Reexamining case and age limitations 20 years later

Twenty years ago, the U.S. Court of Appeals for the Second Circuit vacated a federal district judge’s order that made former Ohio State tight end Maurice Clarett eligible for the 2004 NFL draft.

The decision changed the life of Clarett, who was the Big Ten Freshman of the Year and a projected first-round pick. It also set a precedent that insulated other leagues’ eligibility rules from legal review.

In a world where college football stars can now earn seven-figure incomes through name, image and likeness, and where college athletes can soon become employees and unionize, it’s interesting to reconsider Clarett v. NFL and the different era for college athletes surrounding him.

This Friday, the University of New Hampshire Franklin Pierce Sports and Entertainment Law Institute will host Clarett v. NFL: 20 Years Later and the Future of Age Limits in Pro Sports. The symposium can be viewed online beginning at 5:00 PM ET by registering here. Each of the speakers was involved in the litigation. In attendance will be Maurice Clarett, Michelle Clarett, US District Judge Shira Scheindlin, Clarett’s lead counsel Alan Milstein, NFL counsel Benjamin Block and two other Clarett attorneys (Michael Dube and myself).

Clarett was a mega star at Ohio State. His jersey was a best-seller, though he didn’t get a cut due to NCAA rules. Clarett’s impact on Ohio State football television ratings and ticket sales was also substantial, but NCAA rules denied him and his Buckeyes teammates shares. He also couldn’t sign endorsement deals and remain eligible in the NCAA, and—of course—he couldn’t be paid an “amateur” salary.

Clarett, who rushed for 1,237 yards in 11 games and led the Buckeyes to the national championship game, sought to enter the NFL after playing one year in college. He was ineligible under the NFL’s eligibility rule, which requires players to be three years out of high school. Clarett sued, arguing that the rule was a violation of antitrust law because the league and its teams had agreed to boycott any player — regardless of his talent, ability or financial need — based solely on his time out of high school.

At the time, the NFL was the only major pro men’s league that barred players from entering until a certain period after high school graduation. Major League Baseball, the National Hockey League, Major League Soccer, NASCAR, pro tennis, pro golf, professional boxing, pro MMA and even the NBA — which would raise its eligibility rule to 19 and a year out of high school in 2006 – allowed players to enter after high school or earlier. College football stars were also treated differently than professional actors, musicians and other talented individuals who turn professional at a time of their choosing.

The eligibility rule appeared to disproportionately benefit the NFL and major college football. The NFL enjoyed what amounted to a system of minor leagues, funded by colleges that saved money by not paying labor beyond their grant-in-aid. Colleges, conferences and the NCAA, meanwhile, saw college football’s popularity explode as games were broadcast on ESPN and other major networks paying millions. Other beneficiaries included video game publishers that featured college players’ likenesses without their consent or payment, and sneaker and apparel companies. They can rely on college football stars who play three seasons or, in the case of redshirt freshmen, two seasons.

Judge Scheindlin of the Southern District of New York agreed with Clarett when she granted him summary judgment on February 5, 2004. The judge bluntly wrote the propriety rule “must be dismissed.”

Clarett and the NFL disputed whether the rule, which was not in the CBA but was referenced by it, was collectively bargained with the NFLPA. If it had been negotiated, the rule would have been exempt from antitrust scrutiny as long as it dealt with a mandatory subject of bargaining (wages, hours, and conditions of employment). Scheindlin reasoned that the rule was not about a binding subject of the bargain. It governed only non-employees — that is, players not yet in the NFL who, because of the rule, could not enter the NFL or join the NFLPA.

Scheindlin was unconvinced by the NFL’s arguments that the rule protected Clarett and others like him because they are “not mature enough, either physically or psychologically, to endure the rigors of professional football.” She emphasized the rule, prohibiting Clarett from entering the league and from “selling[ing] its services to the only potential buyer—the NFL,” reflected the type of harm antitrust laws “are designed to prevent.”

She also noted the 6-foot, 230-pound Clarett, who was 20 years old at the time, was “taller and heavier than some of the NFL’s all-time greats” and had no doubt he would to have been among the first. drafted running backs.

Clarett’s victory proved short-lived. In an opinion authored by future U.S. Supreme Court Justice Sonia Sotomayor, the Second Circuit concluded that the rule was sufficiently negotiated and that courts must abide by labor and management agreements.

Although Clarett, by rule, could not join the NFL and become a member of the NFLPA, the Second Circuit nevertheless reasoned that he could be governed by an employment agreement in which he played no role. For its part, the NFLPA effectively sided with the NFL, writing in a friendly brief that the rule primarily affects those in the bargaining unit. If Clarett had entered the NFL in 2004, he likely would have taken a veteran’s job and bumped into the last player drafted, known as Mr. Irrelevant.

Clarett asked the US Supreme Court to hear his case, but the Court refused. Clarett sat out a year and was drafted by the Denver Broncos in the third round of the 2005 NFL Draft. He suffered an injury in training camp and was cut. Clarett later ran into legal trouble and in 2006 pleaded guilty to charges of robbery and carrying a concealed weapon. Now he is a successful speaker, consultant and entrepreneur.

Friday’s symposium comes at a turning point in the sports industry. The line between professional and college sports continues to blur as NIL and recruiting recognition gain momentum. These changes invite questions about the logic of eligibility restrictions based on age or experience and whether it’s worth a college athlete’s time and expense to sue a professional league over an eligibility rule when they can now be paid in college.

Does the NBA need an eligibility rule when players can turn pro through its G League or at junior ages in other leagues? Consider that when he was 13, Dallas Mavericks star Luka Doncic signed with Real Madrid. Or take the WNBA, where American players must be at least 22 or a college graduate (or four years out of high school). Iowa senior Caitlin Clark, the presumed number one pick in the upcoming 2024 WNBA draft, would have been good enough to enter the WNBA earlier in her career. Teenage NWSL player Olivia Moultrie defied the league’s 18-year-old eligibility rule and effectively won.

There is much to discuss.

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