Crime may not pay, but amateurism does.

This piece, on what I see more and more as the utter absurdity of the FBI attempting to criminalize the NCAA rule book, is so damned good.  Here’s the lengthy prelude:

Last September, the U.S. Department of Justice announced that federal charges had been brought against major figures in college basketball. A group of 10 assistant coaches, agents and sneaker executives were indicted with conspiracy to commit bribery, solicitation of bribes, mail fraud and wire fraud. The defendants are accused of paying—“bribing”—some of the nation’s most heralded high school basketball players, along with their families.

The purported bribes had a simple objective: persuade star recruits to attend a particular college and embrace the sneaker company sponsoring that college. A year or two later, those players would turn professional and pursue the National Basketball Association (NBA). At that time, the players would hire agents who had previously partaken in the conspiracy to bribe them. Through those agents, the players would sign multi-million dollar contracts with NBA teams and also lucrative endorsement deals with their alma mater’s sneaker company.

It was a multi-year, multi-step transaction in which everyone seemingly gained: the player and his family, who might be economically disadvantaged, received five or six-figure payments; the college matriculated a star player who would help the basketball program win games and, in turn, generate broadcasting, merchandise and ticket revenue; the agent earned valuable commissions as well as professional recognition; and the shoe company secured the endorsement of a young and marketable phenom who would help the company sell products.

NCAA Amateurism Rules as the Foundation for Criminal Charges

There’s a reason why many regard this sequence of mutually beneficial events as unseemly or even criminal. It’s the same reason why the sinister-sounding “bribe,” rather than the evenhanded “trade” or “exchange,” is the noun most typically used to describe payments to high school recruits. That reason: the National Collegiate Athletic Association, a.k.a. the NCAA.

The NCAA is a voluntary organization that features nearly 1,300 members, most of whom are colleges and college athletic conferences. Founded in the early 20^th century to make college sports safer, the NCAA now claims to aid college athletes in balancing their “academic, social and athletics” experiences. To that end, the NCAA has promulgated numerous rules that fall under the umbrella of “amateurism.”

In its broadest conception, amateurism refers to the principle that college athletes ought to be clearly distinguished from professional athletes. College athletes are, after all, students, whose studies presumably take priority over sports. If sports agents and financial temptations distract students, they might lose their academic focus. They might also become less connected to their classmates and squander the traditional college experience.

There’s the romance and the foundation for the romance.  Now comes the economic consequence.

With building frustration over the inability of star college athletes to fully reap the value of their labor and identity, it is not surprising that a “black market” for paying recruits has materialized. But in reality, such payments are hardly a revelation—they have, much to the NCAA’s dismay, been taking place for decades. The NCAA simply has limited resources to police interactions with recruits.

Human nature, for the win.  The heart wants what the heart wants, and as long as there are sources of money and kids with valuable services to acquire, there’s only so much the NCAA can do about it.

Enter the FBI.  Enter the absurdity.

The government’s theory of crime stresses the harm caused when colleges enroll bribed athletes on scholarships. The government claims a stake in this harm given that it funds colleges through grants, loans, financial aid guarantees and other instruments. Colleges that enroll ineligible scholarship athletes could have used those same scholarships to recruit eligible athletes. Those colleges also become at risk of serious NCAA penalties. In that sense, the government is something of a partner to colleges in ensuring that college athletes play by the rules. Further, when bribes take place across state lines and use the Postal Service and wires, fraud charges are possible.

Attorneys for the indicted defendants dismiss this theory as implausible and disingenuous. First, they stress the absence of supporting case law—when has it ever been a crime to offer financial incentives to a high school student to attend a college? They also contend the Justice Department is attempting to criminalize NCAA amateurism rules. Further, the alleged victims—the colleges—may actually benefit: a star recruit joins a school and helps that school win games and generate assorted kinds of institutional value, be it revenue, increased student applications, enhanced alumni relations and greater alumni giving. To that end, as my late and esteemed colleague Cheryl Hanna once wrote in the Harvard Law Review, “the purpose of criminal law is to serve the greater public good.” A sensible read of the situation suggests that the Justice Department has its work cut out.

The supposed “wrongness” of payments to recruits should also be questioned. As acknowledged above, amateurism may provide a good deal for many college students. But for the superstars who generate considerable revenue and who attend college mainly to hone their athletic skills, the deal doesn’t appear so good. This is particularly apparent when viewed in conjunction with eligibility requirements for the NBA and the National Football League (NFL). The NBA and NFL require that players wait one and three years, respectively, after high school before they are eligible. While young basketball stars can bypass college to sign contracts in other (albeit inferior) professional leagues, football players are essentially stuck. There is no substitute for Division I college football for college-age players.

If these athletes’ special talent were instead in music or acting, there would be no “age restriction” to turning pro. If they excelled at different sports, like hockey, golf, tennis, or baseball, they could turn pro right out of high school, if not sooner. The reality is they thrived in the two sports where the college game is a de facto minor league for the pro leagues.

The only reason this is a problem is because the schools, through their voluntary association known to us as the NCAA, have created the structure that has allowed it to fester.  The FBI’s presence doesn’t change that.

So, yes, that’s absurd, but you know what may be even more absurd?  Expecting the same actors to reform the structure in a way that doesn’t benefit them.  You want an example?  Okay, I’ve got one for you.

The Big East knows it doesn’t have the leverage to force the NBA to do something straight-up about its one-and-done rule, so it’s come up with a suggestion for a power play over the group with whom it does have leverage.

The Big East’s plan calls for the elimination of the NBA’s one-and-done rule, which prohibits its teams from drafting players until they are at least 19 or a year removed from high school.

Two-or-none would be an NCAA policy requiring basketball players who decide to go to college to commit for at least two seasons. Meanwhile, high school players who declare for the NBA draft would forfeit future college eligibility.

Tough luck, then, if you’re a high-schooler who submits his name to the NBA and doesn’t get drafted.  There’s no logic to that, other than to force kids who, remember, can’t consult with advisers and retain college eligibility, to stay in school for two years.

Also, keep in mind there’s no legal way the schools can enforce such an arrangement on their own.  A player leaves after his first year of school for the NBA and what’s the school gonna do about that?  In other words, the only way this proposal works is for the NBA to agree to abide by it as well.  Thus, the Big East’s reform amounts to nothing more than an agreement between the schools and the NBA to collude actively to prevent student-athletes from being paid for their skills for a longer period than is already the case now.  If you can explain to me how that benefits the student-athlete or how it curtails the black market the schools have created, I’d love to hear it.

Oh, and don’t miss that the Big East also thinks it would be a swell idea for the NCAA to regulate agents.  Oy.  It’s hard to tell whether these people are bigger idiots or assholes.  One thing’s for sure — they’ll never miss an opportunity to look out for themselves.  Remember that, FBI.