FanPost

Pearl is a Racketeer

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I think I understand the wish of Bobothevol and Getoffmyvols to retain Pearl as coach. However, I'm less understanding of some of the same sentiments expressed by Kentucky fans. If you want to say he's been good for TN and SEC basketball and has been a positive factor in his community, I'm willing to concede the point though I think you have to admit, given the current controversy, he's hardly an unmixed blessing. But the mafia also promoted family values and supported the Catholic Church, community organizations and local charities. Organized crime built a terrific city in Nevada and has pumped a ton of money into third world economies. The reality is that criminal activity, especially sports criminal activity, is seldom committed in a vacuum. Sports criminals, like most all criminals, are engaged in pleasing someone in addition to themselves. Therefore, you can generally always find ameliorative character factors - but none of them are exculpatory. The man is admittedly guilty. So, really, the current discussion/argument is what should be Pearl's punishment.

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer.

The NCAA has never been especially good at establishing and adhering to sentencing guidelines but they have expressed the wish to at least try. So, let's look at this as if we were an actual judge. First, does he deserve punishment. I think most of us would agree that the answer to that question is, "Yes, he broke the rules." But, how badly did he break the rules?

For the moment I invite you to suspend your sense of the ridiculous. To demonstrate how really bad Pearl's actions are in their NCAA context, let's remove them from that purely NCAA context and examine them as if the Federal Penal Code could be applied. When we do that, the seemingly petty but repetitive nature of his excessive phone calls scheme and BBQs aside, the reality is that IF Pearl's sports criminal behavior came under Federal statues he could be prosecuted as a Racketeer.

You say, "WHAT...?" It's true. First, the accepted definition of an organized crime gang is a group of three or more persons "having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in combination to collaborate in the commission of criminal activities." Obviously, Pearl, his assistant coaches and any others, would constitute such a criminal gang. And, as definitive participants may stand in an arm's-length relationship to the illicit operations, the gang would include Hamilton and other members of the AD's staff who may have aided or abetted the activity.

Further, if you consider the obvious fact that continued employment of any of Pearl's staff member's was conditional on the commission of NCAA criminal acts, Pearl specifically committed an offense punishable under the organized crime statutes when he "knowingly cause[d], enable[d], encourage[d], recruit[ed], or solicit[ed] another person to become a member of a ... gang which, as a condition of initiation, admission, membership, or continued membership, requires the commission of any conduct which constitutes [a punishable offense]."

In addition, the Federal RICO (Racketeer Influenced and Corrupt Organizations) statutes effectively define racketeering as a pattern of activity committing any two of a list of 25 crimes within a ten year period - those 25 crimes include: tampering and intimidation of witnesses, obstructing justice, wire fraud and sports bribery. Each of these crimes were apparently committed by Pearl and his 'gang'.

Jumping back into a strictly defined NCAA context, it's clear Pearl's sports criminal activities in violation of NCAA regulations were wide in scope and major. In a NCAA context, Pearl is a racketeer, and, as such, he deserves punishment. So, now, the question becomes, "What is an appropriate penalty?" What do you do with a NCAA Racketeer?

Again, back in the Federal Penal Code context: In the criminal courts, in cases without mandatory sentencing, a judge normally takes into account the nature of the crime; the history, characteristics, and rehabilitative needs of the defendant; the public interest in protection, deterrence, and punishment; the type of sentences available; the applicable Sentencing Guidelines (including pertinent policy statements); the need for uniformity in sentencing similar defendants for similar crimes; and restitution.

Clearly, if Pearl were convicted under Federal organized crime statutes he would face prison. Further, if convicted under the RICO statutes he would face confiscation of all the assets (bank accounts, investments, real-estate, homes, cars, etc.) that accrued from moneys forthcoming from his illicit activities. Those money's would constitute at a minimum his UT contractual compensation and any outside compensation (radio, television, speaking, endorsement, etc.) that could be shown to be a direct or indirect result of his being the Tennessee coach engaged in racketeering.

Back in the real world, the NCAA can't take Pearl's assets but they can deprive him of the enabling position as Coach at an NCAA institution. They can't put him in prison, but they can confine him from associating with the society of college athletics. In the context of the NCAA, Pearl's egregious behavior deserves the equivalent punishment meted to all such convicted racketeers. As a NCAA Racketeer that would be a penalty of "Show Cause." How long? - At least 3-5 years, the period necessary for any recruiting network and associations benefiting from his tenure at Tennessee to disappear.

To help you understand how my recommended penalty is consistent with the development of a NCAA sentencing guideline, here are the 5 instances where the 'Show-Cause' penalty was handed down against basketball coaches (there have been only a total of 6 show-cause penalties, ever. The other time dealt with football recruiting violations):

Todd Bozeman - Former head coach for the University of California - Berkley got an eight-year show-cause penalty for paying for a player's parents to watch their son play and lying about it to school and NCAA officials.

Clem Haskins - Former head coach for the University of Minnesota got a seven-year show-cause penalty for paying a tutor to write papers for players on the team, lying to the NCAA about it and encouraged his players and assistant coaches to lie as well.

Dave Bliss - Former head coach for Baylor got a ten-year show-cause penalty for paying tuition for two players, lying to the NCAA about it and encouraging players and assistant coaches to lie.

Kelvin Sampson - Former coach of Indiana got a five-year show-cause penalty for twice making impermissible cell phone calls to recruits - first at Oklahoma and then at Indiana.

Neil McCarthy - Former basketball coach at New Mexico State got a five-year show-cause penalty for giving a job inducement to a junior-college coach to get two of his players (Sound familiar Louisville readers?), and then giving preferential assistance to the players with their coursework and exams.

I'm interested in why you think Pearl doesn't deserve or won't get the 'Show-Cause' penalty from the NCAA. It seems a foregone conclusion to me.