April 25, 2004

Clarifying Clarett's Case

by PG

Or, Kids! Stay in School.

My knowledge of football is somewhere between limited and non-existent, but a friend recently queried me regarding Maurice Clarett's lawsuit against the National Football League.

Q: Explain to me why the decision whether Maurice Clarett can enter this weekend's draft is up to Ginsburg and not the whole court?

A: Ginsburg handles emergency matters from the 2nd Circuit. She can grant or deny Clarett's emergency request or refer the matter to the full court.

Q: That’s a lot of power.

A: No more than the rest of the Court has. Each of them is assigned to a Circuit (some of them have more than one, as there's more circuits than justices), and having one justice deciding on emergency matters is easier than having the full Court do it.

In cases like Bush v. Gore -- which came up from a state court anyway -- you'd have to refer it to all nine, but Ginsburg decided that the lower court had done a Good Enough job in its ruling. If Clarett tries to appeal to the full court, I doubt he'll get the 4 votes necessary to make them look at the case.

Q: He passed on appealing to the full court. He went to district court, won, then the NFL appealed and won the appeal, and then he went to the Supremes and the appeal was upheld. I know the Supremes affirmed it and that means they don't need grounds, but why was the lower court's ruling overruled in the first place?

A: It wasn't an overturn of the lower court ruling; it was a stay of the ruling, meaning it wouldn't take effect until it was upheld by another court. He went to court and got U.S. District Judge Shira Scheindlin to make him temporarily eligible for the draft. The NFL requested a stay from Scheindlin, she denied it, the NFL went to the 2nd Circuit, the 2nd Circuit granted it, Clarett appealed and Ginsburg upheld the 2nd's decision, as did Stevens.

Q: On what legal grounds did Judge Scheindlin make him eligable?

A: According to her decision, the league must allow Clarett to enter the draft because its eligibility requirement -- that a player must be three years removed from high school -- violates the Sherman Antitrust Act. She said the league's claim that young players could be harmed by pursuing a professional football career prematurely was superseded by concerns about the marketplace operating fairly and efficiently.

Q: And the 2nd Circuit said what?

A: 2nd circuit gave a stay that would keep Clarett out of this weekend's draft, saying that the supplemental draft would be good enough if Clarett eventually prevailed.

That was as much as my friend wanted to know, but De Novo readers may be interested in the legal issue Scheindlin identified: "Should Clarett’s right to compete for a job in the NFL -- the only serious pro football game in town -- trump the NFL's right to categorically exclude a class of players that the League has decided is not yet ready to play?" This class of players is that which is less than three years out of high school.

This is not a problem of Clarett's wanting to violate standard labor laws; the 20-year-old is not a minor and will earn more than minimum wage while working in safer conditions than the average meatpacker. Instead, the NFL wishes to have a higher standard than current legislation in determining who is eligible to work for it.

The general response to the case has been that the NFL is doing the right thing, that 18-year-olds, eligible for nearly every other job in America, should not be allowed to play pro football. The NFL claims to have its restrictions in place for the players' own good. NCAA President Myles Brand said, as his organization filed a brief in support of the NFL's appeal,

If not reversed, [Scheindlin's] decision is likely to unrealistically raise expectations and hopes that a professional football career awaits graduation from high school and that education can therefore be abandoned. The result could be a growing group of young men who end up with neither a professional football career nor an education that will support their life plans.

Leave aside the natural skepticism one feels toward this statement, in light of the scandalous state of most student-(could go pro) athletes' educations. Even if the NFL and the NCAA truly were doing their best to ensure that future professional athletes were well-educated and had solid alternatives to playing sports, their attitude is highly paternalistic.

After all, a parallel argument was made in keeping women from working at all, or working more than a certain number of hours, or working in certain jobs. This was all for their own good. While sex discrimination is more problematic than age discrimination -- we'll all be young and we all hope to be old someday (as the the alternative to being elderly is being dead), but we won't all be female -- there are nonetheless similar attitudes of "We know what's best for you."

Even if one concedes that people just past their teens, without education beyond high school, ought to be kept out of certain positions, one must face the fact that we put people of that type in some of the most hazardous jobs possible. Several columnists have pointed out that as a 20-year-old high school graduate, Clarett could go to Iraq to kill and be killed. Yet he is considered insufficiently mature to play what is, despite all its physical demands and risks, merely a game.

April 25, 2004 04:21 PM | TrackBack

Good commentary.

I just disagree with the NFL and NCAA on this in practically all aspects. To me, it's a simple thing. They passed all the physical tests (at the combine, private workouts, etc...) and excelled at them. Teams were lining up to draft and play them immediately. Williams would have been an early first rounder while Clarrett would have gone in the second or third round, but both would play immediately next season. That seems to be my main point of contention -- if the members of the league think they're viable, then they probably are.

And this "maturity" factor...what about some of the players out there that are too "mature"? If you should only be playing when you're in prime physical condition, why doesn't the NFL keep out players whose athletic abilities are declining as their careers wind down?

When, you're ten years out of school, that's it. No longer prime. Retire. Sorry if you've aged really well, the rules are the rules...Get out.

Wonder if Upshaw and Tags will put that in the next CBA...

Posted by: BnB at April 26, 2004 05:45 PM

Why should the government tell a private association who they can let in and who they can't?

Posted by: David at April 26, 2004 07:50 PM

Why should the government tell a private association who they can let in and who they can't?

By this perspective, I suppose we should be glad that the professional leagues determined for themselves that it was time to allow African Americans to play. We wouldn't want the government coming in with their darned anti-discrimination laws.

Posted by: PG at April 26, 2004 10:38 PM

Not sure if you addressed my question. Since the leagues actually did allow integration on their own, I am not sure what kind of argument it is to bring that up as a point in favor of govt. intervention. Once again, why should the government be able to tell a private association who they can and cannot restrict?

Posted by: David at April 26, 2004 11:50 PM

Nice try at Hart's 'Dialogue' -- a "stay" of a ruling on the merits is an exercise of the court's equitable power and is decided using the tradition "injunction" standard (3 factors -- maybe calling public interest a 4th). The district court denied the motion to stay the judgment on the merits. The decision to grant or deny a stay is review for abuse of discretion. A panel of the 2d Circuit said the refusal to grant the stay was "unreasonable", or that the trial judge abused her discretion in refusing the stay the judgment. Justice Ginsburg in her capacity as Circuit Justice also acts in an appellate capacity by asking whether the Court of Appeals abused its discretion in granting the stay. She said its decision was "reasonable"--which is the typical result. Ditto for Justice Stevens.

There are a lot of other factors involved here, among them that the district court's decision is without foundation in economic science--and perhaps contrary thereto. As a matter of black letter law, the absolute prerequisite to any equitible relief (including a stay) is an "inadequate remedy at law." Or, in this case, the NFL had to show that the draft was impending and irreversible damage to the interests it seeks to protect on appeal would occur without the stay. Couple that with the availability of the supplemental draft to protect Clarett from "irreparable harm"--especially since he's a late-round draft choice anyway--and you have a balance favoring the stay. I am frankly shocked that the District Court didn't grant the stay in the first place, because this is a clear case -- where the draft would occur between the trial court judgment and the appelate review -- in which the issue could be mooted. [It arguably wouldn't be moot in the broadest sense because it is capabale of repetition yet evading review. But specifically, i.e. as to the particulars of this case, it would be.]

Posted by: Simpliciter at April 27, 2004 01:36 AM

David, simply because a private association does choose to end a discriminatory policy is not a sufficient argument against the government's enforcing anti-discrimination law. Are you saying that it was good and right for African Americans not to be able to play in the MLB, simply because they were black, until the MLB felt like inviting them in? Or, to refer back to a parallel I drew in the post, that it was good and right for women to be excluded from the workplace, simply because they were female, until employers felt like inviting them in?

Posted by: PG at April 27, 2004 01:35 PM

Unfortunately, I think that the stay itself is unreasonable as the NFL is clearly going to lose the appeal on the merits. In other sports, such exclusionary rules have been abandoned, or they have other mechanisms for dealing with younger players. The law in this case is pretty clear, as this issue has been played out in other sports, in some form or another.

The only sport that the NFL's rule could stand up in is MLB, and that is largely a historical anomoly that should be struck down. I would not have granted the stay.

Posted by: Trickster Paean at April 29, 2004 04:26 PM

I disagree -- the stay should have issued because the antitrust issues involving statutory collective bargaining, S. 1 of Sherman, and the labor exemption are ANYTHING BUT CLEAR -- the district court in this case made a decision that there were no genuine issues of material fact and that judgment as a matter of law was appropriate. I agree with the district judge: there are no issues of material fact. HOWEVER, they are significant, important, crucial, critical, culture changing, economy unbalancing, etc etc etc issues of LAW that are not clear or settled. Because the Court of Appeals for the 2d Circuit -- which is busy working on antitrust daily -- agreed with reason in this instance, they granted a stay on the basic lack of prejudice to Clarett but fabulously out-of-this-world prejudice to the NFL if the district court, it turns out later, had the law all wrong (or the appellate court finally disagrees. It is my opinion that unless the appellate court makes some ridiculous construction of federal law or expands some "policy" issue, in other words unless the court goes beyond the facts of the case (which they should not do ever anyway but do constantly), this case will be reversed by the 2d Circuit (en banc maybe?) and never get 4 votes for certiorari at the Conference.

Posted by: Simpliciter at April 29, 2004 07:52 PM
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