On the heels of U.S. District Court Judge Karin Immergut issuing an injunction that permitted 15-year-old Olivia Moultrie to sign with the NWSL’s Portland Thorns in spite of the league’s 18-year-old age eligibility requirement, the league on Friday reached a settlement with Moultrie.
The settlement will permit Moultrie, who as a 13-year-old signed a nine-year endorsement deal with Nike, to continue playing for the Thorns. The settlement stipulates that should the NWSL and the NWSL Players Association agree to a collective bargaining agreement that contains an eligibility standard higher than Moultrie’s age, Moultrie could become ineligible until she is old enough to satisfy that rule.
The settlement is effectively a win for Moultrie and her attorneys at law firm Miller Nash.
She’ll remain eligible to play, and NWSL’s appeal to the U.S. Court of Appeals for the Ninth Circuit will be vacated. Put bluntly, Moultrie got exactly what she wanted: a chance to play professionally in spite of a rule that would deny her that chance. While the NWSL and the NWSLPA are negotiating what would be their first CBA and could potentially decide to exclude Moultrie on account of age, the support Moultrie has received from star players—including a sworn statement from Thorns teammate and USWNT captain Becky Sauerbrunn—suggest the union might not be interested in an 18-year-old age restriction.
Key to Moultrie’s case was the fact that NWSL hadn’t bargained the eligibility rule with the players’ association. Consistent with past cases involving pro basketball and pro hockey players who were barred from leagues on account of being “too young,” Judge Immergut found NWSL’s restriction to constitute an unreasonable restraint on trade. Unilaterally imposed age eligibility rules in sports violate Section 1 of the Sherman Act, which prohibits competing businesses (teams in a league) from joining hands to unreasonably interfere with competition (i.e., teams vying with each other to draft or sign talented young players). A market where the best players can play, regardless of their age, will arguably lead to the best product for fans and consumers.
To the extent leagues wish to forbid access to young players, they need to collectively bargain those restrictions with their respective players’ unions. When courts deem those rules as bargained, case law in one federal circuit (the Second Circuit, which governs New York) indicates the excluded player can’t challenge the rules under antitrust law. In that scenario, the rule is insulated by the labor exemption, which shields from antitrust scrutiny employment rules bargained by unions and management that primarily impact players’ wages, hours and other working conditions.
That is true even though players excluded from a league are not members of the union that agreed to the rule. The case at issue was Clarett v. NFL (disclosure: I was on Clarett’s legal team). As it is from a different federal circuit, Clarett would be persuasive, but non-binding, precedent in any challenge by Moultrie of an eligibility rule negotiated by the NWSL and NWSLPA.
Emily Caron contributed to this story.