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Tuesday, July 04, 2006
Hoop Dreams: The Missing Link between NBA Draft Age Eligibility and Justin Jenifer

Chris Graham of the Augusta Free Press has an in-depth look at the new age restriction for the NBA draft, which requires that a player be at least 19 years-old on December 31 of the year of the NBA Draft and that at least one NBA season must have passed from when he graduated from high school, or when he would have graduated from high school, and the NBA Draft. He interviews Paul Haagen, Rick Karcher, and me, and we discuss the rationales behind the new rule. Rick outlines the NBA's business arguments for pursuing it, while Paul and I question the logic behind it, especially considering the empirical data on players who have pursued the NBA out of high school (i.e., they are small, self-selected group who has averaged more points, rebounds, and assists than the average NBA player or the average player of any age group, and that includes high school players who failed to make the NBA and who were counted as "0" in the empirical analysis).

We then discuss different reasons for why it may be difficult for a player to challenge it in court.

Rick describes how the rule only affects players outside of the bargaining unit, and thus why existing players don't have a clear incentive to fight it:
The way I look at this now - from a bargaining standpoint, the union doesn't have an incentive to vigorously fight the owners on this issue. It doesn't affect existing players at all. You're talking about a rule that affects prospective players. Existing players are not affected by it. So the union in the bargaining process isn't giving up much when they agree to this - and in return the existing players are getting something of value in the form of an increased percentage of league revenue from the owners.
I reflect upon my experience as having been one of Maurice Clarett's lawyers in Clarett v. NFL, and discuss the practical difficulties of being a plaintiff in an age-eligibility case:
I think one of the difficulties for a player to sue is that they'll automatically be labeled a troublemaker, somebody who's trying to break the system, a maverick. It's going to take a lot for a 17- or 18-year-old to be a plaintiff in a litigation where much of the media and most of the fans will be immediately against him - putting a lot of pressure on him and his family. We saw that with Maurice Clarett - he immediately became vilified when he brought the lawsuit. Anybody who tries to challenge the system is deemed as a troublemaker. We've seen that in other contexts of the law.
With that analysis in mind, I found a story by Eli Saslow in today's Washington Post very interesting. Entitled, "Is There Such a Thing as a Perfect 10?," Saslow discusses 10-year old Justin Jenifer, a 4-6 point guard from Maryland who is considered by some to be the best basketball player aged 10 and under. The article details how Justin is "pursued by Amateur Athletic Union summer league teams that troll nationally for players, high school coaches who recruit aggressively and shoe companies whose scramble for potential future endorsers continues for a second decade." It also describes how Justin's life seems completely invested in basketball.

By implication, Saslow's article suggests that a higher age floor for the NBA will likely have no effect on the Hoop Dreams culture of youth basketball. There will still be the shoe companies jockeying for influence, the coaches and scouts from amateur leagues, high schools, and colleges trolling the sidelines, and the omnipresent parents obsessed with making their kids stars. And perhaps instead of 18-year old NBA players, maybe we should be more worried about things like this:
Across the gym, Scottie Bowden pulled down a flat-brimmed Washington Nationals hat until it almost shielded his eyes. A representative of Adidas, Bowden had invested many weekends and about $20,000 of company money in Justin and his teams. Bowden had provided the boy and his teammates with sneakers and travel money to tournaments in an effort to build brand loyalty in a 10-year-old with distant NBA prospects. In Justin, had Bowden accurately identified a star?


Wow. The issue that never ends on this Blog....age.....they're all victims of "the man"....goodness gracious. Clarett lost, Schendlin is wrong, get over it.

Anonymous Anonymous -- 7/04/2006 1:17 PM  

Wow. The issue that never ends on this Blog....age.....they're all victims of "the man"....Clarett lost, Scheindlin was overruled, get over it. Pot will not be legalized either.

Anonymous Anonymous -- 7/04/2006 1:18 PM  

Anonymous, thank you, I appreciate your comment, as it indicates that you read this blog regularly.

Blogger Michael McCann -- 7/04/2006 1:28 PM  

Actually, this is a great Blog. Probably the best in terms of sports law no doubt. However, there comes a point when legitimate issues that have already been discussed ad infinitum become more of a religious crusade or a platform for self promotion ad disgustium and for a losing proposition.

Anonymous Anonymous -- 7/04/2006 1:31 PM  

Wow, it looks like I've struck a nerve. I'm sorry to have upset you so much.

Blogger Michael McCann -- 7/04/2006 1:37 PM  

To change the subject, how about liability related to hot dog eating contests on July 4th?

Anonymous Anonymous -- 7/04/2006 1:44 PM  

As always, interesting post Mr. McCann, and I like the tie-in between this 10-year old kid and the age rule.

You're right about what you call the Hoops Dream Culture being there no matter how old you have to be to enter the NBA. Ask any youth coach about Stern's argument that the NBA wants to get the bad guys out of the 8th grade gyms--that's a bunch of baloney. Those same guys will be there because you still have the same high school and college coaches and shoe companies going after these kids.

I know some people don't agree with you, and they get really defensive about it (as Mr. Anonymous did above) but you're so right about this. The fight must go on.

Steven P.

Anonymous Steven P. -- 7/04/2006 6:33 PM  

To quote Stephen P from a previous posting related to this age crusade against the NBA and every other organization or employer, "I think we should also lower the drinking age to 17 as well. 17 year olds can enter the military (with parental consent), why can't they drink?

I think, that if you can play basketball, age shouldn't matter. Period. Age is such an arbitrary number. Why not lower the driving age as well?"

WELL, in the end it is clear that Stephen P. and Mr. McCann are joint crusaders and libs who just won't give up the fight on this minimum age thing. I do enjoy this Blog, however, no doubt.

Oh yes, BTW guys, in addition to Maurice Clarett losing big time on the age issue, several ivy league law schools having their a$$ handed to them by the Supreme Court recently because they wanted money but no military recruiters, I hate to say it but Al Gore really did lose, too.


Anonymous Anonymous -- 7/04/2006 8:45 PM  

Sorry, I'm not seeing any analogy whatsoever to smoking pot, or the drinking age or driving age. Nor does this have anything to do with being a "victim of the man". This isn't similar to the NFL teams enacting a rule that says Reggie Bush can't wear No. 5. So in other words, this isn't about whether you agree or disagree with age 18 vs. 19 or whether you think employers should or should not have the right to tell you what to wear on your uniform. This is about whether the draft age rule is an illegal restraint on trade, and none of these other situations involve any legal claims (i.e. antitrust, constitutional violation, etc.)

There's no question whatsoever that preventing people from negotiating a wage is a violation of the Sherman Act -- and Mike's research supports helps support that along with a whole string of cases. So my guess is that Mike isn't putting all of the effort and research into this issue simply because he disagrees with the age rule -- my guess is that he (like myself and many others) see the faulty legal analysis applied by the 2nd Cir. in Clarett when it applied the labor exemption to preclude the antitrust claim.

The Clarett court held that prospective union members are "parties to the collective bargaining agreement" (based upon some non-applicable precedent involving hiring halls or something), and therefore precluded the antitrust claim. The court's mistake here was treating the professional sports industry the same as any other industry -- well, in what other industry are prospective union members negotiating, on an individual basis, multi-million dollar signing bonuses without working a single day? So why is this relevant? Because the existing players have no incentive to fight the owners at the bargaining table over this issue. There's no true bargaining going on here, which is one of the underlying principles behind the labor exemption, when existing players are giving in to the owners on this issue and getting huge value in return from the owners. What would you say if you were an existing NBA player and the owners said to you, "If you agree to a draft age rule affecting amateur players, we'll give you a greater percentage of the revenue"? -- You'd say, "where do I sign!!" An employer in any other industry would obviously have no incentive whatsoever to do something like this.

Blogger Rick Karcher -- 7/04/2006 9:36 PM  

R.K. says, "the faulty legal analysis applied by the 2nd Cir."

Are we a bit biased here or just unhappy with the result?

Anonymous Anonymous -- 7/04/2006 9:46 PM  

Neither. Like I said, "faulty legal analysis". Would you understand it better if I had said, "not properly applying the law"?

Blogger Rick Karcher -- 7/04/2006 10:08 PM  

Let's not make this a left-right political debate.

As long as there's an age limit in the NBA, there will be people who oppose it and those who support it. Let the debate rage on!

Anonymous Chris Clarke -- 7/04/2006 10:24 PM  

Sports law blog is truly outstanding overall, but you all live in fantasy land on this issue and must come back to reality now......

R.K.: You really mean not applying the law as YOU believe it to be or should be. You honestly agreee with Sheindlin's lower court decision? Please don't give me a "yes." That would be a sad, sad day for law profs around the USA. I will say my prayers tonight for you and the other age crusaders.

Mr. McCann (and I only call you that because Stephen does) one more thing you might want to think about. Clarett is a hoodlum and a trouble maker in reality-land whether you are willing to admit it or not. Do you not find it ridiculous (by now) to stand behind this guy under any legal principle or theory or than the role the 5th amendment plays in the criminal justice system (and I don't mean due process). You may wish to "reflect" a bit more as to why you and others chose and continue to choose to support this criminal's cause. I really think you (all) have so lost sight of reality of the Clarett case (the loss) that this is the reason you continually re-visit this NBA age crusade far too frequently on your blog.

While I respect your blog and think highly of you guys, but this NBA and minimum-age crusade really should end otherwise you shall rival the Drake Group in terms of sports law and extremeist legal theories and causes.

Think about it. I have said my final peace on this matter. Happy Fourth to you all.

Anonymous Anonymous -- 7/04/2006 10:33 PM  

With all of your posts questioning their positions and continuance of the topic concerning the age limits, we never truly got your position on the issue. Just curious about what your stance is.

Blogger BHBarron1 -- 7/04/2006 11:22 PM  

Let me enter the fray here. First, the necessary disclosures: I am a law professor and a colleague of Mike McCann's at Mississippi College School of Law. So there may be some who will dismiss my observations as lacking in impartiality. So be it.

What strikes me about the comments to this post are not that the post generated so much commentary (which it did), or that a number of earlier Sports Law Blog posts already addressed the topic of the NBA age limit. No, what strikes me is that the issue keeps being raised by others. Numerous newspaper articles and law school conferences over the past year have addressed the topic, and often McCann is turned to as a source or speaker. That is because he has done some very interesting empirical research on the subject, and the results are unexpected and counter-intuitive. That makes them worth discussing. Is being a leading voice on a topic of national interest really grandstanding? That's a rhetorical question, of course; we law professors like those.

The ability of scholars to engage in research is one of the greatest benefits of our higher education system. Sometimes research leads to obvious results, but occasionally it turns conventional wisdom on its head. That's what happened here. It's not a matter of McCann & Co. having a crusade and ignoring the facts (such as Clarett's less-than-clean record). Rather, it is a matter of them doing their homework and making recommendations and suggestions based on that research.

I am not saying their recommendations are right. I am saying their recommendations are based on a solid foundation of research and logic. So my challenge to Sports Law Blog readers is this: if you really think the NBA age limit is right, or unimportant in the face of McCann's research, then why? McCann's analysis relies heavily on economics. On what empirical or normative basis can you base an argument to the contrary? I'd be very interested in reading such an argument, and I am sure Professors McCann and Karcher and others would be, too.

Blogger Gregory W. Bowman -- 7/05/2006 12:17 AM  

I feel bad for anonymous because I don't feel this issue is going to to go away anytime soon. I also read this blog every day and it is one of the best blogs out there.

I really believe these league wide rules will eventually be challenged by athletes. Just to start speculation but say maybe this Justin Jenifer kid or another star.

I really think the time will eventually be right and the NBA/NFL rule will crumble. I also think anonymous is shaped by what the media has vilified people who attempted to break these rules, especially Clarett. Clarett didn't do anything wrong by challenging the rule so leave his being arrested after as coincidence not correlation.

Anonymous Ryguy -- 7/05/2006 1:48 PM  

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