By Tyler S. Woods, J.D. Candidate, Sandra Day O’Connor College of Law.
December 16, 2018.
Context
On October 24, 2018, Adidas’s director of global sports marketing, an Adidas consultant, and a NCAA basketball recruiter were found guilty by a federal jury on felony charges of wire fraud, and conspiracy to commit wire fraud. The lawsuit arose from accusations that Adidas solicited families of top high school basketball prospects to induce their sons to play for Adidas sponsored NCAA Division I men’s basketball programs. By having top collegiate basketball athletes play for Adidas sponsored teams, Adidas was able to market their athletic gear on some of the nation’s top college basketball players free of cost.
One student athlete involved in this controversy is Brian Bowen II. In the aforementioned federal trial, Bowen II’s father, Bowen Sr., testified that he met with Adidas associates, who proposed that if Bowen Sr. convinced his son to commit to play basketball for the University of Louisville, then Bowen Sr. would be paid $100,000. At the time, Brian Bowen II was one of the highest profile recruits for the class of 2017, and due to his father’s encouragement, he committed to play basketball for Louisville for the 2018 season. Months later, given the pending federal investigation, Louisville suspended Bowen II from playing in any games. Despite later transferring to the University of South Carolina, Bowen II did not play in a single college basketball game. Upon review, the NCAA held that because Bowen II received compensation to commit to Louisville, he forfeited his amateur status, and was thus ineligible to play for any NCAA basketball program.
Significantly, in the federal trial, Bowen’s father testified that Bowen II was completely unaware of the $100,000 deal made with the Adidas associates. Nonetheless, lacking options, Bowen II declared himself for the 2018 NBA draft. Although Bowen II was undrafted by the NBA, Bowen II moved to Australia, and is currently playing professional basketball for the Sydney Kings.
Racketeer Influenced and Corrupt Organizations Act
On November 19, following the federal trial’s verdict, Bowen II filed his own civil action against Adidas, and six other individuals involved in the wire fraud scheme under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Enacted under the Organized Crime Control Act of 1970, RICO allows individuals to file a suit against the masterminds behind a criminal activity, even if the masterminds did not directly commit the criminal activity themselves. Moreover, RICO allows victims to gain relief from organizations that display continued patterns of criminal behavior, and link individuals within the organization together under the same suit.
Civil Lawsuit Against Adidas
Here, under RICO, Bowen II filed suit against Adidas executives by asserting that Adidas, as an organization, engaged in a pattern of a criminal activity by soliciting families of NCAA basketball prospects. Bowen II’s suit alleges Adidas caused foreseeable harm by making payments to Bowen Sr., and Adidas was the proximate cause of Bowen II’s ineligibility to play college basketball. The McLeod Law Group, who represents Bowen II in this civil action, argues that Adidas caused Bowen II to lose his opportunity to play collegiate level basketball, his opportunity to maintain an athletic scholarship to pursue higher education, and his opportunity to develop his skills as a basketball player at a Division I program, and potentially become drafted by an NBA franchise.
Through this law suit against Adidas, Bowen II not only seeks personal damages, treble damages, and attorney’s fees and costs, but the suit also seeks to bar Adidas from sponsoring any NCAA Division I men’s basketball program.
Ethical Analysis
If Bowen II was genuinely unaware that his father accepted the $100,000, then who should bear the responsibility to repay Bowen the II, if any party?
Adidas—Individuals may argue that as a global company, Adidas not only has the sophistication and resources to recognize the immorality and illegality of their conduct, but also the ability to compensate Bowen II for his damages. Moreover, Adidas could reasonably foresee Bowen II would lose his eligibility to compete in the NCAA as a result of the transaction they initiated, and thus Adidas is the proximate cause of the harm. Conversely, others may argue that Adidas should not bear the sole responsibility to repay Bowen II for his loses, for other parties are equally to blame, such as Bowen Sr., Bowen II himself, and the NCAA.
Bowen Sr.—Some may claim that a bargained for exchange requires at least two parties to negotiate, and if Adidas is responsible for Bowen II’s losses, then so too should Bowen Sr. However, others may argue that while Adidas is a national corporation of sophisticated executives, Bowen Sr. is merely an individual who likely could not foresee his son’s eventual suffered harm. Moreover, others may argue that through social inequity and lack of representation, Adidas was able to exploit Bowen Sr. Thus the parties were not operating within the context of a conscionable, arm’s length transaction.
Bowen II—Despite being unaware of the circumstances, some individuals may argue Bowen II has a duty to ensure that his family has not accepted a bribe before allowing family to persuade him into committing to a basketball program. Others may argue that misfortune is a part of a life, and in this instance, Bowen II was simply unlucky. Conversely, others will attest that Bowen II was subject to criminal activity, transcending the realm of simple misfortune, and the laws are installed to protect individuals from this conduct.
The NCAA—An argument can be made that if Bowen II was unaware of his father’s dealings, then he technically did not accept cash to commit to Louisville. Thus, Bowen II did not forfeit his amateur status. If the NCAA conducted a more thorough investigation, then maybe Bowen II would have retained his eligibility, and this lawsuit may not have arisen. Still, others may argue that if these facts allow Bowen II to retain eligibility, then corporations like Adidas will exploit this loophole, and give family members — rather than the players themselves — cash considerations to avoid violating NCAA rules.
