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Wednesday, July 30, 2008

Donaghy Sentenced, Key Questions Remain Unresolved

The judicial portion of the Tim Donaghy scandal came to a conclusion on Tuesday as the former NBA referee was sentenced to 15 months in federal prison for accepting thousands of dollars to provide inside information to gamblers. Last week, Donaghy's partners in crime--gambler James Battista and middleman Thomas Martino, both of whom attended school with Donaghy in Springfield, Pennsylvania--received 15 months in prison and one year plus one day in prison respectively for their roles in this criminal enterprise.

Earlier this summer, Donaghy attempted to lighten his sentence by bringing forth a slew of allegations about the NBA league office and other NBA referees; NBA Commissioner David Stern has steadfastly maintained that Donaghy was one "rogue, isolated criminal," while Donaghy wanted Judge Carol Amon to believe that many other referees have engaged in various kinds of misconduct, including fixing games at the behest of the NBA. Donaghy faced a maximum 33 month sentence but instead received two 15 month sentences that will be served concurrently, so it seems that he did manage to take at least some of the bite out of his punishment. The NBA filed a suit requesting that Donaghy pay $1.4 million in damages to the league but last week the judge ruled that the three co-defendants will have to pay a total of $217,266 in restitution. It is strange that Judge Amon stated that Donaghy is "more culpable" than Battista and Martino and yet Donaghy's sentence is the same as Battista's and the league will receive a fraction of the damages that it sought.

At one point during the second half of last season, I remarked to a fellow writer that I was very surprised at how quickly the Donaghy story disappeared from public view: there was not any widespread fan heckling of referees, there was not wall to wall coverage of Donaghy and for the most part the season took place as if the scandal had never happened. Of course, that changed a bit during the Finals when Donaghy excited conspiracy fans coast to coast by obliquely suggesting that the NBA conspired to fix game six of the 2002 Lakers-Kings series but even that tempest in a teapot seems to have settled down. Then there was a report that Donaghy had made well over 100 brief phone calls to referee Scott Foster just before and just after various games that Donaghy officiated; the only people that Donaghy called more frequently during the period of time in question were his criminal co-conspirators. The FBI and the NBA eventually issued statements indicating that Foster was not suspected of any wrongdoing and then that story died out as well.

The apparent public apathy about the Donaghy story can be interpreted several different ways:

1) Most people already thought that NBA officiating was poor and/or fixed, so they are not surprised.
2) Most people believe Commissioner Stern that Donaghy was one "rogue, isolated criminal" and thus they discount anything that Donaghy alleges about the NBA and other referees.
3) Scandals have become so commonplace now that people just have a cynical attitude about public figures and public institutions.

The problem with assessing the true meaning and impact of the Donaghy scandal is that this is a complex issue but the 24 hour news cycle abhors complexity, depth and intelligence; it is much more important to be the first to "break" a story than to be the first to accurately report and/or analyze a story. What this leads to are lot of stories that are literally "broken" and very few that are covered with sufficient thoughtfulness.

For instance, Donaghy has not been convicted of fixing games; he has been convicted of providing inside information to illegal gamblers. So, when people wonder why it was the FBI and not the NBA that discovered Donaghy's wrongdoing the answer may very well be that he did not engage in any conduct (i.e., making bad calls and/or bad non-calls) that the NBA could reasonably have detected. The NBA graded Donaghy as a good referee and it is possible that he was in fact good--in the sense of being competent at his job, not in the sense of being morally upright. Of course, there are many borderline calls in an NBA game so it is also possible that Donaghy was exceptionally skillful in manipulating such calls to the benefit of his co-conspirators without arousing any suspicion; however, as a practical matter it would be almost impossible to carry out such a balancing act--fixing games successfully by making bad calls without grading out poorly or looking suspicious--for several years.

Therefore, it is natural to wonder exactly what information Donaghy was providing and if it is in fact true--as some outlets have reported--that Donaghy's partners won an extraordinarily high percentage of their bets. Apparently, Donaghy would tell them which referees were working specific games, provide inside information about injured players and mention possible grudges between referees and coaches/players. It has been suggested that the only way that knowing the identities of the referees could be important is if certain referees were engaged in misconduct but that is not necessarily the case; gamblers know that some referees call a tighter game and some call a looser game and those factors work in the favor of some teams and against other teams: for instance, if a referee who tends to call more fouls is working a game contested by a very physical team and a less physical team one might assume that key players on the physical team could get in early foul trouble. It is not realistic to expect every referee to call the game exactly the same way; the problem is if some people know get advance knowledge of who the referees are and then wager accordingly but the NBA has made this issue null and void by changing its procedures regarding when the general public finds out which referees are working a game.

As for grudges, this is something that no one wants to think about but the reality is that in all lines of work personality clashes can have an impact on the job environment. Obviously, when things get out of hand--like Joey Crawford with Tim Duncan or Jake O'Donnell with Clyde Drexler back in the day--the NBA must act swiftly but, as I indicated above, I think that stylistic differences among referees are probably a more important factor than grudges. To use a baseball analogy, if I am a pitcher I want to see a plate umpire who has a big strike zone but if I am a batter I want just the opposite--and, either way, I can adjust as long as that umpire calls the game consistently and the same way for both teams. In basketball, players and teams can adjust to a loosely or tightly called game as long as the officiating is consistent (but the very nature of a particular game may be a little bit more in favor of one team, which could influence the type of bet that someone places).

I think that the most important information that Donaghy provided pertained to injuries; there is a reason that pro leagues require teams to issue accurate and timely injury reports and it is not so that fans can send get well cards to their favorite players: knowing the health status of players is a big part of being a successful gambler.

It is a good bet--pardon the pun--that not long after Donaghy gets out of prison he will write a book about this whole sordid affair. After all, he is apparently destitute and he is not likely to ever get a job in his former profession. Nowadays, any kind of fame is considered a positive thing and if disgraced, plagiarizing journalists can write best selling books then a convicted ex-referee can certainly write (or dictate to a ghostwriter) a book. Donaghy will likely expand upon his allegations regarding the Lakers-Kings series and his other accusations of NBA/referee misconduct. Therefore, although the NBA certainly would like to see this whole matter fade away, it is important for the league to get in front of this story and clarify some issues as opposed to always being caught flatfooted and forced to react.

To that end, I would like to see the NBA take the following actions:

1) Publicly divulge the grades/evaluations of the officiating crew from game six of the 2002 series between the Lakers and the Kings. Commissioner Stern has implied that the game may have been sloppily officiated but he has vigorously denied that it was fixed. I realize that the NBA feels that publicly revealing aspects of their grading system could be a start down a slippery slope but if there is really nothing to hide then at some point it becomes counterproductive to be so secretive about a matter that has been so widely debated.

2) Revive the NBA TV show "Making the Call With Ronnie Nunn" or create a new show with a similar format. Most NBA fans--and even many people who cover the league--do not really understand concepts such as the "lower defensive box" and "the restricted area" and this kind of ignorance leads to people thinking that calls are bad or fixed when they are in fact correct. The NBA needs to do a better job of educating the public about the rules of the game and what exactly referees are supposed to be doing.

3) Explain the whole Donaghy-Foster connection. Obviously, it looks suspicious when the "rogue, isolated criminal" apparently has another referee in his "Fave Five" but if there really was nothing nefarious going on here then the NBA should issue a simple statement clarifying this situation. I can think of innocuous reasons that two co-workers in a high stress job would be in frequent contact with each other and I can think of not so innocuous reasons for all of that phone tag but the point is that a lot of people are going to assume the worst in the absence of some kind of explanation.

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posted by David Friedman @ 6:04 AM

6 comments

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6 Comments:

At Wednesday, July 30, 2008 11:01:00 AM, Anonymous J said...

A small legal correction: Donaghy's conviction carried a possible *25 year* statutory maximum; the now-advisory US Sentencing Guidelines recommended a range between 27 and 33 months. Since a Supreme Court case in January 2005 (Booker), federal district court judges may sentence a defendant above or below the now-advisory Guidelines range (prior to Booker, the ranges were essentially mandatory). Nonetheless, some 80 to 90% of sentences imposed remain inside these Guideline ranges. So all this is to say that Donaghy faced a very strong likelihood of receiving a sentence between 27 and 33 months, and a small chance of a sentence either above or below that range. So you are definitely correct to say that he did in fact receive a fairly significant downward reduction in his sentence.

Here's a decent post on the legal issues: http://blogs.wsj.com/law/2008/07/30/ex-nba-referee-gets-15-months/

 
At Wednesday, July 30, 2008 2:13:00 PM, Blogger David Friedman said...

J:

I read the WSJ article but I did not see any reference to the Booker case that you mentioned. I do vaguely remember that when Donaghy was first charged some mention was made that technically he could be facing 25 years in prison but that the likelihood was that the sentence would be much less than that.

As you said, however one looks at it Donaghy could have received a much harsher sentence than he did.

 
At Wednesday, July 30, 2008 3:00:00 PM, Anonymous J said...

Sorry, I didn't mean to give the impression that the WSJ blog explained Booker and the sentencing revolution it occasioned. I was just giving that as additional background info by way of saying that Donaghy's advisory-Guidelines range of 27 to 33 months was not a maximum; judges are free to vary and impose a sentence above or below the now-advisory ranges.

Prof. Doug Berman maintains a blog on sentencing issues, and he has a post here quoting an article reporting that the maximum was 25 years, but that with the advisory Guidelines producing a range of 27-33 months, a sentence around that 30 months or so was expected.
http://sentencing.typepad.com/sentencing_law_and_policy/2008/07/bad-ref-sentenc.html

This Report from the US Sentencing Commission provides some statistics:
(http://www.ussc.gov/sc_cases/USSC_2008_Quarter_Report_2nd.pdf)
see table 1

Nearly 60% of defendants receive a within-Guidelines sentence; 1.6% receive an above-Guidelines sentence, 25.7% of defendants receive a below-Guidelines sentence in cases involving a Government-sponsored motion for a lower sentence (usually for cooperation), and finally 12.7% of defendants receive a below-Guidelines sentence without any Government-sponsored motion for a lower sentence.

Although Donaghy cooperated with the Feds, from the tenor of the NYTimes article linked in the WSJ piece, I do not believe that the government filed a motion in support of Donaghy's request for a lower sentence (I could be wrong though). In that event, Donaghy falls within that 12.7% group who received a below-Guidelines sentence without getting a boost from a Government-sponsored motion for a lower sentence.

 
At Wednesday, July 30, 2008 11:55:00 PM, Blogger David Friedman said...

J:

Was a 25 year sentence a realistic possibility by Tuesday or was that just the theoretical maximum sentence when Donaghy was initially charged? The impression that I got from the mainstream media coverage is that Donaghy could not have gotten more than 33 months by the time the judge ruled on Tuesday. Considering that he was the "most culpable" I thought that Donaghy should have gotten 18 months or even 24 months.

 
At Thursday, July 31, 2008 12:12:00 PM, Anonymous Anonymous said...

You seem to be saying that it's acceptable for different referees to have different styles that may favor or disfavor particular teams (purely because of the styles of the particular teams). But if the referees differ enough that it's possible to make money by betting according to who is refereeing, I think that is clearly the point at which the inter-referee consistency is not good enough, and the league needs to do more to ensure that referees call games the same way. Obviously within-game consistency is most important, but referees should also be consistent with each other, and this is the league's responsibility.

BTW, I though he was accused of affecting games -- just that he affected the over/under for total points (by calling the game tighter or looser) rather than affecting the winner against the spread. And if the league graded him highly, it leads to the question of how good the NBA's grading system is, and what they're looking for -- a question that the league seems to have been able to avoid answering so far.

My cynical answer for why there hasn't been more made of the saga is that major sports news organizations and writers depend so much on the league for access that they're scared of offending the powers-that-be too much.

 
At Thursday, July 31, 2008 12:30:00 PM, Blogger David Friedman said...

Anonymous:

Within the letter of the rules there can be some variability in terms of how a game is called. For instance, during his TV show Ronnie Nunn used to differentiate between a "tactile touch" when a defender just lightly touches an offensive player (perhaps to keep track of him while he is watching the ball) as opposed to a hand check or a loose ball foul. I don't think that there is a hard and fast definition of "tactile touch" and some referees are going to inevitably call things a little closer than others. Anyone who watches a lot of basketball realizes that referees have different "strike zones," to use a baseball analogy.

Nunn always said that the league was working toward having greater uniformity with how games are called and I agree that it would be preferable that there be as much uniformity as possible. However, I think that players would say that their biggest gripe is when a referee changes what he is doing in the middle of the game; if the game is being called a bit loosely, then keep calling it that way and vice versa. That way, the players adjust.

As far as I know, Donaghy has not been accused of altering how he called games or fixing games outright but rather supplying inside information to gamblers.

 

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