The Crime of Amateurism

Abstract

In the fall of 2017, the Department of Justice indicted a series of individuals — shoe executives, assistant coaches, runners, and financial advisors — alleging bribery and fraud. What made the actions of these individuals criminal was that they violated the NCAA’s amateurism rules, and in doing so, defrauded publicly funded universities of the benefit of an eligible amateur athlete.
NCAA rules have effectively created the crime of violating amateurism rules — a kind of federal amateurism fraud. While not unprecedented, the scope and extent of the prosecutions in these recent cases open the door to a novel set of implications for athletics boosters, coaches, and compliance units within athletic departments.

Having framed the issue, the Article explores the question of the proper scope of criminal liability in this context, hypothesizing that to some degree, the universities may not be such significant victims, while intercollegiate athletes in some contexts can be. The Article then advances its central claim — that the effect of the criminal prosecutions for violating amateurism rules has been, and will continue to be, a loosening of the amateurism rules. Further, this shift away from amateurism will inform the NCAA’s move toward allowing intercollegiate athletes to profit off of the use of their name, image, and likenesses.

In Part I, the Article describes the recent criminal cases. Part II presents the theory of amateurism fraud related to intercollegiate athletics. In Part III raises questions as to the prudence of this increased criminality and challenges the theoretical framing of universities as victims and college athletes as accomplices. In Part IV, the Article explores the immediate and wide-ranging implications of the criminalizing and prosecution of NCAA rule violations. Finally, Part V argues that the consequence of the heightened criminality of amateurism fraud has been and will continue to be a shift away from amateurism by the NCAA and its member institutions.