Will the Maurice Clarett case have an impact on the NHL?

[David A. Rainer]

In my view, yes. If it is the product of give and take collective bargaining between the NHLPA and the NHL, the provisions of collective agreement is would be exempted from anti-trust scrutiny, even though it may have the effect of excluding players that have not yet entered the union.

Oooooo, there's a bit more to it than that. Remember, the Union is under a Duty of Fair Representation to all its members, past present and future. if someone feels like they are getting a raw deal, they can complain to the Union or file a breach of the duty in court.

But the agreement can never exclude someone from being in the Union. That is an immutable truth in labor law. In fact, the NLRA expressly forbids any activity that would block unionization or union involvement. The agreement can put barriers and restrictions on employees once inside the union (like promotion by seniority), but it can never outright exclude someone.

 

[speeds]

Oooooo, there's a bit more to it than that. Remember, the Union is under a Duty of Fair Representation to all its members, past present and future. if someone feels like they are getting a raw deal, they can complain to the Union or file a breach of the duty in court.

But the agreement can never exclude someone from being in the Union. That is an immutable truth in labor law. In fact, the NLRA expressly forbids any activity that would block unionization or union involvement. The agreement can put barriers and restrictions on employees once inside the union (like promotion by seniority), but it can never outright exclude someone.

so how would the NHL restricting the draft to those 20 and older be different from the NFL preventing those less than 3 years (or whatever it is) from high school from entering the draft, especially if the NHL were to actually get that included in the CBA.

 

[hillbillypriest]

Oooooo, there's a bit more to it than that. Remember, the Union is under a Duty of Fair Representation to all its members, past present and future. if someone feels like they are getting a raw deal, they can complain to the Union or file a breach of the duty in court.

But the agreement can never exclude someone from being in the Union. That is an immutable truth in labor law. In fact, the NLRA expressly forbids any activity that would block unionization or union involvement. The agreement can put barriers and restrictions on employees once inside the union (like promotion by seniority), but it can never outright exclude someone.

Cool...

That's what I like about posting here. Ya post, and you learn something new in the process. I know precisely enough American labor and antitrust law to be a danger to myself and all those around me....

What I'm taking from you is that a union just can't be arbitrary about who it represents and who it doesn't. However, union's must have some ability to draw the line and decide whose interests they promote and who's they forego. For example, I would think that Leon Wood would have had a strong case that the NBPA did not represent him. I understand that his case was against the NBA. Would he have won if he had instead gone after the NBPA?

 

[David A. Rainer]

What I'm taking from you is that a union just can't be arbitrary about who it represents and who it doesn't. However, union's must have some ability to draw the line and decide whose interests they promote and who's they forego. For example, I would think that Leon Wood would have had a strong case that the NBPA did not represent him. I understand that his case was against the NBA. Would he have won if he had instead gone after the NBPA?

Yep... that's it. The union outright cannot exclude anyone. The union has a duty to represent fairly everyone who they think is or will be a memeber (granted, there will be slack for mistakes on behalf of future members because it's hard to forsee some members). But they are not under a duty to ensure equal treatment for everyone. They can disadvantage some in favor of others, but there must be legitimate reason for the different treatment. Seniority is usually a legitimate reason. Race is a definite no no. If someone feels they are getting shafted by their union, they can go into district court for breach of the duty of fair representation. But that person must prove that the different treatment was intentional, and that it has no legitimate reason or that is was a result of illegal discrimination.

As with almost every area in the law, who you decide to litigate against largely depends upon the remedies that are available to you. Labor law is no different. The law allows certain remedies against an employer that it wouldn't against the union. For example, depending upon what the dispute is, a member generally can sue an employer for reinstatement, lost wages, damages, a myriad of specific penalties, etc. A member generally can sue a union only for reinstatement and maybe for lost wages. In short, there's a lot more damage a player can do going against the NBA than the NBAPA.

 

[David A. Rainer]

so how would the NHL restricting the draft to those 20 and older be different from the NFL preventing those less than 3 years (or whatever it is) from high school from entering the draft, especially if the NHL were to actually get that included in the CBA.

There is no difference on their face but there is a HUGE difference in how they are treated because of how they came about. Both are considered a "group boycott" based on age considerations and therefore a violation of anti-trust law.

HOWEVER, if the restriction is a result of collective bargaining, anti-trust law will look the other way and allow the restriction. As I understand it, the NHL restrictions ARE a result of collective bargaining and the Clarett restriction is NOT. So the NHL is OK and the NFL might not be.

It all depends upon whether the restriction is a result of collective bargaining. It does not bar someone from being a member. Clarett can still be a member of the union. But he is under the restrictions of the CBA. One of those restrictions says that he cannot work until a certain age. He's a member, but he can't work.

 

[David A. Rainer]

You're a lawyer alright.

I never heard the word "detriment" used so frequently in my life until I took Contracts.

No, just finished law school though. Took a labor law class. But it's all part of the general brain-washing of the law school experience.

 

[hillbillypriest]

There is no difference on their face but there is a HUGE difference in how they are treated because of how they came about. Both are considered a "group boycott" based on age considerations and therefore a violation of anti-trust law.

HOWEVER, if the restriction is a result of collective bargaining, anti-trust law will look the other way and allow the restriction. As I understand it, the NHL restrictions ARE a result of collective bargaining and the Clarett restriction is NOT. So the NHL is OK and the NFL might not be.

It all depends upon whether the restriction is a result of collective bargaining. It does not bar someone from being a member. Clarett can still be a member of the union. But he is under the restrictions of the CBA. One of those restrictions says that he cannot work until a certain age. He's a member, but he can't work.

I'm actually a bit confused now. My main point on this thread has been that an age restriction would be permitted so long it arises as a product of collective bargaining. However, I had thought that you had raised the point that there is a Duty of Fair Representation that would be imposed on a union, which would make it possible for the union to be sued if it excluded a qualified adult, so I'm now not sure what would draw the line.

Could you provide a couple of examples to illustrate different ways that, within the context of collective bargaining, a union would or would not be able to include a provision in a collective agreement that effectively excluded of a qualified adult from being able to gain employment with the business on the basis of being too young? For example, is it a question of there needing to be some sort of reasonable justification for the exclusion? If so,what would a reasonable justification be?

Would appreciate your thoughts...

 

[Buffaloed]

I'm not saying I'm expecting it, but if in the new CBA it were specified that no one could be drafted until they were 20, would that be legal since it is included in the CBA?

I don't think they can do it. As far as I can tell the anti-trust exclusions granted haven't addressed the age issue. The cases have involved salary caps and the right to hold a draft. Those are economic issues where anti-trust exclusions can be made. There's a civil rights issue involved here. I don't expect any draft that sets a minimum age over 18 to hold up in court.

 

[David A. Rainer]

I'm actually a bit confused now. My main point on this thread has been that an age restriction would be permitted so long it arises as a product of collective bargaining. However, I had thought that you had raised the point that there is a Duty of Fair Representation that would be imposed on a union, which would make it possible for the union to be sued if it excluded a qualified adult, so I'm now not sure what would draw the line.

Could you provide a couple of examples to illustrate different ways that, within the context of collective bargaining, a union would or would not be able to include a provision in a collective agreement that effectively excluded of a qualified adult from being able to gain employment with the business on the basis of being too young? For example, is it a question of there needing to be some sort of reasonable justification for the exclusion? If so,what would a reasonable justification be?

Would appreciate your thoughts...

I'll give it a try...

A restriction that all hiring by the company must be thru the union and that employment is based upon seniority. If this restriction is collectively bargained for, any new employees would be at the bottom of the list and if the company is not hiring, they could go years without employment at the company. This is not necessarily based upon age, but it largely affects younger employees.

You can look at the Clarett restriction as one based upon seniority. The NFL will not hire any employee who does not have more than 3 years on-job experience above the level of high school. If this was a restriction by a construction company, this could actually be upheld. Construction, eletrician, longshoremen, etc. unions generally require a certain amount of on-job training (apprenticeship) before the individual is permitted to work for the company on a full time, full benefits basis (learning the trade and how to do things properly). Similarly, the NFL might require a certain time of apprenticeship before Clarett can play. But you might say, well the apprentice still gets paid while Clarett is not. That's not entirely true. He is being paid in the value of his education+monthly stipend+room and board (which is actually far more than any apprentice construction worker could do). Or, he could go play in one of the other leagues (CFL, Arena, etc).

Or let me take the rationale behind the NFL rule. Allowing players to enter the league at the age of 18 would eliminate the viability of college football and ultimately reduce competition in the sports market. The restriction is absolutely necessary to keep college football going. Further, football is a high contact, physical sport where people's lives can often be placed in danger. Allowing 18 year olds, who have not spent the 2 or 3 years in college football developing BOTH their bodies and the knowledge of how to play the game, makes them susceptible to serious injury. A restriction is necessary to let them develop further and avoid injury. This is a health and safety rationale. Preventing injuries is a legitimate reason and the restriction could be upheld. Again, not saying I agree, but that's what the NFL has agrued in the past.

I agree that a restriction based on age is not like the others - that it is difficult to justify. I meant only to give examples where it might be justified. I think the fact that none of the other sports have an age restriction above 18 is going to doom the NFL. They would have to show why the NFL is different from all the rest.

 

[hillbillypriest]

I'll give it a try...

A restriction that all hiring by the company must be thru the union and that employment is based upon seniority. If this restriction is collectively bargained for, any new employees would be at the bottom of the list and if the company is not hiring, they could go years without employment at the company. This is not necessarily based upon age, but it largely affects younger employees.

You can look at the Clarett restriction as one based upon seniority. The NFL will not hire any employee who does not have more than 3 years on-job experience above the level of high school. If this was a restriction by a construction company, this could actually be upheld. Construction, eletrician, longshoremen, etc. unions generally require a certain amount of on-job training (apprenticeship) before the individual is permitted to work for the company on a full time, full benefits basis (learning the trade and how to do things properly). Similarly, the NFL might require a certain time of apprenticeship before Clarett can play. But you might say, well the apprentice still gets paid while Clarett is not. That's not entirely true. He is being paid in the value of his education+monthly stipend+room and board (which is actually far more than any apprentice construction worker could do). Or, he could go play in one of the other leagues (CFL, Arena, etc).

Or let me take the rationale behind the NFL rule. Allowing players to enter the league at the age of 18 would eliminate the viability of college football and ultimately reduce competition in the sports market. The restriction is absolutely necessary to keep college football going. Further, football is a high contact, physical sport where people's lives can often be placed in danger. Allowing 18 year olds, who have not spent the 2 or 3 years in college football developing BOTH their bodies and the knowledge of how to play the game, makes them susceptible to serious injury. A restriction is necessary to let them develop further and avoid injury. This is a health and safety rationale. Preventing injuries is a legitimate reason and the restriction could be upheld. Again, not saying I agree, but that's what the NFL has agrued in the past.

I agree that a restriction based on age is not like the others - that it is difficult to justify. I meant only to give examples where it might be justified. I think the fact that none of the other sports have an age restriction above 18 is going to doom the NFL. They would have to show why the NFL is different from all the rest.

I'm going to have to let this topic go, because you're mostly convincing me that the issues raised by the Clarett case are basically pretty grey. So to that extent you've taken me a long way on this issue, since I started on this thread not giving Clarett a chance.

Most of your post gives what sounds like a pretty sound rationale for why a sports union could reasonably "discriminate" against 18 year olds based on the acceptability of apprenticeships and the need for young bodies to finish developing. On the other hand, you conclude with the thought the what the other leagues have done will doom the NFL in the Clarett case. If you're saying that if the Clarett case will be viewed as an antitrust matter because the an age restriction is not a specific part of the NFL CBA, I think I have to agree that the lower entry age of other leagues would weigh against the NFL. However, I think what you said at the beginning of this post is fairly pursuasive to me that a sports league can, so long as the measure is supported by the union through the collective agreement, expect to be able to set an effective entry age higher than the age of majority.

Anyhoo, thanks again for all your thoughts on this DFA, really appreciated...

 

[degroat*]

Allowing players to enter the league at the age of 18 would eliminate the viability of college football and ultimately reduce competition in the sports market. The restriction is absolutely necessary to keep college football going.

College basketball seems to be doing quite well and the NBA accepts 18 year olds.

 

[David A. Rainer]

College basketball seems to be doing quite well and the NBA accepts 18 year olds.

The NFL claims that football is a different sport. Also, they would claim that it is only recently that 18 year olds have been making the jump past college basketball. And in that short time, the quality level of college basketball has markedly decreased.

 

[blitzkriegs]

well, for one thing, Clarett is not being denied an opportunity to play football. Maybe the NFL, but there are the alternatives (AFL, CFL, WFL) that he can play....while one is in the US, he does have an alternative until he meets the age requirement....

 

[Buffaloed]

Judge rules Clarett eligible for NFL draft

New York — Ohio State running back Maurice Clarett was ruled eligible for the NFL draft Thursday by a federal judge who concluded that the league's rule violates antitrust laws.
U.S. District Judge Shira Scheindlin ordered the NFL to let Clarett enter April's draft, a decision that could clear the way for others. The league will appeal.

The judge disagreed with the league's justification for the rule that younger players are not physically or mentally ready to play in the NFL stating that less restrictive measures could be used to test physical and mental maturity.

 

[Motown Beatdown]

Judge rules Clarett eligible for NFL draft



The judge disagreed with the league's justification for the rule that younger players are not physically or mentally ready to play in the NFL stating that less restrictive measures could be used to test physical and mental maturity.

i wanted to add the NFL said they will appeal the decision. I think the NFL's goal is to drag this out till after the draft is over.

IMO i think Clarett is making a bad choice. If he is entered in the draft, i doubt he'd go any higher than a 3rd rounder. But if he goes back to OSU, has another stealler year, he could be a top 15 pick in the 2005 draft.

 

[neg marron]

fail

Clarrett is selfish. He's a rare specimen, think about all the lesser talented and physically developed high schoolers that will bypass college and enter the draft only to be serving fries from McDonalds 3 years later. I hope he fails in the NFL so he can understand why players are essentially forced to go to college.

what if he doesn't fail but enjoys a hall of fame career then what besides he can always go to college in the off season besides what if there is a highschool player who is the next lt or jerry rice how do you deny him

 

[PecaFan]

As I said a few months ago, I didn't think the NFL had a chance to win this.

This isn't going to be a problem at all. Anybody who does enter the draft prematurely (fitting into their categories of too small, not developed enough etc) will do miserably at the combines, and not be drafted at all.

Similarly, those who are developed enough will be drafted, but at what spot? NFL teams are used to looking for guys who can step in right away. So, many of them will be drafted late, or passed over because teams aren't sure of what they'll be getting.

And if a guy declares, and screws up his career? Big deal, it's a free country. You have the right to screw up.

Maybe this'll help the CFL, as some of these budding superstars end up undrafted, and come up here for a few years to prove themselves.

 

[Malefic74]

College basketball seems to be doing quite well and the NBA accepts 18 year olds.

But if you look closely at the NBA since they started drafting players out of high school the overall quality of play has dramatically dropped. Kids come out of high school with almost no grasp of basic fundamentals, but they can dunk really well. So from the glory days of the 80s where it was game played on shooting percentage and open shots to now where teams are shooting below 40% on average and the game has suffered.

I have no doubt that the NFL is worried about the same thing happening, and I do think they have a point on the physically-ready side. Almost no athlete is fully developped at 18, not as much strength. In basketball, while there is contact, it is largely fairly light compared to football. Clarett's 18 year old body is going to be pounded 15-20 times per game by these mammoth linemen like Ted Washington at 6-5 380 lbs. That is asking a lot of a body not yet finished growing.

What really makes the NFL and NBA different from the NHL and even MLB is the fact that the colleges are effectively the feeder systems for the pro teams. If the NHL or MLB draft guys that young, they can go to the minors to polish their game and learn how to play with the pros and be a professional. If the NFL or NBA draft these kids they are pretty much forced to find them a spot on the team. Too many and the game itself suffers as we are now seeing in the NBA.

For that reason, to answer the original question of the thread, this decision does not really affect the NHL as they are always able to send players down to the minors or even back to their junior teams (Marc Andre Fleury) regardless of how young they were drafted.

 

[degroat*]

I agree with pretty much everything you just said. That said, it has very little to do with my post. What I said was that college football would be just fine if the NFL started accepting 18 year olds.

 

[Buffaloed]

For that reason, to answer the original question of the thread, this decision does not really affect the NHL as they are always able to send players down to the minors or even back to their junior teams (Marc Andre Fleury) regardless of how young they were drafted.

NHL teams spend millions of dollars scouting, drafting, and signing teenagers in an exercise that's almost as much art as science. They pour far too much money into potential that isn't realized. If it were legally possible, they'd raise the draft age to 20-21 in a heartbeat. Decisions like this one, if allowed to stand, would eliminate that possibility.

 

[Malefic74]

NHL teams spend millions of dollars scouting, drafting, and signing teenagers in an exercise that's almost as much art as science. They pour far too much money into potential that isn't realized. If it were legally possible, they'd raise the draft age to 20-21 in a heartbeat. Decisions like this one, if allowed to stand, would eliminate that possibility.

I agree. In fact I would go so far as to say that the Big 4 would all love to raise their draft ages. It is not likely to happen however. And while the teams may spend money on scouting and such, they have proven time and again to be very inept at it. The reason they start scouting so young now is that agents are doing the same. There are NHL player agents in the stands at Bantam and Midget games around here. That's 14 years old! At least the NHL doesn't push it that far. But as long as there is money to be made, particularly off of someone else's talent this will continue to happen.

I hope it doesn't happen this way, but there is a pretty good probability that Maurice Clarett will wind up on the outside with no money, while all these lawyers and agents who WILL get paid will walk away without a care in the world and a fat wallet once it's all over.

Oh, and degroat, my apologies. I read your post the other way, as a commentary on the NBA, rather than college basketball. Sorry bout that.

 

[Zhackpot]

He's challenging the NFL rule on anti-trust grounds that says a player must wait 3 years after his high school class graduates to enter the entry draft.

Legal analysis thinks Clarett has case

"I wish (Clarett) would stay in school," Jackson said. "But if you're old enough in this country to go to Iraq, and if you're old enough to answer the bell, you're old enough to work."


Quote from Jesse Jackson in the article referenced above.

There is no law that states Maurice Clarett has to work in the NFL. Jesse Jackson is right, Maurice Clarett is old enough to work so why doesn't he get a job bagging groceries or as a trade apprentice.

Why does Clarett think he is entitled to play in the NFL?

Clarett's case is crap and the ruling is bull. He is not being kept from working. He could get a job at McDonald's, although his criminal record might keep him from being hired.

Based on this ruling can I now sue Microsoft because they wouldn't hire me until I graduated from college when I wanted to work for them in high school?

 

[degroat*]

"I wish (Clarett) would stay in school," Jackson said. "But if you're old enough in this country to go to Iraq, and if you're old enough to answer the bell, you're old enough to work."


Quote from Jesse Jackson in the article referenced above.

There is no law that states Maurice Clarett has to work in the NFL. Jesse Jackson is right, Maurice Clarett is old enough to work so why doesn't he get a job bagging groceries or as a trade apprentice.

Why does Clarett think he is entitled to play in the NFL?

Clarett's case is crap and the ruling is bull. He is not being kept from working. He could get a job at McDonald's, although his criminal record might keep him from being hired.

Based on this ruling can I now sue Microsoft because they wouldn't hire me until I graduated from college when I wanted to work for them in high school?

I'm sorry, but you just don't understand the laws in this country very well. It is against the law for a company to discriminate based on age and Clarett's case that the rule is unconstitutional is exactly right.

And your comparison to wanting to work for Microsoft is wrong in so many different ways. For one, in high school (unless you're 18) you don't have the same rights as adults. Secondly, it is not against the law for Microsoft to not hire based on a lack of college degree.

 

[Zhackpot]

I'm sorry, but you just don't understand the laws in this country very well. It is against the law for a company to discriminate based on age and Clarett's case that the rule is unconstitutional is exactly right.

And your comparison to wanting to work for Microsoft is wrong in so many different ways. For one, in high school (unless you're 18) you don't have the same rights as adults. Secondly, it is not against the law for Microsoft to not hire based on a lack of college degree.

I do understand the laws but Clarett has been saying the NFL is keeping him from working and earning a living which is simply not the case.

And yes I was 18 towards the end of 12th grade.

 

[David A. Rainer]

I'm sorry, but you just don't understand the laws in this country very well. It is against the law for a company to discriminate based on age and Clarett's case that the rule is unconstitutional is exactly right.

Well, let me clear some things up for ya. Clarrett's case was not decided on constitutional grounds. It was based in Anti-trust law.

And restrictions based on age are sometimes upheld if there is a legitimate healthy and safety rationale for the restriction.