Legal analysis thinks Clarett has case

Updated: September 26, 2003, 3:10 PM ET
By Tom Farrey | ESPN.com

Maurice Clarett has taken his fight to Capitol Hill ... and he's winning.

The Congressional Research Service, a non-partisan arm of the House of Representatives that uses scholars and lawyers to consider public policy questions, has issued the opinion that the NFL's early-entry draft prohibition -- currently under attack by Clarett -- probably violates federal anti-trust law.

The five-page memorandum was released Thursday by the office of Rep. John Conyers, D-Mich., who had sought the legal analysis. It was written by legislative research attorney Janice E. Rubin, who cited Spencer Haywood's successful 1971 challenge to the NBA that opened up that league to college underclassmen and high school players.

"In sum, the aspects of the NBA rule that were struck down in the Haywood case would seem to be not dissimilar to those of the NFL 3-years-out-of-high-school rule, despite the fact that the NFL has somewhat modified its restriction," Rubin wrote. "Accordingly, if the NFL rule were challenged on antitrust grounds, there is some precedent for a court to either strike it down, or significantly modify it."

Alan C. Milstein, Clarett's lawyer, said he plans to submit the written opinion as part of the lawsuit Clarett filed on Tuesday in Manhattan federal court. The 19-year-old running back, suspended from Ohio State for the season for alleged violations of the NCAA's amateurism code, is asking a judge to throw out the NFL draft rule, which since 1990 has required players to wait three years until after their high school class graduated.

"This (research opinion) means a great deal," Milstein said. "The law that was being investigated is a law passed by Congress."

The memo also reflects the fact that the high-stakes effort to allow Clarett to sell his services to NFL teams before 2005 now has a political -- not just legal -- dimension. Behind the scenes, Milstein and Jim Brown, the Clarett family advisor, have been working to enlist the support of key African American members on the hill, including Conyers, who at the annual legislative conference for the Congressional Black Caucus (CBC) expressed his support Thursday for Clarett.

"Like a lot of young kids, he's made mistakes, but he has been the subject of an Orwellian procedure where a university acting to protect its own hide (has) acted as Maurice's prosecutor, judge and jury," Conyers said in a statement. "Now, like (baseball free-agency pioneer) Curt Flood before him, Maurice is . . . challenging a draft rule which the league tells us is designed to help kids, but really seems to institutionalize a farm system that reaps huge financial rewards for the colleges and pros; and operates primarily at the expense of African American teenagers."

Speaking of Brown and Milstein, Conyers told ESPN.com that he will "do whatever they want me to do" in terms of bringing Congressional pressure on the NFL. The ranking Democrat on the House judiciary committee, Conyers in recent years has spurred anti-trust hearings to examine the behavior of Major League Baseball and the Bowl Championship Series.

NFL spokesman Greg Aiello said the league has not seen a copy of the memoradum, only the ESPN.com news report on it. He expressed skepticism that the memo would hurt the league's defense of its rule.

"(The memo) overlooks roughly 30 years of developments in antitrust law and we would not expect it to have any bearing whatsoever on the case," he said.

Conyers presided over a CBC sports panel Thursday in which the featured speakers included Brown and civil rights activist Jesse Jackson, who also came out in support of Clarett's case. At the podium before a packed room that included government officials, sports-industry executives and other African American leaders, Jackson contrasted Clarett's situation to that of fellow Ohioan LeBron James, who went straight from high school to the NBA this year.

"I wish (Clarett) would stay in school," Jackson said. "But if you're old enough in this country to go to Iraq, and if you're old enough to answer the bell, you're old enough to work."

Jackson's comment was greeted with applause, as many of the athletes who might eventually be affected by a lifting of the rule are African American.

However, support for Clarett's case within the black sports community is clearly mixed.

Among the queasy: the Black Coaches Association, which represents 1,100 coaches in various sports from the high school to the professional level. The BCA will neither issue a formal statement on the rule nor spend time reviewing it, said Floyd Keith, executive director of the organization. However, in an interview with ESPN.com, Keith expressed deep concern about Clarett's potentially ground-breaking initiative.

"If he wins this lawsuit, it will change college football," said Keith, a former head college football coach at Howard and Rhode Island. "It will change the way coaches look at redshirting (freshmen). Younger players will be pushed to play early, like in college basketball, because they could potentially leave for the NFL earlier. No one will stay four years.

"Graduation rates will go to hell. And coaches will be held accountable."

Another critic is Charles Farrell, director of Rainbow Sports, a group whose stated mission is to expand opportunities for minorities in sports. Farrell's group is an extension of Jackson's PUSH Coalition -- indicative of how deep the divide runs on the Clarett case.

"I think the (NFL) rule is a good rule," he said. "I wish it would stay there. But the NFL is going to lose."

Athletes are too physically immature to play in the NFL before completing three years of college ball, Farrell said. Brown and Milstein disputed that line of thinking -- used publicly by the NFL to support its rule -- and noted that Clarett would be on the verge of his 21st birthday, an age not uncommon for other rookies, if permitted to play next season.

At the podium, Brown, who was made Clarett's advisor at the request of the mother Michelle Clarett, lobbied for support. "I say to all of you who think the system is unfair, 'Get behind this mother and son.' Because they're fighting some powerful elements."

Tom Farrey is a senior writer for ESPN.com. He can be reached at tom.farrey@espn3.com.

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