Rough draft

In taking on the mighty NFL, Clarett faces his biggest challenge yet

Taking on the NCAA, Ohio State University and the Columbus (Ohio) Police Department apparently wasn't enough of a challenge for running back Maurice Clarett. Now the former Buckeyes star is facing off against the NFL, the most formidable litigant in the history of the sports industry.

The 19-year-old sophomore, who was suspended by for the season by OSU after accepting improper extra benefits and then lying to NCAA and school investigators, is challenging the NFL's draft-eligibility law. Claiming the rule, which since 1990 has required players to wait until three years after their high school class has graduated to take part in the draft, violates antitrust laws, Clarett and his attorney, Adam C. Milstein, are attempting to force the NFL to make a major change in one of its crown jewels. The draft is a mechanism that has served the league well since 1935, providing a balance of talent over the years and generating fan interest that is out of proportion with its importance. NFL owners love it, and they'll fight to keep it as is -- on their terms.

Although Clarett does have a few things going for him in the lawsuit he filed against the NFL Tuesday in U.S. District Court in Manhattan, he is in for a tough battle. It is no accident current NFL commissioner Paul Tagliabue was named to replace Pete Rozelle in 1989 after serving as the league's antitrust lawyer in more than 50 cases. NFL owners have long recognized their monopoly over pro football, and they're always ready to defend themselves. Litigation can be fun when you're splitting the bill with 31 other organizations.

Even when someone has a strong antitrust case against the NFL, as the players and their union did when they pursued free agency in the early 1990s, the league manages to make the battle a lot closer than it should be. Tagliabue and his brilliant general counsel, Jeff Pash, are at their best when defending what seems to be indefensible. They manage to come up with unexpected and effective arguments, and they know how to slow the proceedings down to a crawl. They spend enormous sums on outside counsel, retaining skilled and experienced litigators with expertise in delay and obfuscation that is the envy of lawyers everywhere.

The theory behind Clarett's legal challenge is obvious. The NFL, his lawyers assert, is guilty of using its monopoly over pro football to strangle the market for players, restricting them to the team that drafts them instead of allowing them to sell their services to the highest bidder. Clarett's lawyers will argue the draft itself is an obvious violation of antitrust laws, and keeping a player from entering the draft is even more of one.

The problem for Clarett is that there is a big, hairy exception to the antitrust laws that may kill his chances to eliminate the three-year requirement. The legal term for it is the "non-statutory labor exemption." Under its rule, anything that is included in the collective bargaining agreement between the players and the owners is immune from antitrust laws.

No one knows more about the labor exemption and how to use it to his advantage than Pash. Although the exemption did not help the NFL fight off free agency, which began in in 1993, the league did use it to beat the union in a case that went to the U.S. Supreme Court in 1996. In a decision that surprised antitrust lawyers and scholars, Justice Stephen Breyer led a majority that ruled (in Brown vs. Pro Football Inc.) unionized employees cannot file antitrust suits, allowing the NFL to use the exemption to set salaries for developmental squad players and meaning the players' association would have to decertify before players could challenge owners on antitrust grounds. That decision may provide the basis for the NFL to defeat Clarett's attack against the draft.

Like the three-year rule, the salary scale for developmental squad players was not expressly set forth in the union contract. There had been no mention of it in bargaining, and there had been a long tradition of individually bargained contracts for players on the developmental squad. The salary scale was suddenly imposed by the owners without discussion with the players' association.

Lawyers for the union thought the obvious gap between the salary scale and collective bargaining would be enough to avoid the labor exemption and allow the application of antitrust laws. No, said Breyer, in an opinion marked by numerous factual errors and roundly criticized by legal scholars. Even though the salary scale was imposed by the league without the agreement of the union, Breyer theorized that it was close enough to the items covered in the contract that it escaped antitrust scrutiny. It was a ruling that cost the union $30 million in damages.

Clarett faces the same problem. The three-year rule is not set forth specifically in the union contract. The NFL imposed the rule on its own. But it is obviously part of the draft, and the draft is established in the union contract. Clarett's lawyers must find a way around the labor exemption, an exemption that multiplied in size in the Supreme Court opinion the developmental squad decision.

That's not Clarett's only problem. The only way he can succeed is to obtain a quick injunction, but the requirements for an injunction under the antitrust laws are tough. Clarett must quickly demonstrate that his case has merit based on the legal issues it raises. He must prove that he is irreparably damaged by the NFL's rule. And he must show that his plea is in the public interest.

Clarett could stumble over the labor exemption or any of the injunction requirements. Although others have succeeded in lawsuits attacking drafts in professional sports (notably Yazoo Smith's suit against the pro football draft in 1975 and Spencer Haywood's successful 1971 challenge to the NBA), none of them faced the difficulties Clarett will encounter as he picks a fight with the NFL.

Sports Illustrated legal analyst Lester Munson regularly Holds Court on sports law and business matters on SI.com.