Tremendous upside potential: how a high-school basketball player might challenge the National Basketball Association's eligibility requirements.

• Author: Litman, Joseph A.

INTRODUCTION

In 1995, the Minnesota Timberwolves, a franchise in the National Basketball Association (NBA, or "the League"), selected Kevin Garnett with the fifth pick of the NBA Draft. (1) Garnett was a prodigious basketball player who had just graduated from high school. (2) Still playing in the NBA today, Garnett has won the Most Valuable Player award and the Defensive Player of the Year award, and he has been selected for the NBA All-Star Game thirteen times. (3) Garnett has appeared on one of the All-NBA teams nine times, a yearly honor bestowed upon the best fifteen players in the League by journalists who cover the NBA. (4) He also has won an NBA championship (5) and is all but assured of enshrinement in the Basketball Hall of Fame when he retires. (6)

Garnett is one of several current players who entered the NBA straight from high school, eschewing the traditional path of enrolling in college, developing stronger basketball skills as an amateur, and then seeking to join the League. (7) Though just a plurality, this group counts several prominent stars among its members, and entering the NBA immediately following high-school graduation is no longer a curiosity. (8) Many NBA players who entered the League immediately following high school have earned the highest honors and ascended to preeminence. (9) For example, Kobe Bryant and LeBron James, NBA icons, have both won the Most Valuable Player award. (10) Last season, James, Bryant, and another star who came straight from high school, Dwight Howard, were three of the five players selected for the All-NBA First Team. (11) Using these metrics, commonly regarded as the currency required for basketball immortality, (12) so-called "prep-to-pros" players have demonstrated that they not only can compete in the NBA, but also that they can stand among the best players in the League. (13)

A preternaturally gifted high-school basketball player no longer can plan to follow this career model, though. Adopted in advance of the 2006 NBA Draft, the NBA implemented new eligibility rules in 2005. (14) These rules, commonly known as the "age requirement," stipulate that no player is eligible to participate in the League unless he will be nineteen years old during the calendar year of the draft and at least one NBA season will have been completed since his high-school class graduated. (15)

Upon enactment, the NBA's age limitation joined the age requirement of the National Football League (NFL) as one of the only two rules of this kind among American professional sports leagues. (16) No other American sport so severely restricts who can participate and when they are eligible to do so. (17) For the NBA, the newest age rules were merely the latest iteration of an ongoing effort to closely regulate how players enter the League. (18)

Since its adoption in 2005, the NBA's age requirement has created controversy among seemingly all of the League's most notable constituencies--current players, aspiring players, team management, college coaches, fans. (19) An expansive discussion of its efficacy remains ongoing. (20) The inextricable links among the social, educational, and commercial elements implicated by the policy, along with the fervor connected to these subjects, have sustained the intense scrutiny focused on an age restriction. (21) The issue retains particular salience because high-school basketball players who do not wish to attend college are now regularly introducing novel solutions to the problem created for them by the rule. (22)

Remaining unresolved amid this impassioned dialogue is an important legal question that this Note will address: could a prospective prep-to-pros player find the legal footing required to challenge the rule successfully? This Note will attempt to answer that question by ultimately arguing that a player could mount a winning legal argument against the NBA's age requirement.

In Part I, this Note will briefly explain the history of the NBA's age rules and general attempts to regulate player eligibility. In Part II, the Note will chronicle previous attempts to challenge various eligibility requirements of the NBA and the partially analogous NFL by relying upon antitrust law. Highlighting the pertinent cases from the NBA and NFL arenas will provide a useful summary of the general legal doctrine governing this niche. Part III of the Note will examine the legal consensus regarding the likelihood of a successful challenge that has emerged since the NBA implemented its latest age requirement. This portion also will take up important questions of whether the litigation process would be so protracted that the petitioner would lose his standing, and why no one has yet sought to challenge the NBA if a legal remedy is available. Finally, Part IV of the Note will propose the avenue along which a prospective NBA draftee might likely pursue a successful contest.

1. A BRIEF HISTORY OF THE NBA DRAFT AND LEAGUE ELIGIBILITY RULES

   Over the years, the NBA has relied upon a number of methods (23) to regulate how amateurs join the League. (24) In its early years, the Draft was protracted--teams would select tens of college players at a time, with selection order loosely determined by regular-season record. (25) Seeking to grow its sport's popularity during the League's formative stages, the NBA also allowed for territorial picks from 1947 (26) through 1965. (27) To make a territorial pick was to exchange a first-round draft choice for a player from an NBA team's "immediate area." (28) The NBA viewed this territoriality system as a means for cultivating a fan base by allowing member teams to populate their respective rosters with college players already prominent in their respective markets. (29)

   In 1966, the League revised its system, shifting its emphasis from regional-driven commercial growth to greater competition. (30) Hoping to foster some modicum of parity, the NBA abolished territorial picks, distributed the first two picks in the Draft by asking the last-place finishers in each of the two League conferences to flip a coin, (31) and allocated one pick per round to the remaining teams, which picked in an order inverse to their records. (32)

   A peril of the coin-flip system was that it provided an incentive for bad teams to lose as many games as possible with the hope of securing, at worst, the second pick in the Draft. (33) To eradicate this practice and the attendant perception that the integrity of the competition was compromised, (34) the NBA Draft switched to a lottery system before the 1985 Draft. (35) In this lottery system, all seven of the NBA teams that did not qualify for the playoffs were given an equal chance to secure the first pick of the Draft and have access to the best amateur talent. (36) The NBA has reimagined the lottery system in several subsequent iterations as the League has continued to refine the manner through which it can systematically promote equal competition. (37) A constant amid this change, though, has been the Draft's primacy as the threshold that the best players must cross in order to join the NBA. (38)

   A series of collective bargaining agreements consummated among the NBA and the National Basketball Players Association (NBPA) since 1964 has preserved the Draft as the exclusive mechanism upon which an amateur of any real value must rely for entrance. (39) An illustrative example is Article X of the current collective bargaining agreement (CBA), which clearly articulates that "no player may sign a Contract or play in the NBA" unless he has been Draft eligible. (40) Teams are free to sign undrafted players to contracts; however, these players enjoy little bargaining leverage because they are only available after having initially been judged to be inferior and unworthy of a draft pick. (41)

   Draft eligibility, like the Draft itself, has changed over the years. (42) In accordance with the NBA's initial scheme for fan-base development, the first CBAs stipulated that no player was eligible for the NBA Draft until his college class graduated. (43) The Supreme Court suspended this rule, pursuant to an antitrust challenge, in 1971. (44) From 1971-2005, high-school graduates were immediately eligible for the Draft. (45) Then, the 2005 CBA implemented the latest age requirement. (46) As noted above, current American players (47) are only draft eligible if they will turn nineteen during the calendar year of the Draft and if one year has elapsed since their high-school class's graduation. (48) Irrespective of their competency or preparation, the most-talented amateur basketball players--those like Garnett, Bryant, and James--seeking to maximize their ability and earning potential must play by the NBA's Draft rules. (49)

   NBA Commissioner David Stern was the most prominent advocate for the current age restrictions. (50) When the latest eligibility regime was put in place, Stern argued that an age minimum helped to protect impressionable high-school talents from player agents and other third parties who may generally seek to exploit athletes for their own gain. (51) Stern said that a year, or more, in college would help basketball players develop stronger skills on and off the court. (52) Furthermore, he professed that the NBA was concerned with how it was viewed by fans who wanted players who could engage their local communities and comport themselves in a mature, responsible fashion that reflected positively upon the League. (53)

   Criticism of the NBA's latest age requirement has been wide ranging. (54) Under the auspices of protecting lesser high-school talents from a misguided decision to forgo college, the rule appears to wholly neglect the countervailing experiences of Garnett, Howard, and other prep-to-pros NBA players who have thrived. (55) Far from an altruistic gesture, the minimum one-year eligibility interregnum appears to force college education upon a population that may not otherwise choose to pursue that path. (56)...