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Wednesday, September 24, 2003

Lawyers who are unclear on the concept of "helping" their clients: Clarett v. NFL

In Friday's New York Times, you will find this article:

Alan C. Milstein has had his share of emotionally charged legal cases. There was the lawsuit he filed against the University of Pennsylvania on behalf of the family of a young woman who died after undergoing a gene therapy experiment. And there was the suit against the manufacturer of an anthrax vaccine after an American soldier who had received injections died.

These were tragic tales involving power and its use. In reciting them, Milstein makes what seems to be an unusual connection, comparing them to his current high-profile client: the suspended Ohio State running back Maurice Clarett.

Milstein's argument is that the NFL is breaking the law — illegally conspiring in an unreasonable restraint of trade — by refusing to draft football players who aren't yet old enough to buy a draft beer:

Milstein is suing pro football over its eligibility bylaws, which prohibit a player from entering the N.F.L. draft until he has been out of high school at least three years. Clarett, a sophomore who was suspended for the season by Ohio State for rules violations, is suing to become eligible for the league's draft next April.

If you are an utterly craven, utterly shallow, utterly shortsighted bastard who's wrapped up in your own reputation and income to the complete exclusion of your nominal clients' welfare, then you might manage to persuade yourself that you'd be "helping" the boy who is your own client, and other boys like him, by going to court to establish that physically advanced and talented 18 year old boys are eligible to become instant boy-millionaires.  You could perhaps continue to "help" your client by, say, introducing him to several bookies and a crack-cocaine dealer while you're at it.

But if, as a lawyer, you have any kind of a clue about what is in such a client's genuine best interest, you will instead tell him, "Son, you have just blown what is probably the best opportunity you could ever have hoped for to pursue a sports career because you thought none of the normal rules of life apply to you because you're already so special.  Even if I could win your case for you against the NFL, what you need is not a multi-million dollar sports contract.  You need to focus on continuing to attend school for the next year and perhaps getting a good part-time job in which you can prove to yourself and your team and the world that you can be a responsible grown-up.  At the end of which time, if you've stayed in shape, your team will probably take you back for a second chance that you might, by then, have earned."

Ask Spenser Haywood whether you need to be careful what you wish for.

Posted by Beldar at 11:57 PM in Law (2006 & earlier), Sports | Permalink


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(1) LazyMF made the following comment | Sep 25, 2003 1:12:49 AM | Permalink

I very much disagree on this one. If you can help get your client a multi-million dollar contract at age 20 in an industry prone to career-ending injuries (average NFL career is about 5 years), you are absolutely doing what is in your client's best interests. Are you doing what is in the long-run best interests of NCAA football or NFL football? No, but those are not your clients, they are your adversary.

NFL football players attend college during Spring semesters if they want to finish their educations (Ahman Green left the Nebraska team a year early after his junior year in 1997. He was drafted by the Seattle Seahawks and spent 2 years on the bench while pulling down a huge salary. He then was traded to the Green Bay Packers where he has become an elite NFL running back. He went back to Lincoln in May, 2002 to don a robe and walk the stage with his graduating class).

The NFL knows it will lose this case if Maurice pursues it. The NBA lost a similar case years ago. It seems a true conservative would want the market to determine these issues rather than ad hoc, arcane rules restraining trade.

And on a side note, everytime I see these arguments, they are directed at young African-American men trying to enter the NBA or NFL. Nobody gives a rat's ass if young golfers leave college early to enter the PGA tour (good golfers almost never finish college), and everyone cheers-on teenage tennis phenoms who drop of of HIGH SCHOOL to go pro. A subtle double standard is at work in American society that can't be denied.

Also, with Maurice, even if he goes to war with the NFL and pisses them off in every way he can, he will still get drafted in the first or second round - a fact his lawyer knows. The NFL drafts the "bad boys" with talent, (Randy Moss) and one owner in particular would probably draft him just to piss off the NFL (The Raider's owner, Al Davis, who frequently litigates against the NFL).

(2) Beldar made the following comment | Sep 25, 2003 6:38:52 PM | Permalink

As always, thanks for the thoughtful comment! But yes, we still definitely disagree, probably both as lawyers and as sports fans (although my original focus was almost solely on the former):

  1. Whether the NFL will win or lose the case wasn't at all my point, and is in fact pretty much irrelevant to it. "Helping" your client is not always equivalent to finding a case on his behalf to win, and the fact that the case can probably be won doesn't at all mean it ought to be pursued. That's exactly the moral and ethical failing I criticize in lawyer Milstein, even if I give him the considerable benefit of the doubt — questionable given his publicity-seeking — and assume that Milstein's allegiance to his client's interests is undiluted by conflicting self-interest.

  2. Likewise, I reject the notion that the sole value for a lawyer to consider in evaluating how he can help a client is getting the client money — the more and the sooner the better.

  3. Just as I don't think that economic concerns are the only important ones here, I really don't see this as a liberal versus conservative issue. I see it as a moral versus immoral one; a wise versus foolish one; and in particular from the standpoint of a lawyer serving as counselor for this kind of client, an ethical versus unethical one.

  4. Even if the only criterion were advancing the kid's NFL career, it's far from as clear as you suggest that his career would be advanced by turning pro now — when his reputation is as a one-season wonder who has trouble following the law — than after one or more additional seasons' solid performance both on and off the football field. A solid, rational argument can be made that on average, the NFL's rule helps more players than it hurts over time — that is, reduces the number of human tragedies and disappointments — as well as allowing the NFL teams to make more rational economic decisions.

  5. Al Davis is not exactly who I'd look to when setting a bearing on my moral compass, unless I was planning to use reciprocal coordinates.

  6. The NFL and NCAA are only adversaries if you define them that why. Why do you assume that they must be? Is it not possible that they have a wise policy? If you define them as adversaries, haven't you ruled out even asking that question? Shouldn't you ask it first, if you're counseling your client?

  7. The odds of getting a disabling injury while attending class during the year of suspension are vanishingly low.

  8. If you consider not just the player's possible sports career but his lifetime economic opportunities, your argument gets dramatically weaker. Anecdotal examples aside, the odds of a football player actually getting his degree fall through the floor once he leaves the team, even if he still has his scholarship, and especially if he's at a school where his admission was pretty much a function of being on athletic scholarship. Just in terms of the odds, look me in the eye and tell me this kid, or any kid, has a better or even remotely close to equal chance of getting a degree if he's drafted into the NFL as a freshman or sophomore — or for that matter, before he enters college, which would be the result of the precedent lawyer Milstein is trying to set.

  9. Yes, all age-based rules can be arbitrary when looked at in the context of the exceptional case. But what line do you draw? The current rule is high-school graduation-age plus three years. Should a lawyer take the case to represent the really talented, really mature high-school freshman? There are no footholds on this slippery slope — and in fact, if it were up to me, I'd raise the admittedly arbitrary line for football and all other professional sports back up to high-school plus four years.

  10. Injecting race into this argument is an ugly thing to do. It's offensive, and it only confuses the issues. I would feel exactly the same way were this kid anglo or hispanic or asian, and exactly the same way were he a scholarship tennis or golf player. I absolutely and categorically reject the notion that compassion and genuine concern for a youngster's well-being must or should be viewed through a prism of race.

(3) LazyMF made the following comment | Sep 25, 2003 11:57:03 PM | Permalink

I don't think I am to the point yet at which I can agree to disagree with you. You take shots at me for arguing outside the realm of the duties of a lawyer, but in my opinion your original argument is outside that realm, but couched in legal terms.

I think we do agree as sports fans. I prefer NCAA football to NFL football. The collapse of the NBA rules preventing early entry into the draft has severely damaged the quality of NCAA basketball in recent years. The same will probably happen to NCAA football, which I very much regret as a member of the 'Husker Nation. However, I don't believe I have the right to restrain the rights of adult athletes to earn a living and compete on the playing field as they choose just because I selfishly want to preserve my preferred form of entertainment.

Now, to adress your points:

1. Milstein is helping his client to win great economic advantage and to change a logically and economically flawed system. The NFL is the only professional sports league in America that maintains the high school + 3 year rule. The rule prohibits adults from pursuing the career they want to pursue. If Milstein wins the case, his client will have the economic rewards he deserves and can proudly look back later in life as someone who took a risk to change a flawed system. I definitely see no moral problem with Milstein's representation. As for ethical problems, I don't see any either. Is he violating court orders or ethical canons by talking about the case publicly? I would suggest that a lawyer has a duty to have a media strategy in a case like this in which the daily maneuverings are being covered by every national media outlet. The NFL is, and will, spin this case (altough the pious NCAA will likely remain mum).

2. I agree that money isn't the only consideration, but it is a very important consideration. Also, getting more money sooner for your client is a good thing, given the time value of money and the fact that the suit involves an adult's right to earn a living.

3. By saying you see this as a moral issue, you are agreeing that you are not just analyzing this through a legal perspective. The advice you suggest be given to Maurice is the kind of advice that should be given by parents and religious figures, not lawyers. Just becuase we are "attorneys and counsellors," we are not given the duty to direct the moral choices of our clients.

4. I think your arguments about the current NFL rule reducing human tragedy and helping more players over time is purely subjective and without foundation. One year wonders and bad boys are consitently drafted and paid by pro teams in all sports. Also, allowing NFL teams to make more rational decisions should not be condsidered in the calculus of Maurice or his attorneys.

5. I wasn't suggesting Maurice consult Al Davis for moral direction. I brought up Al Davis to illustrate that the NFL is not a cohesive unit that will bear a grudge aginst Maurice and blackball him.

6. I don't define the NFL as an adversary, the legal system does. They are the defendant in the case. I don't undestand this argument. And although I don't think they are a named defendant, the NCAA is an adversary. They coexist with the NFL in a system that mutually benefits them to the tune of hundreds of millions of dollars per year. You won't be seeing the NCAA filing amicus briefs on Maurice's behalf in this case.

7. I agree that the odds of getting injured while not playing football are very low. Likewise, the probabilities of increasing one's football skills and making money while sitting out for a year are also very low.

8. I'll look you in the eye and tell you that. Show me your stats.

9. I would personally draw the line at the age of majority. I think that parents should not allow their children to participate in professional (or Olympic) athletics. Examples of this abuse for early teens is seen in female Olympic gymnasts, female professional tennis players (Jennifer Capriati), and (disgustingly) with the new 13 year old female golf phenom. I think the current Candian sytem of professional junior hockey at ages 16-17 is wrong (see sexual abuse by coaches revelations of former players) (Wayne Gretzsky started his professional career at the age of 17 for the Indianapolis Racers). I think any adult should be able to pursue his/her sports career at his/her discretion.

10. Race: I am not accusing you of racism. Race is a factor in America's analysis of these athletes. To suggest otherwise is burying your head in the sand. You may not want race to be a part of this, but it is. I have listened to sports radio, read fan letters to editors and perused internet discussion groups in various sports in several regional markets for years and years. I have never once heard moral or educational concerns for a single caucasian athlete (except maybe Jennifer Capriati - after the fact). Without fail, EVERY African-American athlete that wants to go pro straight out of high school in football, basketball, and even baseball (unless they are from Latin American countries) is given endless advice from concerned fans about their lost educational opportunities. Call it paternalism if not racism.

Please forgive mispellings and grammatical errors. I have just returned from a sports bar and a couple pitchers of Bud where I watched the Blackshirts dominate a quality opponent on the road. Nebraska 38, Southern Miss. 14.


(4) LazyMF made the following comment | Sep 26, 2003 3:09:03 PM | Permalink

Time to fess up.

Although I am absolutely 100% correct on all of my other points, I just found out I may be dead wrong on one major point. That point is that the NFL knows they will lose this case.

My first year legal research and writing teacher emphasized the need for lawyers to constantly Shepardize their case law. His examplar was an appeals court case he won by finding a new published case 2 hours before he walked in for oral argument.

I took a sports law class at the University of Houston Law Center in 1991. Our instructor was a labor attorney who formerly represented the defunct USFL and later represented professional athletes. We spent a lot of time analyzing Flood v. Kuehn, player contracts, the NFL collective bargaining agreement (which was a gastly agreement for the players b/c union rep. Gene Upshaw esentially gave up the right to free agancy, which would have been HUGE for the players, in exchange for the right to conduct union meetings on owner property (locker rooms) - whoopee.), and etc. I knew then, as I "knew" yesterday that the various rules in professional sports leagues which prevented players from jumping into the league early were antitrust violations (except for baseball) which would crumble when challenged by daring athletes like Maurice Clarrett. After all, the NBA rule was attacked and crumbled in the early 1990s, and everyone in the media has been saying Clarrett's case was a sure win, right? Well...wrong.

Actually going to the effort of doing legal research pays. In 1996 the U.S. Supreme Court changed this rule in Brown v. Pro Football, Inc., 518 U.S. 231. Justice Breyer wrote the majority opinion which I believe will stand again when, and if, tested by Maurice Clarrett. The opinion, in its synthesized form, basically says that courts cannot act as antitrust courts when dealing with issues involving collective bargaining between labor and management. This applies not only to actual issues previously bargained in the past, but issues which may be the subject of future bargaining.

The case involved NFL rookies of the various teams' practice squads who sued the NFL (Pro Football, Inc. is the owner of the Washington Redskins,("Redskins" is a whole other subject I won't touch here)) attacking the NFL's decision to pay all practice squad members only $1000 per week with no benefits. The rookies won a jury trial and treble damage verdict of $30 million. The appeals court overturned the verdict on 2-1 decision, holding that the NFL was exempt from antitrust law (haven't read that gem yet). The Supremes narrowed the appeals court decision to that described above.

So, even if Clarrett gets, and wins, a jury trial, I beleive the NFL will ultimately win. This may explain the very recent decision by Clarrett and his posse to go public with the outcries of Jim Brown and Jesse Jackson. IMO, both of these "leaders" lack credibility, but at leaset Jim Brown can say he played professional football at 19 and that his body took the beating, thereby defeating the argument that 19 year olds can't take the punishment of the NFL.

Oh, and did you see Shaqueel (sp?) O'Neil just graduated from college? Yes, he had the time and fortitude to finish up his degree at LSU even though he plays in the NBA and makes sh*tty movies and rap albums in the off-season.

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