My comments on the ESPN the Magazine piece about Tim Donaghy and the 2003-07 NBA betting scandal - Part I

As someone who has spent hundreds of hours researching the NBA betting scandal over a decade, including the publishing of a critically-acclaimed and best-selling book on the subject, I have informed thoughts on the recent ESPN the Magazine article, “How former ref Tim Donaghy conspired to fix NBA games” by Scott Eden.  Rather than humoring repeated media inquiries, I am opting instead to post here for everyone to conveniently reference.  I offer my insights in two sections: (1) a substantive critique of the article’s content (below); and (2) a commentary on my involvement with, and reaction to, the piece (here).

Disclaimer: Starting in July 2017, I assisted Scott Eden extensively on the piece, but never knew what he was writing and saw the article – in any fashion - for the first time only after it was published.

Some comments on matters of substance1 (in order of significance, not in order of appearance):

1. Eden wrongly states the FBI and NBA concluded Tim Donaghy didn’t fix games (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.

These matters are so consequential and problematic I have posted a lengthy, stand-alone commentary on them.

2. Eden wrongly characterizes the December 2006 meeting between the three co-conspirators as a “bribe” offered by pro gambler Battista to referee Donaghy (emphasis added):

 The bribe was only two dimes, $2,000 per game -- an outrageous bargain. If the pick won, the ref got his two dimes. If the pick missed, the ref owed nothing; Battista would eat the loss.

I’m assuming most readers didn’t catch – or thought nothing of - this, but words matter, especially in a complicated story of historical significance.  I first heard Eden describe the conspiracy this way in a call from him shortly before publication, and my efforts to disabuse Scott of his curious misunderstanding were unfortunately unsuccessful.  The legal definition of bribery includes the following key criteria (emphasis added):

Bribery refers to the offering, giving, soliciting, or receiving of any item of value as a means of influencing the actions of an individual…Proof of bribery requires demonstrating a ‘quid pro quo’ relationship in which the recipient directly alters behavior in exchange for the gift. 

Please recall Donaghy was betting on games he officiated for years before he convened with Battista to discuss continuing his behavior.  Martino (who cooperated with the government) and Battitsa (who did not), each independently described the meeting and the agreement as mutual between Donaghy and Battista.  The federal government – following Donaghy’s proffer sessions and plea agreement - did, too, which is why prosecutors wrote Donaghy “has never taken the position that he was anything other than a willing participant in the scheme with Battista and Martino, and, before them, with Jack Concannon.” 

This is why Judge Carol Bagley Amon stated of the conspiracy (emphasis added):

In December of 2006, defendants James Battista and Thomas Martino approached Donaghy and informed him that they were aware that he had been placing bets on NBA games, including games he had refereed.  Battista proposed an arrangement whereby Donaghy would provide picks on NBA games to Battista through Martino. 

As she sentenced him, Amon added Donaghy was “more culpable” than either of his co-conspirators.

3. Eden prominently quotes perjurer Tommy Martino on the preeminent matter of Donaghy fixing games without explaining this is “Martino version 4.0”:

ESPN.com highlights a Martino quote thusly:

"By six points either way. That's what he told me." 
Tommy Martino on how much Donaghy said he could influence an NBA game

For those unaware, in the decade-plus since the scandal, Tommy Martino has never come close to making such a bold claim – not to the FBI (during his proffer sessions when his freedom was at stake) and not to the media (through his attorneys or in the context of Donaghy exploiting Martino while Donaghy was hyping his book).  Context Eden either does not know or ignored matters greatly here.

I am certainly no fan or defender of Tim Donaghy; I have chronicled his unreal off-court antics in print and on the web, and have debunked his myriad demonstrable falsehoods hundreds of times.  However, there is little reason to believe this whopper of a Martino quote.  Here is the context Eden deprived his readers.

I sarcastically refer to “Martino 4.0” above because this is at least the 4^th different version of this co-conspirator’s statements on the scandal.  Martino 1.0 lied to the federal grand jury, which resulted in him being charged with perjury.  In response to the outcome of version 1.0, Martino 2.0 cooperated with the government, and during proffer sessions with authorities offered his most valid, supportable version of events to date.  Martino 2.0 then pleaded guilty to wire fraud, with authorities dropping theremaining charges (two for perjury, and one for transmitting wagering information – in consideration of his cooperation).  After he was released from prison, Martino 3.0 reunited with his old friend Donaghy (himself then a recently-released con), and took to better aligning his version of events with Donaghy’s.  Because media folks were lazy and because they didn’t have access to Martino’s confidential FBI statements, few realized Martino 3.0 was arguing (perhaps for personal and/or financial reasons) against Martino 2.0 on the preeminent matter of Donaghy fixing games.  Returning to the recent ESPN piece, we now get Martino 4.0 incredibly telling Eden not only that he knew Donaghy was fixing games but that Donaghy spoke with him about by how many points he could influence a game and that certain games (blowouts) were unfixable.  Eden does not tell his readers any of the above about Martino’s ever-evolving versions, nor that Martino 4.0 is actively involved in a business venture which would benefit greatly from Martino and the scandal being discussed again (the venture, of course, would benefit from some new sensational claim generating attention, such as Martino now offering a damning quote for the first time).  Instead, the Martino narratives are offered as factual and the money quote is actually highlighted as a pop-out.  It is wholly unsurprising that when asked by Eden on when Donaghy allegedly uttered the unbelievable quote, Martino can’t say:

It took a second for me to comprehend what Martino was telling me. "When did he tell you this?" I asked. Martino couldn't remember, not exactly. "During all this s---," he said.

4. On the curious case of retired FBI Supervisory Special Agent Phil Scala

Scala is quoted on the pre-eminent issues of (1) whether the FBI “concluded” Donaghy didn’t fix games, and Scala (as he did when I interviewed him approximately 10 years ago for Gaming the Game: The Story Behind the NBA Betting Scandal and the Gambler Who Made It Happen [Barricade, 2011]) once more explained the FBI and US Attorney’s Office refused to agree to a plea deal unless Donaghy acknowledged his on-court performance was necessarily affected by his bets on games he officiated (i.e., the feds never came close to concluding Donaghy didn’t fix games); and (2) why federal authorities accepted they were not going to be able to conclusively prove Donaghy was fixing games (please see here for my assessment of this).  Predictably, for those unfamiliar with Gaming the Game, this Scala quote in the ESPN article re: Donaghy fixing games was especially remarkable:

"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.'"

The quote was considered so newsworthy that in its formal statement on the matter the NBA wrote:

The ESPN Article includes several quotes from named and unnamed individuals.  But these statements conflict with other evidence in the record and in many cases are based on speculation.  For example:

• ESPN quotes Phil Scala, a retired FBI agent who was part of the government’s investigation, as saying Donaghy’s claim that he did not manipulate games “never really flew with us.” But in 2009, Scala wrote a foreword to a book authored by Donaghy in which Scala characterized Donaghy’s cooperation as “unconditionally truthful” and stated that Donaghy “confess[ed] his sins, [took] full responsibility for his actions, pa[id] his debt to society, and [found] the humility to completely display his past vices.”

Many interested parties were confused by Scala’s seemingly conflicting stances re: Donaghy.  For example, after reading the NBA’s statement, Dan Feldman of NBCSports.com asked a question many have posed to me over the years (emphasis added):

…the league raises one question that seems particularly relevant: Why did former FBI agent Phil Scala vouch for Donaghy’s honesty then express doubt over Donaghy’s claim he didn’t fix games?

Again, timing and context matter, and each is lacking in the ESPN piece.  When I interviewed him for Gaming the Game, Scala explained why he initially believed Donaghy back in 2007:

You always try to corroborate, but there are other things, but there are other things you can’t corroborate that are “he-said-she said”.  When you sign someone up, until something’s proven to be a lie, you gotta go with the person who signs the agreement.2

The Scala foreword to Donaghy’s book (which importantly focuses exclusively on the FBI probe and on Donaghy’s cooperation, and which makes no assessment of Donaghy’s book or related claims) is technically accurate in that, as far as Scala knew (or at least wanted to believe) Donaghy had cooperated with authorities in good faith.  As noted above and elsewhere, Scala (and his colleagues) had already disagreed with Donaghy on the preeminent issue of game outcome influencing, starting with Donaghy’s plea negotiations.  In 2007, rather than viewing Donaghy as a manipulative hustler and liar, Scala was humoring that Donaghy may somehow not have been consciously fixing games.  This is largely why the government’s plea deal included tortured language stating Donaghy 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.” 

Please recall the FBI could not rely on the words of government cooperator Tommy Martino (who only flipped after perjuring himself before the grand jury) and had no access to the third co-conspirator, pro gambler Jimmy Battista.  Just as, if not more, significantly, the FBI didn’t have access to Battista’s electronic betting records and never researched betting line data.  Collectively, then, there were little means available to assess the validity of Donaghy’s claims.  It is true Scala’s colleagues didn’t share his confidence in Donaghy’s sincerity (and didn’t particularly care for the manner in which Scala personally dealt with Donaghy), but Scala had no factual basis (beyond the statements emanating from perjurer Martino’s proffer sessions) to conclude Donaghy was spouting outright falsehoods.  What little Scala knew about the logistics of the scandal as of the 2007 Donaghy plea deal largely remained when Donaghy concluded his federal prison sentence and published his 2009 book.3

Interested parties (such as Dan Feldman) may be shocked to learn that since 2009 Scala has mocked or outright debunked these key Donaghy claims: (1) the FBI concluded Donaghy didn’t fix games; (2) Scala (indeed, the FBI as an institution!) supports Donaghy’s version of events; (3) “the mob” extorted him/forced him to bet on his own games/beat him in prison; and (4) the FBI planned to arrest other NBA referees (based on Donaghy’s insights) but the prosecuting US Attorney’s Office decided against it for political reasons.  

Unfortunately, the majority of the media have somehow missed practically all of this. 

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1. This brief list is far from exhaustive (e.g., I am described in the article as a former Philadelphia Police detective; I was a police officer).

2. Scala added, "You gotta go with the cooperator’s sincerity in things that are painful to him, and there were a lot of things Donaghy told us that we felt he was being honest about." Scala was referencing Donaghy’s (shrewd, self-serving, and ingratiating) statements about causing harm to his family.  Donaghy’s savvy tactics of (1) claiming gambling addiction and (2) expressing sorrow for causing grief to his family - which collectively serve to distract from his actions and to shield him from a more caustic grilling when presenting his many demonstrable falsehoods - have become Donaghy staples, starting with his post-prison 2009 media appearances.

3. I am only focusing on Scala because he is featured in the ESPN piece (which then resulted in the NBA commenting on Scala).  I sense, however, many if not most journalists and news readers are unaware Scala knows far less about the case than the agents, Harris (lead) and Conrad, who conducted the probe.  Comically, given Scala’s inflated role in the media about all this, Scala discusses this himself in the foreword to Donaghy’s (factually-challenged) book.