Collusion Across the Country

What do the NFL, the NCAA, the Trump administration, and Facebook have in common? They all handle a lot of money. They’re all headed by white men. And they’ve all been involved in allegations of collusion.

Former 49ers quarterback Colin Kaepernick filed collusion grievances against the NFL last fall, accusing teams of colluding to keep him out of the league after he started kneeling for the national anthem in the 2016–17 season to protest police brutality against African Americans; this act sparked similar protests across collegiate and professional sports leagues. University of California, Los Angeles basketball player Ed O’Bannon filed an antitrust lawsuit against the NCAA in 2009, arguing that withholding wages from Division I athletes amounts to collusion between teams within the NCAA. Alleged collusion between the Trump campaign and Russia is a key part of the ongoing investigation into Russian interference in the 2016 election. Mark Zuckerberg testified before Congress this week as to address Facebook’s role in facilitating such interference.

Each of the above is a high-profile legal case, so it comes as a surprise that collusion has no single legal definition. “Collusion” in the Trump scenario is not actually a federal crime; it is, in fact, perfectly legal for someone on the Trump team to have worked with a Russian or the Russian administration during the 2016 election. What matters is what that person who worked with a Russian administrator did. What the media has referred to as “collusion” is really an investigation into a range of specific crimes such as conspiracy, recruitment, aiding and abetting, or misprision of felony (concealing a felony), which do have legal definitions and legal consequences.

As former federal prosecutor Renato Mariotti put it in a Politico interview, to be convicted of the crime we think of as collusion “the American would need to work with a Russian to commit a crime, to aid a Russian in committing a crime or to conceal a crime committed by a Russian.” In other words, the Trump campaign would need to have violated other U.S. laws, such as election fraud or computer fraud (email hacking, anyone?), for its collusion with Russia to be illegal.

Collusion does, though, have a very specific legal definition in antitrust law. It is not legal for entities within a market to formally agree to cap wages. For example, in O’Bannon’s suit, the act of collusion alone could be enough to convict the NCAA of, essentially, acting as an illegal cartel. The NCAA argued that antitrust law should not apply due to a 1984 Supreme Court case which stated that “in order to preserve the character and quality of the [NCAA’s] ‘product,’ athletes must not be paid, must be required to attend class and the like.”

O’Bannon countered that the structure of collegiate athletics had changed so substantially since the ruling that it should not apply, and that using the names, images, and likenesses of Division I football and basketball players to generate profit should be considered an antitrust violation. Ultimately, a district court ruled that though the NCAA does not have antitrust immunity, antitrust law only mandates that schools cover the entirety of athletes’ cost of attending college, including travel, not that Division I athletes must receive wages.

Kaepernick’s case falls in legal liminal space: the NFL does explicitly define collusion, but proving whether collusion occurred will likely be much harder than in O’Bannon v. the NCAA. The NFL’s labor agreement states, according to a New York Times article from December, that “no team, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making negotiations with any player,” which makes it clear that collusion, as it is generally understood, violates NFL rules.

But unlike in the NCAA scenario, where the act in question—colluding to cap wages—is a core component of the NCAA’s policy, collusion here is not easily differentiated from the normal, legal decision making done by NFL teams every day. Teams aren’t required to pick the most qualified player for a given position; they have license to choose whoever they think will fit best with their overall dynamic and strategy. Thus, the obvious argument in favor of collusion—that Colin Kaepernick is a better quarterback than many others signed or even starting last season (Mike Glennon? Brandon Weeden? Are you kidding?)—is probably not enough to prove the NFL colluded against Kaepernick, even if it feels painfully obvious something is amiss.

Facebook’s role in the Russia investigation is even more complicated, because it has to do not only with whether or not Russia leveraged the platform to interfere in the 2016 election—as much is almost certainly true—but also what responsibility Facebook has to share the data that would expose the full extent of Russian interference. It’s not likely that we’ll find evidence of Mark Zuckerberg aiding Russian officials in generating Facebook advertisements for Trump rallies. However quantifying the impact of Russian meddling on the 2016 election’s outcome is critical to the Trump case because U.S. election laws explicitly state that foreign nationals cannot contribute any “thing of value” to U.S. electoral campaigns. If Facebook has information that could indicate, more precisely than could any third party, how much value Russian-run Facebook pages and advertisements added to President Donald Trump’s campaign, is it legally bound to share it? Questions regarding ownership of online information and abuse of online platforms push the boundaries of any definition of collusion, legal or otherwise.

The Trump and Facebook cases emphasize the ambiguities of election law in an era where artificial intelligence allows individual voters to be targeted from countries thousands of miles away, where exposure to internet content can sway voters without them even realizing it. The NFL’s case questions the way we structure agreements between employers and laborers; the NCAA’s speaks to the growing power of markets that aren’t traditionally regulated. Together, they highlight the challenges that arise when we apply our current legal system to an increasingly online and interconnected world—and warn us that a conclusive end to the Russia case is not likely.

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