Reconsidering Maurice Clarett and Age Limits in Professional Sports

Twenty years ago, the U.S. Court of Appeals for the Second Circuit vacated a federal district judge’s order that had made former Ohio State running back Maurice Clarett eligible for the 2004 NFL draft.

The ruling altered the life of Clarett, who was Big Ten Freshman of the Year and a projected first round pick. It also set a precedent that insulated other leagues’ eligibility rules from legal scrutiny.

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In a world where college football stars can now earn seven-figure incomes through name, image and likeness and where college athletes might soon become employees and unionize, it’s interesting to reconsider Clarett v. NFL and the different era for college athletes surrounding it.

This Friday, the University of New Hampshire Franklin Pierce School of Law’s Sports and Entertainment Law Institute will host Clarett v. NFL: 20 Years Later and The Future of Age Limits in Pro Sports. The symposium can be watched online starting at 5 p.m. ET by registering here. Each of the speakers was involved in the litigation. Maurice Clarett, Michelle Clarett, U.S. District Judge Shira Scheindlin, Clarett lead counsel Alan Milstein, NFL counsel Benjamin Block and two other Clarett attorneys (Michael Dube and me) will participate.

Clarett was a megastar at Ohio State. His jersey was a best-seller, though he didn’t get a cut due to NCAA rules. Clarett’s impact on Ohio State football’s television ratings and ticket sales was also substantial, but NCAA rules denied him and his Buckeyes teammates shares. He also couldn’t sign endorsement deals and remain NCAA eligible, and—of course—he could not be paid a wage as an “amateur.”

Clarett, who rushed for 1,237 yards in 11 games and led the Buckeyes to the national championship game, sought to enter the NFL after playing one year in college. He was ineligible per the NFL’s eligibility rule, which requires that players be three years out of high school. Clarett sued, arguing the rule was a violation of antitrust law since the league and its teams had agreed to boycott any player—regardless of his talent, skill or financial need—solely on the basis of time elapsed from high school.

At the time, the NFL was the only major male pro league that blocked players from entrance until a prescribed period after high school graduation. Major League Baseball, the National Hockey League, Major League Soccer, NASCAR, pro tennis, pro golf, pro boxing, pro MMA and even the NBA—which would elevate its eligibility rule to 19-years-old and one year out of high school in 2006—allowed players to enter after high school or earlier. College football stars were also treated differently than professional actors, musicians and other talented individuals who turn pro at a time of their choosing.

The eligibility rule seemed to disproportionately benefit the NFL and big-time college football. The NFL enjoyed what was tantamount to a free minor league system, funded by colleges that saved money by not paying the labor beyond their grant-in-aid. Colleges, conferences and the NCAA, meanwhile, saw the popularity of college football explode as games were broadcast on ESPN and other major networks that paid millions. Other beneficiaries included video game publishers that featured the likenesses of college players, without their consent or paying them, and sneaker and apparel companies. They could rely on college football stars playing three seasons or, in the case of redshirt freshmen, two.

Judge Scheindlin of the Southern District of New York agreed with Clarett when she granted him summary judgment on Feb. 5, 2004. The judge bluntly wrote the eligibility rule “must be sacked.”

Clarett and the NFL debated whether the rule, which was not in the CBA but was referenced by it, was collectively bargained with the NFLPA. If it had been bargained, the rule would have been exempt from antitrust scrutiny so long as it concerned a mandatory subject of bargaining (wages, hours and conditions of employment). Scheindlin reasoned the rule didn’t concern a mandatory subject of bargaining. It only governed non-employees—that is, players who were not yet in the NFL who, because of the rule, could not enter the NFL or join the NFLPA.

Scheindlin was unpersuaded by NFL arguments the rule protected Clarett and others like him because they “are not sufficiently mature, either physically or psychologically, to endure the rigors of professional football.” She stressed the rule, by barring Clarett from entering the league and from “sell[ing] his services to the only viable buyer—the NFL,” reflected the kind of injury antitrust laws “are designed to prevent.”

She also observed the 6-foot, 230-pound Clarett, who was 20 at the time, was “taller and heavier than some of the NFL’s all-time greatest running backs,” and there was no question he would have been among the first running backs drafted.

Clarett’s victory proved short-lived. In an opinion authored by future U.S. Supreme Court Justice Sonia Sotomayor, the Second Circuit concluded the rule had been sufficiently bargained and that courts should defer to labor and management agreements.

Even though Clarett, by virtue of the rule, could not join the NFL and become an NFLPA member, the Second Circuit nonetheless reasoned he could be governed by a labor agreement in which he played no part. For its part, the NFLPA effectively sided with the NFL, writing in an amicus brief the rule primarily impacts those in the bargaining unit. If Clarett entered the NFL in 2004, he would have presumably taken the job of a veteran player and bumped the last player drafted, a.k.a. Mr. Irrelevant.

Clarett petitioned the U.S. Supreme Court to consider his case, but the Court declined. Clarett sat out a year and was drafted by the Denver Broncos in the third round of the 2005 NFL draft. He suffered an injury in training camp and was cut. Clarett later encountered legal problems and in 2006 pleaded guilty to charges for robbery and carrying a concealed weapon. He’s now a successful speaker, consultant and entrepreneur.

Friday’s symposium occurs at an inflection point in the sports industry. The line between pro and college sports continues to blur as NIL and employment recognition gain momentum. Those changes invite questions about the logic of age- or experienced-based eligibility restrictions and whether it’s worth a college athlete’s time and expense to sue a pro league over an eligibility rule when they can now be paid in college.

Does the NBA need an eligibility rule when players can turn pro through its G League or at young ages in other leagues? Consider that when he was 13, Dallas Mavericks star Luka Dončić signed with Real Madrid. Or take the WNBA, where American players must be at least 22 years old or college grads (or four years out of high school). Iowa senior Caitlin Clark, the presumptive number one pick in the upcoming 2024 WNBA draft, would have been good enough to enter the WNBA earlier in her career. NWSL teenage player Olivia Moultrie challenged the league’s 18-year-old eligibility rule and effectively won.

There’s a lot to discuss.

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