Confessions May Turn Unwinnable Sports Gambling Charges Into Slam Dunks

A person gambles as betting odds for NFL football's Super Bowl are displayed on monitors at the Circa resort and casino sports book in Las Vegas on Feb. 3, 2023. John Locher/AP Photo

Commentary

More than 100 years ago, prosecutors tried—and failed—to convict eight members of the Chicago White Sox for intentionally losing the 1919 World Series. The eight players, dubbed the “Black Sox,” were acquitted by a Chicago jury after less than three hours of deliberation. The government’s inexplicable loss of confessions from multiple players—and those players’ subsequent recantations before trial—largely undermined the case.

In the years since, much has changed in sports, gambling, and the law. Yet match-fixing prosecutions remain rare. In many respects, the reason is the same one that doomed the Black Sox case: Absent confessions, it is exceedingly difficult to prove intentional underperformance. Even the best players miss pitches, commit errors, and lose games. Average players do so even more often. Distinguishing ordinary variation from wrongdoing—or even reasonably speculating about it—is typically infeasible, leaving law enforcement and prosecutors with little basis to begin, much less successfully complete, a criminal investigation.

Nonetheless, with sports betting now both legal and ubiquitous, federal interest in gambling prosecutions has grown. For the first time in history, dozens of current and former players in the NCAA, Chinese Basketball Association (CBA), NBA, and MLB are under simultaneous indictment for gambling-related charges. Each of these indictments involves a different type of “fix,” but the prosecution’s core theory is the same in each: Players took money to help gamblers perform better.

In the NCAA/CBA indictment, for example, the government alleges that a group of defendants known as “fixers” paid players between $10,000 and $30,000 per game to shave points. According to prosecutors, the scheme did not involve intentionally losing games in an obvious manner, as the Black Sox did. Instead, players allegedly performed only slightly below expectations—enough to win the game, but not cover the point spread.

Similarly, in the MLB case, two Cleveland Guardians pitchers allegedly provided bettors with advance information about the type and speed of pitches that they intended to throw. Those bettors, in turn, allegedly placed hundreds of “prop bets” on various sports betting platforms to capitalize on the insider information and then paid the players from the proceeds.

If true, both alleged schemes would fall squarely within the federal Bribery in Sporting Contests statute, which prohibits payments intended to “influence” a wide range of professional and amateur sporting events. Proving that kind of quid pro quo, however, is another matter. These schemes are designed to influence games—but only slightly. Did Antonio Blakeney, who averaged 32 points per game, score just 11 points on March 6, 2023, because he accepted a bribe to underperform, or because he simply had an off day?

The MLB case could, potentially, be even harder to prove, as most of the alleged bribe payments were made to the pitchers after they made the pitches in question. Without more, this would be a difficult fact for the government to overcome, not least of all because the Supreme Court has recently made clear (albeit in the separate public corruption context) that post-event payments (termed “gratuities”) are not inherently unlawful, because they cannot, by their nature, affect the outcome of prior events. And, as difficult as it is to prove that a player intentionally underperformed, demonstrating that specific pitches were manipulated is exponentially harder. Especially so as varying pitch selection is a core component of baseball strategy.

The wrinkle, and the government’s ace, may be confessions. In the NCAA case, the government charged Blakeney and five others by “information” which may only occur with the defendants’ consent. This, typically, means that those defendants are cooperating against the others, and have entered plea agreements contingent on that cooperation. Likewise, in the MLB case, the two pitchers are charged, but no one else, suggesting cooperation—and potential confessions—in that case as well. If that is the case, the government’s circumstantial evidence of bribery will quickly become much stronger, giving much needed color to events that would otherwise leave much room for doubt. And these cases may come down to just that. With confessions, they may be slam dunks; without, history says far from it.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.