Legal Issues of NBA Draft Age Floor

Blair Clarkson of the Los Angeles Daily Journal had an excellent piece yesterday on the legal issues concerning the new age floor in the NBA. He interviews a number of people, including Joe Rosen, Gary Roberts, and me. Here are some excerpts:

More important, some say, it's illegal.

"I definitely think we'll see at least one lawsuit challenge it," said Michael McCann, a law professor at Mississippi College School of Law. "It can be construed as a group boycott. These players can't go anywhere else to earn that kind of income."

McCann was part of the legal team for Ohio State sophomore running back Maurice Clarett, who two years ago sued the National Football League for keeping him out of the 2003 draft.

Like the NFL's policy, McCann says, the NBA's new age floor violates antitrust laws that prohibit policies that restrain trade.

"There's really only one employer [they] can work for to reap the rewards of their unique talents," he said. "The NBA has an economic monopoly on pro basketball."

But Gary Roberts, director of the sports law program at Tulane Law School and a former president of the Sports Lawyers Association, says that, because the age limit was agreed to by the players' union in bargaining sessions, the issue is exempted from labor laws.

"There is not one snowball's chance in hell of getting the age limit declared illegal," Roberts said. "Labor laws supersede antitrust laws when the matter at issue is the subject of mandatory collective bargaining."

In this case, because the league and union agreed on the age limit, the courts will view it as a collective-bargaining issue to be dealt with through that process, foiling any antitrust challenges, Roberts said.

"I don't see how you get around that," he said.

But that ignores the fact that the would-be players most affected by the decision weren't a party to the collective bargaining agreement, according to Joe Rosen, an adjunct professor of sports law at Boston College Law School.

"This should not be covered by the labor exemption because these [high-school] players are not covered by the collective bargaining agreement," said Rosen, who is starting a law firm and sports agency in Boston later this year. "The union doesn't represent the players who would bring this suit."

Roberts contended that collective-bargaining agreements apply as much to future members as current ones. He said that the appellate court's ruling against Clarett bears that out.

"Mike [McCann] has already argued that perspective and lost," Roberts said.

Prominent Los Angeles business and antitrust litigator Charles Stern, however, isn't so sure.

Stern said that the issue "raises some very troublesome questions." The Katten Muchin Rosenman partner believes the age limit boycotts an entire class of players capable of playing at the highest level. He says Roberts' contention that nonunion players are bound by union decisions is "probably an oversimplification."

Besides, McCann said, the decision to uphold the NFL's age limit was made only in the 2nd Circuit, leaving 11 other circuits to disagree if presented with a similar case, and the trial court initially agreed with Clarett.

"If labor laws always supersede antitrust laws when the matter is the subject of collective bargaining, then Clarett's case would never have made it out of pleadings," he said. "The fact that it did, and then won the first round, is pretty compelling evidence that the deference is not absolute, especially when management represents a monopoly like the NBA."

Here is another excerpt that discusses the distinctions between a hypothetical lawsuit by a banned teenager player and that brought by Maurice Clarett:

And a high-school basketballer challenging the NBA would have a much better case than did Clarett, McCann said.

Clarett had to argue a hypothetical point that he'd succeed in the NFL, but a proven 10-year track record in the NBA shows that players who skipped college are among the league's elite.

While researching statistics for a paper published in the Virginia Sports and Entertainment Law Journal in 2004, McCann found that players entering the NBA from high school average more points, more rebounds and more assists than other players.

Although some of the highly touted teenagers turned into draft-day busts, stars like Bryant, James, Tracy McGrady and Jermaine O'Neal have become franchise players who dominate games and reap millions in marketing for the league.

Additionally, McCann argues, the players excluded by an age limit suffer significant economic harm, making legal challenges more viable.

While the average NBA lottery pick will make $1.6 million a year in guaranteed contracts, plus countless more in endorsements, a player relegated to the NBA's developmental league or a European league until he comes of age may make only between $20,000 and $75,000 in his first year, McCann said.

And if that player is forced to play college ball for a couple years, he also runs the risk of sustaining a serious injury that could cost him millions, if not his entire career.

"If the Clarett decision had been straight down the line against him, the likelihood of an NBA case might be tough," Rosen said. "But the trial court ruled in his favor, so I think it's inevitable that an antitrust lawsuit will be brought."

For more, check out our recent discussion on this topic: Greg (arguing that the NBA and NBPA can legally ban teenagers) and me (arguing that a legal challenge to the age floor may prove viable; also check out my law review article Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft). Also, be sure to read the comments section to the posts, as a number of Sports Law Blog readers have provided great insight and perspective (and I thank each of them -- those comments are much appreciated).

See Update 7/28/2005: NBA Player Arrest Study and Age/Education

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