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.