In a different world, the top handful of players selected in tonight’s 2020 NBA Draft would include a couple of names that won’t appear: Oklahoma State freshman guard Cade Cunningham and NBA G League Ignite guard Jalen Green. Both have been talked about as potential No. 1 picks in the 2020 draft if they were eligible.
But neither is. Cunningham, 19, and Green, 18, will wait another year.
As explored during the SporticoLive NIL Era event, eligibility rules could warrant legal change.
Since 2006, American players must be at least 19 years old and at least one NBA season must have elapsed since they graduated from high school or, if they didn’t graduate, when they would have graduated. This policy was collectively bargained by the NBA and NBPA. Prior to 2006, high school players could “jump” directly to the NBA. Between 1975 and 2005, 40 players made that ascension, among them LeBron James, Kobe Bryant, Kevin Garnett, Dwight Howard, Tracy McGrady, Tyson Chandler, Lou Williams, Amar’e Stoudemire and Jermaine O’Neal.
The NFL and WNBA are even more age-restrictive. Prospective NFL players must until at least three years from high school have passed. American players seeking the WNBA must be at least 22 years old or college grads (or four years out of high school).
These eligibility rules are uniquely limiting. Players can jump from high school—in some cases even earlier—to the NHL, MLB, MLS, UFC, pro tennis and pro golf. Basketball players in other pro leagues can also begin sooner. At age 13, Dallas Mavericks star Luka Dončić signed with Real Madrid. He went on to play five years of pro hoops before joining the NBA as a rookie. The WNBA seems to concede that its rules for Americans wouldn’t work for international players, who are WNBA-eligible once they turn 20.
Beyond sports, entertainers can generally make money as soon as the market permits. This is true of child actors and teenage musicians, some of whom amass fortunes long before their friends head off to college.
It’s fair to ask, “How are age eligibility rules in pro sports legal?” The answer has two basic components.
First, the area of law most commonly used to challenge economic restrictions—antitrust—has been deemed inapplicable. The antitrust argument is straightforward: Competing businesses (in this case, teams) conspire through eligibility rules to deny entry to young players whom, but for those rules, teams would draft. As a collective, teams support older eligibility rules so that young players can develop their skills, and become more marketable, on someone else’s dime—namely, American colleges. Colleges welcome this arrangement because they earn off those young players’ labor and name, image and likeness.
The problem: This arrangement is openly anti-competitive. It prevents young players from capitalizing on their talents while they are marketable and before they potentially suffer career-impacting injuries.
The leading case against age limits was brought by former Ohio State football player Maurice Clarett. He sued the NFL in 2003 (disclosure: I was an attorney on the legal team for Clarett). Clarett prevailed at the federal district level but was defeated at the U.S. Court of Appeals for the Second Circuit. Judge (now U.S. Supreme Court Justice ) Sonia Sotomayor determined that antitrust law didn’t apply because the NFLPA had agreed to the eligibility rule.
In other words, so long as the union agrees to the eligibility rule, whether it is sensible or detrimental is legally irrelevant. This is true even though those most impacted by the rule—the young players who are denied entry—can’t be members of the union. And it’s true even though unions have an incentive to protect the jobs of existing members. Whether other federal courts would accept this reasoning is unclear; there haven’t been challenges since Clarett.
Second, federal age discrimination law does not apply. The federal Age Discrimination in Employment Act of 1967 (ADEA) protects persons who are 40 and older from employer age discrimination. There are state age discrimination laws that might apply—New York law, for instance, forbids employers from refusing to hire a person who is 18 or older on account of age—but none has been used by excluded players.
During the NIL Era interview, U.S. Senator Chris Murphy (D-Conn.) signaled a desire to change this dynamic. He suggested there would be “broad Republican and Democratic support [for] a right to go straight to the pros.” Murphy, a leading advocate for college athletes’ rights and author of Madness, Inc.: How College Sports Can Leave Athletes Broken and Abandoned, highlighted that pro leagues “get a free minor leagues” in the form of college sports. He added that a right to turn pro out of high school “would fundamentally in and of itself change the bargaining power that exists for student athletes.”
How would such a right work? Amending the ADEA to include protections for younger workers is one possibility. Another would be to enact a new law that explicitly forbids pro leagues and unions from barring entry to persons over the age 17 on account of their age or experience. Such a law could not be “collectively bargained around”—leagues and unions would need to follow it.
Players who seek the NBA, WNBA and NFL are impacted differently by eligibility restrictions. Basketball players can play professionally abroad or, in the case of men’s players, play in the G League. The NBA and NBPA might also drop the “one-and-one” rule in their next CBA (the current agreement runs through the 2023-24 season, with a mutual opt-out clause after 2022-23).
Football players are far more disadvantaged. While the XFL permitted players to join before they would have been NFL draft-eligible, there aren’t many options for would-be football players to develop outside of college football. For certain injury-prone positions, such as running back, having to play three years of college could lead to the end of their careers before they get to the NFL.
Perhaps changes to law will force a change of these rules.