Putting Stars Behind Bars
How did breaking sports rules become a federal offense?
Before his untimely death in 2006, Logan Young faced six months in federal prison for "conspiracy to commit racketeering" and "crossing state lines to commit racketeering," both felonies. While those charges made Young sound like a mafioso, his real offense was violating the recruiting rules of the National Collegiate Athletic Association (NCAA).
Young, a businessman and old friend of the legendary football coach Paul "Bear" Bryant (who died in 1983), was a longtime booster of the University of Alabama football team, pledging hundreds of thousands of dollars to the program over the years. In 2002 the NCAA levied stiff sanctions against the Crimson Tide after determining that Young had paid high school coaches in Memphis more than $100,000 to steer a prized recruit to Tuscaloosa. The University of Alabama team was placed on probation and ordered to cut ties with one of its biggest fans.
Young's troubles did not end there. University of Tennessee supporters and coaches had long complained that the booster was "buying players" in his home town of Memphis, making recruiting more difficult for U.T.'s athletic teams. Federal prosecutors in Memphis apparently sensed an opportunity for a popular prosecution, one that ultimately proved successful.
The conviction of Logan Young as "the first college sports booster sentenced to prison essentially for busting NCAA rules" (in the words of ESPN.com's Mike Fish) is just one example of a disturbing trend: the federal criminalization of private rule breaking in the world of sports. Prosecutors are taking advantage of the drastic post-1970 expansion of the federal criminal code to conduct legal shaming exercises against notorious sporting figures, often using charges that are tangential at best to the behavior that sparked investigative interest in the first place. The results are a sobering reminder of just how little restraint remains on federal power when investigators set their sights on popular celebrity targets accused of unpopular rule breaking.
Former National Basketball Association (NBA) referee Tim Donaghy is serving a 15-month prison sentence for "conspiracy to engage in wire fraud" and "transmission of wagering information" across state lines, stemming from charges that Donaghy bet on games he refereed. The allegations triggered a national outcry and congressional inquiry. While the referee's conduct (he pleaded guilty to improperly sharing inside information with bettors) was reprehensible, his worst offense was against his employer, the NBA, not "society," and certainly not the state.
Former Olympic gold medalist Marion Jones served six months in federal prison last year for making false statements to two grand juries about her personal use of performance-enhancing steroids. As part of a highly unusual plea agreement, unrelated check fraud charges against Jones were dropped in return for her publicly admitting her past steroid use and retiring from the sport.
All-time Major League Baseball (MLB) home run leader Barry Bonds was scheduled to begin trial in March on perjury and obstruction of justice charges, based on his grand jury testimony in a steroid distribution case that closed in 2005 after producing just four minor convictions that netted seven months prison time combined (half as long as Bonds' personal trainer served behind bars for criminal contempt after refusing to testify about his boss). At press time, yet another federal grand jury was hearing testimony about whether former MLB pitching great Roger Clemens committed perjury when he denied using steroids after being hauled in front of Congress in February 2008.
Perhaps most bizarre of all was the attempt that same month by Sen. Arlen Specter (R-Pa.) to launch a federal probe of allegations that the New England Patriots videotaped the practices and defensive signals of opposing teams in 2006 and 2007. While cheating in professional sports is worthy of exposure and condemnation, even if all the accusations levied against Patriots Coach Bill Belichick were true, the worst thing he could have been guilty of was violating the rules of the National Football League, a private organization.
Not long ago, public evidence of cheating or the loss of Olympic medals would have been disgrace enough for coaches or athletes. But today punishment is not considered complete until the offender has served a stretch in federal prison. For decades now, the growth of government power has turned everyday business and financial transactions into potential crimes, allowing prosecutors to throw an ever-expanding book at whatever public figure is deemed worthy of contempt. And few categories of Americans arouse more passion, or fall from grace more quickly, than wayward star athletes.
When the U.S. Constitution was written, there were only three enumerated federal crimes: treason, piracy, and counterfeiting. But in the last four decades the list of federal offenses has grown into the thousands, driven by a sea change in the philosophy of criminal law and a newfound willingness by Congress to grant vast new powers to the executive branch.
Federal prosecutors can now pursue what we call "derivative crimes," or official violations derived from other bad acts. The most notorious source of such charges is the Racketeering Influenced and Corrupt Organizations Act of 1970, or RICO. Prosecutors use RICO to bundle a series of state offenses into a federal "racketeering" charge, which in practice lowers the burden of proof on the government, since a prosecutor does not have to demonstrate beyond a reasonable doubt that the defendant actually committed each of the underlying state offenses.
For instance, if a suspected mobster is prosecuted for "racketeering," the government only has to show by a preponderance of the evidence, not beyond reasonable doubt, that the defendant committed underlying state law offenses (such as bribery, theft, etc.) which qualify as predicate acts under the RICO law. Racketeering is defined simply as the commission of two or more predicate acts within a span of 10 years.
Other popular derivative crimes include obstruction of justice, money laundering, conspiracy, mail fraud, and wire fraud. While most of these carry draconian mandatory minimum sentences, the acts on which they are based, such as placing a telephone call or mailing a letter, are frequently innocuous. It is much easier to convince a jury that someone withdrew money from a bank in order to commit a crime than to prove the crime itself.
Succeeding waves of legislation, many of them tied to the drug war, have removed checks and balances by minimizing the discretion of federal judges and stacking the deck in favor of the prosecution in federal criminal trials. U.S. attorneys have almost limitless power to lock up Americans for the "crime" of drug possession. And by attaching criminal charges to an array of derivative activities (from depositing money in a bank to operating an otherwise above-board business), such investigations often result in convictions for offenses that have nothing to do with drug use, allowing federal prosecutors to reap the publicity benefits of nailing their target without having to produce evidence of drug-related crimes.
One of the worst of the crimes is "money laundering," which carries penalties of up to 20 years. If, say, an alleged drug dealer has deposited a few thousand dollars in a bank or purchased a new car, a prosecutor can win if a jury believes the alleged dealer did this with wrongfully obtained money. The state never has to prove in court that there was an actual drug deal.
In 1990 Congress added performance-enhancing steroids to its list of banned substances, largely in response to a scandal involving Canadian sprinter Ben Johnson, who was stripped of his 1988 Olympic gold medal after testing positive for anabolic steroids. Capitalizing on the public outcry, Sen. John McCain (R-Ariz.) held hearings on doping in sports. McCain threatened to introduce legislation that would take away the autonomy of the U.S. Olympic Committee unless it adopted aggressive anti-doping policies.
Even with McCain's threats, enforcement lagged for several years, both in professional sports and in the federal courts. But beginning in the late 1990s, a series of new baseball home run records drew renewed public attention to the issue of allegedly performance-enhancing substances, from flaxseed oil to human growth hormone. The record home run race between Mark McGwire and Sammy Sosa that so captivated Americans in 1998 turned sour over allegations that both had used steroids and other substances that the league later banned. When Bonds broke McGwire's record three years later, anti-drug sentiment was so high that Bonds' accomplishment was all but ignored.
Since then, the House Committee on Oversight and Government Reform has conducted multiple hearings on the pressing "government reform" issue of steroid use in professional sports. As Congress has become more vocal and threatening, Major League Baseball has rewritten its drug policies several times, increasing random drug testing of its employees (i.e., the players) and stiffening penalties for those caught.
The biggest criminal prosecution to come out of the federal steroids scare has been the inquiry into the Bay Area Laboratory Co-operative (BALCO), of Burlingame, California. BALCO ostensibly provided blood and urine analysis and food supplements to elite athletes while quietly developing a then-undetectable steroid nicknamed "The Clear," which it allegedly sold to Marion Jones, Barry Bonds, and other high-profile athletes. When federal investigators received tips that BALCO was providing steroids and human growth hormone to well-known sports figures, they leaped at the opportunity to haul the athletes in front of grand juries.
These subpoenas placed Bonds and others in an untenable position not well understood by the public. Witnesses summoned by a federal grand jury, unlike those who testify in a criminal trial, do not have full Fifth Amendment rights to withhold potentially self-incriminating testimony. (Indeed, Bonds' trainer, Greg Anderson, spent 14 months in jail for refusing to testify.) If Bonds or any of the other athletes had knowingly taken steroids, they had three choices: They could deny it, which would mean committing perjury; they could try to invoke their Fifth Amendment rights, which prosecutors could reject and would in any case be perceived by the public as tantamount to admitting guilt; or they could admit they used steroids, risking their careers either byinviting league sanction or provoking public outrage.
Partly as compensation for the lack of full Fifth Amendment protection, federal grand jury proceedings are supposed to be secret. But press leaks are common, especially in high-profile cases. Bonds' entire testimony was published in the San Francisco Chronicle within hours. It is a felony to leak secret grand jury testimony, but since federal prosecutors tend not to indict themselves, it is not uncommon for prosecutors or others to leak testimony when it suits their purposes. (The leaker of Bonds' testimony, a former attorney for BALCO, ended up being sentenced to 30 months in prison.)
Duke law professor James Coleman, who represented American runner Mary Decker Slaney when the U.S. and international track and field bodies accused her of taking steroids, says: "I think [this use of the federal grand jury power] is an abuse of the system; it also criminalizes conduct that otherwise is not criminal by putting these athletes in a position where they must admit they have used prohibited drugs or face perjury charges. If they admit using drugs, their testimony is leaked in violation of grand jury rules and the athletes' careers are destroyed, even though they were never caught by the system in place in their sport. If they deny it, they face perjury charges."
Coleman is not exactly soft on athletes using drugs. He and his wife, Doriane Lambert Coleman, served as co-counsel for USA Track and Field in the early 1990s when the organization banned 400-meter world record holder Butch Reynolds and world shot put record holder Randy Barnes for allegedly taking performance-enhancing drugs. But Coleman, who was one of the few Duke University professors to speak out against the abuses of prosecutor Michael Nifong when he wrongly charged three Duke lacrosse players with rape in 2006, strongly believes in due process and the presumption of innocence.
The BALCO investigation, which has cost more than $55 million so far, quickly moved from imposing mild punishments on four steroid dealers connected with BALCO to prosecuting star witnesses for perjury and obstruction of justice. The larger sentencing stakes of the latter indicate what the goal has been all along: to throw the expanded federal criminal law book at targeted athletes as a public shaming exercise.
The perjury traps are not limited to criminal cases. In February 2008 the legendary pitcher Roger Clemens faced his own inquisition, not before a grand jury but before the House Committee on Oversight and Government Reform, chaired by Rep. Henry Waxman (D-Calif.). During the hearing, Clemens denied under oath that he had taken steroids. In response, Waxman and the committee's ranking Republican, Tom Davis of Virginia, sent a letter to the U.S. Department of Justice demanding a criminal investigation of Clemens for perjury. At press time a grand jury was considering charges against Clemens.
In the name of "cleaning up baseball," Waxman and Davis are expanding government powers beyond their constitutional limits. Members of Congress have not offered many legal justifications for wielding the heavy hand of federal power against athletes whose only real wrongdoing amounts to violations of private rules or state laws. Though for baseball they do often cite a completely tangential law: The 1922 MLB exemption from antitrust rules.
Criminalizing Civil Offenses
When a federal jury in Memphis found Logan Young guilty of crossing state lines to commit racketeering, and of withdrawing the alleged payoffs to a Memphis high school football coach in increments of less than $10,000 (to stay under the threshold at which bank authorities are required to notify the federal government), the notion of derivative crime was taken to a whole new level. The racketeering charges were based on the claim that Young "bribed a public servant," a Class C felony under Tennessee law. But Young was never charged with bribery by a Tennessee court. His attorneys made this point when they appealed the guilty verdict, but because their client died before the appeal was heard we will never know how it would have turned out.
If he hadn't been tied to a high-profile NCAA probation case, Young probably would not have faced any criminal charges at all. But because federal prosecutors in Memphis had legal tools that allowed them to twist certain everyday acts into federal crimes, they were able to convert NCAA violations into a criminal conviction. Given their success, other U.S. attorneys may use questionable federal laws to send more boosters and coaches to prison.
One of the biggest no-nos for participants in sports leagues is betting on the outcome of plays. That's why former NBA official Tim Donaghy received a 15-month sentence after pleading guilty to federal charges of "conspiring to engage in wire fraud and transmitting betting information through interstate commerce." But the sensationalism of the underlying betting-on-basketball charge clouds the issue of just what Donaghy did.
Donaghy admitted giving gamblers inside information about player injuries. Prosecutors claimed he also bet on some games he refereed, though Donaghy did not admit to those charges. Obviously, no sports league can tolerate the manipulation of games by officials trying to enrich particular gamblers. One need only remember the terrible effect that the 1919 Black Sox Scandal had on professional baseball.
But it's not clear that what Donaghy did rose to the level of true criminality. Why should criminal authorities be involved in sports betting issues at all? In the case of college sports, the NCAA has the power to suspend athletes and penalize programs where these actions occur. Professional sports organizations can fire or suspend athletes who violate such rules.
A referee cannot really "fix" a game, though he can have a marginal impact on the point spread. A running back who is paid to fix a game can fumble at an opportune moment, or a star basketball player can sit out a game due to a phantom injury. But referees' actions are more indirect, such as calling more fouls on key players, or failing to blow the whistle when there is an obvious infraction. Furthermore, in professional basketball there are three referees on the floor, so it is difficult for a single official to affect the game and its flow.
Nonetheless, it is apparent that Donaghy was able to influence the point spreads in games he called, and pointshaving is both a state and federal crime. Sports betting expert R.J. Bell tracked every game Donaghy refereed from 2003 to 2007. He told ESPN that teams scored more points than the bettors expected in more than half of those contests. In 15 consecutive Donaghy-officiated games, Bell found, the point spread moved 1.5 points or more before tipoff, with the "big money" winning each time. Usually, point spreads move like that only when large sums of money are bet just before the game.
For the most part, Donaghy tended to call more fouls in certain games than the norm.
But the larger issue is whether or not Donaghy (and others) should have been charged with crimes at all. His career as an official is over, and he will not be a candidate for employment in any occupation that requires trust. Even though the alleged participants in the infamous "Black Sox Scandal" of 1919 were acquitted in court, nonetheless they were banned from professional baseball for the rest of their lives.
While Donaghy disgraced his profession and his employer, he primarily wronged the NBA and some gamblers in Las Vegas, not "society" or even the United States. Consequently, the case should not have been adjudicated in a criminal court; the NBA and other aggrieved parties should have pursued justice by suing him in civil court.
Instead, in addition to the successful federal prosecution, the state of Arizona is mulling whether to file criminal charges against Donaghy for violation of state laws against fraudulent schemes and bribery, and other states may follow suit. While state prosecutions are generally preferable to federal fishing expeditions, such piling on constitutes de facto double jeopardy. (The courts have ruled otherwise on the basis that the federal government and each state government are "dual sovereigns" with separate rights to prosecute a defendant. That legal right has traditionally been tempered by prosecutorial discretion, so that multiple prosecutions in practice have been rare. Recent decades have seen less discretion and more piling on of charges and multiple prosecutions, as federal and state prosecutors all want their chance at high-profile defendants.) Although prosecutors from cities whose hometown teams got rooked by dirty officiating can expect to receive favorable publicity for hauling refs to court, it is hard to see how justice is served by multiple prosecutions for the same underlying acts.
Who Runs Sports?
Americans love sports, and they idolize successful athletes. At the same time, they seem to take delight in the sight of well-known athletes doing perp walks or being forced to testify under oath about their personal habits in front of a congressional committee.
It is one thing to make sure a rich athlete is punished like any other citizen for committing crimes such as robbery or murder. It is quite another thing for government officials to target athletes in the name of "cleaning up sports" or some other vaguely defined and frequently unconvincing "public interest." Unfortunately, as government continues to expand at every level, it is inevitable that high-profile people who become unpopular will find themselves in the sights of ambitious federal prosecutors or publicity-seeking members of Congress.
The major private sporting bodies have their own rules, frequently (as in the case of drugs) going far beyond the letter of criminal law. They don't need Congress or federal prosecutors to act as their enforcers, and we shouldn't sit idly by while team owners invite congressional pressure to force their employee unions to adopt controversial measures. If a sporting commissioner wants to impose stricter drug testing rules, having a congressional committee breathing down players' necks doesn't hurt. But there is nothing in the U.S. Constitution authorizing members of Congress to serve also as athletic commissioners.
Private sporting bodies have the ability to end an athlete's career. Federal authorities, by contrast, have the power to put an athlete in prison for years. In a free society, those two roles should not be confused.
William L. Anderson is an associate professor of economics at Frostburg State University in Maryland. Candice E. Jackson is an attorney practicing entertainment and sports law in Washington State with Bullivant Houser Bailey.
Editor's Note: This article originally misidentified the location of the University of Alabama.