On the FBI and the NBA "concluding" Tim Donaghy didn't fix games

Let me first say…I CAN’T BELIEVE WE ARE STILL HAVING THIS DISCUSSION (a full decade on, no less).

Listen to me.  I’m begging you.  Please listen to me: 

The FBI has never “concluded” Tim Donaghy didn’t fix games.  Neither has the NBA.

What prompts my tone and attitude about this are these passages in the recent ESPN the Magazine piece (emphases added):

For 11 years, the official plotline has been that Donaghy was a rogue, gambling-addicted ref who made some bets on his own games -- and nothing more. The NBA conducted its own investigation and concluded that Donaghy, in fact, did not fix games.

and

A few weeks later, four days after the Post story broke, David Stern gave his first news conference. His messaging was clear: Donaghy was a rogue. He'd acted alone. This was an episode of gambling, yes, but almost assuredly not match-fixing. "Indeed," Stern assured the assembled media, "as a matter of his on-court performance, he's in the top tier of accuracy."

Stern's conclusion that Donaghy did not fix games would be validated by the federal investigation. Donaghy, in August 2007, and Martino, in April 2008, would plead guilty to two charges: conspiracy to commit wire fraud and conspiracy to transmit gambling information. Battista would cut a deal, pleading guilty in April 2008 only to the charge of transmission of gambling information. Martino would receive a year and Donaghy and Battista 15 months each in federal prison. But while Donaghy would admit to betting on his own games in his plea agreement, he would not admit to fixing games.

This is only the latest (albeit a rather high profile and widely-disseminated) version of this simplistic ahistorical version of events, which began long ago with lazy reporting before being hyped in self-serving fashion by Donaghy (and the vicious cycle was complete when still more lazy reporting promoted Donaghy’s nonsensical and demonstrably-false claims).

Here, again, for clarity and before my comments, are the relevant statements on the matter (in chronological order of appearance):

Federal government court filings:

“Donaghy compromised his objectivity as a referee because of his personal financial interest in the outcome of NBA games." (Donaghy plea agreement, August 2007)

“There is no evidence that Donaghy ever intentionally made a particular ruling during a game in order to increase the likelihood that his gambling pick would be correct.” (Donaghy sentencing memo, May 2008)

Donaghy has acknowledged that he “compromised his objectivity as

a referee because of his personal financial interest in the outcome of NBA games, and that this personal interest might have subconsciously affected his on-court performance.” (Donaghy sentencing memo, May 2008, emphasis added)

The NBA’s “Pedowitz Report” (October 2008):

Donaghy has denied intentionally making calls designed to manipulate games, and the government has said that it found “no evidence that Donaghy ever intentionally made a particular ruling during a game in order to increase the likelihood that his gambling pick would be correct.” Based on our review, and with the information we have available, we are unable to contradict the government’s conclusion. 

and

We have no reason to doubt the thoroughness of the government’s investigation on which it based its conclusion. We believe that the government would have been naturally skeptical of Donaghy’s assertion that he did not go beyond exploiting “inside” information and did not intentionally make calls to influence the outcome of games. Before concluding that there was no evidence that Donaghy intentionally made incorrect calls, the government investigators doubtless questioned Donaghy carefully about the specific non-public information on which he based his picks, and his conduct while officiating those sixteen games. Because the NBA provided video of games that Donaghy officiated, the government also would have had the opportunity to review these games and to cross-examine Donaghy ― and assess the logic of his explanations and his demeanor. While we do not know what Donaghy told the government, he clearly convinced them that he had not manipulated these games.  (emphases added)

and

It seems plausible to us that Donaghy may not have manipulated games. He likely had concerns about being detected. Because there were two other referees on the floor, it was inherently risky for him to make an intentionally incorrect call or non-call without being questioned or overruled by his crewmates. (emphasis added)

Tim Donaghy, following his stint in federal prison, reflecting on his plea agreement’s tacitly-damning wording:

“To this day, I don’t understand what ‘subconsciously’ meant.” (December 2009)

Retired FBI SSA Scala:

“Watching the tapes, we could see that there was never something outlandish where you could see a foul or he omitted a foul because he wanted to see a certain team win.” (December 2009, emphasis added)

As quoted in Gaming the Game re federal authorities refusing to a plea deal with Donaghy during the summer of 2007 unless he admitted his bets necessarily impacted his officiating (February 2011):

…there was one considerable area of dissension between Donaghy and his federal handlers.  Included in the charging document was a line which read, “Donaghy also compromised his objectivity as a referee because of his personal financial interest in the outcome of NBA games.”  Donaghy had insisted to authorities that he knew so much “inside information” that he didn’t need to throw or manipulate games.  Phil Scala says he and his colleagues told Donaghy that even if this was true, “Once you bet on a game you’re officiating, your judgment is impaired.  When your judgment is impaired, your decision making is damaged.”  Donaghy did not want to concede this line of reasoning, says Scala.  “We went back and forth with that a hundred times.  He didn’t want to make that admission.  He would say, ‘You don’t know how easy it was, blah, blah, blah’.”

Thus, Scala’s comments in the recent ESPN piece are not all that new or remarkable:

…Scala, the FBI agent who pursued the case, has doubts. "Donaghy says he never threw a game," Scala told me. "But you know what? That never really flew with us." According to Scala, his and the FBI's position has always been that Donaghy's deals with Concannon and Battista irrevocably "tainted" his capacity for officiating, even if only subconsciously. (This notion even found its way into the Pedowitz report itself.) Scala recalls that he and Donaghy went around and around on the issue. "I said to him, 'Listen, don't tell me that you have some independent, decision-making ability in your mind's computer that's going to be unbiased, because that's not going to f---ing happen. All those gray-area decisions you have to make, Tim? Because you're betting on the game, your judgment is off -- and you threw the game.'"

As I explained in detail in Gaming the Game and elsewhere, there were several reasons FBI case agents Harris and Conrad – who for starters were: (1) based in New York; and (2) part of an organized crime squad now being tasked with repeatedly traveling to the suburbs of Philly to pursue a white-collar gambling case – soon (with Scala supervising) settled on not more seriously pursuing the matter of whether Donaghy fixed games.  Importantly, please first recall the FBI didn’t have access to the offshore betting records and didn’t research betting line activity.1  Also recall pro gambler Battista didn’t cooperate with the government and fellow co-conspirator Martino perjured himself before the grand jury and was thus a tainted source.  Then recall Donaghy, in addition to adamantly stating he didn’t fix games, claimed to not remember which games he bet nor which sides, etc.  So, just stop and consider all of that for a moment and ask yourself how FBI agents were supposed to assess whether Donaghy fixed games.  What games?  And, without betting info, even if you had specific games in mind, what would you assess without knowing on which side he bet?  Against what evidence would you compare your findings and/or his assertions? 

Please note I haven’t yet mentioned the problems of having FBI agents subjectively watching game tapes looking for dubious calls (also realize agents were looking for incorrect calls, not for technically-correct but relatively unusual ones called strategically – please revisit Scala’s comments above); you don’t have to get to that point to realize there was no way federal authorities could confidently believe much less conclude Donaghy was fixing games.  They knew this, too, and once Donaghy acquiesced to acknowledging his on-court performance may have been at least subconsciously affected by his bets, they were (in my view, properly) satisfied to close up shop on the Tim Donaghy/NBA betting scandal and get back to the real work in NYC of dealing with organized crime.  Donaghy would shrewdly go on to exploit the naivete and ignorance of the media (see, especially, the 60 Minutes disgrace) along with much of the public, using the ambiguous and tortured (however tacitly-damning) wording in the government filings to boldly and repeatedly proclaim some version of “The FBI did a thorough investigation and concluded I didn’t fix games/make calls in a game to advance my bets/fix games”.

As I was penning this post, the NBA issued a formal release in response to the ESPN the Magazine piece.  In it, incredibly (for reasons the public will find very interesting at some point), the NBA explicitly states:

Unfortunately, it is replete with errors, beginning with its statement that the Pedowitz Report “concluded that Donaghy, in fact, did not fix games.”  The Pedowitz Report made no such conclusion.  Rather, the investigation found no basis to disagree with the finding of the FBI and the U.S. Attorney’s Office that “[t]here is no evidence that Donaghy ever intentionally made a particular ruling during a game in order to increase the likelihood that his gambling pick would be correct.”  ESPN ignores this important distinction.2

The official statement resulted in headlines like this one from NBC Sports: “NBA Emphasizes Its Investigation Never Concluded Tim Donaghy Didn’t Fix Games”.

Reaction to the league's statement among many serious NBA betting scandal followers was some combination of shock and confusion. 

Folks like me have been banging this drum for a decade – indeed, I just made this point on VSIN with Gill Alexander days ago.   In this regard, here is a blog post I wrote on May 11, 2010.  You can sense by my sarcasm it was already a major source of frustration with me by then (the embedded links are to other dated posts of mine on the subject):

Another newsworthy appearance for former NBA referee Tim Donaghy.  He appeared on 95.5 The Game (Portland) on 5/10/10, where the hosts of the Morning Sports Page had the audacity to reference analysis and official records in their insightful interview.

Dozens of other sports radio hosts around the country are apparently not aware they are allowed to do a modicum of research and to ask follow-up questions.  Among other things, the MSP hosts properly pointed out that the FBI never "concluded" Donaghy didn't fix games, and that there is no supporting evidence for his claim that he won 70% to 80% of his bets.  Donaghy, himself, says he can't reproduce his betting propositions (sides, lines, outcomes), so how could the FBI "confirm" anything re: Donaghy's betting success rate?  The FBI doesn't even pretend to know how many games he bet much less what the propositions and their results were.

To my knowledge, however, and as always I welcome any information to the contrary, the 2/22/19 statement is the first time (publicly or privately) the NBA has officially taken this position.3  Indeed, from what I have reviewed off and on since 2011 (especially throughout the many hearings and depositions in the various legalization of sports gambling-related matters), the NBA stuck to their guns making far more definitive stances re Donaghy never fixing a game, etc.  At a minimum, the NBA was perfectly comfortable – for a decade – allowing the myths to persist of the FBI and the NBA each independently concluding Tim Donaghy didn’t fix games.

Having gone through the focus of the above, namely whether or not the FBI and/or NBA ever concluded Tim Donaghy didn’t fix games (one last reminder - they didn’t), I wish to end thusly:

Despite the tacitly-damning language in his plea deal and despite the repeated comments of former FBI SSA Scala and other federal officials who worked the case, Tim Donaghy insists he didn’t fix games. 

Well…

• his co-conspirators
• pro gamblers (including several who profited from the scheme)
• electronic betting records
• betting line data

all say otherwise.

spg

1 For those new to my work on the NBA betting scandal, please know perhaps my lone criticism of the FBI’s probe into whether games were fixed or not is that they never considered assessing betting line data.  These data are publicly available and easy to find (as opposed to electronic betting records, which would have required considerable investigation and search warrants).  Ideally, in my view, the agents should have first done an assessment of line movement on Donaghy’s games in the ’06-07 season and compared them to all other games (as is done in the Appendix of Gaming the Game).   The agents would have required only a modicum of sports gambling knowledge to easily see the absurd (and telling) betting patterns on Donaghy’s games.  Once in possession of these objective data, they could have then pressed Donaghy on his key assertions, namely that he (1) relied on inside information to win his bets (as opposed to manipulating game outcomes with his officiating), and that he thus (2) wagered on games officiated by others and was just as successful in those bets as he was in those he officiated.  Unfortunately, the FBI didn’t do this and, without any objective data and without gambler Battista’s cooperation or electronic betting records, had little to no means to vet these crucial Donaghy assertions.  Of note, it is true that when co-conspirator Tommy Martino decided to cooperate with the government he debunked these key Donaghy claims.  Problematically, Martino had perjured himself before the grand jury (which is partly why he flipped) and thus the FBI/USAO relying on his words on any matter of consequence would have been imprudent.

2 In its recent statement on the ESPN the Magazine article, the NBA continues to place great emphasis on its Pedowitz Report, noting the following in support of its findings (emphasis added):

The Tim Donaghy matter concluded over a decade ago with a full investigation by the federal government, Donaghy’s termination from the NBA, and his conviction for criminal acts.  At the same time, at the request of the NBA, former prosecutor Larry Pedowitz conducted an independent investigation of Donaghy’s misconduct and issued publicly a 133-page report.  This report was based on an extensive review of game data and video as well as approximately 200 interviews, thousands of pages of documents, and consultation with various gambling and data experts.

As I noted soon after the Pedowitz Report was released, the report was destined to be superficial for a few vital reasons.  Not included among the interview subjects were each of the scandal’s key figures – Donaghy and his co-conspirators; and the federal government refused to share non-public information with the Pedowitz team.  Interested parties should also see my “Some Suggested Research for the NBA” (an extended version of this appears in Gaming the Game).

3 This is why I viewed it as so noteworthy when, in 2016, former NBA Commissioner David Stern was quoted about the Pedowitz Report saying, “…our own analysis didn’t come to any particular conclusion.”

Speaking of Stern, please recall that while still in his position he was asked (at a press conference during the 2011 NBA All-Star Weekend) about the findings presented in Gaming the Game, resulting in this exchange:

Henry Abbott, then the host of the TrueHoop blog network for ESPN:

I don't know if you've seen this new book about the Donaghy scandal, but having read it myself, three of the four conspirators have said something on the record to somebody, and they are unanimous - the fourth, by the way, is Donaghy himself - and they are unanimous that he was really good at winning bets on games he officiated, really bad at winning bets on any other games, and he was gambling on games since 2003 until he left the league and the report that he looked at 16 games. How confident can we be that there are not fixed games in the NBA?

Stern’s answer (emphases added):

I have not read the new book or seen it yet, although I'm happy with each All-Star Weekend or Finals to present an opportunity for a convicted felon to issue yet another tome on his misdeeds.  So we'll see if there's anything new suggested, Mr. Pedowitz will be asked to continue to review it as we have with each one that has been published, because we want to make sure that we get to the bottom of it all. But right now, I don't have any more information other than I know you always confirm your sources; so I commend you to confirming the convicted felon's sources.

 After reading Stern’s dodge (and insult) of an answer, I posted the following:

As I have taken pains to point out explicitly in Gaming the Game, and others have already been quick to note (see, e.g., here), my new book would have been completed in the Spring of 2008 if the research simply entailed interviewing pro gambler Jimmy Battista (as my wife and kids will attest!).  Thus, I am glad Stern at least noted that he had not seen the book, because anyone who reads GTG will easily understand this project absolutely consumed me for almost 3 years such that little of the book rests solely on Battista's words.

Readers may wish to know that although Larry Pedowitz was gracious enough to humor my inquiries, the NBA and the National Basketball Referees Association (NBRA) each refused to entertain my correspondence on several occasions.  Given the correspondence and how much I was doing in this area of inquiry, it is difficult for me to believe the Commissioner didn't at least have a rough idea of what I had discovered in the course of interviewing federal law enforcement officials, pro gamblers (beyond Battista) and others, in addition to reviewing confidential FBI files, court documents, betting records and other objective betting data.

To my knowledge, as of February 2019 neither the NBA nor the NBRA has ever publicly discussed the book’s findings.

A synopsis of Gaming the Game, along with dozens of review comments, can be found here.

My years of extensive research on the NBA betting scandal, including and especially beyond what is detailed in Gaming the Game, are chronicled and archived here.