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Friday, December 13, 2013
Alan Milstein's Role in ESPN's 30 for 30 on Maurice Clarett (Airs Tomorrow Night)
Clarett's lead attorney was Alan Milstein, who crafted--in my opinion--a brilliant argument against the rule. There were other great lawyers on Clarett's team including Jeffrey Resnick and Michael Dube. I had the honor of also being on Clarett's legal team and working for Alan. It was an extraordinary opportunity for me, especially as a 27-year-old lawyer. It was my break into sports law.
Alan argued successfully before U.S. District Judge Shira Scheindlin that the rule, which was borne through a memo written by then-Commissioner Paul Tagliabue in the early 90s, had not been collectively bargained with the NFLPA and did not primarily affect NFL players' hours, wages and other working conditions. The legal jargon made sense on a more practical level: Clarett, a college player, was not challenging anything about NFL employment (he didn't object to wage restrictions, rules for rookies, the draft itself etc). He only challenged the rule that barred entry. His inclusion in the draft would have primarily affected one person: not an NFL player, but rather the guy who wouldn't be drafted because of Clarett's inclusion in it. That player, presumably, would have been the last player selected in the draft--the last pick of the seventh round, #255 overall. That guy is also known as "Mr. Irrelevant."
Because the NFL's eligibility rule was not collectively-bargained, it was subject to Section 1 of the Sherman Act and was deemed an unlawful conspiracy among the 32 NFL teams. Those teams were competing businesses for purposes of antitrust law, and had joined hands in an anti-competitive conspiracy: to impose a bright-line rule on eligibility where talent and merit were ignored, arguably because college football was a free minor league system for those NFL teams. Judge Scheindlin's order in February 2004 meant that Clarett would be in the 2004 NFL draft, to be held that April.
Clarett (along with USC sophomore wide receiver Mike Williams, who relied on Judge Scheindlin's order) was then focused on getting ready for the 2004 draft as an eligible player. At the time, we were very confident he would be a first round pick and no later than a second round pick. Our understanding was that the Patriots and Cowboys were especially interested in Clarett. Had Clarett played for Bill Belichick or Bill Parcells, his career and life may have turned out quite differently.
But then the NFL sought an expedited appeal before the U.S. Court of Appeals for the Second Circuit. Even though expedited appeals are rarely granted and are usually reserved for emergencies--someone is on death row etc.--the Second Circuit granted a hearing. At the hearing, I knew within about 10 seconds that we had lost. I believe it was (then) Judge Sonia Sotomayor who interrupted Alan with an, "I don't know why you are here" type remark. Not a good sign and it was indeed predictive: the 2nd Circuit reversed Judge Scheindlin. We then worked quickly on drafting a petition to the U.S. Supreme Court, but our petition was declined. Clarett and Williams had to sit out a year until the 2005 NFL draft. In many ways, that set Clarett on the wrong course, though he has since turned his life around in a big way.
Clarett, the Clarett case and Clarett's life after the case are the subject of an ESPN 30 for 30 to be aired tomorrow night. It is called Youngstown Boys. I have not yet seen it, but my understanding is Alan is interviewed extensively in it. I look forward to watching it.
You can read more about the Clarett case and its context in the history of sports law in my article on Justice Sotomayor and Sports Law.