Commentary

Donaghy's sentencing raises legal questions

Updated: July 27, 2008, 10:06 PM ET
By Lester Munson | ESPN.com

Late on Tuesday morning in Brooklyn, a federal judge will determine whether disgraced NBA referee Tim Donaghy will go to jail, and if so, for how long. Judge Carol Bagley Amon sentenced two men who conspired with Donaghy to use his inside information to bet on NBA games Thursday. She sentenced James Battista, a professional gambler, to 15 months in jail, and sentenced Thomas Martino, who passed information between Donaghy and Battista, to a year and a day in jail.

The sentencing of Donaghy raises legal questions. Here are some of the questions and their answers:

Will Donaghy's sentence be tougher than the jail sentences imposed on Battista and Martino?

No. Donaghy will do less time. Donaghy will be treated very differently because of his cooperation with federal agents and prosecutors. His evidence, given voluntarily more than a year ago, was critical to the cases against Battista and Martino. Assisting an investigation by federal agents is always a powerful factor in sentencing. The first conspirator to cooperate always receives the greatest benefit in sentencing. Donaghy is the only one of the three conspirators who will receive credit for cooperation. Federal prosecutors stated in court papers that the charges against Battista and Martino were "based in large part on Donaghy's cooperation." He gave the agents details of "the crux of the crime" and told them "how it began, how [it] was carried out, and who played what role."

In contrast, Battista was defiant with federal agents. Known as "Baba" and claiming organized crime connections, he gave the agents nothing. Even worse, Martino lied to a federal grand jury early in the investigation, claiming the three were high school pals who liked to talk with each other on cell phones. In addition to defiance and deceit, Battista and Martino did not agree to plead guilty until April, a long eight months after Donaghy had made the cases against them.

There is an accounting procedure known as "FIFO." The first money in is the first money out in the financial reporting of a business. The same rule works for Donaghy. He was the first in to talk with the government. And he will be the first one out of jail. The forecast here is that Donaghy will be sentenced to a term of less than a year in jail.

Is there anything that will be weighed against Donaghy's cooperation with federal agents and prosecutors, which might add to his sentence?

Yes. The rage of the NBA and the extensive coverage of the case may be factors in Judge Amon's final decision. The NBA claims it is a victim of a monstrous crime. It hired three law firms, including two "boutiques" that specialize in criminal litigation, to demand restitution of nearly $1.4 million. The timing of the NBA demands was interesting. Although the cases against Battista and Martino had been set for trial, the NBA had done nothing during the spring. But as the NBA Finals approached, league officials and their dozens of lawyers began filing a series of papers that described the terrible things Donaghy had done to the league. They did not file their first papers until June 5. Judge Amon later reviewed a four-inch stack of their papers and awarded the league a bit more than $217,000, less than 16 percent of its demand. Although the judge was unimpressed with the NBA's posturing as a victim, she may respond to the glare of a scandal that received national coverage. In a typical gambling case that would proceed from arrest to sentencing without extensive coverage, Donaghy would be a candidate for probation and could easily walk away with no jail time. It is difficult to imagine that scenario with the extensive coverage of crimes that had significant effects on the NBA and its fans.

What will Donaghy tell the judge at the hearing? Will it make any difference?

In addition to the usual apologies, Donaghy will describe his battle with the disease of compulsive, pathological gambling. It is a disease that has been defined by medical and psychological experts, and is confirmed by the Diagnostic and Statistical Manual of Mental Disorders (DSM), the bible of psychiatry. It is a disorder marked by increasing levels of debt, denial, delusion and desperation. There is little doubt Donaghy fits every element of the definition of pathological gambling, and his lawyer, John Lauro, will describe his attempts during the past year to move toward recovery. Lauro will use a detailed statement made under oath by Steven M. Block, a nationally recognized expert whose testimony has been favorably accepted in other courtrooms in the building where Judge Amon presides. Block will be present in the courtroom to add to his written statement. Donaghy's efforts at recovery and Lauro's arguments are impressive and will be another factor that will reduce Donaghy's sentence.

The Donaghy sentencing will conclude a bad chapter in the history of the NBA. What lessons does the Donaghy scandal offer?

There are two aspects of the Donaghy scandal that are scary and should draw the immediate attention of NBA commissioner David Stern. The first is that Donaghy began betting on NBA games in 2003. For four years, the NBA knew nothing of his gambling despite an elaborate system of supervision and evaluation. The FBI discovered it. Stern and the league need to take a serious look at the management of their 60 referees.

The second, and perhaps more important, revelation from the scandal is Donaghy's phenomenal success in predicting the outcome of NBA games. Although the information is incomplete, we know that Donaghy was successful in 37 of 47 games. That is the kind of success that will make gamblers wealthy. What was the basis of Donaghy's success? According to federal prosecutors, he used his position as a referee to learn the identities of officiating crews for specific games, his knowledge of relationships between referees and players and "team personnel," and his knowledge of the "physical condition of certain players." Should that knowledge be enough to predict the winner of a regular-season NBA game nearly 80 percent of the time? Shouldn't LeBron James or Dwyane Wade or Kobe Bryant have more impact on outcomes? Shouldn't coaching, scouting and preparation be greater factors? Isn't there something wrong with a competition whose outcome is so dependent on the identities of the referees? Although they are unlikely to discuss it publicly, Stern and the NBA must be concerned about the incredible success that resulted from Donaghy's fairly limited information.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.