
U.S. District Judge Carol Amon has discretion in her sentencing. In deciding whether to exercise that discretion, Amon will likely consider the extent to which Donaghy has cooperated with the government and provided useful information. She may also consider Donaghy's level of contrition and whether, as he alleges, his gambling addiction impaired his decision-making, thus making him less culpable.
After initially recommending that Donaghy receive a lighter sentence, the Justice Department now insists that Donaghy overplayed the value of his shared information since he offered nothing that resulted in a prosecutable crime. Put more colloquially, he may have talked a lot but not said a lot.
Expect Donaghy to receive modest leniency for pleading guilty and for cooperating. His decision to partly blame his behavior on an addiction, however, runs the risk of backfiring should Amon interpret it as a failure to take personal responsibility.
Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.