Our daily sports sections are filled with examples of athletes who operate quite comfortably under the presumption that they can do whatever they want, whenever they want. Thanks to the National Football League and our nation’s courts, the validity of that assumption is under review.
Last month, on the eve of the National Football League’s college draft, the Supreme Court rejected the plea of running back Maurice Clarett to be allowed to enter the NFL draft after his sophomore year at Ohio State. Clarett, age 20, sued the NFL because it prevents underclassmen from entering the draft until they have been out of high school three years. In his legal filings, Clarett argued that the college draft restrains players’ trade of their talents, amounting to nothing less than a group boycott with the NFL teams acting in a concerted refusal to deal.
Clarett won the first quarter of his legal battle when U.S. District Court Judge Shira Scheindlin ruled that Clarett should be allowed in the draft. The February ruling by the federal judge temporarily made Clarett and others, including USC’s Mike Williams, eligible for the draft. Judge Scheindlin held that the rule excluding underclassmen violated antitrust law and unjustly blocked players from pursuing their livelihoods.
Unwilling to accept defeat, however, the NFL won its appeal when the U.S. Court of Appeals for the Second Circuit put on hold the lower court’s decision. Clarett’s case went before the U.S. Supreme Court, where Justice Ruth Bader Ginsburg declined to hear an emergency appeal. In a last minute "Hail Mary" attempt, Clarett’s lawyers filed a second appeal, which was rejected by Justice John Paul Stevens.
The draft went
on, with Clarett and others sidelined. And, last month, a three-judge
panel of the Second Circuit upheld the NFL’s policy and overruled
Judge Scheindlin’s decision.
But the fight continues. Clarett’s attorney reportedly has
said he will seek en banc review — that is, review by
a larger panel of judges of the Second Circuit — trying to
force the NFL to hold the supplemental draft it conceded to hold
in an attempt to undermine Clarett’s legal argument that he
would suffer irreparable injury if he was not eligible for the annual
April draft. The attorney has also said that, if he is unsuccessful,
he will take Clarett’s case back to the Supreme Court.
The analysis and interpretation of antitrust laws as applied to professional sports leagues is worthy of many law school classes and hundreds of law review articles. In a nutshell, the young players argue that the NFL draft violates antitrust law, namely Section I of the Sherman Act, which prohibits any contract, combination, or conspiracy in restraint of trade. In recent court analyses of these restraints, the reasonableness of the restraint is determined by inquiring whether it is justified by a legitimate business purpose and is not more restrictive than necessary.
Because certain sports franchises are not economic competitors (for example, the NFL splits the league revenues among all the teams), the antitrust laws have been applied differently to them than other businesses. Under the less stringent rule that has been applied in these cases, courts have refused to rule restraints illegal "per se" and instead have invoked the less stringent "rule of reason" analysis which requires a court to look to the market impact of the challenged restraint.
To prevail under the rule of reason approach, players must satisfy two requirements. First, players must prove that the rule has anticompetitive effects on a discernible market. Second, players must demonstrate that the rule is not pro-competitive on the whole. All this, however, presumes first that the player has standing to challenge the rule, since courts have long wrestled with deciding whether a person who has not been drafted by or contracted with a team can challenge the college draft, since he has not entered the bargaining unit.
In the NFL’s case, a hardship provision permits an underclassman to petition the league to become available for the draft. Rarely invoked, the hardship provision likely did not apply in Clarett’s situation either, as his desire to pursue an early pro career seems less based on financial hardship than the fact that he dropped out of school after he was ruled ineligible as a sophomore for accepting money from a family friend and lying about it to the NCAA and university investigators.
The volume of articles critical of the NFL’s policy is enough to fill a playbook. Arguing that the league’s rule is arbitrary, disingenuous and against common sense, these writers question the validity of the NFL’s purported justifications. They ask such questions as "why a three year ban, and not two or four years?" And, "if other professional leagues permit the entrance of players who are less than three years out of high school (in fact some will take them less than three years out of middle school), why football players are deemed too young and immature?"
Whether the NFL’s policy will continue to withstand antitrust scrutiny depends largely on whether the league can continue to justify its rule from a legal and moral perspective. Beyond the intricacies of the application of the antitrust laws to the NFL — a legal conclusion we leave in the far more capable hands of the Second Circuit now reconsidering the Clarett case — a plethora of arguments exist to justify an age-related barrier for the NFL, and perhaps to expand it to other professional leagues.
Undoubtedly, the physical and mental demands of professional athletics warrant the age restrictions, particularly in the case of football, which is arguably the most physical of the professional sports. Athletes are bigger, faster and stronger as a result of medical, scientific and technological advancements, as well as advanced weight training and the illegal, but well documented, use of performance enhancing substances. Some speculate that the current problem of athletes turning to steroids is due, in part, to their desire to gain an edge that age has not yet afforded them.
Young men, lining up across from men oftentimes twice their size, are at greater risk of injury. It has been reported that the average weight of an offensive lineman in the NFL in the 1970s was approximately 250 pounds. Today, it exceeds 300 pounds. In a comprehensive survey by the Centers for Disease Control and Prevention, results confirmed that youths aged 5 to 24 were most likely to be treated for sports-related injuries, with basketball and football linked to the most injuries suffered by kids 15 to 24.
This information has not been lost on the NFL, which must continue to enforce rules that reduce player injuries and limit its liability. The league is currently battling a legal challenge by the widow of former Minnesota Vikings’ player Korey Stringer, who charges that her husband’s death resulted from heat stroke during a pre-season practice, and that the team could have and should have done more to protect him.
There are inherent risks in all sports, and perhaps even more with football. The NFL should continue to find ways to make athletes safer and to prevent serious injuries through its self-regulating measures and rules included in the collective bargaining agreement between the league and the players’ union.
Imagine how crowded the football stadiums will be with plaintiff’s lawyers eager to file negligence lawsuits against the NFL after a young and physically immature player is injured by an older and more physically mature player. In such a legal challenge, the player’s skill level will likely be considered in determining whether any negligence occurred. Under this analysis, an older participant will likely be held to a higher standard and expected to take other safety measures to prevent injury, as opposed to a younger participant. Although a consent defense applies where the athlete knew of the risk of injury and consented to the contact by participating in the sport, certainly underage athletes who have not even reached the age of consent would pose additional problems. If the younger athletes are ordered into the draft, the NFL lawyers better go back over the collective bargaining and consent agreements with fine tooth combs.
The NFL says its rule protects young players who aren’t mentally and physically prepared to play a game. In the Clarett case, NFL attorney Gregg Levy commented that the ruling "was about a rule that has served the NFL well, served fans well and served players well for many years." Even the National Basketball Association, long the playground for underage players, is reconsidering its rule and wants to set an age limit of 20 for eligibility. Stealing a page from the NFL’s playbook, NBA Commissioner David Stern recently supported his league’s re-evaluation by stating that "[i]t would be better for them to stay in school."
The NCAA recently announced its decision to increase the academic requirements for student athletes, effective in 2006, a decision derided by many as wrong because it will only provide a further incentive for a struggling student-athlete to enter the pro draft rather than working harder to make the grades. In the bigger scheme of life, however, the NCAA should be applauded for its decision. Players who stay in college longer and are better educated (in theory), might be able to avoid some of the mistakes that befall them now, especially in terms of financial (mis)management.
Each year, numerous student-athletes forfeit their remaining college eligibility and declare their intention to enter a professional draft. Later, many of these student-athletes realize they made a mistake, as they remain undrafted or are picked up at a lower position than anticipated. Unlike other college sports where the student may re-establish eligibility within a stated period of time, this option cannot be available for college football players since spring practices begin before the draft.
It seems every professional sport has its superstar teen athletes. From soccer’s Freddy Adu, to golf’s Tiger Woods and Michelle Wie, to basketball’s LeBron James, athletes are excelling in their chosen sport at younger and younger ages. But permitting these athletes to join or be pushed into the professional leagues may not be in the best interest of anyone, least of all the athletes, the leagues or the colleges. Dr. Jordan Metzl, medical director of the Sports Medicine Institute for Young Athletes at the Hospital for Special Surgery in New York City and co-author of "The Young Athlete: A Sports Doctor’s Complete Guide for Parents," has warned that "in general, high level competition for young kids is not a great thing."
Hopefully, our laws will continue to permit the NFL to heed this advice.