Cites concerns about physical readiness

Originally Published: September 18, 2003
ESPN.com news services

WASHINGTON -- NFL Players Association executive director Gene Upshaw echoed commissioner Paul Tagliabue's position Wednesday, saying he believes suspended Ohio State running back Maurice Clarett should stay in school and not try to become eligible for the 2004 college draft, the Washington Post reports.

Upshaw, who attended part of a one-day league meeting in Washington Wednesday, told the paper, "We support [the NFL's] position. ... I don't think he should be playing in the NFL yet. He should stay in school. This will be here for him.

"I'm concerned about [him] physically being prepared to play. I'd have loved to have played against a guy who's 18. I'd have whipped him."

According to the paper, Clarett's attorney, Alan C. Milstein, had sent a letter to both Upshaw, a Hall of Fame offensive lineman with the Oakland Raiders, and Tagliabue requesting that Clarett be allowed to declare for the next college draft and play next year. The current NFL rule prohibits players from joining the league until at least three years after their class graduates from high school.

Milstein told the paper that he hopes to have a meeting with NFL attorney Jeff Pash early next week to present Clarett's case for inclusion in the draft and that his client is "keeping all of his options open."

Clarett's next move might be to challenge the NFL rule in court, and some attorneys and sports experts say he has a good chance to win.

Because a trial might not be resolved until after Clarett becomes eligible in 2005, his lawyers could ask for a preliminary court order against the rule.

"Courts do issue preliminary injunctions, and particularly in sports cases," said Alan C. Michaels, former lawyer for the Major League Baseball Players Association. "Courts often seem to get wrapped up in the excitement, mythology and action of sports and their decisions are sometimes less predictable."

No player has ever taken on the 13-year-old NFL draft eligibility rule.

Clarett's lawyers would have to convince a federal judge that it is likely they would win the case and that sitting out a season would affect their client's future earnings.

That tactic worked for Spencer Haywood, who was allowed to play in the NBA with Seattle before his case wound through the courts.

Haywood, whose 1970 case set the precedent for allowing undergraduate players into the NBA, won in the courtroom, lost on appeal and eventually received a ruling in his favor from the U.S. Supreme Court.

Clarett, suspended for at least a year last week for violating NCAA bylaws concerning benefits for athletes and for lying to investigators, set Ohio State freshman records with 1,237 yards rushing and 18 touchdowns last season as the Buckeyes won the national championship for the first time in 34 years.

Neil Cornrich, a Cleveland attorney and sports agent, said Clarett has a "slam-dunk victory" if the NFL can't be persuaded to change the draft rule and he goes to court.

Cornrich called the rule a violation of antitrust laws and said it was not specifically included in the NFL's collective bargaining agreement with the players' union.

"The rule was unilaterally imposed by the National Football League," said Cornrich, whose clients include New England Patriots coach Bill Belichick.

The NFL won't discuss its arguments unless Clarett sues, league spokesman Greg Aiello said. Still, he defended the regulation.

"The draft is part of our collective bargaining agreement, and the eligibility rule has been the subject of collective bargaining discussions," he said.

Asked Sunday if he thought, as a lawyer, that the NFL could win a lawsuit, Tagliabue replied: "My feeling as commissioner is that we have a very strong case and that we'll win it."

Milstein wouldn't discuss specifics, but offered a prediction on the outcome of the case.

"Have you heard anybody other than the people at the NFL who say that it can't be won?" he asked.

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