Clarett sues the nfl for the right to nfl draft.

[jayC]

Clarett sues NFL over draft eligibility rule
Posted: Tuesday September 23, 2003 11:52AM; Updated: Tuesday September 23, 2003 11:59AM





Maurice Clarett last suited up as a member of Ohio State's scout team.
AP
NEW YORK (AP) -- Suspended Ohio State tailback Maurice Clarett sued the NFL on Tuesday, asking a judge to throw out a league rule preventing players from entering the draft until they have been out of high school for three years.

Clarett, who rushed for 1,237 yards and led Ohio State to a national championship as a freshman last season, is not eligible for the draft until 2005 under current rules.

The lawsuit, filed in federal court in New York, claims the NFL rule violates antitrust law and harms competition by excluding players who are shy of the three-year requirement.

"The rule is a restraint of amateur athletes who were strangers to the collective bargaining process," the suit says.

The rule is separate from the NFL's current collective bargaining agreement with its players' union.

A message left for NFL spokesman Greg Aiello wasn't immediately returned Tuesday.

When NFL commissioner Paul Tagliabue was asked earlier this month if he thought the league could win such a lawsuit, he replied: "My feeling as commissioner is that we have a very strong case and that we'll win it."

Clarett was suspended from the Ohio State team for at least a year after an investigation determined he broke NCAA bylaws concerning benefits for athletes and lying to investigators.

He claims it was "almost certain" he would have been taken in the first round of the 2003 draft had he been eligible, and would have made millions of dollars in a contract and signing bonus.

Clarett's attorney, Alan C. Milstein, filed the suit a day after he met with NFL executives in Washington to discuss whether Clarett would be eligible for the 2004 draft.

Aiello characterized it as "an exchange of views" and said the league would get back to them. He id not immediately return a call for comment Tuesday.

The lawsuit asks U.S. District Judge Shira Scheindlin to throw out the rule and declare Clarett eligible for the 2004 draft -- or require the NFL to hold a special supplemental draft sooner.


Copyright 2003 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

[grbh]

We need to get OP's or Dooby's take on this.

At first thought I was wondering how they could keep Clarrett out, but then it occured to me that (I think) the NFL is a private organization and can set their own rules and regulation on admittance.

[Murphy3]

he's the kind of kid that needs to flip burgers at McDonald's a couple of years so that he can get life in perspective.

[dirno2000]

From my understanding it has to be collectively bargained, and right now the 3 yr limit is not spelled out in the CBA.

[madape]

If he wins, this is bad for the NFL and devastating to college football. I would hope a judge would see the necessity of and organization to make rules to protect the quality of its product.

[Dooby]

Originally posted by: dirno2000
From my understanding it has to be collectively bargained, and right now the 3 yr limit is not spelled out in the CBA.

No. Even if it were collectively bargained, he could still sue because the union doesn't represent his interests.

By the way, I think he's gonna lose.

[dirno2000]

So why do you think he'll lose?

And why is Stern trying to bargin with the union to get an age limit in the NBA if one lawsuit could strike it down?

[Murphy3]

i don't think you'll see alot of college sophomores rushing to declare early for the NFL draft.

clarett was obviously one of if not the best freshman running back college football. Mel Kiper has already said that Clarett is at best a second round pick while others have placed him in the late second round to the third round.

i don't think NFL teams will be as ready to jump at players that have only played a year or two of college football...you might see a few sophomores try and make the jump, but it won't be anything like the NBA IMO

[dirno2000]

I tend to agree, but all it'll take is one Sophmore or even Freshman to hit it big and it will be follow the leader.

Plus teenagers make bad decisions all the time. An agent will tell them they'll be drafted in a certain round. By the time they find out the truth it's too late. I'm suprised every year when college basketball players I've never heard of declare for the draft. Half of the don't make the NBA and they hurt the college game at the same time.

[grbh]

I hope he does lose Madape is right it would cripple college football.

Heck, if he wins I wouldn't be surprised to see the CFL become some sort of training ground for a lot of young stars. Get paid a little while trying to make the show.

[Dooby]

I think he'll lose because age disctimination suits are very convoluted. The law is pretty well settled on the higher-end that there can be no discrimination against older individuals, but the law is much more convoluted for people claiming they are discriminated against because of youth. A lot of folks think this is a slam dunk, but it is not.

Second, if this rule is overturned, kids will be leaving college in droves. Third rounders still get seven-figure bonus money. And while a pro team have a hard time justifying wasting a first rounder on a kid that won't play immediately, they can easily justify it on a third or fourth rounder. The spin that is flying around that this won't have much impact is just that-spin. Kids will be leaving college after 1 or 2 years in droves.

[OutletPass]

GRBH....I'll have to take a look at the actual lawsuit itself before commenting on its merits. There may be something more there than meets the eye...Dooby's earlier comments are quite correct...Clarett is not bound by the CBA.

As an interesting counterpoint, please see Spencer Haywood's recent comments about HIS lawsuit that opened up the NBA. In basic, he said that he never expected the results that occurred DECADES later and that he had some regret about bringing the case... So it's not so easy for me to "jump the gun" as Murph has. Murph may be right or wrong in what he says...I just don't think we can evaluate effect this far in advance...nor can we tell if this will really help Clarett himself...this case could EASILY get hung up in Federal Court for quite a while. Remember how the Haywood case wound its way around the Federal Courts ? Haywood, whose 1970 case set the precedent for allowing underage players into the NBA, won in the courtroom, lost on appeal and eventually received a ruling in his favor from the U.S. Supreme Court. That takes time. And also remember that Haywood was already playing in the ABA at the time of his lawsuit...having been granted "hardship" status in their draft. Haywood was already a Pro player at the time that he filed his suit, so it's not direct precedence in the Clarett suit.

And I'll say that Clarett, having been found to have violated 16 NCAA Rules, isn't exactly the best "test case".

Let me take a look at the Petition and I'll do my best to interpret and evaluate it for you.
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Here's the Haywood article for those interested in reading it:

Commentary: Haywood would advise Clarett to stay in school

By Adrian Wojnarowski
The Record (Bergen County, N.J)


Resistance will rise out of the NFL owners, but the times won't allow society to play as unruly as it did with Spencer Haywood. There won't be threats on Maurice Clarett's life, bottles thrown, fans taunting, and teammates ostracizing. Beyond the borders of football's old men, his challenge of NFL draft rules might be a popular move. "My struggle was life and death," former Sonics superstar Haywood said by phone from his Detroit home. "I had it as bad as Jackie Robinson — worse."
Nobody can deny Clarett, a standout tailback as an Ohio State freshman last season who has been suspended by the school, the right to make a living in America, his lawyer will contend. Alan Milstein's firm has undoubtedly dug up Haywood's Supreme Court victory over the NBA in 1971, insisting that the NFL has to lift its ban on college underclassmen less than three years removed from their high-school graduating class.

Through the years, Haywood has watched his own struggle and landmark legal case spiral away from his original mission: Allowing a college underclassman, a 1968 Olympic gold medalist and team most valuable player, an American Basketball Association rookie of the year, to enter the NBA draft. Haywood has watched unprepared young kids come tumbling into the pros, decaying the game, costing veterans jobs and, perhaps, setting a precedent for pro football. "If he had a choice, I would advise Clarett to stick it out (in school)," Haywood said. "First thing is, I think those guys will hit that kid so hard that they'll break him up. But I just think, don't tamper with everything now. Let football stay pure and clean. Don't let it come down like basketball. We're dropping in ratings and attendance. "People don't want to come out and see this stuff."

Haywood keeps a cordial relationship with NBA commissioner David Stern, the man whose office was against him three decades ago. Last weekend, the league brought Haywood to New York to speak to the young players at a rookie symposium. After Kobe Bryant and Kevin Garnett made the preps-to-pros leap with spectacular results, Haywood recalled, "I was going to schools talking about substance abuse and they were looking at me, saying, 'I'm going to be the first one to make it in the 11th grade, and then the 10th grade.' They had dropped the idea of education and were starting to just play ball. "I thought, 'Oh, God, what have I done? I created a monster.' "

There will be more dire consequences in football, where young players getting physically and mentally overwhelmed will suffer worse repercussions than in basketball. Clarett could be eligible for the 2005 draft, but Milstein met with NFL executives for about an hour yesterday in Washington, D.C., to discuss whether Clarett will be able to enter the 2004 draft. If the NFL ends up telling Clarett to get lost, a historic court challenge could come next. In this fight, the NFL union and ownership wisely have declared a united front. "(NFLPA director) Gene Upshaw is a man of integrity and they want to try to maintain the integrity of the league," Haywood said. "He doesn't want to have watered-down kids out there who are not qualified. The older NBA players are losing jobs because of these kids coming in, and someone should stand up and say to the union that we should look at the Haywood rule and realize that it wasn't for a high-school student. It wasn't meant for a teenager."

Everyone involved should ask this question: Name one way the NFL — football on every level, really — will benefit from Clarett clearing the way for kids to come into the game? "Clarett seems pretty tough to me, just like I was," Haywood said. "It's what comes after him that scares me. Just like what came after me."

[Drbio]

Even if Clarett wins, noone is going to draft him in the first round. The best he can hope for is second round money and the chance to prove himself. He hasn't played, he's been injured...blah blah blah. Lawrence Phillips anyone?

[OutletPass]

GRBH - There's still no copy (or full report) on the exact pleading that has been filed in this case, so my answer, for the moment, is limited. It appears, from all reports, to be a straightforward anti-trust case, but since lawyers usually plead alternate theories (in case one theory doesn't work) there COULD BE something interesting in the pleading that's important... if I find that thee is, I'll try to update you on that.

Here's the way that it sits right now:

Clarett, as an individual, is claiming that 1) The NFL is a monopoloy under the terms of the Sherman Act and the legislation/cases that originated with that Act and 2) That the NFL's draft rules are arbitrary and prevent him from earning a living. Clarett is alleging that he's entitled to a preliminary injunction because only the law (and not the facts) are in dispute. A preliminary injunction would allow this case to move much faster and the NFL would have to appeal. In essence, the NFL would be barred from imposing any limits on the draft (as they apply to Clarett) and they's have to appeal before the draft. Here's the idea - "Any attempt by competitors to restrain competition in the labor market is regarded by the courts with great suspicion, unless the restraint falls under a limited number of narrow exceptions, it will be treated as a violation of the antitrust laws." The odd thing is that Pro Football has never been found to be a statutory monoploly...simply a "de facto" monopoly.

A lot of ill informed people are comparing this case to the Spencer Haywood case or the Curt Flood case in baseball, but the facts and law are different, so it appears that w have a case of "first impression", it's the first time that an amateur has sued to overturn the draft system. The only real thing that they have in common is the fact that they were 'pioneers" in the terms of sports law.

The Rule that is being challenged was set up in 1990 and it's going to be an odd argument, if the NFL is to prevail. In order to fit under one of the anti-trust exemptions, they re going to have to show that the Rule was agreed to by the Player's association and that's a difficult one. When the draft rules were set up in 1990, the CBA DID include some language about the draft, but that language mainly pertained to the time of the draft, the number of rounds and such....what it DID not specifically include was the "eligibility requirements"....so watch for any testimony or evidence coming from the Player's association during the case...

The NFL, undoubtedly, is going to claim that the "eligibility requirements" aren't arbitrary and represent an attempt to not "water down" the value of their product...and that's why the limits are there. In order to win this, the NFL is going to have to show that 1) it's a part of the CBA and 2) They'd be economically harmed by allowing young players to play in the league. It's just one of those odd thngs in the law...if they can show that it was an agreement with the Player's association (who doesn't represent Clarett's interests, yet), the NFL has a much better chance of winning.

And it's going to be VERY interesting to me if the NCAA decides to file a "friend of the Court" brief in this case. I'm betting that they stay out...but it will get REAL INTERESTING if they stick their nose into this case, even on a small level.

If the NFL was truly a "private business" and not a monopoly, this wouldn't even be an issue. How many businesses do you know that require a college degree and a clean criminal history before they'll hire you ?

Two things: 1) Antitrust litigation is VERY complex and they'll be multiple arguments coming from both sides. 2) I've often felt that appellate Courts make their decisions, the cobble together the reasoning. So, honestly, I think that this case could go either way...although I'm inclined to think that Clarett wins...on the basis that the Players' Association wasn't a signatory to the "eligibility" requirements. Just remember that cases are often decided on precedent and not on what the world thinks is "common sense"

And don't be surprised to see the NFL argue the reasoning behind the following case (sorry but it is a bit long) - it deals with "implicit exemptions" which I think that the NFL is going to be forced to argue.

SUPREME COURT OF THE UNITED STATES


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No. 95-388


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ANTONY BROWN, et al., PETITIONERS v. PRO FOOTBALL, INC., dba WASHINGTON REDSKINS, et al.
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[June 20, 1996]

Justice Breyer delivered the opinion of the Court.


We can state the relevant facts briefly. In 1987, a collective bargaining agreement between the National Football League (NFL), a group of football clubs, and the NFL Players Association, a labor union, expired. The NFL and the Players Association began to negotiate a new contract. In March 1989, during the negotiations, the NFL adopted Resolution G 2, a plan that would permit each club to establish a "developmental squad" of up to six rookie or "first year" players who, as free agents, had failed to secure a position on a regular player roster. See App. 42. Squad members would play in practice games and sometimes in regular games as substitutes for injured players. Resolution G 2 provided that the club owners would pay all squad members the same weekly salary. The next month, April, the NFL presented the developmental squad plan to the Players Association. The NFL proposed a squad player salary of $1,000 per week. The Players Association disagreed. It insisted that the club owners give developmental squad players benefits and protections similar to those provided regular players, and that they leave individual squad members free to negotiate their own salaries.

Two months later, in June, negotiations on the issue of developmental squad salaries reached an impasse. The NFL then unilaterally implemented the developmental squad program by distributing to the clubs a uniform contract that embodied the terms of Resolution G 2 and the $1,000 proposed weekly salary. The League advised club owners that paying developmental squad players more or less than $1,000 per week would result in disciplinary action, including the loss of draft choices. In May 1990, 235 developmental squad players brought this antitrust suit against the League and its member clubs. The players claimed that their employers' agreement to pay them a $1,000 weekly salary violated the Sherman Act. See 15 U.S.C. § 1 (forbidding agreements in restraint of trade). The Federal District Court denied the employers' claim of exemption from the antitrust laws; it permitted the case to reach the jury; and it subsequently entered judgment on a jury treble damage award that exceeded $30 million. The NFL and its member clubs appealed.

The Court of Appeals (by a split 2 to 1 vote) reversed. The majority interpreted the labor laws as "waiv[ing] antitrust liability for restraints on competition imposed through the collective bargaining process, so long as such restraints operate primarily in a labor market characterized by collective bargaining." 50 F. 3d 1041, 1056 (CADC 1995). The Court held, consequently, that the club owners were immune from antitrust liability. We granted certiorari to review that determination. Although we do not interpret the exemption as broadly as did the Appeals Court, we nonetheless find the exemption applicable, and we affirm that Court's immunity conclusion.
The immunity before us rests upon what this Court has called the "nonstatutory" labor exemption from the antitrust laws. Connell Constr. Co. v. Plumbers, 421 U.S. 616, 622 (1975); see also Meat Cutters v. Jewel Tea Co., 381 U.S. 676 (1965); Mine Workers v. Pennington, 381 U.S. 657 (1965). The Court has implied this exemption from federal labor statutes, which set forth a national labor policy favoring free and private collective bargaining, see 29 U.S.C. § 151; Teamsters v. Oliver, 358 U.S. 283, 295 (1959); which require good faith bargaining over wages, hours and working conditions, see 29 U.S.C. §§ 158(a)(5), 158(d); NLRB v. Borg Warner Corp., 356 U.S. 342, 348-349 (1958); and which delegate related rulemaking and interpretive authority to the National Labor Relations Board, see 29 U.S.C. § 153; San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242-245 (1959).

This implicit exemption reflects both history and logic. As a matter of history, Congress intended the labor statutes (from which the Court has implied the exemption) in part to adopt the views of dissenting justices in Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921), which justices had urged the Court to interpret broadly a different explicit "statutory" labor exemption that Congress earlier (in 1914) had written directly into the antitrust laws. Id., at 483-488 (Brandeis, J., joined by Holmes and Clarke, JJ., dissenting) (interpreting §20 of the Clayton Act, 38 Stat. 738, 29 U.S.C. § 52); see also United States v. Hutcheson, 312 U.S. 219, 230-236 (1941) (discussing congressional reaction to Duplex). In the 1930's, when it subsequently enacted the labor statutes, Congress, as in 1914, hoped to prevent judicial use of antitrust law to resolve labor disputes--a kind of dispute normally inappropriate for antitrust law resolution. See Jewel Tea, supra, at 700-709 (opinion of Goldberg, J.); Marine Cooks v. Panama S. S. Co., 362 U.S. 365, 370, n. 7 (1960); A. Cox, Law and the National Labor Policy 3-8 (1960); cf. Duplex, supra, at 485 (Brandeis, J., dissenting) (explicit "statutory" labor exemption reflected view that "Congress, not the judges, was the body which should declare what public policy in regard to the industrial struggle demands"). The implicit ("nonstatutory") exemption interprets the labor statutes in accordance with this intent, namely, as limiting an antitrust court's authority to determine, in the area of industrial conflict, what is or is not a "reasonable" practice. It thereby substitutes legislative and administrative labor related determinations for judicial antitrust related determinations as to the appropriate legal limits of industrial conflict. See Jewel Tea, supra, at 709-710.

As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition restricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. See Connell, supra, at 622 (federal labor law's "goals" could "never" be achieved if ordinary anticompetitive effects of collective bargaining were held to violate the antitrust laws); Jewel Tea, supra, at 711 (national labor law scheme would be "virtually destroyed" by the routine imposition of antitrust penalties upon parties engaged in collective bargaining); Pennington, supra, at 665 (implicit exemption necessary to harmonize Sherman Act with "national policy . . . of promoting `the peaceful settlement of industrial disputes by subjecting labor management controversies to the mediatory influence of negotiation' ") (quoting Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 211 (1964)).

The petitioners and their supporters concede, as they must, the legal existence of the exemption we have described. They also concede that, where its application is necessary to make the statutorily authorized collective bargaining process work as Congress intended, the exemption must apply both to employers and to employees. Accord Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm'n, 390 U.S. 261, 287, n. 5 (1968) (Harlan, J., concurring); Jewel Tea, supra, at 729-732, 735 (opinion of Goldberg, J.); Brief for AFL CIO as Amicus Curiae in Associated Gen. Contractors of Cal., Inc. v. Carpenters, O. T. 1981, No. 81-334, pp. 16-17; see also P. Areeda & H. Hovenkamp, Antitrust Law ¶229'd (1995 Supp.) (collecting recent circuit court cases); cf. H. A. Artists & Associates, Inc. v. Actors' Equity Assn., 451 U.S. 704, 717, n. 20 (1981) (explicit "statutory" exemption applies only to "bona fide labor organization[s]"). Nor does the dissent take issue with these basic principles. See post, at 3-4. Consequently, the question before us is one of determining the exemption's scope: Does it apply to an agreement among several employers bargaining together to implement after impasse the terms of their last best good faith wage offer? We assume that such conduct, as practiced in this case, is unobjectionable as a matter of labor law and policy. On that assumption, we conclude that the exemption applies.

Labor law itself regulates directly, and considerably, the kind of behavior here at issue--the postimpasse imposition of a proposed employment term concerning a mandatory subject of bargaining. Both the Board and the courts have held that, after impasse, labor law permits employers unilaterally to implement changes in preexisting conditions, but only insofar as the new terms meet carefully circumscribed conditions. For example, the new terms must be "reasonably comprehended" within the employer's preimpasse proposals (typically the last rejected proposals), lest by imposing more or less favorable terms, the employer unfairly undermined the union's status. Storer Communications, Inc., 294 N. L. R. B. 1056, 1090 (1989); Taft Broadcasting Co., 163 N. L. R. B. 475, 478 (1967), enf'd, 395 F. 2d 622 (CADC 1968); see also NLRB v. Katz, 369 U.S. 736, 745, and n. 12 (1962). The collective bargaining proceeding itself must be free of any unfair labor practice, such as an employer's failure to have bargained in good faith. See Akron Novelty Mfg. Co., 224 N. L. R. B. 998, 1002 (1976) (where employer has not bargained in good faith, it may not implement a term of employment); 1 P. Hardin, The Developing Labor Law 697 (3d ed. 1992) (same). These regulations reflect the fact that impasse and an accompanying implementation of proposals constitute an integral part of the bargaining process. See Bonanno Linen Serv., Inc., 243 N. L. R. B. 1093, 1094 (1979) (describing use of impasse as a bargaining tactic), enf'd, 630 F. 2d 25 (CA1 1980), aff'd, 454 U.S. 404 (1982); Colorado Ute Elec. Assn., 295 N. L. R. B. 607, 609 (1989), enf. denied on other grounds, 939 F. 2d 1392 (CA10 1991), cert. denied, 504 U.S. 955 (1992).

Although the case law we have cited focuses upon bargaining by a single employer, no one here has argued that labor law does, or should, treat multiemployer bargaining differently in this respect. Indeed, Board and court decisions suggest that the joint implementation of proposed terms after impasse is a familiar practice in the context of multiemployer bargaining. See, e.g., El Cerrito Mill & Lumber Co., 316 N. L. R. B. 1005 (1995); Paramount Liquor Co., 307 N. L. R. B. 676, 686 (1992); NKS Distributors, Inc., 304 N. L. R. B. 338, 340-341 (1991), rev'd, 50 F. 3d 18 (CA9 1995); Sage Development Co., 301 N. L. R. B. 1173, 1175 (1991); Walker Constr. Co., 297 N. L. R. B. 746, 748 (1990), enf'd, 928 F. 2d 695 (CA5 1991); Food Employers Council, Inc., 293 N. L. R. B. 333, 334, 345-346 (1989); Tile, Terazzo & Marble Contractors Assn., 287 N. L. R. B. 769, 772 (1987), enf'd, 935 F. 2d 1249 (CA11 1991), cert. denied, 502 U.S. 1031 (1992); Salinas Valley Ford Sales, Inc., 279 N. L. R. B. 679, 686, 690 (1986); Carlsen Porsche Audi, Inc., 266 N. L. R. B. 141, 152-153 (1983); Typographic Service Co., 238 N. L. R. B. 1565 (1978); United Fire Proof Warehouse Co. v. NLRB, 356 F. 2d 494, 498-499 (CA7 1966); Cuyamaca Meats, Inc. v. Butchers' and Food Employers' Pension Trust Fund, 638 F. Supp. 885, 887 (SD Cal. 1986), aff'd, 827 F. 2d 491 (CA9 1987), cert. denied, 485 U.S. 1008 (1988). We proceed on that assumption.

Multiemployer bargaining itself is a well established, important, pervasive method of collective bargaining, offering advantages to both management and labor. See Appendix (multiemployer bargaining accounts for more than 40% of major collective bargaining agreements, and is used in such industries as construction, transportation, retail trade, clothing manufacture, and real estate, as well as professional sports); NLRB v. Truck Drivers, 353 U.S. 87, 95 (1957) (Buffalo Linen) (Congress saw multiemployer bargaining as "a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining"); Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404, 409, n. 3 (1982) (Bonanno Linen) (multiemployer bargaining benefits both management and labor, by saving bargaining resources, by encouraging development of industry wide worker benefits programs that smaller employers could not otherwise afford, and by inhibiting employer competition at the workers' expense); Brief for Respondent NLRB in Bonanno Linen, O. T. 1981, No. 80-931, p. 10, n. 7 (same); General Subcommittee on Labor, House Committee on Education and Labor, Multiemployer Association Bargaining and its Impact on the Collective Bargaining Process, 88th Cong., 2d Sess. 10-19, 32-33 (Comm. Print 1964) (same); see also C. Bonnett, Employers' Associations in the United States: A Study of Typical Associations (1922) (history). The upshot is that the practice at issue here plays a significant role in a collective bargaining process that itself comprises an important part of the Nation's industrial relations system.

In these circumstances, to subject the practice to antitrust law is to require antitrust courts to answer a host of important practical questions about how collective bargaining over wages, hours and working conditions is to proceed--the very result that the implicit labor exemption seeks to avoid. And it is to place in jeopardy some of the potentially beneficial labor related effects that multiemployer bargaining can achieve. That is because unlike labor law, which sometimes welcomes anticompetitive agreements conducive to industrial harmony, antitrust law forbids all agreements among competitors (such as competing employers) that unreasonably lessen competition among or between them in virtually any respect whatsoever. See, e.g., Paramount Famous Lasky Corp. v. United States, 282 U.S. 30 (1930) (agreement to insert arbitration provisions in motion picture licensing contracts). Antitrust law also sometimes permits judges or juries to premise antitrust liability upon little more than uniform behavior among competitors, preceded by conversations implying that later uniformity might prove desirable, see, e.g., United States v. General Motors Corp., 384 U.S. 127, 142-143 (1966); United States v. Foley, 598 F. 2d 1323, 1331" 1332 (CA4 1979), cert. denied, 444 U.S. 1043 (1980), or accompanied by other conduct that in context suggests that each competitor failed to make an independent decision, see, e.g., American Tobacco Co. v. United States, 328 U.S. 781, 809-810 (1946); United States v. Masonite Corp., 316 U.S. 265, 275 (1942); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226-227 (1939). See generally 6 P. Areeda, Antitrust Law ¶¶1416-1427 (1986); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962).

If the antitrust laws apply, what are employers to do once impasse is reached? If all impose terms similar to their last joint offer, they invite an antitrust action premised upon identical behavior (along with prior or accompanying conversations) as tending to show a common understanding or agreement. If any, or all, of them individually impose terms that differ significantly from that offer, they invite an unfair labor practice charge. Indeed, how can employers safely discuss their offers together even before a bargaining impasse occurs? A preimpasse discussion about, say, the practical advantages or disadvantages of a particular proposal, invites a later antitrust claim that they agreed to limit the kinds of action each would later take should an impasse occur. The same is true of postimpasse discussions aimed at renewed negotiations with the union. Nor would adherence to the terms of an expired collective bargaining agreement eliminate a potentially plausible antitrust claim charging that they had "conspired" or tacitly "agreed" to do so, particularly if maintaining the status quo were not in the immediate economic self interest of some. Cf. Interstate Circuit, supra, at 222-223; 6 Areeda, supra, at ¶1425. All this is to say that to permit antitrust liability here threatens to introduce instability and uncertainty into the collective bargaining process, for antitrust law often forbids or discourages the kinds of joint discussions and behavior that the collective bargaining process invites or requires.

We do not see any obvious answer to this problem. We recognize, as the Government suggests, that, in principle, antitrust courts might themselves try to evaluate particular kinds of employer understandings, finding them "reasonable" (hence lawful) where justified by collective bargaining necessity. But any such evaluation means a web of detailed rules spun by many different nonexpert antitrust judges and juries, not a set of labor rules enforced by a single expert administrative body, namely the Labor Board. The labor laws give the Board, not antitrust courts, primary responsibility for policing the collective bargaining process. And one of their objectives was to take from antitrust courts the authority to determine, through application of the antitrust laws, what is socially or economically desirable collective bargaining policy. See supra, at 3-4; see also Jewel Tea, 381 U. S., at 716-719 (opinion of Goldberg, J.).


Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory.


Petitioners claim that the implicit exemption applies only to labor management agreements--a limitation that they deduce from caselaw language, see, e.g., Connell, 421 U. S., at 622 (exemption for "some union employer agreements") (emphasis added), and from a proposed principle--that the exemption must rest upon labor management consent. The language, however, reflects only the fact that the cases previously before the Court involved collective bargaining agreements, see Connell, supra, at 619-620; Pennington, 381 U. S., at 660; Jewel Tea, supra, at 679-680; the language does not reflect the exemption's rationale. See 50 F. 3d, at 1050.

Nor do we see how an exemption limited by petitioners' principle of labor management consent could work. One cannot mean the principle literally--that the exemption applies only to understandings embodied in a collective bargaining agreement--for the collective bargaining process may take place before the making of any agreement or after an agreement has expired. Yet a multiemployer bargaining process itself necessarily involves many procedural and substantive understandings among participating employers as well as with the union. Petitioners cannot rescue their principle by claiming that the exemption applies only insofar as both labor and management consent to those understandings. Often labor will not (and should not) consent to certain common bargaining positions that employers intend to maintain. Cf. Areeda & Hovenkamp, Antitrust Law, at ¶229'd, p. 277 (Supp. 1995) ("[J]oint employer preparation and bargaining in the context of a formal multi employer bargaining unit is clearly exempt"). Similarly, labor need not consent to certain tactics that this Court has approved as part of the multiemployer bargaining process, such as unit wide lockouts and the use of temporary replacements. See NLRB v. Brown, 380 U.S. 278, 284 (1965); Buffalo Linen, 353 U. S., at 97.

Petitioners cannot save their consent principle by weakening it, as by requiring union consent only to the multiemployer bargaining process itself. This general consent is automatically present whenever multiemployer bargaining takes place. See Hi Way Billboards, Inc., 206 N. L. R. B. 22 (1973) (multiemployer unit "based on consent" and "established by an unequivocal agreement by the parties"), enf. denied on other grounds, 500 F. 2d 181 (CA5 1974); Weyerhaeuser Co., 166 N. L. R. B. 299, 299-300 (1967). As so weakened, the principle cannot help decide which related practices are, or are not, subject to antitrust immunity. The Solicitor General argues that the exemption should terminate at the point of impasse. After impasse, he says, "employers no longer have a duty under the labor laws to maintain the status quo," and "are free as a matter of labor law to negotiate individual arrangements on an interim basis with the union." Brief for United States et al. as Amici Curiae 17.

Employers, however, are not completely free at impasse to act independently. The multiemployer bargaining unit ordinarily remains intact; individual employers cannot withdraw. Bonanno Linen, 454 U. S., at 410-413. The duty to bargain survives; employers must stand ready to resume collective bargaining. See, e.g., Worldwide Detective Bureau, 296 N. L. R. B. 148, 155 (1989); Hi Way Billboards, Inc., 206 N. L. R. B., at 23. And individual employers can negotiate individual interim agreements with the union only insofar as those agreements are consistent with "the duty to abide by the results of group bargaining." Bonanno Linen, supra, at 416. Regardless, the absence of a legal "duty" to act jointly is not determinative. This Court has implied antitrust immunities that extend beyond statutorily required joint action to joint action that a statute-expressly or impliedly allows or assumes must also be immune." 1 P. Areeda & D. Turner, Antitrust Law ¶224, p. 145 (1978); see, e.g., Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 682-691 (1975) (immunizing application of joint rule that securities law permitted, but did not require); United States v. National Assn. of Securities Dealers, Inc., 422 U.S. 694, 720-730 (1975) (same).

More importantly, the simple "impasse" line would not solve the basic problem we have described above. Supra, at 9-10. Labor law permits employers, after impasse, to engage in considerable joint behavior, including joint lockouts and replacement hiring. See, e.g., Brown, supra, at 289 (hiring of temporary replacement workers after lockout was "reasonably adapted to the achievement of a legitimate end--preserving the integrity of the multiemployer bargaining unit"). Indeed, as a general matter, labor law often limits employers to four options at impasse: (1) maintain the status quo, (2) implement their last offer, (3) lock out their workers (and either shut down or hire temporary replacements), or (4) negotiate separate interim agreements with the union. See generally 1 Hardin, The Developing Labor Law, at 516-520, 696-699. What is to happen if the parties cannot reach an interim agreement? The other alternatives are limited. Uniform employer conduct is likely. Uniformity--at least when accompanied by discussion of the matter--invites antitrust attack. And such attack would ask antitrust courts to decide the lawfulness of activities intimately related to the bargaining process.

The problem is aggravated by the fact that "impasse" is often temporary, see Bonanno Linen, supra, at 412 (approving Board's view of impasse as "a recurring feature in the bargaining process . . . a temporary deadlock or hiatus in negotiations which in almost all cases is eventually broken, through either a change of mind or the application of economic force ") (internal quotation marks omitted); W. Simkin & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, "precipitate an impasse"); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations.

The Solicitor General responds with suggestions for softening an "impasse" rule by extending the exemption after impasse "for such time as would be reasonable in the circumstances" for employers to consult with counsel, confirm that impasse has occurred, and adjust their business operations, Brief for United States et al. as Amici Curiae 24; by reestablishing the exemption once there is a "resumption of good faith bargaining," id., at 18, n. 5; and by looking to antitrust law's "rule of reason" to shield--"in some circumstances"--such joint actions as the unit wide lockout or the concerted maintenance of previously established joint benefit or retirement plans, ibid. But even as so modified, the impasse related rule creates an exemption that can evaporate in the middle of the bargaining process, leaving later antitrust courts free to second guess the parties' bargaining decisions and consequently forcing them to choose their collective bargaining responses in light of what they predict or fear that antitrust courts, not labor law administrators, will eventually decide. Cf. Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745 v. NLRB, 355 F. 2d 842, 844-845 (CADC 1966) ("The problem of deciding when further bargaining . . . is futile is often difficult for the bargainers and is necessarily so for the Board. But in the whole complex of industrial relations few issues are less suited to appellate judicial appraisal . . . or better suited to the expert experience of a board which deals constantly with such problems").


Petitioners and their supporters argue in the alternative for a rule that would exempt postimpasse agreement about bargaining "tactics," but not postimpasse agreement about substantive "terms," from the reach of antitrust. See 50 F. 3d, at 1066-1069 (Wald, J., dissenting). They recognize, however, that both the Board and the courts have said that employers can, and often do, employ the imposition of "terms" as a bargaining "tactic." See, e.g., American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965); Colorado Ute Elec. Assn., Inc. v. NLRB, 939 F. 2d 1392, 1404 (CA10 1991), cert. denied, 504 U.S. 955 (1992); Circuit Wise, Inc., 309 N. L. R. B. 905, 921 (1992); Hi Way Billboards, 206 N. L. R. B., at 23; Bonanno Linen, 243 N. L. R. B., at 1094. This concession as to joint "tactical" implementation would turn the presence of an antitrust exemption upon a determination of the employers' primary purpose or motive. See, e.g., 50 F. 3d, at 1069 (Wald, J., dissenting). But to ask antitrust courts, insulated from the bargaining process, to investigate an employer group's subjective motive is to ask them to conduct an inquiry often more amorphous than those we have previously discussed. And, in our view, a labor/antitrust line drawn on such a basis would too often raise the same related (previously discussed) problems. See supra, at 4-5, 9-10; Jewel Tea, 381 U. S., at 716 (opinion of Goldberg, J.) (expressing concern about antitrust judges "roaming at large" through the bargaining process).


The petitioners make several other arguments. They point, for example, to cases holding applicable, in collective bargaining contexts, general "backdrop" statutes, such as a state statute requiring a plant closing employer to make employee severance payments, Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987), and a state statute mandating certain minimum health benefits, Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985). Those statutes, however, " `neither encourage[d] nor discourage[d] the collective bargaining processes that are the subject of the [federal labor laws].' " Fort Halifax, supra, at 21 (quoting Metropolitan Life, supra, at 755). Neither did those statutes come accompanied with antitrust's labor related history. Cf. Oliver, 358 U. S., at 295-297 (state antitrust law interferes with collective bargaining and is not applicable to labor management agreement).

Petitioners also say that irrespective of how the labor exemption applies elsewhere to multiemployer collective bargaining, professional sports is "special." We can understand how professional sports may be special in terms of, say, interest, excitement, or concern. But we do not understand how they are special in respect to labor law's antitrust exemption. We concede that the clubs that make up a professional sports league are not completely independent economic competitors, as they depend upon a degree of cooperation for economic survival. National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U.S. 85, 101-102 (1984); App. 110-115 (declaration of NFL Commissioner). In the present context, however, that circumstance makes the league more like a single bargaining employer, which analogy seems irrelevant to the legal issue before us.

We also concede that football players often have special individual talents, and, unlike many unionized workers, they often negotiate their pay individually with their employers. See post, at 5 (Stevens, J., dissenting). But this characteristic seems simply a feature, like so many others, that might give employees (or employers) more (or less) bargaining power, that might lead some (or all) of them to favor a particular kind of bargaining, or that might lead to certain demands at the bargaining table. We do not see how it could make a critical legal difference in determining the underlying framework in which bargaining is to take place. See generally Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971). Indeed, it would be odd to fashion an antitrust exemption that gave additional advantages to professional football players (by virtue of their superior bargaining power) that transport workers, coal miners, or meat packers would not enjoy.

The dissent points to other "unique features" of the parties' collective bargaining relationship, which, in the dissent's view, make the case "atypical." Post, at 5. It says, for example, that the employers imposed the restraint simply to enforce compliance with league wide rules, and that the bargaining consisted of nothing more than the sending of a "notice," and therefore amounted only to "so called" bargaining. Post, at 6-7. Insofar as these features underlie an argument for looking to the employers' true purpose, we have already discussed them. See supra, at 15-16. Insofar as they suggest that there was not a genuine impasse, they fight the basic assumption upon which the District Court, the Court of Appeals, the petitioners, and this Court, rest the case. See 782 F. Supp. 125, 134 (DC 1991); 50 F. 3d, at 1056-1057; Pet. for Cert. i. Ultimately, we cannot find a satisfactory basis for distinguishing football players from other organized workers. We therefore conclude that all must abide by the same legal rules.


* * *

For these reasons, we hold that the implicit ("nonstatutory") antitrust exemption applies to the employer conduct at issue here. That conduct took place during and immediately after a collective bargaining negotiation. It grew out of, and was directly related to, the lawful operation of the bargaining process. It involved a matter that the parties were required to negotiate collectively. And it concerned only the parties to the collective bargaining relationship.

Our holding is not intended to insulate from antitrust review every joint imposition of terms by employers, for an agreement among employers could be sufficiently distant in time and in circumstances from the collective bargaining process that a rule permitting antitrust intervention would not significantly interfere with that process. See, e.g., 50 F. 3d, at 1057 (suggesting that exemption lasts until collapse of the collective bargaining relationship, as evidenced by decertification of the union); El Cerrito Mill & Lumber Co., 316 N. L. R. B., at 1006-1007 (suggesting that "extremely long" impasse, accompanied by "instability" or "defunctness" of multiemployer unit, might justify union withdrawal from group bargaining). We need not decide in this case whether, or where, within these extreme outer boundaries to draw that line. Nor would it be appropriate forus to do so without the detailed views of the Board, to whose "specialized judgment" Congress "intended to leave" many of the "inevitable questions concerning multiemployer bargaining bound to arise in the future." Buffalo Linen, 353 U. S., at 96 (internal quotation marks omitted); see also Jewel Tea, 381 U. S., at 710, n. 18.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

-----------------------------------------------------------------------------------------------------------------------------------------------------------------

I don't see this as an age discrimination case, as Dooby does. Maybe he's seen something in the Pleadings or somewhere else that I haven't. If it were just an age discrimination case, I'd tend to agree with him. Clarett would probably lose if that were the only argument being made. Dooby is quite correct in saying that Clarett COULD sue, even if the Player's association doesn't represent his interests...but going one step further, it's a well established exception to antitrust claims when there's a CBA in place that both the NFL and the Players' Association have signed off on. And that's going to be a real question in this case.

I do think that if Clarett wins, it hurts both the NFL and the NCAA....maybe not immediately, but over time. We're over 30 years past the Spencer Haywood decision and I think that it's pretty clear that both the NBA and college basketball have been watered down substantially. On the other hand, I'm not the biggest proponent of the sham that is college athletics....remember that both SheWebb and Clarett took "illegal" payments....as did Patrick Dennehy at Baylor...and the football players at SMU who brought on the death penalty and hundreds of other NCAA players could be nailed for the same thing. Hell, back in the day, I was given a pretty large sum of cash, on a recruiting trip, in a white envelope as "entertainment" money. And I saw it happen at Notre Dame when I went to school there. I'm not trying to throw up an excuse, but colleges make a TON of money (far in excess of the cost of a scholarship) off of their athletes.

Reform is going to happen....maybe not in my lifetime, but in the Sock's for sure.

[Dooby]

I don't know. Is the NFL a monopoly? There is Arena Ball; Arena II. The Canadian football league used to have teams in the USA; the XFL; the USFL. I guess they are. Although an argument can be made.

Case that immediately comes to mind is the Tarkanian case against the NCAA that went to the US Supreme Court (Tarkanian lost). That was a proc. due process claim if I recall, but basically Tark was suing because the NCAA wouldn't let him work. I guess it isn't that applicable, but I think it is instructive of where the court might be headed.

[OutletPass]

Dooby...time after time, antitrust law has been applied to them...so I guess that they are. A better, but not conclusary, argument could be made if the USFL or XFL or whomever was in operation. But it's why I posted the Brown case...simply to show that they are considered to be subject to antitrust law. And they always have been...there's quite a bit of case history on the subject.

You are right about the Tarkanian case...it was brought on tortious interference with an employment contract and included a due process claim. Something like that may well have been plead in the Clarett case, but I'm not seeing it. That's why a look at the actual pleadings would help me a lot...there could be a link to the Tarkanian argument but I'm not seeing any connection whatsoever.

Dirno2000 hit the nail right on the head in his post....if the Player's association had specifically signed off on the 3 yr. rule, the NFL would be in great shape...now they're going to be forced into the position of claiming that the PA's agreement was implied, thus creating an exemption (again implied) from antitrust law. And that's EXACTLY why Stern has been trying to get the NBA PA to sign off on one....Case law from many sports (baseball comes to mind first) creates an antitrust exemption for the amateur draft when the league and the Player's Association Specifically include it in their CBA.

[OutletPass]

just found this Q & A on ESPN's website...I think that it explains things pretty well...and will give you an idea of why I posted the full text of the Brown v. NFL decision...Happy reading !!

September 24, 10:59 AM ET
By Darren Rovell
ESPN.com

With the help of Stephen Ross, professor of law at the University of Illinois and author of "Principles of Antitrust Law," and Gary Roberts, director of sports law program at Tulane Law School, here is a guide on how Clarett v. NFL is expected to proceed.

What happens now?

In the lawsuit, Clarett's representation asks for an injunction that would allow him to be eligible for a supplemental draft to take place within 10 days of the order or be eligible for the 2004 NFL draft. Clarett currently is not eligible because of the rule in the NFL bylaws that prohibits any player who has not completed three college seasons or has not been removed from high school for three years from entering the draft. An injunction would allow him to proceed with his professional career, regardless of the timeline for a trial.

When would an injunction hearing take place?

It depends on the wishes of the judge and the court schedule, but Ross and Roberts say it could take place within months and would be expected to be heard long before April 2004, when the draft takes place.

How will an injunction hearing work?

Clarett's lawyer, Alan Milstein, and the NFL counsel will explain their sides to the argument. In the case of most preliminary injunctions like this, there is little discovery process and it is highly unlikely that there will be any depositions, the legal experts said.

What are the grounds for Clarett to receive an injunction?

There are four main points that the judge has to answer:

Will Clarett suffer irreparable damage if his situation is not remedied immediately?
Does Clarett have a good case? Not necessarily a winning one, but a strong one.
Balance of Harms -- Is Clarett more harmed by this rule than the NFL is?
Would the injunction be in the best interest of the public good?


Since there is no jury required for an injunction, the judge wields a great amount of power when answering these questions.

What does Clarett have going for him for the injunction or the case?

As the lawsuit points out, the NFL is the only major professional sport league that restricts the drafting of players to the extent that the NFL does. Clarett would be eligible for drafts in Major League Baseball, the NBA and NHL. In the lawsuit, Clarett's attorneys contend that the rule conveniently protects a free farm system for NFL teams, prohibiting players from joining the league for three seasons to ensure that they are mature enough for the professional game. All of the above, Clarett's representation claims, is not a legitimate business purpose.

Will Clarett have sympathy on his side?

This is an intriguing question. Clarett is a college student going up against the multi-billion-dollar behemoth that is the NFL. But Clarett is also in this predicament partly because he violated rules that made him ineligible to play at Ohio State this year, Roberts points out. "Clarett is essentially in court because he broke the rules and now he is asking a judge to bend them," Roberts says. "I wouldn't think a judge in this case would be too sympathetic towards finding loopholes in the legal system for him."

What is the greatest obstacle to Clarett being granted the preliminary injunction or winning the case?

Milstein told ESPN.com that because the draft eligibility rule is not included in the Collective Bargaining Agreement, and that the rule is not a product of negotiation between the league and the Players' Association, the NFL's draft eligibility rule is not exempt from antitrust laws. But that seems up for debate. In Brown v. Pro Football Inc. (1996), eight Supreme Court justices decided that anything that is a mandatory subject of bargaining, which would include the NFL draft or any terms of employment, are immune from an antitrust attack. The fact that Clarett is not a member of the NFL Players' Association does not matter, Roberts said. Roberts said Clarett might be subject to terms of the Collective Bargaining Agreement, as evidenced from Wood v. NBA (1987). Milstein points out that Leon Wood was drafted and therefore became a de facto member of the NBA Players Association. Clarett, he says, is different because he is not eligible to be drafted. If the judge decides that the draft eligibility rule is exempt from antitrust law, both Roberts and Ross expect that Clarett likely will not be granted the injunction because it would be deemed that he is not likely to win the case.

Whether Clarett will suffer irreparable harm by being drafted in 2005 as opposed to 2004 also could be a subject of debate. If he slips in the draft as a result of his inactivity this year, that certainly could hurt him financially. But, at least at this point, Clarett can still play for the Ohio State Buckeyes in 2004 and then enter the 2005 NFL draft, Roberts says. Irreparable harm also has to go beyond monetary damages, since Clarett could recover millions of dollars -- especially since antitrust damages are trebled -- if he ultimately wins the suit, Ross says. The NFL could argue here that it is protecting Clarett from suffering irreparable harm because he is not physically ready for the league.

An interesting point: The lawsuit says that Clarett should be compensated for not being eligible for the 2003 NFL draft. In April, when the draft took place, Clarett wavered, making comments alluding to the possibility of going to the NFL as well as returning to the Buckeyes.

What happens once the ruling on the injunction is made?

If Clarett wins, the NFL likely will appeal the decision. If the injunction is upheld on appeal, it is likely that neither side will pursue the case because a trial would be moot -- Clarett would be eligible for a supplemental draft or the 2004 NFL draft. One of the only reasons why Clarett might want to see a trial through to its conclusion would be to recover his attorney fees. If Clarett loses, the NFL could ask the judge for a summary judgment on the case, Roberts says. If the judge sides with the NFL, a trial likely will not take place. If the judge sides with Clarett, the suit could proceed.

If Clarett wins the injunction and does not proceed with the case, will that injunction serve as a good precedent to those players who seek to challenge the draft eligibility rule?

Since the injunction is only from one district judge, it is technically not binding on anyone else. "A judgment from a district judge after a full trial would have modestly greater weight, but again it's only a district judge," Ross says. "Antitrust merits are likely to be reached on appeal after a trial."

[jayC]

Tuesday, September 23, 2003
Updated: September 24, 10:59 AM ET


By Darren Rovell
ESPN.com

With the help of Stephen Ross, professor of law at the University of Illinois and author of "Principles of Antitrust Law," and Gary Roberts, director of sports law program at Tulane Law School, here is a guide on how Clarett v. NFL is expected to proceed.

What happens now?
In the lawsuit, Clarett's representation asks for an injunction that would allow him to be eligible for a supplemental draft to take place within 10 days of the order or be eligible for the 2004 NFL draft. Clarett currently is not eligible because of the rule in the NFL bylaws that prohibits any player who has not completed three college seasons or has not been removed from high school for three years from entering the draft. An injunction would allow him to proceed with his professional career, regardless of the timeline for a trial.

When would an injunction hearing take place?
It depends on the wishes of the judge and the court schedule, but Ross and Roberts say it could take place within months and would be expected to be heard long before April 2004, when the draft takes place.

How will an injunction hearing work?
Clarett's lawyer, Alan Milstein, and the NFL counsel will explain their sides to the argument. In the case of most preliminary injunctions like this, there is little discovery process and it is highly unlikely that there will be any depositions, the legal experts said.

What are the grounds for Clarett to receive an injunction?
There are four main points that the judge has to answer:


Will Clarett suffer irreparable damage if his situation is not remedied immediately?

Does Clarett have a good case? Not necessarily a winning one, but a strong one.

Balance of Harms -- Is Clarett more harmed by this rule than the NFL is?

Would the injunction be in the best interest of the public good?


Since there is no jury required for an injunction, the judge wields a great amount of power when answering these questions.

What does Clarett have going for him for the injunction or the case?
As the lawsuit points out, the NFL is the only major professional sport league that restricts the drafting of players to the extent that the NFL does. Clarett would be eligible for drafts in Major League Baseball, the NBA and NHL. In the lawsuit, Clarett's attorneys contend that the rule conveniently protects a free farm system for NFL teams, prohibiting players from joining the league for three seasons to ensure that they are mature enough for the professional game. All of the above, Clarett's representation claims, is not a legitimate business purpose.

Will Clarett have sympathy on his side?
This is an intriguing question. Clarett is a college student going up against the multi-billion-dollar behemoth that is the NFL. But Clarett is also in this predicament partly because he violated rules that made him ineligible to play at Ohio State this year, Roberts points out.

"Clarett is essentially in court because he broke the rules and now he is asking a judge to bend them," Roberts says. "I wouldn't think a judge in this case would be too sympathetic towards finding loopholes in the legal system for him."

What is the greatest obstacle to Clarett being granted the preliminary injunction or winning the case?
Milstein told ESPN.com that because the draft eligibility rule is not included in the Collective Bargaining Agreement, and that the rule is not a product of negotiation between the league and the Players' Association, the NFL's draft eligibility rule is not exempt from antitrust laws. But that seems up for debate. In Brown v. Pro Football Inc. (1996), eight Supreme Court justices decided that anything that is a mandatory subject of bargaining, which would include the NFL draft or any terms of employment, are immune from an antitrust attack. The fact that Clarett is not a member of the NFL Players' Association does not matter, Roberts said. Roberts said Clarett might be subject to terms of the Collective Bargaining Agreement, as evidenced from Wood v. NBA (1987). Milstein points out that Leon Wood was drafted and therefore became a de facto member of the NBA Players Association. Clarett, he says, is different because he is not eligible to be drafted.

If the judge decides that the draft eligibility rule is exempt from antitrust law, both Roberts and Ross expect that Clarett likely will not be granted the injunction because it would be deemed that he is not likely to win the case.

Whether Clarett will suffer irreparable harm by being drafted in 2005 as opposed to 2004 also could be a subject of debate. If he slips in the draft as a result of his inactivity this year, that certainly could hurt him financially. But, at least at this point, Clarett can still play for the Ohio State Buckeyes in 2004 and then enter the 2005 NFL draft, Roberts says.

Irreparable harm also has to go beyond monetary damages, since Clarett could recover millions of dollars -- especially since antitrust damages are trebled -- if he ultimately wins the suit, Ross says. The NFL could argue here that it is protecting Clarett from suffering irreparable harm because he is not physically ready for the league. An interesting point: The lawsuit says that Clarett should be compensated for not being eligible for the 2003 NFL draft. In April, when the draft took place, Clarett wavered, making comments alluding to the possibility of going to the NFL as well as returning to the Buckeyes.

What happens once the ruling on the injunction is made?
If Clarett wins, the NFL likely will appeal the decision. If the injunction is upheld on appeal, it is likely that neither side will pursue the case because a trial would be moot -- Clarett would be eligible for a supplemental draft or the 2004 NFL draft. One of the only reasons why Clarett might want to see a trial through to its conclusion would be to recover his attorney fees. If Clarett loses, the NFL could ask the judge for a summary judgment on the case, Roberts says. If the judge sides with the NFL, a trial likely will not take place. If the judge sides with Clarett, the suit could proceed.

If Clarett wins the injunction and does not proceed with the case, will that injunction serve as a good precedent to those players who seek to challenge the draft eligibility rule?
Since the injunction is only from one district judge, it is technically not binding on anyone else. "A judgment from a district judge after a full trial would have modestly greater weight, but again it's only a district judge," Ross says. "Antitrust merits are likely to be reached on appeal after a trial."

Darren Rovell, who covers sports business for ESPN.com, can be reached at darren.rovell@espn3.com

[Murphy3]

sound familiar?..is there an echo in here?

[Dooby]

This sounds familiar. I thin there is an echo in here.

[MavsFanatik33]

Seems to me he's trying to take the NFL down with him, he has a shot though.

[QCarFan]

Let the kid play, if he thinks he is ready let him ball. I think if he works hard, he can do it and with a mentor like Jim Brown, you guys think he wont be pushed? Get serious, if he wants to play let him play. The NCAA is using him, and basically railroading him at the same time. Why not play in the league you always wanted to play in? Dont stop the guy from making a living and providing for his family. If a team is willing to draft him right now, and take on the responsibilty, why not?

[OutletPass]

Ok, QcarFan...I'm going to call you on this since you're so big on FACTS. Frankly, you wouldn't know a fact if it hit you in the face.

The NCAA is using him, and basically railroading him at the same time.

Here's the definition of "railroaded": 1 a : to convict with undue haste and by means of false charges or insufficient evidence

Fact 1. - The NCAA hasn't suspended or disciplined him in any manner. So exactly how has the NCAA "railroaded" him ? Your statement about the NCAA is clearly false and misleading and is a flat lie. They haven't even taken any action in his case...if you think that they have "Show me the proof".

Fact 2. - OSU suspended him for two violations of Bylaw 12 which were for accepting checks totaling $500, and having cell phone use reportedly in excess of $1,000. Clarett admitted to these violations. So exactly how was he "railroaded" ? He admitted to them...that's not false charges or insufficient evidence...and again it has nothing to do with the NCAA. If you think that these charges are false, or that his admission isn't legally sufficient, or that it was done by the NCAA "show me the proof"

Fact 3. - Clarett's 14 violations of bylaw 10 are for giving false or misleading statements. Again, it was OSU and not the NCAA. And again, he admitted to the false or misleading statements. So how is he being "railroaded." If you think that these charges are false, or that his admission isn't legally sufficient, or that it was done by the NCAA "show me the proof"

Fact 4. - Clarett was charged with a misdemeanor for falsifying an April police report connected to a car break-in. Clarett allegedly claimed merchandise worth $10,000 and $800 in cash was stolen. If convicted on the falsification charge, Clarett could face up to six months in jail and a $1,000 fine.Clarett acknowledged earlier this summer that he filed an exaggerated theft report after his car was broken into in April. How'd the NCAA (or the police, for that matter) "railroad" him. Are the charges false or is their "insufficient evidence" If you think that these charges are false, or that his admission isn't legally sufficient, or that it was done by the NCAA "show me the proof"

Fact 5. - Unrelated to the suspension, Clarett also is being investigated by an Ohio State panel looking into allegations of academic improprieties involving athletes. How is he being "railroaded" by the NCAA there ? Since nothing has yet to be done in that case...and it's OSU, not the NCAA, where's your beef ?

Giving you the benefit of the doubt, maybe you meant to say that OSU was "railroading" him. Or that the police were railroading him. Or that he was railroaded into three stints in the juvenile detention center; with one being for breaking and entering. But you didn't say that....so how is the NCAA "railroading" him there.

The FACTS are right there to see...so would you please provide me with YOUR facts before posting nonsense like this again. If you're going to post something other than "Quincy Carter !"...please do some research and be factual. Cut out the lies.

There's an entire legal discussion of his case against the NFL going on in this thread...and you're here posting that the NCAA is "railroading" him while knowing full well that the NCAA hasn't even acted. What's that about ?

Show me one instance where the NCAA has supended, fined or disciplined OR please quit mucking up an otherwise intelligent discussion with your non-factual, apologist nonsense. Just one instance.

[Drbio]

Qsparefan never lets facts get in the way of ignorance.

[QCarFan]

You know what I meant OP, but since Quincy shut you guys up for the last two weeks you are looking to jump on something I say to get back at me. LOL, no thanks you know exactly what I was saying. See ya Sunday fellas

[Dooby]

Back on el subjecto, I was thinking about this today and how ridiculously arbitrary the rule is. I am seriously rethinking my position that he's gonna lose.

If a kid is "Doogie Hauser" smart and graduates at 14; he can play football in the NFL at 17 or 18. But if a kid is "Ryan Leaf" dumb and graduates highschool at 19 or 20, he can't play football in the NFL until he's 22 or 23. That doesn't make any sense.

[QCarFan]

It doesn't make any sense at all, I agree with that Dooby.

[jayC]

my bad. Anyway Emmit chimes in.

Smith says Clarett should get a chance to play in NFL
Print this story AIM this story Email this story
Associated Press
Sep. 25, 2003 9:26 p.m.

TEMPE, Ariz. (AP)— Emmitt Smith says Maurice Clarett should get his wish to play in the NFL.
"I think a man does have an opportunity to earn a living and shouldn't be restricted," the NFL's leading career rusher said Thursday after the Arizona Cardinals practice. "To be honest with you, I think the NCAA has a great racket going, and you can print that one."

The suspended Ohio State running back sued the NFL this week, asking a judge to throw out a rule that prevents him from entering the draft until he has been out of high school for three years.

"He's a great talent. He's young. He feels like he should do it," Smith said. "Why should he be restricted?"

Clarett helped Ohio State win the national championship as a freshman last year but has been suspended for the coming season. He wants to be eligible for next year's NFL draft.

"When he gets here, he'll see what it's all about," Smith said. "I've seen grown men come in here and spend a day or two in training camp and made their mind up right then and there that football's not for them."

Smith suggested Clarett avoid the limelight.

"The only advice I can give him is to calm down some of this media attention," Smith said. "I think some of the attention he's getting is not positive in the public light."

[OutletPass]

Qspare..no, I have no idea what you're saying...you're completely ridiculous and since I don't care about the Cowboys and and don't post there often...I won't be seeing your sorry "my words don't mean what they say" ass on Sunday.

You said that the NCAA railroaded him and couldn't provide one instance of it. Please stay out of discussions that you obviously can't understand, Smackdaddy. We were talking about how antitrust law would affect this case until you put on the choo choo train hat.

[QCarFan]

Emmitt basically said the same thing I said right there, please read the article. E. SMith must have been reading my mine, because that's exactly how I look at it. E. Smith is a very smart guy, and I value his opinion. See ya Sunday OP

[jayC]

And more clarett drama:

Thursday, September 25, 2003



By Tom Farrey
ESPN.com

Maurice Clarett has taken his fight to Capitol Hill ... and he's winning.

The Congressional Research Service, a non-partisan arm of the House of Representatives that uses scholars and lawyers to consider public policy questions, has issued the opinion that the NFL's early-entry draft prohibition -- currently under attack by Clarett -- probably violates federal anti-trust law.



The five-page memorandum was released Thursday by the office of Rep. John Conyers, D-Mich., who had sought the legal analysis. It was written by legislative research attorney Janice E. Rubin, who cited Spencer Haywood's successful 1971 challenge to the NBA that opened up that league to college underclassmen and high school players.

"In sum, the aspects of the NBA rule that were struck down in the Haywood case would seem to be not dissimilar to those of the NFL 3-years-out-of-high-school rule, despite the fact that the NFL has somewhat modified its restriction," Rubin wrote. "Accordingly, if the NFL rule were challenged on antitrust grounds, there is some precedent for a court to either strike it down, or significantly modify it."

Alan C. Milstein, Clarett's lawyer, said he plans to submit the written opinion as part of the lawsuit Clarett filed on Tuesday in Manhattan federal court. The 19-year-old running back, suspended from Ohio State for the season for alleged violations of the NCAA's amateurism code, is asking a judge to throw out the NFL draft rule, which since 1990 has required players to wait three years until after their high school class graduated.

"This (research opinion) means a great deal," Milstein said. "The law that was being investigated is a law passed by Congress."

The memo also reflects the fact that the high-stakes effort to allow Clarett to sell his services to NFL teams before 2005 now has a political -- not just legal -- dimension. Behind the scenes, Milstein and Jim Brown, the Clarett family advisor, have been working to enlist the support of key African American members on the hill, including Conyers, who at the annual legislative conference for the Congressional Black Caucus (CBC) expressed his support Thursday for Clarett.

"Like a lot of young kids, he's made mistakes, but he has been the subject of an Orwellian procedure where a university acting to protect its own hide (has) acted as Maurice's prosecutor, judge and jury," Conyers said in a statement. "Now, like (baseball free-agency pioneer) Curt Flood before him, Maurice is . . . challenging a draft rule which the league tells us is designed to help kids, but really seems to institutionalize a farm system that reaps huge financial rewards for the colleges and pros; and operates primarily at the expense of African American teenagers."

Speaking of Brown and Milstein, Conyers told ESPN.com that he will "do whatever they want me to do" in terms of bringing Congressional pressure on the NFL. The ranking Democrat on the House judiciary committee, Conyers in recent years has spurred anti-trust hearings to examine the behavior of Major League Baseball and the Bowl Championship Series.

NFL officials were unavailable for comment.

Conyers presided over a CBC sports panel Thursday in which the featured speakers included Brown and civil rights activist Jesse Jackson, who also came out in support of Clarett's case. At the podium before a packed room that included government officials, sports-industry executives and other African American leaders, Jackson contrasted Clarett's situation to that of fellow Ohioan LeBron James, who went straight from high school to the NBA this year.

"I wish (Clarett) would stay in school," Jackson said. "But if you're old enough in this country to go to Iraq, and if you're old enough to answer the bell, you're old enough to work."

Jackson's comment was greeted with applause, as many of the athletes who might eventually be affected by a lifting of the rule are African American.

However, support for Clarett's case within the black sports community is clearly mixed.

Among the queasy: the Black Coaches Association, which represents 1,100 coaches in various sports from the high school to the professional level. The BCA will neither issue a formal statement on the rule nor spend time reviewing it, said Floyd Keith, executive director of the organization. However, in an interview with ESPN.com, Keith expressed deep concern about Clarett's potentially ground-breaking initiative.

"If he wins this lawsuit, it will change college football," said Keith, a former head college football coach at Howard and Rhode Island. "It will change the way coaches look at redshirting (freshmen). Younger players will be pushed to play early, like in college basketball, because they could potentially leave for the NFL earlier. No one will stay four years.

"Graduation rates will go to hell. And coaches will be held accountable."

Another critic is Charles Farrell, director of Rainbow Sports, a group whose stated mission is to expand opportunities for minorities in sports. Farrell's group is an extension of Jackson's PUSH Coalition -- indicative of how deep the divide runs on the Clarett case.

"I think the (NFL) rule is a good rule," he said. "I wish it would stay there. But the NFL is going to lose."

Athletes are too physically immature to play in the NFL before completing three years of college ball, Farrell said. Brown and Milstein disputed that line of thinking -- used publicly by the NFL to support its rule -- and noted that Clarett would be on the verge of his 21st birthday, an age not uncommon for other rookies, if permitted to play next season.

At the podium, Brown, who was made Clarett's advisor at the request of the mother Michelle Clarett, lobbied for support. "I say to all of you who think the system is unfair, 'Get behind this mother and son.' Because they're fighting some powerful elements."

Tom Farrey is a senior writer for ESPN.com. He can be reached at tom.farrey@espn3.com.