(The following was an analysis of high schoolers entering the NBA draft and examination of whether a rule could be imposed on this subject that would comport with Antitrust law and ethical/public policy considerations. This study was written in early 2000 and much has changed in this field. LeBron James popped up and foreign players have also complicated the analysis. Nevertheless, neither of these issues alter the conclusions of this study in anyway.)
Sitting and waiting for that important phone call is one of life’s unpleasant moments. There is a sense of powerlessness. Your fate is entirely dependent on the decisions of another. Whether the call is for a job interview or for the result of a medical test, when waiting for the call, the silence of the phone is deafening. The minutes feel like hours and the hours feel like days. On the night of June 26, 1996, Taj (Red) McDavid sat by the phone waiting for just such a phone call.
McDavid was a 6-6 guard-forward from Palmetto High School in Williamston, South Carolina who decided to bypass college and enter the draft of the National Basketball Association (“NBA”). The phone call he waited for was one that would inform him that an NBA team had selected in the draft. McDavid was a good high school player who chose to forgo a college athletic scholarship for a shot at an NBA contract. A selection would have given McDavid a contract for three years and at least $3,000,000. By choosing to enter the draft, however, he would be ineligible for a college basketball scholarship and a college education would essentially be foreclosed from his future.
McDavid’s high school coach, college recruiters, and NBA Scouting Director Marty Blake all cautioned McDavid about giving up a free college education for his pipe dream of an NBA career. Despite this negative reaction, McDavid could not be swayed and he entered the draft. McDavid decision was apparently based on the advice of his Uncle Jerry who misguidingly predicted that “there’s nobody in the NBA who can stop Red.”
With all the hoopla of his decision behind him, McDavid waited for the NBA to beckon. However, the phone call never came for McDavid. Dazed and confused, he found himself without a lucrative contract or a college scholarship. Three years later, McDavid petitioned the National Collegiate Athletic Association (“NCAA”) to regain the athletic eligibility he forfeited when he declared for the NBA draft. The NCAA demonstrated some compassion to McDavid’s plight and reinstated his eligibility so that he could play at Anderson College in South Carolina.
However, McDavid did not receive a scholarship to play ball and, at last glance, a back injury and an indifference to schoolwork have put both his collegiate and athletic futures in doubt. “It’s a pretty sad case,” said Tommy Davis, Palmetto High School’s athletic director, “about 99.9 percent of the people told [McDavid] not to do it, but he did it anyway, now he’s got nothing.” McDavid himself was contrite about his decision to enter the draft, stating that “if I had to do it all over again, I wouldn’t have entered the draft in the first place.”
To prevent future tragedies similar to McDavid’s in the future, NBA Commissioner David Stern proposed a rule to place an age limit of 19 years old before one could be eligible to enter the NBA draft. The NBA Players Union has not supported this proposal and Stern has backed off on the plan for the present time. However, the issue of whether such a rule is either viable or necessary still remains. This paper will examine the phenomenon of early entry into the NBA, determine whether and to what extent this phenomenon should be corrected, assess the legal and ethical considerations that Stern’s rule would need to harmonize, and finally advocate that the NBA adopt either an age-based rule or process requirements for under-aged candidates.
I. Factual Background
A. The NBA Draft and the Riches It Can Offer
In order to best consider the feasibility of Stern’s age-limit rule, it is important to understand the history of the NBA and its draft and how the draft works today. Only by examining the NBA historically and where it stands today can one understand the legal issues presented and properly weight the ethical considerations at work in imposing an age limit on the draft.
In order to best consider the feasibility of Stern’s age-limit rule, it is important to understand the history of the NBA and its draft and how the draft works today. Only by examining the NBA historically and where it stands today can one understand the legal issues presented and properly weight the ethical considerations at work in imposing an age limit on the draft.
Currently, the NBA Draft is a two-round process in which each team is afforded two picks, one for each round. The NBA Collective Bargaining Agreements affords a pay scale for each rookie depending upon how high in the draft the player is picked. For example, the first pick overall would receive the highest predetermined salary and each other player in the first round would receive a slightly lower salary than the player picked before him. All the picks in the second round receive the same a contract, a one-year contract at the NBA rookie minimum salary of $301,875.
Each round consists of 29 picks, which corresponds to the number of teams in the NBA. Aside from monetary differences, the contract of a first-round pick differs greatly from that of a second-round pick in length and security. All first-round picks receive a contract that runs four years and the player’s salary is guaranteed. That is to say that the player is entitled to all of the money promised under the contract whether or not he injures himself and is unable to play or whether he simply is not as talented a player as the team projected.
A second-round pick, however, enjoys no such security. A second rounder’s contract runs for one year unless the team chooses to offer the player a longer contract. Additionally, the team is free to terminate the player’s contract at anytime without paying the player for any salary that could have been due after the termination. The team would only be obligated to pay the player for services rendered. Thus, the matter of one or two picks could cost a player millions of dollars and four years of security.
B. The History of the NBA Draft and Early Entrants
In 1891, in Springfield, Massachusetts, Dr. James Naismith invented the sport of basketball. The sport quickly proliferated in popularity and professional leagues sprouted throughout the country such as the National Basketball League (“NBL”), the American Basketball League (“ABL”), and various barnstorming teams, like the renowned Harlem Globetrotters. Much like the other professional sports leagues, the basketball leagues found players from as many areas as possible. However, since college basketball was actually more popular with fans than the pro game, most pro players came from the college ranks.
In 1946, the NBA emerged from these regional leagues to become the first nationwide basketball league. The NBA established a rule that it would not allow a player to be drafted until four years after the player graduated high school. The effect of such a rule was to require most aspiring professional players to attend college before going to the NBA. Indeed, in 1958, when the great center Wilt Chamberlain decided that he did not want to return for his senior year at the University of Kansas, he was forced to play for the independent Harlem Globetrotters for a year before he was eligible to enter the NBA Draft.
The NBA’s four-year draft rule went unchallenged until 1971. The grounds for this challenge were set in 1967 with the establishment of a new rival basketball league, the American Basketball Association (“ABA”). From the outset, the ABA was considered inferior to the NBA in every respect. As a result of this inferiority, the ABA enjoyed no long-term financial stability. Indeed, after the ABA’s first season, because of poor attendance, four of the eleven ABA franchises moved to new locations.
It became imperative to the ABA to find basketball talent that would attract fans. The ABA first strategy was to sign away veteran NBA stars. The first attempt occurred when the ABA’s Oakland Oaks signed NBA star Rick Barry away from the Golden State Warriors in 1967. However, Barry was already under contract with the Warriors who were not willing to allow their star to jump to the ABA. Litigation ensued and Barry was forced to sit out a year before he could play in the ABA. The effect of the case was to prevent the ABA from signing NBA players to contracts unless the players’ previous contracts had already lapsed. Thus, a significant source of talent was made inaccessible to the ABA.
C. Spencer Haywood, Underclassmen, and the ABA
The faltering ABA needed to find a new talent source. It was clear that the ABA could have carte blanche in signing talent if it set-up camp in a talent frontier that the NBA was unwilling to explore, namely college basketball underclassmen. In 1969, the ABA signed its first college basketball underclassmen, Spencer Haywood a 6-9 sophomore from the University of Detroit. Haywood, who was born in rural Silver City, Mississippi and was the eighth of ten children, stated that his decision was based on his family’s financial hardship.
Even so, there was a public outcry against the ABA and Haywood all of the general tenor that the decision of an athlete to forgo college is immoral and might somehow contribute toward the erosion of society. Bob Ryan the basketball writer for the Boston Globe said that, “[w]hen Haywood turned pro. . .we thought it was un-American, that it would tear down the structure of sports and lead to chaos.” Others critics of the ABA accused it of corrupting naïve teenagers with big money.
Still, the signing Haywood proved to be a boon for the ABA. Playing for the Denver Rockets, Haywood led the league in points (30) and rebounds (19.5) and was named the ABA Most Valuable Player. Haywood’s success intrigued Sam Schulman, the owner of the NBA’s Seattle Supersonics, who sensed he could steal a talented player and signed Haywood in 1970. However, the NBA’s four-year rule was still in effect and NBA Commissioner Walter Kennedy refused to waive the rule for Haywood and threatened Schulman and the Supersonics with sanctions.
A legal battle between Haywood and the NBA ensued where Haywood challenged the NBA’s four-year rule as a violation of the Sherman Antitrust Act. Since the NBA season started before the case came to trial, the first legal battle centered on the proper formulation for the preliminary injunction. The NBA argued that the proper status quo to preserve was the one that existed before Haywood signed with Seattle and Haywood arguing the opposite position.
The District Court granted Haywood a preliminary injunction that allowed him to play before the Court ruled on his case. The Ninth Circuit, however, stayed this order stating that the proper status quo to preserve was the one in which existed before Haywood signed with Seattle. The Supreme Court, in a terse opinion, sided with Haywood.
At trial, the District Court granted summary judgment to Haywood, holding that the four-year rule was a per se restraint of trade in violation of Section 1 of the Sherman Act. The NBA argued that its four-year rule was proper because the rule was financially necessary, it gave the players an opportunity to pursue their college degrees, and that the college athletics provided a cheap and efficient training ground for the NBA teams. The Court rejected all these arguments as irrelevant and not compelling enough to overcome the anti-competitive effects of the four-year rule.
In the wake of this holding, the NBA altered its draft eligibility rules to allow an athlete to enter the draft so long as he could show financial need or hardship. More recently, the hardship requirement was dropped and the NBA Draft became, as it still is, accessible to any player whose academic age group has graduated high school.
D. Moses Malone and the Beginning of the High School Exodus
The next major change to the NBA draft came in 1974 when the ABA, once again, pushed the boundaries of player procurement even further. The ABA was still struggling, teetering on the brink of insolvency, and its teams became more desperate to find talented players. This time, the ABA’s Utah Stars wanted a 6-10 Virginia high school phenom named Moses Malone.
Though Utah drafted Malone as a third round pick in the ABA Draft, the selection was not considered serious because Utah’s selection was with a low round pick which was usually spent on a player who could not make the team. Further, Malone had already signed a letter of intent to attend the University of Maryland. However, when Utah offered him a large cash package, including $120,000 for Malone’s future college tuition, Malone skipped college and went straight to the ABA.
Despite concerns that high schoolers were not ready for the rigors of pro basketball, Malone was an instant success in the ABA, averaging 18.8 points per game and 14.6 rebounds per game. In fact, Malone went on to have a storybook career. He is considered one of the top players in NBA history and was chosen as a member of NBA 50th Anniversary All-Time Team in 1996 and had the most career offensive rebounds in NBA history.
Malone’s success did, in fact, encourage others high schoolers to follow suit. In 1975, two high schoolers, Darryl Dawkins and Bill Willoughby, decided to skip college. Neither Dawkins nor Willoughby experienced the success Malone did. The 6-11 Dawkins was considered a potentially great center but these predictions never came to fruition. Instead, Dawkins was a serviceable player for 14 years in the NBA before finishing his career in Italy. Willoughby had an undistinguished seven-year career as a backup forward.
Perhaps because of the modest success of Dawkins and Willoughby, no high schoolers entered the NBA Draft for 15 years. In 1988, Shawn Kemp, a 6-10 freshman at the University of Kentucky, was expelled from school for fencing a necklace that belonged to his coach’s son. In order to rehabilitate his tarnished image, Kemp enrolled at Trinity Valley Junior College in Texas. Kemp hoped to play basketball at Trinity Valley for the next year and then transfer to a major college program.
However, before Kemp ever played a game at Trinity Valley, he declared for the NBA Draft and was selected by the Seattle Supersonics. Kemp has had an immensely successful professional career and has been all-star six times and, in 1997, he signed a seven-year $107 million contract. While Kemp did not technically go straight to the NBA from high school, his success was a reminder that it is possible to succeed in the NBA without the aid of a college basketball program.
E. Kevin Garnett and the New Generation of the High Schoolers
Six years passed after Kemp’s decision and no high schooler came out until Kevin Garnett in 1995. Garnett, a lanky 6-11 prodigy from Chicago, could not achieve the requisite SAT scores to be eligible to play basketball his freshman year of college. When Garnett realized that he would be a top pick in the NBA Draft, he decided that it was not worth his while to sit out a year in college when he could be earning millions in the NBA. Garnett was drafted with the fifth pick overall by the Minnesota Timberwolves.
Garnett has since become an all-star in the NBA and, in 1997, he signed the richest contract in the history of professional sports, a 6-year $125 million dollar deal. Further, his fun loving personality has endeared him to fans and made him one of the most marketable personalities in all of professional sports.
Like Moses Malone in 1975, Garnett has encouraged a new generation of high school hopefuls to forgo college for the NBA. This group, however, is much larger than the one followed Malone. From 1975 until 1995 only three high schoolers (and Shawn Kemp) skipped college. However, since Garnett, the floodgates have opened. Ten high schoolers have entered the NBA Draft with varying degrees of success.
In 1996, Kobe Bryant, Jermaine O’Neal, and Taj McDavid entered the NBA Draft. McDavid’s sad story has already been told. Bryant and O’Neal, on the other hand, found success in the NBA. Bryant signed a 6-year $71 million contract and is an NBA All-Star. O’Neal’s success was more modest. He spent the majority of his first three years in the NBA on the bench and averaged a meager 3.9 points per game and barely over 10 minutes of playing time per game. This protracted sitting bothered O’Neal and he even went as far as to say that he regretted his decision to skip college. Still, O’Neal demonstrated enough potential that in the summer of 1999, the Portland Trailblazers signed him to a four-year $24 million contract.
In 1997, only one high schooler, Tracy McGrady, entered the NBA Draft. McGrady, a small town kid from Bartow, Florida, was drafted by the Toronto Raptors. His initial adjustment to life in Canada was rough as a change in the power structure of the Raptors left him without a support system that an 18-year old in a new country needed. However, by his second year, McGrady acclimated both to the pro game and the pro life and began to thrive. His contract is up at the end of the 1999-00 season and he expected to garner a large contract extension.
Thus far, the high schoolers had experienced far more success than failure in the NBA. In 1998, however, the tables would turn. A record four high schoolers declared for the NBA Draft, Al Harrington, Rashard Lewis, Korleone Young, and Ellis Richardson. Harrington was the only one of the four to be drafted in the first round and earn a guaranteed contract. He was taken late in the first round, the 25th pick and barely played his rookie year. Still, he has shown enough improvement in the 1999-00 season to indicate that he could have a solid professional career.
Rashard Lewis expected to be a first round pick as well but he slipped to the second round. This turn of events was unexpected as most scouts agreed Lewis was a professional talent. However, Lewis was a victim of circumstance as most NBA teams either did not require a small forward or were not prepared to invest in a raw high school athlete. Lewis was so shocked and saddened by this happening that he was brought to tears in front of a national television audience. Lewis’ story did not end as badly as it could have. Despite having a non-guaranteed contract, Lewis was able to demonstrate enough skills with the Seattle Supersonics that they signed him to a two-year deal.
The other two members of the Class of ’98 did not fair nearly as well. Korleone Young was also drafted in the second round. However, Young was clearly not ready for the professional game. Unlike with Lewis, the scouts were certain that Young was a fringe talent at best and that college would be a better place for him. The Detroit Pistons drafted Young in the second round. He played very few minutes and was not re-signed by the Pistons at the end of the year. This year, Young tried out with Philadelphia 76ers this year but was cut in the preseason. He is currently playing for the Richmond Rhythm of the International Basketball League.
Even more distressing was the case of Ellis Richardson. Richardson was Taj McDavid redux. He was a solid high school player but exhibited no skills whatsoever to hint that he would be drafted or even be able to play for a major college program. After the McDavid fiasco, people were especially vigilant about convincing Richardson to rescind his entrance to the NBA Draft. The persuasion was to no avail and Richardson became the second high schooler not to be drafted. When last reported upon, Richardson was in a Los Angeles jail awaiting trial on burglary charges.
The 1999 Draft brought further problems with high schoolers entering the NBA into focus. Two players skipped college to enter the NBA Draft, Jonathan Bender and Leon Smith. Bender’s decision was not unexpected. He originally intended to enroll at Mississippi State College, but when it became clear that the NBA was interested in picking Bender with a very high pick, Bender decided to skip college. Indeed, Bender was chosen with the fifth pick overall by the Indiana Pacers. To date, Bender has been sidelined with a broken wrist but he is expected to have a successful NBA career.
The other high school player to enter the 1999 Draft, Leon Smith, has experienced much trouble. Smith, who grew up in the ghettos of Chicago, was taken from his parents at the age of four by Health and Human Services. Smith spent his childhood going from foster home to foster home. When he decided to enter the NBA Draft, the voices that warned McDavid and Richardson came out again. However, Smith refused to change his decision. Miraculously, the Dallas Mavericks drafted Smith with the last pick in the first round. Not only did Smith get an opportunity to play in the NBA, he received a four-year guaranteed contract.
Despite this good fortune, Smith demonstrated that he was not ready for the adult world. The Mavericks initially asked Smith to play basketball in Europe for one year to develop physically and mentally before being thrust into the NBA. Smith refused to cooperate and the Mavericks were forced to leave him on their roster.
At Smith’s first NBA practiced he refused to run the sprints that all the other players were required to do and then he stormed angrily out of the practice. When asked about incident, Smith apologized but noted that “[t]his is typical me. This is Leon every day. I’m not going to change.”
Smith has recently experienced problems greater than mere immaturity. In November 1999, Smith was hospitalized after he was found barely conscious in his apartment with his face painted green. He had ingested 250 aspirin and mentioned to the police that he was “an Indian fighting Columbus.” Smith had his stomach pumped and was placed in a psychiatric ward. His NBA future and his future mental health remain in doubt.
In addition to the worries already created by players like Smith, Richardson, and McDavid, a new dimension was added to the NBA-high schooler problem. In June 1999, Brandon Bender, a sophomore in high school indicated that he might enter the NBA Draft after his junior year of high school. While the NBA rules require entrants to graduate high school, Brandon Bender’s statements only heighten the worries that the number of teenagers who will throw away their chances at a college education and stunt their emotional growth based upon unrealistic expectations of their ability to succeed in the NBA.
F. David Stern Responds to the Problem
With these problems in mind, NBA Commissioner David Stern proposed a rule that would prevent a player from entering the NBA Draft until he turned either nineteen or twenty years old. Stern’s rule was not well received by the NBA Players Union. The Union refused to support any restriction on the NBA Draft and claimed that such a restriction violate federal antitrust law. The NBA was less sure that the antitrust law would prevent this restriction.
However, legal analysis is not the starting point in formulating a restriction on the NBA Draft. Initially, any restriction should be formulated without regard to antitrust law. Such an analysis would be an ethical analysis to create a restriction that is most effective, just, and fair. Only when the best restriction is found from an ethical standpoint, legal analysis should be undertaken to make the rule comport with the law. Thus, this paper will begin its analysis of age restriction from an ethical standpoint and only consider legality until the ethical underpinnings of the issue are properly elucidated.
II. Ethical Evaluation of an Age Restriction
Whether or not the NBA should institute an age restriction is both a legal and an ethical question. As mentioned above, the question should begin with the ethical inquiry because without an ethical basis, there would be no need for the rule and its legality would be a moot subject. The ethical inquiry consists of two parts: defining the problems and then, if there is a problem, formulating rules to remedy the problems.
A. Is There a Problem (or Problems) with High Schoolers and the NBA?
There are four problems with high schoolers skipping college to enter the NBA. The first and most obvious problem is with high schoolers entering the draft when they are clearly not talented enough to be drafted. The second problem involves high schoolers who enter the NBA Draft and are physically ready to play in the NBA but lack the maturity or emotional wherewithal to cope at such a young age. The third problem is with those who might be best served getting training in college but wish to enter the NBA straight from high school. The final problem posed by the high school entrants is the stigma and bad publicity the NBA could suffer for tacitly encouraging teenagers to skip college.
1. Problem #1 Taj McDavid Syndrome
Few would argue that the entry of high schoolers to the NBA Draft poses a problem to the teenagers under the misimpression that they can play in the NBA and miss the chance at a college scholarship. This is clearly a scenario that most would want to prevent if possible.
However, in the 26 years since high schoolers have entered the NBA Draft, only two of 14 high schoolers who skipped college have not been drafted. This would indicate that the two undrafted teens, Taj McDavid and Ellis Richardson, are isolated cases and therefore do not warrant the protection of a specific restrictive rule. But such a view ignores the recent trend towards more high school entries.
Indeed, from 1974 until 1994 only four players entered the Draft without playing for a collegiate team. In contrast, since 1995, 10 high schoolers have entered the NBA Draft. It appears that Kevin Garnett’s success in 1995 has spawned a larger flow of high schoolers into the NBA. Understanding that the high school entry into the NBA has dramatically risen in the last five years, the fact that 20% of these entrants have not been drafted is a cause for concern. Thus, there is sufficient evidence that the Taj McDavid-type situation is a potential problem that could merit a rule to cure it.
2. Problem #2: Emotional and Mental Maturity
In our society, the emotional maturity of professional athletes is always a topic of concern. At times, the prima donna label is unwarranted. However, there are some clear cases of erratic behavior by athletes. These concerns are heightened for the high schoolers because they have not had the life experiences of most of the older players and thus could be more susceptible to acts of petulance.
While Kevin Garnett, Kobe Bryant, and Moses Malone were model citizens, high schoolers have also had bouts of immaturity. Darryl Dawkins’ spent much of his early career alternating between pouting and creating odd nicknames for himself. Tracy McGrady, Al Harrington, and Jermaine O’Neal were less than industrious in striving to improve as rookies. Still, none of these instances of immaturity were significant enough to question the emotional maturity of high schoolers in the NBA.
However, the recent case of Leon Smith has given new life to the fears that some high schoolers are not emotionally ready for the abrupt transition from high school to adulthood. Smith has clearly been overwhelmed by professional life and the results have been tragic for him. Such a result, while isolated, is such a distressing result that it could merit a rule to prevent any recurrence.
3. Problem #3: Stunting a Player’s Development
There has been some concern raised that high schoolers who enter the NBA Draft risk stifling their development as basketball players. The standard course for a high schooler in the NBA is to sit and watch for his first couple of years and gradually develop. The player will not receive extended playing time. However, the player would certainly receive playing time in college and that experience could constitute a crucial instructional teaching and seasoning for a raw player. For example, Dawkins was considered a talent with the potential to be a player on par with Wilt Chamberlain and Shaquille O’Neal. However, Dawkins had only modest success in his NBA career.
Even worse off than Dawkins was Bill Willoughby. Willoughby never was able to be anything more than a reserve in the NBA. An observer close to Willoughby said that, “[p]eople kinda catered to him—and then when he got in a man’s world, the change was so abrupt he couldn’t handle it.” On the other hand, other players have had success by gradually being thrust into the spotlight. Shawn Kemp, Garnett, and Kobe Bryant all were slowly brought along as players and all became all-star caliber players.
Nevertheless, it seems that a risk exists that skipping college could hinder a high schoolers development. Whether this risk is enough to create a rule to prevent high schoolers to enter the NBA Draft is another matter. Certainly this is an area that merits further examination. However, it is clearly not as pressing an issue as the first two problems that have been identified.
4. Problem #4: The NBA’s Image
Going to college is naturally ingrained in the psyche of our society as something that is “right.” College is considered the place of natural progression for both the athlete and the normal teenager. The fact that a number of NBA players choose to purposely disregard college is unsettling to the general public. However, to the extent that a restrictive rule is imposed based on public relations, it is impermissible. Denver Rockets already rejected such a premise. While this was only a trial court decision, it imposed financial risk for the NBA and therefore is a show-stopper.
Additionally, any other public relation concern is really derivative of the three problems that have already been identified. If these problems are corrected the public relations issue is moot. As such, the public relations issue, while important to the NBA and no doubt could sway the NBA into imposing a rule, should not be a decisive factor, in its own right, in justifying an age limit on the NBA Draft.
B. Comparisons with other Age Restrictions
Having determined that there are legitimate concerns with the current state of the NBA Draft with regard to high schoolers, we turn to ethical formulation of a rule regulating the eligibility of such conditions. A good starting is to consider the rule in comparison with rules that have been fashioned with regard to age restrictions in other sports and related fields of endeavor. Examining the strengths and weakness of these already existing rules presents an opportunity for the NBA to make an efficient and just rule.
Age restrictions are a matter of fact in society. One cannot drive until age 16, one cannot vote until age 18, and one cannot drink alcohol until age 21. Furthermore age restrictions have cut the other way in the cases of mandatory retirement. While these general restrictions are illustrative of the fact that age-based rules are not per se wrong, they are not directly relevant to the case of NBA-bound high schoolers.
The NBA high schoolers represent a different situation from the general age restrictions in society. The general age restrictions are meant to prevent youngsters from being thrust into positions that they cannot handle now but will be able to in the future. The NBA high schoolers, on the other hand, possess a commodity in their athletic ability that allows them to enter the NBA, a place where but a few people will ever be able to enter. Thus, the comparison with age restrictions should be confined to situations similar to those that NBA-talented high schoolers find themselves in.
These comparable situations are, by in large, other professional sports leagues. All of the three other major professional sports in North America, the National Football League (“NFL”), Major League Baseball (“MLB”), and the National Hockey League (“NHL”), carry out drafts to procure amateur talent. The NHL and MLB routinely draft player straight from high school. The NHL has established a rule that a player is eligible for the draft if he turns 18 by September 15 in the year in which he is to be drafted. The result of this age limit has allowed players to enter the NHL straight from high school.
MLB has always signed or drafted players straight from high school. In fact, a major issue for MLB has been avoiding finding players at such a young age that they are not competent to sign a contract. Unlike in the NBA, no concern has been raised that high schoolers are not emotionally ready to enter MLB. Perhaps this is because MLB has developmental minor leagues where a player can hone his craft and mature before he enters the professional league.
Until 1984, the NFL refused to allow players with any college eligibility enter the NFL Draft. However, the NFL softened its position when the rival United States Football League’s (“USFL”) draft policy, which was similar to the NFL’s policy on the issue of age limits, was invalidated as a violation of antitrust law. While the NFL did not abandon its policy after the USFL decision, it did occasionally granted exemptions to this rule for hardship or when the player threatened to challenge the NFL’s Draft rule as a violation of antitrust laws. Presently, the NFL has changed its policy to allow any player to enter the draft if he is three years out of high school.
What can be learned from the rules created by the other professional sports leagues? The NHL and MLB athletes have not suffered from drafting high schoolers. In fact, the leagues draft as many high schoolers as they do college athletes. However, the success of these leagues have had with high schoolers is not a definitive proof that the NBA does not require a rule to prevent high schoolers from being drafted. Unlike the NBA, both MLB and the NHL have developmental minor leagues that allow players to adjust gradually to the league.
The NFL’s restrictive policy also cannot be compared with the NBA at face value. This is because the NFL, by its nature, is a more physically violent game than the NBA. The object of football is to tackle the players and its injury level, as evidenced by the NFL weekly injury reports, is greater than that of any other sport. As such, the NFL has an interest in preventing physically immature players from being exposed to players who are at their physical peaks. This added concern sets the NFL’s age restriction apart from the one that David Stern proposed.
Despite the differences between the NBA and the other professional sports leagues, the comparison between them demonstrates two things. First, where adequate safeguards exist to protect the high schoolers, like developmental leagues, an age restrictive rule may not be necessary. Second, under the right conditions, protective age restrictive rules can be imposed.
III. Possible Solutions to the NBA-High School Issue
Having identified the problems that high schoolers entering the NBA Draft and the virtues of other similar age restrictive rules, the question becomes what rules can be devised to protect against these identified harms. There are three viable alternatives to remedy the problems caused by high schoolers entering the NBA Draft. The first alternative is not to prevent high schoolers from entering the Draft but rather requiring any drafted high schoolers to be paired with a mentor who could assist them in adjusting to life in the NBA. The second alternative is to institute a bright line rule that prevents high schoolers from entering the draft either until a certain age or a certain number of years (one or two) after graduating high school. Finally, the last alternative could be to allow high schoolers to apply to the NBA Draft to where their applications would be evaluated by a committee properly staffed to assess whether each applicant is ready to enter the NBA Draft.
In order to determine which one of these possibilities is best, each alternative should be appraised with the traditional issues of ethical evaluation: legitimacy, benefit, effectiveness, fairness, and integrity. The first of these issues, legitimacy, need not be discussed in depth. As mentioned earlier in the discussion of harms relating from high schoolers and the NBA, all the alternatives are designed to address legitimate interests of the NBA. The alternative proposals need only be assessed on the other criteria for ethical evaluation.
A. Alternative #1: A Mentoring Program
The idea of requiring mentors for players originates from the case of Al Harrington. During his rookie year, Harrington lived with an older teammate, Antonio Davis and his wife and children. This provided Harrington with a secure environment and eased him into the sometimes-harsh world of the NBA. Indeed, it is possible that a mentor might have prevented Leon Smith from making the mistakes that he has made.
However, the mentoring program is only of limited effectiveness. It does allow the high schoolers to have the freedom to enter the Draft that our sensibilities tell us is right. Additionally, the mentoring program could help those emotionally immature players receive the support system that they might not otherwise enjoy. But the mentoring program addresses only the issue of emotionally immature players, which is but one of the three harms caused by the high school entry into the NBA Draft. The mentoring program does not necessarily guarantee that the player will receive the proper apprenticeship to develop his athletic talents. Finally, the mentor program lacks fairness in that it only distributes its benefit to a limited number of high schoolers. One can only receive a mentor if one is drafted. The rule would not address the issue of preventing undraftable players from forgoing scholarship opportunities. The mentoring program does have its merits in protecting emotionally immature players. It could be imposed on high school rookies in addition to other alternatives the NBA might implement. However, based on the limited effectiveness and fairness of the mentoring rule, the rule is not likely enough in itself to protect high schoolers.
B. Alternative #2: A Blanket Age Limit on the Draft
The NBA’s second alternative is to impose a strict age limit on the Draft similar to the one that the NFL uses. Such a rule provides benefits on all three of the problem fronts. By forcing the players to spend one year (or two years) in college, the players are given a chance to gain life experience to mature and to refine their basketball skills before being thrust into the NBA. Additionally, this rule would completely eliminate the problem of the misinformed high schooler, who has no chance of being drafted, forgoing a college scholarship.
A bright line rule is not certain to be wholly effective in all its goals. While the rule would be completely effective in preventing Taj McDavid-type problems, it does not ensure that once the players reach the prescribed age limit that they will be either emotionally or physically ready for the NBA. Indeed, there have been plenty of players who have left college early and not been prepared for the rigors of the NBA. However, no rule can force a player into maturity. Some players will always be incorrigible no matter what environment they are placed within. The strength of this rule is in that it provides a chance for a player to mature.
But the chance that this rule provides for a player to mature is at the expense of the rule’s fairness. Protecting those high schoolers who are not ready for the NBA, comes at the expense of the high schoolers who are ready for the NBA. Balancing the fairness of this rule against it effectiveness requires some empirical analysis of high schoolers who have entered the NBA. Of the 14 high schoolers who entered the NBA Draft in the past 25 years, only two were not drafted, while two others (Korleone Young and Rashard Lewis) hold tenuous positions in the NBA. The ten other players have gone on to have solid NBA careers. Considering the high percentage of high schoolers who have had successful careers, is it fair to impose an over protective rule that would penalize them for the mistakes of Taj McDavid and Ellis Richardson?
It may be fair to some extent. This is because the relative harm to these players is not great. The players need only delay their plans to enter the NBA for one year. This one-year delay does present risk in that the player could be hurt in that time and his career could be finished. However, such a risk is remote. The other harm that the high schoolers suffer as a result of this rule is that they lose a year of NBA income. Indeed, if the high schooler is ready for the NBA, anytime he spends in college represents time lost from his NBA career. Thus, the fact that many more high schoolers have been successful in the NBA than have not calls the bright line age restriction policy into question. Accordingly, the third alternative proposal should be considered.
C. Alternative #3: High Schooler Entry by Application
A third alternative rule to prevent the problems that high schoolers have in entering the NBA Draft would be to allow high schooler’s entry by application only. Under such a system, a high schooler would be required to send an application to the NBA in order to enter the Draft. The high schooler would have to demonstrate that he has a strong likelihood of being drafted and that he is emotionally prepared for the rigors of the NBA. The application process would provide most of the same benefits that the bright line age rule would provide. It would prevent the Taj McDavid scenario. The NBA would be able to screen out the players who have no clear chance of being drafted. Such a screening process would not be difficult to carry out. Indeed, most scouts were able to predict that McDavid and Richardson were not going to be drafted. The application process would also protect the talented high school players who could be drafted but lack the requisite maturity to adjust to the NBA immediately from high school.
In terms of effectiveness, the application rule has its merits. As noted, it would completely prevent the problem of high schoolers entering the Draft and not being drafted. The rule would also prevent players, like Leon Smith, who are clearly unready to enter the NBA from an emotional standpoint, from being placed in the NBA before they are ready. While the rule would be effective in clear-cut cases like McDavid’s case, it could have trouble in more ambiguous scenarios. For example, take a player like Korleone Young, who was clearly not a first round pick but did earn a one-year deal at the minimum salary. Would it have been better for Young to earn about $400,000 for one year or for him to receive a college education? Such a decision could be made a case-by-case basis considering how viable an option college would be for the individual applicant. For example, consider the fact that Kevin Garnett could not achieve the minimum SAT score to be eligible to play as a freshman. Additionally, it would not be able to easily predict where a player may need more college seasoning. Thus, there is some gray area that the application rule might struggle dealing with.
Compared to the bright line age limit rule, the application rule is very fair in its treatment of applicants. The applicants who will not be drafted will be protected and the applicants who will be drafted will not be excluded in an effort to protect others. The discussion of efficiency did reveal that some applicants who occupy the middle ground between clear NBA talent and undraftable might not enjoy fair protection. However, disparity in treatment of this group is less a result of the rule and more a result of the tenuous position that this group of high schoolers occupies.
D. Choosing the Best Rule from an Ethical Standpoint
Having explained the intricacies of each of the three ethical rules, the time has come to choose which of the rules is most just from an ethical standpoint. Of the three rules, the mentoring program is most easily eliminated as a viable alternative. The mentoring program is clearly a subsidiary program and it does not, by itself, eliminate enough of the problems that face high schoolers who attempt to enter the NBA. The choice, then, boils down to either the bright line age limit and the application rule. The bright line rule’s virtue is its simplicity. It does not attempt to make lengthy investigations into issues that are, to some extent, subjective. However, this simplicity comes with a price, namely taking away the rights of players who could otherwise have entered the NBA earlier. In contrast, the application rule would afford the NBA the discretion to protect both the interests of the Moses Malones and the Taj McDavids of the world. Its weakness is the fact that as a subjective process it could be both lengthy and imprecise.
Thus, the NBA is faced with choosing between two rules. The first, the bright line age rule, gives certainty and is easily implemented but is also inflexible. The second, the application rule, more carefully balances the interests of all parties involved but is potentially cumbersome in execution. The more just rule, from an ethical point of view, is the application rule. This is because fairness, as a value, usually outweighs efficiency, provided that the two values are relatively equal in their force. In this case, the application rule is not particularly inefficient. Contrast this with the bright line age rule that makes no attempt to treat different groups of high schoolers differently. However, the fact that the application rule is more ethically preferable does not dictate that it is the rule that the NBA should adopt. Without a legal leg, neither of the ethical rules can stand. Thus, each of the rules will be subjected to the scrutiny of antitrust law to make a final determination on which rule the NBA can or should implement.
IV. Legal Evaluation of the Ethical Rules
A. Relevant Antitrust Law: Generally
Any rule that restricts the access to the NBA must be examined under the scrutiny of antitrust law. The policy underlying antitrust law is to prevent economic competition from being unreasonably restrained. Relevant federal antitrust law is based upon Section 1 of the Sherman Act which provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States or with foreign nations, is hereby declared illegal.” To carry out the directive of the Sherman Act, the Supreme Court has long ago determined that the Act only made unreasonable restraints of trade. In order to aid the federal courts in this inquiry, the Court formulated the Rule of Reason, a lengthy investigation to determine the true nature and effects of the economic restraint. The Rule of Reason is a flexible method of analysis that weighs a restraint’s benefits against its anti-competitive effects.
In weighing these interests, the court must often make lengthy factual inquiries and complex economic analysis. This inquiry is often difficult and, as a result, the Court will deem some restraints so prima facie anti-competitive that they are considered per se illegal. Examples of such restraints are price fixing, group boycotts, division of markets, and tying arrangements. There is a narrow exception to the per se rule where the restraint is justified by statute or otherwise. This exception, which is known as the Silver exception, is allowable if it complies with three requirements. First, that there is a legislative mandate or collective action is required by the nature of the structure of the industry. The second requirement is that the collective action accomplishes an end consistent with the policy justifying self-regulation, reasonably relates to that goal, and is no more burdensome than necessary to carry such a goal. Lastly, the restraint must provide procedural safeguards to ensure that the restraint is not arbitrarily imposed in practice.
If the per se illegal restraint qualifies for the Silver exception, then the court would proceed to analyze the restraint under the Rule of Reason. Thus, whether the court decides to begin the analysis at the per se stage or the Rule of Reason stage could be vital to the result of the case. In order to clarify when either type of analysis is an appropriate starting point, the Supreme Court stated that “[p]er se rules of illegality are appropriate only when they relate to conduct that is manifestly anti-competitive.” Vertical restraints, those that stimulate inter-brand competition, are subject to Rule of Reason analysis while, horizontal restraints, those that have no purpose to but to stifle competition, are considered per se violations of the Sherman Act.
B. Applying Antitrust Law to the Proposed NBA’s Draft Rules
The question then becomes how a court would proceed in scrutinizing either of the possible alternative rules the NBA could impose to protect high schoolers. Analysis should begin with the bright line age rule proposal because it is similar in nature to the NBA’s old four-year rule. A court has already examined four-year rule when Spencer Haywood challenged it in Denver Rockets. That challenge provides a starting point from which to scrutinize the new bright line age restriction proposal. Denver Rockets found the NBA’s blanket age restriction to be per se illegal stating that per se analysis is appropriate (as opposed to Rule of Reason) because “there is no provision for even the most rudimentary hearing before the four-year college rule is applied to exclude an individual player.” The NBA attempted to place itself within the Silver exception by justifiying its restrictive process as financially necessary for development of players and that it provides the players with a chance to earn a college degree. However, the Court rejected both of these reasons as far below the hurdle that the NBA needed to overcome to reach the Silver exception.
In the case of the new bright line age restriction, the NBA could present a stronger case for the Silver exception in that it has been instituted specifically to protect the welfare of high schoolers. Such a goal could probably qualify with some of the prongs of the Silver exception. The policy behind the rule is clearly one that requires collective action because the NBA, a professional sports league with no direct competition, must act collectively to meaningfully implement any policy. The policy, protecting teenagers, is one that might be deemed worthy of carrying out at the expense of economic freedom and is not intrinsically anti-competitive. Such a finding would depend on how pressing a problem a court found protecting high schoolers to be. As has already been extensively discussed, the problems that high schoolers experienced recently should probably be sufficient to meet any policy concerns of the restraint.
Where a bright line age rule would fail, however, is in the requirement that it be no more burdensome than necessary on economic competition. Like the NBA four-year rule, the bright line age rule treats all high schoolers as one group and as Denver Rockets noted there is no “provision whereby an individual player might petition for consideration of his specific case.” Thus, the new bright line age restriction would probably not survive antitrust law scrutiny. The application rule proposal, however, seems to satisfy exactly what Denver Rockets was seeking in a draft rule. The rule would treat each applicant individually in deciding his eligibility to the NBA. It is much more likely, therefore, that the application rule would qualify for the Silver exception and be scrutinized under the Rule of Reason.
Having reached the point of Rule of Reason analysis, the application rule would be subjected a lengthy inquiry similar to the one that this paper has already rendered in its ethical analysis. The difference between the two inquiries is that, while ethical analysis’ primary goal is to create the most benefit, the Rule of Reason is much more concerned with anti-competitive impact. The ethical analysis yielded an application rule that was concerned with protecting players who, even if they are be likely to be drafted, would be emotionally unprepared for this prospect. While Rule of Reason would be concerned with preventing a Leon Smith scenario, it would probably require a more severe case of emotional immaturity than a purely ethical rule would require. The immaturity would need to be greater than regular immaturity. Rather, the immaturity would need to be significant either by the harm it could place the high schooler in or by the disruption it causes his franchise. Provided the application rule accommodated this heightened concern with anti-competitive restraints, it could survive an antitrust challenge.
We turn now back to where we started: to Taj McDavid. How can the NBA create a rule to prevent him and others like him from losing opportunities? The NBA is faced with two viable solutions. Either impose a bright line age limit on the draft that would prevent high schoolers from entering the Draft or create an application rule that requires the high schooler to demonstrate that he has viable chance of being drafted and that he is emotionally ready for life in the NBA. Ethical analysis yields that the application rule is preferable to the bright line rule because it treats the applicants more fairly. Legal analysis demonstrates that the bright line rule would be considered a per se violation of the Sherman Act. The application rule would probably survive, with some minor changes to the ethical formulation to put greater weight on economic issues. Thus, the NBA is left with an application rule as the means to protect high schoolers. If it does, Taj McDavid will not have to sit and wait for the call about his future that never comes.