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Sunday, July 17, 2005
NHL Raises Draft Entry Age from 18 Years to 19 Years: Will Litigation Follow?

Update 7/28/05: The new CBA between the NHL and NHLPA will not include a 19-year old age floor, despite the claim of the 7/21/05 TSN Canada report that I discuss below. Nevertheless, I hope you find this post to be an interesting read of how an amateur hockey player might have challenged that age floor. Without further adieu . . .

According to
The Sports Network (TSN Canada), the new six-year collective bargaining agreement between the NHL and the NHLPA includes a provision that raises the age for draft eligibility from 18 to 19, apparently effective for the 2006 or the 2007 NHL Draft, although that is not entirely clear from the article.

Why would the NHLPA agree to ban 18-year-olds from the NHL Draft? So far, we don't know, since neither the league nor the players' association has commented, but one strong possibility for their acquiescence is that a higher age floor will extend the careers of mediocre NHL players who would otherwise lose their jobs with a continued influx of premiere 18-year-old players. Other league-oriented reasons may be the relative maturity (or lack-there-of) of those 18-year-old NHL players, or that this group of players hasn't performed well, yet teams nevertheless still play--and pay--them (I am not endorsing those reasons, but merely mentioning them as possibilities).

It is curious as to why this new NHL age floor does not appear to be in effect for the upcoming 2005 NHL Draft, whereas most of the new CBA's other provisions are immediately in effect. I suspect the one-or-two year delay might be to thwart off a lawsuit from Sidney Crosby, the presumptive number one overall pick in the upcoming 2005 NHL Draft and the supposed "next great one," and perhaps other top amateur players who would otherwise seek an injunction against the new age floor. Indeed, after an embarrassing 301-day labor impasse, the last thing the NHL would want is a high-profile lawsuit that might jeopardize the new CBA.

Still, it will be interesting to monitor if an amateur player or group of amateur players eventually challenges this new NHL age floor. Although the holding by the U.S. Court of Appeals for the Second Circuit in Clarett v. NFL has been bandied about as the "definitive" case on the issue of age floors in pro sports leagues, remember:

there are 11 other U.S. Courts of Appeal that might have held differently in
Clarett, and might hold differently if presented with a similar fact pattern in hockey or basketball;

Canadian courts may be a forum in this lawsuit since, among other reasons, the NHLPA's main office is in Toronto and the likely plaintiff(s) would be Canadian citizens, and Canadian courts typically embrace a more skeptical view of management and unions excluding members of the labor force than does the U.S. Court of Appeals for the Second Circuit; and

3) while Maurice Clarett had to argue a hypothetical and show what might happen in the NFL with no age floor or with a lower age floor, hockey players, just like basketball players, have a wealth of data regarding how well 18-year old players have already performed in the league.

For these reasons, a promising amateur player, such as
Phil Kessell--who, until this new age floor, had been projected as the number one overall pick in the 2006 NHL Draft and, like Sidney Crosby, is often described as "the next great one"--or a group of promising amateur players might seek legal recourse before the 2006 NHL Draft, assuming the ban is in effect at that time.

As to the track-record of 18-year-olds in the NHL, anecdotal evidence suggests that some do quite well. For instance, during the 2003-04 season, an 18-year-old Patrice Bergeron of the Boston Bruins was fifth among all NHL rookies in both goals and points and was fourth in assists. Even more impressive, during the 1981-82 season, an 18-year-old Dale Hawerchuck broke 17 Winnipeg Jets' records and became the youngest NHL player in history to reach the 100-point plateau, finishing with 103 points, the second best total by a rookie in NHL history. For his efforts, Hawerchuck was awarded the Calder Memorial Trophy as Rookie-of-the-Year—the youngest to win that award—and played in his first All-Star Game. Moreover, perhaps the most heralded hockey player in the last thirty years, Wayne Gretzky, was an 18-year-old NHL rookie.

As to the natural comparison between the recent agreement by the NBA and the NBPA to ban 18-year-old players and this agreement, remember that while analogous in that they will be banned, 18-year-old amateur hockey players and 18-year-old amateur basketball players seek employment in what might be considered leagues of different structure. Namely, while the NHL has a well-developed minor league system, the NBA does not. Granted, as part of the new CBA between the NBA and the NBPA, a "revamped" NBDL will be established that will allow NBA teams to send players to the minors for more seasoning. But NBA teams can only send two of their players to their NBDL affiliate and, more constricting, NBA teams will share individual NBDL teams--meaning that the NBDL coach will not be affiliated with the NBA team, and he may thus have his own coaching philosophy that is distinct from that of the NBA team (for example, how can Boston Celtics' GM Danny Ainge and coach Doc Rivers be sure that their NBDL coach will embrace their philosophy of fast-break basketball? And how will playing time be divided -- how can the NBA team be sure that their young players are actually going to receive sufficient playing time? -- for these reasons, the new and improved NBDL may end up looking a lot like the old NBDL). In contrast, the NHL has the ECHL and the AHL to develop premiere young players, and this system has seemingly worked well.

Moreover, the "economic harm" suffered by a banned 18-year-old basketball player might be greater than that suffered by a banned 18-year-old hockey player. This appears especially true since while the NHL has "two-way" contracts that enable teams to pay players differently depending on whether they are in the NHL or in the minors, the NBA does not. Also, consider that while the average first round pick in the 2005 NBA Draft will earn $1.6 million next season, he would only be able to earn approximately $25,000 to $35,000 playing minor league basketball in the United States. Although he would likely do a little bit better playing in Europe, he would earn nowhere near what he would have earned in the NBA (especially when considering lost endorsement opportunities). In contrast, while the hockey player playing in Europe might earn less than the basketball player playing in Europe, the disparity between what he earns there and he would have earned in the NHL--especially considering the presence of two-way contracts in the NHL--appears likely to be considerably smaller.

We'll keep you posted, and we invite any feedback in our comments section. For related coverage, check out my law review article entitled "Illegal Defense: The Irrational Economics of Banning High School Players from the NBA Draft" and my recent post entitled "The Red Herring of Age in the NBA Draft" and the corresponding readers' comments.