Gregg Easterbrook is usually sensible and almost always entertaining, but he has some weird obsessions. For instance, he's fanatically anti-SUV, once writing an article that called them "sociopathic." Now he's having a hissy fit over last Thursday's decision by Judge Shira Scheindlin that the NFL has to let Maurice Clarett enter the draft, despite Clarett's age.
He accuses Scheindlin of poor legal reasoning, but he illustrates poor reasoning himself, repeatedly using flawed analogies:
Why shouldn't a 19-year-old be allowed to be an airline pilot--how dare the airlines keep 19-year-olds out of the cockpit? Numerous professions require minimum age, possession of degrees or minimum years of training experience for entry. Judges don't order airlines to allow 19-year-olds at the controls, even though age and experience rules clearly place restraints on the bargaining power of 19-year-old aspiring pilots. But then--judges fly on planes, so they don't want them to crash. Federal judge Shira Scheindlin, who yesterday ordered the NFL draft open to anyone regardless of age, knows that if the NFL crashes that won't affect her.Where do I start? First, the NFL's rules are not safety rules. It can't "crash." Second, "professions" don't require minimum age, possession of degrees, or minimum years of experience. Employers do. But not in conspiracy with each other; they decide individually what age they want. Of course, there are some professions with industry-wide requirements -- but those, such as airline pilot, are imposed by the government, not by companies conspiring together.
And as a matter of law, he's simply wrong.
And the NFL is one single business entity, creating one product: its season. Scheindlin's order is written as if pro football were an open marketplace of multiple independent businesses--anyone could field a team and challenge the Packers to a game, the way anyone can market a chewing gum and challenge Wrigley. But a pro sports league is a single business entity with multiple divisions. In the case of the NFL, the league is a business entity with 32 divisions, all having a shared interest in keeping product quality high. Anti-trust law, called on in Scheindlin's decision, binds General Motors when it competes against Ford. But the Rams aren't competing with the Steelers in that same way--the Rams aren't trying to put the Steelers out of business, nor are they trying to win over the Steelers' customers. In fact, the Rams and all other NFL teams strongly desire that the Steelers and all other NFL teams stay in business, which is why NFL teams equally share television revenues, their main source of income. Scheindlin's decision treats the NFL as 32 separate businesses; she just doesn't understand sports economics.Perhaps, but Easterbrook just doesn't understand sports law. The teams aren't competing in the market for customers -- but they are competing in the market for players, and the NFL is 32 separate businesses. Some leagues -- Major League Soccer, for instance -- have set themselves up as single entities. That is, one company owns everything -- all the teams, contracts, etc. But the National Football League isn't such a league. Given the prominence of the antitrust suits the NFL has lost -- the Oakland Raiders suing to move to Los Angeles, for instance -- you'd think Easterbrook would know that.
(If this sounds weird, it's because we're trained to think of leagues as unitary enterprises. But that's not the case. When Easterbrook writes that the NFL isn't "an open marketplace of multiple independent businesses" where "anyone could field a team and challenge the Packers to a game," it's true but misleading. In fact, that's exactly how most sports leagues were created: "multiple independent businesses" fielded teams, and then got together to form the league; that is, the existence of the teams predates the existence of the leagues. Easterbrook's argument thus boils down to the assertion that if General Motors and Ford get together to work on a project, that this turns them into a single entity, immune from antitrust law. But of course that's not the way it works.)
Under current interpretation of the Sherman Act, restraint of trade is only illegal if it's unreasonable. Easterbrook's argument is that this restraint is reasonable because it makes for a better product. But what kind of silly argument is that? If young players make such poor investments, then there's no real reason for teams to draft them. And hence no need for such a rule.