| Cite as: 3 NW J. L. & Soc. Pol'y 1 at http://www.law.northwestern.edu/journals/njlsp/v3/n1/1 | NJLSP Home > Volume 3 > Issue 1 (Winter 2008) |
¶ 1 During the 2006-07 college basketball season, two young centers dominated their respective competition.1 At Ohio State University, Greg Oden, a 7'0", 257-pound freshman, born January 22, 1988, burst onto the scene, averaging 15.5 points and 9.7 rebounds per game.2 After leading Ohio State University to the national championship game, Oden declared himself eligible for the National Basketball Association (NBA) draft.3 Oden was selected with the first pick overall by the Portland Trailblazers and signed a contract worth $3.885 million in 2007-08 and $4.176 million in 2008-09.4 Oden also signed endorsement contracts with the Nike and Topps companies, worth an estimated minimum of $10 million per year.5
¶ 2 Meanwhile, at Oklahoma University, Courtney Paris, a 6'4", 250-pound sophomore, born September 21, 1987, also burst onto the basketball scene, averaging an even more dominant 23.6 points and 16.2 rebounds per game.6 After leading Oklahoma University into the women's National Collegiate Athletic Association (NCAA) tournament, Paris probably would have desired the option to have declared herself eligible for the Women's National Basketball Association (WNBA) draft, much as Oden did for the NBA draft.7 However, even though Paris was both older and more formally educated than Oden, Paris was prevented from declaring herself for the draft by the WNBA age/education policy, which requires all prospective women's basketball players to wait four years after high school graduation before turning professional.8 As a result, Paris was left with just two feasible options: stay at Oklahoma University for two more years and graduate, while earning no immediate income, or take the WNBA to court over its age/education policy. Ultimately, she decided to remain in school.
¶ 3 Based on the two drastically different sets of circumstances that existed for Oden and Paris as a result of their respective genders, it is clear that the legal and ethical impact of age/education policies in professional sports, although often portrayed as a men's issue, has an equally great impact upon the rights, behaviors, and responsibilities of female athletes. In fact, the WNBA age/education policy is the only policy in any established professional sports league that precludes a potential class of players from entering the professional leagues until their expected dates of college graduation.9
¶ 4 The WNBA's strict age/education policy therefore invokes substantial debate about both its legality and ethicality, not only from a traditional antitrust perspective, but also based on issues related to gender equity.10 Indeed, that male basketball players are allowed to enter the NBA only one year after graduating from high school, whereas female basketball players have to wait four years before entering the WNBA, highlights the extreme differences in bargaining power between American male and female athletes.
¶ 5 This article discusses the WNBA age/education policy from a legal, cultural, and ethical perspective. Part One of this article discusses the women's basketball landscape in terms of sociology, race, and gender. Part Two discusses the history of women's basketball in America, as well as the history of the WNBA and its age/education policy. Part Three explains the legal issues that underlie an antitrust challenge to the WNBA age/education policy under Section 1 of the Sherman Act. Part Four discusses the likely effect on society if the courts were to overturn the WNBA age/education policy.
¶ 6 The limited opportunity for women to perform as professional athletes in a male dominated culture is well documented in terms of the resources devoted to, popularity of, and historical discrimination against women's athletics.11 Until recently, professional athletics were primarily for men.12 With the late integration of women into professional sports, the role of the female athlete has developed differently. Organizations such as the NCAA have played a major role in promoting the ideology of the well-rounded, traditionally educated female athlete.13 This ideology contrasts somewhat with the notion of the ruggedly individualistic male athlete.
¶ 7 The relationship between women in sports and their impact on young girls indicates that image is everything.14 Since the emergence of women's collegiate and professional sports, young girls have begun to participate in athletics at all-time high rates.15 While Title IX has been a major factor in cultivating women's athletics over the last thirty years, the age/education policy of the WNBA may contribute to a whole new culture of scholarly women that happen to play basketball.16 For instance, female student-athletes graduate from college at a higher rate than any other student in American higher education.17
¶ 8 Indeed, women in sports are often the best examples of this synergy between academic and athletic excellence.18 Specifically with women's basketball, Candace Parker of the Tennessee Volunteers is presently one of the high profile superstars in collegiate athletics, and she is a scholar-athlete as well.19 Parker is recognized as a VolScholar, which is the University of Tennessee's adapted version of the national program Scholar-Baller™.20 The fact that Parker is a woman of color (African-American) also exemplifies the growth of opportunities that African-American women now enjoy in college as scholars and athletes. These opportunities have come with struggles, especially for African-American women that experience challenges of both gender and racial discrimination.21
¶ 9 Nevertheless, there is also another side to the synergy between academics and athletics. The WNBA rule inequitably requires prospective women's professional basketball players to first offer their services for four years to a college basketball program, even while their male counterparts are allowed to earn money playing basketball on the professional level.22 Moreover, one notion of this policy is that talented female athletes must delay their personal gratification and first achieve academic pursuits prescribed to them by society and the corporate sport structure. This reinforces an old and dangerous stereotype of women as being necessarily philanthropic creatures (i.e. caring, passive, and non-aggressive). Conversely, men are allowed to be individualistic.23 This clash between the educational ideals of female student-athletes and the merits of personal autonomy complicate evaluating the ethics underlying the WNBA age/education policy.
¶ 10 Founded in 1996, the WNBA consists of fourteen teams, is more mature in terms of age than the NBA, and has an ethnic makeup of approximately sixty percent African-American and forty percent Caucasian players.24 Based on WNBA statistics, over ninety percent of the players have earned a bachelor's degree from a four-year institution and twenty percent have earned graduate degrees. This culture of education, which in essence requires WNBA players to earn college degrees, is in stark contrast to the WNBA players' peers in the NBA, National Football League (NFL), Major League Baseball (MLB), and the National Hockey League (NHL).
¶ 11 In its early years, American women's professional basketball was filled with various short-lived ventures. After generations of men's professional basketball leagues operating without a female counterpart, two women's professional basketball leagues burst onto the scene in the late 1970s: the Ladies Professional Basketball Association (LPBA) and the Women's Professional Basketball League (WBL).25 Both leagues were defunct by 1981.26
¶ 12 Both the LPBA and the WBL struggled from the very beginning because of their high salaries, low sponsorship revenues, and team owners without significant investment income.27 Unlike the NBA, neither female professional basketball league had the benefit of a television contract.28 Without regular television revenues, neither league was able to turn a profit.29
¶ 13 By 1981, both the LPBA and WBL had folded, leaving the United States without professional women's basketball.30 In fact, women's basketball did not return to America for nine years. On March 15, 1990, the Women's Sports Association Professional Basketball League (WSAPBL) presented itself as the first of several small, regional women's basketball leagues to emerge in America.31 The WSAPBL attempted to control expenses by limiting its host cities to the greater California area.32 After some initial success, other regional women's leagues followed, such as the Women's World Basketball Association (WWBA) in the Midwest,33 and the Liberty Basketball Association (LBA) on the East Coast.34
¶ 14 Like many small, startup, professional sports leagues, the new, regional women's leagues attempted to draw fan interest by tinkering with the game's traditional rules. For example, the LBA lowered the basket by one foot so women could more easily slam-dunk.35 Despite such ingenuity, the LBA disbanded within one season due to a recession.36 The other regional women's basketball leagues also ceased to exist soon thereafter.
¶ 15 With the failure of regional, women's basketball leagues, sports entrepreneurs in the 1990s decided to re-launch a national women's professional basketball league. As early as the Summer Olympics in 1992, NBA Commissioner David Stern began to consider the possibility of the NBA funding a national, upstart women's basketball league.37 Even before Stern could propose a business plan, however, California entrepreneur Steve Hams and eleven other investors announced the formation of their own women's basketball league: the American Basketball League (ABL).38
¶ 16 Initially an eight-team league, the ABL business plan included teams playing a forty-game season between the months of October and February, overlapping with the first half of the NBA season.39 The original host cities included Atlanta, Columbus, Denver, Hartford/Springfield, Portland, Richmond, Seattle, and San Jose, where the league headquarters was located.40 According to this business plan, all ABL teams at least initially would be owned and operated by the ABL as a single entity, and the league would only draft players that had graduated from college.41
¶ 17 In November 1995, Hams announced that the ABL had signed nine of the eleven players on the women's United States Olympic team, each to two-year professional contracts with non-compete clauses—a move intended to fortify the league's position as the premier home of women's professional basketball.42 According to Hams, the league planned to pay each of the U.S. Olympic team players $125,000 a year, maintain a league average salary of $70,000 a year, and institute a league minimum salary of $40,000—all decisions intended to thwart the emergence of a competitor league.43 Additionally, the ABL secured sponsorship agreements with four major companies: Reebok, First USA Bank, Lady Foot Locker, and basketball manufacturer Baden.44
¶ 18 Yet, despite Hams's best efforts to make the ABL the exclusive women's basketball league, on April 24, 1996—almost seven months before the first ABL game—the NBA announced that it, too, was launching a women's professional basketball league (the WNBA), which would begin play in the summer of 1997.45
¶ 19 Unlike the ABL, the WNBA planned to compete during a ten-week season in the summer, which did not overlap with the NBA season.46 Also, the WNBA model enjoyed the immediate advantage of being backed by the NBA—a well-fortified American business with powerful management.47 On June 28, 1996—a full year before the first WNBA season was to begin—the WNBA entered into a five-year prime-time television contract with the National Broadcasting Company (NBC).48 In addition, before playing a single game, the WNBA entered into substantial television pacts with ESPN and the Lifetime Network.49 Meanwhile, ABL television coverage was limited to just twelve Sunday night games on SportsChannel.50
¶ 20 The ABL was the first league to begin play, and the early results were positive. In one league-opening game, 5,513 fans witnessed the Colorado Xplosion defeat the Seattle Reign.51 That same night, 8,767 fans packed the Hartford Civic Center to see the New England Blizzard defeat the Richmond Rage.52 Throughout the inaugural season, one of the brightest ABL stars was Jackie Joyner-Kersee, the beloved American 1988 Olympic champion in the horizontal jump.53 Even though 1996 Olympic basketball standouts Sheryl Swoopes and Rebecca Lobo ultimately rejected the ABL,54 the ABL still hosted most of the 1996 women's basketball Olympians.55 In the inaugural ABL championships, Valerie Still, a thirty-five-year-old who just four years earlier had been teaching high school, finished the game with 14 points and 13 rebounds to lead the Columbus Quest to a 77-64 victory over the Virginia Rage before a sellout crowd of 6,313.56
¶ 21 The WNBA meanwhile opened its inaugural season on June 21, 1997, with the fanfare of an NBA marketing blitz. The league placed teams in New York, Charlotte, Cleveland, Houston, Los Angeles, Phoenix, Sacramento, and Salt Lake City.57 Former NBA Vice President Val Ackerman was promoted to the position of the league's first commissioner.58 Nike, Coca-Cola, and American Express all signed on as premier league sponsors.59 In the WNBA model, player salaries were kept below the average ABL salary rate, and the WNBA initially implemented a league-wide salary cap on all players' contracts at $50,000.60
¶ 22 With heavy fanfare, 14,284 spectators turned out to the Los Angeles Forum to watch the first WNBA game between the Los Angeles Sparks and the New York Liberty.61 The WNBA also enjoyed opening crowds of 11,455 in Cleveland and 8,915 in Salt Lake City.62 By season's end, the wildly televised and marketed WNBA drastically exceeded all expectations in fan interest, attracting nearly 9,000 fans per game.63 From the abyss emerged the Houston Comets's Cynthia Cooper as the league's top-performing player, averaging a league-best 22.2 points per game.64 The Houston Comets won the league's first championship, 65-51 over the Liberty,65 and at least in the beginning, it seemed that two professional basketball leagues could co-exist in America: the traditional ABL in the winter, and the hyped, dynamic WNBA in the summer.
¶ 23 The two-league women's basketball format in America, which appeared so promising in 1997, however, was not to be. The WNBA had no interest in cooperating with the ABL, and after a few years of fierce competition between the ABL and the WNBA, the deeper-pocketed WBNA emerged as the sole survivor.66 The first sign of conflict between the ABL and the WNBA was in September 1997, when the ABL's Most Valuable Player, Nikki McCray, jumped ship to the WNBA.67 Although McCray accepted a pay cut from $150,000 in the ABL to $50,000 in the WNBA (the league maximum), McCray felt that playing in the WNBA would be more profitable in the long run because of the WNBA's premier exposure.68
¶ 24 Without national broadcast television, the ABL tried to boost its presence by proposing various joint marketing initiatives with the WNBA, including a proposal for an inter-league, all-star game.69 However, the WNBA rejected all ABL overtures, instead opting to compete directly against the ABL for the women's basketball market.70 As a result, the ABL was placed in the undesirable position of needing to offer players significantly higher salaries to prevent them from defecting to their more prominent competitor.71
¶ 25 Even as the ABL attendance totals increased twenty percent in its second year and the league announced expansion plans into new cities such as Chicago,72 the ABL was heading into a "no win" situation.73 Spring 1998 was especially telling for the ABL, as seven of the eight collegiate All-American women's basketball players signed with the WNBA.74 In an interview with the San Francisco Examiner, Gary Cavelli, CEO and co-founder of the ABL acknowledged, "I think we won Rounds 1 and 2, and they're winning the third round. We're definitely behind at this point."75
¶ 26 While WNBA attendance climbed above 10,000 fans-per-game in its second season and ownership moved toward expanding the league,76 the ABL spent its 1998 summer dissolving its failed Long Beach, California franchise and trying to cope with superstar Dawn Staley's defection to the WNBA.77 The ABL did catch one huge break in the 1998-99 season, as the NBA players went on strike for the first half of their season and national broadcast television temporarily picked up ABL games as replacement programming.78 Nevertheless, once the NBA players returned to action, ABL broadcasts ceased, and on Tuesday, December 22, 1998, the ABL folded and filed for bankruptcy.79
¶ 27 Once the WNBA became the only women's game in town, the league began to pursue an expansion strategy, but it was never able to significantly increase its fan base. After averaging an all-time high of 10,869 fans per game in the 1998 season, WNBA attendance began to decline steadily, falling below an average of 10,000 fans per game for the first time in 2000, and then falling below the 9,000 mark in 2003.80 By 2006, WNBA average per-game attendance fell all the way to 7,490 fans per game.81
¶ 28 With WNBA attendance and revenues declining, players began to take steps to protect their interests in a declining pie. On November 6, 1998, shortly before the ABL filed for bankruptcy, the WNBA women's basketball players made the first step to change their labor relationship with the WNBA by forming the Women's National Basketball Players Association (WNBPA)—the first labor union ever comprised entirely of professional female athletes.82 Shortly thereafter, on April 30, 1999, the WNBPA ratified its first league collective bargaining agreement (CBA) with the union.83 According to the WNBPA website: "The inaugural CBA encompassed significant advances for WNBA players, and represents for all women, an important step toward pay equity and general equality."84 The CBA established a near seventy-five percent minimum salary increase for WNBA rookies and a one hundred percent minimum salary increase for WNBA veterans beyond the minimums that the WNBA had previously unilaterally imposed.85 The CBA also provided "year-round health coverage, a retirement plan, guaranteed contracts and a collective share of licensing income."86 Yet, as compared to the status obtained in collective bargaining by men's professional sports unions, the WNBPA was relatively powerless. The WNBPA was unable to bargain as aggressively as most men's sports unions because the WNBA teams regularly threatened to either shut down the league or lock out the players if the WNBPA did not agree to certain terms proposed by the league.87 With the maximum WNBA player salary at the time standing at just $50,000, most WNBA players had not saved enough money to sustain a long lockout.88
¶ 29 The first CBA between the parties was ratified on April 30, 1999, and expired on September 15, 2002.89 On April 25, 2003, the WNBA and WNBPA agreed to a second collective bargaining agreement. This version of the CBA remains in effect today.90 According to the WNBPA, advancements in the second CBA include the creation of a free agency system for WNBA players and the return of player group licensing rights to WNBA players.91 However, the pay for WNBA players, as well as the revenue generated by the WNBA, remained miniscule as compared to that of men's professional basketball players.
¶ 30 Then, in 2003, the WNBA decided to transform its business from a structure including central ownership in the league overall to a structure including independent team ownership as exists in the four premier men's leagues.92 The impetus for this transition was an important decision handed down by the First Circuit Court of Appeals in Fraser v. Major League Soccer, which indicated that the centralized Major League Soccer structure—in many ways similar to the original structure of the WNBA—did not necessarily shield the league from antitrust liability.93 As a result of the WNBA's structural change to an independent ownership model, WNBA teams began to independently manage their own operations and pursue their own players and sponsorship deals.94 Nevertheless, this structural change did not affect the coordinated decision-making of the WNBA, which now occurred through the collective bargaining process.
¶ 31 In recent years, many of the top women's basketball players, unhappy with their salary prospects in the WNBA, have started spending their off-seasons playing overseas.95 A number of American-born players have even indicated their desire to play exclusively overseas.96 For example, Tina Thompson, a four-time WNBA champion with the Houston Comets, recently indicated she may forego the WNBA altogether because she believes she can triple her WNBA maximum salary by playing exclusively in Moscow, Russia.97
¶ 32 From their incipient stages, both the WNBA and ABL enforced independent league regulations to prevent their teams from drafting players that still had NCAA college eligibility.98 When the ABL ceased its operations in 1998, however, prospective women's basketball players lost the leverage of having two separate leagues vying for player services.99 Without two leagues, the only bargaining chip of a player that did not meet the age/education policy was a threat to play permanently overseas. For some players with young families well-settled in the United States, that was not a viable option.
¶ 33 Once the ABL ceased to exist and the WNBA players unionized, the WNBA took affirmative steps to protect its age/education policy from antitrust scrutiny by adding references to the league's age/education policy into the CBA. As currently written, Article XIII, Section 1 of the CBA, which is entitled "Player Eligibility," states the following:
[An American] player is eligible to be selected in the WNBA Draft [only] if she: (i) will be at least twenty-two (22) years old during the calendar year in which such Draft is held; (ii) has graduated from a four-year college or university, or is to graduate from such college or university, during the calendar year in which such Draft is held; or (iii) attended a four-year college or university, her original class in such college or university has already been graduated or is to graduate during the calendar year in which such Draft is held, and she either has no remaining intercollegiate eligibility or renounces her remaining intercollegiate eligibility by written notice to the WNBA at least ten (10) days prior to such Draft.100
In essence, this age/education policy mandates that any American-born player wait until age twenty-two or complete four years of college before entering the WNBA.101
¶ 34 As of the date of publication, the WNBA age/education policy has not been challenged in court.102 However, if challenged, a court might find the WNBA policy violates Section 1 of the Sherman Act as an illegal group boycott.
¶ 35 Section 1 of the Sherman Act states, in pertinent part, that "[e]very contract, combination . . . or conspiracy, in the restraint of trade or commerce . . . is declared to be illegal."103 This section of the Sherman Act governs concerted refusals to deal (group boycotts).104 Even though most concerted refusals to deal involve product boycotts, concerted refusals to deal also may concern boycotts in labor markets, such as the market for professional athletic services.105
¶ 36 The public policy rationale against group boycotts is well fortified by the Supreme Court of the United States.106 In the 1914 case Eastern State Retail Lumber Dealers' Association v. United States, the Supreme Court explained:
An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy, and it may be prohibited or punished, if the result be hurtful to the public or to the individual against whom the concerted action is directed.107
¶ 37 In other words, the danger caused by concerted conduct occurs where multiple companies act together in a manner that reduces consumers' freedom of choice.108 This outcome is troubling because the consumer loses the opportunity to use purchasing power to indicate a preference for boycotted products, materials, or labor sources.109
¶ 38 In assessing whether the allegedly anticompetitive conduct violates Section 1 of the Sherman Act, a court will begin with a prima facie review of the conduct by applying one of the Supreme Court's three sanctioned tests. On one end of the spectrum, if a defendant's business practices are so pernicious that they have no redeeming value, a court will apply the per se rule, which presumes there is a prima facie case of an antitrust violation without any further investigation of alleged justifications.110 The per se rule is a bright line rule that facilitates legal certainty and promotes judicial economy.111 The purpose of the per se rule is to avoid "subjective policy judgments" that most courts recognize "are more appropriate for legislative, rather than judicial, determination."112
¶ 39 On the other end of the spectrum, if the allegedly anticompetitive conduct seems to yield a more ambiguous effect, a court will apply Rule of Reason analysis, under which a court conducts a full economic investigation to determine whether the defendants' conduct is legal.113 Applying the Rule of Reason, a court will determine whether a plaintiff can make a prima facie showing of a violation based on the presence of the following three factors: (1) market power, (2) anticompetitive effects that exceed any procompetitive justifications, and (3) harm.114
¶ 40 In between these two tests, if a court presumes the allegedly anticompetitive conduct is neither completely pernicious nor completely ambiguous, that court will apply a third type of test, called either the "quick look" or "truncated" Rule of Reason.115 Under that test, the court will consider economic effects based on only a "rudimentary understanding of economics."116
¶ 41 According to legal scholars, antitrust law is in the midst of undergoing a "creeping transition," as courts are moving away from applying the per se rule and toward applying either the quick-look test, or, even more frequently, the full Rule of Reason.117 This shift has emerged as a result of a changing understanding of industrial economics, which has cast doubt on traditional notions about competitive effects.118
¶ 42 If the prima facie test produces the preliminary finding of an antitrust violation, a court next considers whether the antitrust defendants can rebut this finding based on one of antitrust law's affirmative defenses/exemptions.119 In the professional sports context, the most frequently applied defense is the non-statutory labor exemption, which shields from antitrust scrutiny any conduct that is reached through the collective bargaining process.120 As a matter of public policy, the non-statutory labor exemption reflects the view that employees are better off negotiating together rather than individually, and therefore labor law (rather than antitrust law) should apply to situations where collective bargaining occurs.121
¶ 43 Although "[t]he interaction of the [antitrust laws] and federal labor legislation is an area of law marked more by controversy than by clarity,"122 courts have inferred the scope of the non-statutory labor exemption "from federal labor statutes, which set forth a national labor policy of favoring free and private collective bargaining, which require good faith bargaining [with respect to mandatory terms and conditions of employment], and which delegate related rulemaking and interpretive authority to the National Labor Relations Board."123 In this vein, the non-statutory labor exemption exists not only to protect National Labor Relations Board (NLRB) authority but also "to allow meaningful collective bargaining to take place."124
¶ 44 Nevertheless, given that the non-statutory labor exemption emerges from case law, there is a split among the circuits about how broadly the exemption applies. The Eighth Circuit in Mackey v. National Football League held that the non-statutory labor exemption applies only where an alleged restraint of trade: (1) involves mandatory subjects of bargaining, (2) primarily affects the parties involved, and (3) is reached through bona fide, arm's-length bargaining (the Mackey Test).125 Meanwhile, the Second Circuit in Clarett v. National Football League held that the non-statutory labor exemption has a broader boundary, and it applies most broadly where the alleged antitrust injuries affect employees rather than competitors (the Clarett Test).126 Because the Clarett Test is far broader than the Mackey Test, the WNBA age/education policy is more likely protected from antitrust scrutiny if the Clarett Test is applied.
¶ 45 Each of the courts hearing the first three cases that challenged a sports league's age/education policy found the challenged policy to be illegal based on the per se rule and lack of applicable affirmative defenses/exceptions.127 In the first of these challenges, Denver Rockets v. All-Pro Management Inc.,128 the District Court for the Central District of California overturned an NBA rule that required all prospective men's basketball players to wait at least four years after completing their high-school education before applying for the league draft.129 The NBA thereafter moved for a stay of this ruling, which was granted by the Ninth Circuit Court of Appeals,130 but was then overturned by the Supreme Court.131
¶ 46 In Denver Rockets, then-nineteen-year-old basketball star Spencer Haywood, who was from an impoverished family, filed his antitrust suit against each of the teams in the NBA, alleging that the NBA age/education policy constituted an unreasonable restraint of trade.132 Haywood alleged that he was entitled to a hardship exemption from the NBA policy because he was from a poor family and the NBA policy prevented him from earning a living by practicing his profession.133
¶ 47 The District Court for the Central District of California agreed with Haywood, and granted him summary judgment.134 In awarding Haywood his request for summary judgment, the court applied the per se rule, explaining that three different types of harms emerged from the NBA age/education restriction. The court stated:
The harm resulting from a "primary" boycott such as this is threefold. First, the victim of the boycott is injured by being excluded from the market he seeks to enter. Second, competition in the market in which the victim attempts to sell his services is injured. Third, by pooling their economic power, the individual members of the NBA have, in effect, established their own private government.135
¶ 48 The court then denied each of the NBA's three purported defenses: financial necessity, cost effectiveness, and desire to promote advanced education.136 Although the court acknowledged that education policies are "commendable," it nevertheless found that the goals of promoting education may not "override the objective of fostering economic competition which is embodied in the antitrust laws."137 In other words, antitrust law is not a forum for social policy.
¶ 49 Six years later in Linseman v. World Hockey Association,138 the District Court for the District of Connecticut overturned another age/education policy, this time in hockey, finding the facts of that case "indistinguishable from the Spencer Haywood case."139 In Linseman, nineteen-year-old amateur Canadian hockey player Kenneth Linseman brought a preliminary injunction suit against the World Hockey Association (WHA), contending that the league's prohibition against players under the age of twenty violated Section 1 of the Sherman Act.140 Consistent with the court's earlier decision in Denver Rockets, the Linseman court found that the WHA age/education policy amounted to a per se illegal refusal to deal,141 and that there was not any valid purpose to the WHA rule.142 The Linseman court also found that antitrust law did not allow for exceptions to the Sherman Act based on a sports league's purported economic necessity.143 The court noted: "Exclusion of traders from the market by means of combination or conspiracy is so inconsistent with the free-market principles embodied in the Sherman Act that it is not to be saved by reference to the need for preserving the collaborators' profit margins."144
¶ 50 Then, for a third time, in Boris v. United States Football League, the District Court for the Central District of California struck down an age/education policy, this time involving professional football.145 In Boris, plaintiff football player Robert Boris challenged an age/education policy of the United States Football League (USFL), which mandated that all prospective players exhaust their college eligibility before entering the draft.146 Ultimately, the parties reached a settlement and dismissed the case with prejudice.147 In the opinion approving the proposed terms of settlement, the court overturned the USFL age/education policy, which it found per se illegal.148
¶ 51 The most recent challenge to an age/education policy in professional sports, Clarett v. National Football League,149 saw the Second Circuit Court of Appeals uphold an NFL age/education policy because that court found the NFL's age/education policy was protected from antitrust liability based on the non-statutory labor exemption.150 In Clarett, the Second Circuit explained that subjecting the NFL's age/education policy to antitrust review "would subvert fundamental principles of our federal labor policy."151 The court's decision was uniquely based on the Second Circuit's interpretation of the non-statutory labor exemption.152 If that case had been brought in the Eighth Circuit (rather than the Second), a different outcome likely would have resulted.
¶ 52 The facts and case history in Clarett are distinctive. Maurice Clarett, who at the time was a twenty-year-old college sophomore at Ohio State University, challenged the NFL age/education policy that mandated that any prospective NFL player to wait at least three years upon graduating from high school before entering the NFL draft.153 Clarett, who had been named the Big Ten Freshman of the Year and voted the best running back in college by The Sporting News, claimed that he was ready to play in the NFL after only two years of college, and that his exclusion amounted to a violation of antitrust laws.154 After the NCAA suspended Clarett for several alleged rule infractions, Clarett decided to challenge the NFL's age/education policy in court.
¶ 53 Although Clarett argued that he had a legal right under federal antitrust law to enter the NFL draft, the NFL viewed its age/education policy differently, articulating three defenses: (1) that the age/education policy was immune from antitrust scrutiny based on the non-statutory labor exemption because the policy was the result of collective bargaining between the NFL and the players' union, (2) that Clarett had no standing under antitrust laws to bring his suit, and (3) that the NFL age/education policy was permissible under the Rule of Reason based on its purported procompetitive effects.155
¶ 54 At the district court level, Judge Shira Scheindlin issued a lengthy opinion in favor of Clarett, granting summary judgment and stating that the NFL age/education policy "must be sacked" because none of the NFL's defenses "hold the line."156 The district court opinion analyzed the effects of the NFL age/education policy under the quick-look test and concluded that no further inquiry was needed because "Clarett has alleged the very type of injury . . . that the antitrust laws are designed to prevent," in that Clarett was boycotted from the professional football market.157 According to the district court, Clarett also had standing to sue the NFL because "his injury flow[ed] from a policy that excludes all players in his position from selling their services to the only viable buyer—the NFL,"158 and the non-statutory labor exemption did not bar Clarett's claim because the NFL met none of the three prongs of the Mackey Test—the NFL age/education policy was not a mandatory term or condition of bargaining, it did not primarily effect either the NFL teams or members of the NFLPA, and it was not reached between the NFL teams and the NFLPA through bona-fide arm's length bargaining.159
¶ 55 The NFL appealed this judgment to the Second Circuit Court of Appeals, which reversed the district court, finding that the non-statutory labor exemption completely barred Clarett's claim.160 The Court of Appeals explained that it had "never regarded the Eighth Circuit's test in Mackey as defining the applicable limits of the non-statutory labor exemption"161 and that, according to Second Circuit case law, the non-statutory labor exemption applied as long as the alleged restraints involved a mandatory subject of bargaining and the exemption's application would "ensure the successful operation of the collective bargaining process."162
¶ 56 Based on the aforementioned inconsistencies in the case law, it is impossible to predict with certainty whether a court would find the WNBA age/education policy to be illegal. However, applying certain assumptions about what case law a given court would consider, one can reach general conclusions about the court's likely outcome. For example, if a court were to apply both the per se rule and the Mackey Test, that court would probably find the WNBA age/education policy violates antitrust law. Meanwhile, if a court were to apply the Rule of Reason and the Mackey Test, the court would probably find that the age/education policy does not violate the antitrust laws. Finally, if a court were to apply the Clarett Test (irrespective of whether applied along with the per se rule or the Rule of Reason), the court would very probably not find an antitrust violation.
Table 1. Evaluating WNBA Age/Education Policy under Antitrust Law
|
Prima Facie Test |
Non-Statutory Labor Exemption Test |
Is there an antitrust violation? |
Explanation |
| Per Se Test | Mackey Test (mandatory subject of bargaining, primarily affecting the parties involved, reached through bona fide, arm's-length bargaining) | Probably | The prima facie test is met; however, there is a chance that the WNBA could still avoid liability under the non-statutory labor exemption by showing that all three prongs of the Mackey Test are met. |
| Per Se Test | Clarett Test (mandatory subject of bargaining and the exemption's application would "ensure the successful operation of the collective bargaining process") | Very Probably Not | The prima facie test is met; however, there is a very likely chance that the WNBA could show that the non-statutory labor exemption applies given that the age/education policy is likely a mandatory term or condition of bargaining. |
| Rule of Reason | Mackey Test (mandatory subject of bargaining, primarily affecting the parties involved, reached through bona fide, arm's-length bargaining) | Probably Not | Under the Rule of Reason, the prima facie test is only met if the court limits the geographic market to the United States. If the prima facie test is met, the WNBA could still avoid liability under the non-statutory labor exemption if it can show that all three prongs of the Mackey Test are met. |
| Rule of Reason | Clarett Test (mandatory subject of bargaining and the exemption's application would "ensure the successful operation of the collective bargaining process") | Very Probably Not | Under the Rule of Reason, the prima facie test is only met if the court limits the geographic market to the United States. Even in that event, there is a very likely chance that the WNBA could show that the non-statutory labor exemption applies given that the age/education policy is likely a mandatory term or condition of bargaining. |
¶ 57 If a prospective WNBA player were to challenge the WNBA age/education policy as being a group boycott, the first issue for a court to determine is the proper standard of review.163 If a court were to apply the per se rule—as courts did in Denver Rockets, Linseman, and Boris—the court would have no alternative but to find a prima facie violation because under the per se rule, group boycotts are held illegal "without regard to any claimed justification for the restraint."164 By contrast, if a court were to apply the Rule of Reason (either in full or quick-look), the court would only find an initial showing of an antitrust violation if the plaintiff were able to show each of the following: (1) market power, (2) a net anti-competitive effect, and (3) harm.
¶ 58 Market power is defined as "the power to control prices or exclude competition."165 Courts generally determine the presence (or absence) of market power based on an economist's testimony. If such testimony is not readily available, simple market share estimates serve as a reasonable alternative.166
¶ 59 When analyzing market share data, a court determines the scope of the relevant market based on both product and geographic considerations.167 The relevant geographic market is defined as "the market in which the seller operates and to which the purchaser can turn for supplies."168 This is "the area to which players can turn, as a practical matter, for alternate opportunities for employment."169 This factor is important because if there is a limited opportunity for practical employment, a market restriction is more likely to be an antitrust violation.
¶ 60 In the context of an antitrust claim brought by a prospective WNBA player, the presence of market power depends upon how the court defines the geographic market. If a court were to define the geographic market as the United States—which is how most courts have defined the market in professional sports antitrust cases170—the court would find that WNBA teams maintain collective market power because there is no rival professional women's basketball league in the United States. This means the WNBA would collectively have a one hundred percent market share.171 If, however, a court were to define the geographic market as encompassing the entire world—as the First Circuit in Fraser v. Major League Soccer recently defined the market for men's soccer labor172—then the court would find the WNBA does not have market power, and the prospective WNBA player's claim would fail under the Rule of Reason.
¶ 61 Empirical evidence seems to support finding a worldwide market for women's basketball labor based on the recent trend of female basketball players leaving the WNBA in favor of European leagues.173 As more American professional women's basketball players move their careers overseas in pursuit of opportunities for higher pay, the argument that the WNBA competes against foreign leagues becomes continuously stronger.174 A more thorough economic study of this point, however, would be needed if this case were eventually to go to trial, given the implicit burden of international relocation.
¶ 62 A net anticompetitive effect is one where the anticompetitive effects of the scrutinized conduct are greater than the procompetitive justifications for that conduct. The anticompetitive effects of the WNBA age/education policy are threefold: (1)boycotted WNBA players are harmed by their exclusion from the market, (2)competition in the overall WNBA labor market is harmed because certain teams cannot purchase boycotted players' services, and (3) society overall is harmed because the individual WNBA clubs have monopolized an otherwise free market.175
¶ 63 In determining what qualifies as a procompetitive justification, courts regularly have held that such a justification must emerge from the same economic market as the alleged anticompetitive effects—meaning, in other words, that if the alleged anticompetitive effect of the WNBA age policy involves the entry labor market for women's basketball players, courts will only consider offsetting economic benefits that also involve the entry labor market for women's basketball players.176 Applying this criterion, any impact of the WNBA age/education policy on in-game competition (such as by equalizing the talent level among teams) or any other basketball-related market is completely irrelevant.177 Also, any social justification for an age/education policy is likewise irrelevant.178 Consequently, it is extremely unlikely that any court would find the WNBA policy yields any substantial procompetitive justification that offsets the age/education policy's clear anticompetitive effects.
¶ 64 The final factor in Rule of Reason analysis requires the plaintiff to show that the alleged anticompetitive conduct caused harm. In the context of labor-market antitrust claims, courts have recognized that a showing of harm in the labor market is sufficient, which essentially conflates this factor with the showing of a net anticompetitive effect. Here, the excluded prospective WNBA players, as well as the potential consumers of WNBA basketball games are harmed by the group boycott.
¶ 65 Presuming a prospective plaintiff is able to make a prima facie case of an antitrust violation against the WNBA (irrespective if whether based on the per se test, full Rule of Reason, or quick-look), a court next considers whether the antitrust claim is barred by the non-statutory labor exemption.
¶ 66 For a court to find that the non-statutory labor exemption applies, that court would have to find either (1) that the defendant is able to meet each of the three prongs of the Mackey Test (mandatory subject of bargaining, primarily affecting the parties involved, reached though bona fide, arm's-length bargaining) or (2) that the agreement involved a mandatory subject of bargaining and that subjecting the WNBA's age/education policy to antitrust rules would somehow subvert fundamental principles of federal labor policy ("the Clarett Test").179 The determination of which test applies depends entirely upon where the prospective plaintiff brings suit. The Supreme Court has not indicated which of these two tests is more appropriate, and it has failed to grant certiorari on this issue.180
¶ 67 The first prong of both the Mackey and Clarett Tests addresses whether the WNBA age/education policy is a mandatory subject of bargaining. There is little doubt that irrespective of what test a court applies, a prospective plaintiff would be able to show that the WNBA age/education policy is a mandatory subject of bargaining.181 Applying the Mackey Test, the age/education policy is a mandatory subject of bargaining because the age/education policy has a direct affect on the wages of excluded prospective league entrants, while, applying the Clarett Test, the age/education policy is a mandatory subject of bargaining both because the policy has a tangible affect on wages, and because it is a condition for initial employment.
¶ 68 The second prong of the Mackey Test addresses whether the age/education policy primarily affects the parties involved; it is unclear whether this policy also applies under the Clarett Test.
¶ 69 Applying the Mackey Test, it is more likely than not that a court would find that the WNBA age/education policy primarily affects the parties involved because both of the parties involved (the WNBA and the boycotted player) are within the scope of the collective bargaining process, even though a prospective WNBA entrant does not have a voice in her union representation.182 As explained by the Second Circuit Court of Appeals in Clarett (although it is not exactly clear if that court is incorporating the second prong of Mackey into its own test), a prospective professional athlete that is excluded from a sports league based on an age/education policy is "no different from the typical worker who is confident that he or she has the skills to fill a job vacancy but does not possess the qualifications or meet the requisite criteria that have been set."183 Nevertheless, the fact that a prospective league entrant is not yet a union member creates at least the possibility that a court might interpret this prong as unmet.
¶ 70 The final prong of the Mackey Test addresses whether the alleged agreement was reached through bona fide arm's-length bargaining. Under this policy, it is equally likely as not that a court would find the WNBA age/education policy is a product of bona fide, arm's-length bargaining.184 Presuming the court applies the Mackey Test, the main argument in favor of finding that the age/education policy is a product of arm's-length bargaining is that the policy appears directly in the league collective bargaining agreement, which was signed by both the WNBA teams and the WNBPA.185 However, the main argument against such a finding is that the WNBA enforced its age/education policy prior to the start of its collective bargaining relationship with the WNBPA, and the WNBPA did not obtain anything of value in exchange for allowing the WNBA teams to retain that policy.186 As stated in case law: "The union's acceptance of the status quo [under the circumstances] cannot serve to immunize [a purported agreement between a league and a players' union] from scrutiny of the Sherman Act."187 Indeed, under the third prong of the Mackey Test, a court may find the age/education policy is not immune from antitrust scrutiny based on the following evidence: (1) the WNBA unilaterally enforced its age/education policy prior to the formation of a players' union; (2) the age/education policy was unaltered during any of the subsequent collective bargaining processes; (3) no evidence exists that the WNBPA received anything of value in exchange for consenting to the age/education policy; and (4) as compared with other professional sports bargaining relationships, female athletes have traditionally struggled with substantially lower bargaining power than males, as indicated by their substantially lower salaries and inferior conditions of employment.188
¶ 71 Analysis of whether the age/education policy was reached through bona fide, arm's-length bargaining is entirely irrelevant if the court applies the Clarett Test.
¶ 72 Because antitrust law seeks to address economic issues and not social policy, even if the WNBA age/education policy were to withstand antitrust scrutiny, the policy still results in substantial social harm (and vice versa).
¶ 73 From an empirical perspective, research into the correlation between academic experience and life success has yielded mixed results about the value of an age/education policy in professional sports. A recent study performed by sports law professor Michael McCann indicates that when men's professional basketball players attend college for any length of time, these athletes become more (rather than less) likely to incur legal trouble later in life.189 Meanwhile, a different study performed by Dr. Leo Lewis, a former professional football player and current associate athletic director at the University of Minnesota, indicates that more educated NFL football players are less likely to be involved in negative activities.190 Recognizing that these research studies provide mixed reviews about the value of an age/education requirement, it becomes important to evaluate the WNBA age/education policy along an even broader range of criteria, which reveals additional benefits and additional harms.
¶ 74 Antitrust issues aside, there are three social benefits to the WNBA age/education policy. First, the WNBA age/education policy has facilitated the perception of WNBA players as both scholars and athletes, and therefore also as role models.191 Hence, their image is one of synergy between academics and athletics.192 Indeed, one of the missions behind the WNBA is to encourage American girls to explore athletic opportunities.193 However, another mission of society is to encourage girls to pursue educational opportunities, especially in light of the fact that education was for years denied to women.194 By maintaining a graduation policy for WNBA players, "the league promotes a message that not only can females excel in athletics, but also that females can excel academically."195 Some professional women's basketball players find this mission especially important.196 For example, when University of Tennessee basketball superstar Chamique Holdsclaw decided she would not be the first to challenge the age/education policy in women's basketball, she did so because she wanted to act in a manner that she believed showed leadership to young women.197 In a March 1998 article published in the St. Louis Post-Dispatch, Holdsclaw was quoted as stating, "I really want to see these young women set goals. And I want one of those goals to be to get that degree."198 In an era where so many female celebrities receive media attention for misconduct, the current structure of the WNBA provides young women with more positive alternatives as role models.199
¶ 75 Second, the WNBA age/education policy helps to prepare its players for non-basketball careers upon personal retirement or league dissolution. Preparing for post-basketball careers is arguably more important for women's basketball players than for those athletes in the men's professional sports leagues because WNBA players earn substantially lower salaries than those playing in the four premier men's leagues.200 Although there is no actual barrier that prevents a prospective women's basketball player from attending college either during or after her professional career, there is an argument that attending college later in life, when responsibilities are greater, would add constraints for these women not found in the traditional college experience.201 Also, many women that plan to attend college later in life ultimately find it difficult or impossible to do so.202 Former Pennsylvania State University men's basketball coach Jerry Dunn therefore argues that the real problem with college athletes entering the professional ranks early is that these athletes are surrendering a one-time opportunity:
They're completely skipping a part of their lives they can never get back. All of a sudden you can't turn back, and the responsibilities become greater. They're skipping the basic foundation they need to take care of themselves and their families for the rest of their lives.203
¶ 76 A third advantage of the current WNBA age/education policy is simplicity. Although imperfect, age has been used throughout history as a reasonable proxy for maturity and ability, and maturity is often used as a proxy for emotional readiness to compete in professional sports.204 Although age does not tell anything about a specific person, it indicates certain societal assumptions.205 For example, one must be eighteen years old to vote.206 This does not mean that a person younger than eighteen years old cannot be precocious enough to cast a meaningful ballot;207 however, from a legal, practical, and ethical perspective, society cannot evaluate each potential voter individually, so society accepts age as a proxy.208 Although sometimes it is frustrating to live in a world where decisions about people are made through generalizations about immutable characteristics such as age, if the WNBA were instead required to make a league-wide assessment about each potential league entrant on a case-by-case basis, doing so would lead to additional legal challenges about the merits of specific decisions.209 As a result, a bright-line rule that a potential league entrant must have at least a minimum age or education level might be reasonable, assuming of course that maturity is an important characteristic for a female pro-basketball player to have.
¶ 77 Despite the three purported advantages of the current policy, there are also social harms inherent in the requirement that prospective professional women's basketball players wait until reaching a certain age or education status before entering the league. First, the WNBA policy prevents adult women from making their own choices between college and professionalism. By limiting women basketball players' right to choose between education and career opportunities, these women's individual interests are subordinated to society's will. Moreover, because the WNBA has a monopoly over American women's professional basketball opportunities, by denying young women the opportunity to enter the WNBA draft, the WNBA denies them the opportunity to play professional basketball in any capacity in the United States, as there are no other professional women's leagues available to them.210
¶ 78 Second, the WNBA policy inhibits young women from securing financial independence.211 The WNBA minimum starting salary is $32,400.212 While $32,400 in today's economy is not a huge amount of money, that income is sufficient to allow a young woman to independently support herself. By denying young, female basketball players the opportunity to pursue financial independence, these women remain monetarily tied to others, such as parents and, potentially, men.213 Such an outcome is dangerous, especially in light of generations past, in which young women played a subservient role in society.214 This outcome also defeats the argued purpose behind the age/education policy, which is to ensure players' independence and empowerment.
¶ 79 Third, the WNBA policy mandates that female basketball players develop their careers through the NCAA and higher education, an institution that profits from student-athletes' work-product.215 An unavoidable consequence of the WNBA age/education policy is that many female basketball players, who otherwise would be eligible to earn a living playing professional basketball, are instead required to forego payment according to NCAA rules.216 Even more troubling, women's basketball players are not permitted to enjoy the full college experience, as it is estimated that the average Division I varsity athlete spends at least forty hours per week practicing, lifting weights, attending team meetings, traveling and playing her sport.217 With these policies in mind, although the NCAA claims to protect student-athletes from exploitation, many argue that the NCAA is really not helping the cause of young athletes.218
¶ 80 There is a natural tension between the individual's right to earn wages as a professional athlete and the culture of athletes' socialization as student-athletes—a concept that boasts the highest ideals of intellectualism and athleticism in higher education, albeit at the "amateur" level. The WNBA presently has a policy that shapes the culture of their professional athletes as college graduates and mentors to youth that worship them. However, the question of whether this policy is legal, much less ethical, requires greater scrutiny.
¶ 81 From a legal perspective, determining whether the WNBA age/education policy is permissible boils down to a few simple questions about the applicable law. If a court were to apply the per se rule and the Mackey Test to the WNBA age/education policy, that court would probably find the age/education policy violates antitrust laws. However, if a court were to apply either the Rule of Reason or the Clarett Test, the WNBA age/education policy would more likely survive, especially if a court were to find that the market for women's basketball labor is global.
¶ 82 From an ethical perspective, while there are reasonable arguments on both sides, assessing the merits of the WNBA age/education policy requires answering the following two questions: (1) how does the WNBA age/education policy impact the cultural perception of academics and vocational mobility in a society that continues to value immediate versus delayed gratification; and (2) should societal goals, especially those that are not absolute, ever obligate an individual athlete to forego personal gratification based on the alleged positive externalities upon others? Once again, one could draw reasonable conclusions on either side of the issue, especially given the important role that Title IX and the collegiate athletic experience has played in fostering the emerging demand for women's professional sports.
¶ 83 Based upon the foregoing, it is clear that any analysis of the legal, ethical, and cultural issues involving the WNBA age/education policy must examine the positive, negative, and "gray area" outcomes of each suggested alternative. The challenge for our legal system then becomes how to continue to properly provide incentives for young female athletes to pursue advanced education without disturbing these athletes' personal autonomy and right to pursue independent financial interests.
A person who has not completed high school or who has completed high school but has not entered college, shall not be eligible to be drafted or to be a Player until four years after he has been graduated or four years after his original high school class has been graduated, as the case may be, nor may the future services of any such person be negotiated or contracted for, or otherwise reserved. Similarly, a person who has entered college but is no longer enrolled, shall not be eligible to be drafted or to be a Player until the time when he would have first become eligible had he remained enrolled in college.
Denver Rockets, 325 F. Supp. at 1059; see also McCann & Rosen, supra note 105, at 10.
Here, the jury said that neither the United States nor Division I delimited the relevant market—findings that imply that MLS faced significant competition for player services both from outside the United States and from non-Division I teams. That inference at a minimum creates uncertainty as to whether the jury could have found market power under section 1.
Id.
The draft is allegedly "procompetitive" in its effect on the playing field; but the NFL teams are not economic competitors on the playing field, and the draft, while it may heighten athletic competition and thus improve the entertainment product offered to the public, does not increase competition in the economic sense of encouraging others to enter the market and to offer the product at lower cost. Because the draft's "anticompetitive" and "procompetitive" effects are not comparable, it is impossible to "net them out" in the usual rule-of-reason balancing. The draft's "anticompetitive evils," in other words, cannot be balanced against its "procompetitive virtues," and the draft be upheld if the latter outweigh the former. In strict economic terms, the draft's demonstrated procompetitive effects are nil.
Id.; see also Boris v. United States Football League, 1984-1 Trade Cas. (CCH) ¶ 66,012, at 68,461 (C.D. Cal. Feb. 28, 1984) (rejecting "on-field competitive balance among USFL teams" as a defense).
| © Copyright by Northwestern University School of Law, Northwestern Journal of Law and Social Policy | Volume 3 Issue 1 (Winter 2008) |