Clarett Attempts End Run. NFL Lawyers Go For The Block

Maurice Clarett wants to play in the NFL, but the league says he has to wait until he's three years out of high school. Now Clarett has sued the league, demanding that he be included in the next draft. A long period of relative tranquility for NFL labor relations GC Dennis Curran may be nearing an end.

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NEW YORK — In the past 10 years, the National Football League hasn’t had a single strike, lockout or other game-stopping fight with its players. This decade of tranquility is why labor relations GC Dennis Curran can boast, “We have the longest period of labor peace in [professional] sports.” The calm, Curran says, is due to the collective bargaining agreement struck between the NFL and its players’ union in 1993 and renewed five times since then. The 292-page document covers just about every labor topic imaginable and requires that most disputes be resolved by internal arbitration rather than in court. But the CBA might not be as perfect as the league thinks. The agreement doesn’t include the NFL’s eligibility rule, which prohibits players from taking part in its annual draft until three years have passed since their high school graduation. Maurice Clarett thinks that omission gives him an opening. The 20-year-old running back wants to play for the NFL now, but the league says that he has to wait for its 2005 draft, when he’ll be three years out of high school. In September, Clarett filed suit against the league in Manhattan federal court, demanding that he be included in the next draft, which is scheduled for April. U.S. District Judge Shira Scheindlin is slated to rule on his motion for summary judgment in February. Clarett has been able to drag the NFL into court precisely because he isn’t a player yet, and hence isn’t bound by the CBA. As a result, the league’s in-house lawyers have been forced to coach from the sidelines; the regular outside counsel at Covington & Burling are carrying the ball in court. According to Lisa Lazarus, a staff lawyer at the NFL, omitting the eligibility rule from the CBA wasn’t a mistake because the agreement “references” the NFL’s bylaws, which contain the requirement. Besides, the rule “was also accepted by the [players'] union during our bargaining process,” Lazarus says. (The National Football League Players Association declined to comment for this story except to say that under the CBA, it cannot “support any suit against the terms of the college draft.”) If Judge Scheindlin sides with Clarett, several sports and labor lawyers say the NFL may face future trouble from aspiring players eager to turn pro early. According to Bret Adams, a sports agent and of counsel at Buckingham, Doolittle & Burroughs in Columbus, Ohio, Clarett’s action “has the potential to open up the floodgates to other suits.” The collective bargaining agreement is crucial to maintaining an antitrust exemption for the NFL, which is a government-blessed monopoly. Ever since the league’s players unionized in 1956, courts have traditionally agreed that anything contained in the CBA is a fair labor practice. Anything not in the agreement is subject to antitrust challenge. That’s where Clarett comes in. He showed a lot of talent on the field during his freshman season for Ohio State University in 2002. But the player had various problems off the field that led to his suspension from the team this fall. Blocked from college ball, Clarett decided to join the NFL now. By making him wait for the 2005 draft, Clarett’s complaint says the league is preventing him from selling his services, a restraint on trade and commerce in violation of the Sherman Act. Clarett’s attorney, Alan Milstein of Sherman, Silverstein, Kohl, Rose & Podolsky in Pennsauken, N.J., did not respond to requests for comment. NFL in-house lawyers say the eligibility rule was discussed during the 1993 bargaining process. But, Lazarus says, “We couldn’t put everything in the CBA. There are lots of issues that [aren't in] there, but [the eligibility rule is] in the bylaws, and the [players'] union agreed to that.” Daniel Glazer, a sports lawyer at Shearman & Sterling, says the case will come down to “what the court thinks is implicit or explicit in the CBA.” Glazer explains, “If the rule was discussed [in the CBA negotiations], then the NFL would clearly have a much stronger case.” That still might not be enough, according to Bruce Ryan, an antitrust attorney at Paul, Hastings, Janofsky & Walker, who helped the NFL win a 1996 case brought by players delegated to practice squads. Ryan believes that the league may have to fall back to its secondary defense — that it “has a purpose for instituting this rule.” Easy enough, says the NFL’s Curran: “The purpose of our rule is so that players have more time to physically develop and are less likely to be injured.” The labor relations GC adds, “Essentially, we expect a better quality of football. The player plays football elsewhere and develops skills that allow him to compete in our league instead of sitting on our bench.” The problem with this rationale is the NFL is the only major professional sports league that delays college athletes from joining. Ryan cites the experience of the National Basketball Association, which had to abandon its eligibility requirement after several courts ruled against the policy. Regardless of how Clarett’s suit turns out, he may not be the last aspiring player to challenge the NFL’s collective bargaining agreement, Ryan says. “If this [eligibility] rule is not in the CBA, maybe [there are] other aspects of draft procedure not in there,” he says. And that could lead to more suits in the future. “The NFL lawyers may be worried about going to court to defend each and every restriction they make,” Ryan says. “That’s probably not what the NFL wants. They’d rather be deciding these issues at the bargaining table.” That will happen soon enough. This spring the league and the players’ union will start working on a new extension of the CBA. And the NFL’s Lazarus says, “No question about that — given the Maurice Clarett case, the draft eligibility rule will be revisited.” Eriq Gardner is a reporter for Corporate Counsel magazine, a Recorder affiliate based in New York City.

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