By Stuart P. Green
What do James Gatto, the director of global sports marketing for Adidas Basketball, and Florida ophthalmologist Salomon Melgen have in common?
Answer: Not much.
But you wouldn't know that from charges recently filed by federal prosecutors against both men.
Gatto and others have been charged with making "bribe payments" to high school student athletes and others in return for the students' commitment to attend various universities with which Adidas has contracts to supply shoes and uniforms. Melgen is charged with bribery for allegedly giving his BFF U.S. Sen. Robert Menendez expensive vacations and campaign donations in exchange for Menendez's acting on Melgen's behalf in several disputes Melgen has had with government agencies.
If Melgen really did what prosecutors allege (I offer no opinion on whether he did), that would indeed be a bribe. But, even if Gatto did what prosecutors allege, that would not. To see why, we need to step back and think about what it means to give a bribe, and why it's a crime to do so.
Anyone with a job has duties to the institution he or she works for. One of my duties as a professor is to grade my students fairly and impartially. If a student offered me money to give him an "A" he didn't deserve, the student would be offering me money to disregard my institutional duties. He would be asking me to put my own financial interests ahead of the interests of the university I'm employed by. He would be paying me to be "disloyal."
U.S. senators also have lots of institutional duties. In formulating and voting on legislation, conducting investigations, and making speeches on the Senate floor, they're supposed to act in the interests of their constituents or the country as a whole. A person who allegedly offers a senator goodies like lavish vacations and flights on a private jet in return for the senator's using his office to do favors is asking the senator to put his own interests ahead of his constituents, to be disloyal. We call that corruption.
So, what about the shoe exec who allegedly offers money to a high school athlete to enroll in a particular college football program in which the shoe company has a financial interest? Isn't that a kind of bribe too?
Well, no, it isn't. Note that the executive is not asking the student to violate a duty he has to his high school, his college, a shoe manufacturer, or anyone else. He's merely offering the student money to do what may or may not be in the student's own best interests to begin with. To allege that this is bribery is to try to squeeze what does indeed sound like shady behavior of some sort into a statutory frame it was never designed for.
This isn't to say that none of the charges involving college coaches and players involve bribery. For example, it's also alleged that the associate head coach at one college accepted nearly $100,000 to steer his team's top players to a particular financial adviser keen on managing soon-to-be-rich NBA prospects. That does indeed sound like bribery. The coach was being asked to put his own self-interests (in receiving a hefty kickback) ahead of his players' interests in getting the best deal they could get from prospective money managers.
Nor does it mean that offering buckets of money to high school players to enroll in one or another college basketball program is a good thing, or shouldn't be illegal. Many of the players caught up in the scandal came from economically underprivileged homes. What Adidas is alleged to have done surely exploited their tenuous financial circumstances.
But, then, exploitation of high school and college athletes by universities and sporting goods companies is hardly anything new. It's endemic to the culture of intercollegiate sports in this country. We regularly allow colleges to make millions off student athletes who receive, at most, free tuition, room, and board.
There are lots of ways we could end the exploitation of college athletes. But prosecuting cases like this under laws never intended for such purposes shouldn't be one of them.
Stuart P. Green is a professor of law at Rutgers Law School and author of several books, including the award-winning "Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime."
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