October 29, 2007
When Everyone Breaks the Rules (NBA Style)
Posted by Christine Hurt

I've often been intrigued by the question of whether, if an entire industry can be negligent, can an entire industry be criminal?  Many of the so-called corporate scandals seem to involve practices that were engaged in widely throughout a certain sector or industry, and the unlucky few lose the "corporate crime lottery" by becoming targets of prosecutorial discretion.  In a scenario not unlike Shirley Jackson's The Lottery, these unfortunate targets are punished for the purported crimes of many in hopes of deterring the larger population.  The defense that everyone backdated or engaged in wash trades or practiced aggressive earnings management is not even worth advancing.

However, at least in the NBA, widespread rule-breaking seems to have exonerated each individual.  The NBA commissioner David Stern, in reacting to a report that all of the NBA's 56 referees broke the league's anti-gambling rule in some way, criticized the rules instead of the rule-breakers.  Evidence that none of the referees live by the rules, with half gambling in casinos and the group hosting a poker tournament at its annual meeting, seemed only to convince Stern that the rules were "harsh" and "outdated in regards to changing attitudes toward gambling in the United States."  As a consequence, the rules will now be rewritten to include various non-sports gambling in the off season.

According to commentators last week on Pardon the Interruption, Stern (who apparently has claimed in the past to be tied to the letter of the law of other Draconian NBA rules) was put in a difficult situation because he could not practically fire all or even half of the NBA referees.  Being unable to prosecute all offenders has never stopped the DOJ, however.  Apparently Stern is new to the art of prosecutorial discretion.

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