By Cameron Miller (Stanford University ’16) Guest Contributor
As America’s top law enforcement agency, the Federal Bureau of Investigation (FBI) is tasked with investigating the most widespread and serious crimes and threats facing the nation. Among the Bureau’s investigative priorities are terrorism prevention, cyber and internet threats, civil rights, public corruption, white-collar and organized crime. Given the Bureau’s mission, it would seem the FBI would neither have the jurisdiction or interest to investigate violations of a private, unincorporated entity’s non-statutory bylaws and regulations. It would also appear inappropriate for the Bureau and the federal government to essentially act as the investigative and prosecutorial arm of a nation-wide cartel.
And yet that is exactly what is occurring as the FBI investigates athletic recruiting practices in the National College Athletic Association (NCAA) and the U.S. Attorney’s Office pursues convictions of the individuals identified therein.
In September 2017, the U.S. Attorney’s Office for the Southern District of New York announced what had been a years-long investigation into men’s college basketball. With the help of a confidential informant and thousands of hours of intercepted phone calls, the FBI uncovered a network of individuals—comprised of college coaches, athlete agents, and apparel company executives— working in concert to incentivize prospective college basketball players to attend certain universities through monetary payment, and to later funnel those players to certain agents to represent them in their professional sports careers.
In all, 10 individuals were indicted and charged with a variety of crimes, including mail, wire, and honest services fraud. The crux of the government’s argument was that by paying prospective athletes to attend certain schools and/or sign with certain agents, the individuals caused the athletes to become ineligible for NCAA participation under the NCAA’s amateurism regulations (which generally prohibit athletes from receiving compensation in excess of their cost to attend school). Under the government’s theory, the schools unknowingly exposed themselves to NCAA sanctions and were deprived of control of their assets by awarding financial aid to and playing those ineligible athletes.
A plain reading of the indictments makes clear that, absent the NCAA’s rules governing athlete compensation, there would be no “crime” upon the schools. That is, if athletes were allowed to accept whatever compensation was offered to them to attend a certain school or sign with a certain agent, no “fraud” would have been committed, obviating the need for government involvement.
That the FBI and U.S. Attorney’s Office have nonetheless spearheaded this case is troubling on several fronts. By investigating and prosecuting the current case, the government has essentially criminalized a private association’s bylaws. To be clear, the NCAA’s rules are not “laws” legislated by local, state, or the federal governments—they are regulations promulgated by the NCAA’s member institutions with no real enforcement mechanism other than self-reporting (an analogous regulatory structure is that of a homeowner’s association, which creates bylaws and an internal governance system for its members). Unlike participants in actual crimes, none of the individuals indicted had any say in the NCAA’s bylaws, nor did any of their elected representatives. For the government to now criminally charge these individuals for allegedly violating these unlegislated rules offends the “consent of the governed” ethos undergirding our representative democracy. That the government’s actions here are completely taxpayer funded raises similar concerns: The American taxpayer is, in essence, financially supporting the enforcement of an economic cartel’s (NCAA) bylaws, which were neither voted upon or subjected to any formal legislative scrutiny and with which the taxpayers may disagree.
More importantly, however, the government has misidentified the true “victims” in men’s basketball recruiting and in the collegiate athletic industry as a whole. In Orwellian fashion, the NCAA’s member institutions have been painted as the unwitting victims of coach, agent, and apparel company greed—when in fact the schools themselves, through their collectively agreed-upon bylaws, strip college athletes of their economic rights by prohibiting them from seeking market-driven compensation for their work and profit immensely from their cheap labor. Here, the NCAA’s undisputed status as a cartel has been completely overlooked, and its arguably illegal compensation caps tacitly approved through government intervention on its behalf (the legality of the NCAA’s limits on player pay are currently the subject of an antitrust lawsuit pending in federal court).
The actual victims in college sports—the athletes subject to the NCAA’s amateurism rules—are portrayed as co-conspirators in the current case, and once again find themselves without an ally. From a public policy perspective, this sets a dangerous precedent: Non-governmental entities, and perhaps other cartels, may now seek and encourage government intervention on their behalf to enforce their non-statutory rules (which brings with it the advantages of greater investigatory tools, like wiretaps and subpoenas) while simultaneously deflecting attention from their own illegal conduct. Coupled with already weak antitrust enforcement, government intervention in college athletics threatens to erode economic competition even further, unnecessarily expands the reach of state police powers, and diminishes individuals’ voice in the laws and sanctions to which they are subject.
As the extent of the FBI’s investigation into NCAA recruiting practices has been laid bare over the last six months, many have wondered why the government has involved itself in the case. While the answers to that question are unclear beyond the tenuous legal theories pushed in the indictments and subsequent legal filings, the discord with the democratic process and the normal relationship between government and its citizenry is already evident.