September 04, 2012
Chicago Daily Law Bulletin
Lawyers see legal problems with Olympic age limits
By: Mary Kate Malone
A clinical instructor at Northwestern University School of Law said a proposal to limit the age of Olympic basketball players may set the stage for some legal wrangling.
Since early this summer, Daniel J. Gandert and his former student, Luis Hansen, worked on a research paper examining the potential legal consequences of limiting Olympic basketball eligibility to those age 23 and younger.
"It's a terrible idea to take professionals out of the Olympics for basketball," Gandert said. " ... I feel like there's going to be a lot of people who are interested in this subject once the basketball season starts in October."
During the NBA finals in June, the league's commissioner, David Stern, said "the time may come" for an Olympic age limit, similar to current restrictions for men's Olympic soccer, Gandert said.
"There is a belief that (NBA teams) are risking their greatest assets — the employee talent — on the Olympics, since if the players become injured, the NBA can get into a situation where they still have to pay their athlete even though their athlete is no longer able to perform."
For example, Dallas Mavericks owner Mark Cuban stated publicly that he felt disappointed that one of his players, Dirk Nowitzki, suffered a knee injury while attempting to qualify for the Olympics last summer.
"It is stupid they take all the risks and get almost no reward," news outlets reported Cuban said. "Players get damaged moonlighting for other countries, but their contracts are guaranteed by the NBA."
Gandert and Hansen said if the NBA succeeds in limiting Olympic eligibility for American players, doing so would violate the Ted Stevens Olympic and Amateur Sports Act.
They consider it a violation of the act because the eligibility restriction would likely be imposed by USA Basketball, the sport's national governing body in the U.S.
But the act prohibits USA Basketball from imposing stricter eligibility rules than the International Basketball Federation (FIBA), the sport's international governing body that sets worldwide Olympic rules, Gandert said.
The issue could potentially come before a federal judge, he said.
"It's certainly a plausible argument," said Matthew J. Mitten, a law professor at Marquette University Law School and the director of the National Sports Law Institute. "But the courts tend to be very deferential to Olympic sports governing bodies in determining an eligibility requirement."
Mitten said he imagines an American player older than age 23 filing a lawsuit over the restriction, arguing that the age limit unlawfully kept him from playing in the Olympics. However, the defense in that case could argue that the courts generally stay out of such matters.
"I would say it would be a fairly close case," he said.
Gandert and Hansen's paper also examines the potential consequences of the NBA administering its own international basketball tournament — similar to the MLB's World Baseball Classic.
Stern said he wants to create a World Cup of Basketball, which could allow NBA owners to earn a share of the revenues in exchange for sending its best players. In the Olympics, individual countries do not share in the revenues, Gandert said.
"It's a real possibility that it would be just like in baseball,' Hansen said. "The NBA is essentially trying to organize the same type of tournament — they want to do what the MLB is doing."
But Gandert and Hansen said the MLB's tournament drains money and talent from the other countries who participate and almost only benefits the MLB financially. The MLB uses its standing to negotiate contracts with foreign leagues and players, Gandert said.
"The MLB has gone unchecked because they are so powerful ... This paper says that what the MLB is doing is bad, and if the NBA does it, it will achieve the same goal," he said.
Gandert and Hansen intend to submit their paper for publication in February to law reviews and legal publications. The idea for the paper stemmed from a research project Hansen completed as a third-year law student at Northwestern under the guidance of Gandert.
Hansen examined the consequences of the MLB's World Baseball Classic and argued that it exploits other countries for its own gain. Gandert began to see parallels between the MLB's set up and Stern's proposal for changes to Olympic basketball.
Hansen graduated in May and works as an attorney in Austin, Texas. The pair work on the paper electronically, e-mailing revisions.
"I still remember the 1988 Olympics when my second-grade teacher wheeled in the television and brought it for us to watch during class," he said. "… Hopefully people will read (the paper) and be able to understand why these changes would be a bad idea."