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Age and Sports Age and Sports LawLaw

Presented to: Wisconsin Bar AssociationPresented to: Wisconsin Bar AssociationMadison, WisconsinMadison, Wisconsin

May 3, 2006May 3, 2006byby

Adam Epstein, Esq.Adam Epstein, Esq.Associate Professor, Central Michigan UniversityAssociate Professor, Central Michigan University

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Age Issues in SportsAge Issues in Sports In professional sports, the focus is on the In professional sports, the focus is on the

minimumminimum age to participate or to be drafted in age to participate or to be drafted in the league.the league.

This is a byproduct of the collective bargaining This is a byproduct of the collective bargaining process in the Big Four (NFL, MLB, NBA, process in the Big Four (NFL, MLB, NBA, NHL).NHL).

In high school, however, the focus is on In high school, however, the focus is on maximummaximum age, maximum participation, and no age, maximum participation, and no pass-no play rules (minimum credit).pass-no play rules (minimum credit).

Age as an issue in sports law is gaining Age as an issue in sports law is gaining momentum as part of a national discourse of momentum as part of a national discourse of discussion.discussion.

Looming in the background is the consideration Looming in the background is the consideration of the ADEA in the context of sports law.of the ADEA in the context of sports law.

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Age Issues GenerallyAge Issues Generally

At one time, it was expected that a professional At one time, it was expected that a professional athlete would retire at a certain age-not athlete would retire at a certain age-not anymoreanymore

In April, for example, Julio Franco hit a home In April, for example, Julio Franco hit a home run at age 47 to become the oldest player in run at age 47 to become the oldest player in major league history to hit a home runmajor league history to hit a home run

Players in all professional leagues are playing Players in all professional leagues are playing longer…longer…

Ray Brown (43) NFLRay Brown (43) NFL Chris Chelios (44) NHLChris Chelios (44) NHL John McEnroe (47) TennisJohn McEnroe (47) Tennis

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Minimum Age Concerns Minimum Age Concerns As WellAs Well

Maria Sharapova (tennis)Maria Sharapova (tennis) Sydney Crosby (hockey)Sydney Crosby (hockey) Michelle Wie (golf)Michelle Wie (golf) Lebron James (basketball)Lebron James (basketball) Numerous others…Numerous others…

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Pro Sports ContextPro Sports Context

Maurice Clarett’s (football) unsuccessful Maurice Clarett’s (football) unsuccessful challenges in 2004/2005 to the NFL’s challenges in 2004/2005 to the NFL’s minimum age rule brought age to the minimum age rule brought age to the forefront of national discussion in recent forefront of national discussion in recent years.years.

Still, another consideration for sports law Still, another consideration for sports law practitioners is the Age Discrimination in practitioners is the Age Discrimination in Employment Act of 1967 (ADEA)Employment Act of 1967 (ADEA)

Discussion of Pro Sports and Age follows….Discussion of Pro Sports and Age follows….

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NBANBA League with the most prominent history of League with the most prominent history of

legal issues with regard to early entrants to legal issues with regard to early entrants to the player draft and minimum age concerns.the player draft and minimum age concerns.

Spencer Haywood successfully challenged Spencer Haywood successfully challenged the NBA’s early entry rule which had the NBA’s early entry rule which had mandated that one had to be out of high mandated that one had to be out of high school for four years before being eligible school for four years before being eligible for the draft (Haywood v. Nat’l Basketball for the draft (Haywood v. Nat’l Basketball Assoc., 401 U.S. 1204 (1971).Assoc., 401 U.S. 1204 (1971).

Supreme Court said the NBA rule had Supreme Court said the NBA rule had anticompetitive effects.anticompetitive effects.

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Post-HaywoodPost-Haywood NBA rule thereafter abandoned and Moses NBA rule thereafter abandoned and Moses

Malone drafted in the third round in 1974 Malone drafted in the third round in 1974 right out of high school.right out of high school.

Others making the jump in the 1970s Others making the jump in the 1970s included Darryl Dawkins and Bill Willoughby.included Darryl Dawkins and Bill Willoughby.

Only Shawn Kemp made a successful jump in Only Shawn Kemp made a successful jump in the 1980s.the 1980s.

In the 1990s and through 2005, there was an In the 1990s and through 2005, there was an explosion of 18 and 19 year olds making the explosion of 18 and 19 year olds making the jump causing concern for the NBA (and the jump causing concern for the NBA (and the NCAA), and finally the rule has been changed NCAA), and finally the rule has been changed again (as a matter of collective bargaining).again (as a matter of collective bargaining).

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2005-6 NBA CBA2005-6 NBA CBA Minimum age has been increased from 18 to 19 Minimum age has been increased from 18 to 19

years.years. Also, U.S. players must be one year removed from Also, U.S. players must be one year removed from

high school and 19 by before entering the draft.high school and 19 by before entering the draft. International players must be 19 during the International players must be 19 during the

calendar year of the draft.calendar year of the draft. In the NBDL (the NBA minor league), the league In the NBDL (the NBA minor league), the league

lowered the minimum age requirement to 18 lowered the minimum age requirement to 18 years, effective with the 2006-07 season. Thus, a years, effective with the 2006-07 season. Thus, a player is eligible to be signed to a D-League player is eligible to be signed to a D-League contract if he is or will be at least 18 years old contract if he is or will be at least 18 years old during the calendar year in which the league during the calendar year in which the league draft is held draft is held andand his high school class has his high school class has graduated.. (April, 2006).graduated.. (April, 2006).

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NHLNHL

All players must be 18 by September 15 in All players must be 18 by September 15 in the year in which the draft is held.the year in which the draft is held.

John Tavares was drafted at 14 as an John Tavares was drafted at 14 as an “exceptional player”—the OHL minimum “exceptional player”—the OHL minimum rules are merely age 15.rules are merely age 15.

The now defunct WHA had a minimum The now defunct WHA had a minimum age rule of age 20.age rule of age 20.

Interestingly, OHL (Ontario Hockey Interestingly, OHL (Ontario Hockey League) allows younger players, however. League) allows younger players, however. [Amateur League].[Amateur League].

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NFLNFL Early entry not much of an issue in this league Early entry not much of an issue in this league

historically, but…historically, but… Until 1984, the NFL refused to allow any collegiate Until 1984, the NFL refused to allow any collegiate

player who had any eligibility to enter the draft.player who had any eligibility to enter the draft. NFL had a rule (the Grange Rule) in which no NFL NFL had a rule (the Grange Rule) in which no NFL

team could pursue a player until his college class team could pursue a player until his college class had graduated (i.e., a four-year limit from high had graduated (i.e., a four-year limit from high school).school).

However, NFL did allow exceptions for “hardship” However, NFL did allow exceptions for “hardship” such as 19 year old running back Andy Livingston.such as 19 year old running back Andy Livingston.

NFL also challenged by Clarence Reece of USC in NFL also challenged by Clarence Reece of USC in 1974/1975. Commissioner Rozelle ultimately 1974/1975. Commissioner Rozelle ultimately allowed him to play with the Houston Oilers.allowed him to play with the Houston Oilers.

Four year rule decreased to 3 years in 1990. Not Four year rule decreased to 3 years in 1990. Not much discussion thereafter until Clarett in 2004/5.much discussion thereafter until Clarett in 2004/5.

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USFLUSFL

Defunct spring league, but had a rule Defunct spring league, but had a rule that a player had to be 21.that a player had to be 21.

Robert Boris sued the league claiming a Robert Boris sued the league claiming a violation of federal antitrust laws (Boris violation of federal antitrust laws (Boris v. USFL, 1984 U.S. Dist. LEXIS 19061 v. USFL, 1984 U.S. Dist. LEXIS 19061 (C.D. Cal. 1984).(C.D. Cal. 1984).

He wins, USFL does not appeal, USFL He wins, USFL does not appeal, USFL files bankruptcy, goes out of business.files bankruptcy, goes out of business.

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Maurice ClarettMaurice Clarett So, Maurice Clarett (of Ohio State University) So, Maurice Clarett (of Ohio State University)

alleged that unilaterally imposed minimum age alleged that unilaterally imposed minimum age limits (or even collectively bargained ones) are limits (or even collectively bargained ones) are no good according to antitrust law.no good according to antitrust law.

Wins in federal district court, but loses badly Wins in federal district court, but loses badly on appeal. (Clarett v. Nat’l Football League, on appeal. (Clarett v. Nat’l Football League, 306 F. Supp.2d 379 (S.D.N.Y. 2004), rev’d 369 306 F. Supp.2d 379 (S.D.N.Y. 2004), rev’d 369 F.3d 124 (2d Cir. 2004).F.3d 124 (2d Cir. 2004).

While not a Supreme Court decision, and while While not a Supreme Court decision, and while only 2only 2ndnd Circuit precedent, it noted strong Circuit precedent, it noted strong language that if age minimums reflect the language that if age minimums reflect the collective bargaining process (CBA), then it collective bargaining process (CBA), then it appears to be just fine. appears to be just fine.

Supreme Court refused to hear.Supreme Court refused to hear.

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MLBMLB

Virtually no age issues.Virtually no age issues. Due to large and well-established minor league Due to large and well-established minor league

system.system. Part of baseball culture to begin the Part of baseball culture to begin the

professional pursuit in the minor leagues after professional pursuit in the minor leagues after high school.high school.

However, MLB However, MLB hashas a policy against signing a policy against signing international players before age 16-has caused international players before age 16-has caused a few issues with Cuban born players.a few issues with Cuban born players.

Interesting rule: bat boys/girls must now be at Interesting rule: bat boys/girls must now be at least 14 (Darren Baker Rule).least 14 (Darren Baker Rule).

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Other SportsOther Sports TennisTennis: WTA allows players to compete : WTA allows players to compete

in 15 events between age 17 and 18. in 15 events between age 17 and 18. Men under 14 cannot play on ATP Tour. Men under 14 cannot play on ATP Tour.

Concerns over burnout and family issues Concerns over burnout and family issues (parents).(parents).

GolfGolf: LPGA stands firm that minimum : LPGA stands firm that minimum age is 18, but age 15-18 can petition the age is 18, but age 15-18 can petition the LPGA commissioner for exemption LPGA commissioner for exemption (Morgan Pressel). On the Men’s side, (Morgan Pressel). On the Men’s side, must be 18.must be 18.

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OthersOthers

WNBAWNBA: Must be 22, graduated from : Must be 22, graduated from college, or at least had their college college, or at least had their college class graduate.class graduate.

OlympicsOlympics: Depends on the sport. In : Depends on the sport. In 2005 Japan’s Mao Asada was excluded 2005 Japan’s Mao Asada was excluded from the ISU championships and the from the ISU championships and the Olympics because she turned 15 in Olympics because she turned 15 in September, but according to ISU rules September, but according to ISU rules she had to turn 15 by July 1.she had to turn 15 by July 1.

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Amateur Sports Amateur Sports EnvironmentEnvironment

High SchoolHigh School NCAANCAA Little LeagueLittle League

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High SchoolHigh School

Majority RuleMajority Rule: State athletic associations : State athletic associations which exclude participation from students age which exclude participation from students age 19 (or who turn age 19 by a designated date 19 (or who turn age 19 by a designated date in August, September or October) is in August, September or October) is reasonable. (Michigan, Pennsylvania)reasonable. (Michigan, Pennsylvania)

Minority RuleMinority Rule: Must look at each challenge to : Must look at each challenge to the rule on a case-by-case basis and age 19 the rule on a case-by-case basis and age 19 rule is clearly on thin ice. (Florida, rule is clearly on thin ice. (Florida, Connecticut)Connecticut)

Both must consider the ADA, Sec. 504 of the Both must consider the ADA, Sec. 504 of the Rehabilitation ActRehabilitation Act

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High School, Cont’d.High School, Cont’d.

Consider, too MAXIMUM Consider, too MAXIMUM participation rule (no more than 8 participation rule (no more than 8 semesters of participation or four semesters of participation or four seasons in the sport). Almost always seasons in the sport). Almost always upheld to avoid holding players upheld to avoid holding players back.back.

MINIMUM credit rules (i.e., “no MINIMUM credit rules (i.e., “no pass, no play”) also usually upheld.pass, no play”) also usually upheld.

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NCAANCAA

Does Does notnot have a minimum age rule have a minimum age rule Does have a maximum participation Does have a maximum participation

rule, but not maximum age rule.rule, but not maximum age rule. General rule: 5 years to compete in General rule: 5 years to compete in

4. May ask for hardship waiver.4. May ask for hardship waiver. Exceptions: Military Service; Exceptions: Military Service;

Pregnancy; Church MissionPregnancy; Church Mission

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Little League BaseballLittle League Baseball

Maximum age rule became infamous Maximum age rule became infamous in 2001 when Danny Almonte, star of in 2001 when Danny Almonte, star of Bronx’s Rolando Paulino All-Stars Bronx’s Rolando Paulino All-Stars was 14, not 12-the maximum.was 14, not 12-the maximum.

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ADEA and SportsADEA and Sports

A somewhat forgotten employment A somewhat forgotten employment law in the sports law context.law in the sports law context.

Lying in wait...Lying in wait... Addressed a few times by the courts, Addressed a few times by the courts,

but never by an athlete.but never by an athlete. Almost always a coach v. athletic Almost always a coach v. athletic

director, university, etc.director, university, etc.

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What is the ADEA?What is the ADEA? Age Discrimination in Employment Act Age Discrimination in Employment Act

(1967)(1967) Enacted to promote the ability of older Enacted to promote the ability of older

workers to compete in the marketplace workers to compete in the marketplace for jobs.for jobs.

29 U.S.C. §§ 621-3429 U.S.C. §§ 621-34 Applies to any employer affecting Applies to any employer affecting

commerce with 20 or more commerce with 20 or more employeesemployees and covered individuals (those who meet and covered individuals (those who meet employment qualifications) who are at employment qualifications) who are at least 40 years of age (§ 631)least 40 years of age (§ 631)

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ADEAADEA

Congress adopted the ADEA to Congress adopted the ADEA to “promote employment of older “promote employment of older persons based upon their ability persons based upon their ability rather than age; to prohibit rather than age; to prohibit arbitrary age discrimination in arbitrary age discrimination in employment; to help employers and employment; to help employers and workers find ways of meeting workers find ways of meeting problems arising from the impact of problems arising from the impact of age on employment.”age on employment.”

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ADEAADEA Follows the theme of Title VII of the Civil Follows the theme of Title VII of the Civil

Rights Act of 1964, prohibiting Rights Act of 1964, prohibiting discrimination on the basis of race, color, discrimination on the basis of race, color, religion, sex or national origin. They are religion, sex or national origin. They are quite similar. (Some say the ADEA quite similar. (Some say the ADEA “supplements” Title VII)“supplements” Title VII)

Amendments to ADEA in 1974 extended to Amendments to ADEA in 1974 extended to federal and state employeesfederal and state employees

In 1978, Congress extended the upper age In 1978, Congress extended the upper age class from 65-70class from 65-70

Upper age limit eliminated and no more Upper age limit eliminated and no more “mandatory retirement.” (1986)“mandatory retirement.” (1986)

Enforced by the EEOCEnforced by the EEOC

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Proof of Age Proof of Age DiscriminationDiscrimination

Employee must (for a prima facie case):Employee must (for a prima facie case): 1) Show he/she was a member of the 1) Show he/she was a member of the

protected age group;protected age group; 2) Show his/her performance met the 2) Show his/her performance met the

employer’s legitimate expectation;employer’s legitimate expectation; 3) Show he/she was subject to materially 3) Show he/she was subject to materially

adverse employment action;adverse employment action; 4) Show younger employees were treated 4) Show younger employees were treated

more favorably. more favorably. ((Elgundy v. Commonwealth Edison CoElgundy v. Commonwealth Edison Co., ., 903 F.Supp. 1260 (N.D. Ill. 1995)903 F.Supp. 1260 (N.D. Ill. 1995)

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State Laws and ADEAState Laws and ADEA

The ADEA does NOT preempt state The ADEA does NOT preempt state age discrimination lawsage discrimination laws

States can, then EXPAND the States can, then EXPAND the coverage of the ADEA.coverage of the ADEA.

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How Does the ADEA apply How Does the ADEA apply in the sports context?in the sports context?

AthletesAthletes CoachesCoaches AdministratorsAdministrators Medical Staff (Doctor’s, trainers)Medical Staff (Doctor’s, trainers) Equipment managersEquipment managers Others? (Volunteers)Others? (Volunteers)

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Athletic DepartmentsAthletic Departments Numerous coaches claim violations Numerous coaches claim violations

throughout the United States.throughout the United States. Many cases not reported in the law Many cases not reported in the law

books due to EEOC mediation books due to EEOC mediation settlements.settlements.

However, Notre Dame ordered to pay However, Notre Dame ordered to pay former Assistant Football Coach Joe former Assistant Football Coach Joe Moore more than $170,000 for violation Moore more than $170,000 for violation of the ADEA. Moore in a second…(of the ADEA. Moore in a second…(See Also, See Also, Babyak v. Smith CollegeBabyak v. Smith College, Mass. Super. Ct., No. 99-204, jury , Mass. Super. Ct., No. 99-204, jury

verdict 12/17/01verdict 12/17/01). ).

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Thus, …Thus, …

Athletic directors and Athletic Athletic directors and Athletic Administrators certainly must Administrators certainly must consider age in job hiring and consider age in job hiring and termination and must develop termination and must develop policies to address this federal issue. policies to address this federal issue.

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The Case of Joe MooreThe Case of Joe Moore

Moore v. The University of Notre DameMoore v. The University of Notre Dame, , 968 F. Supp. 1330 (N.D. Ind. 1997) and 968 F. Supp. 1330 (N.D. Ind. 1997) and 22 F. Supp.2d 896 (N.D. Ind. 1998)22 F. Supp.2d 896 (N.D. Ind. 1998)

Assistant Football Coach fired after he Assistant Football Coach fired after he brought an action against UND under the brought an action against UND under the ADEA.ADEA.

Also sued UND, Bob Davie (Head Coach), Also sued UND, Bob Davie (Head Coach), and “The Blue and Gold” for defamation, and “The Blue and Gold” for defamation, saying that Moore could only coach a few saying that Moore could only coach a few more years due to his age.more years due to his age.

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Moore…Moore…

Trial on July 9, 1998Trial on July 9, 1998 July 15, 1998 jury awards Moore back July 15, 1998 jury awards Moore back

pay of $42,935.28, liquidated damages pay of $42,935.28, liquidated damages of $42, 93.25 because they determined of $42, 93.25 because they determined that ND was willful in its effortsthat ND was willful in its efforts

After the trial, Moore made post-trial After the trial, Moore made post-trial motions asking for a reinstatement or motions asking for a reinstatement or to award five year’s front pay instead. to award five year’s front pay instead. ND objectedND objected

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MooreMoore

Court says, “although reinstatement is the Court says, “although reinstatement is the preferred remedy in a discrimination case, preferred remedy in a discrimination case, it is not always appropriate.” it is not always appropriate.”

During trial Moore and Davie made it During trial Moore and Davie made it apparent that they could not work with apparent that they could not work with each other anymore.each other anymore.

Moore’s 1996-1997 salary was $79,552.08Moore’s 1996-1997 salary was $79,552.08 Court awards $75,577.68 in front pay Court awards $75,577.68 in front pay

(based upon his new jobs salaries, minus (based upon his new jobs salaries, minus what he would have made at Notre Dame).what he would have made at Notre Dame).

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Significant Non-Sports Law Significant Non-Sports Law CasesCases

1. Griggs v. Duke Power Co. (1971)1. Griggs v. Duke Power Co. (1971) 2. McDonnell Douglas Corp. v. Green 2. McDonnell Douglas Corp. v. Green

(1973)(1973) 3. Hazen Paper Co. v. Biggins (1993)3. Hazen Paper Co. v. Biggins (1993) 4. O’Connor v. Consolidated Coin 4. O’Connor v. Consolidated Coin

Caterers Corp. (1996)Caterers Corp. (1996) 5. General Dynamics Land Systems, inc. 5. General Dynamics Land Systems, inc.

v. Cline (2004)v. Cline (2004) 6. Smith v. City of Jackson (2004)6. Smith v. City of Jackson (2004)

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Significant Sports Law Significant Sports Law CasesCases

1. Moore v. The University of Notre Dame 1. Moore v. The University of Notre Dame (1997)(1997)

2. Dreith v. National Football League 2. Dreith v. National Football League (1991)(1991)

3. Street v. North Carolina State University 3. Street v. North Carolina State University (1999)(1999)

4. Beery v. Univ. of Oklahoma Bd. of 4. Beery v. Univ. of Oklahoma Bd. of Regents (2000)Regents (2000)

5. Peterson v. National Football League 5. Peterson v. National Football League (1999)(1999)

6. Shreve v. Cornell University (1988)6. Shreve v. Cornell University (1988)

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ADEA DefensesADEA Defenses

1. Bona Fide Occupational 1. Bona Fide Occupational QualificationQualification

2. Reduction in Force2. Reduction in Force 3. Seniority Systems3. Seniority Systems 4. Business Necessity Defense4. Business Necessity Defense

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ADEA Additional ADEA Additional ConsiderationsConsiderations

Law EnforcementLaw Enforcement Aircraft PilotsAircraft Pilots ProfessorsProfessors

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ADEA and the FutureADEA and the Future

ADEA ultimately uncharted territory in the ADEA ultimately uncharted territory in the contexts of sports and employed athletes who contexts of sports and employed athletes who are terminated.are terminated.

What about Golf? Tennis? Swimming? What about Golf? Tennis? Swimming? Triathlon? Skiing, Skating….Sponsorship Triathlon? Skiing, Skating….Sponsorship contracts?contracts?

Remember there must be “employment,” not Remember there must be “employment,” not merely independent contractor status.merely independent contractor status.

Great consideration should be given to writing Great consideration should be given to writing performance reviews (avoid ageism) and performance reviews (avoid ageism) and proper wording of job applicationsproper wording of job applications

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In the End…In the End…

As professional athletes (or employed As professional athletes (or employed athletes) continue to age and remain athletes) continue to age and remain employed for their athletic prowess, will employed for their athletic prowess, will claims be made under the ADEA by claims be made under the ADEA by athletes in addition to coaches? athletes in addition to coaches?

Would such claims be legitimate if there Would such claims be legitimate if there is a subjective standard of athletic is a subjective standard of athletic performance?performance?

Recall, student-athletes are not Recall, student-athletes are not employees.employees.

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Further…Further…

Law is not entirely yet clear in this Law is not entirely yet clear in this area, but if a collective bargaining area, but if a collective bargaining agreement exists, it will likely control agreement exists, it will likely control based upon Clarett and others.based upon Clarett and others.

Not all professional sports have CBA’s Not all professional sports have CBA’s however (NASCAR, for example).however (NASCAR, for example).

Virtually no case law involving athletes Virtually no case law involving athletes themselves and the ADEA.themselves and the ADEA.

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Thank YouThank You

Special thanks to those 40 and older…Special thanks to those 40 and older…