Kentucky Basketball: The Enes Kanter Matter

I wasn't going to write much, if anything, about the Enes Kanter kerfuffle.  It is being covered extensively by other blogs and news outlets, even so far as the burgeoning "Free Enes" popular movement which is taking on much of the personality of the John Wall dance.  But in all the reporting so far, I notice a lot of commentary on where we are, but very little on how we got here.  That's what we will be discussing in this article.

Essentially, Enes Kanter's eligibility as a student athlete wouldn't even have been considered a couple of years ago.  What makes Kanter's matriculation to UK theoretically possible is a change to the NCAA Bylaws.  Now, as anyone who has read the NCAA Bylaws knows, a more complex and Byzantine set of regulations does not exist in the world, unless it is the U.S. Tax Code.  As such, it is pretty dry reading, but what we will try to do is excerpt and explain the relevant sections, and how they might apply to Kanter's situation in the real world (if that term can accurately be applied to any NCAA regulatory action).

First, the bylaws as they used to be (from the 2008-09 NCAA manual):

12.1.2 Amateur Status. An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual:

...

(c) Signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability
or any consideration received;

...

(e) Competes on any professional athletics team per Bylaw 12.02.4, even if no pay or remuneration for expenses was received, except as permitted in Bylaw 12.2.3.2.1;

The ellipses indicate other conditions which have not been changed by the NCAA.  The exception of Bylaw 12.2.3.2.1 is an exception for educational expenses from certain sources which does not apply to Kanter.

12.02.4 is the NCAA Bylaw that defines a "professional athletics team":

12.02.4 Professional Athletics Team. A professional team is any organized team that:

(a) Provides any of its players more than actual and necessary expenses for participation on the team, except as otherwise permitted by NCAA legislation. Actual and necessary expenses are limited to the following, provided the value of these items is commensurate with the fair market value in the locality of the player(s) and is not excessive in nature: (Revised: 4/25/02 effective 8/1/02)
(1) Meals directly tied to competition and practice held in preparation for such competition;
(2) Lodging directly tied to competition and practice held in preparation for such competition;
(3) Apparel, equipment and supplies;
(4) Coaching and instruction;
(5) Health/medical insurance;
(6) Transportation (expenses to and from practice competition, cost of transportation from home to training/
practice site at the beginning of the season and from training/practice site to home at the end of
season);
(7) Medical treatment and physical therapy;
(8) Facility usage; (Revised: 4/24/03)
(9) Entry fees; and (Revised: 4/24/03)
(10) Other reasonable expenses; or (Adopted: 4/24/03; Revised: 10/28/04)
(b) Declares itself to be professional (see Bylaw 12.2.3.2.4). (Revised: 8/8/02)

 

Fenerbahçe Ülker, the team Kanter played for when he was 17, is part of the Euroleague and would qualify as professional under (b) above, although there are teams in other countries who could meet the requirements of (a) 1-10, and who's players could be admitted to play by the NCAA.  But since Fenerbahce is patently a professional team in the Euroleague, it would seem to meet the definition of a pro team under (b).

So now that we've established that Kanter could not have played in NCAA competition under the old rules, let's look at how they changed.  First, 12.1.2:

12.1.2 Amateur Status. An individual loses amateur status and thus shall not be eligible for intercollegiate competition in a particular sport if the individual:

[12.1.2-(a) through 12.1.2-(b) unchanged.]

(c) Signs a contract or commitment of any kind to play professional athletics, regardless of its legal enforceability or any consideration received, except as permitted in Bylaw 12.2.5.1;

[12.1.2-(d) unchanged.]

(e) Competes on any professional athletics team per Bylaw 12.02.4, even if no pay or remuneration for expenses was received, except as permitted in Bylaw 12.2.3.2.1;

[Remainder of 12.1.2 unchanged.]

The exceptions were changed as follows:

12.2.3.2 Competition with Professionals. An individual shall not be eligible for intercollegiate athletics in a sport if the individual ever competed on a professional team (per Bylaw 12.02.4) in that sport. However, an individual may compete on a tennis, golf, two-person sand volleyball or two-person synchronized diving team with persons who are competing for cash or a comparable prize, provided the individual does not receive payment of any kind for such participation.

12.2.3.2.1 Exception -- Competition Before Initial Full-Time Collegiate Enrollment -- Sports Other Than Men's Ice Hockey and Skiing.  In sports other than men's ice hockey and skiing, prior to initial full-time collegiate enrollment, an individual may compete on a professional team (per Bylaw 12.02.4), provided he or she does not receive more than actual and necessary expenses to participate on the team.

 

And:

 

12.2.5 Contracts and Compensation.  An individual shall be ineligible for participation in an intercollegiate sport if he or she has entered into any kind of agreement to compete in professional athletics, either orally or in writing, regardless of the legal enforceability of that agreement.

12.2.5.1 Exception -- Prior to Initial Full-Time Collegiate Enrollment  -- Sports Other Than Men's Ice Hockey and Skiing.  In sports other than men's ice hockey and skiing, prior to initial full-time collegiate enrollment, an individual may enter into an agreement to compete on a professional team (per Bylaw 12.02.4), provided the agreement does not guarantee or promise payment (at any time) in excess of actual and necessary expenses to participate on the team.

What this does is essentially remove the ambiguity in 12.02.4 for every sport other than hockey or skiing.  Now, it doesn't matter if the team declares itself professional or not, or meets any other definition of a pro team.  What matters is:

  1. The athlete cannot have a contract or agreement for compensation other than actual or necessary expenses, and;
  2. The athlete does not receive more than actual or necessary expenses.

As far as I know, neither Fenerbahçe nor anyone else has indicated the presence of a contract for expenses, compensation, or otherwise.  FIBA rules prohibit such an agreement for players under 18 years old, and Kanter was only 17 when he was playing for Fenerbahçe.  So the question that remains is number 2 above -- did Kanter actually receive compensation in excess of actual and necessary expenses?

Fenerbahçe says unequivocally that he did receive more than expenses.  Dr. Kanter (Enes' father), John Calipari and others contend he did not.  According to Adam Zagoria of Zagsblog:

The industry source said the club had ulterior motives for putting Kanter in the games.

"Fenerbahçe, they stuck him in like eight or nine games just to screw with his eligibility because they’re ruthless," the source said. "European clubs don’t want their kids coming him to America."

Fenerbahçe's General Manager, Nadim Karakas, told the New York Times that the club had paid for all kinds of things:

Karakas said that Fenerbahce provided housing to Kanter and his family for more than three years, provided them with food and pocket money and paid Kanter a salary of more than $6,500 a month during his final season.

There are two big issues for the NCAA in this paragraph -- the "and his family" part and the "salary" part.  Paying for lodging for Kanter's family would seem to exceed the "actual and necessary" requirement, although that is somewhat dependent on the situation -- Kanter was a minor, after all.  The salary part is not ambiguous.  If that is true, Kanter is a professional and will most likely never play in NCAA competition.

For Kanter's side of the story, his father, Dr. Mehmet Kanter, told Mike DeCourcy of The Sporting News:

"Since 2007, I wanted Enes to go to the USA and continue his basketball and education there, so I try everything to keep my son amateur and keep meticulous records of all the expenses knowing someday I may be asked (to) fully cooperate with the NCAA."

Dr. Kanter said "never once" was a salary demanded from Fenerbahce or discussed. "I always try to protected Enes from anything might damage his future."

What Kanter does say is that no salary was ever "demanded or discussed."  What he does not say is whether or not one was ever paid by the club anyway -- Fenerbahçe knows the NCAA rules full well, and could have voluntarily started sending Kanter checks for being on the team.  Would Dr. Kanter have sent them back?  Only he can answer that, and he did not really do so in his interview with DeCourcy.

What we have here, it seems, is very much a good, old-fashioned he said/she said.  To be fair to the NCAA, this is a complicated issue for which they are undoubtedly receiving pressure from the Euroleague through back channels.  Fenerbahçe's contact with the New York Times to get its position out in the media was clearly intended to confuse the situation and place the NCAA in a muddle, and give them an excuse to declare Kanter ineligible.  There is no telling what the payment records Fenerbahçe provided to the NCAA say, but one thing is pretty likely -- the NCAA will have to decipher them, and if they aren't explicitly arranged to support Fenerbahçe's claim, they are almost certainly arranged to engender maximum confusion.

Fenerbahçe had no motivation whatever to clean up the records for easy digesting and a quick at, and accurate decision.  To the contrary, every day that goes by with Kanter's eligibility in question is a victory for Fenerbahçe, and if the days turn into weeks and even months, the odds that the Kanters give up and look for other ways to go increase.

Will the NCAA free Enes?  I don't know.  We can only wait and hope.
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