Legal eagles explain what's next

Updated: September 24, 2003, 10:59 AM ET
By Darren Rovell | ESPN.com

With the help of Stephen Ross, professor of law at the University of Illinois and author of "Principles of Antitrust Law," and Gary Roberts, director of sports law program at Tulane Law School, here is a guide on how Clarett v. NFL is expected to proceed.

What happens now?
In the lawsuit, Clarett's representation asks for an injunction that would allow him to be eligible for a supplemental draft to take place within 10 days of the order or be eligible for the 2004 NFL draft. Clarett currently is not eligible because of the rule in the NFL bylaws that prohibits any player who has not completed three college seasons or has not been removed from high school for three years from entering the draft. An injunction would allow him to proceed with his professional career, regardless of the timeline for a trial.

When would an injunction hearing take place?
It depends on the wishes of the judge and the court schedule, but Ross and Roberts say it could take place within months and would be expected to be heard long before April 2004, when the draft takes place.

How will an injunction hearing work?
Clarett's lawyer, Alan Milstein, and the NFL counsel will explain their sides to the argument. In the case of most preliminary injunctions like this, there is little discovery process and it is highly unlikely that there will be any depositions, the legal experts said.

What are the grounds for Clarett to receive an injunction?
There are four main points that the judge has to answer:

  • Will Clarett suffer irreparable damage if his situation is not remedied immediately?
  • Does Clarett have a good case? Not necessarily a winning one, but a strong one.
  • Balance of Harms -- Is Clarett more harmed by this rule than the NFL is?
  • Would the injunction be in the best interest of the public good?

    Since there is no jury required for an injunction, the judge wields a great amount of power when answering these questions.

    What does Clarett have going for him for the injunction or the case?
    As the lawsuit points out, the NFL is the only major professional sport league that restricts the drafting of players to the extent that the NFL does. Clarett would be eligible for drafts in Major League Baseball, the NBA and NHL. In the lawsuit, Clarett's attorneys contend that the rule conveniently protects a free farm system for NFL teams, prohibiting players from joining the league for three seasons to ensure that they are mature enough for the professional game. All of the above, Clarett's representation claims, is not a legitimate business purpose.

    Will Clarett have sympathy on his side?
    This is an intriguing question. Clarett is a college student going up against the multi-billion-dollar behemoth that is the NFL. But Clarett is also in this predicament partly because he violated rules that made him ineligible to play at Ohio State this year, Roberts points out.

    "Clarett is essentially in court because he broke the rules and now he is asking a judge to bend them," Roberts says. "I wouldn't think a judge in this case would be too sympathetic towards finding loopholes in the legal system for him."

    What is the greatest obstacle to Clarett being granted the preliminary injunction or winning the case?
    Milstein told ESPN.com that because the draft eligibility rule is not included in the Collective Bargaining Agreement, and that the rule is not a product of negotiation between the league and the Players' Association, the NFL's draft eligibility rule is not exempt from antitrust laws. But that seems up for debate. In Brown v. Pro Football Inc. (1996), eight Supreme Court justices decided that anything that is a mandatory subject of bargaining, which would include the NFL draft or any terms of employment, are immune from an antitrust attack. The fact that Clarett is not a member of the NFL Players' Association does not matter, Roberts said. Roberts said Clarett might be subject to terms of the Collective Bargaining Agreement, as evidenced from Wood v. NBA (1987). Milstein points out that Leon Wood was drafted and therefore became a de facto member of the NBA Players Association. Clarett, he says, is different because he is not eligible to be drafted.

    If the judge decides that the draft eligibility rule is exempt from antitrust law, both Roberts and Ross expect that Clarett likely will not be granted the injunction because it would be deemed that he is not likely to win the case.

    Whether Clarett will suffer irreparable harm by being drafted in 2005 as opposed to 2004 also could be a subject of debate. If he slips in the draft as a result of his inactivity this year, that certainly could hurt him financially. But, at least at this point, Clarett can still play for the Ohio State Buckeyes in 2004 and then enter the 2005 NFL draft, Roberts says.

    Irreparable harm also has to go beyond monetary damages, since Clarett could recover millions of dollars -- especially since antitrust damages are trebled -- if he ultimately wins the suit, Ross says. The NFL could argue here that it is protecting Clarett from suffering irreparable harm because he is not physically ready for the league. An interesting point: The lawsuit says that Clarett should be compensated for not being eligible for the 2003 NFL draft. In April, when the draft took place, Clarett wavered, making comments alluding to the possibility of going to the NFL as well as returning to the Buckeyes.

    What happens once the ruling on the injunction is made?
    If Clarett wins, the NFL likely will appeal the decision. If the injunction is upheld on appeal, it is likely that neither side will pursue the case because a trial would be moot -- Clarett would be eligible for a supplemental draft or the 2004 NFL draft. One of the only reasons why Clarett might want to see a trial through to its conclusion would be to recover his attorney fees. If Clarett loses, the NFL could ask the judge for a summary judgment on the case, Roberts says. If the judge sides with the NFL, a trial likely will not take place. If the judge sides with Clarett, the suit could proceed.

    If Clarett wins the injunction and does not proceed with the case, will that injunction serve as a good precedent to those players who seek to challenge the draft eligibility rule?
    Since the injunction is only from one district judge, it is technically not binding on anyone else. "A judgment from a district judge after a full trial would have modestly greater weight, but again it's only a district judge," Ross says. "Antitrust merits are likely to be reached on appeal after a trial."

    Darren Rovell, who covers sports business for ESPN.com, can be reached at darren.rovell@espn3.com

    Darren Rovell | email

    ESPN.com Sports Business reporter
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