Let's say there's a superhighway right outside your town. It's flat and wide and straight, with no intersections and few on- or off-ramps. Traffic moves at about 70 mph with no problems.
Except one: The speed limit is 35.
The drivers on that road are breaking the law by driving twice the speed limit. Are they criminals? Are they even unsafe drivers?
I've been thinking about that road ever since Yahoo reported last week that New Orleans Saints rookie Reggie Bush and his family got about $100,000 in cash and benefits during his career at USC from marketing agents hoping to sign him once he turned pro.
Bush denies the allegations, which if proved could result in Bush losing his 2005 Heisman Trophy and USC forfeiting its 2004 national championship, among other possible sanctions. Yahoo's reporting on the story appears to be solid, but the NCAA has little investigative power and, historically, little stomach for overly vigorous pursuit of wrongdoing in its highest-profile programs.
I believe the allegations. I can't put it any more bluntly than that. What I don't believe is that Bush did anything wrong. In fact, at $33,333 a year, he was a stone bargain. One year later he's the same guy playing the same game in front of roughly the same size audience, and he's making about $4 million.
"I don't think Reggie did that, but if he did, I would have done it, too," his Saints teammate Joe Horn has said. "And guess what? Eighty percent of the college athletes that don't have much when they're in college get money, too."
Everybody's doing it so why shouldn't I is kind of a lame excuse, but really, what if everybody's doing it, or damn near? Maybe we shouldn't take Horn's top-of-the-head figure at face value, but it would be beyond naive to think there isn't a huge percentage of athletes in revenue-producing college sports accepting benefits that violate NCAA rules. Especially when you realize that almost everything violates NCAA rules.
"You start thinking back to all summer," former Oklahoma quarterback and Heisman-winner Jason White told the San Bernardino County Sun about attending compliance meetings at the beginning of each school year. He said he'd find himself thinking, "Oh, dang, I took a piece of gum from somebody on campus ... is that going to get me in trouble?"
Are all those speeders outside your town bad people? Or is that speed limit a law that demands to be broken? In other words, what does it mean when a society, in this case the NCAA, has a law that its citizens widely flout?
I asked Chris Kutz, a law professor at the University of California's Jurisprudence and Social Policy program in Berkeley, that question.
Kutz noted that he wasn't familiar with the charges against Bush, then said, "If there's a major strategic disadvantage to not breaking the rules, if it's individually irrational not to break the law, then the system needs to change. The structure of incentives needs to change. And that means institutional change."
Kutz made the distinction between laws that are opposed to individual temptation -- "That's what law usually does," he said, "it tries to restrain us from cheating, or killing when we're angry and so on" -- and "a system of law that's opposed to systematic individual rationality." That system, he said, won't survive.
"If you want that law to survive you have to make widespread changes in the incentives of all the individuals," Kutz said. That means either ramping up enforcement or getting rid of the law.
Almost all of the incentives in big-time college sports point toward cheating.
First, there's the perception, probably more or less accurate, that everybody else is doing it so you have to do it just to keep up. The fallout from the murder of Baylor basketball player Patrick Dennehy by a teammate in 2003 taught us how much cheating was necessary just to be a doormat in the Big 12.
Second, winning is enormously lucrative for everyone involved except the players, who happen to have the biggest influence over who wins and who loses. If you can get a multimillion-dollar revenue producer to work for you without pay, it's still a fantastic deal even if you have to slip him a few thousand bucks from time to time.
It's even better if all you have to do is look the other way while someone else with his own set of incentives -- a marketing agent trolling for clients, for example -- does it. Reggie Bush for $33,333 of someone else's money? Are you freakin' kidding me?
Go to the official USC athletics Web site and it won't be long before you're greeted by an ad for an auction of game-worn football jerseys. Front and center is No. 5, Reggie Bush's jersey, the sale of which won't pay him a dollar. Thursday morning the latest bid was $3,550.
And third, the punishment is hardly even worth thinking about. As we've seen time and time again with the NCAA, when punishment is handed out, the people who pay the price are the only people the NCAA really has control over: players with remaining eligibility.
Bush is in the NFL. The NCAA holds no sway over him, can't even compel him to cooperate with an investigation. The coaches and administrators will either ride out any punishment or they'll move on to other jobs, Dennis Franchione style.
The people punished when the NCAA finally lowers the boom on a program, barring it from bowl and national TV appearances, limiting its scholarships, that sort of thing, are a bunch of kids who were in high school when the violations occurred.
Reggie Bush's "punishment," in the unlikely event it comes to that, will be having to surrender his Heisman Trophy, a fate about as bad as Vanessa Williams having to give up her Miss America title to ... uh ... who again? And he'll have to feel bad about being the cause of USC getting punished, as though he were the only Trojan ever on the take. If it were me I'd cry, as Liberace said, all the way to the bank.
And all for what purpose? To preserve a system that enriches the NCAA and its members on the backs of mostly poor kids working for free in a multibillion-dollar enterprise. A system that frees up money for universities to pay coaches millions of dollars while denying the players, the people the fans pay to see, even White's proverbial stick of gum.
A system supported by fans who like to delude themselves that the kids they're cheering for are regular college students, just like the fans are or were, playing for the love of the game, school spirit, a free education and a shot at the pros. And by the way that free education better not include any classes difficult enough to distract them from their real, full-time job on the field of play.
Kutz, the law professor, again speaking generally, tackled my question about whether the law in question, or actually the NCAA's set of rules on amateurism, is simply a bad one.
"If everybody complied with the law, would this be a better world? That's really the issue," he said.
Not if you're an athlete it wouldn't.
Getting back to that imaginary highway outside your town, where the traffic moves at 70 mph but the speed limit is 35, Kutz said we have to consider the idea that even an underenforced law might be better than none at all. Even though only a few speeders get tickets, a 35 mph speed limit might prevent people from driving 90 mph.
"That's really probably what you ought to be looking at with a law like this, where the incentives to cheat are so strong," he said. "You're looking at a world with reasonably good compliance, but not perfect compliance, and comparing that with a world with no law. But right now we're in law and no compliance, which is ridiculous."
I can't find the college sports equivalent to the drivers on our imaginary highway speeding at an unsafe 90 mph. The phony-amateur system doesn't protect anybody or anything except the NCAA's profits and the happy feeling some fans get when they think about the star running back hitting the books hard and only playing ball as a means to an educational end.
And I no longer feel like I'm out in the wilderness on this issue, the way I did even a few years ago. A lot of the coverage of the Bush affair has focused on the hit he'll take to his reputation if the cheating charges result in sanctions. He'll lose millions in endorsements, multiple marketing experts have been quoted saying.
One thing that's been missing is outrage. I can't find that columnist fulminating at the gall of this kid to jeopardize his school's program and sully the great game of college football with his selfish acts. I think in this case the media is reflecting the attitude of the multitudes. I don't believe Bush will lose much of anything.
Some underrealistic Trojans fans will be mad at him, but I think the general reaction was summed up pretty well by columnist Doug Krikorian of the Long Beach Press-Telegram near Los Angeles: "Pardon me a moment while I yawn."
Reggie Bush will be fine. Nobody wants to string up jaywalkers, and not too many people care when someone breaks a rule that deserves to be broken.
Previous column: Instant replay
- - - - - - - - - - - -