Stay of order likely won't come in time

Given the potential timeframe for ongoing legal maneuvers, former Ohio State tailback Maurice Clarett almost certainly will be included in the 2004 NFL draft pool, NFL executive vice president and chief in-house counsel Jeff Pash acknowledged Thursday afternoon.

Updated: February 6, 2004, 12:16 PM ET
By Len Pasquarelli | ESPN.com

Given the potential time frame for ongoing legal maneuvers, former Ohio State tailback Maurice Clarett almost certainly will be included in the 2004 NFL draft pool, NFL executive vice president and chief in-house counsel Jeff Pash acknowledged Thursday afternoon.

And he could potentially be joined by dozens of other underclass players who might feel they are ready for the leap from the college game to the NFL.

About the only way to preclude Clarett from being eligible, Pash explained, is for the original court in the case or an appeals court to issue a stay on the ruling made Thursday by Judge Shira A. Scheindlin of the U.S. District Court in New York. Pash said he was not yet certain the league will even seek a stay -- an option that is being discussed by top NFL officials -- but that a determination will be made quickly.

Pash did reiterate that the NFL definitely will appeal Scheindlin's landmark ruling "fairly soon." But an appeals court probably would not address Scheindlin's order to include Clarett in the 2004 draft until after the April 24-25 lottery is conducted.

"It is unlikely we would get a decision from an appeals court between now and [the 2004] draft," Pash conceded. "If there is not a stay ... he would be likely to be in the draft."

Pash said the NFL will now have to re-open the application period -- during which players can petition for inclusion in the 2004 draft -- to comply with Scheindlin's ruling. A deadline for that has not been determined but, in theory, the NFL could now face a veritable flood of applications from players who were not eligible under existing league guidelines.

Pash also believes that the annual predraft combine, which commences in Indianapolis on Feb. 19, is prepared to include Clarett among its invitees. The combine is not officially a league function and instead is administered by the two scouting groups to which most NFL teams subscribe.

Asked if he felt teams might conspire to ignore Clarett, or to treat him differently than the more conventional candidates, Pash said he doesn't believe that will be the case. "I have not the slightest doubt he will be treated like any other player," Pash said. "If he can play, he will be on the field every weekend."

Pash allowed he was "pretty surprised" by the 71-page opinion Scheindlin handed down. He said that there is "such a substantial body of law" upholding antitrust exemptions for sports leagues, particularly in the New York courts, that he felt the NFL was on very solid ground in its arguments to Clarett's petition. He said the league contends Scheindlin was "erroneous" in ruling the NFL's draft rules are not the product of collective bargaining.

As noted several times by ESPN.com in recent months, the NFL draft guidelines are not explicitly addressed in the current collective bargaining agreement. Pash held, however, that the NFL Players Association accepted the league's constitution and bylaws in 1993, as an adjunct part of the collective bargaining agreement.

Pash insisted that the NFL will ultimately prevail in the appeals process, citing the league's success in the past in getting decisions by lower courts overturned.

Gary Roberts, an anti-trust and sports law expert at Tulane University, agrees that the NFL is likely to win on appeal. He said Scheindlin was "flat-out wrong" for granting summary judgment in favor of Clarett without a full trial, given the complicated factual analysis involved in an anti-trust complaint.

"Clarett hasn't won yet," Roberts said. "He's certainly put the NFL in an awkward position. But he's just got one screwy judge to rule in his favor. And this is a battle that might go on for some time."

Scheindlin showed little sympathy for any of the NFL's arguments in her lengthy brief. She wrote that the NFL's desire to protect younger athletes from injury or over-training can be "dismissed out of hand." She was equally unimpressed with the the league's desire to protect itself and its teams from the costs associated with injuries to young players.

"All of the league's justifications for the rule boil down to the same basic concern: younger players are not physically or mentallly ready to play in the NFL," she wrote. "But as the NFL's own affiant concedes, the 'timeframe' for a player's physical and psychological maturation 'varies from individual to individual.' That being so, age is obviously a poor proxy for NFL-readiness, as is a restriction based solely on height or weight."

She added, "[Clarett] is not permitted to be drafted allegedly because the NFL and the union agreed to exclude players in his class. But Clarett's eligibility was not the union's to trade away."

Jim McKeown, another anti-trust and sports law expert, said Scheindlin gave little consideration to the competitive impacts of stripping the NFL of its early-entry draft rule. Instead, she emphasized the impacts on Clarett and the labor market.

"I would never say the judge was negligent," said McKeown, who has done some outside legal work for Major League Baseball as a partner with the Chicago firm Foley & Lardner. "But she did not want to consider any effects in other markets. The bottom line is, I think there are a number of interesting legal arguments that the NFL will have to pursue on appeal."

Pash said that, unless the NFL can reverse the events of Thursday, there will be some players who apply for the draft who clearly don't belong in the league and who will be substantially harmed by their naivete.

He noted that there will be some players who, erroneously feeling prepared for a jump to the NFL, will lose scholarships and "their only opportunity" for a college education.

"We will not be the big losers here," Pash said. "It's not a good thing for us. But there are people who will be affected more than us and in a more adverse way."

Scheindlin scheduled a conference for next Thursday for lawyers on both sides, when the next steps in the lawsuit may be taken. By then, though, the NFL may have already made its decision on whether to pursue a stay of her order.

Len Pasquarelli is a senior writer for ESPN.com; ESPN.com senior writer Tom Farrey contributed to this report.

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