April 25, 2004

Clarifying Clarett's Case

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said the league's claim that young players could be harmed by pursuing a professional football career prematurely was superseded by concerns about the marketplace operating fairly and efficiently.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.