New NBA Commissioner Adam Silver Begins Push To Raise Age Requirement

Within hours of becoming the new NBA commissioner, Adam Silver made it clear that raising the age requirement to enter the NBA draft would be a key piece of his agenda.  Currently, the league requires that players be at least 19 years old to join.  Silver argues that raising the age requirement to 20 would deliver more mature players that are easier to evaluate, resulting in a more competitive league.  Silver has many prominent supporters, but his unexpected push has revived an age-old debate.

Given that the NBA has a monopoly in professional basketball, antitrust law would apply to any proposed age restrictions.  In 1971, the leagues requirement that players had to be four years removed from high school to enter the league was challenged and struck down as a “restraint on trade” and violation of antitrust law.

How then, did the NBA’s present-day age restriction of 19 come about?  The league cleverly qualified for an exemption to the antitrust law by obtaining the age restriction through a collective bargaining agreement with the NBA players union.  This “non-statutory labor exemption” trumps applicable antitrust law.  Thus, the only way Silver could obtain his new age requirement is via collective-bargaining with the union once again.

The players union opposes raising the age requirement, primarily because as a labor union they legally owe a “duty of fair representation” to all future players.  For those prospective players, an increased age limit would mean a vastly reduced market for their labor, lower career earning potential, and higher risk of career-ending injury prior to securing a contract.  The law here is unsettled, and the unions legitimate concern is that they will be sued for violating their duty of representation by the next prospective superstar that is NBA-ready but under 20 years old.

Given the union’s concerns, the most likely outcome is that Silver will be unable to raise the age requirement until the next major collective bargaining agreement in 2016.  If at that time the NBA is prepared to make significant concessions, such as in revenue sharing or player pensions, an increased age restriction may indeed happen.

NFL Lawsuit Off To Mediation

The Honorable Anita B. Brody of the District Court for the Eastern District of Pennsylvania announced Monday that the National Football League and the approximate 4,000 individuals suing the League must go to mediation.  Former NFL players who suffered or fear permanent brain damage due to football-related concussions are suing the League for negligence and claim that the League concealed information.  According to one reporter, the Judge’s “decision to move the case to mediation likely signals a belief that a settlement is possible with continued negotiations.” also puts faith in the mediator, Layn Phillips, who used to be a federal judge in Oklahoma.

Back in August, the NFL filed a motion to dismiss with Judge Brody, claiming that the collective bargaining agreement covers safety and health rules and that it is up to each individual team to determine whether a player is fit to return to the field.

At the end of the day, since mediation is non-binding, Phillips may propose a settlement or conclude that a settlement is not feasible and therefore must return to Judge Brody.  If the latter is the case, then she will rule on the NFL’s motion.

The Forum and Alumni Mentioned in Fordham Lawyer

Spring edition of Fordham Lawyer published a lengthy article on some of Fordham Law’s prestigious alumni who are currently working in sports law.  This article, For the Love of the Game, page 22, highlights alumni John Mara ’79, Executive Vice President and Chief Operating Officer of the New York Giants, Timothy Brosnan ’84, Executive Vice President of Business for Major League Baseball and President/CEO of Major League Baseball Enterprises, Dave Howard ’85, previous Executive Vice President of Business Operations for the New York Mets and current President of MSG Sports, along with others.  Page 27 also highlights the Fordham Sports Law Forum with interviews of the 2012-2013 Co-Presidents Seth Fiur and Daniel Lust.