Is the "Ricky Williams Rule" about to be Sacked?

Since the NFL announced its suspension of Michael Vick, many of my esteemed colleagues have presumed that Vick will also get banned from the Canadian Football League ("CFL") based on the "Ricky Williams Rule," which prevents any player suspended by the NFL from entering the CFL. Michael McCann even touches upon this point in his wonderful first column in Sports Illustrated.

I am not sure, however, whether the Ricky Williams Rule is even legal. Isn't it true that an agreement amongst all of the teams in a pro sports league to boycott a class of players would indicate a prima facie case of an antitrust violation? Isn't it also the case that the CFL has market power in the labor market for players banned by the NFL (presuming that issue is even relevant) because NFL teams are not part of the viable market for such players' services?

For purposes of background, the Sherman Act states, "every contract, combination ... or conspiracy, in the restraint of trade or commerce ... is declared to be illegal." Applying the Sherman Act, American courts on three different occasions have found agreements amongst professional sports teams that boycott a certain class of players to be illegal. For example, in the case Denver Rockets v. All-Pro Management Inc., 323 F.Supp. 1049 (C.D. Cal. 1971), a court struck down then-NBA commissioner Walter Kennedy's rule that banned all players from the NBA that were less than four years removed from high school. This was the ruling that ultimately allowed Spencer Haywood to enter the NBA at a more junior age.

Indeed, the more recent case Clarett v. Nat'l Football League, 369 F.3d 124 (2d. Cir. 2004) potentially limits the holding of cases like Denver Rockets to only situations where the agreement to exclude a class of players is reached outside of the collective bargaining process. However, for purposes of analyzing the "Ricky Williams Rule," which presumably was unilaterally implemented by the CFL, the Second Circuit's limitation in Clarett is entirely irrelevant.

With that said, under antitrust law, there are less restrictive alternatives for the CFL to prevent the entry of troublesome players, such as for the CFL to review the candidacy of each prospective player on a case-by-case basis. A case-by-case review of players banned by the NFL would make more sense given that the CFL has already "grandfathered" players that are currently playing in the CFL but previously banned from the NFL. In a statement that may prove especially damning to the CFL, the CFL in November of 2006 stated that "one of the reasons for the ban is to maintain a good relationship with the NFL."

Indeed, the biggest challenge to bringing a suit against the CFL may involve proving U.S.-based anti-competitive effects given that much of this allegedly anti-competitive conduct occurred outside of the United States. However, given that most of the football players that would be banned from the CFL under this rule live in the United States, as well as that some of the CFL fans reside in the United States, and that CFL games are broadcast into the American market through Dish Network, DirecTV and America One, these concerns should not prevent a bona fide antitrust challenge against the Ricky Williams Rule in United States federal courts.

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