Maurice Clarett never had a chance to get into this weekend's college draft, not after the NFL convinced a federal appeals court to issue a stay overturning a lower-court ruling that had allowed Clarett in.
You couldn't go to a cocktail party in Washington the last two months without hearing some labor lawyer say that U.S. District Court Judge Shira Scheindlin had made a decision so absurd and outdated it was begging to be reversed. Gary Roberts, the deputy dean of Tulane University's law school and noted sports law expert, said Scheindlin's February ruling allowing Clarett into the draft in the first place, given the evolution of labor exemption and antitrust law, "is the equivalent of ruling in favor of separate but equal in schools and on buses."
Maybe the dry, old men who run the NFL will do an end zone dance when nobody's looking, now that Ohio State's Clarett and Southern Cal's Mike Williams, among others, have been barred from entering the draft by the U.S. Court of Appeals for the 2nd Circuit. Scheindlin's ruling hasn't been reversed yet, even though the court said Monday the NFL had demonstrated it could win its argument that players should not enter the league until they are three years removed from high school. The court's use of the phrase "likelihood of success" on the merits means the NFL is going to win this case.
Whenever the decision is rendered — and it could be this week — the NFL is going to win a major decision. College freshmen who are simply tired of going to school are not going to be able to point to the law and say, "See, you have to let me in." Whenever the appeals court renders its decision, whether this week or in two months, the NFL will be able to point to the collectively bargained agreement between its management council and the NFL Players Association and know it's a provision with teeth.
Teeny-boppers aren't going to flood the NFL, which is what was about to happen with Scheindlin's misguided ruling. First, sophomores were going to enter the draft, then freshmen, then high school kids. This stay of the lower-court decision, and the appeals ruling which will follow could be even better news for NBA Commissioner David Stern, whose league already is being flooded by teenagers, but who might now have ammunition for setting an age limit of 20 for entry into the draft.
Tulane's Roberts said in a conversation Monday that the appeals court ruling could clear the way for Stern to simply unilaterally impose an age restriction of 20, "but I don't think he will. The union will have to agree to it, and I'm not sure that will come about because I'm not sure Billy Hunter [head of the basketball players' union] will be as amenable to this as the NFL union [under Gene Upshaw] has been. And there's not as strong an argument for the NBA [to keep out players under 20 because they are not physically mature enough to play]."
The fact that 19-year-old phenom LeBron James is about to become the league's second consecutive rookie of the year to come straight from high school certainly doesn't help the merits of Stern's case. But what does help him is the growing chorus of NBA veterans who are telling their union leaders they want a minimum age requirement.
Just last week union activist Antonio Davis of the Chicago Bulls told the Chicago Sun-Times he is in favor of an age restriction that would keep high school players, at the very least, from entering the NBA. What makes Davis's voice even more credible is that he's playing every day with two teammates who skipped college, Tyson Chandler and Eddie Curry.
Stern, during the league's all-star weekend in Los Angeles, said he was watching the Clarett case carefully and predicted Scheindlin's ruling would be overturned upon appeal. Tulane's Roberts said Scheindlin's decision "was flat-out wrong on so many different counts. . . . It's an opinion that looked like it was written in the 1960s populist approach to antitrust law . . . and antitrust law has changed so dramatically since then."
He pointed to a series a decisions that led even the Supreme Court to rule that "there are mandatory subjects for collective bargaining, and they are not subject to attack . . ." Various courts have ruled the remedy is for such subjects to be collectively bargained. That's what the NFL and its union could point to upon appealing to the federal court of appeals.
Of course, if and when Stern attempts to bargain such a minimum-age requirement with the union, he'll be facing union leaders, particularly Hunter, who will want in return things like higher minimum contracts for tenured veterans, a higher percentage of the revenues created by the sale of NBA merchandise, and probably an abolition of an escrow agreement that calls for each player to pay back 10 percent.
But Stern, in bargaining with the union, will have the comfort of knowing that if the two sides do agree on a minimum age requirement, it is unlikely to be successfully attacked in court. It's doubtful the NBA can do anything about that between now and the end of June when perhaps as many as a dozen American teenagers plan to skip college and enter the NBA draft.
Meanwhile, Clarett and Williams will have to go to Plan B. Williams has already filed for an injunction against the stay, according to his agent.
But it's becoming more and more apparent that barring a last-minute change or heart, serving an apprenticeship for the NFL will continue to be a job requirement.