In a 2009 Reason article Candice E. Jackson and I asked: How did breaking sports rules become a federal offense? We believed the question had merit, since federal prosecutors had found ways to jail star athletes who run afoul of rules in their sports.
Sports Illustrated recently reported that a Food and Drug Administration investigator is looking for incriminating evidence against Lance Armstrong and apparently is trying to outdo the fictitious Javert in his pursuit of one of the world’s most recognizable and accomplished athletes. Yet even if Armstrong actually used performance-enhancing drugs, he did it overseas, not on U.S. soil, and the cycling federations that set the rules are private organizations.
Last fall the biggest sports story involved allegations surrounding Cam Newton, the 2010 Heisman Trophy-winning quarterback for Auburn University. According to sources feeding the media, Newton’s father told a recruiter for Mississippi State University that his family would require a $180,000 payment for Newton to play there. Since NCAA rules say scholarship athletes may accept only in-kind payments for room, board, and books, the request would have violated those rules and created what the NCAA calls a “shopping around” atmosphere. In the end, while the NCAA concluded that the allegations were true, it found “no evidence” that Cam Newton actually received money or that Auburn paid him other than the athletic scholarship allowed by the NCAA.
The purpose here is not to rehash NCAA policies, although as a former Division I athlete, I don’t hold much love either for the organization or its “amateur athletics” rules. However, the Newton case, as well as others, bothers me for a different reason: the insistence of government investigators to try to find clever ways to turn the infractions of private organizations into full-blown crimes.
Take another high-profile NCAA case. The late Logan Young, a booster for the University of Alabama, was alleged to have given money to a high school coach in Memphis, Tennessee, to steer a highly prized football player to Alabama. The scheme became known, and federal prosecutors in 2005 engineered a conviction of Young that essentially criminalized NCAA violations. (Young died in a freak accident before his appeal could be heard.)
News reports on the Newton story have both the FBI and state officials “investigating” allegations of “pay for play.” Keep in mind that even if the allegations were true, Newton’s father was asking for a smidgen of the monetary value his son helped create on the football field. Yahoo columnist Dan Wetzel asks:
Exactly why should Cam Newton, who is worth millions to a university, whose jersey is being sold all over the school website, who fills stadiums and boosts television ratings, be asked to play football for just room, board and tuition – an amount far below his market value?
Why? Because the NCAA says he should.
Certainly one can make a case for paying athletes. But while I believe the NCAA is hypocritical, the entry of the FBI and other authorities into situations involving at worst violations of the rules of what essentially are private clubs erodes the rule of law. When government is able to criminalize private-rule infractions, there really are no bounds at all on the behavior of the authorities.