How the pros prevent Nerlens Noel and Jadeveon Clowney from turning pro


South Carolina’s Jadeveon Clowney is a projected top-three selection in the 2014 NFL Draft. Clowney cannot enter this year’s draft because eligibility rules adopted by the NFL (and approved by the NFL Players Association) bar any player from turning pro “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.” Clowney graduated from high school in 2011, so he must wait until the end of the 2013 NFL season before he can enter the Draft.

Of course, the NFL rules don’t force Clowney to play college football during this three-year waiting period. Some have suggested Clowney sit out his junior season to preempt a catastrophic injury that would either hurt his draft status or possibly end his NFL career before it can begin. This argument is particularly appealing given today’s announcement that Nerlens Noel, a freshman basketball player at Kentucky, is done for the year after suffering an ACL injury in a game against Florida.

Like Clowney, Noel has been projected as a top draft pick. The NBA imposes a one-year waiting period for graduating high school players, leading Noel to play for Kentucky this year. Pat Forde of Yahoo Sports commented, “If this injury compromises Noel’s draft status, it’s on David Stern and his league’s minimum age requirement.”

Forde’s statement omits the fact that neither Stern–nor his NFL counterpart, Roger Goodell–can unilaterally maintain any draft eligibility restrictions. In both leagues the rules are incorporated into a larger collective bargaining agreement with the union representing the league’s players. Indeed, the NFL Draft rule cited above is taken directly from the text of the CBA signed by the NFL Players Association following the 2011 lockout. That rule further establishes the length of the draft and the compensation terms for rookie players.

Sotomayor Lays Down the Law

If Pat Forde and others are seeking a scapegoat for the plight of Clowney, Noel, et al., they might try Supreme Court Justice Sonia Sotomayor. She was a crucial figure in two cases that established the absolute supremacy of the collective bargaining process in sports. In 1994, as a trial judge on the federal district court in Manhattan, Sotomayor issued an injunction preventing Major League Baseball owners from unilaterally imposing new labor rules following a strike by the players union. More relevant here, in 2004 as a judge on the U.S. Court of Appeals, she authored an opinion rejecting a challenge to the NFL’s three-year waiting period on antitrust grounds.

The case involved former Ohio State running back Maurice Clarett. Clarett attempted to enter the NFL Draft after his freshman year, and when the league refused, he went to court. Federal Judge Shira Scheindlin initially ruled for Clarett, holding that the eligibility rule was a “naked restraint on competition for player services because it excludes a class of players from entering the market.” Scheindlin said that while federal labor law generally exempts collective bargaining agreements from antitrust review, that exemption didn’t apply here because “those who are categorically denied eligibility for employment, even temporarily, cannot be bound by the terms of employment they cannot obtain.”

On appeal, Justice Sotomayor disagreed. Overruling Scheindlin, Sotomayor emphasized that under federal labor law, Clarett and other college players had no right to negotiate the terms of their own employment with the NFL, which was delegated to the monopoly authority of the NFLPA:

The players union’s representative possesses “powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents.” In seeking the best deal for NFL players overall, the representative has the ability to advantage certain categories of players over others, subject of course to the representative’s duty of fair representation. The union representative may, for example, favor veteran players over rookies, and can seek to preserve jobs for current players to the detriment of new employees and the exclusion of outsiders. This authority and exclusive responsibility is vested in the players’ representative “once a mandatory collective bargaining relationship is established and continues throughout the relationship.” For the duration of that relationship, federal labor law then establishes a “`soup-to-nuts array’ of rules, tribunals and remedies to govern [the collective bargaining] process.”

In other words, the self-interest of current players looking to protect their jobs overruled any self-interest college players might have in jumping to the NFL early. It’s also worth noting that at the time of Sotomayor’s decision, the CBA then in effect did not expressly include the draft eligibility rule. Rather, Sotomayor noted it was incorporated as part of a catch-all provision in the CBA whereby the union waived its right to challenge any existing NFL rules not otherwise covered in the agreement. This included the three-year waiting period, which is part of the NFL bylaws. The NFLPA later agreed to include the draft provision as part of the 2011 CBA.


Since the current CBA runs through 2020, there’s little chance of relief for Jadeveon Clowney–or, for that matter, any player now in the sixth grade–unless federal law is somehow amended to override Sotomayor’s decision (unlikely) or the NFL voluntarily moves to change the rule (even more unlikely). Even if the NFL wanted to abolish the three-year rule, it would also need the NFLPA’s consent to amend the CBA. And while many in the media might cheer an end to age restrictions, there would be political resistance in other corners, both from people who view NFL-level football as too dangerous for teenagers and those who wish to protect college programs from additional early departures.

Photo Credit: Kim Klement-USA TODAY Sports



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