Ethical and legal implications of NCAA rule-breaking

Some states have codified sports-league rules such that violating the league rules now has criminal penalties. Should more states and more sports follow this trend?

By , Guest blogger

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    An investigation has found that New Orleans Saints running back Reggie Bush, shown stretching at practice at the Saints training facility in Metairie, La., Sept. 16, violated NCAA rules by accepting hundreds of thousands of dollars in gifts. He has been fined and may be stripped of his 2005 Heisman Trophy. Should he face criminal charges?
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In September 14th’s Wall Street Journal Life & Style section, Mark Yost writes a provocative piece about Reggie Bush, USC, and college athletics. Mr. Yost recently authored Varsity Green: A Behind the Scenes Look at Culture and Corruption in College Athletics, positively reviewed by TSE’s Phil Miller. Yost is no Murray Sperber on a superficial rant. His writings present a nuanced understanding of the joys, contradictions, and excesses of the college sports landscape.

Having analyzed college athletics for 25 years now and given my econ background, I can almost always find something to grouse about when someone writes on college sports, particularly on sanctions. Yost is correct in noting:

While the penalties against Mr. Bush and USC are a nice gesture, they’re indicative of the problem with the penalties typically handed out by the NCAA. Namely, they’re never enough to deter future bad behavior.

(Of course, the NCAA ran a one-time experiment in raising the penalty high enough to deter future bad behavior: the SMU death penalty. The 20-year decimation of SMU’s program seems to have scared them off of such a sever penalty).

Recommended: NCAA Final Four: How much do you know?

He goes on to note that people like Bush and his former USC coach, Pete Carroll, now make millions from the NFL and ponders why the league does not bring their conduct policy to bear. While I agree that without the cooperation of the NFL, the reach of NCAA justice and incentives are limited, I’m not on board with Yost’s idea of the NFL acting as the NCAA’s agent.

When Trey Fleisher, Bob Tollison, and I started studying college athletics in the 1980s, NCAA administrative, in-house rules and penalties to keep player-generated revenues from finding their way to player pockets did not extend beyond its own borders. In subsequent years, many states have codified these NCAA restrictions into state law by passing penalties that extend to agents or boosters who break them. The Heisman Trust has, for the first time, decided to parse out its own sanction linked to failure to abide by NCAA bylaws. Now a thoughtful writer like Mark Yost, in essence, calls out the NFL as hypocritical if it does not begin to extend its conduct policy to include punishment for breaking NCAA rules.

Why stop there? Why not just adopt the NCAA bylaws into the U.S. Code? No doubt, the NCAA Infractions Committee and Staff would be supportive. I understand that there is a seamy side to under-the-table inducements to college players and that agents are hardly people I would like to hold up as heroic figures. But, “C’mon Man”, sometimes college sports writers need to take a step back from the trees and see the forest. Imagine a person being hounded, ridiculed, and punished for breaking an in-house conduct rule of a company (say, not adhering to the dress code) several years after going to work for another company. Moreover, the first company had successfully limited that employee’s pay by explicit collusion with other employers.

Yost ends with a very moralistic tone:

The problem is not with the kids who play prep, high-school and college sports, but with the adults. They’re the ones who are supposed to be setting the example for these kids. But with each one of these scandals, we learn that it is the parents, coaches, agents, athletic directors and college presidents who are the problem. The kids are merely following their example. And that’s why this problem will be so hard to cure—if ever.

It’s easy to moralize about “illicit” activities and “corruption” and (with more effort) write steamy expose’s of how the details of these actions work out. Yet, in the end, the root cause isn’t really the lack of examples from adults but the underlying economic wedge between a player like Reggie Bush’s value to USC and what NCAA collusion and bylaws permit. Reggie Bush, USC Trojan plays in front of 100,000 in the LA Coliseum and a national TV audience receives an in-kind payment of free tuition and board. Reggie Bush in front of 70,000 at the Superdome (playing a lot fewer plays) and a TV audience receives several million. All the moralizing in the world doesn’t change that imbalance. Extreme penalties, such as school death penalties, may create behavioral responses at a particular school that fall in line with NCAA rules, but short of such measures, what you really see is merely the margin of competition for valuable recruits ever shifting — sometimes within the rules, sometimes outside, and sometimes in the gray area in between.

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