If there is consensus among legal observers about last month’s district court ruling allowing Maurice Clarett to enter the National Football League draft, it is this: the district court opinion will be altered when the 2nd U.S. Circuit Court of Appeals gets its chance at the plate later this spring.
Federal court judge Shira Scheindlin’s decision to throw out an NFL rule requiring athletes to be three years removed from their senior year in high school before they can be eligible for the NFL draft was surprising to almost everyone except Clarett’s council.
“Judge Scheindlin’s opinion contained so many totally erroneous legal rulings that it is hard to know where to begin,” Gary R. Roberts, the director of the sports law program at Tulane University, told Sports Litigation Alert. He added that one of the most egregious examples involved the “labor exemption issue” and her conclusion that the “rule is not a mandatory subject of bargaining.” Roberts labeled that conclusion “absolutely absurd. There is not a labor lawyer in the country who would agree with that.”
Roberts also questioned her conclusion that a union may not negotiate a rule that excludes people from the bargaining unit. “Unions agree to entry level requirements all the time,” said Roberts.
While he did concede that her conclusion that the rule did not arise out of the collective bargaining process was “a plausible position, and one rational way to get around the labor exemption.
“However, it is logically nonsense inasmuch as the only reason it has never actually been the subject of collective bargaining is that both the league and the union like the rule and thus neither has ever bothered to raise it, merely incorporating it by reference into the CBA. So this is a plausible argument, but logically is silly.”
In fact the common sense thread of the rule is excruciatingly obvious to some observers, such as Scott Powe, a sports law professor and noted Constitutional law expert at the University of Texas Law School. “I would analogize it to a union deciding that someone must be an apprentice before they can become a journeyman,” Powe told Sports Litigation Alert.
Not surprisingly, NFL General Counsel Jeff Pash, agreed in a chat on NFL Total Access:
“It’s the kind of rule, an eligibility rule, which exists in every unionized industry in America and has been upheld countless times in unionized industries throughout this country.”
In contrast to Roberts, Powe and Pash, Mark Conrad, an associate professor at Fordham University, did not feel the judge was that far off-base. “It won’t be overturned, but I do think it will be modified,” Conrad told SLA. “There is legal basis for her general conclusion that there were not direct references to the rule in the present collective bargaining agreement, and the NFL’s attempts to infer that reference through other sections falls short.”
If the decision is upheld, the impact of such a ruling could be notably tame.
One of Clarett’s attorneys, Alan Milstein, told SLA that he does not forsee an opening of the “floodgates,” where, for example, the NBA rule that bars a rising senior in high school from entering that league’s draft. “The sky is not falling,” said Milstein, by email.
Conrad agrees. “First, one has to get through the antitrust exemption argument. If this rule does, then the courts normally engage in what is known as a ‘rule of reason’ analysis, whereby the rationale for the limitation is weighed against the anticompetitive effect. In the Clarett case, the judge found no merit in the NFL’s argument that younger players are less developed and less mature. But in the NBA example, there is a good deal to justify a rule barring those under the legal age from entering a draft. Immaturity, physical development, potential contract problems would be legitimate concerns.”
