U.S. Attorney's Office announces additional charges in college hoops investigation

[IthacaMatt]

When I was in law school, law firms bought me dinner and (a lot) of booze to encourage me to join them. Those weren't illegal bribes, but they were certainly giving me stuff to do something. Similarly, if I offered a neighbor $1,000 to attend my alma matar, that wouldn't be an illegal bribe (and certainly not a federal crime) but it isn't obviously different than what these agents were doing.

Well, I think you're overlooking the fact that with the state colleges, these are government employees, and money is being paid on the behalf of the school to obtain the services of a player.

The schools are the third party beneficiary of a bribe, and they are participating in aranging for the bribe to be made, because they are telling the shoe companies who they want them to get.

And of course, the shoe companies make these bribes on behalf of the schools in order to secure the contracts with the schools and their coaches to supply uniforms and equipment (money flowing to the schools), which confers an advertising benefit to the shoe company from its association with the school, and those star players.

So, I think your analysis is a little superficial on this point so far.

P.S. - "Bribery" may not be in the indictment, at least not yet, but I think that to dismiss the possibility is premature.

 

[Consigliere]

As a non-lawyer, here are my questions: unless the NCAA punishes the schools that were supposedly defrauded, then how is there a fraud charge? Doesn't there have to be some damage to the "victim"? The victims here, so far, have not only not been damaged, they've likely benefited from increased ticket sales and NCAA post-season revenue. And if the NCAA is waiting for the case to play out before they do anything, then it seems to be stuck.

And as we have seen in the past there is a marked difference between criminal charges and NCAA Violations and enforcement. Although in this case the two certainly seem to dovetail tightly. And I have seen no indication yet that the NCAA has even begun to investigate these charges. I'm not sure they are equipped or capable of how to handle anything of this magnitude. Sense that they have no idea how to proceed.

 

[reedny]

Right, but the criminal charges are based on the theory that the schools that accepted the players were harmed. As you note, that's more than a little silly. And given that the criminal charges require that assumption (which we all appear to agree is a stretch), we should question whether the criminal charges are themselves a stretch.

The NCAA is a private organization that has established stupid and impossible to enforce rules. It isn't obvious that the government should be using criminal law to, effectively, backstop the rules of that private organization.

I agree that they're using the term "victim" with a wink ... they're attributing naive/innocent motives to schools notorious for sleazy recruiting practices. I also agree that "bribery" (which is a federal crime) doesn't apply unless the bribe is to a federal official. It's more likely they would use bank fraud, SEC violations, tax evasion, etc. However, I don't think your example (dinners while you were being recruited) applies to this situation, for several reasons: 1) payments made by a shoe company under contract with a school are made by a party "representing the [school's] athletic interests" - just like a booster. And 2) you were being interviewed for a paid position, not a roster spot on an amateur college basketball team. Pity they couldn't get some of these sleazy coaches/assistants on tape ... RICO would be an option in some of these prosecutions. Meanwhile, on the college side, the NCAA has proven itself to be totally feckless. It has a counter-incentive to investigate and sanction its biggest cash cows.

 

[Waltdods]

18 U.S. Code § 201 - Bribery of public officials

But there's no allegation that any public official has been bribed. There may be allegations that public employees have done some bribery, but that's not the same. The bribery, to the extent there is any, is clearly of the players.

(And to take this further afield, even where pretty clear-cut bribery of officials has occurred, the government has been losing.)

Is it possible that the prosecutors will be able to torture an argument under this or some other bribery statute? Sure. But the fact that their theories so far have relied on pretty strained arguments makes me think it's unlikely they've got some clearcut cases hidden somewhere.

 

[Waltdods]

Well, I think you're overlooking the fact that with the state colleges, these are government employees, and money is being paid on the behalf of the school to obtain the services of a player.

The schools are the third party beneficiary of a bribe, and they are participating in aranging for the bribe to be made, because they are telling the shoe companies who they want them to get.

And of course, the shoe companies make these bribes on behalf of the schools in order to secure the contracts with the schools and their coaches to supply uniforms and equipment (money flowing to the schools), which confers an advertising benefit to the shoe company from its association with the school, and those star players.

So, I think your analysis is a little superficial on this point so far.

P.S. - "Bribery" may not be in the indictment, at least not yet, but I think that to dismiss the possibility is premature.

I take your points, but I also think if you just find/replaced "bribe" with "payment" in your description, you'd have an equally accurate and perfectly legal description of what happened.

Everyone agrees (I assume) that Adidas today is free to pay Darius Bazley in an effort to encourage him to endorse them a few years down the line. Why, exactly, was that not just wrong but criminal if Adidas did it a month ago instead?

Also, note that the way you describe this in your first paragraph is the exact opposite of what the government has been alleging so far, which paints the schools not as the briber or bribee but as the innocent victim of a nefarious scheme unrelated to them. (Note that this is true even of those indictments of Tony Bland et al.)

 

[Waltdods]

I agree that they're using the term "victim" with a wink ... they're attributing naive/innocent motives to schools notorious for sleazy recruiting practices. I also agree that "bribery" (which is a federal crime) doesn't apply unless the bribe is to a federal official. It's more likely they would use bank fraud, SEC violations, tax evasion, etc. However, I don't think your example (dinners while you were being recruited) applies to this situation, for several reasons: 1) payments made by a shoe company under contract with a school are made by a party "representing the [school's] athletic interests" - just like a booster. And 2) you were being interviewed for a paid position, not a roster spot in on amateur college basketball team. Pity they couldn't get some of these sleazy coaches/assistants on tape ... RICO would be an option in some of these prosecutions. Meanwhile, on the college side, the NCAA has proven itself to be totally feckless. It has a counter-incentive to investigate and sanction its biggest cash cows.

I agree that the differences you point out are distinctions but I struggle to see why they are distinctions that justify criminal charges. And, note that your arguments are premised on the school being the wrongdoer, in at least some sense, and the DOJ has so far made a decision to allege the opposite of that. I think we should assume that SDNY knows what they're doing, and that this is the best legal hook they've been able to come up with. And it's one - as we see with every discussion - that is premised on a mighty unconvincing view of the world.

But here's a different example: say I have a neighbor who is a great badmitton player, and I want him to go to my alma mater, and he's choosing between there and another school. I tell him I'll give him $10k a year to choose my alma mater. He agrees. Is that really a crime? Is it even remotely close to a crime?

Same facts, but say I'm just a big fan (so I can't argue there's some academic rationale to my bribe). Is that a crime now?

Same facts, but I work for a shoe company. Crime now?

Same facts, but I work for a shoe company and say, you know when you graduate, let's talk about working together? Crime now? If so, why?

 

[reedny]

I agree that the differences you point out are distinctions but I struggle to see why they are distinctions that justify criminal charges. And, note that your arguments are premised on the school being the wrongdoer, in at least some sense, and the DOJ has so far made a decision to allege the opposite of that. I think we should assume that SDNY knows what they're doing, and that this is the best legal hook they've been able to come up with. And it's one - as we see with every discussion - that is premised on a mighty unconvincing view of the world.

But here's a different example: say I have a neighbor who is a great badmitton player, and I want him to go to my alma mater, and he's choosing between there and another school. I tell him I'll give him $10k a year to choose my alma mater. He agrees. Is that really a crime? Is it even remotely close to a crime?

Same facts, but say I'm just a big fan (so I can't argue there's some academic rationale to my bribe). Is that a crime now?

Same facts, but I work for a shoe company. Crime now?

Same facts, but I work for a shoe company and say, you know when you graduate, let's talk about working together? Crime now? If so, why?

The badmitton example presents a fact-question. The NCAA nails schools for boosters all the time .. on the theory that they're representing the schools "athletic interests". That's how SU got sanctioned for the guy at the Y. In your example, it would depend on your relationship with your alma mater. I think if you were TOTALLY isolated from the school, it would not be an NCAA violation. However, the boosters paying the big bucks are often involved with the school - establishing the connection.

My point is that apparel companies are no different than boosters. Their relationships with the schools are as extensive as any booster, especially if they're under contract. Schools may be victims in one sense (eligibility), but they are beneficiaries too ... in terms of NCAA regulations.

 

[Waltdods]

The badmitton example presents a fact-question. The NCAA nails schools for boosters all the time .. on the theory that they're representing the schools "athletic interests". That's how SU got sanctioned for the guy at the Y. In your example, it would depend on your relationship with your alma mater. I think if you were TOTALLY isolated from the school, it would not be an NCAA violation. However, the boosters paying the big bucks are often involved with the school - establishing the connection.

My point is that apparel companies are no different than boosters. They represent the schools athletic interests if they're under contract with the school -- that establishes a relationship as palpable as any booster.

I have no objection to this (really any of this) being an NCAA violation. But that doesn't make it a crime.

 

[reedny]

I have no objection to this (really any of this) being an NCAA violation. But that doesn't make it a crime.

Whether a federal crime has been committed or not is case dependent. We've already seen indictments so clearly US attorneys have determined that, in some cases, there is sufficient evidence of a federal crime by athletic assistants and/or apparel executives.

Another source of criminal liability could be the NLI. I'm not sure what's contained in the letter currently. There may be financial aid disclosures and warnings. If not, I would add a provision by which any student applying for financial aid has to aver that he or she remains an amateur in that sport and has not (personally or through the SA's family) received any compensation from any source conditioned on a promise to attend a specific school. I would also add a disclosure acknowledging that the student understands that the U receives federal financial aid, that some of the financial aid being offered to the student consists of aid from the federal government, and as such, the student swears that false information in the form could be a federal crime. Boom. Done.

At the college level (which is just as important), apparel company pay-offs should be getting far more NCAA enforcement attention than they're getting. Sanctioning SU for paying kids to ref Y games, and giving $100,000 payoffs to recruits at other schools a free pass, is inconsistent and improper. I have a hard time believing that NCAA member schools would allow this double standard to exist for too long. Even Emmert admits that the NCAA has a terrible public image and integrity problem. There's an easy way to address that: bring enforcement actions against these schools and re-establish amateurism standards in college athletics.

 

[Cheriehoop]

http://www.ncsl.org/research/ethics/50-state-chart-criminal-penalties-for-public-corr.aspx

 

[Waltdods]

Another source of criminal liability could be the NLI. I'm not sure what's contained in the letter currently. There may be financial aid disclosures and warnings. If not, I would add a provision by which any student applying for financial aid has to aver that he or she remains an amateur in that sport and has not (personally or through the SA's family) received any compensation from any source conditioned on a promise to attend a specific school. I would also add a disclosure acknowledging that the student understands that the U receives federal financial aid, that some of the financial aid being offered to the student consists of aid from the federal government, and as such, the student swears that false information in the form could be a federal crime. Boom. Done.

I guess this gets at the dispute we have. It doesn't seem to me like a good idea to walk prospective student-athletes into criminal traps. Why should the United States be enforcing amateurism rules of a private entity, let alone through criminal law?

 

[reedny]

I guess this gets at the dispute we have. It doesn't seem to me like a good idea to walk prospective student-athletes into criminal traps. Why should the United States be enforcing amateurism rules of a private entity, let alone through criminal law?

Many reasons, not the least of which are: 1) we're all sick of the corruption in amateur college athletics; and 2) we all (or most of us) pay taxes. US taxpayers fund federal aid to students and universities. And federal law governs the use of it -- through annual DOE disclosures, Title IX and other statutes. We all have an interest in seeing this money go for the purposes (amateur athletics) for which it is intended ... not some sleazy side-show from an apparel company or an unscrupulous coach.

Why should a recruit not swear that he/she hasn't taken a bag? They're being offered an education worth hundreds of thousands of dollars? And why should they not promise the University offering (other, non-federal) aid that they're amateur and eligible for the scholarship being offered? I'm actually amazed this isn't already done.

 

[Waltdods]

Many reasons, not the least of which is that we're all sick of the corruption in amateur college athletics. And we all (or most of us) pay taxes. US taxpayers fund federal aid to students and universities. And federal law governs the use of it -- through annual DOE disclosures, Title IX and other statutes. We all have an interest in seeing this money go for the purposes (amateur athletics) for which it is intended ... not some sleazy side-show from an apparel company or an unscrupulous coach.

Why should a recruit not swear that he/she hasn't taken a bag? They're being offered an education worth hundreds of thousands of dollars? And why should they not promise the University offering (other, non-federal) aid that they're amateur and eligible for the scholarship being offered? I'm actually amazed this isn't already done.

I'll start by saying I appreciate your position and the debate.

And then say I disagree with just about everything here

To drill down on my primary point of disagreement, even if you grant that NCAA is a good thing, and even if you grant that the government has some interest in promoting that, using the power of federal criminal law as the enforcer still strikes me as major overkill. An 18-year old taking $100,000 from a (legal) shoe company to go to a (legal) University to play basketball for our entertainment should not, in my world, be a criminal.

Syracuse has undeniably broken NCAA rules over the past 30 years. Should Jim Boeheim have gone to jail for violating NCAA rules? Bill Rapp? Fab Melo? Terrence Roberts? I'm sure Jim Boeheim has signed some NCAA forms that he knew were not 100% accurate - should we jail him for that?

 

[reedny]

I'll start by saying I appreciate your position and the debate.

And then say I disagree with just about everything here

To drill down on my primary point of disagreement, even if you grant that NCAA is a good thing, and even if you grant that the government has some interest in promoting that, using the power of federal criminal law as the enforcer still strikes me as major overkill. An 18-year old taking $100,000 from a (legal) shoe company to go to a (legal) University to play basketball for our entertainment should not, in my world, be a criminal.

Syracuse has undeniably broken NCAA rules over the past 30 years. Should Jim Boeheim have gone to jail for violating NCAA rules? Bill Rapp? Fab Melo? Terrence Roberts? I'm sure Jim Boeheim has signed some NCAA forms that he knew were not 100% accurate - should we jail him for that?

Agree, appreciate the discussion. My answer about the penalties is that it depends on the offense. I don't think JB had anywhere near mens rea regarding the YMCA payments. That was clearly an NCAA problem (small amount of money, lack of direct knowledge, etc). Same with adding footnotes.

But when people accept $100,000 "bags" while holding themselves out as amateurs ..., or hide that kind of income on their federal taxes, or pay off a prospective student-athlete (or family) they know is applying to participate as an amateur athlete at a federally-funded institution? To me those actions warrant criminal penalties. Universities invest hundreds of thousands of dollars in each student. US taxpayers contribute to financial aid. There is a LOT of money being passed around ... all of it based on the amateur model. So yes I think it should be a crime. Stealing frozen fish from a store is a grocery store is a crime. At the very least, it should be an NCAA violation and I don't know why recruits are not asked to make that (amateur) representation.

 

[IthacaMatt]

But there's no allegation that any public official has been bribed. There may be allegations that public employees have done some bribery, but that's not the same. The bribery, to the extent there is any, is clearly of the players..

I only posted the link because you doubted that there even WAS a federal bribery statute. That's the first one that came up.