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United States District Court, S.D. New York

February 5, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge



  Maurice Clarett's goal is to play in the National Football League next year. The only thing preventing him from achieving that goal is the League's rule limiting eligibility to players three seasons removed from their high school graduation. The question before the Court is whether this Rule violates the antitrust laws.

  Clarett, a star freshman football player attending The Ohio State University, now in his sophomore year, challenges the Rule, claiming that he is ready, willing and able to play in the NFL and that his exclusion violates the antitrust laws. Clarett's challenge to the Rule raises serious questions arising at the intersection of labor law and antitrust law, not to mention the intersection of Page 2 college football and professional football. Should Clarett's right to compete for a job in the NFL — the only serious pro football game in town — trump the NFL's right to categorically exclude a class of players that the League has decided is not yet ready to play?

  The answer requires the Court to tackle a number of technical legal issues. The NFL defends itself by asserting three arguments: (1) the Rule is the result of a collective bargaining agreement between the NFL and the players union and is therefore immune from antitrust scrutiny; (2) Clarett has no standing under the antitrust laws to bring this suit; and (3) the Rule is reasonable.

  While, ordinarily, the best offense is a good defense, none of these defenses hold the line. Because the Rule does not concern a mandatory subject of collective bargaining (wages, hours and conditions of employment), governs only non-employees, and did not clearly result from arm's length negotiations, it is not immune from antitrust scrutiny. Clarett has standing to sue because his injury flows from a policy that excludes all players in his position from selling their services to the only viable buyer — the NFL. Finally, the NFL has not justified Clarett's exclusion by demonstrating that the Rule enhances competition. Indeed, Clarett has alleged the very type of injury — a complete bar to entry into the market for his services — that the antitrust laws are designed to prevent. It is Page 3 axiomatic, in the words of Learned Hand, that the antitrust laws will not tolerate a contract "which unreasonably forbids any one to practice his calling."*fn1

  Because the NFL cannot prevail on any of these defenses, the Rule must be sacked.


  The facts of this dispute are easily recounted and essentially undisputed, unless otherwise noted. Clarett, a college football player, is suing the NFL under the Sherman Antitrust Act,*fn2 asserting that the League's Rule limiting eligibility for the draft to players three seasons removed from their high school graduation constitutes an unreasonable restraint of trade.

  A. The NFL and the Collective Bargaining Agreement

  The NFL began operating in 1920 as the American Professional Football Association, comprised of twenty-three member clubs.*fn3 The current NFL is an unincorporated association of thirty-two member clubs.*fn4 Although there are Page 4 other professional football leagues in North America — including the Arena Football League, the Arena Football League 2, the National Indoor Football League, and the Canadian Football League*fn5 — the NFL dominates. It consistently outperforms all other professional sports leagues, not to mention the other professional football leagues, in both revenues and television ratings.*fn6 The Super Bowl — the League's championship game — is routinely the top-rated television program of the year,*fn7 and indeed, four of the top ten highest-rated programs in Page 5 television history are NFL football games.*fn8

  Not surprisingly, the League's fiscal success also inures to the benefit of its players. The average NFL player earned $1,258,800 in 2003;*fn9 the average starting NFL running back (which Clarett aspires to be) earned $1,578,275;*fn10 the average first-round draft choice (which Clarett also aspires to be) earned $1,367,120;*fn11 the minimum salary that a rookie may be paid is $225,000.*fn12 In contrast, the 2000 salary cap in the Canadian Football League — the total amount of money that a team was permitted to pay to all 50-odd of its players combined — Page 6 was approximately $1,700,000.*fn13 Similarly, the 2003 team salary cap in the Arena Football League was $1,643,000.*fn14 In other words, the average starting running back in the NFL makes only slightly less than the average teams do in the CFL and AFL. In short, the NFL represents an unparalleled opportunity for an aspiring football player in terms of salary, publicity, endorsement opportunities, and level of competition.

  Day-to-day operation of the League is handled by an appointed Commissioner, currently Paul Tagliabue.*fn15 Representatives of each of the thirty-two teams, however, comprise the National Football League Management Council ("NFLMC"), the exclusive collective bargaining representative of the League.*fn16 The 1,400-odd NFL players are exclusively represented by the National Football Page 7 League Players Association ("NFLPA"),*fn17 which was created in 1956.*fn18 In 1968, the NFLPA and the NFLMC entered into the League's first Collective Bargaining Agreement ("CBA").*fn19

  The current CBA took effect on May 6, 1993, and expires in 2007.*fn20 The CBA, along with the League's Constitution and Bylaws, comprehensively outlines the relationship between the players and the League, covering the operation of the League, player salary and the player draft, including detailed rules by which the teams select new players. Two provisions of the CBA are at issue here. Article III, section 1, provides:

  This Agreement represents the complete understanding of the parties on all subjects covered herein, and there will be no change in the terms and conditions of this Agreement without mutual consent. . . . [T]he NFLPA and the Management Council waive all rights to bargain with one another concerning any subject Page 8 covered or not covered in this Agreement for the duration of this Agreement, including the provisions of the NFL Constitution and Bylaws. . ..*fn21

 Article IV, section 2, entitled "No Suit," provides:

[N]either the NFLPA nor any of its members, agents acting on its behalf, nor any members of its bargaining unit will sue, or support financially or administratively any suit against, the NFL or any Club relating to the presently existing provisions of the Constitution and Bylaws of the NFL as they are currently operative and administered. . . .*fn22
Clarett and the NFL disagree on whether these two provisions establish that the NFL and the players union actually bargained over the terms of the Constitution and Bylaws (which contained the eligibility Rule at issue), or merely bargained away the NFLPA's ability to bargain over or challenge the Bylaws' provisions.*fn23

  B. The Rule

  The NFL's eligibility Rule precluding college underclassmen from participating in the draft has been in force — in one form or another — for Page 9 decades.*fn24 "It was adopted after Illinois's star running back, Harold `Red' Grange, stunned the sports world by leaving school at the end of the 1925 college season and joining the Chicago Bears of the five-year-old NFL for a reported $50,000."*fn25 The original Rule precluded a player from joining the NFL unless four seasons had elapsed since his high school graduation; in 1990, the requirement was changed to three seasons.*fn26

  Notwithstanding the fact that the Rule predates the CBA, the NFL Page 10 maintains that "[d]uring the course of collective bargaining that led to the 1993 CBA, the eligibility rule itself was the subject of collective bargaining."*fn27 On May 6, 1993 — the same day that the current CBA became effective — the NFLPA and the NFLMC also executed a side letter acknowledging that the Constitution and Bylaws attached to the letter were referenced in the CBA.*fn28 Among the various provisions of the 1993 Bylaws are comprehensive rules describing who is eligible to play in the NFL. The Bylaws provided that a player became eligible if he exhausted his eligibility to play college football or graduated from college.*fn29 A player was also eligible if he was five years removed from his first enrollment in college (or four years removed, if he never played college football), regardless of whether he had any remaining college eligibility.*fn30 Finally, a player not otherwise eligible could be granted "Special Eligibility."*fn31

  Such a player has been granted eligibility through special permission of the Commissioner. In order to receive consideration for the League's principal college draft in any year, Page 11 any application for special eligibility must be in the Commissioner's office no later than January 6 of that year. For college football players seeking special eligibility, at least three NFL seasons must have elapsed since the player was graduated from high school.*fn32

 Although by its plain language the Rule requires the "special permission" of the Commissioner, that permission appears to be routinely granted where a player falls within the ambit of the Rule (i.e., is clearly three years removed from his high school graduation).*fn33

  In 2003, the form of the Rule changed yet again when the NFLMC promulgated revised Bylaws.*fn34 The record is unclear as to whether these new Bylaws were the subject of collective bargaining, although Article III, section 1 of Page 12 the CBA requires the NFLMC and NFLPA to negotiate in good faith any changes that "could significantly affect the terms and conditions of employment of NFL players."*fn35

  Under the 2003 version of the Bylaws, the Rule is omitted altogether. In its place is a reference to a separate memorandum promulgated by the Commissioner under section 8.5 of the Bylaws.*fn36 Section 8.5, in turn, provides that "[t]he Commissioner shall interpret and from time to time establish policy and procedure in respect to the provisions of the Constitution and Bylaws and any enforcement thereof"*fn37 Thus, under the 2003 Bylaws, the Rule now exists only as "policy and procedure" established by the Commissioner and cited in the Bylaws. With respect to the 2004 draft, the Commissioner has issued a release that includes the following iteration of the Rule:

  SPECIAL ELIGIBILITY. Such player has been granted eligibility through special permission of the Commissioner. Any applications for special eligibility must be in the Commissioner's Page 13 office no later than Thursday, January 15, 2004, if the player is to be considered for inclusion in the League's principal draft scheduled for April 24-25, 2004. Applications will be accepted only for college players for whom at least three full college seasons have elapsed since their high school graduation. Players will not be permitted to elect to bypass the January 15 deadline in order to seek eligibility for a later supplemental draft, and no supplemental draft will be held to accommodate such an election.*fn38

 It is this version of the Rule that Clarett challenges.

  The NFL provides a number of justifications for the Rule, arguing that it protects at least four different classes of people. First, the NFL contends that the Rule protects the people it excludes because they "are not sufficiently mature, either physically or psychologically, to endure the rigors of professional Page 14 football."*fn39 Second, the Rule protects member clubs who might suffer financial adversity resulting from younger players' peculiar susceptibility to injury.*fn40 Third, the Rule protects the League and its "entertainment product from the adverse consequences associated with such injuries."*fn41 Fourth, the Rule protects young players who, if they declare but are not drafted, would lose their eligibility to play college football,*fn42 or who might over-train or experiment with performance-enhancing drugs to speed their athletic development.*fn43 Page 15

  C. Maurice Clarett

  Clarett, now twenty years old,*fn44 graduated high school on December 11, 2001,*fn45 His credentials as a football player are impressive. In the 2002-2003 collegiate season, Clarett — the first freshman starter at running back for The Ohio State University ("OSU") since 1943*fn46 — led his team to an undefeated (14-0) season that was capped by a 31-24 double-overtime victory over University of Miami in the Fiesta Bowl, OSU's first national championship in thirty-four years.*fn47 As a result of his freshman year resounding success, Clarett was named the Big Ten Freshman of the Year and voted the best running back in college football by The Sporting News.*fn48 Page 16

  Clarett claims that he wanted to declare for the April 2003 NFL draft after his strong freshman season,*fn49 but offers no explanation as to why he did not challenge the Rule at that time. Clarett's status changed in September 2003, however, when OSU and the NCAA suspended him for the entire 2003-2004 season.*fn50 As a result, he did not play during the just-concluded college football season. Moreover, there appears to be some question as to whether the NCAA will permit him to play in the 2004-2005 season.*fn51 Clarett's decision to seek eligibility for the 2004 draft may have resulted, in part, from this suspension. The NFL may be his only real option for playing football next year.

  Clarett, who is six feet tall and weighs 230 pounds,*fn52 is taller and Page 17 heavier than some of the NFL's all-time greatest running backs, including Walter `Payton (5' 10", 200), Barry Sanders (5'8", 203) and Emmitt Smith (5'9", 207).*fn53 While sportswriters disagree about which team would draft him and in which round, there seems to be little doubt that Clarett is an NFL-caliber player who would be drafted if he were eligible to participate in the process.*fn54 Thus, only the Rule stands between Clarett and the opportunity to play in the NFL next year.*fn55 Page 18

  D. Procedural History

  This case has progressed rapidly, virtually rushing toward the goal line because of the imminence of the 2004 draft. Clarett filed suit on September 23, 2003. At the initial scheduling conference, held one week later, both parties informed the Court that they intended to move for summary judgment. After limited document discovery, the parties' cross-motions for summary judgment were fully submitted on December 11, 2003. In two separate motions, the NFL asks for summary judgment on its defenses that (1) the Rule is protected from antitrust scrutiny by the nonstatutory labor exemption; and (2) Clarett lacks antitrust standing. Clarett, in turn, seeks summary judgment on his single antitrust claim. The NFL opposes Clarett's motion, claiming that if the suit is not dismissed on the grounds set forth in its motions, a trial is needed to determine whether the Rule is a reasonable restraint of trade.


  Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and Page 19 admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."*fn56 "An issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"*fn57 A fact is material when it "`might affect the outcome of the suit under the governing law.'"*fn58

  A party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn59 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, he "must show more than a `metaphysical doubt' as to material facts,"*fn60 and he may not rely on conclusory allegations or unsubstantiated Page 20 speculation.*fn61 Rather, the non-moving party must produce admissible evidence that supports his pleadings.*fn62 In this regard, "[t]he `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment."*fn63

  In determining whether a genuine issue of material facts exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.*fn64 Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."*fn65 Summary judgment is therefore inappropriate "if there is any evidence in the record that could Page 21 reasonably support a jury's verdict for the non-moving party."*fn66 Nonetheless, the Second Circuit has remarked that "[i]n the context of antitrust cases . . . summary judgment is particularly favored because of the concern that protracted litigation will chill pro-competitive market forces."*fn67


  Clarett is suing the NFL under section 1 of the Sherman Antitrust Act*fn68 and section 2 of the Clayton Act.*fn69 He alleges that the Rule is an illegal restraint of trade because the teams have agreed to exclude a broad class of players from the NFL labor market, thereby constituting a "group boycott."*fn70 In order to Page 22 prevail on that claim, Clarett must demonstrate that he is entitled to judgment on the merits. However, he must first overcome the two affirmative defenses asserted by the NFL: (1) that the Rule is immune from the antitrust laws, and (2) that Clarett lacks standing to bring an antitrust claim.

  A. The Nonstatutory Labor Exemption

  The NFL argues that the Rule is immune from antitrust scrutiny based on what has come to be known as the "nonstatutory labor exemption." If the NFL is correct, the exemption provides a complete defense to Clarett's suit. Accordingly, I address the application of the nonstatutory labor exemption at the outset.

  1. Purpose and Background of the Nonstatutory Labor Exemption

  In order to answer the question of whether the Rule is subject to the antitrust laws, a brief discussion of the labor exemptions — which collectively immunize otherwise anticompetitive conduct from antitrust scrutiny — is required. Page 23 The statutory exemptions, contained in provisions of the Clayton Act*fn71 and the Norris-LaGuardia Act,*fn72 exempt certain activities engaged in by labor unions.*fn73 The nonstatutory exemption, created by the courts, was designed to favor labor law over antitrust law by permitting collective bargaining between unions and employers over wages, hours and working conditions. Because the Rule is not covered by the statutory exemption, it is subject to the antitrust laws unless the nonstatutory labor exemption applies.*fn74

  The Supreme Court has "implied this [nonstatutory] exemption from federal labor statutes, which set forth a national labor policy favoring free and private collective bargaining, which require good-faith bargaining over wages, hours, and working conditions. . . ."*fn75 Thus, the Court recognized the primacy of Page 24 collective bargaining in the workplace, even when the agreements reached through that bargaining would otherwise violate the antitrust laws' prohibition on combinations in restraint of trade:

As a matter of logic, it would be difficult, if not impossible, to require groups of employers and employees to bargain together, but at the same time to forbid them to make among themselves or with each other any of the competition-restricting agreements potentially necessary to make the process work or its results mutually acceptable. Thus, the implicit exemption recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place, some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions.*fn76
  While the Second Circuit has not adopted a test that controls the application of the nonstatutory labor exemption, three other circuits have. The Sixth, Eighth and Ninth Circuits have looked to the following three-factored test:

  First, the labor policy favoring collective bargaining may potentially be given pre-eminence over the antitrust laws where the restraint on trade primarily affects only the parties to the collective bargaining relationship. Second, federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of collective bargaining. Finally, the policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product Page 25 of bona fide arm's-length bargaining.*fn77

 In a more recent case, the Second Circuit acknowledged the test promulgated by the Eighth Circuit, but preferred to apply the simple formulation enunciated by the Supreme Court in Local Union No. 189 v. Jewel Tea Co. In doing so, the Second Circuit held that the appropriate test is "one that balances the conflicting policies embodied in the labor and antitrust laws, with the policies inherent in labor law serving as the first point of reference."*fn78

  First, the agreement at issue must further goals that are protected by national labor law and that are within the scope of traditionally mandatory subjects of collective bargaining. Second, the agreement must not impose a "direct restraint on the business market [that] has substantial anticompetitive effects, both actual and potential, that would not follow naturally from the elimination of competition over wages and working conditions [that result from collective bargaining agreement[s]."*fn79 Page 26

 Thus, because the labor laws only require collective bargaining as to certain subjects, and the nonstatutory labor exemption was designed to shield from antitrust scrutiny conduct that is mandated under the labor laws, the exemption is limited to policies that affect "traditionally mandatory subjects of collective bargaining."*fn80

  2. The Scope of the Nonstatutory Labor Exemption

  Under the National Labor Relations Act, mandatory subjects of bargaining between employers and unions pertain to "wages, hours, and other terms and conditions of employment."*fn81 Only agreements on these subjects (and intimately related subjects) are exempt from the antitrust laws.*fn82 In Jewel Tea, the Court succinctly summarized the issue before it: "[W]hether the marketing hours restriction [during which butchers could sell fresh meat], like wages, and unlike Page 27 prices is so intimately related to wages, hours and working conditions that . . . [it] falls within the protection of the national labor policy and is therefore exempt from the Sherman Act."*fn83 By contrast, the Court noted that Jewel Tea, a chain of food-marketing stores, "need not have bargained about or agreed to a schedule of prices at which its meat would be sold."*fn84

  More recently, in Brown v. Pro Football, Inc., the Court reiterated that the exemption is limited to mandatory subjects of collective bargaining and covers only conduct that arises from the collective bargaining process.*fn85 In Brown, the question was whether a unilateral decision by team owners to impose a salary cap on NFL practice squad players violated the antitrust laws when that cap was imposed by team owners after reaching a bargaining impasse with the NFLPA. In holding that the nonstatutory labor exemption applied to this wage limitation, the Court noted that "impasse and an accompanying implementation of Page 28 proposals constitute an integral part of the bargaining process."*fn86 The Court repeatedly stated that the purpose behind the exemption is to support the collective bargaining process and ensure that it works in the manner intended by Congress. Finally, the exemption can only cover actions that affect employees within the bargaining unit or those who seek to become employees and who will therefore be bound by those actions.*fn87 It is axiomatic that wages, hours, and other conditions of employment — such as employee benefits — can only apply to employees.

  3. The Rule Is Not Covered by the Nonstatutory Labor Exemption

  a. The Rule Does Not Address a Mandatory Subject of Collective Bargaining

  The Rule provides that for college players seeking special eligibility, "at least three full college seasons [must] have elapsed since their high school graduation."*fn88 Nowhere is there a reference to wages, hours, or conditions of employment. Indeed, the Rule makes a class of potential players unemployable. Wages, hours, or working conditions affect only those who are employed or Page 29 eligible for employment.

  The NFL argues that "[i]f the draft itself is protected by the non-statutory labor exemption, it follows a fortiori that rules governing eligibility for the draft . . . are also protected by the exemption."*fn89 In support of this proposition, the NFL relies heavily on three recent Second Circuit cases all arising in the context of professional sports.*fn90 However, each of those cases involve practices that affect wages, hours or working conditions.

  In Wood v. National Basketball Association, a college basketball player was a first-round draft choice in the 1984 college draft. Once drafted, Wood challenged three league provisions: (1) a team's exclusive right to bargain with its draft choice for a period of one year; (2) the salary cap that permitted the team to offer a first-year draftee only $75,000 if that team had reached its maximum allowable team salary; and (3) a limitation on player corporations utilized by players to create tax advantages.*fn91 The Second Circuit held that the nonstatutory labor exemption barred Wood's action. The court explained: "The Page 30 gravamen of Wood's complaint, namely that the NBA-NBPA collective agreement is illegal because it prevents him from achieving his full free market value, is . . . at odds with, and destructive of, federal labor policy."*fn92 The point is not hard to grasp. Wood was drafted and then challenged the agreement between the league and the players union that limited his right to negotiate about certain conditions of his employment — namely which team he would play for, how much he would earn, and how he would receive his salary. Indisputably, these all involve wages and conditions of employment and are thus mandatory subjects of bargaining.*fn93

  National Basketball Association v. Williams also involved a dispute between the players and the league over the draft and the salary cap. A collective bargaining agreement, set to expire in 1994, governed the relationship between the players and the league.*fn94 During negotiations for a new CBA, the players sought elimination of three provisions of the expiring CBA: (1) the workings of the college draft whereby once drafted a player could only negotiate with the team that Page 31 drafted him; (2) the right of first refusal permitting a team to match any offer made by another team to one of its current players; and (3) the revenue sharing/salary cap system establishing an overall wage framework.*fn95 The negotiations eventually reached an impasse, and the league brought an action seeking a declaration that the disputed provisions of the CBA did not violate the antitrust laws by virtue of the nonstatutory exemption.*fn96 The court agreed. Following Wood, the court held that each of the disputed terms governed players who are or would be employed by the league, and addressed the players' rights to negotiate over the team they will play for and the salary they will earn. These topics, by definition, concern the terms and conditions of employment that attach once a player is drafted.

  Finally, in Caldwell v. American Basketball Association, the plaintiff challenged his discharge. Caldwell claimed that he was wrongfully discharged because of his activities as the president of the players union, and that the league refused to employ him for those activities. The league asserted that Caldwell no longer had the physical capacity to play basketball. Caldwell sued the league alleging that his exclusion violated the antitrust laws. Holding that the nonstatutory labor exemption applied, the court stated that "Caldwell's right to Page 32 challenge a discharge by the [league] had to be founded on labor rather than antitrust law."*fn97 In discussing both Caldwell's discharge and the league's refusal to employ him, the court stated that, "[t]his dispute is the familiar case of an employee asserting a discharge based on union activities."*fn98 While the court used broad language in holding that the league's policy regarding player suspension fell within the nonstatutory labor exemption because "a mandatory subject of bargaining pertinent in the instant matter is the circumstances under which an employer may discharge or refuse to hire an employee," the decision makes clear that the court treated the refusal to hire as synonymous with the dismissal.*fn99 The point is simple. Caldwell addresses a mandatory subject of bargaining — namely the conditions under which an employer may terminate an employee.

  In sum, none of the cases cited by the NFL involve job eligibility. The league provisions addressed in Wood, Williams, and Caldwell govern the terms by which those who are drafted are employed. The Rule, on the other hand, Page 33 precludes players from entering the labor market altogether, and thus affects wages only in the sense that a player subject to the Rule will earn none. But the Rule itself, for the reasons just discussed, does not concern wages, hours, or conditions of employment and is therefore not covered by the nonstatutory labor exemption.

  b. The Nonstatutory Labor Exemption Cannot Apply to Those Who Are Excluded from the Bargaining Unit

  The exemption is also inapplicable because the Rule only affects players, like Clarett, who arc complete strangers to the bargaining relationship. The labor laws cannot be used to shield anticompetitive agreements between employers and unions that affect only those outside of the bargaining unit.*fn100 There is no dispute that collective bargaining agreements, and therefore the nonstatutory labor exemption, apply to both prospective and current employees.*fn101 Newcomers to an industry may not object to provisions of collective bargaining agreements that speak to wages, hours, or conditions of employment on the grounds that they were not present for the bargaining sessions. "[N]ewcomers in Page 34 the industrial context routinely find themselves disadvantaged vis-a-vis those already hired. . . . that is [] a commonplace consequence of collective agreements."*fn102 Indeed, the Wood court held that a player, once drafted, could not object to the league's salary structure on the grounds that he never consented to the collective bargaining agreement.*fn103

  Clarett's situation is very different. He 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. Indeed, the Rule does not deal with the rights of any NFL players or draftees. That the nonstatutory exemption does not apply in such a case is simply the flip side of the rule that the exemption only applies to mandatory subjects of collective bargaining, those governing wages, hours, and working conditions. Employees who are hired after the collective bargaining agreement is negotiated are nonetheless bound by its Page 35 terms because they step into the shoes of the players who did engage in collective bargaining. But those who are categorically denied eligibility for employment, even temporarily, cannot be bound by the terms of employment they cannot obtain. For this reason, too, the nonstatutory exemption does not apply.

  c. The NFL Has Failed to Show that the Rule Arose from Arm's Length Negotiations

  The nonstatutory exemption does not apply for a third reason: the NFL has failed to demonstrate that the Rule evolved from arm's-length negotiations between the NFLMC and the NFLPA. If there is any doubt on this issue, the NFL is not entitled to summary judgment on this defense.

  The record is peculiarly sparse in establishing the evolution of the Rule. Indeed, what the record omits speaks louder than what it contains. As noted above, the Rule was first adopted shortly after the 1925 draft.*fn104 The NFLPA was not formed until 1956, did not become the players' exclusive bargaining agent until 1968,*fn105 and the first collective bargaining agreement was not adopted until 1968.*fn106 From these meager facts, it seems quite clear that the first version of the Page 36 Rule could not have arisen from the collective bargaining process. The NFL offers no evidence that the Rule was addressed during collective bargaining negotiations prior to 1993.

  The only evidence that it was addressed in 1993 is the following conclusory statement from the Declaration of Peter Ruocco: "During the course of collective bargaining that led to the 1993 CBA, the eligibility rule itself was the subject of collective bargaining."*fn107 But the CBA never mentions the Rule. Rather, the CBA states that the NFLPA "waive[s] . . . its rights to bargain over any provision of the Constitution and Bylaws . . . to sue the NFL over any provision of the Constitution and Bylaws . . . [and] to resolve any dispute . . . involving the interpretation or application of the Constitution and Bylaws in accordance with the dispute resolution procedures of the CBA."*fn108 While these references to the 1993 Bylaws, which in fact contained the then-existing version of the Rule, demonstrate that the union agreed not to bargain over or challenge the Rule, they in no way demonstrate that the Rule itself arose from, or was agreed to during, the process of collective bargaining. Quite the contrary. As noted, the CBA states that the Page 37 "NFLPA waived . . . its rights to bargain over any provision of the Constitution and Bylaws."*fn109 Thus the only proof submitted by the NFL strongly suggests that the Rule was never the subject of collective bargaining between the League and the union, and did not arise from the collective bargaining process.*fn110

  While Clarett offers no evidence on the issue of arm's-length bargaining, he certainly highlights the NFL's absence of proof. Because the NFL has not demonstrated that the Rule evolved from this process, the NFL is not entitled to summary judgment based on the nonstatutory labor exemption.

  B. Antitrust Standing

  Having rejected the application of the nonstatutory labor exemption, I turn next to the merits of Clarett's antitrust claim. In order to assert that claim, Page 38 Clarett must demonstrate that he has suffered an antitrust injury.*fn111

  1. The Antitrust Injury Requirement

  Antitrust injury — an element of antitrust standing*fn112 — is (1) "injury of the type the antitrust laws were intended to prevent" and (2) injury "that flows from that which makes defendants' acts unlawful."*fn113 As explained by the Supreme Court in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., the antitrust injury doctrine is designed to ensure that "the injury . . . reflects] the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation."*fn114 The Supreme Court has further explained the Page 39 requirement as "ensur[ing] that the harm claimed by the plaintiff corresponds to the rationale for finding a violation of the antitrust laws in the first place," and more specifically, it "ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant's behavior."*fn115 Thus, the antitrust injury requirement codifies the well-known motto of the Sherman Act, "The antitrust laws . . . were enacted for `the protection of competition not competitors.'"*fn116

  2. Clarett Has Antitrust Standing

  Clarett alleges that the NFL's Rule constitutes a "group boycott" that restrains trade in the NFL labor market by erecting a barrier to market entry.*fn117 For reasons discussed in greater detail below, the Rule is a naked restraint on competition for player services because it excludes a class of players from entering the market. It harms competition because some players are simply not permitted to compete.*fn118 Clarett's injury — his exclusion from the NFL — flows directly from Page 40 the anticompetitive effects of the Rule, and thus constitutes antitrust injury. Accordingly, Clarett has antitrust standing. Indeed, three courts have reached the merits of almost identical claims that challenged, on antitrust grounds, the validity of restrictions barring younger players from competing for positions in various sports leagues.*fn119

  a. The Rule Need Not Affect Price or Output for Clarett to Have an Antitrust Injury

  Nonetheless, the NFL argues that Clarett has no antitrust injury, and therefore no standing, because the Rule has no effect on either price (defined as player salary) or output (defined as the number of jobs) in the relevant market. The NFL relies on the Seventh Circuit's decision in Chicago Professional Sports Ltd. Partnership v. National Basketball Association, where Judge Easterbrook suggested that "[t]he antitrust injury doctrine . . . requires every plaintiff to show that its loss comes from acts that reduce output or raise prices to consumers."*fn120 Page 41 The NFL reasons that the Rule has no effect on price because player salaries are proscribed by the League's salary cap, which teams consistently meet, and does not affect output, because League rules limit the number of roster spots available to each team, which each team consistently fills. Because price and output are therefore relatively static, the NFL concludes that Clarett has no antitrust injury.

  Such a rigid "price or output" rule finds little support in the case law. Even within the Seventh Circuit, the validity of the Chicago Professional Sports rule is debatable. First, the rule itself is plain dicta. As the court conceded at the outset, "[a]ntitrust injury is one subject in particular that has not been presented for decision here."*fn121 Second, the Seventh Circuit itself has been inconsistent in addressing the question of whether an impact on consumers (in this case, the NFL teams) via price or output is required to show antitrust injury.

  Whether harm to consumers is the sine qua non of antitrust injury is an issue over which there is currently a split in this circuit. Some of our cases hold that a plaintiff, to satisfy the antitrust injury requirement, must demonstrate that the challenged practice causing him harm also harms consumers by reducing output or raising prices. Others hold that application of the antitrust laws does not depend in each particular case upon the ultimate demonstrable consumer effect.*fn122 Page 42

 Third, application of the "price or output" rule is particularly questionable in the context of labor (as opposed to product) markets. As the just-quoted passage reveals, changes in price or output are measures of the effect on consumers of a questioned practice. But in a labor market — where the consumers of labor are also usually the antitrust defendants — it makes little sense to require harm to consumers as a prerequisite for antitrust standing.*fn123

  There is even less support for a strict "price or output" rule outside of the Seventh Circuit. Indeed, none of the other Courts of Appeals has ever endorsed such a test. Rather, the Supreme Court as well as the lower courts have recognized that while allegations of inflated prices or reduced services as a result of a defendant's anticompetitive conduct are among the classic examples of antitrust injury,*fn124 they are but two of the many ways in which a defendant's Page 43 anticompetitive conduct can adversely affect the market. As the Ninth Circuit held in Les Shockley Racing, Inc. v. National Hot Rod Association, a violation of the Sherman Act is threatened "when the restraining force of an agreement or other arrangement affecting trade becomes unreasonably disruptive of market functions such as price setting, resource allocation, market entry, or output designation."*fn125

  In other words, an effect on price or output is a sufficient but not a necessary element of antitrust injury. Antitrust injury may arise from other anticompetitive effects, including barriers to market entry. The Supreme Court has long held that group boycotts are injurious to competition — and thus may give rise to a plaintiff's antitrust injury — when those barriers do not affect price or output, or even when they affect price or output in a way that is beneficial to competition:

  Group boycotts . . . have long been held to be in the forbidden category. They have not been saved by allegations that they were reasonable in the specific circumstances, nor by a failure to show that they "fixed or regulated prices, parcelled out or limited production, or brought about a deterioration in quality." Even when they operated to lower prices or temporarily to stimulate competition they were banned.*fn126 Page 44

 Clarett alleges a group boycott excluding him, and all others like him. from the market. His exclusion is an injury flowing directly from the anticompetitive effect of the Rule.

  b. Clarett Alleges a Group Boycott, Not Merely That Another Player Has Taken His Place

  The NFL conveniently mischaracterizes Clarett's claim as "an allegation that the eligibility rule will enable another player to secure a roster position and compensation that, in plaintiff's view, should be his own."*fn127 Clarett readily admits that this would not be an antitrust injury.*fn128 In fact, Clarett is not complaining that he was replaced by other players as a result of competition in a fair and open market. Rather, Clarett alleges that he and other players made ineligible under the Rule have been foreclosed from entering the market altogether. "They are not losers in a competitive marketplace; they are not even Page 45 allowed in the game."*fn129

  In support of its argument, the NFL relies on cases involving "supplier substitution" rather than exclusion from the relevant market. As such, these cases are inapposite. The only case among those cited by the NFL that binds this Court — the Second Circuit's decision in Balaklaw v. Lovell*fn130 — provides the perfect example. In Balaklaw, plaintiff enjoyed a de facto exclusive contract to provide anesthesiology services at Cortland Memorial Hospital. That relationship ended when the Hospital decided to solicit proposals for a written exclusive contract. The Hospital reviewed nine proposals including one from Dr. Balaklaw's group and interviewed four of the applicant groups, again including Dr. Balaklaw's, before ultimately awarding the exclusive contract to a group headed by Dr. Delf King. Dr. Balaklaw sued the Hospital, alleging "that the Hospital's and Dr. King's actions in entering into the exclusive anesthesiology contract constituted a conspiracy to engage in an illegal group boycott of, and a concerted refusal to deal with, Dr. Balaklaw."*fn131 The Second Circuit rejected this claim, holding that "injuries resulting from competition alone are not sufficient to Page 46 constitute antitrust injuries."*fn132 Dr. Balaklaw's injury, the court explained, stemmed not from a group boycott, but from competition: "Dr. Balaklaw, like seven of the other eight anesthesiology groups that submitted proposals, simply failed to win the exclusive contract to practice anesthesiology at CMH. . . . By closing its doors to Dr. Balaklaw in favor of one of his competitors, CMH did nothing to inflict an injury of the type the antitrust laws were intended to prevent."*fn133 Page 47

  In contrast to Balaklaw, the Rule precludes Clarett from entering into "fair and vigorous competition." Clarett does not merely allege, as plaintiffs in Balaklaw did, that he was harmed by competition. Rather, the harm to Clarett — his exclusion from the League — flows from a harm to competition.

  The NFL's reliance on two other cases — the Ninth Circuit's decision in Les Shockley Racing*fn134 and the Sixth Circuit's decision in National Hockey League Players `Association ("NHLPA") v. Plymouth Whalers Hockey Club*fn135 — is equally unavailing. Those cases deal with the merits of the plaintiffs' respective antitrust claims, not antitrust standing. Indeed, the Les Shockley court even went out of its way to explain that it was not addressing antitrust injury: "[W]hether plaintiffs would meet the five-factor standing test of Associated Gen. Contractors is irrelevant to this appeal."*fn136

  To the extent that those two cases have any bearing on Clarett's case — because they concern the exclusion of potential competitors in the sports Page 48 context — they are easily distinguished. The plaintiffs in Les Shockley Racing were owners and operators of jet-powered trucks and motorcycles who staged exhibition drag races. The National Hot Rod Association ("NHRA") banned exhibition drag racing of jet-powered motorcycles and trucks on tracks under their sponsorship or control. Plaintiffs claimed that this ban violated section 1 of the Sherman Act by restraining trade in the market for "exhibition drag racing services."*fn137 Plaintiffs further alleged that because the NHRA controlled the majority of drag racing tracks, plaintiffs were effectively blocked from the relevant market. In affirming dismissal of the complaint, the court held that plaintiffs had failed to allege that their exclusion resulted in a "reduction of competition in the market in general" as opposed to "injury to their own position as competitors in the market."*fn138 The court went on to provide examples of what was lacking:

  Absent are factual allegations outlining the effect of the NHRA's ban on the price or availability of exhibition drag racing services in the United States; the allocation of work hours, vehicle parts, and other resources crucial to the provision of those services; the availability of opportunity for entry into the market through the use of jet-powered vehicles other than trucks or motorcycles; or any other characteristic or function of a competitive market.*fn139 Page 49

 Clarett's case is starkly different. Clarett defines the relevant market as the NFL labor market for player services. He specifically pleads a complete barrier to market entry. "The Rule is harmful to competition as it provides for total exclusion of players who have not completed three college seasons or are not three years removed from high school graduation, notwithstanding their ability to perform in the market and compete for available positions in the league."*fn140 Clarett also specifically alleges that "[t]here is no other league of professional football that is comparable to the NFL."*fn141

  The market defined by Clarett is narrow — it is the market for NFL player services. That is the only commodity that Clarett has to sell and the only commodity the NFL seeks to buy. Accordingly, the Rule harms both Clarett and competition in the market for player services. A purchaser's bar on an entire class of sellers harms competition in the absence of an alternative comparable buyer.*fn142 By contrast, the market in Les Shockley was the market for all exhibition drag racing. While jet-powered trucks and motorcycles were excluded from that market, plaintiffs were not. They could have competed by offering to exhibit other Page 50 jet-powered vehicles or non jet-powered trucks and motorcycles. Indeed, this point was explicitly acknowledged by the Les Shockley court. "[W]hen the restraining force of the agreement or other arrangement affecting trade becomes unreasonably disruptive of market functions such as . . . market entry . . . a violation of the Sherman Act [is] threatened."*fn143

  Similarly, plaintiffs' claims in NHLPA were dismissed because the plaintiffs did not identify a market in which competition was impaired: "Failure to identify a relevant market is a proper ground for dismissing a Sherman Act claim. Appellees do not define a relevant market in their complaint. . . ."*fn144 Thus, the court ruled that plaintiffs had failed to demonstrate a required element of a section 1 claim: injury to competition within a definable market. This failure was critical because the ill-defined market made it impossible to gauge whether other comparable leagues were unavailable to the plaintiffs such that competition was harmed.

   While at first glance the age-based ban on athletes at issue in NHLPA may appear similar to the Rule, that facial similarity is misleading. Because the Page 51 NFL is not comparable to other professional football leagues, the contours of the market identified by Clarett are clear. In NHLPA, plaintiffs identified a product market for amateur hockey, i.e., a market where the Ontario Hockey League was the seller of amateur hockey to its fans. Thus, the NHLPA plaintiffs alleged harm to the spectators who were deprived of the opportunity to see the best players. It is not surprising that the court found no anticompetitive effects in that market from the alleged age-based eligibility restriction. Such a rule could have affected the product of amateur hockey only by diminishing the quality of play — a concern of no relevance under the antitrust laws.*fn145 Clarett, by contrast, seeks to sell his services in a labor market. Thus, the harm he alleges is to the market of players selling their services, not to the market of consumers viewing the players.*fn146

   Intellective, Inc. v. Massachusetts Mutual Life Insurance Co.*fn147 demonstrates that unreasonable barriers to market entry — i.e., group boycotts — are sufficient to establish antitrust injury. In Intellective, a consortium of life insurers known as the "Working Group" entered into an agreement to withhold historical data (such as might be used in preparing a comparative analysis of the Page 52 insurers' investment management practices or asset allocation strategies) from third parties that might wish to prepare such studies.*fn148 Intellective, a consulting firm that was not affiliated with the Working Group, alleged that this arrangement violated section 1 by erecting "`tremendous barriers of entry for anyone who wishes to compete' because `[a]ny investment performance survey which does not include data from the Working Group companies will be much less valuable than one that does.'"*fn149

   Defendants argued that Intellective had not sustained an antitrust injury because it was merely complaining that it had lost its job preparing comparative studies to the Working Groups' preferred consultants.*fn150 The court concluded that, "[t]o the extent Intellective claims injury relating to its loss of the [] contract, defendants are correct that Intellective has not pleaded an adequate antitrust injury. Intellective lost the [] contract to Sagamore [a competing firm] through competition between the two."*fn151 But the court also found that the Page 53 Working Groups' systematic exclusion of other firms — Intellective or anyone else — from entering the market for producing comparative life insurance investment reports constituted a legitimate antitrust injury:

Defendants mistake Intellective's primary complaint. Although Intellective does complain of the Insurance Company Defendants' decision not to award the contract to Intellective, Intellective's principal claim stems from the Working Group's attempt to monopolize the information necessary to compete in the relevant market. Intellective adequately states an antitrust injury in this regard. Intellective alleges that it, and all others, are prevented from competing in the relevant market by the Working Group's control of the data necessary to perform a competing study. The prevention of this type of marketwide competition is an "injury of the type the antitrust laws were designed to prevent." Further, Intellective's own injury — its inability to compete in this market — stems from defendants' activities, as required under Atlantic Richfield.*fn152
   Clarett has a demonstrable antitrust injury for precisely the same reason: he alleges that the Rule prevents him, and all others similarly situated, from competing in the relevant market. And Clarett's own injury — his inability to compete in the market — stems from defendant's activities.*fn153 Thus, he has Page 54 demonstrated antitrust injury.

   C. The Rule Is an Unreasonable Restraint of Trade

   1. The Sherman Act Forbids Unreasonable Restraints of Trade

   Section 1 of the Sherman Act prohibits "[e]very contract, combination . . . or conspiracy, in restraint of trade."*fn154 Although the plain language of the Sherman Act would suggest that every contract in restraint of trade violates the antitrust laws, the Supreme Court has long held that the Sherman Act prohibits only "unreasonable" restraints of trade.*fn155 Thus, in order to prevail, "a plaintiff claiming a § 1 violation must first establish a combination or some form of Page 55 concerted action between at least two legally distinct economic entities. . . . [I]t must then proceed to demonstrate that the agreement constituted an unreasonable restraint of trade. . . ."*fn156 It is undisputed that the Rule is the product of concerted action amongst the NFL teams. The only issue that remains is whether the Rule is an unreasonable restraint of trade.

   To determine whether a restraint of trade is unreasonable, most antitrust claims are analyzed according to the "rule of reason." This rule requires analysis of various factors including information about the relevant business, its condition before and after the restraint was imposed, and the restraint's history, nature, and effect.*fn157 Some types of restraints, however, have such predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, that they are deemed unlawful per se and no further inquiry is required.*fn158 Per se treatment is appropriate "[o]nce experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it."*fn159 The per se rule is used when courts are confronted with conduct Page 56 that experience teaches is overwhelmingly likely to be anticompetitive; in such cases there is no need for a detailed market analysis.*fn160 "Among the practices which the courts have heretofore deemed to be unlawful in and of themselves are [horizontal] price fixing, division of markets, group boycotts, and tying arrangements."*fn161

   2. The Validity of the Rule Must Be Analyzed Under the Rule of Reason

   In NCAA v. Board of Regents, the Supreme Court modified the per se approach for industries in which some horizontal restraints are necessary. In such industries, even conduct that is normally condemned as per se unreasonable must be evaluated under the rule of reason in order to take into account the realities of the industry's regulatory landscape. As one scholar explained,

   [S]ome activities can only be carried out jointly. Perhaps the leading example is league sports. When a league of professional Page 57 lacrosse teams is formed, it would be pointless to declare their cooperation illegal on the ground that there are no other professional lacrosse teams.*fn162

  Thus, in NCAA, the Court held that while


[horizontal price fixing and output limitation are ordinarily condemned as a matter of law under an `illegal per se' approach because the probability that these practices are anticompetitive is so high . . . we have decided that it would be inappropriate to apply a per se rule to this case . . . [because] this case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all.*fn163
Here, notwithstanding the fact that Clarett alleges that the Rule constitutes a group boycott — conduct that historically falls into the per se category*fn164 — the parties Page 58 agree that the rule of reason applies because the challenged restraint arises in the context of a sports league.

   3. Application of the Rule of Reason

   In evaluating a rule of reason case on summary judgment, courts employ a three step burden-shifting test.


Under this test plaintiff bears the initial burden of showing that the challenged action has had an actual adverse effect on competition as a whole in the relevant market. . . . After the plaintiff satisfies its threshold burden of proof under the rule of reason, the burden shifts to the defendant to offer evidence of the pro-competitive "redeeming virtues" of their combination. Assuming defendant comes forward with such proof, the burden shifts back to plaintiff for it to demonstrate that any legitimate collaborative objectives proffered by defendant could have been achieved by less restrictive alternatives, that is, those that would be less prejudicial to competition as a whole.*fn165
a. The Rule Is a Naked Restraint of Trade
   Clarett alleges that the Rule constitutes a "group boycott" that restrains trade in the relevant market (the NFL player market) by denying market entry to certain sellers (players less than three years removed from high school graduation). This is precisely the sort of conduct that the antitrust laws were Page 59 designed to prevent: "whatever other conduct the Acts may forbid, they certainly forbid all restraints of trade which were unlawful at common-law, and one of the oldest and best established of these is a contract which unreasonably forbids any one to practice his calling."*fn166

   Courts have found that similar entry barriers violate the antitrust laws. In Denver Rockets v. All-Pro Management, Inc.*fn167 — the so-called "Spencer Haywood" case — the court considered an NBA bylaw that restricted eligibility to players who were at least four years removed from the date of their high school graduation (or, in the case of players who did not graduate high school, from the date of the remainder of their class's high school graduation). Holding that the four-year rule constituted an unreasonable restraint of trade, the court explained:

Application of the four-year college rule constitutes a "primary" concerted refusal to deal wherein the actors at one level of a trade pattern (NBA team members) refuse to deal with an actor at another level (those ineligible under the NBA's four-year college rule).
   The harm resulting from a "primary" boycott such as this is threefold. First, the victim of the boycott is injured by being excluded from the market he seeks to enter. Second, competition in the market in which the victim attempts to sell his services is injured. Third, by pooling their economic power, the individual Page 60 members of the NBA have, in effect, established their own private government. Of course, this is true only where the members of the combination possess market power in a degree approaching a shared monopoly. This is uncontested in the present case.*fn168

  Similar age-based restrictions have been struck down in the context of professional hockey*fn169 and professional football.*fn170 Although all of these cases v/ere decided prior to NCAA — and thus employed a per se analysis — their economic analysis remains sound. Age-based eligibility restrictions in professional sports are anticompetitive because they limit competition in the player personnel market by excluding sellers.

   Nonetheless, the NFL argues that Clarett has failed to establish a prima facie claim under section 1 because he has not "established] the contours of Page 61 the relevant market."*fn171 This argument fails for two reasons, one factual and one legal. First, Clarett has sufficiently defined the relevant market. In his complaint, Clarett alleges that "[t]he NFL is a distinct market for professional football for which there are no reasonable substitutes in the United States."*fn172 The relevant market is therefore the market for NFL players.*fn173 That the League has exclusive market power in this arena is obvious; the very fact that it can establish a Rule that excludes players from the market altogether demonstrates its market domination.

   Second, as a legal matter, the NFL's argument that Clarett has failed to define the relevant market "misapprehends the purpose in antitrust law of market definition, which is not an end unto itself but rather exists to illuminate a Page 62 practice's effect on competition."*fn174 As the Tenth Circuit has explained, "A plaintiff may establish anticompetitive effect indirectly by proving that the defendant possessed the requisite market power within a defined market or directly by showing actual anticompetitive effects. . . ."*fn175

   "To avoid examining the relevant market, market power, and anticompetitive effect in all cases in which conduct does not clearly fit within a per se category, the Supreme Court has sanctioned an intermediate inquiry, known as `quick look,' if the conduct at issue is a `naked restriction.'"*fn176 Such a "quick Page 63 look" analysis, as the Supreme Court has recently explained, is appropriate where "the great likelihood of anticompetitive effects can easily be ascertained," and "an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect."*fn177

   The Rule is the perfect example of a policy that is appropriately analyzed under the "quick look" standard because its anticompetitive effects are so obvious. Indeed, one can scarcely think of a more blatantly anticompetitive policy than one that excludes certain competitors from the market altogether. Because the Rule has the actual anticompetitive effect of excluding players — including Clarett — from the NFL, it is a naked restriction.*fn178 Clarett has therefore established a prima facie violation of section 1 of the Sherman Act.

   b. The Rule Has No Legitimate Procompetitive Justification

   Because Clarett has established the anticompetitive effect of the Rule, the burden shifts to the NFL to offer a procompetitive justification.*fn179 The NFL Page 64 offers four justifications:

The purposes of the eligibility rule include [1] protecting younger and/or less experienced players — that is, players who are less mature physically and psychologically — from heightened risks of injury in NFL games; [2] protecting the NFL's entertainment product from the adverse consequences associated with such injuries; [3] protecting the NFL clubs from the costs and potential liability entailed by such injuries; and [4] protecting from injury and self-abuse other adolescents who would over-train — and use steroids — in the misguided hope of developing prematurely the strength and speed required to play in the NFL.*fn180
While these may be reasonable concerns, none are reasonable justifications under the antitrust laws.*fn181

   The NFL's first and fourth justifications — the desire to protect younger athletes from injury or over-training — can be dismissed out of hand. The antitrust laws require a procompetitive justification in the face of a Page 65 demonstrably anticompetitive rule.*fn182 The NFL's concern for the health of younger players is laudable, but it has nothing to do with promoting competition.

   The NFL's second and third justifications — the desire to protect the League and its teams from the costs associated with injuries — are, for two reasons, also ineffective. First, the League may not justify the anticompetitive effects of a policy by arguing that it has procompetitive effects in a different market.*fn183 Yet this is precisely what the NFL is advocating. The League argues that the Rule, by allegedly limiting the occurrence of player injuries, maintains the high quality of its "entertainment product," and thus presumably enables the League to better compete with other providers of sports entertainment such as other professional sports leagues or amateur football. The Rule, according to the NFL, thus limits competition in the player personnel market but enhances Page 66 competition in the market for sports entertainment.*fn184 Even if it could be said with certainty that the Rule is procompetitive in this sense — and the League has certainly submitted no evidence to that effect — the League may not enact a policy that, effectively, "determine[s] the respective values of competition in various sectors of the economy."*fn185

   Second, the NFL's desire to keep its costs down is not a legitimate procompetitive justification.*fn186 The fact that the League and its teams will save money by excluding players does not justify that exclusion. Indeed, the vast majority of anticompetitive policies are instituted because they will be profitable to the violators. As one scholar explains,

   The exercise of market power by a group of buyers virtually Page 67 always results in lower costs to the buyers — a consequence which arguably is beneficial to the members of the industry and ultimately their consumers. If holding down costs by the exercise of market power over suppliers, rather than just by increased efficiency, is a procompetitive effect justifying joint conduct, then section 1 can never apply to input markets or buyer cartels. That is not and cannot be the law.*fn187

  Because the League has failed to offer any legitimate procompetitive justifications for the Rule, Clarett must prevail.*fn188 There is no need to proceed to trial or engage in fact-finding because the League has failed, as a matter of law, to offer any procompetitive justifications for the Rule. Accordingly, no jury is required to find that the anticompetitive effects of the Rule outweigh its procompetitive benefits.*fn189 Page 68

   c. Less Restrictive Alternatives to the Rule Exist

   Nonetheless, even if a procompetitive justification for the Rule existed, summary judgment for Clarett would be appropriate because an alternative to the Rule exists that is less prejudicial to competition. The antitrust laws do not tolerate a policy that restrains trade — even if there is some procompetitive benefit — when a policy that results in less prejudice to competition would be equally effective.*fn190

   All of the League's justifications for the Rule boil down to the same basic concern: younger players are not physically or mentally ready to play in the NFL. But as the NFL's own affiant concedes, the "timeframe" for a player's physical and psychological maturation "Varies from individual to individual."*fn191 That being so, age is obviously a poor proxy for NFL-readiness, as is a restriction based solely on height or weight.*fn192 Medical examinations and tests are available Page 69 to measure an individual player's maturity.*fn193 The League could easily use those tests to screen out players who are not prepared to play in the NFL. And while Dr. Metzl asserts that such tests are "intrusive,"*fn194 there is little doubt that potential draftees would voluntarily submit to testing in order to compete for a spot in the League.*fn195

   By requiring draft prospects to submit to these examinations, the League could provide valuable information about player maturity to its teams and allow them to decide whether a prospect is worth selecting. In such a scenario, no player would be automatically excluded from the market and each team could decide what level of risk it is willing to tolerate. The fact that there is a less restrictive alternative only underscores that there is no procompetitive justification for the Rule, and that it violates the antitrust laws. Page 70


   For the reasons just explained, Clarett's motion for summary judgment is granted and the NFL's motions are denied. Because the Rule violates the antitrust laws, it cannot preclude Clarett's eligibility for the 2004 NFL draft. Accordingly, it is hereby ORDERED that Clarett is eligible to participate in the 2004 NFL draft. Clarett also requests damages as a result of his exclusion from the 2003 NFL draft. Because the parties have not yet addressed this issue, it is unclear whether there are material issues of fact with respect to damages. A conference is scheduled in Courtroom 15C on February 12, 2004 at 10:00 a.m.


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