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The National Football League (NFL) Monday won at least a temporary reinstatement of its ban on drafting players who have not been out of high school for three years. The 2nd U.S. Circuit Court of Appeals stayed a trial court’s ruling that the ban is a violation of antitrust law. The appeals court ruled that former Ohio State running back Maurice Clarett, who challenged the ban, cannot participate in Saturday’s annual draft of college players. The circuit issued the stay within hours of hearing the case argued by lawyers for the NFL and Clarett Monday morning. It did so after being assured by the NFL that, should the circuit decide to uphold the lower court’s ruling and make Clarett eligible, he and others affected would be eligible in a supplemental draft. However, the court said the NFL “has demonstrated a likelihood of success on the merits.” Any potential harm to Clarett from the stay is “countermanded” by factors weighing in the NFL’s favor, the court said, and its agreement to hold a supplemental draft if necessary mitigates any harm to him should he ultimately prevail. NFL attorney Gregg H. Levy seemed to receive a sympathetic hearing from the panel of 2nd Circuit Judges Sonia Sotomayor and Robert Sack and, sitting by designation, Southern District Judge Lewis A. Kaplan. Levy argued that the restriction is a legitimate product of collective bargaining between the NFL and its players’ union, not a restraint of trade. The NFL is asking the circuit to overturn a February decision by Southern District Judge Shira Scheindlin. She ruled that Clarett was eligible for Saturday’s draft because the league’s rule is a classic violation of the Sherman Act. Scheindlin said the exemption to the Sherman Act prohibition on anti-competitive conduct carved out by the courts for labor agreements does not apply to the NFL’s rule. Alan C. Milstein, representing Clarett, said the player objected to the collective bargaining provision because “this is a rule that keeps people on the farm” in college. “He can’t get in the door,” Milstein said. The attorney ran into tough questions from the panel. Judge Kaplan wanted to know why the NFL cannot decide that its “best interests would be best served by not drafting players in your client’s circumstances” because the league says “we think its good for them, good for us and, in the long run, good for the sport.” Kaplan said the NFL is “a classic joint venture” and the case law shows that “restraints reasonably necessary” to further the interests of a joint venture “are lawful under the antitrust laws.” Milstein said that one justification for the rule, that younger players are more susceptible to injury, is simply not true, and is certainly not true for Clarett and other collegians ready to step up to the next level. “The teams are lining up to hire these guys,” he said. “The NFL teams know these guys are ready. They would draft and have these people except there is this group boycott.” Judge Sotomayor said the courts, in interpreting the congressional policy favoring collective bargaining, have recognized exemptions for practices that are clearly anti-competitive on their face, such as union hiring halls and seniority rules. Milstein, of Sherman, Silverstein, Kohl, Rose & Podolsky in Pennsauken, N.J., ran into problems when he said unions are allowed to protect jobs but they cannot agree to prevent a player like Clarett from practicing his profession. “That’s what unions do every day, protect people in the union from those not in the union,” Sotomayor said. Milstein claimed that the rule was not the result of arms-length bargaining by the NFL and the players’ union. LABOR EXEMPTION Addressing that issue, Judge Sack had asked the NFL’s Levy whether “you are basing your right to do what you did notwithstanding the labor exemption.” Levy, a partner at Covington & Burling, answered that, even without the labor exemption, the NFL could have defended the rule. Levy said Clarett’s legal team had made a “telling admission” when, in its brief, it acknowledged that “this kind of forbidden restriction does not require a showing of an effect on price or output.” The Clarett attorneys also admit in their brief, Levy said, that “Clarett’s eligibility has no effect on veterans or their jobs or their wages” and that, if Clarett were allowed to play, he would only be taking the place of the last person drafted in the last round of the seven-round draft.

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