MEMORANDUM AND ORDER Defendants Chuck Connors Person (“Person”) and Rashan Michel (“Michel”) are charged in a six-count Superseding Indictment with a number of crimes in connection with an alleged agreement to direct college basketball players to certain service providers when the players turned professional.The Defendants moved to dismiss the Superseding Indictment as both legally insufficient and constitutionally infirm. (See Def. Chuck Connors Person’s Mem. of Law in Supp. of His Mot. to Dismiss the Indictment, (“Person Br.”), dated Mar. 9, 2018 [dkt. no. 46]; see Def. Rashan Michel’s Mem. of Law in Supp. of Def.’s Mot. to Dismiss the Indictment, (“Michel Br.”), dated Mar. 30, 2018 [dkt. 55].) On April 30, 2018, the Government replied in a Memorandum of Law in Opposition to Defendants’ motions to dismiss. ((“Gov. Br.”) [dkt. 60].) On May 31, 2018, the Government filed a Superseding Indictment that dropped the wire fraud conspiracy count against Michel and reformulated its theory of the wire fraud charge against Person. (Superseding Indictment (“Sup. Ind.”), dated May 31, 2018 [dkt. 71.].) On July 27, 2018, Defendants submitted Reply Memoranda of Law. ((“Michel Rep.”) [dkt. 89]; (“Person Rep.”) [dkt. 84].) On August 24, 2018, the Government submitted a sur-reply in opposition. ((“Gov. Sur. Rep.”) [dkt. 95].)For the reasons stated below, Defendants’ motions to dismiss the Superseding Indictment are denied.I. BackgroundA. The National Collegiate Athletic AssociationThe National Collegiate Athletic Association (the “NCAA”) is a non-profit organization that regulates the athletics of over 1,000 colleges and universities. (Sup. Ind. 9.) NCAA member schools are organized into three separate divisions: Division I, II, and III. (Id.) Division I schools typically are the largest, have the biggest budgets, and offer the most athletic scholarships. (Id.) Auburn University (the “University”) has a Division I basketball program. (Id. at 1.)Division I schools are governed by the NCAA Division I Manual, which contains the NCAA Constitution and operating bylaws (the “Bylaws”). (Id. at 12.) The Bylaws govern a wide range of behavior. For example, they prohibit the use of tobacco products by all game personnel during practice and competition. See, e.g., 2018-19 Division I Manual, NATL. COLLEGIATE ATHLETIC Assoc. (July 2018), http://www.ncaapublications.com/productdownloads/D119.pdf.The NCAA says that one of its core principles is that of amateurism and that student-athletes “should be protected from exploitation by professional and commercial enterprises.” (Sup. Ind. at 12.) The NCAA effects this stated principle by prohibiting student-athletes from receiving financial assistance from anyone other than the university or the student-athlete’s family, unless the NCAA authorizes such payment. (Id. at 13.) Student-athletes are also prohibited from accepting any benefits from a financial advisor or an agent. (Id.)In addition, coaches are prohibited from “representing[ing], directly or indirectly, any individual in the marketing of his or her athletics ability or reputation to an agent.” (Id. at 16.) Coaches are also prohibited from arranging or facilitating a meeting between a student-athlete and an agent, financial advisor, or someone representing an agent or financial advisor. (Id.)Student-athletes, coaches, and staff members are required to complete annual certifications regarding their knowledge of NCAA rules violations. (Id. at 17.) It is a violation of the Bylaws knowingly to furnish or influence others to furnish the NCAA or the individual’s institution false or misleading information about rules violations. (Id. at 20.)Violations of the Bylaws could lead to penalties, including, but not limited to, limitations on a university’s “participation in postseason play in the involved sport,” “requirements that an institution pay a fine, return revenue received from a specific athletics event or series of events, or…reduction[s] in or elimination of monetary distribution by” the NCAA, “limitations on the number of financial aid awards that may be provided” by the university to student-athletes, and “recruiting restrictions including on the ability to conduct off-campus recruiting activities or to communicate by telephone or letter with prospective student-athletes.” (Id. at 22.)B. The Alleged SchemeDefendants are charged in a six-count Superseding Indictment alleging that Person, a coach for the University’s basketball team, solicited and was paid bribes facilitated by Michel. (See Sup. Ind. 1.) In exchange for these bribes, Person is alleged to have agreed to exert his influence over student-athletes to guide them to retain the services of the payors once the athletes turned professional. (See id.) These payments were made in violation of the NCAA’s rules. (See id. at 4.) These actions are alleged to have exposed the University to the risk of “significant fines and penalties.” (Id. at 4.) Payment of Person’s salary is alleged to have been made under false pretenses and material misrepresentations. (See id. at
4, 23-26.) Defendants are alleged to have defrauded the University of the right to control its assets, namely a limited number of coaching positions. (See id. at 4.)Count One charges a conspiracy to commit bribery in violation of 18 U.S.C. §371 as follows:From at least in or about September 2016, up to and including in or about September 2017, in the Southern District of New York and elsewhere, CHUCK CONNORS PERSON and RASHAN MICHEL, the defendants, and others known and unknown, willfully and knowingly did combine, conspire, confederate, and agree together and with each other to commit offenses against the United States, to wit, violations of Title 18, United States Code, Sections 666(a) (1) (B) and 666(a) (2).It was a part and object of the conspiracy that CHUCK CONNORS PERSON, the defendant, being an agent of an organization that received, in a one-year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, and other form of Federal assistance, to wit, Auburn University, corruptly would and did solicit and demand for the benefit of a person, and accept and agree to accept, something of value from CW-1, intending to be influenced and rewarded in connection with a business, transaction, and series of transactions of such organization, involving something of value of $5,000 and more, in violation of Title 18, United States Code, Section 666(a)(1)(B).It was further a part and an object of the conspiracy that RASHAN MICHEL, the defendant, and others known and unknown, corruptly would and did give, offer, and agree to give something of value to a person, with intent to influence and reward an agent of an organization, in connection with business, transactions, and series of transactions of such organization involving a thing of value of $5,000 and more, while such organization was in receipt of, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, and other form of Federal assistance, in violation of Title 18, United States Code, Section 666(a) (2).Overt ActsOn or about November 29, 2016, in Alabama, CHUCK CONNORS PERSON and RASHAN MICHEL, the defendants, and CW-1 met, during which meeting PERSON agreed to accept approximately $50,000 in bribe payments from CW-1 in exchange for using his official position at Auburn University to steer student-athletes on Auburn University’s NCAA Division I men’s basketball team to retain the services of CW-1 and MICHEL.On or about December 12, 2016, in Manhattan, New York, CHUCK CONNORS PERSON and RASHAN MICHEL, the defendants, met with CW-1 and a student-athlete who, at that time, was a member of Auburn University’s NCAA Division I men’s basketball team and together discussed, in sum and substance, that the athlete would retain the services of MICHEL and CW-1 upon becoming a professional basketball player.Immediately after the December 12, 2016 meeting, in Manhattan, PERSON took from CW-1 a $15,000 cash bribe.(Title 18, United States Code, Section 371.)(Id. at
