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Players union fumbled Clarett case

Upshaw and company should have taken side of player

Image: Clarett
The Supreme Court refused Thursday to let Maurice Clarett into the NFL draft this weekend, delaying for now the 20-year-old’s attempt to be the first player chosen less than three years after completing high school.
Jeff Christensen / Reuters
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COMMENTARY
By Ron Borges
msnbc.com contributor
updated 4:00 p.m. ET April 23, 2004

What happened to Maurice Clarett and Mike Williams this week is why pro football players need to revolt against their own union.

The Supreme Court refused Thursday to let Clarett into the National Football League draft this weekend, delaying for now the 20-year-old’s attempt to be the first player chosen less than three years after completing high school. Because of the ruling Williams -- the USC wide receiver -- also was denied.

If Clarett is looking for someone to blame, he can start with the union that one day will insist it represent him even though it long ago went into partnership with league management.

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Both Clarett and Williams were victimized by a court that ruled in favor of the status quo, saying the NFL's draft rules are OK to exclude anyone who is not three years removed from his high school graduation from entering the draft and hence the league. According to the NFL, the players union signed off on those rules even though they were never collectively bargained.

What the league argued was that in the absence of bargaining one can assume union approval. The court apparently was ready to nod its head on that absurd notion, as well as overturning the lower court decision of Judge Shira Scheindlin. Scheindlin ruled for Clarett, saying the NFL's rules violated both labor law and antitrust law.

The appeals court and Supreme Court disagreed, but nearly everything the NFL does violates antitrust laws. Try to compete against them and you'll find that out, as Clarett and Williams have.

Where this ruling leaves the two young men is without a country. Or at least without a country in which to play their game. They can't return to college football unless their schools successfully petition because the NCAA considers them professionals, even though a court has just said they can't become professionals for at least another year. All of this while several NFL teams were ready to draft Williams among the first dozen players, with Clarett likely to follow no later than the third round.

These are the two players the league says are unfit to play in the NFL because of their tender age. Maybe somebody should have shared that information with the teams ready to draft them.

The appeals court repudiated Scheindlin's thinking earlier this week, however, with one saying, "That's what unions do every day - protect people in the union from those not in the union.''

The only flaw in that thinking is that since the NFL players association is a closed shop and hence represents every player whether he wants to be in their union or not. It "represents'' Clarett and Williams as well because they are clearly qualified workers in the judgment of the men ready to employ them. The only reason they will not become union members Saturday is because of the union's lack of ability -- or desire -- to fight to overturn the draft.

The union has quietly sided with the league on this, as they have on so many worker issues the past few years. It makes you begin to wonder if union head Gene Upshaw realizes he's not working for the NFL anymore. He's supposed to be working for the players.

The union stopped doing that a long time ago, which is why football, while being the most dangerous team sport in the world, has the worst union contract. The union struck a deal that gave the owners a way to restrict salaries and fire veteran players or cut their pay time on a whim. Contrast that to last winter, when Alex Rodriguez agreed to take a small trimming to allow the Texas Rangers to trade him to the Boston Red Sox. The baseball union stepped in and stopped that idea cold.

Contracts are guaranteed in Major League Baseball and the NBA. In the NFL they have what a law school would call an "illusory contract,'' meaning that it only applies to one party. Management has a long-term deal with any player it signs, but the player has what is effectively a series of one-year deals that can be terminated at any time if the team is willing to take whatever salary-cap hit exists.

One thing baseball's union cited as a reason to block the A-Rod trade to the Red Sox was that if they allowed Rodriguez to take a cut, it was just a matter of time before baseball's owners hollered "precedent'' and tried to turn their game into pro football.

If there is a single pro football player who believes his union is doing a better job than the unions in baseball or basketball, he has suffered too many concussions. There is no other polite way to put it.

This week, Clarett and Williams, future members of the NFLPA, were blocked from working for a living while their union sat quietly on the sidelines.

Most of the unions I know, and have long been a member of, spend part of every day trying to sign up new members, not kick them to the curb. They try to expand their rolls and the benefits and income of their members, not agree to cap them. They fight for inclusion, not exclusion.

As many Americans no older than Clarett or Williams were halfway around the world risking their lives to try to bring freedom to a country that has not known it for years, a U.S. court told two kids they didn't have the right to go to work in America at a job they were well-qualified for.

Maybe that doesn't violate antitrust laws or labor laws, but it violates something more than just Clarett and Williams. It violates something very fundamental in America. It violates someone's right to life, liberty and the pursuit of happiness -- if you happen to need to play in the NFL to achieve any of that.

In vacating the lower court order, the 2nd U.S. District Court said the league had shown it could win its argument. The appeals court suggested in strong terms that Scheindlin's opinion was deeply flawed legally and that the draft exclusion rights did not violate either labor law or antitrust law. The ruling also said a stay of the lower-court decision was necessary to safeguard the NFL from harm and to ensure time for a full review.

Harm? What possible harm would it do the NFL to add two good players to its rosters? Threaten their free minor league system known as college football?

The 2nd U.S. District Court and Supreme Court did itself no honor in ruling for the establishment. The NFL did no honor by putting up a roadblock to young players like Clarett.

And what of the union that purports to represent all players, including Clarett? They did nothing to help, which is typical. When they come to collect his union dues when he and Williams eventually get into the NFL, Maurice Clarett should remember that, because while he may have lost a fight over draft eligibility today, there is much else he can fight for when it comes to life in the NFL. The first thing would be his own union.

Ron Borges writes regularly for NBCSports.com and covers the NFL for the Boston Globe.

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