The college sports world was rocked in September with an announcement from the FBI that 10 individuals, including assistant college basketball coaches at several prominent schools and employees from top apparel companies, were to be charged with wire fraud and corruption. The announcement came after a three-year investigation into payment schemes between the athletic wear companies, high school athletes, assistant coaches and professional agents. The investigators allege that Adidas employees funneled money to players through agents and assistant coaches. In exchange, the high schoolers agree to play for college programs with official Adidas apparel deals and, once pro, sign an endorsement deal with the company.
The dominoes have already begun to fall at major athletic programs: Louisville fired head coach Rick Pitino and Athletic Director Tom Jurich, and dark clouds are swirling around programs mentioned in the initial report — Kansas, Oklahoma State, Miami and Arizona, among others. Further attrition is undoubtedly coming.
Scandals in college athletics, especially ones related to paying players, are not at all uncommon. The FBI stepping in to handle them most certainly is. The story has been debated and covered mostly from a sports angle, and for good reason — the forthcoming coaching changes are likely to shift the balance of power among the major programs. Further, the always-contentious debate over whether college athletes ought to be paid up front by the NCAA has re-emerged yet again. These analyses are valuable, but they fail to miss the bigger picture issue at hand — rather than challenge or defend the merits of NCAA amateurism, more attention ought to be turned on the FBI, whose involvement in the matter is not only unprecedented, but completely unwarranted.
One of the primary statutes used by the FBI in their charges is “honest services fraud,” an impossibly broad law that prohibits “scheme(s) or artifice(s) to deprive another of the intangible right of honest services.” A case involving the law was taken up to the Supreme Court in 2010, where it was ruled that the statute be more narrowly defined to only include cases of “bribery or kickbacks.” The law has been consistently targeted as unconstitutional and overly-ambiguous by conservative justices like Antonin Scalia, who hypothesized that the law could be used to prosecute “a salaried employee’s phoning in sick to go to a ball game.”
Because the law may now only be applied in cases of bribery, it begs the question in regards to the budding NCAA scandal: who exactly is being bribed? Above-the-board apparel deals, like the $39 million dollar agreement between Adidas and Louisville function in just the same way as the behavior now targeted by the FBI — Pitino and Louisville agree to wear Adidas’ shoes and other apparel in exchange for money. As Joe Nocera of the BloombergView points out, “were coaches like Rick Pitino … being bribed by the shoe company representatives? You certainly could frame it that way. But nobody did. Neither law enforcement nor the NCAA ever protested.”
The players aren’t being defrauded in any measure by the schemes. Those critical of the NCAA claim that the players ought to be paid a fair market wage for their abilities. While under-the-table deals aren’t exactly the free market at work, the most talented players are effectively signing endorsement deals before they enter college just as they are free to do once they leave — in many cases after just one season. Proponents of paying players should be pleased that these deals are going on, as their aim of student-athletes receiving compensation is being met. From this perspective, the NCAA is the one defrauding student-athletes of their “right of honest services.” Even if one disagrees with the premise of paying student-athletes, one can still acknowledge the merits of the argument against the NCAA. In the FBI case, prosecutors are trying to chase down a truly victimless crime.
It is quite clear that the FBI is not out to protect student-athletes, universities or “honest services.” They are cracking down to save amateurism in college sports, stepping in to do what the NCAA is failing to do for itself. It is almost beyond comprehension that the nation’s top law-enforcement agency is using overly-broad fraud statutes to help defend the core principal at the heart of college athletics; the deterioration of amateurism, which the NCAA supposedly stands for, does not constitute illegality or hurt anyone other than the NCAA itself.
Time and time again, the NCAA has shown itself to be ineffective in investigating internal misconduct. Less than three weeks after the FBI announced it would be doing the NCAA’s bidding in punishing cases of alleged “fraud,” the University of North Carolina was let off the hook after almost four years of NCAA investigation into sham classes taken by athletes. Investigations revealed a series of classes in certain departments at the school that gave no actual instruction and rewarded enrolled students with an A simply for turning in a paper. Although student-athletes only make up four percent of the UNC student body, they made up half of the students in the fake classes. Yet the NCAA ruled that the UNC violated no rules because the classes were technically available to all.
NCAA ineptitude isn’t limited to academic cases — there’s the University of Miami scandal into athletes receiving money and other benefits from booster Nevin Shapiro over a period of 8 years. After it looked like Miami was going to get slammed, the NCAA lost its leverage when it was revealed that investigators were playing just as dirty as Shapiro and those he bankrolled , misleading or lying outright to witnesses and paying Shapiro’s lawyer to gather information for them. It took the NCAA over two years to make a formal ruling in the case, partly because they had to take a break from looking into Miami so that they could investigate their own shady practices. The entire situation came to be seen as an outright farce and Miami was slapped on the wrist for conduct that should have carried much more serious consequences.
The NCAA might be at its weakest point in its history. On October 30, Emmert said, with no hint of irony, that he believes the public has lost confidence in him and the association he runs. If Emmert wants to get that credibility back, he faces a key choice: give up the veil of student-athlete amateurism or completely reform NCAA bylaws and revamp its investigation process. Otherwise, law enforcement will continue to show the NCAA up, while the athletes and fans that make college athletics so successful begin to lose faith entirely.
Thank you Mr. Shumate for getting to the heart of the matter. One additional point, though, should be made. Besides depriving college athletes of payment for their services, the current NCAA rules prohibit student athletes from paying for professional representation to advise them on decisions affecting their future earning potential, which can reach well into nine figures. That, in my opinion, is a crime.