Why is Point Shaving in College Sports Illegal?

by Ugh

I posted this on TiO almost three years ago but thought I'd bring it up here because of ESPN's 30 for 30 film on a point shaving scandal in college basketball from the late 1970s (and involving Henry Hill of Goodfellas fame no less).  So I thought I'd again ask:  why is point shaving illegal in college sports?  Or more specifically, why are point-shaving players subject to criminal penalties for that act?

First, gambling on sports is generally illegal in the United States outside of Nevada.  But I get the feeling even if it wasn't legal in Nevada, point shaving would still be against the law (although maybe not).  And, it seems points shaving is against federal law - is that really necessary to protect gamblers and casinos in Nevada? 

Even if we're worried about gamblers/casinos in Nevada, what duty does, say, a college basketball player have to those interests?  Is he (and it's generally a he) obligated to always go out and play to the best of his ability, lest the point spread be inaccurate?

Or, more generally, what duty does that college basketball player have to anyone at all, especially in the context where it's point shaving and not out and out losing?  This seems especially relevant to the amateurism debate, since supposedly the college players are in this to "get an education" and thus whether or not they play well enough to cover a point spread should be irrelevant.  That is, I can see the players have some duty to try to win the game, but whether they win by more or less than the spread shouldn't really matter to the college providing the scholarship - and they are supposedly not employees, after all.  I can see a stronger argument for making point shaving illegal in professional sports as a kind of fraud upon the employer.  

Perhaps the players owe a duty to the people who bought tickets?  But again, if they're winning just winning by less, why should anyone watching care (unless they have money on the game, of course)?  I mean, does anyone come away from a game where your team was favored by 20 but only won by 10 somehow horribly disappointed?  Indeed, it may have been a much more interesting game.

The only theory I see is that the players are engaged in a conspiracy to defraud casinos with sports books in Nevada.  But even then that assumes the individuals paying the players to shave points are placing their bets in Nevada, as opposed to with the local bookie.  Further, the casinos set the spread (and the spread is not always the same in every casino), and no one is compelling them to offer sports betting.  

But outside of defrauding casinos, is there any compelling reason to make point shaving a criminal offense?

Update:  Here is the Federal point shaving statute.  It is extremely broad, applying to basically any sporting event (professional or amatuer) publicly announced in advance.  

Comments

[wj]

At the core of this is the delusion that college sports are engaged in strictly for love of the game, and strictly on an amateur basis.

For some sports, this is doubtless the case. Nobody is going to make a career out of rowing crew, for example. And the college isn't going to make any money out of it either.

But for sports like football and basketball, it's a whole different story. First, the colleges are making huge money from it. (There is a reason why, in several states, the highest paid public employee in the entire state is a football coach.) Second, a player who does well has the possibility of going on to an extremely (financially) rewarding professional career. And third, while some of the players in those sports are actually in college for the education, that is far from usual. Indeed, many of them could not even get admitted to college except for the fact that they are good at their sport. Their classes are selected to make sure they pass (with lots of tutoring help if necessary), and so stay eligible to play.

Actually, my impression is that, for points shaving, players are far more likely to have been paid directly than to have placed bets that they want to pay off. So, given that they have large scholarships for playing, would mean that they are defrauding their employer by taking simultaneous, conflicting employment. Of course, those scholarships are not, supposedly, employment -- and if you believe that, I have this great bridge I would love to sell you.

[wj]

Thinking it over, perhaps a better way to look at it is as public corruption. What else would you call it when a private party (the bettor) pays a public employee (the player) to do his job differently?

Of course, you can't call it "public corruption," because that would require acknowledging that the "student athlete" is, in fact, a public employee....

[Pejar]

"First, gambling on sports is generally illegal in the United States outside of Nevada."

Woah! I'm astounded to hear that. I'm from the UK, and it seems that every time I think I've "got" your country, I find out something else that turns my understanding upside down. Except on certain culture war issues, I'm so used to you guys being less regulated than us that it's kind of crazy to hear that sports gambling is illegal in most of the US.

It would be unthinkable in the UK, where you can bet on pretty much anything (although one bookie's particularly tasteless advert for betting on the outcome of the Oscar Pistorius trial did get it in hot water recently).

Amazing.

[wj]

Pejar, you have to keep in mind that the US was not only settled by (among others) Puritans, we have a long tradition of trying to legislate morality. And gambling is included in the immoral practices which are supposed to be suppressed. Bad for the lower classes to waste their limited funds on that, you know -- gotta force them to behave in their best interests.

Plus, a lot of the states make up for restricted tax revenue by running state lotteries. Allowing other forms of gambling might cut into their take from that.

[Countme-In]

"Actually, my impression is that, for points shaving, players are far more likely to have been paid directly than to have placed bets that they want to pay off."

Yeah, dats how it looked from de outside, but from my pointaview at de time, tings didn't work out to ouwa satisfaction oveh heah. We sometimes, not alla de time, mind you, but we sometimes hadda supply a little more, uh, whatchchamallit, what did Milton Friedman -- smat guy, maybe too smat for his own good --- call it .... incentive ... to narrow dose spreads to where it was profitable (annat is de only reason foah ouwa little bidness to exist .. Uncle Miltie again .. a made man, so watch what you say).

So as I tolt Henry Hill, dat %#!!?)%&$ rat, scuse my French, to tell dose playas who maybe played a little too hard to win: "You can't play basketball wit broken hands."

Hanh? Hanh?

You could look idup.

http://en.wikipedia.org/wiki/1978%E2%80%9379_Boston_College_basketball_point_shaving_scandal

I shoulda added they'd still be able to pass algebra, for a fall back position, as all young people oughta have.

I'm James Burke. Some call me Jimmy the Gent, but youse guys, my friends, you can call me Jimmy.

One udda ting. I agree wit dis ugh charactah heah dat dere is not a word in da Constitution about point shaving. You show me whea it sez dat is any of the Feds' bidness.

What has happent to da rule a law, I ask you?

As a citizen.

I may have some woik of a legal natecha to discuss for ouwa man ugh heah to resolve dese heah difficulties. Maybe we couldave a sitdown, over ziti, at my brother-in-law's joint out in Queens one day. I mean, we put it in his name afta the fiah and, well, it's complicated. Like everyting.

Sit inna back atta table, but save me the seat facing the doorah. I'll be along showatly. Maybe we can tawlk about starting onena dem tink tanks or PACs like dey have to pay off Congressman who stray from original intent. Mine.

Coupla more tings I've learnt along the way:

If you evah find youwaself, like Billy Batts, on youwa back begging and pleading, "oh please, stop stickin dat ting in me .. it hoits!" .. den you a probably a little too far down deah, how do you say, slippery slope wit me to change youwa mind at dis late date.

Rememba, da secret to a good marinara is to slice the garlic paper thin. I'm not Italian, I'm not blood, but food is food.

I always like to ask, as sort of a customa satisfaction soivey, like my late little made man friend Tony used to (God Bless him! I lovt him like a brotha): Do you tink I'm funny? Why is zat? How zactly do you find me funny? No, you tell me how I'm funny.

[thompson]

But outside of defrauding casinos, is there any compelling reason to make point shaving a criminal offense?

I have to admit I'm surprised its criminal. What baffles me is why the government is responsible for protecting the sportbooks' business model.

To answer the question, what responsibility does an athlete have, I think that's between them and the NCAA or whatever organization they may belong to.

I can certainly see why the NCAA may want to regulate the conduct of athletes on the field. Both for their business goals as well as there nominal goals of supporting fairness and sportsmanship...or whatever.

So, given that they have large scholarships for playing, would mean that they are defrauding their employer by taking simultaneous, conflicting employment.

But should even that be a criminal matter? The closest comparison I can think of is a non-compete clause in contract. And I could be wrong (IANAL), but I'm pretty sure that's not a criminal matter. A civil one, sure.

[Countme-In]

I play adult amateur sports. I like my team to win, fair and square with excellent sportmanship.

But, by crushing margins, because you never know.

Which, of course, doesn't matter one whit outside the context of the game just played. The other team is, in the sports context, the opponent, not the enemy.

But, on the field, or in the dugout, if I ever suspected one of my teammates of in any way throwing a game or trying to alter the outcome to my team's detriment, it would turn into a criminal matter, with me as the defendant.

Because I'd kick their f*cking asses.

Or would that be the level of government, the personal, that would be the most effective enforcement.

Maybe cheats should conceal carry.

[Marty]

If you cut a few points off the game and make no profit, btw, its not illegal, at all. So point shaving is not illegal, profiting from point shaving is illegal.

At least, as IANAL, I have never heard anyone being charged with intentional free-throw missing.

So making money to cheat is illegal. Seems like a RICO type law to me, someone is making money off of prior knowledge of who will win by how much. Maybe a lot like security laws. Its cheating, that should be against the law. One person takes another persons money due to buying an unfair advantage.

But we are Puritans by nature, "those gamblers" shouldn't be protected. Why should those hookers be protected from protection rackets? Why would we protect those druggies from being shot?

IMO it makes a lot of sense, even if we just use it to teach college players that cheating is wrong?

[thompson]

Marty:

IMO it makes a lot of sense, even if we just use it to teach college players that cheating is wrong?

Criminal law is a rather blunt instrument, and may not be the most appropriate tool for teaching students that cheating is wrong.

Adultery is wrong, imo, but I don't think criminal law is the solution.

Its cheating, that should be against the law.

Why, exactly? I'm not disagreeing, just curious why criminal law seems like the best tool to use. If the NCAA doesn't want its players shaving, it can expel them. If sportsbooks want fair games to gamble on, let them produce them or partner with an organization that will. Why does any individual player have an obligation to the government, enforceable through criminal penalties, to not point shave?

And further, if cheating is wrong and should be criminal, how far does that go? Professional sports? College? Count's amateur league? High school?

I mean we can laugh at the concept of rigging high school games...but I know people that made bets on De La Salle back in the day.

Why would we protect those druggies from being shot?

Because murder has very few remedies outside of criminal law, imo. Your securities comparison was more convincing, and I'd be curious to hear you expand on it.

[dr ngo]

In terms of the law, I'm leaning toward Marty's position, with this possible nuance. (I'd stipulate IANAL, but that's presumably self-evident)

Let us assume that the local bookmakers are involved in criminal activity - obviously book-making itself, but likely by RICO association with other kinds of nefarious felonies and misdemeanors. By point-shaving, the athletes involved are arguably abetting in this criminal conspiracy, helping The Mob to enrich itself, which may itself be considered criminal.

Since IANAL, I've never been clear on just what constitutes "abetting." I know that driving a getaway car does - I've seen the same movies as everyone else - but what about lesser contributions, e.g., telling your local mobsters what time the armored car usually runs past, or whether the cops have been nosing around, etc.? I'm guessing it doesn't apply to doing miscellaneous favors for Wise Guys in terms of free food & drink, parking privileges, etc. But I would think that - assuming it can be proven - conscious action which is expected to increase the illegal income of RICO suspects, which point-shaving clearly would be, could be construed as assisting in said illegal enterprise, hence illegal itself.

Point-shaving without such (proven) participation, OTOH, appears legally OK. If you want to offer less than your best effort, or sabotage your team, or even "tank" a whole season to improve your draft chances, that's up to the NCAA or NBA or whomever, but not to the government.

Makes sense to me - which suggests that that's probably not how the law actually works.

[Ugh]

I was wondering if perhaps these prosecutions were under something like the wire fraud statute or RICO as Marty suggests. But no, here is the relevant part of 18 U.S.C. 224 "Bribery in sporting contests"

(a) Whoever carries into effect, attempts to carry into effect, or conspires with any other person to carry into effect any scheme in commerce to influence, in any way, by bribery any sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest, shall be fined under this title, or imprisoned not more than 5 years, or both.

Also, sporting contest is "any contest in any sport, between individual contestants or teams of contestants (without regard to the amateur or professional status of the contestants therein), the occurrence of which is publicly announced before its occurrence."

So, even the Count's softball games could, er, count.

[Ugh]

Basically, it is a federal criminal offense if I pay the opposing pitcher to throw my son a softball during a Little League game, as long as (i) the game is publicly announced in advance (say on the internet) and (ii) I use a "scheme in commerce" (like paying him via PayPal).

[wj]

Marty, what you seem to be saying is that we should legislate morality, via using criminal law to punish immorality -- in this case, cheating. Is that right?

Thompson, if anyone wants me to bet against De La Salle, they better be prepared to offer points. And lots of them. Otherwise I might just as well give them the money, and save the stress of waiting for the game to reach its entirely predictable result.

[dr ngo]

As a sports fan, and occasional extremely amateur sportsman, I tend toward Count-me In's more sober (2:54) response. Giving less than one's best effort is generally against the spirit of the game, against one of the key reasons we watch sports (except for professional wrestling) or participate. We want to play against, and watch, people who are doing their very best.

Immediately one thinks of exceptions. Besides outright tanking to improve draft position or whatever, we have come to expect teams to "take it easy" with a big lead in the fourth quarter (football and basketball) or late innings. In track and field and swimming, athletes will openly acknowledge that they're running or swimming in a particular event as part of a training regimen, rather than to win. In fact 2014, being in track a year without Olympics or World Championships, is openly considered by some runners a "training year," a build-up for Big Events to come. In golf and tennis, clearly some tournaments matter less than others, and in the latter it occasionally looks as if certain players have shown up ONLY to collect their "appearance fee," after which they lose or withdraw (on "medical" grounds) as soon as possible.

All of which leads me - and others, I suspect - to pay far more attention to the Olympic Games, to post-season tournaments or play-offs, and to "Majors" in golf and tennis than to other competitions involving the same opponents. Because there's a far better chance that everyone involved WILL be doing their best, not slacking off or "training through" it, much less deliberately point-shaving or "throwing" the event. Still may happen, but the odds are with the Big Events. I'd bet on it! ;}

In terms of personal competition, I usually want to play - and beat - opponents who are doing their best, with the exception of obvious "hit and giggle" outings, or occasionally some act of mercy by opponents who might otherwise not give us/me a single point. But that would be on the fringes of the game, marginal (e.g., like blog commentary, in contrast to serious Writing), whereas the sport itself implies doing one's best against like-minded opponents.

NCAA, IAF, MLB, NBA, WTP, etc. can enforce as they may within this arena; too many variables for me to consider. Law enforcement should stay out of it. But mostly this is for sportsmen (and women) to derive from their own consciences, and for fans to "enforce" by non-attendance or turning off the TV when it is too obviously violated.

[thompson]

dr ngo:

I sort of buy the RICO argument, at least to the extent that a player is worked with/for illegal bookies. I'm not entirely convinced criminal is the best solution, but that at least seems consistent with the point of RICO, although IANAL.

But I don't think it works broadly. Like if I pay De La Salle to take a dive in order to get all of wj's money. I'd be a grade-A a******, but it would be hard to argue I was a racketeer. But, I've never fully understood what is covered by the RICO act.

Ugh:

Thanks for digging up the statute. IMHO, that is the sort of thing that we don't need laws for.

wj:

if anyone wants me to bet against De La Salle, they better be prepared to offer points. And lots of them.

I can remember one acquaintance who had a pretty similar perspective right before they ended their streak in the mid 2000s. I want to say to a seattle team, but its been awhile. He was pretty glum afterwards.

Who knows? Maybe someone bought them off.

[dr ngo]

WJ / Thompson: Pardon my ignorance, but who or where is "De La Salle"? I know a Philippine university that goes by that name (and competes in their equivalent of the NCAA), but in the US I'm only familiar with "La Salle," the Philadelphia school famous in my childhood for the exploits of the great Tom Gola.

What am I missing?

(The rest of you, please forgive the interruption and carry on discussing more substantive issues.)

[thompson]

Basically, it is a federal criminal offense if I pay the opposing pitcher to throw my son a softball during a Little League game

Well, a few years in juvy will straighten him right up.

[thompson]

dr ngo:

Sorry about that. Probably not super well known outside of NorCal.

De La Salle is a CA school that has one of the best football teams in the nation. At one point, they had an absolutely absurd winning streak. I don't recall exactly, but well over 100 games.

[dr ngo]

Why stop at having the opposing pitcher throw your son a softball? Why not a Wiffle Ball?

(or am I missing something again?)

[wj]

dr ngo,
Specifically it is a (Catholic) high school (not college) in the Concord, California, about 30 miles east of San Francisco. And that winning streak was actually over 150 games. Simply insane. Especially when you figure that, with barely 1000 students, it isn't even a very big high school, and so has a limited talent pool to draw on.

[McKinneyTexas]

It isn't that difficult, Ugh. You've got it turned around. Outlawing point shaving isn't to aid gambling, it's to prevent the gambling industry from corrupting amateur and professional sports. If players could sell their loyalty and the outcome of a contest, the gambling industry would then have the opportunity to further rig the outcome. It's not a gamble if one side of the bet knows what the spread is going to be before the game starts.

[Countme-In]

Yes, I think engaging in the corruption of a minor, in this case a pitcher in Little League Baseball, by asking him to throw either a "softball" OR a "wiffle ball" in a baseball game would be a dead giveaway that something untoward was up and coaches from both sides and the umpire (removing his mask and striding out from behind the plate), and maybe even the little guy wearing thick glasses to correct his myopia who has been stuck in right field doing little but daydreaming up to this point in the game and paying attention to the bugs and dandelions in the outfield grass would converge as one on the pitcher and demand to know what gives and let's please throw the proper and official projectile.

You could instead pay him to throw either a deliberate "meatball" or a "lollipop" to your kid and any self-respecting 8-year old baseball aficionado would know that he's dealing with a criminal element who at least knows the proper baseball terminology.

Otherwise, the crime gone awry begins to look like the beginning of "Fargo" and well, everyone's either going to jail or into the wood chipper.

Plus, a little league pitcher who is good and smart enough could make the pitch look like a change up that was a little up in the strike zone, but then again, every pitch in little league below a certain age is a little or lot up in the strike zone, if not all the way to the backstop.

But, then again, maybe the pitcher is a kid with a baseball ethic like Bob Gibson's or Don Drysdale's and he would falsely agree to the payoff and then double cross you and throw a headhunting heater right at your kid's ear, while quietly alerting the authorities.

Then all of the crying and the rolling around on the ground, while moms from both teams leave their seats to converge at home plate with swabs and band aids and Bactine in the handy fit-in-a-purse spray bottle size for just such eventualities, while you hang back with the other Dads, some of whom are muttering "That's gotta hurt!" just loud enough for you to hear and others are wondering out loud why the kid can't take it like a man without the writhing in the dirt and why can't he just dust himself off and get his butt down to first base, while you quietly admonish yourself "That's another $20 down the drain" as the pitcher stares you a significant look and you try to remember your attorney's phone number.

I kid.

But seriously, very little if none of this happens in amateur sports because there is no money or much future prestige involved. Most or all amateurs pay to play and give their best, regardless of talent.

It's when any enterprise is engulfed in big stakes money that corruption ensues, especially in supposed "amateur" college sports wherein outrageous money is being hauled in by everyone except the combatants who are NOT being paid, outside of the perks of scholarships, winking "C" grades in their gut classes, and the occasional hookers masquerading as sorority girls on Homecoming Weekends.

I'm quite certain those amateur Goldman Sachs softball games in Central Park are rigged from inning one to nine, considering the, uh, quality of the players and their shareholders and bosses side bets.

I suspect the hidden ball trick is used on nearly every play, which while not being illegal, does violate the spirit of SEC rules when employed way too often.

[thompson]

it's to prevent the gambling industry from corrupting amateur and professional sports

Which is a fine and noble goal. What I am missing is why it is best carried out through criminal law?

The NCAA, NFL, etc, clearly have a motivation to stop point shaving. They also are fully able to bar players from playing. Why is the government required?

[liberal japonicus]

Was trying to figure out what the Japanese phrase for point shaving was and the initial google found this

Yaochō (八百長?) is a Japanese word meaning a cheating activity which is committed at places where a match, fight, game, competition, or other contest, is held, where the winner and loser are decided in advance by agreement of the competitors or related people. It is believed that the word Yaocho came from the name ("Chobei") of the owner of a vegetable stand (yaoya) during the Meiji period. Created from the first syllable of Yaoya and chobei, the word yaocho was created for a nickname of Chobei. Chobei had a friend called "Isenoumi Godayu" (7th Isenoumi stablemaster) with whom he played the game Igo, who had once been a Sumo wrestler "Kashiwado Sogoro" (former shikona: "Kyonosato") and now was a "Toshiyori" (a stablemaster of Sumo). Although Chobei was a better Igo player than Isenoumi, he sometimes lost games on purpose to please Isenoumi, so that Isenoumi would continue to buy merchandise from his shop. Afterward, once people knew of his cheating, they started to use yaocho as a word meaning any decision to win/lose a match in advance by negotiation etc. with the expectation of secondary profit, even though the match seems to be held seriously and fairly.

Economists, using statistical analysis, have shown very strong evidence of bout fixing in Sumo wrestling.[21] (See also Match-fixing in professional sumo) Most of the motive for match fixing is helping each other's ranking to keep their salary higher, according to Keisuke Itai. For example, wrestlers in Jūryō (the second tier) desperately try to avoid finishing the tournament with a losing record (7-8 or worse) and exchange or buy the match result otherwise their salary would be nothing, literally 0 yen, with the participation wage of 150,000 yen every two months if they finish the tournament with a losing record, and their ranking would go down to Makushita (third level) and only participate in seven matches, the lesser ranking from Jūryō in which you can earn 1,036,000 yen monthly with some prizes and a full 15-match tournament.
The sumo association appears to make a distinction between yaocho (the payment of money to secure a result) and koi-ni-yatta mukiryoku zumo (the deliberate performance of underpowered sumo, whereby an opponent simply lays a match down without exchange of money). The intricacies of Japanese culture, which include subordination of individual gain to the greater good, and knowing how to read a situation without the exchange of words (i.e. I know my opponent's score, he needs help and I should automatically give it to him), mean that the latter is almost readily accepted in the sumo world, and is also nigh-impossible to prove.

The wikipedia link to Match-fixing in sumo is also quite interesting. What I think is really interesting is the observation there that
Such a situation appears readily accepted by more traditional fans.

[byomtov]

Or, more generally, what duty does that college basketball player have to anyone at all, especially in the context where it's point shaving and not out and out losing?

Well, maybe he has a duty not to engage in a scheme to defraud people, even unsavory people.

I don't know if that's a RICO offense or what, but it doesn't seem so incomprehensible. Is it illegal to manipulate stock prices?

[Snarki, child of Loki]

That statute is, frankly, insane, at least as applied to the athlete, because if point-shaving is exposed the (a) coach (b) NCAA (c) College are going to make their displeasure known by (a) booting them off the team (b) booting them off the sport (c) booting them off the campus.

None of which requires "federal conviction" levels of proof.

Now, as applied to outsiders trying to bribe an athlete, perhaps...since they are not subject to intramural discipline.

Honestly, this is like making a federal case out of a kid cheating on a Calc I exam.

[Countme-In]

"Is it illegal to manipulate stock prices?"

There are so many legal ways to manipulate stock prices that they've crowded out the illicit methods.

[Ugh]

I guess I'm still wondering who/what, in the context of college sports, is being harmed in a sufficient manner to justify sending the point shaving athlete to federal prison.

The options, it seems to me, are one or more of:
(i) individuals gambling illegally
(ii) individuals gambling legally
(iii) the illegal gambling industry
(iv) the legal gambling industry
(v) the college fielding the team
(vi) the fans
(vii) the athlete's teammates
(viii) the opposing team
(ix) someone else
(x) the NCAA and big time college sports generally.

I'm not feeling too bad for (i) and (iii) - but in any event they can free ride on (ii) and (iv) if their interest sufficiently justifies the federal statute. Maybe (v), although it would seem they would have a tough case if the team nevertheless won the point shaved games, same for (vi) and (vii). (viii) potentially benefits (in theory).

That leaves the legal gamblers/casinos and college sports generally (or someone I haven't thought of). This is why I wondered what duty the athlete owes to people betting on his games.

As for college sports generally - I guess this is McKinney's point. We have to protect them from the gambling industry - even though the legal gambling industry hates point shavers and, in fact, helps root them out whenever they can. Indeed, the gambling industry does everything in its power to ensure they are not themselves gambling. They want to be the financial intermediary.

And yes, my bad on the whole softball thing in my earlier comment.

[Countme-In]

No sweat.

Riffing opportunities present themselves for the opportunist. ;)

[thompson]

We have to protect them from the gambling industry

Why, exactly? Is the NCAA somehow incapable of defending itself? Is it not fully able to lay out rules and ethics for all participants, and ban all offenders from competing? Why is point shaving different from the many other rules and regulations the NCAA has?

Not to mention (a) the laws don't just apply to college athletics and (b) as you note, the gambling industry itself isn't a fan of point shaving. I don't get who we are protecting the NCAA from. Or for that matter, why they are criminals. What harm is being inflicted here that can't be resolved through civil litigation? The moral decay of society?

And ultimately, I still don't get why this applies any criminal burden on the athlete. A contractual obligation, sure. And the NCAA has many tools at its disposal to enforce its standards. It does not require criminal penalties. Like Snarki said upthread...this is like making a federal case out of cheating on a calc test.

Cheating is wrong, bad, immoral, etc. Many things are, and still don't fall under criminal sanction.

[thompson]

I reread my post and it sounds more argumentative than I intended. Sorry about that. I am honestly curious about the questions I asked.

[Countme-In]

Was this law a part of the "Broken Windows" theory of law enforcement, wherein petty crimes were elevated to high crimes to ward off the big fish?

[Ugh]

thompson - I agree with you, that was just me re-stating McKinney's point (or what I think it is).

[bobbyp]

None of which requires "federal conviction" levels of proof.

Well, no. When you are trying to eliminate the possibility of market failure...hammer meet nails. And market failure is built into the concept of "sports" and "gambling"....asymmetric information which see.

Marty, Thompson: Please note how this is a classic example of how COLLECTIVE social decisions both "create" and "regulate" markets.

I'm with Tex at 5:41 above, and I lay 8 to 5 that he's got the right take on this. In the interest of fairness, I reveal we both have the same bookie.

30+ comments and no mention of the Black Sox. Shoeless Joe Jackson is rolling in his grave.

[bobbyp]

"Is it illegal to manipulate stock prices?"

I hope this is not a serious question.

[bobbyp]

ugh,

The question is a good one, but let's expand this.

How about when bad teams lay down to increase the margin of loss? They were going to lose anyway, right? Why have we not seen this behavior in our point fixing history?

Why is bribery (which point shaving essentially is) illegal in any sphere of commerce?

The classic libertarian response is "let the market decide". The classic New Deal response is, "Who the heck are you trying to kid?"

[Nigel]

Why is bribery (which point shaving essentially is) illegal in any sphere of commerce?

And renamed lobbying/campaign finance in politics...?

[Countme-In]

I was thinking along the way "Say it ain't so, Joe", so thanks bobbyp for going where cowards (me) Fear to tread.

I have a crackpot theory of lying and cheating laid down by accretion over almost geologic time by capitalism, because after all, every capitalist organization, or whatever this sadistic monstrosity we've fetishized is called, has its lying departments (Advertising .. Public Outreach ... Customer Service) and its cheating departments (Accounting .. Investor Relations Departments), which over time collapse because real people just f*cking get sick of it, the sheer ever increasing weight of being f*cked with in the small print, as opposed to the quick outright collapses of communist and fascist regimes, who at least are upfront about their malignant intentions and thus predict their own dissolutions.

Oh, I forgot the Human Resources Departments, where you go to prostrate yourself only to be told no, but maybe we can only give you thirty hours on account of the fact that you might get cancer, or ebola, and then they are on the hook, the fucks.

Check out Obamacare, they counsel, as they release you from their healthcare plan with one side of their mouths, while the other side of their mouths hire corporate lobbyists and political f*ckwad sadists to pull out root and branch (see Mitch McConnell's latest statement on this, the mass murdering subhuman piece of shite) one's last chance to avoid bankruptcy, penury, and death while vermin Republican operatives line the streets to accuse you of parasitism.

To bed.

To arise tomorrow to address the Republican Party's (like I've said, get another name for this murder syndicate; "Khmer Rouge" is already taken) anti-American, traitorous plan to incite a full scale national ebola panic, with violence against all of their usual hate subjects .. immigrants, niggers, the poor, and the diseased.

This rapidly spreading sociopathogen that has infected the empty rotten host husk vector of the Republican Party knows only one antidote, only one vaccination ... unremitting brutal, final violence against it, like Abraham Lincoln would prescribe, could he be here to finish the job.

By real, armed Americans. It's coming.

Sorry, weren't we discussing amateur sports points shaving?

Carry on.

Carry on.

[thompson]

Ugh:

that was just me re-stating McKinney's point

Yeah, sorry about that. Like I said, it came out more argumentative than I intended. I was trying to use that statement as a launching point, not to pick apart your views.

bobbyp:

How about when bad teams lay down to increase the margin of loss? They were going to lose anyway, right? Why have we not seen this behavior in our point fixing history?

We have. Various professional teams have been accused of doing this to get better playoff schedules, schedules for next year, and draft picks.

Which is either morally reprehensible or strategic, depending on your position.

Please note how this is a classic example of how COLLECTIVE social decisions both "create" and "regulate" markets.

This is an example of threatening young athletes with prison if they don't perform to our moral standards.

I am loathe to use criminal law, and 5 years in prison, to get people to adhere to my moral standard.

You also brought up the Black Sox scandal, which IIRC, was a case where the involved players were acquitted but expelled from the league. It seems like the league was more more able to dole out punishment than criminal law.

If leagues want fair matches, they are uniquely suited to ensure that. If a gambler wants to bet on fair matches, they should bet on leagues that take steps to ensure fair matches. Prison is not required or just.

[Marty]

"This is an example of threatening young athletes with prison if they don't perform to our moral standards."

This is an example where we expect young athletes to NOT take bribes. I am not sure how that is a tough concept. If the coach knew they were taking bribes they wouldn't play, however, since he doesn't, they are lying and cheating to make money. Outside of violent crime it pretty much defines criminal behavior.

[CJColucci]

I suspect the reason point shaving is illegal is to prevent the people who bribe athletes from enriching themselves and their organizations based on their bought-and-paid-for inside information. And most of the people who pay athletes to point shave are doing it to enrich enterprises that are engaged in other illegal activities.

[McKinneyTexas]

If BobbyP and I agree, it must be so.

[Dave W.]

Yeah, the NCAA really isn't going to be able to offer mobsters incentives to testify about how the fix went down. Nor are they going to be able to offer much in the way of protection to potential witnesses who might be threatened by said mobsters in order to keep them from testifying. Just about every point-shaving scandal that has come to light so far has started with a criminal investigation.

I wasn't able to find much info online about the original motivations behind the laws in question, but I do know that except for RICO, they date from an era before much in the way of legal gambling, when the authorities were very hostile to potential gambling. I would say that the protection of gamblers played little or no role in the motivation of the legislation. Protection of the spectator experience and the revenue streams of the colleges and the NCAA are much more likely to be involved.

[John M. Burt]

Suppose it were found that a college was auctioning off the point spread, and passing along marching orders to players . . . ?

[thompson]

they are lying and cheating to make money.

Which I'd agree is wrong. Many things are wrong, yet aren't criminal. Cheating on tests. Cheating on your significant other. Padding your resume. Lying. Hell, I'm against racking up points in a blowout win. Something being wrong doesn't automatically make the criminal justice system the best method of handling it.

Protection of the spectator experience and the revenue streams of the colleges and the NCAA are much more likely to be involved.

I still don't get what criminal liability random athlete X has to any of their fans. And when does it start? In D1 college? D3? High school? Little league? Why do the spectators get to demand honest performance, under penalty of incarceration?

These aren't public officials. They haven't been entrusted to manage any public resource. They haven't sworn any oaths of office. They are pretty much young adults who happen to be good at playing a sport. I might enjoy watching them play that sport, but its bizarre to me that I can demand them to play fair, and threaten them with jail time if they don't.

The NCAA and the colleges have a business model. Good for them. It is threatened by point shaving, which, as far as I can tell, has very little societal impact outside of the sport or sport betting. And the NCAA and colleges are uniquely positioned to prohibit, investigate and enforce. Why exactly is it societies responsibility to protect their revenue stream by throwing athletes in prison?

Suppose it were found that a college was auctioning off the point spread, and passing along marching orders to players . . . ?

Suppose professional wrestling was found to be staged. People would still watch it. And even bet on it, oddly enough.

If that's (understandably) not what the NCAA wants to be, they could ban that college. They could include penalties for point fixing in contracts with participating colleges and players.

[wj]

That's an excellent point. People can and do bet on professional wrestling, which anyone with two brain cells to rub together knows is theater and not a real competition. So why get excited about the impact on betting if college sports are fixed in some way? Especially to the point of having criminal penalties involved.

[bobbyp]

Question: "So why get excited about the impact on betting if college sports are fixed in some way? Especially to the point of having criminal penalties involved."

Answer: "Protection of the spectator experience and the revenue streams of the colleges and the NCAA are much more likely to be involved."

Bingo. There are powerful interests or institutional forces that do not want their product sullied or their product/standing/position/power compromised. Using the government as the enforcer is not at all uncommon.

This strikes me as straightforward.

[bobbyp]

We have. Various professional teams have been accused of doing this to get better playoff schedules, schedules for next year, and draft picks.

This strikes me more as strategic behavior arising from the rules adopted by the various leagues and is generally characterized by not starting your 'best' players, for example.

Do they not need some experience, too? Heh.

But sports is a funny business. After all, we have condemned (certain kinds of)"drug" use and elected more than one pitcher who relied on the spitball to the Hall of Fame.

Go figure.

[Marty]

"Which I'd agree is wrong. Many things are wrong, yet aren't criminal. Cheating on tests. Cheating on your significant other. Padding your resume. Lying. Hell, I'm against racking up points in a blowout win. Something being wrong doesn't automatically make the criminal justice system the best method of handling it."

Of course none of these, except perhaps resume padding, is getting paid to lie and cheat. A conspiracy to defraud is pretty commonly considered a criminal matter. In this case the fraud is designed for group a to take group b's money under false pretenses and the mechanism is the corrupt player. There is a difference between legislating morality and protecting group b from specific harm.

[Countme-In]

A couple of afterthoughts.

Regarding substitution projectiles in baseball:

About a dozen years ago, a pitcher (all pitchers are flakes one way or another, especially on amateur teams) on our team, who had a buddy on the opposing team who had doubled off our guy earlier in the game, for reasons of his own and as a joke team strode out to the mound to start an inning and his buddy stepped into the batter's box.

After the warm-up pitches were done, and without alerting us to what was coming, our pitcher wound up and plonked his buddy right in the guy's ample rear end with a hard boiled egg our pitcher had somehow hidden on his person and substituted for the ball in his glove at the last minute.

The guy got first base, natch. Time was called as the umpire inspected the fowl, and now damaged projectile, and our pitcher, acting like nothing was awry came down off the mound and asked the umpire for a new ball, even though he already had the original ball, like maybe he's just lost his grip on that pitch.

In the dugout later, we told our pitcher that he should stick to throwing eggs because that was the best control he'd displayed in weeks.

"Hell, I'm against racking up points in a blowout win."

Me too. That's bad form. That's why in amateur baseball we stop, and we expect the the opposing team to cease as well, stealing bases after the run differential gets a little out of whack.

But what I'm really against in a baseball or softball game is losing by way too many runs to a ridiculously talented team who clearly over matches us and watching them from center field not only pad their lead, but then pile out of the dugout to celebrate and take up our time high-fiving after every run after accursed run crosses the plate like each one was the walk-off in the Little League World Series.

Just score, put your head down, collect your $200, and get your butt directly back to the dugout, O.K?

So, years ago, (like 20-some) I played left-center field on a very competitive traveling softball team and inevitably, especially in late season out-of-town tournaments (wherein the stakes were so big that corruption finds it's footing: an eight-foot tall, tacky, plastic trophy with complimentary coupons for the local sports bar; these perks attract teams who are clearly playing down a level) we would end up playing one of these thoroughbred teams and getting crushed.

It's usually a bad sign when the other team, all of them stuffed into the one vehicle, drive into the parking lot in some sort of deluxe 40' motor home/team bus and all fifteen of them (every one at least 6'3" and 230 no-necked pounds AND their wives and girlfriends (not good either if the opposing wives and girlfriends, on average, are bigger than our largest horses and are heavily tattooed to boot) pile out of the thing in exquisite uniforms with their $400 titanium softball bats sheathed like expensive pool cues.

Never play a softball team that employs their very own traveling masseuse.

Imagine 15 Hanson Brothers (Slap Shot), sitting abreast on the dugout bench, meaty thigh against meaty thigh, glaring out at you from their dugout.

O.K. Let's go. Hit me the ball.

Now, this is softball remember, so there was a home run limit, five per team, in this case, after which any ball over the fence was a foul ball (these rules have all been tightened considerably over the decades), with the third one per bat strike three.

Cut to about four innings later in this game, they've passed their five home run limit maybe a half hour earlier, and these are monster shots (some over the third row of cars in the parking lot) and are distributed throughout their lineup, not just the meat of the order, and we're down something along the lines of 32-5 and at this point we notice all of their batters are now deliberately hitting every pitch into the stratosphere and on every third strike they pile from the dugout to jump up and down in high gloating form and high five (no, they high-fived with their massive forearms as prelude to chest-bumping) the batter with exclamations of "Good Out!!

So, by this time, in center field, I've started a slow burn but have adopted a sort of bored, nonchalant demeanor, standing with my glove off and arms crossed, maybe I studied my nails for a moment or two, not even bothering to crane my neck as these moonshots sail over me.

I pictured myself sitting out there on a chaise lounge, drinking a Mai Tai, reading a volume of Cheever short stories, for all it mattered getting ready for the next play.

As it happens, their catcher, down in their lineup, not the guy you would expect to display that kind of power, made the final out on a tee shot to the pavement about 40 feet beyond the fence behind me.

Just for fun. Good out, as they termed it, while the game clock ticks away.

O.K. We're up now. In fact, I'm lead off hitter in the inning, had a couple of hits and scored a run already, but this time up I decided that in the affairs of men sometimes borderline strategies are called for and I thought, well, I can hit one out of here too if I get my pitch, but a solo shot is not going to alter the outcome of the game. So ...

... my habit is to stand at the very back edge of the batter's box and my warm up swing has a pretty wide sweep behind me and usually as a courtesy, in softball, if the catcher is crowding me a bit a bit I'll ask him to move back a little because, gosh, you hate to hurt a guy.. and besides if my bat touches him in the normal course of a swing, it's his interference.

I should add that I was pissed off at their behavior and my Billy Martin mouth, which tends to overcome (more then, less now) my usual mild-mannered nature in sports and politics, was having a difficult time keeping things to itself (can you imagine that from me; it's the quiet ones you've got to watch), but I noticed the guy was roughly twice my size so I kept my muttering to myself ..

So, on the second pitch .... this is slow pitch ..... as the pitcher tossed the softball (not a baseball, not a wiffle ball, not a three-minute egg) up there I did my last slow warm-up swing and had decided I would try to inadvertently/purposely (see the film, if you can find it) hit the catcher's glove with my bat and thus be awarded a free, nearly at loitering speed, Hannibal Lechter rolling stroll down to first base, just to take up some of THEIR game time for a change, but instead my bat missed the catcher's glove and just tapped the catcher, really, not a conk, just a love tap, (rarely masks in softball) on that little indentation between his schnozzola and his upper lip and that big Baby Huey numbskull dropped his glove and grabbed his face with both hands and fell straight backwards from his crouch and his legs kind of waggled in the air as blood spurted everywhere between his fingers.

The umpire immediately threw up his hands to call time and while looking down at the fallen beefcake, he called catcher's interference and directed me to first base, where I headed to stand with an innocent face and cleaned my glasses, while towels, ice bags, and mercurochrome were hustled to the scene of this unfortunate accident behind the plate.

All of that took up another ten minutes of everyone's time and we lost, sure, but it still gives me a warm feeling to recall going through the handshaking line at the end of the game and several of them refusing to shake my hand, including the catcher who only had one hand free anyway because he was holding a huge ice bag up to his mouth with the other.

I did apologize to him, but not as profusely as his nose and lip bled.

I don't think that team contacted their congressperson to encourage legislation against my behavior, but competitive softball leagues have adjusted their rules to prevent their behavior (not because of my action, but because finally a light went on).

It was nice to see, however, that during the final two innings that team restrained themselves and didn't another ball out of the park.

Incentives and disincentives. Peer review, I'd call it.

[Countme-In]

Shorter version:

I hate bullies.

Which, in and of itself, I guess, reveals itself in some subtractive masculinity of my own.

[thompson]

There are powerful interests or institutional forces that do not want their product sullied or their product/standing/position/power compromised. Using the government as the enforcer is not at all uncommon.

Sadly, I'd agree its common. I just don't think it should be encouraged. And its something I think should be advocated against. I have very little problem with business. I have a large problem with criminal law being used to protect a business.

and the mechanism is the corrupt player.

And this player is corrupt why? What does he owe group B? At what point in a young athlete's life do they take on this burden to make sure someone else bets are covered? That they play as hard and as honestly as some sportsbook says they should?

Bear in mind, they are playing a game. They might be good at it, and maybe a lot of people like watching it, but they are playing a game. That playing a game comes with a responsibility to play fairly under penalty of prison for 5 years is a disturbing concept to me.

I mean, compare it cheating on the calculus exam? What if somebody paid the top student in the class to answer a few questions wrong in order to lower the curve? They are deceiving the professor, for money. Should those students be thrown in prison too? Or would suspension/expulsion from the university be a more reasonable system of punishment?

Or is it that nobody's business model depends on calculus tests, so we don't care?

[Snarki, child of Loki]

thompson, I think we're on the same page, at least for amateur (collegiate) sports.

The athlete isn't being paid to play (NCAA bans that), perhaps they get a scholarship, but that isn't "pay", and while scholarships do have
conditions (maintain GPA), violating the conditions isn't fraud, it's just "no more scholarship". They're not quid-pro-quo, in other words, they're a form of gift.

The relationship between athlete and athletic department/coach/team is just the same as between student and academic department/advisor/classmates. A student that cheats on an exam (or 'shaves points') is hurting classmates, the integrity of the process, etc, but fraud? Who's being defrauded?

The only way this stuff could work as a federal crime is via 'conspiracy', and that's only because the federal conspiracy statute is insanely overbroad. But note, the statute in question isn't a conspiracy statute, it's a standalone criminal statute. An athlete could be convicted of point-shaving where the person paying for point-shaving is acquitted, or not even charged. Insane.

[thompson]

or not even charged. Insane.

Prosecutorial discretion, one more reason criminal law is often a poor enforcement choice.

And yeah, I agree. Insane.

[wj]

Prosecutors are judged by the cases that they win. The person paying for the point shaving can probably afford a top lawyer, and therefore is going to be hard to convict. Whereas a college kid is likely going to be stuck with a public defender. Much easier win, and so keeps the win percentage up.

[thompson]

wj:

Ayup.

Also, this just seemed too coincidental:

http://awfulannouncing.com/2014/guilt-wikipedia-joe-streater-became-falsely-attached-boston-college-point-shaving-scandal.html/2

Who here works for Goodwill in Massachusetts?

[Marty]

Well Thompson, you keep mentioning "what they owe" and I agree that they can miss every shot and tank every game with no repercussion except in their scholarship. Until they take the money to do it. At that point they are conspiring to defraud someone. Conspiracy in this case is not overly broad, its amazingly obvious. I have a lot harder time charging a professional for telling Congress he didn't use PEDs than a kid taking money to cheat.

[Snarki, child of Loki]

Marty: I think you've hit on where we part ways.

Person A offering person B money to do something that person B shouldn't? Bribery. Not conspiracy.

To get conspiracy (in my not-legal opinion) you need more people actively involved TOGETHER. Now, if Joe Bookie invites Dwayne Athlete into their smoke-filled room and they all decide which games to shave points, etc., okay, that's conspiracy. But I don't think that's the way it works. There's likely to be a conspiracy, sure, but it will work very hard to keep the athletes on the OUTSIDE, where they can't rat out the conspirators.

To the extent that federal conspiracy laws pull defendents into a conspiracy that they were not part of (but could have been somewhat *aware* of), that's where IMO such laws are overbroad. Great tool for prosecutors to hammer a defendant into an otherwise unjustifiable plea deal, justice? Not so much.

[Barry]

wj: "Thinking it over, perhaps a better way to look at it is as public corruption. What else would you call it when a private party (the bettor) pays a public employee (the player) to do his job differently?

Of course, you can't call it "public corruption," because that would require acknowledging that the "student athlete" is, in fact, a public employee...."

Seconding this.

A lot, if not most, of the corruption and general sh*t in collegiate athletics is due to the fact that the money sports are a for-profit business which has sweet and utterly fraudulent legal status as (a) non-profit and (b) not a business.

Athletes in money sports are to the extent possible (which is a lot) treated as having no rights that an employee in the USA would have. And considering the starting point of US employment law, that's really, really bad.

A Fox News station in Tallahassee just reported that the police there, and Florida State University, and their police, worked very hard to make sure that a star play wouldn't be successfully prosecuted for rape. And this, in the USA, isn't even a big scandal - I'll bet that the next player caught committing heinous crimes like getting a free pizza will be crucified by the sports media ten times as much.

[Scott P.]

If I advertise an honest sporting event, and you, the spectator, show up and I give you something different, then I've defrauded you.

That said, I think the intent of the statute is to provide a weapon against organized crime. They aren't prosecuting the Washington Generals.

[wj]

But Scott, the folks advertising (and charging for) the event aren't the ones shaving points. The folks shaving points are not even their employees; they are, at best, unpaid volunteer staff. Not being compensative employees, do they have anything like a fiduciary responsibility to the provider (college)? Not that I can see.

Of course, you could just acknowledge that student athletes are employees, and pay them. (Even if you make being a student in good standing a condition of employment.) Then you at least have some legitimate legal complaint if they fail to do the job for which they are being paid.

And if the problem is organized crime, that has a different solution: stop trying to legislate morality, and make gambling legal. Once the money goes out of it for organized crime, they won't be involved.

[bobbyp]

do they have anything like a fiduciary responsibility to the provider (college)?

Let us assume they do not. Let us further assume no criminal penalties for "point shaving". What would happen as a result?

All "fixing" would become public information? Hardly.
"Fixing" would have lower risks of punishment, but there would be less of it? Not likely.
There would be more "fixing". Perhaps, but there are other variables that would apply.

If the probability of "fixed games" goes up, I'd wager the cash cows now known as NCAA football and basketball would take a big financial hit.

Obviously, they do not want this.

There is a similar fear in professional sports. But it could be argued that today pro athletes are paid well enough to offset the expectation of gain from this temptation.

[bobbyp]

But Scott, the folks advertising (and charging for) the event aren't the ones shaving points.

If you are the Owner and your highly touted and expensive product is an utter fraud, what are the likely consequences?

Yes, I realize the World Wrestling Federation makes good dough, but it is peanuts compared to the NFL or the NCAA.

I do not believe you have addressed Scott's point head on.

[Marty]

I think all this "student athletes are employees and are being taken advantage of" is crap. Depending on the school, they get somewhere between 50 and 250k for the four years, get an education if they want it, AND get to play football. It seems completely lost on people that the vast majority of these players would walk on to get to play. Getting the scholarship and the the legal perqs is a pretty damn good deal.

Baseball layers, and some basketball players, get drafted out of high school all the time. Of course, the smart ones take the college money.

[liberal japonicus]

Just out of curiosity, Marty, 2 questions.

What do you think of Ed O'Bannon's lawsuit that was recently decided in his favor?

And the Northwestern unionization case? Were both of these verdicts mistaken?

[bobbyp]

Getting the scholarship and the the legal perqs is a pretty damn good deal.

In relation to the revenues they generate, not so much, and if you support free market economics (I suspect you do so), then they are in fact getting screwed.

People made the same argument ("players are well paid") when baseball players finally eliminated the reserve clause.

[thompson]

If you are the Owner and your highly touted and expensive product is an utter fraud, what are the likely consequences?

If I am the owner, it strikes me that it would be my responsibility to ensure my product is not a fraud. And not the responsibility of the criminal justice system.

Until they take the money to do it. At that point they are conspiring to defraud someone.

I find the argument that they are defrauding their college reasonable. But again, that doesn't strike me as a criminal wrong. It's something that can be pretty readily handled civilly.

Fraud against the spectators? That just seems ridiculous to me. I've had a few emotional rollercoasters watching various matches, but I wouldn't consider the players criminally culpable for my emotional distress, even if they were cheating for personal gain.

[Countme-In]

"but I wouldn't consider the players criminally culpable for my emotional distress, even if they were cheating for personal gain."

You must sit in the cheap seats, where emotional distress is most of the price of a ticket.

So, let's say you're sitting in your expensive season ticket holder box seat, an $8 beer in one hand and a $10 foot long in the other, all prices jacked up to pay the contract of a guy who is demonstrably over the course of a season exhibiting a pattern of cheating.

Why not just skip the game and hang around outside the venue until someone pickpockets your wallet and then just shrug it off?

Devil's Advocate.

They say insider trading is a victimless crime.

http://www.newyorker.com/magazine/2014/10/13/empire-edge

I favor the death penalty.

[Countme-In]

Steve Cohen should use this same simple chart the rest of us rely on to determine where the stock markets and individual stocks are going:

https://twitter.com/ReinsuranceM/status/521001781925777409/photo/1

[Ugh]

The reason I like this question so much is that it involves (a) college athletes, and (b) point shaving and not out and out losing.

Hence we get some of the tangles above.

Marty - who, exactly, is the college athlete cheating/defrauding/lying to when he/she shaves points, such that a 5 year prison sentence is justified?

Also, more broadly, suppose point shaving was a criminal offense for everyone but the player involved? Better?

[wj]

suppose point shaving was a criminal offense for everyone but the player involved?

Then we would have institutionalized (codified?) the sort of situation where a politician can be acquitted of accepting a bribe that someone else was convicted of paying him.

Maybe a better approach would be to treat paying for point shaving strictly as insider trading. That way, the guilt is focused in the right place.

[Ugh]

I think the politician example is sufficiently different as not to be comparable. Perhaps the objection would be that the people paying the player would bring even more pressure to bear on the player to keep quiet, knowing that he is not under the same criminal penalties that they are.

[Dave W.]

Snarki: "To get conspiracy (in my not-legal opinion) you need more people actively involved TOGETHER. Now, if Joe Bookie invites Dwayne Athlete into their smoke-filled room and they all decide which games to shave points, etc., okay, that's conspiracy. But I don't think that's the way it works. There's likely to be a conspiracy, sure, but it will work very hard to keep the athletes on the OUTSIDE, where they can't rat out the conspirators."

It's pretty common for athletes involved to recruit others on their team to make sure the points get shaved correctly. And sometimes it's the athletes who approach the gamblers with a proposal, depending on who has connections to who. The 1951 C.C.N.Y. scandal (which involved a double national championship team) wound up exposing widespread corruption in college basketball: "In all, investigations showed that between 1947 and 1950, 86 games had been fixed in 23 cities in 17 states by 32 players from seven colleges: C.C.N.Y., Long Island University, New York University, Manhattan, Kentucky, Bradley and Toledo. And few believed that all the guilty had been caught." Is that enough people involved to constitute a conspiracy for you?

That scandal, along with the subsequent quiz show scandals of the later '50s had a pretty profound effect on public confidence in the integrity of contests. This wasn't the start of point-shaving being illegal (since the scandal was exposed as a violation of existing laws), but it certainly helped consolidate public attitudes about why such laws were necessary (and in the latter case of the quiz-show scandals, did lead to a federal law against fixing such contests).

[Marty]

lj,

yes

[wj]

Marty,
Is that they were wrongly decided because the courts got the law wrong? Or they were wrongly decided because the law is wrong?

[Marty]

I don't know wj, because I don't know the law that well. The outcome was wrong.

[Ugh]

Marty: I think all this "student athletes are employees and are being taken advantage of" is crap. Depending on the school, they get somewhere between 50 and 250k for the four years, get an education if they want it, AND get to play football.

So paying them cash in addition to or instead of the scholarship is fine/not fine, in your view?

[liberal japonicus]

Marty, well, I can understand feeling something is wrong despite not knowing the law, but do you feel:
-the university has the right to use Ed O'Bannon's image to make money without any kind of compensation, long after he's left? Cause that seems strange to me

and

-The Northwestern football team can't organize itself as a group? Cause that certainly doesn't mesh with the libertarian vibe I've gotten from you previously, but I may be getting confused and you've never expressed that sort of thing so apologies if I'm misremembering.

[Marty]

lj,

I suppose I am all in all supportive of individuals owning their about the image/likeness, even for current student athletes. I am more concerned about the broader implications that seem to be read into the O'Bannon case.

I am pretty antiunion just across the board. So that really isn't a very good test of where I stand on student athletes.

[Nombrilisme Vide]

Cause that certainly doesn't mesh with the libertarian vibe I've gotten from you previously, but I may be getting confused and you've never expressed that sort of thing so apologies if I'm misremembering.

It's my understanding that libertarianism has room for extremely anti-organized-labor stances; the primary justifications I've seen being being that unions are inherently non-voluntary association either by fiat or by intimidation, and/or that they're coercive entities that work against the best interests of the employer (and thus, by obvious corollary, the employees). The tendency of many libertarians to stipulate unrealistically ideal conditions in labor markets helps, I think. I've encountered some libertarian thought that supports unions, but most I've seen (and the flesh-and-blood ones I've encountered) fall squarely on the pro-capital side of things, perhaps with lip service to the right to organize freely, freely do nothing that could upset the labor-capital power imbalance their market model favors, and subsequently be freely ignored, fired, and replaced.

[wj]

NV, what you seem to be saying is that a lot of libertarians are libertarian when it comes to constraints on them. But far less so when it comes to those whose interests diverge from theirs.

Of course, ideologies of convenience are also features of a lot of conservatives and liberals . . . .

[liberal japonicus]

NV That's true, but I wanted to give Marty the benefit of the doubt ;^)

I don't have much of a dog in this fight, being separated from sports reduces the necessity and the desire of having people agree that my opinion is the best one, be it who should have been drafted first or blown officiating calls or a billion other things.

Still, I think what the Northwestern football team did was a pretty gutsy move, standing up to the man and all that. And the court case that detailed the level of control that the coaching staff had over the players (they were unable to refuse a friend request from the coaching staff, football had a nearly 40 hour work week). I was also surprised that there was a 1950's decision that ruled that college football players were employees in terms of workman's comp.

All this talk comes at a bizarre time, in that football at two Mississippi Universities (that are in this strange relationship with my alma mater) are filling up my facebook and it is impossible to say it doesn't draw at least some attention. (I might try to write something about that later). but this article talks about all of the various legal challenges facing the NCAA which makes me think, boy, glad I'm not them.

[thompson]

NV/wj:

Libertarianism is a pretty broad ideology at this point, and does have room for many things. The ALP stance:

"We support the right of private employers and employees to choose whether or not to bargain with each other through a labor union. Bargaining should be free of government interference, such as compulsory arbitration or imposing an obligation to bargain."

The ALP hardly speaks for libertarianism as whole, but I don't think its unrepresentative.

As anecdote (so, fwiw): Most self-described libertarians I personally know are perfectly happy with the ability of unions to organize and negotiate, as long as there isn't a compulsion to join or pay dues. Personally, I view objections to unions as striking at the core of free association, and consider myself libertarian.

Note, that's not the same as unqualified support for the actions of any specific union. Just that they have the right to organize as they see fit.

Of course, ideologies of convenience are also features of a lot of conservatives and liberals . . . .

Consistent ideology is difficult in a complex world. Far easier to have an inconsistent ideology, or to pretend the world is simpler.

[wj]

I guess I absorbed some of my father's attitude towards labor unions. He was adamant that unions should have the right to exist and organize. But, in spite of having been forced to be a member of one (you didn't work as a carpenter in the San Francisco area in the mid-20th century if you weren't a member), he had little or no use for the reality of the unions that exist. Which is, I suppose, the ALP-style libertarian attitude.

[Ugh]

Bargaining should be free of government interference.

Does this mean for corporate employers each stockholder has to bargain individually with the employee(s)?

[Countme-In]

No, but each stockholder may hire a Pinkerton goon squad to "bargain" in their place.

Henry Frick, Andrew Carnegie, the Bolsheviks, and the Nazi Party shared similar and consistent outlooks regarding labor unions.

Archie Bunker maintained a flexible stance, attending as a paying dues member the Union's annual menstrual show, while viewing equal pay for the wimens as a commie plot:

http://www.aflcio.org/Blog/Economy/Archie-Bunker-s-Brilliant-Summary-of-What-Equal-Pay-Would-Do-to-America

[thompson]

Does this mean for corporate employers each stockholder has to bargain individually with the employee(s)?

No, that seems silly. Why should bargaining be separate from all the other HR tasks typically relegated to the CEO and lower management?

No, but each stockholder may hire a Pinkerton goon squad to "bargain" in their place.

Also no.

[Countme-In]

thompson, this consistent, good-natured reasonableness of yours wears a guy down. ;)

[Nombrilisme Vide]

"We support the right of private employers and employees to choose whether or not to bargain with each other through a labor union. Bargaining should be free of government interference, such as compulsory arbitration or imposing an obligation to bargain."

I'm familiar with this stance. It was actually what I had in mind when I made mention of lip service. Barring "government interference" in the process, the right of private employers to choose not to bargain with a labor union translates to the right of unions to be no more relevant than the employers choose to make them, barring actions on the part of the union to force the employers to be relevant... at which point we get into the weeds of what libertarians will accept as acceptably non-coercive actions from a union which still have enough impact to coerce the employer into bargaining with the union when they don't want to. The ALP labor plank frankly strikes me as naive at best and thoroughly disingenuous at worst.

[hairshirthedonist]

That's the funny thing about negative rights. They become positive rights, if they are to be rights at all, as soon as a private actor comes along to take them away from you. The evil gubmint has step in to protect them, lest they become meaningless.

[Ugh]

Why should bargaining be separate from all the other HR tasks typically relegated to the CEO and lower management?

Well because the ALP says "Bargaining should be free of government interference," are not corporations creatures of state law, which has thus interfered in violation of the ALP's stance?

[thompson]

at which point we get into the weeds

My point wasn't really to get into the weeds on the issue. You offered two views of libertarianism, one pro-union, one anti-union, and in my reading you seemed biased towards the believing the anti-union stance was more prevalent.

My counter to that, perhaps poorly framed, was that in my experience, the anti-union stance isn't quite as strong or broadly held as you seem to imply. I just wanted to add that perspective. Again, my personal experience, fwiw.

of what libertarians will accept as acceptably non-coercive actions from a union

In my view, anyway, as long as there are no threats or intimidation, I don't care what the unions or employers do. Frex, if they negotiate a closed shop, that's fine with me. It's not an unheard of view in libertarian circles, and the dominant one in my experience. Its hardly universal, but I've seen mainline libertarians argue for such a view. For example:

http://reason.com/blog/2012/12/12/when-right-to-work-is-wrong-and-un-liber

I also consider the restrictions right-to-work laws impose on bargaining between unions and businesses to violate freedom of contract and association.

etc.

The ALP labor plank frankly strikes me as naive at best and thoroughly disingenuous at worst.

I originally quoted the ALP because its hard to argue that it isn't a 'libertarian' organization, and at least the phrasing suggests they don't wish to regulate the negotiation between an employer and an union. Perhaps they are being disingenuous, I can't speak to that.

But another small point run long...in summary, I have seen self-described libertarians hew to both the broad stances you laid out, but in my purely anecdotal experience, the anti-union stance of libertarians as a whole seems to be overstated. My experience, fwiw.

[thompson]

And, Count? I try :)

[thompson]

are not corporations creatures of state law, which has thus interfered in violation of the ALP's stance?

I guess? But it seems like a stretch, right up there with they shouldn't use public roads to meet, or negotiate over phone or internet infrastructure regulated by the FCC. Because than the government would be in some way involved in the negotiation.

It's seems the plain reading of that statement would be that the government shouldn't have a role in the negotiation, not that the structure of law that allows shareholders to pool resources under a corporate form where individual shareholder action isn't required for HR decisions shouldn't exist. But that's me.

I just wanted to provide an example of a mainstream libertarian organization that was not overtly anti-union. Perhaps loaded into that ALP snippet was that the corporate form doesn't provide a mechanism for HR to be carried out without individual involvement of the shareholders. But again, I think that's a stretch.

[Ugh]

thompson - I was kind of being a dick there (sorry, usually I resist). That was my very oblique way of noting that there are some large power imbalances between the employer on one side and employees or groups of employees on the other. No to mention there are free riding, collective action, and overwhelming personal issues that arise for employees when it comes to unionizing and negotiating, that are not at all faced by the employer.

Hence the rules about closed shop and requiring union membership, etc.

[Ugh]

and adding that these differences are exacerbated when the employer is a corporation.

[thompson]

Ugh:

I actually took it humorous way of exposing a deeper issue, not dickishness. But I'm terrible with humor online, so I try to reply and post in as humorless a way as possible.

I don't really disagree with anything you said, except I would rephrase to say 'exacerbated when the employer is a LARGE corporation'. In regards to closed shop, I really don't have a problem with them, as I said above. Really, my only point in bringing up the ALP plank was as an example of 'libertarians' not being overtly anti-union.

Also while fully admitting that some libertarians, including some prominent ones, are anti-union. Perhaps the majority, I don't really know beyond it not being consistent with my limited experience.

[bobbyp]

That was my very oblique way of noting that there are some large power imbalances between the employer on one side and employees or groups of employees on the other.

This is a very important point that all libertarians (including the above mentioned J.D. Tuccilli) ignore or deliberately obfuscate. It's as if the state intervention necessary to create the currently observed property relations (i.e., theft) was handed down by God Himself. You want freedom of association? Heh. Review our nation's labor history 1875-1900. The power of the state was used unashamedly on the side of Capital until the 1930's.

And those fuckers used the opportunity provided to steal everything that wasn't nailed down.

We live with the consequences.

It's the same argument that avers, "Well, you injuns, yes, we stole an entire continent from you (that's 'effin PROPERTY for you ignoranamuses who are not paying attention), but now you are free! Deal with it."

Or: "Well, yes, you pickaninnies, we have exploited you, robbed you, raped your women, and generally kicked your asses around for 400 years, but no harm no foul, right?"

Let's be honest here (Thompson, I'm looking at your reasonable personage), if the shoe was on the other foot, all, and by that I mean ALL libertarians would be crying fowl to the highest heavens.

And when that shoe is indeed put on the other foot, by golly, that is what they do (cf. Wagner Act, Civil Rights Act, Affirmative Action).

Who coulda' known? I am shocked I tell you. Shocked!!!!

So when I read that "most libertarians in my experience" do not believe these things, I can only snort with contempt, because in my experience, every self proclaimed libertarian I have EVER met was an asshole who worshiped the state intervention system known as private property, and hated unions with a white hot anger that made me want to punch them in the nose for their lunacy and their hatred of their fellow human beings.

[bobbyp]

You want a typical Reason magazine article on unions? Well, here's one:

http://reason.com/archives/2014/09/04/how-unions-infantilize-teachers

You see that? Unions "infantilize" teachers. Roger that. Jayzus H. Christ. That is the typical garbage found in "Reason" magazine. To assert that libertarians do not typically expound the basest anti-union bullshit is simply being disingenuous. For every J.D. Tuccilli article I could cite 100 anti-union diatribes in the leading publications of the so-called glibertarian movement.

You up to the challenge?

[thompson]

Thompson, I'm looking at your reasonable personage

Yeah, but when you say it, I get the impression you mean it as a dig.

I'm sure you had a well crafted and incisive point buried somewhere between the contempt and the punching, but I am uninterested in wading through it all to find it. So, you'll have to find another reasonable personage to look at.