The question of who gets to decide the appropriate age for athlete to turn pro is central to a lawsuit filed on Tuesday by 15-year-old Olivia Moultrie, a highly regarded American soccer player, and her father. Represented by Oregon attorney Joshua Sasaki and others, Moultrie has sued the National Women’s Soccer League for antitrust violations in Oregon’s federal district court.
NWSL, which Moultrie portrays as “the only professional women’s soccer league in the U.S.,” requires that players be at least 18 years old.
Moultrie, who routinely participates in NWSL’s Portland Thorns practices and scrimmages, is already a professional by virtue of signing a nine-year endorsement deal with Nike. She demands, among other forms of relief, a temporary restraining order to allow her to sign with one of NWSL’s 10 teams and a court declaration holding the restriction unlawful. Judge Karin Immergut will preside over the case.
Moultrie’s case partly hinges on whether NWSL’s rule is exempt from antitrust scrutiny, with a couple of ways it could be exempt.
The first is if the rule has been bargained by the NWSL and the NWSL Players’ Association. Under what is known as the non-statutory labor exemption, when a league and PA agree to terms that govern players’ wages, hours and other working conditions, those terms are exempt from antitrust scrutiny. Moultrie’s attorneys maintain the rule hasn’t been bargained, pointing out that the NWSLPA was “recently recognized” and is negotiating its first CBA. To the extent that portrayal is accurate, the non-statutory labor exemption wouldn’t apply.
NWSL will answer Moultrie’s complaint and potentially offer conflicting facts. If NWSL can establish that the rule was bargained, the rule could remain in effect even in the absence of a current CBA—under labor law, terms of an expired CBA continue so long as management and labor are engaged in food faith bargaining. Even when a provision hasn’t been formally bargained, it can enjoy the exemption. In Maurice Clarett’s 2003 case against the NFL and its eligibility rule (disclosure: I was one of Clarett’s attorneys), the NFL prevailed despite the rule not appearing in the CBA. It was instead referenced in an NFL bylaw (years later, the NFL and NFLPA bargained the rule in their CBA).
The second way a court would identify an exemption is if NWSL qualifies as a single-entity sports league. A single entity is one where the league owns all of the teams and employs all of the personnel. Major League Soccer was formed as a single entity. While defunct, XFL 1.0, XFL 2.0 and the AAF are other examples. They all contrast with traditional leagues, like the NFL or NBA, where the teams are independently owned. (For a more detailed explanation of single entities in sports, please read my article in The Yale Law Journal).
These two contrasting structures carry enormous significance under antitrust law. Teams in a traditional league are competing businesses. Section I of the Sherman Act prohibits competing businesses from conspiring in ways that unreasonably harm competition—including with respect to how businesses set prices, compete for labor and pay labor. The reason traditional leagues (and their teams) can impose salary caps, maximum salaries, professional drafts, disciplinary procedures and drug-testing provisions is those policies are collectively bargained.
A single-entity league need not worry about bargaining rules (unless its workforce unionizes). Teams in a single entity aren’t independently owned businesses and thus aren’t subject to Section I. They are more like departments of the same company (like Xbox Game Studios at Microsoft) or wholly-owned subsidiaries (like Frito-Lay vis-a-vis PepsiCo). A business can’t conspire with itself.
Moultrie claims that, in conversations with NWSL officials, the NWSL has raised the single-entity defense. She disputes the appropriateness of this classification. “Although the League,” her attorneys write in their motion for a preliminary injunction, “has declined to provide basic league or any documents that would confirm the key financial and operational elements of the NWSL, plaintiffs know enough already to know that NWSL and its 10 teams are not a single entity.”
In its forthcoming answer and other filings, NWSL will likely shed light on its organizational structure. In a filing last year by USWNT players who are suing U.S. Soccer under the Equal Pay Act, players’ attorneys emphasized that while USWNT and NWSL often feature the same players, they are separate leagues. “It is undisputed,” the attorneys wrote, “that playing for the NWSL is a separate job from being on USWNT, that not all USWNT players have been employed by NWSL teams, and that it was former [U.S. Soccer] President [Sunil] Gulati and U.S. Soccer—not USWNT players or their union—who came up with the proposal for USSF to subsidize the NWSL . . . .”
Assuming the age restriction is subject to antitrust scrutiny, the next major question is whether it would withstand such scrutiny.
Moultrie would need to prove the rule is unreasonable, and she would have favorable precedent. In the early 1970s, Spencer Haywood was granted a preliminary injunction against the NBA, which had conditioned player eligibility on a player reaching the four-year anniversary of his high school class graduation. Haywood prevailed in showing the rule, which hadn’t been collectively bargained, constituted an illegal group boycott.
Moultrie can also note that other soccer leagues lack an age requirement. Major League Soccer has no minimum age—both Freddy Adu and Gabriel Slonina signed with MLS clubs as 14-year-olds—and same is true for USWNT. Across the globe, professional soccer leagues often eschew inflexible age restrictions for a market-based approach: A player can turn pro when he or she secures an employing team. That approach isn’t uncommon in other industries, be they in the U.S. and abroad. Actors and musicians, for example, are able to “turn pro” when the market says they’re ready.
Moultrie could further note that even when leagues restrict age, some do so with more flexibility. The WTP and the ATP, for example, permit 14-year-olds to play in limited numbers of tournaments. Similarly, the LPGA and PGA use 18-year-old rules but allow for earlier participation if certain requirements are met.
NWSL will offer defenses. It can correctly point out than an 18-year-old age requirement is hardly unusual. The NHL, for example, requires that players be at least 18 years old. Meanwhile, MLB demands that U.S. players be out of high school (earlier for international players). The NBA, WNBA and NFL go further still. The NBA requires that U.S. players be at least 19 plus one year out of high school, while the WNBA doesn’t allow U.S players unless they are at least 22, college grads, or their original class from a four-year college must be set to graduate. The NFL requires players be three years out of high school.
NWSL, which played its first season in 2013, could also contend that, as a newish league, it is more marketable to fans if players are seasoned and mature. It might also claim there are health and safety reasons for players to be a little older. NWSL might further assert that Moultrie could pursue comparable employment opportunities in other countries.
In the days ahead, NWSL will likely file a motion to dismiss Moultrie’s petition for a restraining order and answer her complaint.