Age and Sports Law

1. Age and Sports Law Presented to: Wisconsin Bar Association Madison, Wisconsin May 3, 2006 by Adam Epstein, Esq. Associate Professor, Central Michigan University

2. Age Issues in Sports • In professional sports, the focus is on the minimum age to participate or to be drafted in the league. • This is a byproduct of the collective bargaining process in the Big Four (NFL, MLB, NBA, NHL). • In high school, however, the focus is on maximum age, maximum participation, and no pass-no play rules (minimum credit). • Age as an issue in sports law is gaining momentum as part of a national discourse of discussion. • Looming in the background is the consideration of the ADEA in the context of sports law.

3. Age Issues Generally • At one time, it was expected that a professional athlete would retire at a certain age-not anymore • In April, for example, Julio Franco hit a home run at age 47 to become the oldest player in major league history to hit a home run • Players in all professional leagues are playing longer… • Ray Brown (43) NFL • Chris Chelios (44) NHL • John McEnroe (47) Tennis

4. Minimum Age Concerns As Well • Maria Sharapova (tennis) • Sydney Crosby (hockey) • Michelle Wie (golf) • Lebron James (basketball) • Numerous others…

5. Pro Sports Context • Maurice Clarett’s (football) unsuccessful challenges in 2004/2005 to the NFL’s minimum age rule brought age to the forefront of national discussion in recent years. • Still, another consideration for sports law practitioners is the Age Discrimination in Employment Act of 1967 (ADEA) • Discussion of Pro Sports and Age follows….

6. NBA • League with the most prominent history of legal issues with regard to early entrants to the player draft and minimum age concerns. • Spencer Haywood successfully challenged the NBA’s early entry rule which had mandated that one had to be out of high school for four years before being eligible for the draft (Haywood v. Nat’l Basketball Assoc., 401 U.S. 1204 (1971). • Supreme Court said the NBA rule had anticompetitive effects.

7. Post-Haywood • NBA rule thereafter abandoned and Moses Malone drafted in the third round in 1974 right out of high school. • Others making the jump in the 1970s included Darryl Dawkins and Bill Willoughby. • Only Shawn Kemp made a successful jump in the 1980s. • In the 1990s and through 2005, there was an explosion of 18 and 19 year olds making the jump causing concern for the NBA (and the NCAA), and finally the rule has been changed again (as a matter of collective bargaining).

8. 2005-6 NBA CBA • Minimum age has been increased from 18 to 19 years. • Also, U.S. players must be one year removed from high school and 19 by before entering the draft. • International players must be 19 during the calendar year of the draft. • In the NBDL (the NBA minor league), the league lowered the minimum age requirement to 18 years, effective with the 2006-07 season. Thus, a player is eligible to be signed to a D-League contract if he is or will be at least 18 years old during the calendar year in which the league draft is held and his high school class has graduated.. (April, 2006).

9. NHL • All players must be 18 by September 15 in the year in which the draft is held. • John Tavares was drafted at 14 as an “exceptional player”—the OHL minimum rules are merely age 15. • The now defunct WHA had a minimum age rule of age 20. • Interestingly, OHL (Ontario Hockey League) allows younger players, however. [Amateur League].

10. NFL • Early entry not much of an issue in this league historically, but… • Until 1984, the NFL refused to allow any collegiate player who had any eligibility to enter the draft. • NFL had a rule (the Grange Rule) in which no NFL team could pursue a player until his college class had graduated (i.e., a four-year limit from high school). • However, NFL did allow exceptions for “hardship” such as 19 year old running back Andy Livingston. • NFL also challenged by Clarence Reece of USC in 1974/1975. Commissioner Rozelle ultimately allowed him to play with the Houston Oilers. • Four year rule decreased to 3 years in 1990. Not much discussion thereafter until Clarett in 2004/5.

11. USFL • Defunct spring league, but had a rule that a player had to be 21. • Robert Boris sued the league claiming a violation of federal antitrust laws (Boris v. USFL, 1984 U.S. Dist. LEXIS 19061 (C.D. Cal. 1984). • He wins, USFL does not appeal, USFL files bankruptcy, goes out of business.

12. Maurice Clarett • So, Maurice Clarett (of Ohio State University) alleged that unilaterally imposed minimum age limits (or even collectively bargained ones) are no good according to antitrust law. • Wins in federal district court, but loses badly on appeal. (Clarett v. Nat’l Football League, 306 F. Supp.2d 379 (S.D.N.Y. 2004), rev’d 369 F.3d 124 (2d Cir. 2004). • While not a Supreme Court decision, and while only 2nd Circuit precedent, it noted strong language that if age minimums reflect the collective bargaining process (CBA), then it appears to be just fine. • Supreme Court refused to hear.

13. MLB • Virtually no age issues. • Due to large and well-established minor league system. • Part of baseball culture to begin the professional pursuit in the minor leagues after high school. • However, MLB has a policy against signing international players before age 16-has caused a few issues with Cuban born players. • Interesting rule: bat boys/girls must now be at least 14 (Darren Baker Rule).

14. Other Sports • Tennis: WTA allows players to compete in 15 events between age 17 and 18. Men under 14 cannot play on ATP Tour. • Concerns over burnout and family issues (parents). • Golf: LPGA stands firm that minimum age is 18, but age 15-18 can petition the LPGA commissioner for exemption (Morgan Pressel). On the Men’s side, must be 18.

15. Others • WNBA: Must be 22, graduated from college, or at least had their college class graduate. • Olympics: Depends on the sport. In 2005 Japan’s Mao Asada was excluded from the ISU championships and the Olympics because she turned 15 in September, but according to ISU rules she had to turn 15 by July 1.

16. Amateur Sports Environment • High School • NCAA • Little League

17. High School • Majority Rule: State athletic associations which exclude participation from students age 19 (or who turn age 19 by a designated date in August, September or October) is reasonable. (Michigan, Pennsylvania) • Minority Rule: Must look at each challenge to the rule on a case-by-case basis and age 19 rule is clearly on thin ice. (Florida, Connecticut) • Both must consider the ADA, Sec. 504 of the Rehabilitation Act

18. High School, Cont’d. • Consider, too MAXIMUM participation rule (no more than 8 semesters of participation or four seasons in the sport). Almost always upheld to avoid holding players back. • MINIMUM credit rules (i.e., “no pass, no play”) also usually upheld.

19. NCAA • Does not have a minimum age rule • Does have a maximum participation rule, but not maximum age rule. • General rule: 5 years to compete in 4. May ask for hardship waiver. • Exceptions: Military Service; Pregnancy; Church Mission

20. Little League Baseball • Maximum age rule became infamous in 2001 when Danny Almonte, star of Bronx’s Rolando Paulino All-Stars was 14, not 12-the maximum.

21. ADEA and Sports • A somewhat forgotten employment law in the sports law context. • Lying in wait... • Addressed a few times by the courts, but never by an athlete. • Almost always a coach v. athletic director, university, etc.

22. What is the ADEA? • Age Discrimination in Employment Act (1967) • Enacted to promote the ability of older workers to compete in the marketplace for jobs. • 29 U.S.C. §§ 621-34 • Applies to any employer affecting commerce with 20 or more employees and covered individuals (those who meet employment qualifications) who are at least 40 years of age (§ 631)

23. ADEA Congress adopted the ADEA to “promote employment of older persons based upon their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.”

24. ADEA • Follows the theme of Title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, religion, sex or national origin. They are quite similar. (Some say the ADEA “supplements” Title VII) • Amendments to ADEA in 1974 extended to federal and state employees • In 1978, Congress extended the upper age class from 65-70 • Upper age limit eliminated and no more “mandatory retirement.” (1986) • Enforced by the EEOC

25. Proof of Age Discrimination • Employee must (for a prima facie case): • 1) Show he/she was a member of the protected age group; • 2) Show his/her performance met the employer’s legitimate expectation; • 3) Show he/she was subject to materially adverse employment action; • 4) Show younger employees were treated more favorably. (Elgundy v. Commonwealth Edison Co., 903 F.Supp. 1260 (N.D. Ill. 1995)

26. State Laws and ADEA • The ADEA does NOT preempt state age discrimination laws • States can, then EXPAND the coverage of the ADEA.

27. How Does the ADEA apply in the sports context? • Athletes • Coaches • Administrators • Medical Staff (Doctor’s, trainers) • Equipment managers • Others? (Volunteers)

28. Athletic Departments • Numerous coaches claim violations throughout the United States. • Many cases not reported in the law books due to EEOC mediation settlements. • However, Notre Dame ordered to pay former Assistant Football Coach Joe Moore more than $170,000 for violation of the ADEA. Moore in a second…(See Also, Babyak v. Smith College, Mass. Super. Ct., No. 99-204, jury verdict 12/17/01).

29. Thus, … • Athletic directors and Athletic Administrators certainly must consider age in job hiring and termination and must develop policies to address this federal issue.

30. The Case of Joe Moore • Moore v. The University of Notre Dame, 968 F. Supp. 1330 (N.D. Ind. 1997) and 22 F. Supp.2d 896 (N.D. Ind. 1998) • Assistant Football Coach fired after he brought an action against UND under the ADEA. • Also sued UND, Bob Davie (Head Coach), and “The Blue and Gold” for defamation, saying that Moore could only coach a few more years due to his age.

31. Moore… • Trial on July 9, 1998 • July 15, 1998 jury awards Moore back pay of $42,935.28, liquidated damages of $42, 93.25 because they determined that ND was willful in its efforts • After the trial, Moore made post-trial motions asking for a reinstatement or to award five year’s front pay instead. ND objected

32. Moore • Court says, “although reinstatement is the preferred remedy in a discrimination case, it is not always appropriate.” • During trial Moore and Davie made it apparent that they could not work with each other anymore. • Moore’s 1996-1997 salary was $79,552.08 • Court awards $75,577.68 in front pay (based upon his new jobs salaries, minus what he would have made at Notre Dame).

33. Significant Non-Sports Law Cases • 1. Griggs v. Duke Power Co. (1971) • 2. McDonnell Douglas Corp. v. Green (1973) • 3. Hazen Paper Co. v. Biggins (1993) • 4. O’Connor v. Consolidated Coin Caterers Corp. (1996) • 5. General Dynamics Land Systems, inc. v. Cline (2004) • 6. Smith v. City of Jackson (2004)

34. Significant Sports Law Cases • 1. Moore v. The University of Notre Dame (1997) • 2. Dreith v. National Football League (1991) • 3. Street v. North Carolina State University (1999) • 4. Beery v. Univ. of Oklahoma Bd. of Regents (2000) • 5. Peterson v. National Football League (1999) • 6. Shreve v. Cornell University (1988)

35. ADEA Defenses • 1. Bona Fide Occupational Qualification • 2. Reduction in Force • 3. Seniority Systems • 4. Business Necessity Defense

36. ADEA Additional Considerations • Law Enforcement • Aircraft Pilots • Professors

37. ADEA and the Future • ADEA ultimately uncharted territory in the contexts of sports and employed athletes who are terminated. • What about Golf? Tennis? Swimming? Triathlon? Skiing, Skating….Sponsorship contracts? • Remember there must be “employment,” not merely independent contractor status. • Great consideration should be given to writing performance reviews (avoid ageism) and proper wording of job applications

38. In the End… • As professional athletes (or employed athletes) continue to age and remain employed for their athletic prowess, will claims be made under the ADEA by athletes in addition to coaches? • Would such claims be legitimate if there is a subjective standard of athletic performance? • Recall, student-athletes are not employees.

39. Further… • Law is not entirely yet clear in this area, but if a collective bargaining agreement exists, it will likely control based upon Clarett and others. • Not all professional sports have CBA’s however (NASCAR, for example). • Virtually no case law involving athletes themselves and the ADEA.

40. Thank You Special thanks to those 40 and older…