Brian Flores accuses the NFL and teams of violating civil rights laws through what he depicts as racist acts in the hiring, employment and firing of black coaches. Within his complaint is a stunning accusation: an NFL owner attempting to bribe a coach to lose games so that the team can secure a higher draft pick.
Could a bribe-to-tank scheme be a crime?
Flores charges that Miami Dolphins owner Stephen Ross offered to pay him $100,000 for each loss during the 2019 season. Flores says he rejected the alleged offer, a rejection he believes strained his relationship with Ross and contributed to his recent firing.
Ross categorically dismisses the accusation as “false, malicious and defamatory.” It is unknown whether Flores possesses corroborating (and admissible) evidence or witness testimony to support his accusation. The NFL has launched an investigation.
After Flores filed his lawsuit, former Cleveland Browns head coach Hue Jackson, who amassed a 3-36 record coaching the Browns in the mid-2010s, initially suggested he, too, was offered a bribe to lose. He later walked the accusation back to say he hadn’t been offered money.
Tanking has long been a problem in leagues where draft pick order rewards the worst teams with first dibs at the best talent. In the NBA and NFL, where top picks normally play immediately rather than develop in the minors or sit on the bench, moving up one slot in draft order can have profound implications. Had the Dolphins landed the top pick in 2020, they could have drafted Super Bowl LVI-bound Joe Burrow. Instead, with the fifth pick, they selected Tua Tagovailoa, who has been solid if underwhelming.
Leagues prohibit tanking, but enforcement is inconsistent. In 1982, Clippers owner Donald Sterling was recorded as saying, “Maybe I have to lose the battle to win the war, we must end last to draw first to get a franchise-maker.” The NBA constitution warns that an owner can lose their team if guilty of tanking. Larry O’Brien, the commissioner at the time, fined Sterling $10,000.
Former Celtics head coach and GM M.L. Carr admitted his team was trying to lose in the 1996-97 season in hopes of drafting Tim Duncan out of Wake Forest. “I was bringing in guys like Nate Driggers and Brett Szabo,” Carr told ESPN’s Jackie MacMullan in 2013. “I remember one game in particular, when David Wesley was hitting jump shots and 3-pointers all over the floor—I had to get him out of the game.”
Previous instances of tanking, or possible tanking, have not been known to involve bribes or incentives.
A bribe arguably converts tanking into a crime. This is through 18 U.S. Code § 224 – Bribery in Sporting Contests, a federal statute also known as the Sports Bribery Act of 1964. The Act makes it a crime to “influence, in any way, by bribery any sporting contest,” so long as the scheme crosses state lines. A conviction can carry up to a five-year prison sentence.
The act is intimidatingly worded, yet as detailed in a 2015 paper by John Holden and Ryan Rodenberg, used sparingly by prosecutors. As of 2022, fewer than two dozen decisions in federal and state court decisions have mentioned the sports bribery act, which has never been used in the context of the NFL, NBA, MLB, NHL or other major pro leagues.
Instead, the act has appeared in select boxing, horse racing and college basketball point-shaving cases, such as one involving Boston College basketball players in the 1978-79 season that involved mafia-related bribes to win by fewer points. Meanwhile, promoters and boxers have been convicted for losing fights as part of bribes. The Racketeer Influenced and Corrupt Organizations Act (RICO), a federal law to combat organized crime, has also been used in sports-related mafia prosecutions.
The absence of prosecutions of owners, coaches and players in the major leagues doesn’t mean a prosecution is impossible.
First, while tanking has been around for decades, it hadn’t been linked to bribery until now. A bribe—here a financial inducement beyond terms and incentives expressed in an employment contract—more directly places the misconduct within the confines of the act. If, as Flores contends, his rejection damaged his employment standing in a way linked to race, there is arguably greater justification to use the act.
Second, the stakes to stop tanking are higher due to the legalization of sports betting in approximately 30 states and counting. Bettors aren’t in contract with leagues, and their decision to bet inherently involves chance. Their bets also free-ride off the playing of games offered by leagues and players. However, the legal relationship between bettor and league has become fuzzier as leagues contractually partner with sportsbooks and other providers of gambling services. As consumers owed protections by law, bettors aren’t expecting that games contemplated in their transactions are tainted by bribes.
Third, prosecutors haven’t entirely passed on prosecuting league figures for bribes connected to games. The Justice Department went after NBA referee Tim Donaghy for taking payoffs to impact games he officiated. Donaghy would eventually plead guilty for conspiracy to engage in wire fraud and transmitting betting information.
However, it’s unlikely that tanking, even if linked to bribes, will lead to criminal charges. But for leagues, which prefer to keep matters in-house and outside public view, it might be time to take tanking more seriously.