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Just Don’t Call It Bribery


Here in Packerland, there is much angst over the apparent reluctance of Aaron Rodgers to return to the Green Bay Packers as quarterback.

This is no small matter as Rodgers is the reigning NFL MVP and … well … this is Packerland.

Some Packer fans are not sitting on the sidelines as passive observers. For instance, Mr. Brews Taphouse is offering Rodgers (along with his fiance) free burgers and beer for life if he agrees to finish his career with the Packers.

CEO Steve Day stated:

“Seriously, we can’t let Aaron go. No way, no how! Not only is he coming off yet another MVP season, but he is the face of our beloved franchise. We aren’t in a position to renegotiate his contract, but we can offer him and Shailene a delicious meal and great brews whenever they like! Come on, Aaron – please stay!”

Now obviously Rodgers is not a public official, but then again he goes to work (well at least on certain days) at Lambeau Field, a stadium owned by the City of Green Bay and Green Bay/Brown County Professional Football Stadium District.

Clearly Mr. Brews Taphouse is offering Rodgers (and his fiance) something of value (unlimited in quantity for the rest of his life) to influence his discretion and Mr. Brews Taphouse no doubt is hoping to attract publicity (and business) with its offer (i.e. hey let’s go to Mr. Brews Taphouse – we just may see Rodgers).

As silly as this example might sound, change one thing (make Rodgers a “foreign official) and this is the sort of conduct the DOJ and SEC often cite in FCPA enforcement actions.

For instance, FCPA enforcement actions have included allegations about “golf in the morning and beer-drinking in the evening” and evenings at Karaoke bars. These events were specific in nature, not open-ended offers of a lifetime of things of value.

One of the best quotes from the FCPA’s legislative history in 1970’s was by Theodore Sorensen (see here for the prior post). He noted that “there will be countless situations in which a fair-minded investigator or judge will be hard-put to determine whether a particular payment or practice is a legitimate and permissible business activity or a means of improper influence.” He then listed numerous examples, and concluded as follows: “reasonable men and even angels will differ on the answers to these and similar questions – at the very least such distinctions should make us less sweeping in our judgments and less confident of our solutions.”

In the meantime, just don’t “bribe.”

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