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 20th 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.

Amateurism has many supporters—including those who have served on the U.S. Supreme Court. In NCAA v. Board of Regents, Justice John Paul Stevens stressed how “[t]he NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.” He added, “[t]here can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics.” For many, if not most, college athletes, Justice Stevens’ viewpoint resonates: they are attending a college to which, but for athletics, they might not have been admitted and they are doing so on a full or partial scholarship. That is a pretty good deal.

Echoing a related point, the late Judge Robert Krupansky observed in Karmanos v. Baker that amateurism serves the important NCAA objective of “promot[ing] fair competition among its member institutions.” Stated differently, a more level playing field occurs when every school plays by the same rules.

In pursuit of keeping college sports distinct and competitively fair, the NCAA has promulgated over 400 pages of rules. Several rules are especially emblematic of amateurism. Take Bylaw, Article 12. It limits the amount of money student athletes can receive to what’s known as a “grant-in-aid.” This figure primarily includes room, board, tuition and fees, and books. In other words, an athletic scholarship can’t be adjusted to reflect a star athlete’s market value or the amount of revenue he or she generates for his school. Or consider Bylaw, Article 16. It dictates that a player who accepts “extra benefits”—from a briefcase full of $100 bills to a complimentary coffee from Dunkin’ Donuts—can forfeit his or her eligibility to play. A loss of eligibility means the player likely loses an athletic scholarship, which in some cases leaves the player unable to afford college.

Taking Amateurism to Court

Amateurism has come under intense fire in recent years. While the players are “amateurs,” virtually everyone around them is not. This is most apparent with coaches. Many of them earn millions of dollars a year. Other professionals include university trainers who ply their craft in world-class fitness facilities and athletic department staff whose offices often overlook professional-quality stadiums and arenas. The money funding these expenditures derives partly from the financial impact of fans. Fans pay to attend games. Fans also watch commercials on TV. As you observe the March Madness tournament, consider that the NCAA has secured a multi-billion dollar TV deal for it. In addition, amateurism doesn’t appear to level the playing field. Star recruits are often attracted to the same “elite” college sports programs, year-after-year.

Amateurism has also been attacked as unlawful. Most significantly, former UCLA basketball star Ed O’Bannon successfully sued the NCAA over its unconsented use of student athletes’ names, images and likenesses. In O’Bannon v. NCAA, the U.S. Court of Appeals for the Ninth Circuit reasoned that relevant NCAA rules permitting such identity theft yielded greater anticompetitive effects than procompetitive benefits. O’Bannon’s case pressured the NCAA into allowing member institutions to offer athletes the “full cost of attendance,” a several-thousand dollar figure determined by the U.S. Department of Education.

Amateurism also came into legal focus when a group of Northwestern University football players petitioned the National Labor Relations Board in 2014. The players demanded that they be classified as private sector employees within the meaning of the National Labor Relations Act. They argued that their football workload—playing and practicing football up to 50 hours per week—was consistent with employee status. The NLRB declined to address whether the players were employees, reasoning that to do so might disrupt labor relations in college sports.

Amateurism faces yet another test in Jenkins v. NCAA. This ongoing litigation involves a group of college players who maintain that the NCAA and its members have unlawfully colluded to cap the value of athletic scholarships. They insist that colleges, which are competitors in so many ways, ought to be able to compete for star recruits by offering them market-value athletic scholarships.

Revisiting the Criminal Context of So-Called “Bribes” to Recruits

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.

The difference now is that the federal government interprets payments to recruits as part of a criminal enterprise. This invites critical questions: Are these payments reflective of criminal conspiracies? Are they morally wrong?

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.

When viewed in its most charitable light, the system of America college sports is an imperfect creature. Using the FBI to enforce NCAA amateurism rules may lead to reforms among schools, but the ultimate benefit of this prosecution is a jump ball.

Criminal Law, Sports Law