As amateur athletes a few years older than her prepare to sign endorsement and social media influencing contracts once the NCAA’s name, image and likeness rules commence at midnight, 15-year-old Olivia Moultrie has officially joined the National Women’s Soccer League as a pro player.
Moultrie, who in April filed a federal antitrust lawsuit against the NWSL and its 18-year-old age requirement, signed with the Portland Thorns on Wednesday. She had already been practicing and scrimmaging with the team. Her teammates have been impressed. In a sworn statement, Thorns teammate and USWNT captain Becky Sauerbrunn warned that denying Moultrie a chance would “impede her career.”
Moultrie is far ahead of college players and their possible NIL opportunities. As a 13-year-old in 2019, she signed a nine-year endorsement deal with Nike. By the time Moultrie, born in Utah and raised in California, gets to college age she will have already been a seasoned pro.
“This is a dream come true,” Moultrie expressed in a statement released by her law firm, Miller Nash. “I can’t wait to officially join my Thorns teammates in competition.”
Thus far, Moultrie’s attorneys have succeeded in persuading U.S. District Court Judge Karin Immergut that the 18-year-old rule is a violation of Section I of the Sherman Act. This is this same antitrust law that was central to the U.S. Supreme Court’s unanimous opinion in NCAA v. Alston. There it led the court to find that the NCAA and member schools, which are competing businesses, had unlawfully conspired to restrain college athletes’ education-related benefits. Here, the conspirators are NWSL franchises. They are separately owned teams. Through the NWSL, these teams joined to restrain the market for athletes with the age rule.
Moultrie’s case is distinguishable from another age-related legal tangle, Ohio State running back Maurice Clarett’s antitrust case against the NFL in the early- to mid-2000s (disclosure: I was on Clarett’s legal team). In Clarett, although the NFL lost at the district court level, the league persuaded the U.S. Court of Appeals for the Second Circuit that its eligibility rule, which requires that players be three years out of high school, had been collectively bargained with the NFLPA. A collectively bargained eligibility rule is considered exempt from antitrust scrutiny, at least in the Second Circuit. NWSL’s rule wasn’t borne through collective bargaining, so NWSL can’t persuasively argue for an exemption on that ground.
Last month, Judge Immergut awarded Moultrie a temporary restraining order, thereby making her free to sign with an NWSL franchise. The judge stressed that the age restriction “excludes female competitors from the only available professional soccer opportunity in the United States because they are under 18, regardless of talent, maturity, strength, and ability.” Put briefly, the age rule allows for a boycott against talented players.
Judge Immergut’s ruling was consistent with other successful challenges to age eligibility rules that had been unilaterally imposed by leagues. They include Spencer Haywood’s case against the NBA (eligibility upon player reaching four-year anniversary of his high school graduation) and Ken Linseman’s case against the World Hockey Association (20-year-old eligibility rule).
The litigation will continue, but for now, Moultrie is a pro.