U.S. District Judge Shira Scheindlin is supposed to decide before Feb. 1 on the request for summary judgment in Maurice Clarett v. NFL. Clarett, who will turn 21 in October, six weeks after the 2004 season begins, wishes to be eligible to participate in the coming NFL draft.
The NFL claims that its bylaws prohibit this and that its bylaws are legal. Clarett's attorneys challenge the meaning and legality of the league's bylaws.
The NFL's collective-bargaining agreement with the NFL Players Association provides that the union will not sue the NFL over any of the provisions in its bylaws.
The 1992 bylaws included clause 12.E, which stated: "For college players seeking special eligibility, at least three NFL seasons must have elapsed since the player was graduated from high school." (Interestingly, the 2003 bylaws omit this clause.)
The NFL says it restricts eligibility because the male body is not sufficiently developed at younger ages. Unlike baseball or basketball, the physical nature of football, according to the NFL, requires certain body mass and muscle development for safe and effective play.
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| Maurice Clarett, with mother Michelle, has a court date ahead. |
Clarett's lawyers cry out for clarity and consistency.
First, they argue, if the NFL were really concerned about physical safety, why does it not set a weight or muscle mass criterion instead of an arbitrary "years out of high school" standard (which itself does not correlate perfectly with age)?
Second, they say, their client does not lack mass or musculature. Clarett is 6 feet tall and weighs 230 pounds, making him taller and heavier than Walter Payton, Barry Sanders, Gale Sayers and Emmitt Smith during their NFL careers. Further, at the beginning of the 2003 season, there were eight NFL players who were only 21 years old.
Third, the NFL rule has changed several times since it was introduced in the 1950s and has not been regularly implemented by the league. Clarett's lawyers point to several notable cases where the NFL did not enforce the rule in effect at the time: Andy Livingston in 1964, Craig "Ironhead" Heyward in 1988, Sanders in 1989 and Eric Swann in 1991.
Fourth, they argue that a reasonable interpretation of the rule from the 1992 bylaws would make Clarett eligible for this year's draft. Clarett graduated from high school in December 2001.
The NFL's 2001 season elapsed in January 2002; the 2002 season elapsed in January 2003; the 2003 season will elapse in January 2004. The Oxford English Dictionary defines elapse to mean "to slip by, pass away, expire." Thus, by the date of the 2004 draft, three seasons will have elapsed and Clarett should be eligible to participate.
Fifth, if 20- or 21-year-old males are really not physically developed enough to be successful in the NFL, why not leave this judgment up to the teams? GMs are not forced to pick players who are not ready for the NFL.
Herein lies the larger point of the suit. By setting an artificial restriction on who can enter the draft, the NFL is imposing a restraint of trade. It is as if the different companies in the computer industry got together and declared that they would hire no person younger than 30 or under 6 feet tall.
If the free market would lead to an NFL team's drafting a 20-year-old and the NFL does not allow this to happen, then the NFL is restraining free trade. By doing so, it not only is curtailing the rights of people like Clarett, but it is potentially reducing the quality of the players on the field — thereby harming consumers, a group that antitrust laws seek to protect.
Yet the NFL argues that it is protected by the non-statutory labor exemption. This exemption allows a union to bargain away in arm's-length negotiating certain free-market rights that inhere to its members in exchange for other benefits. The NFL contends that the NFLPA agreed to the eligibility restriction when it signed on to the collective-bargaining agreement clause stating that there would be no suits related to the league's bylaws.
The problem with this argument is at least twofold.
First, the eligibility clause itself is not directly mentioned in the collective-bargaining agreement. Indeed, the existence of an eligibility rule predates the league's first collective-bargaining agreement in 1968. Therefore, there was no arm's-length bargaining over the rule and it cannot be subject to the non-statutory exemption.
Second, the non-statutory exemption generally applies only to the union and its members (or incoming members). It does not allow the primary effect of a restrictive-bargaining agreement to be upon non-members. Clarett and other prospective draftees do not belong to the union.
On a different tack, the NFL argues that the nation's antitrust laws only protect competition, not specific competitors. In the case of the eligibility rule, the NFL says that players' salaries are not affected because these are limited by the salary cap (which was negotiated at arm's length with the union). Further, the number of players is set at 53 per team, and this is also unaffected by the eligibility rule.
Since the quantity and price of the players is not affected by the rule, the NFL maintains, competition in the players' market is not damaged.
This, however, is only part of the story. If the quality of play is harmed, then so are consumers.
In this light, it is hardly surprising that the courts have consistently rejected league age- or school-related eligibility limits. This happened in Spencer Hayward's case against the NBA in 1971 as well as in cases against the USFL in 1984 and the WHL in 1977.
The NFL also benefits from the rule because it helps to sustain the quality of college football. College football, in turn, serves as a free training, screening and promotional vehicle for the NFL.College football reduces the NFL's player development and scouting costs. It helps the league to identify injury-prone players before putting them under contract. And it provides free promotion to the league's future players.
In many respects, the NFL is better managed than the other team sports leagues, and many of its rules advance league competitive balance and financial viability.
The eligibility rule, however, is a counterproductive anachronism. It is time to give it up.
Andrew Zimbalist is Robert A. Woods professor of economics at Smith College.
