CHEATING IN PROFESSIONAL SPORTS AND THE CRIMINAL JUSTICE SYSTEM Matt Hlinak∗ I. Introduction .....................................................................................................................19 II. Prior Prosecutions for Professional Sports Cheating ......................................................20 III. Ethical and Public Policy Issues......................................................................................23 IV. Articulating A Prosecutorial Standard ...........................................................................25 V. Conclusion.......................................................................................................................26 I. Introduction During a 2009 bass-fishing tournament on Lake Ray Hubbard in Texas, professional fisherman Bobby Ross turned in a remarkable fish. It was not remarkable for its size, as he’d hoped, but for the fact that it immediately sank to the bottom of the holding tank. After tournament officials noticed a suspicious bulge in the fish’s belly, they called Ross over, who revealed a one-pound weight he’d inserted into the fish’s mouth. He was promptly disqualified from the tournament, missing out on his opportunity to win a $55,000 bass-fishing boat.1 They take their bass-fishing seriously down in Texas. Following an investigation by the Texas Parks and Wildlife Department, Ross was charged with attempted theft,2 under the theory that he’d tried to steal the prize boat from the rightful winner by cheating in the tournament. In the words of prosecutor Kenda Culpepper, “this case was about a $55,000 bass boat not, not a ten-pound fish.”3 Ross pleaded guilty in April of 2010 and received a sentence of fifteen days in jail, five years’ probation and a five-year suspension of his fishing license.4 This case demonstrates a rare, but not novel,5 approach to dealing with cheating in professional sports. Professional athletes who cheat seek not only a competitive advantage, but a financial one as well.6 Compensation in professional sports is directly tied to performance, and those athletes who violate the rules to improve their performance attempt to increase their compensation at the expense of their rule- abiding competitors. * Assistant Provost for Continuing Studies and Special Initiatives at Dominican University in River Forest, Illinois. 1 Mike Cox, Game Warden Probe Nets Guilty Plea in Bass Tourney Cheating Try, San Angelo Standard- Times, (Apr. 10, 2010, 3:54 PM), available at http://www.gosanangelo.com/news/2010/apr/14/game- warden-probe-nets-guilty-plea-bass-tourney-ch/ 2 Tex. Penal Code Ann. § 15.01 (2011); Tex. Penal Code Ann. § 31.03(e)(5) (2011). 3 Cox, supra note 1. 4 Id. 5 See infra Part II. 6 Doriane Lambelet Coleman & James E. Coleman Jr., The Problem of Doping, 57 DUKE L.J. 1743, 1783 (2008). 19 SPRING 2012 20 WILLAMETTE SPORTS LAW JOURNAL SPRING 2012 But is the criminal justice system really the proper venue for policing the rules of professional sports? This paper will attempt to answer that question. Part I will begin with a look at relevant precedents. Part II will analyze the ethical and public policy concerns at issue. Part III will conclude with proposed guidelines for prosecutors dealing with cheating in professional sports. II. PRIOR PROSECUTIONS FOR PROFESSIONAL SPORTS CHEATING The use of the criminal justice system to enforce sports rules dates back to the ancient Olympic Games. Athletes who transgressed against the spirit of the Games were subject to flogging—a punishment normally reserved for slaves—and severe monetary fines.7 Modern prosecutors have pursued convictions against cheating in professional sports under a number of different statutes. The most high-profile criminal investigation of the modern era centered on the Bay Area Laboratory Co-Operative (BALCO), a company alleged to have provided performance-enhancing drugs (PEDs) to a number of top athletes.8 Two BALCO executives were convicted of drug and money laundering charges,9 but the investigation expanded to include a number of famous athletes. Olympic track star Marion Jones pleaded guilty to obstruction of justice and received a six-month prison sentence for lying to investigators about her PED use.10 Barry Bonds, who holds the Major League Baseball single- season and career homerun records, was convicted of obstruction of justice for allegedly testifying falsely before a grand jury looking into the BALCO case.11 In a similar case, pitcher Roger Clemens faces perjury charges for allegedly lying to Congress about his PED use.12 7 A. Jerome Dees, Bring Back the Crowd? How Governing Bodies for Sports Should Provide Victims of Athletic Doping a Better Remedy, 9 FL. COASTAL L. REV. 179, 181-82 (Winter 2008), citing Moses I. Finely & H.W.Pleket, THE OLYMPIC GAMES: THE FIRST THOUSAND YEARS (1976); Stephen G. Miller, ARETE: GREEK SPORTS FROM ANCIENT SOURCES (2d & expanded ed. 1991); Judith Swaddling, THE ANCIENT OLYMPIC GAMES (1st ed. 1999). 8 This case has received considerable attention from legal scholars. See, e.g., Coleman & Coleman, supra note 6; Dionne L. Koller, From Medal to Morality: Sportive Nationalism and the Problem of Doping in Sports, 19 MARQ. SPORTS L. REV. 91 (2008); Shayna M. Sigman, Are We All Dopes? A Behavioral Law and Economics Approach to Legal Regulation of Doping in Sports, 19 MARQ. SPORTS L. REV. 125 (2008); Joshua H. Whitman, Note, Winning at All Costs: Using Law & Economics to Determine the Proper Role of Government in Regulating the Use of Performance-Enhancing Drugs in Professional Sports, 2008 U. ILL. L. REV. 459; Darryl C. Wilson, “Let Them Do Drugs” – A Commentary on the Random Efforts at Shot Blocking in the Sports Drug Game, 8 FL. COASTAL REV. 53 (2006). 9 Associated Press, BALCO Founder Comte Released from Prison, ESPN.com (Mar. 31, 2006, 3:54 PM), http://sports.espn.go.com/espn/news/story?id=2389940. 10 Six-month Jail Sentence for Jones, BBC NEWS (Jan. 11, 2008, 7:10 PM) http://news.bbc.co.uk/2/hi/americas/7182969.stm; see also Coleman & Coleman, supra note 6, at 1765; Koller, supra note 8, at 91-92. 11 The jury failed to reach a verdict on three other counts. Associated Press, Prosecutors Deciding Whether to Try Bonds Again, SI.com (Apr. 14, 2011, 11:54 AM) http://sportsillustrated.cnn.com/2011/baseball/mlb/04/14/feds.mull.next.move.bonds.ap/index.html. 12 Clemens first trial ended in a mistrial, but prosecutors plan to proceed again. Associated Press, Clemens Likely to Go on Trial Again, FOX SPORTS (Jul. 24, 2011, 9:29 PM) http://msn.foxsports.com/mlb/story/Experts-says-Roger-Clemens-likely-to-face-trial-for-perjury-again- 072411, see also Deposition of William Roger Clemens, The Mitchell Report: Hearings on the Illegal Use of Steroids in Major League Baseball Before the House Oversight and Government Reform Comm., 110th Cong. (Feb. 5, 2008, 9:34 AM) http://graphics.nytimes.com/packages/pdf/sports/clemensdeposition.pdf. Cheating In Professional Sports and the Criminal Justice System 21 WILLAMETTE SPORTS LAW JOURNAL SPRING 2012 The key issue in these three cases is that prosecutors have gone after athletes for lying about cheating, not the cheating itself. Perjury13 and obstruction of justice14 have long been considered criminal acts. It breaks no new legal ground for the government to go after individuals alleged to have made false statements in connection with a criminal investigation or legislative hearings. On the international level, a couple of law enforcement operations have made BALCO-scale headlines. During the 2006 Winter Olympics, Italian “paramilitary police” raided the hotels of members of the Austrian ski team based on rumors of doping.15 Although subsequent investigations revealed some incriminating evidence, no criminal charges were pursued.16 The interesting element of this case is that it involved police from one state investigating athletes visiting from another. Although there is no evidence of police misconduct, there is always the risk that a home country might use selective enforcement of drug laws to eliminate or distract its competition. A few months after the Winter Games, Spanish drug enforcement agents raided the homes of members of an alleged PED-peddling ring as part of Operación Puerto.17 Several professional cyclists, tennis players and soccer players were implicated in the scandal, although none were convicted.18 The great American sporting scandal of the last century was the “Black Sox” scandal, during which members of the Chicago White Sox baseball team were alleged to have thrown the 1919 World Series in exchange for bribes.19 Eight players were indicted, under the charge that they “did unlawfully, willfully, fraudulently, wickedly, corruptly, wrongfully and maliciously combine, conspire, confederate and agree together and with divers other persons … with the fraudulent and malicious intent wrongfully and wickedly to obtain from diverse persons … lawful money of the United States of America.”20 One of the injured parties mentioned in the indictment was teammate John “Shano” Collins, who was out the additional $1,784 in compensation he’d have received had the White Sox won the World Series.21 Despite confessions from three of the players,22 all eight were acquitted in a trial widely believed to have been as fixed as the 1919 World Series.23 Kenesaw Mountain Landis, a former federal judge and the newly- anointed first commissioner of baseball, famously shrugged off the acquittals: Regardless of the verdict of juries, no player who throws a ballgame, no player that undertakes or promises to throw a ballgame, no player that sits in conference with a bunch of crooked players 13 79 U.S.C. § 1621 (2011). See also 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 99-103 (18th London ed. 1832). 14 18 U.S.C. § 1503 (2011). 15 Wilson, supra note 8, at 81. 16 Id. at n131, citing Associated Press, Officials Reveal More on Austrian Drug Scandal, MSNBC.com (Feb. 21, 2006, 12:51PM) http://nbcsports.msnbc.com/id/11471586/. 17 Dees, supra note 8, at 194-95; Sigman, supra note 8, at 174-75.