David Stern is breaking the law

[MikeInClifton]

I've always been against the 19 year old age limit imposed by the NBA on their future players.

After all, its been proven that elite players succeed in the league statistically, dont get into trouble as much when compared to college-honed players and are over 18 years old and can be even employed by the US Armed Forces to shoot bullets.

If a young player had the time, money and desire to challenge the rule, I feel it would be overturned in court. Mayo might have thought about it, but (if he did) chose not to as not to offend his future co-workers in the League. Can't blame him.

Here is a great post on the Sports Law Blog discussing it more.

NBA Players who Skipped College (http://sports-law.blogspot.com/2007/07/amir-johnson-and-nba-players-who.html)

[jkwuc89]

I am not sure I agree. I think the professional leagues as condition of their employment can set a minimum age requirement. Unless I am mistaken, the NFL's minimum age requirement challenged by Maurice Clarrett was upheld by a federal court. A review of this case was turned down by the Supreme Court. Assuming that this is true, there is a legal precedent on the books that the NBA can use if anyone decides to challenge the NBA's minimum age requirement in court.

[MikeInClifton]

I am not sure I agree. I think the professional leagues as condition of their employment can set a minimum age requirement. Unless I am mistaken, the NFL's minimum age requirement challenged by Maurice Clarrett was upheld by a federal court. A review of this case was turned down by the Supreme Court. Assuming that this is true, there is a legal precedent on the books that the NBA can use if anyone decides to challenge the NBA's minimum age requirement in court.

The Clarett ruling was partially decided with the fact that no previous football player had gone from high school straight to the pro's with any degree of success. The NFL side used this fact in their favor.

Obviously, Kevin Garnett, Kobe, LeBron and many others quickly make a basketball-based case much different from the Clarett case.

[jkwuc89]

Having previous players jump directly to the NBA from high school would certainly be a good argument for a lawyer arguing this case. I wonder if such past occurrences would be enough to overturn the ruling made in the NFL case. It is a near certainty that the NBA would use the NFL case to try to keep their age restriction in place.

[shaunsimpson]

Isn't it different since the agreement was with the players association? Also, I think that the international basketball scene would provide a tough case for the kids trying to go to the NBA. Where in football it is difficult to find another league that is in the same world as the NFL in basketball the Italy league and other European leagues make it to where the NBA isn't prohibiting the ability to make a living.

[jkwuc89]

I believe in the case against the NFL, that was the point trying to be made by the complainants. Specifically, they tried to make the case that the NFL age restriction prevented them from making a living. The court did not find this to be a compelling enough argument to rule in their favor.

In the NBA case, this argument is not relevant because a player can earn a living playing basketball abroad or in the NBDL.

[Bearcat Cafe]

I definitely don't agree that he is breaking the law. Bad idea? Sure. Illegal? Nope. Understand that its generally a bunch of plaintiff'$ attorney$ who claim this is illegal and that's just wishfull thinking. With the amount of money that is at stake here, if this had a shot in hades of being overturned by a court, they'd be lined up at the doors of the Southern District of New York with complaints in hand. Just my .02 worth.

[Bearcat Fan Since 1958]

I've always been against the 19 year old age limit imposed by the NBA on their future players.

After all, its been proven that elite players succeed in the league statistically, dont get into trouble as much when compared to college-honed players and are over 18 years old and can be even employed by the US Armed Forces to shoot bullets.

If a young player had the time, money and desire to challenge the rule, I feel it would be overturned in court. Mayo might have thought about it, but (if he did) chose not to as not to offend his future co-workers in the League. Can't blame him.

Here is a great post on the Sports Law Blog discussing it more.

NBA Players who Skipped College (http://sports-law.blogspot.com/2007/07/amir-johnson-and-nba-players-who.html)

Agreed. The first challenge overturns it. NBA is a job. 18 year olds who qualify should be allowed to apply for those jobs.

[MikeInClifton]

I definitely don't agree that he is breaking the law. Bad idea? Sure. Illegal? Nope. Understand that its generally a bunch of plaintiff'$ attorney$ who claim this is illegal and that's just wishfull thinking. With the amount of money that is at stake here, if this had a shot in hades of being overturned by a court, they'd be lined up at the doors of the Southern District of New York with complaints in hand. Just my .02 worth.

But you need a player who wants to test the ruling in court. Thats why I mentioned Mayo in my original note.

[MikeInClifton]

I think that the international basketball scene would provide a tough case for the kids trying to go to the NBA.

If I am a highly skilled basketball player of legal age, why should I have to go to a foreign country to practice my trade?

In what other professions are uniquely skilled people forced to go to another country?

As far as the NBDL - they make between $35K-50K a year. Its not an equivalent job, just an equivalent game with one tenth (or less) the pay of the NBA minimum.

[qsilvr2531]

I doubt it gets overturned. It's part of the collective bargaining agreement just like in the NFL. While the NBA can't argue that the players are physically or mentally capabe of playing in the NBA as the NFL did, I don't think that was the bulk of the NFL's case. The NBA players association has the right to negotiate on behalf of its members, including future members, and it has done so in this case. There is a chance it gets overturned but it isn't a slam dunk and if a player tried to get it overturned there is a decent chance the NCAA rules them ineligible and they miss a year of basketball. After what happened to Clarrett and Mike Williams I doubt many players are willing to take that risk when all they have to do is go to college, spend a year playing basketball and doing whatever else they want (since they barely have to do to school to stay eligible for the one semester that is necessary), and then move on to the NBA draft.

If the NCAA wanted to challenge the rule, they might be able to convince someone to do so by announcing that anyone challenging the rule but not hiring an agent (or something like that) would still be eligible to play if the courst ruled against them. But I don't think the NCAA has any problem with the rule (though I think they should).

[Bearcat Cafe]

But you need a player who wants to test the ruling in court. Thats why I mentioned Mayo in my original note.

Believe me, they'd take an ad out in the Sporting News to find the perfect plaintiff if they thought they had a case against this policy. They get a 8 out of 10 for having an argument that "feels" right. However they get a 2 out of 10 for substantive legal arguments.

[MikeInClifton]

Believe me, they'd take an ad out in the Sporting News to find the perfect plaintiff if they thought they had a case against this policy.

In the last three years that the NBA Draft was open to HS players, nineteen total players were taken - an average of about 6 per year.

So if there are only 5-6 players per year to choose from that could challenge the rule, you still have to convince one of the six that they could be a part of legal and sports history (and possibly be shunned by the NBA) or wait one year and become a millionaire. Its not that large of a pool of players to select from.

[Bearcat Cafe]

5-6 were taken, but 1000's were eligible. Outside of the overriding issue that the law allows private employers to set reasonable restrictions and qualifications for consideration, the legal question does not focus on if a kid is good enough to get drafted, but rather, if the rule improperly closes off opportunities to potential "employees" who are otherwise qualified for consideration.

You wouldn't need a Mayo. If you had a legal leg to stand on (which in this case is the courts have said is very doubtful) you'd just need a kid who sincerely and reasonably believes he should be able to throw his name into the draft. The star player would just be for show. Not for legal effect.

[Bearcat Cafe]

Agreed. The first challenge overturns it. NBA is a job. 18 year olds who qualify should be allowed to apply for those jobs.


This is the mistake people make all the time with regards to this issue. They hear the age of 18 and they think voting and serving in the military. The law does not create any right at 18 to be able to work for a specific employer in a specific industry. While the ADEA protects against age discrimination, courts facing this issue uniformly follow the conventional approach to age discrimination - that the ADEA is primarily meant to protect older workers from being treated less favorably than comparatively younger workers.

[MikeInClifton]

After reading this post on our message board, Michael McCann emailed me with some more information.
McCann runs the SportsLaw Blog that I linked to in the original post. He was one of the lawyers that was part of the Clarett case.

Much thanks to McCann for taking the time to write.

Here is what he sent me - I did some highlighting to emphasize some points I thought were interesting since the note is long.

A challenge to the NBA's rule could work depending upon which the jurisdiction the case is tried. If it is in a federal circuit that considers Mackey v. NFL, 543 F.2d 606 (8th Cir. 1976) good law, then it would have a real chance of succeeding. Mackey set out a 3-pronged test (known as the "Mackey Test") to evaluate whether a rule affecting players should be protected by the labor exemption or be subject to antitrust laws. If a rule is exempt from antitrust laws, it will be extremely hard to invalidate; if it is subject to antitrust laws, it is likely to be invalidated. The rule must pass all three prongs of the Mackey Test, otherwise it is subject to antitrust laws.
The three prongs, as they were litigated in Clarett, are as follows:


1) the only people subjected to the NFL age eligibility rule were Clarett and similarly situated athletes excluded from the bargaining unit (the NFLPA) and thus prevented from obtaining the terms and conditions of NFL employment;
2) the NFL age eligibility rule does not concern a mandatory subject of collective bargaining (i.e., unlike the NFL draft itself, which governs the method by which players enter the bargaining unit, the NFL age eligibility rule precludes certain nonemployees from applying for employment); and
3) the rule was not collectively bargained.


A plaintiff only needs to win on one of the three prongs, and Clarett won on all three before Judge Scheindlin of the U.S. District Court for the Southern District of New York. Unfortunately for us, the 2nd Circuit Court of Appeals did not consider Mackey binding, and held for the NFL on other grounds.

If such a claim were now to be brought by a prospective NFL or NBA player, prong 3 would no longer be available to the plaintiff, as the relevant age restrictions were clearly collectively-bargained in the latest CBAs between the NFL and NFLPA and the NBA and NBPA. But the other two prongs could, and I believe should, still work. The best circuit to try such a case would probably be the 8th Circuit, where the Mackey case was litigated, although other circuits could work as well. If the plaintiff won, there would be a conflict of laws between that circuit and the 2nd Circuit (where Clarett was tried) and the U.S. Supreme Court would seem poised to take the case, as it often does when federal circuits establish conflicting laws that pose national complications.

Also keep in mind that a challenge to the NBA's rule would be different than our argument in Clarett. In Clarett, we had to argue a hypothetical--"this is how the league would work if the age restriction was eliminated or lowered"; in the NBA, the argument would be, "look, we've already seen the performance of NBA players who skip college, and statistically, they average more points, rebounds, and assists than the average NBA player or the average player of any age group--and that includes the relatively few high school players who were eligible and not picked (some of whom, like Korleone Young, have gone on and done very well playing in Europe)." So not having to argue a hypothetical would help an a plaintiff contesting the NBA's rule.

Having said all that, and although I think there is a viable legal argument to invalidate the NBA and NFL age restriction, I would caution any prospective plaintiff that bringing such a claim would bring a great deal of negative publicity. A lot of people like age restrictions because they benefit college sports or because they believe they benefit the NBA and NFL; others like age restrictions because of their attitudes, explicit and implicit, towards NBA and NFL players.

In other words, this would not be a "cost-free" litigation; it would bring backlash from those who don't like challenges to institutions, particularly institutions that they feel invested in. That's why I believe such a claim, if it is to be brought, would be best brought by a group of players, as they could share the burden that comes with pursuing something that they believe is truly correct.

Best,

Michael McCann
Assistant Professor of Law, Mississippi College School of Law
Chair-Elect, Association of American Law Schools' Section on Sports and the Law
Co-Founder, The Harvard Law School Project on Law and Mind Sciences

[Bearcat Cafe]

McCann has been writing against this since it was first proposed when the CBA was being negotiated.

I personally don't agree with his reliance on Mackey. Its a stretch, IMO, but as he states, there is a chance it could work if the USSC decided to chuck the labor exception (unlikely). FYI, the 6th and 9th Circuits adopt parts of Mackey. Other federal circuits (including the 2nd) deem a line of cases such as Wood v. National Basketball Association, National Basketball Association v. Williams, and Caldwell v. American Basketball Association as controlling on this issue...

“to permit antitrust suits against sports leagues on the ground that their concerted action imposed a restraint upon the labor market would seriously undermine many of the policies embodied by these labor laws, such as the congressional policy favoring collective bargaining, the bargaining parties’ freedom of contract, and the widespread use of multiemployer bargaining units.”

[red_n_black_attack]

Agreed. The first challenge overturns it. NBA is a job. 18 year olds who qualify should be allowed to apply for those jobs.

The legal age for working is 16. 15 1/2 if you are under 12-15 hours. The demands of the NBA are physically hard, but if a kid is ready..let him go. I am in favor of something to protect the schools somewhat, just like in baseball. Step on campus, wait three years. 30-50K in NBADL is a better living than many minor league baseball players. There will be a few high schoolers that are really ready (or maybe could be truly developed in the NBADL).

[Irishbearcat]

Putting aside the legalities, I think it is the athlete's best interest to be made to go to college at least for one year. That alone pushes education somewhat, is given a chance to be around high quality people his own age, and will help in the adjustment to the pro league. I fail to see a downside.

[red_n_black_attack]

Putting aside the legalities, I think it is the athlete's best interest to be made to go to college at least for one year. That alone pushes education somewhat, is given a chance to be around high quality people his own age, and will help in the adjustment to the pro league. I fail to see a downside.

Agree completely that at least one year eases that transition from high school to traveling city to city and playing night in and noght out. I don't think anyone questions that it is somewhat better for the kids, especially those who don't shine in their one year and actually have to work on their game for 2-3 years to get ready for the SHOW!

[Bearcat Fan Since 1958]

The legal age for working is 16. 15 1/2 if you are under 12-15 hours. The demands of the NBA are physically hard, but if a kid is ready..let him go. I am in favor of something to protect the schools somewhat, just like in baseball. Step on campus, wait three years. 30-50K in NBADL is a better living than many minor league baseball players. There will be a few high schoolers that are really ready (or maybe could be truly developed in the NBADL).

Agreed. NBA is a job. If qualified for the job at 16 (as only Lew Alcindor and LeBron James have been in my lifetime), they should be able to apply for the NBA.

[Bearcat Fan Since 1958]

This is the mistake people make all the time with regards to this issue. They hear the age of 18 and they think voting and serving in the military. The law does not create any right at 18 to be able to work for a specific employer in a specific industry. While the ADEA protects against age discrimination, courts facing this issue uniformly follow the conventional approach to age discrimination - that the ADEA is primarily meant to protect older workers from being treated less favorably than comparatively younger workers.

18 year olds have have shown to be effective as NBA players. They should be allowed to apply for the NBA job(s) if they wish.

[Bearcat Fan Since 1958]

Putting aside the legalities, I think it is the athlete's best interest to be made to go to college at least for one year. That alone pushes education somewhat, is given a chance to be around high quality people his own age, and will help in the adjustment to the pro league. I fail to see a downside.

There is nothing to keep an NBA player from attending college in the offseason.

Michael Jordan did it and earned his UNC degree by doing so. If MJ can find the time, so can ANYBODY else.

[shaunsimpson]

Not a legal expert here, but you are allowed to discriminate against those under 18....correct?

[Irishbearcat]

There is nothing to keep an NBA player from attending college in the offseason.

Michael Jordan did it and earned his UNC degree by doing so. If MJ can find the time, so can ANYBODY else.


I do believe that he put some time in at UNC, therefore allowing him to 'go back'. I don't think there are too many kids out there that actually 'go back' to college from the beginning.

Let kids be kids. The NBA does not need them, nor do they need the NBA that bad to put aside a real opportunity.

[Bearcat Fan Since 1958]

I do believe that he put some time in at UNC, therefore allowing him to 'go back'. I don't think there are too many kids out there that actually 'go back' to college from the beginning.

Let kids be kids. The NBA does not need them, nor do they need the NBA that bad to put aside a real opportunity.

There is nothing that keeps an NBA player from earning a college degree, no matter whether he played there or not.

Let 18 year olds do what baseball and hockey players, or golfers and tennis players can do - turn pro at 18.

[MikeInClifton]

I've always been against the 19 year old age limit imposed by the NBA on their future players.

After all, its been proven that elite players succeed in the league statistically, dont get into trouble as much when compared to college-honed players and are over 18 years old and can be even employed by the US Armed Forces to shoot bullets.

If a young player had the time, money and desire to challenge the rule, I feel it would be overturned in court. Mayo might have thought about it, but (if he did) chose not to as not to offend his future co-workers in the League. Can't blame him.

Here is a great post on the Sports Law Blog discussing it more.

NBA Players who Skipped College (http://sports-law.blogspot.com/2007/07/amir-johnson-and-nba-players-who.html)

Bill Walker today in an article (http://msn.foxsports.com/cbk/story/7160388) states he had planned on challenging the NBA Age Limit rule until he tore his ACL.