Another "Mature" Phenom Drafted Out of High School

In today's edition of the Florida Times-Union, Jason Schneider wrote an article about Dwight Howard, Orlando Magic's 2004 first round draft pick out of high school ("NBA's Magic has a new poster boy," 10/7/05). As far as his ability, Schneider notes that he's the first rookie to average a double-double (12 points per game, 10 rebounds per game) since 1991-92 and the first direct-from-high school rookie to start all 82 games. In addition, Howard was unanimously selected to the All-Rookie team and he finished third in the Rookie of the Year voting. But Howard is more than just a basketball talent. Here's an excerpt from Shneider's article [edited by me in italics with David Stern's comments]:

"Howard spent the offseason visiting students at Orlando-area schools, talking about everything from math to religion. He sponsored a basketball camp in his hometown of Atlanta. [Oh great, here's Exhibit A in the next antitrust lawsuit challenging our draft age eligibility rules.] He went to the Philippines, Hong Kong, China and Taiwan as part of a promotional tour for the NBA over the summer. [Note to self: Find out if he broke curfew any time while touring these countries.] .... 'He handles everything pretty well,' coach Brian Hill said. 'He has a maturity that is beyond his years.' [NO!!! I thought we informed our coaches not to say these things!] It's that maturity, combined with his ability, that is making Howard a media darling."

Dwight Howard is yet one more example in support of Michael McCann's research that there is no logic to the argument that high school players lack the maturity to play in the NBA, which is the NBA's justification for implementing the new age eligibility rule.

While the anti-competitive effects of a draft age eligibility rule banning high school players from the draft arguably outweigh the pro-competitive effects of such a rule under a "rule of reason" analysis, the first hurdle for the player is to establish that the rule is not exempt from the antitrust laws. If the alleged restraint on trade is a "mandatory" subject of collective bargaining, as that term is defined under the National Labor Relations Act, then the rule is exempt from antitrust scrutiny. There appears to be a misconception about the meaning of this term and that a subject is "mandatory" just because it has been collectively bargained for by the union and the league.

Under the NLRA, a mandatory subject refers to "wages, hours and working conditions". The term "wages" include salary, bonuses, etc.; "hours" refers to time spent on the job; and "working conditions" are factors that influence the work environment such as work rules, safety and seniority. If a subject is not mandatory, then it is "permissive" and the employer is not required to negotiate that subject in good faith with the union. The logic behind all of this is that mandatory subjects go to the "heart" of what's important to the work force (not the employer) and that the employer can't unilaterally implement standards of its own without negotiating these items with the union. For example, employees might insist that they be provided with a minimum wage scale or a minimum standard of safety equipment that the employer would not otherwise provide, or that employees receive certain benefits upon reaching the age of seniority. The other aspect at work here is that it's supposed to be a quid pro quo labor negotiation (i.e. the work force gives up something in return for getting something from the employer), which I believe is lacking when the union is (purportedly) negotiating on behalf of amateur players. When a union negotiates with the league over the draft age requirements for prospective players, the existing player/members of the union are not giving up anything, but they are definitely getting something from the league in return for it.

The term "working conditions" does not refer to conditions to obtaining employment, such as having a master's degree or having obtained a certain age. In the sports context, an example of a working condition would be whether players will play on artificial turf vs. natural grass. While the general concept of a draft is arguably a mandatory subject because the draft in and of itself has a direct impact on the wages a player is going to receive based upon the round drafted, I have yet to hear a convincing argument as to what a draft age requirement has to do with wages. [Another example of a mandatory subject would be the service time requirements for arbitration and free agency in baseball because that obviously impacts a player's wages.] If the draft age eligibility rules do not constitute "wages, hours or working conditions," then it's a permissive subject and not exempt from the antitrust laws. This is where the Clarett decision is wrong, and he should have be allowed to present his case to a jury.

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