Is the NBA Trying to Silence Donaghy?

I've discussed the recent controversy about the NBA game fixing in a couple of recent posts — a subject being batted around in the blogosphere. What has not been widely discussed is Donaghy's additional allegations that the NBA is trying to silence him. Whatever one makes of the other allegations, this one rings true.

Sentencing in the case was originally set for November 2007. The NBA did not request any restitution. Sentencing was postponed, presumably to allow Donaghy to cooperate with the government. On May 19, 2008, Donaghy sent his letter describing his "cooperation" to the sentencing judge — a letter which included the sensational allegations about NBA game fixing. The result? On June 5, 2008, the NBA sent a letter to the probation officer working on the case requesting — for the first time — $1 million in restitution. The NBA argues that this was the cost of the "internal investigation" that it had to conduct to determine who was involved in illegal gambling.

I'm an advocate for crime victims. I believe that the victims should be fully reimbursed for losses that they have suffered as a consequence of the crime. But as the NBA's lawyers must know, current federal law does not allow for restitution of consequential damages — such as the costs of an internal investigation.

I testified about this very problem back in April before the Crime Subcommittee of the House Judiciary Committe. My testimony can be found here. The problem is that current federal restitution law only allows a victim to recover for losses that fall into certain narrow pigeon holes — lost income, medical expenses, and the like. Consequential damages are simply not authorized.

In light of all this, I agree with Donaghy's lawyers that the NBA's belated request for $1 million in restitution is a "transparent effort to intimidate Mr. Donaghy." A copy of Donaghy's lawyer's letter can be found here.

Update: Here is an interesting analysis of the issue from the Opposition Brief.