Johnny Manziel, the starting quarterback for the Texas A&M Aggies, does not appear to be long for the world of college football.
Even before so many unnamed autograph dealers claimed this week that they had paid Manziel money for his signature—and, thus, that Manziel had broken the NCAA’s rules—he had tweeted that he was looking forward to leaving College Station. In a pair of soul-searching magazine profiles, Johnny Football’s parents said that their son, the defending Heisman Trophy winner, was sick of the peculiar flavor of intense micro-fame that attends any amateur superstar in a small town.
So why doesn’t Manziel join an NFL team for training camp? Why didn’t he abandon college football, with his star still ascendant, to find a real paycheck through the NFL draft?
He can’t. He couldn’t. The NFL has an age limit, restricting eligibility to those players who have watched three full pro seasons elapse since they departed high school. Manziel, who graduated from Tivy High School in Kerrville, Texas, with the class of 2011, has one more year to go.
Presently, Manziel is practicing with his team, in advance of the upcoming season, like any other presumptive starter in college football would. Texas A&M has not suspended him; the NCAA has not ruled him ineligible. As far as what has actually been proven is concerned, Manziel is in the clear, hoping to lead the Aggies to their first-ever SEC title.
But what if Manziel and his parents became so tired of the current circus that the 20-year-old tried to beat the NFL’s age limit in court? Could he do it? The attorney who came closest to overturning the age limit says he’s waiting for the right case to come along and topple the rule once and for all.
The NFL has had some sort of age limit in place since 1921, and the rule has barely shifted in the near-century since. The biggest change came in 1990, when the NFL decided to allow college juniors (or those who had otherwise been out of high school for three years) into the draft pool. But lopping a year off the age limit was just a temporary defense.
An antitrust suit eventually did come, 14 years later, from Ohio State running back Maurice Clarett. Clarett’s situation resembled Manziel’s. He had starred as a freshman—leading the Buckeyes to a national title—before various NCAA violations threatened his eligibility. Ohio State forced Clarett, who had also been charged with filing a false police report, to sit out all of the 2003 season. Thirteen days after his suspension came down, Clarett sued the NFL, challenging the age limit. He won in U.S. District Court in New York, and then he lost when his case reached the Second Circuit Court of Appeals. The U.S. Supreme Court later declined to review the case.
“Was the Clarett case properly decided? No, absolutely not. I really don’t know why they reached the decision that they did,” Clarett’s former attorney, Alan Milstein, said Thursday. But, Milstein said, if anyone were to challenge the age limit before any court other than the Second Circuit, he’d stand a good chance of winning.
Without getting too technical: Milstein’s argument, which initially won over District Court judge Shira Scheindlin, employed a test named for Baltimore Colts tight end John Mackey, a litigant in a prior NFL case. Any league exemption from federal labor laws had to meet three criteria: It had to affect primarily those already party to the collective-bargaining agreement, the issue needed to be addressed in collective bargaining (e.g. league facility and safety standards), and it had to result from good-faith arm’s-length bargaining. But, in a decision written by future Supreme Court Justice Sonia Sotomayor, the Second Circuit declined to employ Mackey, explaining that its justices never found it all that compelling.
Instead, the court reasoned, only Mackey’s third prong—that the exemption must result from good-faith bargaining—should matter. So long as the union signs off on something, it’s OK. Those who cannot join the union (in this case, players who have not been out of high school for three years) have no recourse.
Why does the union sign off on the age limit, anyway? From where it stands, the rule is no big deal—the presence of younger players in the league would not grant the union a larger share of total revenue, nor would it grow the number of available roster spots or increase the size of player pensions.
But the rule matters a lot to the league. It allows teams to scout players against reliable competition rather than spotty high-school talent, and it allows them to offload three years of important maturation to college programs. Front offices have a better chance of catching bad knees or bad attitudes, thanks to college football. In exchange, the colleges babysit players and get rich, making money both off the team directly and off the increased alumni interest any good football team motivates. It’s a great bargain for everyone except the players.
Back to the abandonment of Mackey: Milstein blames that decision on the whims of the New York-based Second Circuit, which also chose to take the case on an expedited basis and issue an injunction to keep Clarett from entering the NFL draft, despite the lower court’s ruling. (Had the appellate court waited to take the case, Clarett would have been drafted in 2004 but his victory would not have become a legal precedent.) “They were hellbent on taking the case, for some reason,” Milstein said. Did that have anything to do with the NFL’s massive political influence? “Well, that’d be something maybe a reporter could speculate about, rather than a member of the bar,” Milstein said.
With a new plaintiff, though? In a different circuit court, far away from the league’s offices on Park Avenue? Milstein likes his chances. The age limit, he says, has no logical basis. “The argument, which they made in the Clarett case, that the age limit protects players? It’s total bullshit.” He said he made this point to the judge back then, that the league can’t honestly claim it cares much about player safety when 300-pound linemen are allowed to chase after quarterbacks the size of Doug Flutie. “Then the judge got up and left the bench. I sort of knew I was losing the case then.”
Manziel may not have a great reason to bring an action—by the time his case would resolve, the 2014 draft would be upon us, and, besides, his lawyer says he will play this college season as planned—but the next superstar caught up in an NCAA investigation might. And he just might win, too.