Justice Sonia Sotomayor and the Relationship between Leagues and Players: Insights and Implications Essay

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2010

Justice Sonia Sotomayor and the Relationship between Leagues Justice Sonia Sotomayor and the Relationship between Leagues

and Players: Insights and Implications Essay and Players: Insights and Implications Essay

Michael A. McCann

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CONNECTICUT

LAW REVIEW

VOLUME 42 FEBRUARY 2010 NUMBER 3

Essay

Justice Sonia Sotomayor and the Relationship Between

Leagues and Players: Insights and Implications

MICHAEL A. MCCANN

This Essay examines U.S. Supreme Court Justice Sonia Sotomayor’s

important role in shaping U.S. sports law. As a judge on the U.S. District

Court for the Southern District of New York and later on the U.S. Court of

Appeals for the Second Circuit, Sotomayor authored opinions that resolved

two major sports law disputes: whether Major League Baseball owners

could unilaterally impose new labor conditions on players during the 1994

baseball strike and whether Ohio State University sophomore Maurice

Clarett was obligated to wait three years from the completion of high

school to become eligible for the National Football League draft.

Although some critics of Justice Sotomayor charge that she sacrifices

traditional legal analysis in order to advance progressive ideals, her views

on the relationship between leagues and players appear far more

conventional, if not rigid. This conclusion furnishes insight on how she

might assess two emerging sports law disputes: whether the National

Basketball Association’s eligibility restriction violates section 1 of the

Sherman Antitrust Act and whether the National Football League

comprises a single entity. The latter dispute is the subject of American

Needle v. National Football League, oral arguments for which were heard

by Justice Sotomayor and other Supreme Court Justices in January 2010.

ESSAY CONTENTS

I. INTRODUCTION ................................................................................... 903

II. CONCEPTIONS OF LABOR RIGHTS

FOR LEAGUES, TEAMS, AND PLAYERS......................................... 905

III. CONCEPTIONS OF LABOR RIGHTS

FOR EXISTING PLAYERS

AND PROSPECTIVE PLAYERS ........................................................ 909

IV. IMPLICATIONS FOR PROSPECTIVE LITIGATION ....................... 914

A. ELIGIBILITY FOR THE NBA DRAFT ..................................................... 914

B. ANTITRUST IMMUNITY FOR PROFESSIONAL SPORTS LEAGUES ............ 919

V. CONCLUSION ...................................................................................... 922

Justice Sonia Sotomayor and the Relationship Between

Leagues and Players: Insights and Implications

MICHAEL A. MCCANN

INTRODUCTION

When President Barack Obama nominated Sonia Sotomayor to

succeed retiring Justice David Souter on the United States Supreme Court,

politicians and commentators vigorously debated her judicial philosophy.

They poured through Justice Sotomayor’s opinions, speeches, and other

writings, examining and sometimes cherry-picking her words and

expressions. Competing sets of beliefs, ideas, and attitudes have been

offered to explain Justice Sotomayor’s legal reasoning.

Critics of Justice Sotomayor have championed an alleged weakness:

she crafts her opinions to advance progressive agendas, with wavering

adherence to actual law.

Proponents of this viewpoint cite President

Obama’s comment that he selected Justice Sotomayor partly because of her

“compassion,” with the insinuation, in their view, that she bends fixed

rules in order to aid disadvantaged litigants.

Still others chastise the

* Associate Professor of Law, Vermont Law School; Legal Analyst and SI.com Columnist,

Sports Illustrated; Co-founder, Project on Law and Mind Sciences at Harvard Law School. I thank

Vermont Law School for funding this project through a research grant, Patrick Malloy for his excellent

research assistance, and terrific comments from Nathanial Grow and Marc Edelman. As a disclosure, I

served as counsel to Maurice Clarett in his lawsuit against the National Football League and its

eligibility rule. See Clarett v. Nat’l Football League, 369 F.3d 124 (2d Cir. 2004). The U.S. Court of

Appeals for the Second Circuit held against Clarett, with then-Judge Sotomayor writing the opinion.

See, e.g., George F. Will, Identity Justice: Obama’s Conventional Choice, WASH. POST, May

27, 2009, at A19 (contending that Justice Sotomayor utilizes “identity politics, including the idea of

categorical representation: A person is what his or her race, ethnicity, gender, or sexual preference is,

and members of a particular category can be represented—understood, empathized with—only by

persons of the same identity.”); Face the Nation (CBS television broadcast June 7, 2009) (quoting

former U.S. Speaker of the House Newt Gingrich as stating, “In article after article and speech after

speech, [Sotomayor] has said policy should be made by the court, the court should radically rewrite

legislation and modernize the Constitution, judges have to intervene on social policy.”); Anthony Dick,

Sotomayor’s Empathy: Beyond Race, N

AT’L REV. ONLINE, June 3, 2009, http://bench.

nationalreview.com/post/?q=OGRmYzM5OWNkMzE5MWEzYTE0MTRiOTEzNDhmZDA4NGY=

(questioning Justice Sotomayor’s commitment to conventional legal application in Bartlett v. New York

State Board of Law Examiners, 226 F.3d 69 (2d Cir. 2000), where Sotomayor reasoned that in order to

ascertain the “true abilities and knowledge” of a bar applicant who was unable to read well due to a

learning disability, she was entitled to twice as much time to take the bar exam).

See Terry Eastland, The Problem with Judicial Empathy, WKLY. STANDARD, June 8, 2009

(“Compassion, as Obama sees it, that will lead the judge to reach the right (which is to say the left)

result.”); Thomas Sowell, Sotomayor: “Empathy” in Action, T

OWNHALL.COM, May 27, 2009,

http://townhall.com/columnists/ThomasSowell/2009/05/27/sotomayor__empathy_in_action (“Barack

Obama’s repeated claim that a Supreme Court justice should have ‘empathy’ with various groups has

raised red flags . . . .”).

904 CONNECTICUT LAW REVIEW [Vol. 42:901

quality of her logic as overlooking or obscuring substantive legal issues.

At their core, these criticisms attempt to impugn Justice Sotomayor as unfit

for the Court.

As this Essay explores in Parts II and III, such criticisms are countered

by Justice Sotomayor’s role in resolving two notable sports law disputes.

In assessing whether Major League Baseball (“MLB”) owners could

unilaterally impose new labor conditions on MLB players during the 1994

baseball strike

and whether Ohio State University sophomore Maurice

Clarett was obligated to wait three years from the completion of high

school to become eligible for the National Football League (“NFL”) draft,

Justice Sotomayor invoked traditional, arguably inflexible, applications of

federal labor law. In fact, from the lens of each case’s least-advantaged

party, her opinions may have seemed bereft of “compassion”:

economically-disadvantaged MLB teams were denied more equality in

competing for high-priced players, and a twenty-year-old who was

ineligible to return to college football and who unquestionably attracted the

interests of NFL teams was denied the chance to capitalize on his talents.

Part IV examines how Justice Sotomayor’s opinions in Silverman v.

Major League Baseball Player Relations Committee and Clarett v. NFL

are revealing, not only because they undermine a leading critique of her

nomination, but because they also suggest how she, as a Justice, might

assess two emerging sports law disputes of relative importance.

First, an amateur basketball player could file a lawsuit against the

National Basketball Association (“NBA”) claiming that its eligibility

requirement, which since 2006 has required that U.S. players be at least

nineteen years old and one year removed from high school,

violates

section 1 of the Sherman Antitrust Act.

There are persistent rumors of

such litigation arising, particularly as the NBA seeks to raise the eligibility

rule to twenty years of age and two years removed from high school.

See, e.g., Jeffrey Rosen, The Case Against Sotomayor, NEW REPUBLIC, May 4, 2009,

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085 (“[Sotomayor’s]

opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and

sometimes miss the forest for the trees.”).

Silverman v. Major League Baseball Player Relations Comm., Inc., 880 F. Supp. 246, 250–51

(S.D.N.Y. 1995).

Clarett v. Nat’l Football League (Clarett II), 369 F.3d 124, 125 (2d Cir. 2004).

See NBA, Collective Bargaining Agreement, art. X, § 1 (2005). From 1976 to 2005, any

amateur player could declare his intention to be eligible for the NBA Draft, provided both his high

school class had graduated and he had made his declaration within forty-five days of the NBA Draft.

See NBPA Collective Bargaining Agreement, art. X, § 5(a) (1999).

Sherman Act, 15 U.S.C. § 1 (2006) (providing in pertinent part: “Every contract, combination

in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is declared to be illegal.”).

Howard Beck, From Preps to the Pinnacle of the N.B.A., N.Y. TIMES, May 28, 2009, at B15;

Zach Lowe, The Jim Calhoun Chronicles: Text Messages, Age Limits, and Misspelling Your Lawyer’s

Name, A

M. L. DAILY, Mar. 30, 2009, http://amlawdaily.typepad.com/amlawdaily/2009/03/the-jim-

calhoun.html.

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 905

Justice Sotomayor’s opinion in Clarett would prove consequential, if not

determinative, in such a case. Moreover, should a circuit split emerge on

age limits in professional sports—a distinct possibility—the Supreme

Court would be poised to resolve the matter. Justice Sotomayor could

once again influence the legal capacity of eighteen-year-old athletes who

seek to play professional sports.

Even more meaningful, Sotomayor could impact how antitrust law

regulates professional sports leagues. In its October 2009 term, the U.S.

Supreme Court reviewed the U.S. Court of Appeals for the Seventh

Circuit’s recent decision in American Needle v. National Football League.

At its core, American Needle concerns whether professional sports leagues

are “single entities,” a status that would effectively immunize them from

constraining requirements of federal antitrust law.

As Part IV discusses,

Justice Sotomayor’s skepticism of unilateral league maneuvers, but

pragmatic deference for league operations, present a mixed bag for

professional sports leagues and their ambitions to escape antitrust scrutiny.

II.

CONCEPTIONS OF LABOR RIGHTS FOR LEAGUES, TEAMS, AND PLAYERS

Justice Sotomayor clearly values the sanctity of collectively-bargained

terms between professional sports leagues and their respective players’

associations. These terms are agreed upon by both franchise owners and

players and are contained in their collective bargaining agreements

(“CBAs”), which, inter alia, regulate the so-called “mandatory subjects of

bargaining”—players’ wages, hours, and other employment conditions.

The non-statutory labor exemption encourages owners to collectively-

bargain, rather than to unilaterally impose rules implicating these

mandatory subjects: the exemption furnishes antitrust immunity for

bargained terms if those terms concern mandatory subjects and primarily

affect the owners and players.

There is no such exemption for

unilaterally-imposed rules, or those rules that implicate non-mandatory

subjects or primarily affect third parties.

The non-statutory labor

Am. Needle Inc. v. Nat’l Football League, 538 F.3d 736 (7th Cir. 2008). On June 29, 2009, the

U.S. Supreme Court announced that it granted review of American Needle. Am. Needle Inc. v. Nat’l

Football League, 538 F.3d 736 (7th Cir. 2008), cert. granted, 129 S. Ct. 2859 (U.S. June 29, 2009) (No.

08-661). On January 13, 2010, the Supreme Court heard oral arguments in this case. See Transcript of

Oral Argument, Am. Needle Inc. v. Nat’l Football League, No. 08-661 (U.S. argued Jan. 13, 2010).

Am. Needle Inc., 538 F.3d at 740.

See Clarett v. Nat’l Football League (Clarett I), 306 F. Supp. 2d 379, 392–93 (S.D.N.Y. 2004).

See Brown v. Pro Football, Inc., 518 U.S. 231, 235–38 (1996) (explaining that it would be

difficult and illogical to exclude all “competition-restricting agreements” from collective bargaining).

Leagues enjoy other limited exemptions from antitrust law, including the Sports Broadcasting

Act of 1961, which grants MLB, NFL, NBA, and the NHL an exemption for the negotiation of

television contracts. See 15 U.S.C. § 1291 (2006); Stephen F. Ross, An Antitrust Analysis of Sports

League Contracts with Cable Networks, 39 E

MORY L.J. 463, 468–71 (1990). MLB also has a limited

exemption from antitrust laws stemming from Federal Baseball Club of Baltimore, Inc. v. National

League of Professional Baseball Clubs, 259 U.S. 200, 208 (1922), premised on baseball’s historic role

906 CONNECTICUT LAW REVIEW [Vol. 42:901

exemption embodies a well-established federal policy that employees are

better off negotiating together than individually.

In Silverman, then-Judge Sotomayor, presiding on the U.S. District

Court for the Southern District of New York, effectively rejected a new set

of employment terms that MLB had unilaterally imposed.

The terms,

which would have curbed player salaries, were designed to

disproportionately benefit “small market,” revenue-disadvantaged

franchises, such as the Pittsburgh Pirates and the Kansas City Royals.

the modern era of high-priced players, these teams usually struggle to

compete with the more prosperous clubs, such as the New York Yankees

or the Boston Red Sox.

Applying a conventional interpretation of labor

law, Sotomayor characterized the terms as incompatible with language for

which MLB and the Major League Baseball Players’ Association

(“MLBPA”) had bargained. Notably, her opinion sidestepped discussion

of the plight of small market clubs and their fans or, for that matter, the

plight of low-paid players who were set to replace the strikers. Indeed, it

stuck firmly to the letter of the law and refrained from the kinds of

subjective considerations that rile her contemporary critics.

Silverman occurred after the MLB CBA had expired and while

baseball players were on strike from August 1994 to April 1995.

During

this time, MLB and the MLBPA attempted to negotiate a new CBA, which

would have ended the strike. Frustrated by contentious negotiations, MLB

as the U.S. pastime. In 1998, MLB’s limited exemption was substantially narrowed by federal

legislation. See Curt Flood Act of 1998, 15 U.S.C. § 26b (2006). Issues between MLB and MLBPA

were excluded from the exemption. Id.

See 29 U.S.C. § 102 (2006) (indicating that the Norris-LaGuardia Act favors the organization

of labor); Nat’l Labor Relations Bd. v. Am. Nat’l Ins. Co., 343 U.S. 395, 402 (1952) (explaining that

prior to the National Labor Relations Act, courts obligated employers to negotiate with employee

representatives); Michael C. Harper, Leveling the Road from Borg-Wagner to First National

Maintenance: The Scope of Mandatory Bargaining, 68 V

A. L. REV. 1447, 1478 (1982) (discussing the

empowerment of bargaining units to represent individual employees as a collective entity).

Silverman v. Major League Baseball Player Relations Comm., Inc., 880 F. Supp. 246, 261

(S.D.N.Y. 1995).

See Tim Brown, Bare Markets, L.A. TIMES, Apr. 1, 2005, at D1.

See RICHARD C. LEVIN ET AL., THE REPORT OF THE INDEPENDENT MEMBERS OF THE

COMMISSIONER’S BLUE RIBBON PANEL ON BASEBALL ECONOMICS 4 (2000), available at

http://www.mlb.com/mlb/downloads/blue_ribbon.pdf (finding that payrolls are correlated with

winning); Bryan Day, Labor Pains: Why Contraction Is Not the Solution to Major League Baseball’s

Competitive Balance Problems, 12 F

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 521, 536 (2002) (“The

correlation between team win percentage and team payroll has been significant at the highest statistical

level every year between 1995 and 2001.”); Michael Lewis, Individual Team Incentives and Managing

Competitive Balance in Sports Leagues: An Empirical Analysis of Major League Baseball, 45 J.

MKTG.

RES. 535, 543–44 (2008) (identifying empirical support for the proposition that market size exerts a

significant effect on team payrolls, with larger market teams being able to afford higher payrolls);

Frederick Wiseman & Sangit Chatterjee, Team Payroll and Team Performance in Major League

Baseball: 1985–2002, 1 E

CON. BULL. 1, 3 (2003) (finding that team success is statistically more likely

with higher payrolls).

Silverman, 880 F. Supp. at 251–52; see also William B. Gould IV, The 1994–‘95 Baseball

Strike and the National Labor Relations Board: To the Precipice and Back Again, 110 W.

VA. L. REV.

983, 983 (2008) (supplying a detailed account of Silverman and its underlying facts).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 907

unilaterally imposed, and then rescinded, a salary cap on teams’ payrolls.

MLB then notified the MLBPA that the league, as opposed to individual

teams, would negotiate free agent player contracts—meaning that players

would be unable to induce multiple teams to compete for their services.

MLB also announced that player arbitration rights were eliminated, thereby

removing third-party involvement in salary disputes between players and

teams.

MLB viewed these new conditions as crucial to preserving its

long-term viability, particularly the viability of small market clubs.

The MLBPA, however, rejected the conditions on both policy grounds

and legal grounds. From a policy standpoint, the conditions would have

restrained salaries in future player contracts and diminished the capacity of

free agent players to select their employers.

Legally, the conditions

would have altered existing contracts between players and teams, an

outcome prohibited by the expired CBA and arguably constitutive of unfair

labor practices.

In granting an injunction in favor of the MLBPA, then-Judge

Sotomayor prevented baseball owners from unilaterally achieving their

goal. She reasoned that since the owners and players continued to bargain

in good faith, the expired CBA remained in effect, and its terms remained

operative.

Moreover, Sotomayor declined to embrace MLB’s creative

characterizations of the unilaterally-imposed conditions as permissive

subjects of bargaining. Instead, she applied the traditional meaning of

See Marc Chalpin, It Ain’t Over ‘Til It’s Over: The Century Long Conflict Between the Owners

and the Players in Major League Baseball, 60 A

LB. L. REV. 205, 218 (1996) (“Perhaps the most

important victory for the players in the 1973 Basic Agreement was the institution of salary arbitration.

If a player met the eligibility requirements, and he could not reach an agreement with his team owner,

an outside arbitrator would resolve the dispute.”).

Through collective bargaining, the MLBPA fought to obtain free agency and to secure the

abolition of the “reserve clause” system. Under this system, which dominated baseball from the 1880s

to the 1970s, MLB teams could re-sign any player to a one-year contract; a player could only become a

free agent if a team let him. As a result, players could not readily move from one team to another in

search of higher wages. See J. Gordon Hylton, Why Baseball’s Antitrust Exemption Still Survives, 9

ARQ. SPORTS L.J. 391, 391–92 (1999) (“It seems quite likely . . . that the players would have

eventually have secured significant modifications, if not outright termination, of the reserve system

without either the Flood lawsuit . . . or the Curt Flood Act.”); Geoffrey Christopher Rapp, Affirmative

Injunctions in Athletic Employment Contracts: Rethinking the Place of the Lumley Rule in American

Sports Law, 16 M

ARQ. SPORTS L. REV. 261, 278–79 (2006) (discussing efforts by MLB players to

challenge the reserve clause).

See Silverman, 880 F. Supp. at 259 (“[Judge Sotomayor found] that returning the parties to the

status quo [would] permit them to salvage some of the important bargaining equality that existed before

the February 6 unfair labor practices were committed.”).

Id. at 253. Sotomayor’s reasoning was based on precedent: the U.S. Supreme Court has held

that expired CBAs remain in effect unless the parties reach a new agreement or the parties bargain in

good faith to impasse. See, e.g., Laborers Health & Welfare Trust v. Advanced Lightweight Concrete

Co., 484 U.S. 539, 544 n.6 (1988). Here, the parties continued to negotiate after expiration of the CBA,

thus precluding a finding of an impasse, which is “that point at which the parties have exhausted the

prospects of concluding an agreement and further discussions would be fruitless.” Id. at 543 n.5.

908 CONNECTICUT LAW REVIEW [Vol. 42:901

employment conditions.

Justice Sotomayor’s decision placed the players

and owners in the same position they were in before the strike began. With

their leverage lost, the owners dropped their ambitious bargaining goals

and the strike ended four days later.

Although fans expressed contempt for both the owners and players,

commentators generally regarded the MLBPA as the strike’s victor.

dodged most of MLB’s demands, and though it agreed to a “luxury tax”

(which taxed the teams with the highest payrolls and redistributed those

funds to small market teams), the tax would have little effect on players’

earning power.

Player salaries, in fact, would increase 8.5% and 14.2%,

respectively, in the following two seasons.

The tax also failed to achieve

its progressive purpose, as teams with relatively high payrolls—most

notably the Red Sox, Yankees, and Dodgers—continued to lavishly pay

players, while those teams with the smallest payrolls remained unlikely

suitors for stars.

Interestingly, Sotomayor was portrayed as most victorious. She

received considerable praise from sports fans and journalists for having

restored the national pastime, with a Philadelphia Inquirer columnist going

so far as to place her contributions on par with those of Jackie Robinson,

Joe DiMaggio, Ted Williams, and other Hall of Fame players.

Yet in the aftermath of Justice Sotomayor’s decision, the underlying

policy implications of a “more level playing field” for MLB franchises

would not see their day in court or on the field. Indeed, without

significantly changed labor conditions, player salaries and team payroll

See Silverman, 880 F. Supp. at 259 (“[T]his strike is about more than just whether the Players

and Owners will resolve their differences. It is also about how the principles embodied by federal labor

law operate.”); Chalpin, supra note 19, at 233 (describing MLB’s actions as “clearly inconsistent with

federal labor laws”); Stephen F. Ross, The Misunderstood Alliance Between Sports Fans, Players, and

the Antitrust Laws, 1997 U.

ILL. L. REV. 519, 524–25 n.18 (citing Silverman as the paradigmatic case

of labor law used to regulate unilateral action by owners).

See Murray Chass, Baseball Owners Quit Fight, N.Y. TIMES, Apr. 3, 1995, at A1.

See, e.g., Jeffrey Simpson, The Baseball Owners Won Nothing, GLOBE & MAIL (Can.), Apr. 5,

1995 (opining that the owners were defeated “on all fronts”).

See Dan Messeloff, The NBA’s Deal with the Devil: The Antitrust Implications of the 1999

NBA-NBPA Collective Bargaining Agreement, 10 F

ORDHAM INTELL. PROP. MEDIA & ENT. L.J. 521,

562–63 (2000) (discussing criticisms of the luxury tax); Thomas A. Piraino, Jr., A Proposal for the

Antitrust Regulation of Professional Sports, 79 B.U.

L. REV. 889, 937–38 n.296 (1999) (explaining the

mechanics and significant limitations of the luxury tax); Bob Nightengale, Peace at Last, L.A.

TIMES,

Nov. 27, 1996, at C1 (providing details on the 1996 MLB-MLBPA collective bargaining agreement

and the luxury tax).

See MARK CONRAD, THE BUSINESS OF SPORTS 121 (2006).

For commentary on the luxury tax, see LEVIN ET AL., supra note 17, at 39; Eric Fisher, Yankees,

Braves Set MLB’s Tone, W

ASH. TIMES, Oct. 24, 1999, at A5; Bill Madden, Padres Rebuilding Once

Again, D

AILY NEWS (N.Y.), Jan. 17, 1999, at 105.

See Bruce Jenkins, A’s, Giants Will Finish Atop Divisions, S. F. CHRON., Apr. 22, 1995, at B1

(noting that “[s]till the most heroic name in baseball until further notice: Sonia Sotomayor”); Claude

Lewis, Strike Isn’t Enough to Sour Fans’ Affair with Baseball, D

ALLAS MORNING NEWS, Apr. 6, 1995,

at 25A.

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 909

disparities would only grow.

Consequently, as some had feared, these

disparities would eventually impair small market franchises. The Montreal

Expos, in fact, essentially ran out of money in 2002, requiring the league to

purchase them.

Montreal no longer has an MLB franchise.

The strike’s resolution also emboldened the MLBPA, supplying it with

the confidence to repel subsequent attempts by owners to institute a salary

cap.

This confidence may not always have benefited the players or the

game itself. In the late 1990s and early 2000s, the MLBPA resisted

owners’ calls for stricter drug testing policies—policies that may have

mitigated the now infamous steroids scandal and dissuaded Congress from

holding hearings, which irreparably tarnished several players’ careers.

To this day, baseball remains under a cloud of suspicion as to which

players used steroids.

Similarly, many of the impressive records

achieved over the last ten to fifteen years—most notably Barry Bonds

setting the all-time home run record—will be discounted, if not outright

ignored, by future generations.

To be clear, Justice Sotomayor should not draw blame for baseball’s

assorted woes; there are numerous causes and culprits from within and

around the game. More importantly, she merely applied the law in

Silverman as it was conventionally understood. Indeed, far from the

radical jurist some now portray her as, Justice Sotomayor, for good or bad,

seemed anything but radical.

III.

CONCEPTIONS OF LABOR RIGHTS FOR EXISTING PLAYERS

AND PROSPECTIVE PLAYERS

Justice Sotomayor’s approach to Clarett v. NFL offers concurring

themes, as she likewise exhibited a preference for unbending applications

of labor law over seemingly more “compassionate” ones.

See Joe Lemire, SI Players: Life on and off the Field, SPORTS ILLUSTRATED, Apr. 20, 2009, at

19 (noting that the total annual payroll of MLB players tripled from 1994 to 2009); Wiseman &

Chatterjee, supra note 17, at 3 (explaining that the “growing disparity” in team payrolls will hurt the

competitive balance of the game); BizOfBaseball.com, Average Salary 1967–2007,

http://www.bizofbaseball.com/index.php?option=com_content&task=view&id=563&Itemid=42 (last

visited Jan. 8, 2010) (displaying how the average MLB salary increased from $1.2 million in 1994 to

$2.7 million in 2006).

See David Schoenfield, Still 30 Teams: Contraction Timeline, ESPN, Feb. 5, 2002,

http://assets.espn.go.com/mlb/s/2002/0205/1323230.html (detailing MLB’s response to the assorted

financial issues faced by the Montreal Expos between 2001 and 2002).

See Nathaniel Grow, Reevaluating the Curt Flood Act of 1998, 87 NEB. L. REV. 747, 753–55

(2009) (discussing MLB’s collective bargaining efforts over the last fifteen years).

See David K. Osei, Note, Doping, Juicing, and Executive Bypass Oversight: A Case Study of

Major League Baseball’s Steroid Scandal, 4 V

A. SPORTS & ENT. L.J. 155, 168–69 (2004) (discussing

the “singular goal” of the MLPBA to prevent enhanced testing for steroids).

See Michael McCann, Will Steroids Report Lead to Perjury Investigation of Sammy Sosa?,

SI.

COM, June 16, 2009, http://sportsillustrated.cnn.com/2009/writers/michael_mccann/06/16/sammy.

sosa/index.html?eref=sihpT1 (describing a supposedly confidential list of 104 names of MLB players

who tested positive for steroids in 2003 and how the list may be publicly revealed over time).

910 CONNECTICUT LAW REVIEW [Vol. 42:901

Clarett centered on Maurice Clarett, who in 2004 argued that the

NFL’s eligibility requirement, which requires that at least three years pass

from when an amateur player graduated from high school and the NFL

draft, violated section 1 of the Sherman Act.

Section 1 prohibits

unreasonable restraints of trade, which courts have defined to include

unilaterally-imposed barriers on entry to professional sports leagues.

Then-Judge Sotomayor, as a member of a three-judge panel on the U.S.

Court of Appeals for the Second Circuit, wrote a much-publicized opinion

in favor of the NFL. The decision reversed a similarly noteworthy opinion

from Judge Shira Scheindlin of the U.S. District Court for the Southern

District of New York.

Clarett embodied an intriguing and somewhat emblematic plaintiff.

Similar to some other star athletes, Clarett experienced challenging life

circumstances as a child and young adult.

His football prowess enabled

him to matriculate at Ohio State University, where as a freshman he led the

Buckeyes to a national championship, while receiving numerous individual

awards.

Clarett’s success was not lost on the Ohio State community, as his

jersey became a top selling item.

As a National Collegiate Athletic

Association (“NCAA”) student-athlete, however, Clarett could not receive

compensation from any of the sales, nor could he obtain compensation for

the increased ticket revenue and enhanced television ratings for games in

which he starred. His “compensation” was instead limited to tuition, room,

board, books, and restricted other expenses.

Clarett found this

arrangement to be particularly disagreeable when he could not afford a

plane ticket to fly from California—where he was playing a game for Ohio

State—to Ohio to attend a close friend’s funeral.

As a sophomore, Clarett sought to enter the NFL, where he would have

been paid millions of dollars for the same football services that he was

providing Ohio State. The NFL’s eligibility rule, however, prevented him

Clarett II, 369 F.3d 124, 126 (2d Cir. 2004).

See, e.g., Denver Rockets v. All-Pro Mgmt., Inc. 325 F. Supp. 1049, 1066 (C.D. Cal. 1971)

(invalidating the NBA’s unilaterally-imposed age restriction); Boris v. U.S. Football League, 1984-1

Trade Cas. (CCH) P 66,012, 68,463 (C.D. Cal. 1984) (invalidating the USFL’s unilaterally-imposed

age restriction).

Clarett I, 306 F. Supp. 2d 379, 410–11 (S.D.N.Y. 2004).

See Rob Oller, On the Run and in Control, COLUMBUS DISPATCH, Oct. 5, 2002, at 1A.

See Bruce Lowitt, Buckeyes Running Back in a Big Hurry, ST. PETERSBURG TIMES, Dec. 29,

2002, at 1C; Austin Murphy, Mighty Mo: Precocious Freshman Tailback Maurice Clarett Made His

Presence Felt—On and off the Field, S

PORTS ILLUSTRATED, Jan. 15, 2003, at 12.

See Mike Pramik, Ohio State Halts Sale of Clarett Jerseys, COLUMBUS DISPATCH, Sept. 5,

2003, at 1B (noting that Clarett jerseys “were flying off the racks” at on- and off-campus retail stores).

See NYCCA bylaw § 15.1, reprinted in NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

NCAA DIVISION 1 MANUAL (2009).

See William C. Rhoden, Paying the Price While Coaches Cash In, N.Y. TIMES, Jan. 9, 2007, at

D2. For additional background and sources on Clarett, see Michael A. McCann & Joseph S. Rosen,

Legality of Age Restrictions in the NBA and the NFL, 56 C

ASE W. RES. L. REV. 731, 740–42 (2006).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 911

from doing so. Per the rule, NFL teams agree to boycott any candidate,

regardless of his talent, skill, or financial need, solely on the basis of time

elapsed from high school.

Proponents of the rule, including the NFL,

highlight safety and maturity concerns about young players;

opponents

charge that the rule is inefficiently bright-line and supplies the NFL with a

free minor league system: NCAA football.

As a point of context, the NFL was the only major male professional

sports league that prohibited players from entrance until a prescribed

period after high school graduation.

MLB, the National Hockey League

(“NHL”), NASCAR, professional tennis, professional golf, and

professional boxing had, and have, no such rules.

Players in those

leagues or professional sports are eligible to play immediately after high

school, if not well before that point in time—much like professional actors

and musicians can hone their craft while being lucratively compensated.

The same was true of NBA players until 2006.

Clarett and the NFL debated whether the rule had been bargained, with

Sotomayor concluding that it was.

Even if the rule was bargained,

Clarett asserted, bargained terms between the NFL and National Football

See NFL Collective Bargaining Agreement 2006–2012, art. XVI, § 2(b) (2006) (“No player

shall be . . . eligib[le] for . . . the Draft, until three NFL regular seasons have begun and ended

following either his graduation from high school or graduation of the class with which he entered high

school, whichever is earlier.”).

McCann & Rosen, supra note 42, at 732 (“The NFL age eligibility rule is premised on . . . core

beliefs about all players who fail to satisfy it . . . [because] they lack the requisite mental or physical

maturity . . . [and] they are uniquely prone to injury . . . .”).

See id. at 748.

Since 1998, the Women’s National Basketball Association (“WNBA”) has required that its

players be twenty-two years old and graduates of four-year colleges. Marc Edelman & C. Keith

Harrison, Analyzing the WNBA’s Mandatory Age/Education Policy from a Legal, Cultural, and Ethical

Perspective: Women, Men, and the Professional Sports Landscape, 3 N

W. J. L. & SOC. POL’Y 1, 11–12

(2008).

In MLB, for instance, players can be drafted immediately after completing high school. They

can elect to sign with an MLB organization at that time, or attend either a four-year college (in which

case they must complete their junior year of college, or be at least twenty-one years old, before they

become eligible again for the MLB draft) or a junior college (in which case they are eligible for the

MLB draft again after one year). Importantly, they possess the choice to play for an MLB organization

right out of high school. See Major League Baseball First-Year Player Draft Official Rules,

http://mlb.mlb.com/mlb/draftday/rules.jsp (last visited Jan. 8, 2010). Some of the top players drafted

out of high school can sign for enormous amounts of money. See, e.g., Richard T. Karcher, Solving

Problems in the Player Representation Business: Unions Should Be the “Exclusive” Representatives of

the Players, 42 W

ILLAMETTE L. REV. 737, 753 n.66 (2006) (noting that eighteen-year-old Justin Upton,

the first overall pick of the 2005 MLB draft, signed a $6.1 million contract).

Consider that Amanda Bynes, Dakota Fanning, Daniel Radcliffe, and Mary-Kate and Ashley

Olsen all earned millions of dollars in acting before they turned eighteen. So Young, Yet So Rich,

OSTON HERALD, Feb. 28, 2007, at 13.

For a full discussion, see infra Part IV.A.

Clarett II, 369 F.3d 124, 142–43 (2d Cir. 2004); see also McCann & Rosen, supra note 42, at

743–44 (discussing that the Second Circuit held that the NFL’s eligibility rule “comprised a mandatory

bargaining subject” because it governed initial employment, Clarett and similar players would have a

“tangible effect” on the salaries of other players, and because “sufficient collective bargaining” had

been established when the NFLPA agreed to waive challenges to the NFL bylaws).

912 CONNECTICUT LAW REVIEW [Vol. 42:901

League Players’ Association (“NFLPA”) should not receive protection

from the non-statutory labor exemption when they primarily concern

persons who cannot, by definition of those terms, be members of the NFL

or the NFLPA.

After all, as merely a prospective NFL player, Clarett had no formal

suasion over the eligibility rule. Plus, Clarett’s mere presence in the seven-

round, 255-person selection draft would seemingly have impacted only

other prospective NFL players and most likely the very last player selected

(i.e., “Mr. Irrelevant”),

who presumably would not have been drafted.

Indeed, whether or not Clarett was eligible, each team would still have

drafted and signed the same number of players, who would have competed

for jobs with existing NFL players and other prospective ones. Along

those lines, Clarett contended, the rule could not have primarily concerned

the working conditions of NFL players since it was designed to render a

class of potential NFL players unemployable.

The NFL, however, reasoned that unions and managements in other

settings, including in professional sports, routinely bargain rules that deny

entrance to prospective members.

According to this logic, eligibility

rules are among the bundle of employment rights that unions and

management bargain over in pursuit of a CBA. From that vantage point,

eligibility rules should not be viewed in isolation, since their modification

or elimination might alter assumptions underlying entire agreements.

The league also argued that its eligibility rule affected current players’

employment. Namely, Clarett would have replaced the job of another

player, presumably one with a different salary, and formulation of the

league salary cap depends on aggregate salary.

Writing for the Second Circuit, then-Judge Sotomayor agreed with the

NFL, holding—like she did in Silverman—that based on precedent,

collectively-bargained terms between owners and players should receive

the utmost deference. This deference, according to Sotomayor, was

premised on a longstanding and expansive judicial interpretation of what

Clarett I, 306 F. Supp. 2d 379, 393 (S.D.N.Y. 2004).

For some background on the dignity and indignity that go along with being named “Mr.

Irrelevant,” see Gary Swan, ‘Irrelevant’ Honor for 49er, S

AN FRANCISCO CHRON., June 12, 1996, at

B3.

Clarett I, 306 F. Supp. 2d at 393.

Clarett II, 369 F.3d at 140.

Id.

Id. (citing Michael S. Jacobs & Ralph K. Winter, Jr., Antitrust Principles and Collective

Bargaining by Athletes: Of Superstars in Peonage, 81 Y

ALE L.J. 1, 16 (1971), for the proposition that

entry of new players impacts the salary structure of players already in the league); see also Robert

Forbes, Note, Call on the Field Reversed: How the NFL Players Association Won Big on Salary

Forfeiture at the Bargaining Table, 6 V

A. SPORTS & ENT. L.J. 333, 335–39 (2007) (explaining the

NFL’s salary structure).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 913

constitute conditions of employment.

As a consequence, regardless of

individual NFL teams desiring to hire Clarett, and regardless of Clarett’s

desire to work for them, “the NFL and its players union [could] agree that

an employee will not be hired or considered for employment for nearly any

reason . . . .”

That was true, Sotomayor conceded, even when the terms

of exclusion unquestionably harm prospective players: “[S]imply because

the eligibility rules work a hardship on prospective rather than current

employees does not render them impermissible.”

Clarett was thus excluded from the 2004 NFL draft. He was also

excluded from college football: following Judge Scheindlin’s earlier

decision to declare him eligible for the 2004 draft, Clarett had signed with

an agent, thereby forfeiting his remaining collegiate eligibility under

NCAA rules (the NCAA refused to reinstate Clarett and a similarly

situated player, Mike Williams of the University of Southern California,

after the Second Circuit’s reversal).

Clarett, therefore, had no place to

play. He elected to train for a year until he was eligible for the 2005 NFL

draft, in which he was drafted by the Denver Broncos. He reported to the

Broncos’ training camp in questionable condition, however, and was

subsequently cut.

Without work, Clarett returned home to Youngstown,

Ohio, where later he would be arrested for robbery and illegal possession

of guns. He is currently serving a seven-and-a-half year prison sentence

and is eligible to be released from prison in February 2010.

To the extent “compassion” motivated Justice Sotomayor in her legal

reasoning, it did not appear to benefit Clarett and similarly-situated

players. Indeed, as Professor Walter Champion observes, Sotomayor

arguably seemed unmoved by Clarett’s plight while “seriously

marginaliz[ing]” his legal arguments.

A similar deduction might be said of “fairness,” an equally subjective

and evocative term which, as her critics note, Justice Sotomayor has

Clarett II, 369 F.3d at 139–40; see also Matthew J. Mitten & Timothy Davis, Athlete Eligibility

Requirements and Legal Protection of Sports Participation Opportunities, 8 V

A. SPORTS & ENT. L.J.

71, 104–05 (2008) (opining that then-Judge Sotomayor’s opinion in Clarett II was “consistent with

general labor law principles providing a union with exclusive and plenary authority to negotiate all

terms and conditions of its members’ employment, including restrictions and limits favoring existing

workers”).

Clarett II, 369 F.3d at 141.

Id. at 140.

Clifton Brown, After Detour, Williams Finally Arrives, N.Y. TIMES, Apr. 22, 2005, at D7.

Joe Drape, Gamble on Clarett Reveals Perils of Potential, N.Y. TIMES, Aug. 31, 2005, at D8.

See Bruce Cadwallader, Clarett Asks To Get Out of Prison Early, COLUMBUS DISPATCH, June

19, 2009, at 1C; see also Jon Hanson & Michael McCann, Opinion, The Psychopathology of Athlete

Worship, P

ROVIDENCE J., Aug. 24, 2006, http://www.projo.com/opinion/contributors/content/projo_

20060824_24hanso.2d59a11.html (providing details of Clarett’s legal woes).

Walter T. Champion, Jr., Looking Back to Mackey v. NFL To Revive the Non-Statutory Labor

Exemption in Professional Sports, 18 S

ETON HALL J. SPORTS & ENT. L. 85, 103 (2008).

914 CONNECTICUT LAW REVIEW [Vol. 42:901

periodically highlighted as crucial in the application of law.

Is fairness

promoted by an interpretation of the non-statutory exemption that

uniformly excludes otherwise draftable players from the draft? Among

others, Alan Milstein, who litigated on behalf of Clarett, believes it does

not. Although Milstein believes Sotomayor will make a very good Justice,

he describes the Second Circuit’s decision as reflecting “almost knee-jerk

approval” of the NFL’s construal of the non-statutory exemption.

On the

other hand, would fairness be jeopardized if players’ associations lost the

capacity to negotiate eligibility restrictions among their bundle of rights?

Some commentators have contemplated such a contention.

Intriguingly, Justice Sotomayor refrained from these types of

considerations in Clarett. Instead, she applied the law in a way consistent

with her belief, and that of some other jurists, that collectively bargained

terms can prohibit the entry of prospective employees into an organization.

A radical imagination of the law it was not.

IV.

IMPLICATIONS FOR PROSPECTIVE LITIGATION

Justice Sotomayor’s opinions in Silverman and Clarett, as well as her

putative presence on the Supreme Court, may also prove instructive from a

prospective lens. Specifically, they may influence the outcome of two

unresolved sports law matters: whether leagues and players’ associations

can bargain away employment opportunities for otherwise employable

eighteen- and nineteen-year-old star athletes, and whether, in certain

settings of collusive behavior, leagues and their independently-owned

franchises may function as a single entity, thereby obtaining a complete

exemption from section 1 of the Sherman Antitrust Act.

A. Eligibility for the NBA Draft

Eligibility rules in professional sports remain controversial post-

See, e.g., Steve Chapman, Sotomayor’s Aversion to Impartiality, CHI. TRIB., May 31, 2009, at

C28 (discussing Justice Sotomayor’s comment that that judges should “aspire to achieve a greater

degree of fairness” in their decision making). Fairness has also appeared in her opinions as a principle

objective. See, e.g., Jiang v. Bureau of Citizenship & Immigration Servs., 520 F.3d 132, 135 (2d Cir.

2008) (“To further the goals of uniformity and fairness . . . .”); Kraham v. Lippman, 478 F.3d 502, 506

(2d Cir. 2007) (“If, however, to ensure fairness . . . .”).

Telephone Interview with Alan Milstein (May 26, 2009) (on file with author); see also Brando

Simeo Starkey, The Veil of Fair Representation: Maurice Clarett v. National Football League, 37 U.

BALT. L.F. 17, 28 (2006) (describing the NFL’s age limit as “conspicuously unfair”).

See, e.g., Daniel A. Applegate, Comment, The NBA Gets a College Education: An Antitrust and

Labor Analysis of the NBA’s Minimum Age Limit, 56 C

ASE W. RES. L. REV. 825, 830, 850–51 (2006)

(arguing that “[a]llowing antitrust courts to intrude on the collective bargaining relationships ‘place[s]

in jeopardy’” the right of players to bargain). But see Michael Scheinkman, Comment, Running Out of

Bounds: Over-Extending the Labor Antitrust Exemption in Clarett v. National Football League, 79 S

JOHN’S L. REV. 733, 767 (2005) (concluding that Sotomayor’s opinion in Clarett II set a “dangerous

precedent” in tipping the scales of law “too far in favor of labor law”).

15 U.S.C. § 1 (2006).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 915

Clarett.

That is particularly true of the NBA’s rule, which the league

collectively-bargained with the National Basketball Players’ Association

(“NBPA”) in 2005. The rule requires that U.S. players be at least nineteen

years old by December 31 of the year of the draft and that they be one year

removed from high school.

More technically, by “one year removed,” at

least one NBA season must pass from when the players graduated from

high school or, if they failed to graduate, would have graduated.

contrast, international players, defined as those who maintain a permanent

residence outside of the United States for at least three years preceding the

draft, need only be nineteen years old by December 31 of the year of the

draft.

Prior to the 2006 draft, U.S. players were eligible for the draft

immediately following their high school graduation.

The NBA’s eligibility rule may soon receive legislative and judicial

scrutiny, especially as the league seeks to elevate the rule to twenty-years

of age and two years removed from high school.

The first layer of

scrutiny appears to be in the halls of Congress. In June 2009, U.S.

Representative Steve Cohen formally requested that the NBA and NBPA

repeal their eligibility rule.

Observing the rule’s disproportionate impact

on African Americans,

Representative Cohen threatened to propose

legislation that would prohibit professional sports leagues from barring

players who have reached eighteen years of age.

There have also been rumblings of a legal challenge.

A potential

source of litigation concerns the rule’s uncertain application to non-

traditional student-athletes. Consider, for instance, North Carolina native

John Wall, the nation’s top-rated high school basketball prospect in 2009.

During the spring of 2009, Wall, a fifth-year high school student,

contemplated declaring for the 2009 draft.

Had he done so, the NBA

could have rejected the declaration on grounds that Wall had failed to

Consider the attention the eligibility rules have attracted in legal scholarship. Since 2005,

twenty-one law review publications have contained the word “Clarett” in the title and seventy-six have

addressed Clarett v. NFL. In that same time span, twenty-one law review publications have discussed

the NBA’s age eligibility rule. I conducted the relevant searches on June 30, 2009. I used the “US

Law Reviews and Journals, Combined” database on Lexis/Nexis.

NBA, Collective Bargaining Agreement, supra note 6, art. X, § 1.

Id.

See supra note 6 and accompanying text.

Beck, supra note 8; Pete Thamel, Few High School Stars Expected To Follow European Detour

to NBA, N.Y.

TIMES, July 12, 2009, at SP5.

Pete Thamel, N.B.A. Is Asked To End Age Limit, N.Y. TIMES, June 4, 2009, at B14.

In the NBA’s history, forty-eight players attempted the jump from a U.S. high school to the

NBA. Forty-six were African American. Data on file with author.

Thamel, N.B.A., supra note 74.

See, e.g., Lowe, supra note 8 (citing comments by sports litigator Alan Milstein).

Calipari Lands Nation’s Top Prospect, TENNESSEAN, May 19, 2009, at Sports 1.

The draft was held on June 25, 2009. NBA Key Dates, DALLAS MORNING NEWS, Mar. 14,

2009, at 11C.

916 CONNECTICUT LAW REVIEW [Vol. 42:901

satisfy its eligibility rule. Wall had met the nineteen-year-old age

requirement, but due to assorted transfers between high schools, there was

confusion as to when he “would have graduated” from high school.

Although some projected that he would have been among the first five

players selected in the 2009 draft

—which would have meant securing a

guaranteed contract worth at least $7.7 million over three years

—Wall

instead accepted a scholarship to play at the University of Kentucky.

His

decision removed the possibility of a potential challenge to the eligibility

rule, but revealed the type of fact pattern that could induce such a

challenge.

Along those lines, and strictly for purposes of illustration, consider

seventeen-year-old basketball phenom Jeremy Tyler of California. Tyler’s

talents have drawn extraordinary praise, with one retired NBA player

musing, “[Tyler] has more upside than any player I’ve seen since LeBron

[James]. . . . He’s one of those guys who comes along once in a lifetime.”

Tyler recently announced that he will skip his senior year of high school to

play professionally in Israel.

A basketball player turning pro after his

junior year of high school is unprecedented—at least among U.S. players,

as many international basketball players turn pro at fourteen or fifteen

Roger Van Der Horst, NBA Option for Wall?, NEWS & OBSERVER (N.C.), Apr. 16, 2009,

http://www.newsobserver.com/sports/high_school/story/86503.html.

See id. (citing comments by Sonny Vaccaro, a former basketball coach, scout, and marketing

executive). Vaccaro is also an advocate for players having the ability to matriculate directly to the

NBA out of high school. See Kurt Streeter, Shoe’s on the Other Foot for Vaccaro, L.A.

TIMES, Jan. 17,

2009, at D1.

Id.

Jim Halley & Jeff Zillgitt, Calipari Puts Together a ‘Remarkable Class,’ USA TODAY, May 20,

2009, at 10C.

The prospect of such a challenge attracted considerable media coverage. See, e.g., Van Der

Horst, supra note 80 (noting that Wall’s recruitment has been “followed as closely as a slow dump

truck on I-440”); Gary Parrish, Don’t Eliminate the Wall-to-NBA Talk Just Yet, CBS

SPORTS, Apr. 15,

2009, http://www.cbssports.com/mcc/blogs/entry/6271764/14538408 (surmising that the ambiguity of

the NBA’s age eligibility rule may motivate Wall to seek entrance into the NBA out of high school).

Pete Thamel, Going His Own Way on Little-Traveled Route, N.Y. TIMES, Apr. 26, 2009, at SP1

(citing remarks by Olden Polynice, who played in the NBA for fifteen years).

Pete Thamel, Prep Star Signs with Team in Israel’s Top League, N.Y. TIMES, Aug. 13, 2009, at

B16; see also Chris Ballard, Study Abroad: Hoops Major, S

PORTS ILLUSTRATED, May 4, 2009, at 76

(discussing Tyler’s decisionmaking process).

Keep in mind that Tyler is not the first U.S. player to take an unconventional path through

Europe before entering the NBA. In 2008, Brandon Jennings, whose eligibility for college was

uncertain for academic reasons, chose to play professionally in Italy for one year, where he earned $1.2

million. Pete Thamel, At 19, Plotting New Path to N.B.A, Via Europe, N.Y.

TIMES, Oct. 5, 2008, at A1.

He was drafted tenth overall by the Milwaukee Bucks in the 2009 NBA draft and signed a guaranteed

contract worth at least $3.8 million over two years. The Day in Sports, L.A.

TIMES, July 29, 2009, at

C8. Female players have also pursued professional opportunities in Europe prior to eligibility in the

WNBA. Epiphanny Prince, for example, skipped her senior season to play professional basketball in

Europe before entering the 2010 WNBA draft. Greg Bishop, Female Star Leaves U.S. To Turn Pro in

Europe, N.Y.

TIMES, June 17, 2009, at B11.

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 917

years of age.

It is expected that Tyler will spend two years abroad, after

which he will be eligible for the 2011 NBA draft.

One intriguing possibility is if Tyler were to earn his General

Equivalency Diploma (“GED”) before the completion of the 2009–10

NBA season and then sought to enter the 2010 NBA draft, at which point

he would have satisfied the nineteen-year-old age requirement.

Tyler

would be poised to earn considerably more in the NBA than in Israel

and

would be one year closer to free agency as an NBA player.

In addition,

though his previous U.S. high school class would not have graduated yet,

Tyler would have already obtained the equivalent of a high school diploma

and at least a portion of one NBA season would have passed from his

earning of a GED and the 2010 draft.

The NBA’s eligibility rule is silent both on whether a GED would

fulfill the requirement that the player have graduated from high school and

whether a portion of an NBA season would satisfy the “one year removed”

requirement.

If the NBA interpreted the rule to preclude Tyler’s entry—

which it would be poised to do, given resulting incentives for other high

school players

—Tyler could file a lawsuit challenging the NBA’s

application of the rule.

Tyler’s claim, however, would likely encounter a standard of review

favorable to the NBA. Courts normally apply the highly deferential

“arbitrary and capricious” standard to league interpretation of procedural

rules.

Then again, such a standard has concerned disputes involving

players in the league; no prospective player has historically challenged a

See, e.g., Jonathan Abrams, Rubio Has No Concerns, Even if Some Others Do, N.Y. TIMES,

June 25, 2009, at B13 (noting that Ricky Rubio, whom the Minnesota Timberwolves drafted with the

fifth overall pick in the 2009 NBA draft, began his professional basketball career at age fourteen, when

he played for Spain’s top professional team); David Waldstein, Family Ties Have Gallinari Feeling at

Ease, S

TAR-LEDGER (N.J.), June 28, 2008, at Sports 29 (noting that NBA player Danilo Gallinari began

playing professional basketball in Italy as a fifteen-year-old).

Tyler was born on June 1, 1991, meaning he would be nineteen years old by December 31,

2010. Players: Jeremy Tyler, NBA Draft.net, http://www.nbadraft.net/players/jeremy-tyler (last visited

Jan. 8, 2010).

Tyler will earn $140,000 a year playing in Israel. Thamel, Prep Star, supra note 86. As a

likely top five pick in the NBA draft, Tyler would receive a guaranteed contract worth at least $7.65

million. Van Der Horst, supra note 80.

See Michael A. McCann, Illegal Defense: The Irrational Economics of Banning High School

Players from the NBA Draft, 3 V

A. SPORTS & ENT. L.J. 113, 169–73 (2004) (discussing the financial

benefits for NBA players by accessing free agency as early as possible).

See NBA, Collective Bargaining Agreement, supra note 6, art. X, § 1.

Should it allow Tyler to enter the 2010 NBA draft, the NBA might motivate other superstar

high school basketball players to drop out of high school prior to their senior year.

See Craig F. Arcella, Major League Baseball’s Disempowered Commissioner: Judicial

Ramifications of the 1994 Restructuring, 97 C

OLUM. L. REV. 2420, 2460 (1997); see also Mélanie

Aubut, When Negotiations Fail: An Analysis of Salary Arbitration and Salary Cap Systems, 10 S

PORTS

LAW. J. 189, 198 n.56 (2003) (noting the significance of the arbitrary and capricious standard for

arbitration in MLB).

918 CONNECTICUT LAW REVIEW [Vol. 42:901

league’s application of its CBA to exclude him or her.

Alternatively, Tyler could simply challenge the legality of the NBA’s

eligibility rule, with the rule then facing a similar core attack to that raised

by Clarett, namely, that the NBA and NBPA cannot receive protection

under the non-statutory labor exemption for rules that exclude prospective

players.

The venue of any lawsuit challenging the NBA’s eligibility rule would

prove crucial. A plaintiff would undoubtedly avoid the Second Circuit,

where Clarett is controlling. The NBA, in contrast, would attempt to

transfer such a case to New York, where the league is headquartered and

where the Second Circuit presides. Assuming the NBA was unable to

transfer the case, Justice Sotomayor’s opinion in Clarett would prove

influential but not determinative. Indeed, only the Second Circuit has

addressed whether collective bargaining can insulate age limits from

antitrust scrutiny; it is uncertain how another U.S. Court of Appeals would

address the issue.

Wherever the claim is heard, a plaintiff challenging the NBA’s

eligibility rule would gain a tactical advantage by distinguishing Clarett’s

facts. Most notably, unlike Maurice Clarett, who had to argue a

hypothetical—what the NFL would be like without its eligibility rule—a

player contesting the NBA’s eligibility rule could cite the generally

favorable empirical evidence of players who matriculated to the NBA

following their high school graduation. Evidence suggests that this group

of players, which includes Lebron James, Kevin Garnett, and other stars,

have performed well both on and off the court.

Maurice Clarett, in contrast, challenged the legality of the NFL’s eligibility rule. For a full

discussion, see supra Part III.

There is reason to believe, however, that a court which adopts the “Mackey Test” would be

poised to hold in favor of a plaintiff who argues for a limited definition of the non-statutory labor

exemption. The Mackey Test, a product of Mackey v. NFL, dictates that the non-statutory exemption

only applies if an alleged restraint—such as an eligibility restriction—satisfies the following three

conditions: (1) it involves mandatory subjects of bargaining; (2) it primarily affects the parties

involved; and (3) it is reached through “bona fide, arm’s-length bargaining.” Mackey v. Nat’l Football

League, 543 F.2d 606, 614 (8th Cir. 1976). The Mackey Test, which would likely dictate that an

eligibility restriction neither involves mandatory subjects of bargaining nor primarily affects the parties,

is good law in at least three circuits: the Eighth Circuit, the Sixth Circuit, and the D.C. Circuit. Marc

Edelman & Brian Doyle, Antitrust and “Free Movement” Risks of Expanding U.S. Professional Sports

Leagues into Europe, 29 N

W. J. INT’L L. & BUS. 403, 416 n.90 (2009).

In addition to James and Garnett, Kobe Bryant, Tracy McGrady, Dwight Howard, Jermaine

O’Neal, Amare Stoudemire, Rashard Lewis, and Al Jefferson all skipped college and have enjoyed

significant success in the NBA. See Tony Mejia, The Top 100: James, Bryant Remain at the Head of

the Class, P

RO BASKETBALL NEWS, Aug. 31, 2009, http://www.probasketballnews.com/story/

?storyid=709 (providing an expert’s ranking that includes the aforementioned players who jumped

from high school to the NBA).

See McCann, Illegal Defense, supra note 91, at 169–73 (noting the increased total earning

capacity of players who enter the NBA straight from high school); Morty Ain, The Spin: Teenage

Wasteland, ESPN

MAG., July 18, 2005, at 38 (noting that, as a group, players who skipped college and

directly entered the NBA average more points, rebounds, and assists than the average NBA player or

the average player of any other age cohort in the NBA); Posting of Michael McCann to Sports Law

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 919

Should another circuit hold that the non-statutory labor exemption does

not protect the NBA’s eligibility rule, the rule would then be subject to

antitrust scrutiny under section 1 of the Sherman Act. As various writings

detail, the rule would likely fail to satisfy the rigid requirements of section

If so, an apparent “circuit split” between two federal circuits on the

legality of leagues’ eligibility restrictions would emerge. Such an outcome

might attract the attention of the U.S. Supreme Court, and particularly

Justice Sotomayor.

B. Antitrust Immunity for Professional Sports Leagues

Justice Sotomayor’s writings and presence may also influence whether

professional sports leagues are exempt from section 1 of the Sherman Act.

Such an exemption lies at the heart of American Needle, a recent decision

by the Seventh Circuit in which the NFL was granted single entity status

for limited purposes. The Supreme Court reviewed American Needle in its

October 2009 term.

100

Before American Needle, independently-owned franchises in a

professional sports league had typically been defined as entities engaged in

a “joint venture.”

101

A joint venture refers to an association of independent

entities that collaborate in, and carry out, a single business venture for joint

profit, for which purpose the entities combine their resources, skill, and

knowledge.

102

Teams, of course, necessarily collaborate in various ways

(e.g., they agree on rules for games and the order of the draft), but with

separate ownership groups and team identities, they remain distinctly

independent and usually competitive (e.g., they try to defeat each other on

Sundays and try to draft better players than other teams). Crucially, joint

Blog, NBA Players That Get in Trouble with the Law: Do Age and Education Level Matter?,

http://sports-law.blogspot.com/2005/07/nba-players-that-get-in-trouble-with_20.html (July 20, 2005,

10:00 EST) (supplying empirical data that indicates that among NBA players there is a near inverse

correlation between number of years spent in college and propensity to being arrested).

See, e.g., Edelman & Doyle, supra note 96, at 424–28 (analyzing age requirements under the

Sherman Act); McCann & Rosen, supra note 42, at 734–40 (discussing the applicability of the

Sherman Act to NFL and NBA eligibility rules); Nicholas E. Wurth, The Legality of an Age-

Requirement in the National Basketball League After the Second Circuit’s Decision in Clarett v. NFL,

3 D

EPAUL J. SPORTS L. CONTEMP. PROBS. 103, 134 (2005) (stating that courts could find a basis for an

antitrust claim against the NBA’s age requirement rule).

100

See supra note 9 and accompanying text. I discuss American Needle in detail in a separate

piece in the Yale Law Journal. See Michael A. McCann, American Needle v. NFL: An Opportunity to

Reshape Sports Law, 119 Y

ALE L.J. 726 (2010). For purposes of this Essay, I offer a highly condensed

description.

101

See Chicago Prof’l Sports Ltd. P’ship v. Nat’l Basketball Ass’n, 961 F.2d 667, 673 (7th Cir.

1992) (characterizing the NBA as a “joint venture”); Smith v. Pro Football, Inc., 593 F.2d 1173, 1179

(D.C. Cir. 1978) (characterizing the NFL as a “joint venture”).

102

46 AM. JUR. 2D Joint Ventures § 1 (2009); see Stephen Fraidin & Radu Lelutiu, Strategic

Alliances and Corporate Control, 53 C

ASE W. RES. L. REV. 865, 867–72 (2003) (discussing the

business purposes of joint ventures).

920 CONNECTICUT LAW REVIEW [Vol. 42:901

ventures are subject to section 1 and normally “rule of reason” analysis.

103

Under the rule of reason, courts assess the extent to which a joint venture

deprives the marketplace of the independent decision making normally

demanded by competition and, conversely, the extent to which the joint

venture improves market efficiencies.

104

In American Needle, the Seventh Circuit held that in certain settings of

collusive behavior,

105

a professional sports league and its independently-

owned franchises may function as a single entity instead of as a joint

venture.

106

The primary significance of single entity status is that it

exempts the league and its franchises from scrutiny under section 1.

107

Here is why: as a single entity, they are thought to share a “corporate

consciousness” making them one, as opposed to merely distinct entities

engaged in a joint venture.

108

From enhanced autonomy in business

operations to mitigation of litigation costs, an exemption from section 1

offers enormous value to professional leagues and their franchises.

109

The

Seventh Circuit’s conclusion endorsed a viewpoint rejected by other

courts.

110

My publication in the Yale Law Journal, titled American Needle v.

NFL: An Opportunity to Reshape Sports Law, assesses the Seventh

Circuit’s holding and describes what I consider to be its favorable and

103

Sullivan v. Nat’l Football League, 34 F.3d 1091, 1099 (1st Cir. 1994); L.A. Mem’l Coliseum

Comm’n v. Nat’l Football League, 726 F.2d 1381, 1388–90 (9th Cir. 1984).

104

See Nat’l Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 687–91 (1978) (describing the

evolution of the rule of reason and explaining its focus on the competitive significance of a restraint);

see also Thomas G. Krattenmaker & Steven C. Salop, Anticompetitive Exclusion: Raising Rivals’ Costs

to Achieve Power over Price, 96 Y

ALE L.J. 209, 278–80 (1986) (discussing application of the rule of

reason to market efficiency claims); Alan J. Meese, Price Theory, Competition, and the Rule of Reason,

2003 U.

ILL. L. REV. 77, 80 (2003) (applying the rule of reason to price variations among industries).

105

The specific setting in American Needle concerned NFL apparel sales, specifically Reebok

receiving an exclusive contract for apparel bearing the NFL’s logos and trademarks. American Needle,

another apparel company, reasoned that an exclusive contract between teams which are ostensibly

competitors and which preserve their individual franchise interests in those same logos and trademarks

violates section 1. Am. Needle Inc. v. Nat’l Football League, 538 F.3d 736, 738 (7th Cir. 2008), cert.

granted, 129 S. Ct. 2859 (U.S. June 29, 2009) (No. 08-661). The Seventh Circuit exempted the NFL

from violating section 1 in its apparel sales, reasoning that teams voluntarily assign the licensing of

their logos and trademarks to the league-controlled NFL Properties. Thus, for purposes of selling

apparel, teams share corporate consciousness, meaning they cannot be expected to compete. Id. at 744.

106

Id.

107

Id.

108

Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 771 (1984).

109

To illustrate, consider the substantial resources leagues tend to expend when defending section

1 lawsuits. The NFL, for instance, is said to have spent nearly $50 million in legal fees and settlement

costs in its section 1 litigation with the Raiders. Marc D. Oram, The Stadium Financing and Franchise

Relocation Act of 1999, 2 V

A. J. SPORTS & L. 184, 190 (2000) (discussing Los Angeles Memorial

Coliseum Commission).

110

See, e.g., Sullivan v. Nat’l Football League, 34 F.3d 1091, 1099 (1st Cir. 1994) (finding that

NFL teams compete off the field and are thus not a single entity); L.A. Mem’l Coliseum Comm’n, 726

F.2d at 1390 (finding that the NFL is not a single entity under section 1); Shaw v. Dallas Cowboys

Football Club, Ltd., 1998 WL 419765, at *5 (E.D. Pa. 1998) (declining to recognize the NFL as a

single entity).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 921

detrimental qualities.

111

A principle concern relates to uncertainty as to

whether, and when, other leagues and other league activities might enjoy

single entity status. Save for implying that labor matters would be

inappropriate for single entity treatment,

112

the Seventh Circuit, without

much guidance, suggested that courts should address the merits of leagues’

proposed single entity defenses on an ad hoc basis.

113

This ambiguity

opens the door for uncertain applications.

When the Supreme Court reviews American Needle, Justice

Sotomayor’s skepticism of unilateral league maneuvers, as displayed in

Silverman, may not bode well for the NFL, or, by implication, similarly

situated leagues.

114

Indeed, in Silverman, she repeatedly highlighted the

importance of bargaining between the league and its players as crucial for

the protection of legal rights.

115

Such a viewpoint builds on the Seventh

Circuit’s suggestion in American Needle that single entity status would be

unfitting in labor matters.

116

Then again, in Clarett, Justice Sotomayor highlighted that multi-

employer bargaining depends on teams’ capacity to “band together to act

as a single entity in bargaining with a common union.”

117

Indeed, such a

viewpoint may have contributed to Sotomayor’s expansive interpretation

of the non-statutory exemption: in order to protect the legal interests of

owners, owners need to band together as a unitary entity—even if

individual owners might prefer to behave differently (e.g., certain NFL

teams desired an opportunity to draft Clarett before he satisfied the NFL’s

eligibility rule, but those teams, and other NFL teams, agreed that the NFL

would be better off with Clarett satisfying the rule).

Furthermore, in other opinions, Justice Sotomayor has recognized

single entity status for organizations that bear some similarities to

professional sports leagues. In Greenbaum v. Svenska Handelsbanken, for

111

McCann, American Needle v. NFL, supra note 100.

112

American Needle, 538 F.3d at 741 (“[I]ndividuals seeking employment with any of the

league’s teams would view the league as a collection of loosely affiliated companies that all have the

independent authority to hire and fire employees.”).

113

Id. at 742.

114

See supra Part II (discussing then-Judge Sotomayor’s critique of a new set of employment

terms that MLB had unilaterally imposed). Additional insight may be gained from Major League

Baseball Properties v. Salvino, 542 F.3d 290 (2d Cir. 2008). Salvino involved an analogous fact

pattern to American Needle in that it considered the joint licensing activities of Major League Baseball

Properties (“MLBP”) under section 1 of the Sherman Act. Although MLBP did not assert the single

entity defense, the opinion seems relevant insofar as then-Judge Sotomayor argued that MLBP should

be reviewed as a joint venture under a rule of reason analysis. Id. at 338–39. The opinion therefore

suggests that Justice Sotomayor may be inclined to reject the characterization of the NFL as a single

entity.

115

Silverman v. Major League Baseball Player Relations Comm., Inc., 880 F. Supp. 246, 255–56

(S.D.N.Y. 1995).

116

See supra note 109 and accompanying text.

117

Clarett II, 369 F.3d 124, 136 (2d Cir. 2004) (quoting Basketball Ass’n v. Williams, 45 F.3d

684, 688 (2d Cir. 1995)).

922 CONNECTICUT LAW REVIEW [Vol. 42:901

instance, then-Judge Sotomayor characterized a national bank and its

branches as a single entity.

118

She justified such a status on federal

banking law and the “practical realities of branch banking.”

119

It is unclear whether the “practical realities” of a professional sports

league operation would procure a similar interpretation, though there are

crucial differences between operating a professional sports league and

engaging in branch banking. Namely, while professional sports leagues

typically feature individually-owned franchises, branch banking refers to a

multiple-office structure in which one bank owns and operates all of the

banking offices.

120

From another point of view, however, while branches

are geographically positioned to avoid competing with one another, they,

like professional sports franchises, “compete” in the sense that the bank

may close underperforming branches.

121

These and other considerations

might provide for engaging fodder when the Supreme Court, with Justice

Sotomayor as its newest member, examines the relationship between single

entity status and professional sports leagues.

CONCLUSION

Silverman and Clarett are merely two examples of Justice Sotomayor’s

extensive body of jurisprudence. Yet they furnish important insights into

her judicial philosophy. Foremost, they belie commentators who disparage

Justice Sotomayor’s reasoning as subsumed by subjective considerations.

Indeed, they suggest that she embraces a substantive and fairly

conventional approach to jurisprudence, even to the detriment of the most

disadvantaged or vulnerable party.

Silverman and Clarett are also two of the most influential opinions in

contemporary sports law. To the chagrin of some, they interpret the non-

statutory labor exemption as decidedly protective of league policies borne

118

Greenbaum v. Handlesbanken, 26 F. Supp. 2d 649, 654 (S.D.N.Y. 1998). It should be noted

that this case did not concern application of the Sherman Act, but rather the availability of punitive

damages. Id. at 651.

119

Id. at 654 (stating that for branches to avoid various forms of liability, a national bank must be

able to limit its responsibilities to one bank at a time).

120

See Joann Senzel Nestor, Interstate Branch Banking Reform: Preserving the Policies

Underlying the McFadden Act, 72 B.U.

L. REV. 607, 614–16 (1992) (describing the ownership

structure of branch banking). A better professional sports league analogy to branch banking would be

Major League Soccer, which is organized as one corporation, with the corporation owning the league’s

fourteen franchises and centrally planning all broadcasting rights, licensing, and merchandising. See

Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 56–58 (1st Cir. 2002) (analyzing whether Major

League Soccer is a single entity).

121

See Ethan W. Johnson, Reducing Liability of American Banks for Expropriated Foreign

Branch Deposits, 34 E

MORY L.J. 201, 223 (1985) (noting that banks close branches for business

reasons). But see Stacey Stritzel, The Riegle-Neal Interstate Banking and Branching Efficiency Act of

1994: Progress Toward a New Era in Financial Services Regulation, 46 S

YRACUSE L. REV. 161, 187–

88 (1995) (describing limitations imposed by federal law on autonomy of banks to close branches in

low-income areas).

2010] SOTOMAYOR: RELATIONSHIP BETWEEN LEAGUES AND PLAYERS 923

from collective bargaining. Though such an interpretation supplies bright-

line certainty to league-player bargaining, it also invites critique as overly-

expansive and rigid.

Lastly, Silverman and Clarett illuminate how Justice Sotomayor may

continue to play a leading role in shaping sports law. In the near future,

the NBA eligibility restriction is poised to trigger a “Clarett-like” case,

which could culminate in a Supreme Court review of professional sports

eligibility rules. In American Needle, the Supreme Court is already

reviewing a more sweeping matter: whether leagues and franchises may

define themselves as single entities. Justice Sotomayor’s reasoning in

Silverman and Clarett, along with her viewpoints from other opinions,

suggest she will balance her concern for unilateral league behavior with

her appreciation for the pragmatic necessities of league operation.