Intentional Grounding: How The NCAA And NFL Have Engaged In Practices That Unreasonably Restrain The Football Player Labor Market
Stephen Ayeni
Young athletes often dream of becoming the next
star in their respective sports. A selective few go on to realize that dream, and become professional athletes.[1] Within this group of superb athletes are a rare
few who almost seem as though they were “meant for the game”, showing flashes
of greatness at a young age. NBA superstar, LeBron James, was being
touted as an elite player, drawing comparisons to all-time great, Kobe Bryant,
despite still being a high school junior.[2]
Although the NBA has since amended its draft eligibility, the delay in going
professional post-high school is limited to one year. There still remains the
possibility of basketball players profiting financially from their abilities
immediately after high school graduation, while foregoing college.[3]
Baseball prospects are afforded an opportunity to enter the professional ranks,
becoming draft eligible, immediately upon high school graduation. Similarly,
the NHL allows players aged eighteen or older, to enter the draft.
Unlike these sports leagues, the NFL imposes a draft eligibility requirement
stipulating that a prospective player be at least three years removed from high
school. Furthermore, these prospects are not afforded a realistic interim
alternative to college, that produces a monetary benefit.[4]
Essentially, the only legitimate path to becoming a professional football
player, begins by playing at the collegiate level. The problem arising from the
disparity between the NFL draft eligibility requirements in comparison to the
other “Big Four” American sports leagues, is magnified by the average career
spans of each sport’s athletes. Professional football players in the NFL have
the shortest career spans in comparison to players in the NBA, NHL, and MLB.[5] As of 2013, NFL players average a full year less
than the average NBA player, and two years less than NHL and MLB players.[6] Additionally, the NFL provides the lowest average
player salary of the four major sports.[7] This
results in the lowest average potential earnings, in what has been documented
as an extremely violent sport, that could potentially have dangerous long-term
health effects.[8]
Due to these draft eligibility restrictions, football prospects are forced to
attend college in an attempt to showcase their talents to prospective employers
in the NFL. Under the NCAA guidelines, these colleges essentially operate
as a de facto farm system that guarantees the maturation and development of
players, at no cost to the NFL.[9]
There are some players that have been viewed as NFL-ready once they graduated
from high school.[10] However, they are subjected
to the threat of an injury that could negatively affect or entirely eliminate
their earning potential due to the restrictive practices instituted by the NFL
and NCAA.[11] Despite the talents of a top
prospect, an injury could potentially shrink the market for their services, as
teams will be less willing to invest millions into a player who may never fully
recover.[12]
While in college, a football player is considered an ‘amateur student-athlete.’[13] The NCAA operates as a non-profit organization
that promotes the academic and overall well-being of the student-athlete.[14] Notwithstanding the threat of injury, a college
football player must submit to the strict compensation restrictions imposed by
the NCAA.[15] A player who receives compensation
for their athletic abilities or violates other provisions within the by-laws
may be deemed ineligible to participate in all collegiate sports.[16] Since playing college football serves as the
sole realistic option to obtaining employment for their athletic abilities,
athletes are forced to accept a free education as compensation, without
protest. Furthermore, they must refrain from receiving any compensation
that may be attributed to their athletic abilities.[17]
This restriction enables only the conference and school which the player attends,
to benefit financially from their talents.[18]
Although the NCAA prides itself on protecting the ‘student’ aspect of the
‘student-athlete’ label for college football players, it has hypocritically
committed an act that the organization was originally founded to protect
against: exploitive athletic practices. It
is no secret that college football is a massive source of revenue for schools.
However, these schools are operating under the guise of the NCAA’s core values,
enabling them use of unfair bargaining power to obtain the services of football
players, without fair compensation. On average, college football players are
less prepared academically to succeed in the classroom.[19]
If they are not able to maintain a certain grade point average they may not
only lose their scholarship, but also their ability to obtain employment in the
NFL. There are similarities between a development league like the MLB minor
league system and the college ranks of football. The most notable is the
ability to develop talent to play at a professional level. However, a minor league
prospect is able to simultaneously hone their skills while benefitting
financially from these same talents, whereas a college football player must
endure at least three years of schooling prior to an opportunity to be
compensated financially for their athletic prowess. Some student-athletes
benefit from the education received from this arrangement. However, a
substantial amount of college football players enter college with the sole
intentions of going to the NFL, without obtaining a college degree.[20]
The Sherman Act states that “every contract,
combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several
states, or with the foreign nations, is hereby declared to be illegal.”[21] While the broad language of the Sherman Act,
may encompass almost any contract, the Supreme Court has consistently
recognized that the Act “intended to prohibit only unreasonable restraints of
trade.”[22]
This article will analyze how antitrust laws has affected previous sports
related litigation. It will explain the rule of reason, a test courts use to
determine whether certain conduct falls within the purview of antitrust
scrutiny. Subsequently, it will apply the rule of reason to the deceptive
practices engaged by the NFL and NCAA, revealing unreasonable labor market
restrictions whilst debunking the previous litigation defenses used by both
entities.
[1].
NCAA, 2016 Probability of Competing Beyond High School Figures and
Methodology, NCAA.org, (last updated May 2, 2016),
http://www.ncaa.org/sites/default/files/2016RES_Probability-Chart-Web-PDF_20160502.pdf.
[2].
Grant Wahl, Ahead of His Class, Sports Illustrated Feb.
18, 2002, at 62, http://www.si.com/vault/2002/02/18/318739/ahead-of-his-class-ohio-high-school-junior-lebron-james-is-so-good-that-hes-already-being-mentioned-as-the-heir-to-air-jordan.
[3].
Pete Thamel, At 19, Plotting New Path to N.B.A., via Europe, N.Y.
Times (Oct. 4, 2008), http://www.nytimes.com/2008/10/05/sports/basketball/05jennings.html?_r=0.
[4]. Arena
Football One, LLC & Arena Football League Players Union, Collective
Bargaining Agreement 13 (2012),
http://grfx.cstv.com/photos/schools/afl/sports/a-footbl/auto_pdf/2013-14/misc_non_event/collective_bargaining_agreemen.pdf; see
also CFL Adjusts Eligibility Rules for Draft, Canadian
Football League (Sept. 6, 2013),
http://www.cfl.ca/2013/09/06/cfl-adjusts-eligibility-rules-for-draft/. The CFL
has more stringent eligibility standards than the NFL, requiring players to be
hail from a Canadian school—CIS is the Canadian equivalent of NCAA—or having
non-import status. Id.
[5].
Nick Schwartz, The Average Career Earnings of Athletes Across America's
Major Sports Will Shock You, USA Today: For The Win (Oct. 24,
2013 10:07 am),
http://ftw.usatoday.com/2013/10/average-career-earnings-nfl-nba-mlb-nhl-mls.
[6]. Id.
[7]. Id.
[8]. See
e.g. Jason M. Breslow, New: 87 Deceased NFL Players Test
Positive for Brain Disease, PBS: Frontline (Sept. 18, 2015),
http://www.pbs.org/wgbh/frontline/article/new-87-deceased-nfl-players-test-positive-for-brain-disease/.
In a recent study about 87 out of 91 players tested positive for brain disease
CTE. Id.
[9].
John Underwood, Does Herschel Have Georgia On His Mind?, Sports
Illustrated, Mar. 1, 1982 at 22,
http://www.si.com/vault/1982/03/01/564787/does-herschel-have-georgia-on-his-mind.
[10].
Skip Bayless, Clarett Belonged in the NFL, ESPN.com: Page
2 (Aug. 11, 2006),
http://espn.go.com/espn/print?id=2546577&type=story; Jeff Legwold, Adrian
Peterson Among Few Who Could Make Leap from High School to NFL, ESPN.com:
NFL Nation (Oct. 2, 2015), http://espn.go.com/blog/nflnation/print?id=182078.
[11]. See Mark
Viera, Rutgers Player Is Paralyzed Below the Neck, N.Y.
Times (Oct. 17, 2010),
http://www.nytimes.com/2010/10/18/sports/ncaafootball/18rutgers.html?_r=0.
[12]. See John
Harris, 2016 NFL Draft: Injury Crushes Draft Stock of Notre Dame LB
Jaylon Smith, Wash. Post (Feb. 29),
https://www.washingtonpost.com/news/sports/wp/2016/02/29/2016-nfl-draft-injury-crushes-draft-stock-of-notre-dame-lb-jaylon-smith/.
[13]. NCAA,
2009-10 NCAA Division I Manual 61-75 (2009),
http://www.ncaapublications.com/productdownloads/D110.pdf.
[14]. Finances, NCAA,
http://www.ncaa.org/about/resources/finances (last visited July 26,
2016).
[15]. Manual, supra note
13.
[16]. Id.
[17]. Id.
[18]. See Kristi
Dosh, College Football Playoff: Conference Payouts, Bus. C.
Sports (Dec. 8, 2014),
http://businessofcollegesports.com/2014/12/08/college-football-playoff-conference-payouts/.
Over $50 million in revenue was distributed to each Power 5 conference for the
2014-15 bowl season. Id.
[19].
Doug Lederman, The Admissions Gap for Big-Time Athletes, Inside
Higher Ed (Dec. 29, 2008),
https://www.insidehighered.com/news/2008/12/29/admit. “[C]ritics tend to argue
that the colleges are doing a disservice to athletes who come in underprepared,
and suggest that colleges may be achieving those higher graduation rates, in
part, by directing athletes into less demanding academic programs . . .
.” Id.
[20].
Christopher Bogan, 41% in NFL Graduate from College: Rate in Pacific 10
Conference Only 38%, Report Shows, L.A. Times (Jan 26, 1986),
http://articles.latimes.com/print/1986-01-27/sports/sp-719_1_graduation-rate.
[21].
15 U.S.C. § 1 (2012).
[22]. E.g. Nat’l
Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 98 (1984).
