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The NFL's Rule that Underclassmen Must Wait Three Years:
Though Challenged as an Antitrust Violation, The Rule Is Justified


Friday, May. 28, 2004

The clock is ticking down on running back Maurice Clarett's quest to play next season in the National Football League. Excluded from the college draft last month, Clarett has already missed mini-camp and will likely miss training camp as well.

Clarett believes that this outcome is not only unfortunate - but also illegal, under the antitrust laws. So the twenty-year-old player has gone to court to argue that the NFL's policy, preventing underclassmen from entering the draft until three years after their high school graduation, is a restraint of trade.

Clarett argues that because of the policy, players cannot freely trade their talents - and that the policy is the result of a collective agreement among NFL teams that is the very type of agreement antitrust law targets.

Clarett won before the trial court. But he did not succeed in convincing the Supreme Court to render him eligible for the recent college draft. And this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled against him.

Is there a good reason for the NFL rule? I will argue that in fact, there is.

The Progress of Clarett's Case So Far

Initially, U.S. District Court Judge Shira Scheindlin of the Southern District of New York ruled that Clarett should be eligible. Judge Scheindlin held that the rule excluding underclassmen violated antitrust law, and unjustly blocked players from pursuing their livelihoods.

However, the NFL persuaded the Second Circuit to stay (that is, delay the enforcement of) the lower court's decision--meaning Clarett wouldn't be eligible after all. It argued, among other points, that there was no immediate urgency to the issue, because if Clarett won in the end, the NFL would hold a supplemental draft in which Clarett and others similarly situated would be eligible.

Clarett sought an emergency appeal to the U.S. Supreme Court, seeking an order lifting the stay. But Justice Ginsburg declined it. Then Clarett filed a second appeal. Justice Stevens rejected it. So the draft went on, with Clarett and others sidelined.

The case then went back to the Second Circuit. And this week, a three-judge panel overruled Judge Scheindlin's decision, and upheld the NFL policy.

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. He has also said that if he is unsuccessful, he will take his case back to the Supreme Court.

Clarett's Argument: The NFL Draft Violates the Antitrust Laws

How persuasive is Clarett's antitrust argument? The young player based his argument on Section I of the Sherman Antitrust Act - the federal antitrust law. This section prohibits any contract, combination, or conspiracy in restraint of trade.

However, courts have not interpreted the prohibition to be as absolute as it may sound. To the contrary, recent court decisions have said these restraints must be justified by a legitimate business purpose, and may not be more restrictive than necessary.

The issue gets even more complicated in light of the fact that certain sports franchises are not economic competitors (for example, NFL franchises share league revenue). So courts have held that the antitrust laws apply differently to them than they do to other businesses.

Specifically, in such contexts, courts have refused to rule restraints illegal on their face. Instead, they have invoked a less stringent "rule of reason" analysis. This analysis requires a court to evaluate the market impact of the challenged restraint.

To prevail under the rule of reason approach, players like Clarett must prove two things. First, they must show 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 that the player has standing to challenge the rule. Courts have long wrestled over whether a player who is not in the league, and thus has not entered the bargaining unit, can challenge league rules.

The NFL's Policy Protects Players, and Avoids Liability

Arguing that the league's rule is arbitrary, disingenuous and nonsensical, many commentators have questioned its validity. They have asked questions such as "Why a three year ban, and not two or four years?", and "If other professional leagues permit players who are less than three years out of high school, why are football players too young and immature?"

But there are compelling arguments to justify the NFL's age barrier, and similar barriers in other professional leagues. 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 well-documented use of illegal performance enhancing substances. Some speculate that the current problem of athletes turning to steroids is due, in part, to their desire to gain an advantage that age has not yet afforded them.

Young men lining up across from men who are oftentimes twice their size are at greater risk of injury. In the 1970s, the average weight of an NFL offensive lineman was around 250 pounds. Today, it exceeds 300 pounds. A comprehensive survey by the Centers for Disease Control and Prevention confirmed that most injuries suffered by kids ages 15 to 24 occur through basketball and football.

The NFL understands the high risk of injury, and continues to enforce rules that protect players and limit the league's liability. It is wise to do so.

Consider, for example, a legal challenge recently brought against the NFL by the widow of former Minnesota Vikings' player Korey Stringer. She charges that her husband's death resulted from heat stroke during a pre-season practice, and that the team should have done more to protect him. Similarly, it's not hard to imagine a parent suing the league after their son is killed or badly injured after entering the league too young.

The NFL's Rule Allows Players to Stay in School Longer

The NFL says its draft rule protects young players who aren't mentally and physically prepared to play. Even the NBA, long the playground for underage players, wants to set an age limit of 20 for eligibility. NBA Commissioner David Stern recently supported his league's re-evaluation of its draft rules, saying "[i]t would be better for them to stay in school."

Each year, dozens of student-athletes forfeit their remaining college eligibility and enter a professional draft. Later, many realize that they made a mistake, as they remain undrafted or are drafted lower than anticipated. Unlike in other college sports, where the student-athlete may re-establish eligibility, college football players cannot, since spring practices begin before the draft.

It seems every professional sport has superstar teen athletes. From golf's Michelle Wie to basketball's LeBron James, athletes are excelling in sports at younger and younger ages. But permitting these athletes to join, or be pushed into, professional leagues may not be in the best interest of anyone -- least of all the athletes, leagues and colleges.

Hopefully, our laws will continue to permit the NFL to impose self-regulating measures and provisions in collective bargaining agreements that make athletes safer.

The Second Circuit was right to uphold the NFL policy; let us hope that the Supreme Court, if it chooses to review Clarett's case, does the same.

Renee L. Giachino is General Counsel for the Center for Individual Freedom (, a constitutional advocacy group dedicated to protecting individual freedom and individual rights.

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