By Jonathan Wynne
Each college basketball season ushers a new crop of prospects to the long and arduous road connecting junior college to the NBA. Guarantees are few and the odds are long. Players know that for every Tiny Archibald, Latrell Sprewell, and Jimmy Butler, there are countless players who had the talent but could not find their way from the JUCO hardwood to the promised land of a professional contract and a coveted NBA roster spot.
Pitfalls on the path are plentiful and as Keith Thomas, a one-time national leading rebounder at the JUCO level learned, those hurdles can hide behind close and trusted individuals. Thomas’ story is as familiar as it is unfortunate, as the on-court journey for a player who once averaged a staggering 25 rebounds per game with Westchester Community College (WCC), wound down in a courtroom in Westchester County, New York this summer.
Thomas saw a reversal of jury verdicts in his favor for his negligence action against WCC and the Faculty Student Association of Westchester Community College, Inc. (FSA) after Justice William J. Giacomo granted post-trial motions for judgment as a matter of law in favor of both defendants.
Thomas, a former WCC standout and onetime St. John’s University recruit saw his scholarship and admission to the university revoked in the wake of a transcript scandal centering on his former WCC head coach, Tyrone Mushatt. Thomas attended WCC and played basketball under Mushatt from January of 2011 through May of 2014. He then transferred to St. John’s, but his tenure was short-lived when an anonymous email brought a falsified transcript to light, dashing his Division I eligibility.
Mushatt later pled guilty to second degree criminal possession of a forged instrument and fifth degree conspiracy charges. Thomas then brought his negligence suit against the County of Westchester and the FSA.
Ron Mexico Sounds the Alarm
On October 23, 2013, an anonymous email under the pseudonym “Ron Mexico” arrived at the National Junior College Athletic Associations (NJCAA). Mr. Mexico named Mushatt specifically and stated that the coach had changed grades of star players for years, permitting non-qualified players to compete for WCC, and facilitating impermissible transfers to Division I and II programs.
One such example occurred in the 2012-13 season, when Mushatt had an athlete playing under a different student’s name on his official roster. That unnamed player (referred to as JW in court filings) went on to have his scholarship revoked by Long Island University — C.W. Post when the school received a transcript showing between 45 and 50 credits completed in one year, among other irregularities. The degree of specificity that the Mexico emails contained was another driving factor that later worked against Thomas.
The Case Against Westchester
Thomas brought suit on the theory that WCC’s and FSA’s negligence cost him the opportunity of playing college basketball and a potential NBA career.
Donald Weigand, the vice president and dean of student affairs at WCC, testified to first investigating the Mexico emails in-house and concluding that no member of the athletic department had the ability to access registrar systems and change grades. Further, no eligibility had been filed for JW, and the player did not appear in team photos. Weigand concluded his investigation at that time. However, the subsequent uncovering of the transcript fraud invited an Inspector General investigation. Weigand would cancel the season and the entire WCC basketball staff was released.
Subsequent testimony from David Ridpath, an associate professor of sports business at Ohio State and expert for Plaintiff Thomas, suggested that the investigation was lacking. Specific information in the Mexico email regarding Mushatt should have precluded his involvement, and a suspension with pay during the investigation would have been justified. WCC denied that JW ever played until videotape and additional witnesses told otherwise. Consequently, due diligence and oversight were lacking in the WCC athletic department. These facts lead to a jury finding of negligence against Westchester County that the Court upheld.
Facts Working Against Thomas
Despite a troubled compliance atmosphere at WCC, Thomas encountered hurdles of his own in the negligence case.
Douglas Trani, an associate athletic director for compliance at St. John’s, offered challenging context to Thomas’ assertions that he was unaware of certain aspects of the recruitment process. Trani explained that most junior college athletes know they need the associate degree to make the move to a Division I school.
St. John’s awarded Thomas a full scholarship, contingent on meeting and maintaining all eligibility requirements. Thomas accepted and signed the financial agreement and national letter of intent. He had represented in his transfer application that he would earn an associate degree by his arrival at St. John’s, and upon arrival he filed paperwork stating that he had received his degree. This was not the case, and the Court would later find that Thomas was ineligible as a result.
Thomas never suited up for St. John’s. After reading about forged transcripts from WCC concerning a different player, Trani contacted the registrar at WCC and sent a copy of the transcript that St. John’s had received. Though the transcript appeared official, WCC confirmed the document was not valid. WCC provided a copy of the valid transcript, which set in motion the end of Thomas’ time at St. John’s.
Five-Year Ticking Clock
Thomas was sunk by material misrepresentations in his application, which involved the start of his five-year clock regarding eligibility. Thomas’ false transcript stated that he began his WCC career in the fall of 2011, while he actually began several months before, in the Spring of 2011. An athlete has five years in which to play four years of Division I sports. A return to WCC to complete his degree initially would leave him with only three semesters of eligibility.
However, based upon the correct transcript, Thomas’ percentage of credits towards his degree was also too low. Thomas had only 46 of the approximately 76 credits required from the start of the five-year clock to transfer to St. John’s. He would need two additional semesters to reach the academic threshold, leaving only one semester of athletic eligibility at St. John’s. An NCAA waiver was possible, but not guaranteed.
Jury Trial and Post-Trial Motions
The jury found in favor of Thomas, finding that the County and FSA were negligent in keeping Mushatt on board when his propensity to forge transcripts became clear. The jury found that each defendant’s negligence was a substantial factor in causing Plaintiff Thomas’ damages, while also finding that Thomas was not negligent.
However, Justice Giacomo set the jury findings aside, ruling in favor to the defendants in post-trial motions for judgment as a matter of law.
Justice Giacomo first ruled that FSA could not be negligent because it did not have a duty to investigate the Ron Mexico email. Dean Weigand was solely responsible for investigating, and no additional evidence was presented shift that duty. Weigand had the authority to, and in fact did cancel the basketball season and discharge the coaches, without consulting with FSA.
However, the jury’s negligence finding against the County was upheld, based largely upon Weigand’s insufficient investigation. The Court cited Mushatt’s involvement in the investigation despite being the subject of the Ron Mexico email. Weigand never reviewed the transcripts and never talked to other schools where prior players had transferred. The Mexico email warranted a thorough effort that Weigand failed to produce.
This negligence finding, however, was not found to be a substantial factor in Thomas’ harms. The NCAA has stringent athletic admission standards with rules that were well known to all parties, including Thomas. At a fundamental level, Thomas was required to earn an associate degree at WCC and bring a set number of transfer credits with him to St. John’s. His admission and scholarship were contingent on meeting all eligibility requirements. The official transcript established that Thomas lacked an associate degree and core course requirements. Thomas was never academically eligible, and consequently never entitled to receive an NCAA scholarship.
Testimony at trial established that Thomas was aware that he was not on track to graduate with an associate degree, and that he knew of his responsibility to attend and pass his classes. Unfortunately, Thomas had mistakenly placed his trust for recruiting and eligibility issues firmly with Mushatt.
The Court observed that Thomas was a “very impressive witness” in his own case. Thomas was well-meaning and knowledgeable. He had worked to navigate his playing career with the backdrop of the tragic loss of his grandfather, with whom he left school to care for him during the last days of his life. Upon his return to WCC, Thomas resumed summer classes and was focused.
However, the Court observed that, even if Thomas returned to WCC to complete his degree, he would have had at most one semester of eligibility remaining, due to the five-year clock situation. The Court found no nexus between the harms Thomas alleged and the negligence of defendants in retaining Mushatt after the emails came to light.
Jonathan Wynne contributes periodically to the Journal of NCAA Compliance and is a civil litigator in Boston, Massachusetts.
See Thomas v. County of Westchester, 2020 N.Y. Misc. LEXIS 3875.
