No Harm, No Foul

I'm likely a minority of one here, but in my not-so-humble-opinion, the FBI investigation is going to blow up in the face of the NCAA and the college basketball establishment. The reason? 

There is no social harm here, none at all. Shoe companies and others give money to promising athletes, in the same way sporting goods company sponsor tennis players, hockey clubs in Canada send equipment to young players, and so on. So a kid who can hit a jump shot takes money from a corporation interested in him?

SO..............WHAT?

There is absolutely nothing illegal in this in the general law of any of the 50 States or the United States. It is only 'illegal' because of the virginity rules of the NCAA. (To be sure, you can make commercial bribery out of the matrix, at least under California law, but it's a thin theory.) I have long argued that the NCAA should restrict itself to academic eligibility and level playing field issues. in the manner of high school league. (Schools should not buy players, or pay players. But even those acts aren't crimes).

I also believe that the schools are entitled to the tournament revenue and game revenue. Hell, if athletic scholarships were suddenly banned and competition restricted to regular students, I do believe the BBN would rally around whatever team won the intramural competition. No problem about any of that.

But when the NCAA intrudes into the private financial dealings of athletes, it goes way, way too far. What the difference is between a kid lucky enough to be funded by family money, and one who needs the support of interested third parties is beyond me. I don't think there's any intentional racism in the policy, but it sure works out that way,

So we have behavior that is NOT illegal outside of the NCAA milieu, does no one any harm, and quite a bit of good. When the Emery case broke back in 1989, the absurdity of the setup became apparent to me. Chris Mills, his brother, and father were living in a ONE-bedroom apartment in LA. In any other social context, it's a GOOD thing to provide support. Only in the crazy mirror world of the NCAA does it become bad. (Leave the source of the funds to one side, because I don't believe in money from the school itself.)

So now you are going to put on a case in which you call one witness after another, relatively poor, taking money that is absolutely lawful - and you're going to call them Bad Guys. The prosecution witnesses are going to be fat-a$$ed execs living grandly off their efforts, paying them nothing (fair enough), but also insisting that they take nothing from anyone else, no matter how distant the relationship of the school. Wow.

I did criminal law for 45 years (I'm 71, the oldest guy on the board, I think, but young at heart). I was a public defender in the 70's, break for some Silicon Valley stuff in the 80s, then returned to high tech prosecution in the 90's. I did a death penalty appeal in the 80's. I've done over 150 criminal trials. I'll take the defense here in a heartbeat. It's tough enough these days to get drug convictions because of the victimless aspect - the public doesn't believe in them anymore.

But here there isn't even the detriment of drug use. There is absolutely no social harm, no social mischief, to use an old fashioned term. To be sure, you can work commercial bribery out of the steering activity. But because the underlying conduct is so innocuous, it's legless. It's really a matter of league discipline, not jail.

The case isn't going to demonstrate any criminal activity by anyone, in the way we think of crimes. (Who was physically hurt? Who lost property?) What it is going to show dramatically is what the NCAA should do - and what it should not.