March 22, 2018 3:34 p.m. ET
519 COMMENTS
The NCAA and its member institutions are surely celebrating the organization’s recent achievement of more than $1 billion in annual revenue. The gang must also be celebrating the fact that the FBI has recently adopted the novel legal theory that violating NCAA rules is a crime—and that the colleges hosting revenue-generating sports are the victims. For the basketball players affected by this misguided prosecution, life isn’t quite so sweet.
Last week this column noted the significant time and resources the feds have devoted to exploring alleged offenses that few people would regard as threats to public safety and—even if proven beyond a shadow of a doubt—probably don’t amount to crimes. There appear to be other costs as well. Call it a coincidence, but teams playing in the shadow of the FBI are having a terrible March.
Teams from Louisville, Oklahoma State and Southern California were left out of the NCAA basketball tournament entirely, despite having at least decent arguments for inclusion based on their season records. The Miami Hurricanes were upset in the first round. Then there are the University of Arizona Wildcats, who were perhaps the most talented team in the field. According to the Washington Post:
With arguably the best player in the tournament — center DeAndre Ayton, the potential No. 1 pick in this year’s NBA Draft — on its roster, Arizona not only had the potential to make a deep tournament run, but make it all the way to the Final Four in San Antonio.
But Arizona fell to the 13th-seeded University at Buffalo in an 89-68 upset. The Post notes that Arizona’s loss removed “the NCAA’s biggest headache from its signature event.”
“Sure, Buffalo played great,” adds the Post, but it’s “hard not to wonder whether all that has happened to Arizona over the past year didn’t take its toll on this team.” An Arizona assistant coach was indicted last fall for allegedly accepting payment to steer players with pro potential to a particular management company.
In some industries such payments would be called finder’s fees. They are against NCAA rules. This column doesn’t condone cheating in athletics, but rather objects to the FBI’s effort to treat it as a criminal offense and a matter worthy of federal investigative resources.
The website Yahoo , which coincidentally published a report used by the FBI in 2016 to obtain authority to surveil an associate of the presidential campaign of the party out of power, reported last month on the extent of the FBI effort to examine college basketball:
Sitting under protective order right now are the fruits of 330 days of monitoring activity by the feds, which one assistant US Attorney noted Thursday was “a voluminous amount of material.” That includes wiretaps from 4,000 intercepted calls and thousands of documents and bank records obtained from raids and confiscated computers...
Nicole Hong explained in the Journal last fall some of the legal questions surrounding this prosecution:
The government accuses the coaches of depriving the universities of their “honest services” as university employees by soliciting and receiving bribes... The law governing honest-services fraud is both controversial and in flux, lawyers said. The definition of what it means to deprive an employer of honest services is vague, and a 2010 Supreme Court ruling narrowed the definition of honest-services fraud to cover only certain types of bribery and kickback schemes. The statute has often been used to charge corrupt politicians.“I’m not aware of any case where federal prosecutors have used honest-services fraud to say the programs that were allegedly defrauded were college sports organizations,” said Daniel Silver, a former federal prosecutor in Brooklyn who is now a partner at Clifford Chance LLP.
If years from now courts toss out the FBI’s aggressive interpretations of fraud and bribery laws that were certainly not written to ensure that only the NCAA and its member schools could profit from college basketball, Arizona’s current players won’t get to play another round.
***
519 COMMENTS
The NCAA and its member institutions are surely celebrating the organization’s recent achievement of more than $1 billion in annual revenue. The gang must also be celebrating the fact that the FBI has recently adopted the novel legal theory that violating NCAA rules is a crime—and that the colleges hosting revenue-generating sports are the victims. For the basketball players affected by this misguided prosecution, life isn’t quite so sweet.
Last week this column noted the significant time and resources the feds have devoted to exploring alleged offenses that few people would regard as threats to public safety and—even if proven beyond a shadow of a doubt—probably don’t amount to crimes. There appear to be other costs as well. Call it a coincidence, but teams playing in the shadow of the FBI are having a terrible March.
Teams from Louisville, Oklahoma State and Southern California were left out of the NCAA basketball tournament entirely, despite having at least decent arguments for inclusion based on their season records. The Miami Hurricanes were upset in the first round. Then there are the University of Arizona Wildcats, who were perhaps the most talented team in the field. According to the Washington Post:
With arguably the best player in the tournament — center DeAndre Ayton, the potential No. 1 pick in this year’s NBA Draft — on its roster, Arizona not only had the potential to make a deep tournament run, but make it all the way to the Final Four in San Antonio.
But Arizona fell to the 13th-seeded University at Buffalo in an 89-68 upset. The Post notes that Arizona’s loss removed “the NCAA’s biggest headache from its signature event.”
“Sure, Buffalo played great,” adds the Post, but it’s “hard not to wonder whether all that has happened to Arizona over the past year didn’t take its toll on this team.” An Arizona assistant coach was indicted last fall for allegedly accepting payment to steer players with pro potential to a particular management company.
In some industries such payments would be called finder’s fees. They are against NCAA rules. This column doesn’t condone cheating in athletics, but rather objects to the FBI’s effort to treat it as a criminal offense and a matter worthy of federal investigative resources.
The website Yahoo , which coincidentally published a report used by the FBI in 2016 to obtain authority to surveil an associate of the presidential campaign of the party out of power, reported last month on the extent of the FBI effort to examine college basketball:
Sitting under protective order right now are the fruits of 330 days of monitoring activity by the feds, which one assistant US Attorney noted Thursday was “a voluminous amount of material.” That includes wiretaps from 4,000 intercepted calls and thousands of documents and bank records obtained from raids and confiscated computers...
Nicole Hong explained in the Journal last fall some of the legal questions surrounding this prosecution:
The government accuses the coaches of depriving the universities of their “honest services” as university employees by soliciting and receiving bribes... The law governing honest-services fraud is both controversial and in flux, lawyers said. The definition of what it means to deprive an employer of honest services is vague, and a 2010 Supreme Court ruling narrowed the definition of honest-services fraud to cover only certain types of bribery and kickback schemes. The statute has often been used to charge corrupt politicians.“I’m not aware of any case where federal prosecutors have used honest-services fraud to say the programs that were allegedly defrauded were college sports organizations,” said Daniel Silver, a former federal prosecutor in Brooklyn who is now a partner at Clifford Chance LLP.
If years from now courts toss out the FBI’s aggressive interpretations of fraud and bribery laws that were certainly not written to ensure that only the NCAA and its member schools could profit from college basketball, Arizona’s current players won’t get to play another round.
***
