Dump and Chase: Why the NFL, NBA, and MLB Should Abandon Their Problematic Amateur Draft Age Limits and Rookie Wage Structures and Adopt the Current NHL Model

Marquette Sports Law Review Marquette Sports Law Review

Volume 29

Issue 1

Fall

Article 6

2018

Dump and Chase: Why the NFL, NBA, and MLB Should Abandon Dump and Chase: Why the NFL, NBA, and MLB Should Abandon

Their Problematic Amateur Draft Age Limits and Rookie Wage Their Problematic Amateur Draft Age Limits and Rookie Wage

Structures and Adopt the Current NHL Model Structures and Adopt the Current NHL Model

Zach Leach

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Part of the Entertainment, Arts, and Sports Law Commons, and the Labor and Employment Law

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Repository Citation Repository Citation

Zach Leach,

Dump and Chase: Why the NFL, NBA, and MLB Should Abandon Their Problematic Amateur

Draft Age Limits and Rookie Wage Structures and Adopt the Current NHL Model

, 29 Marq. Sports L. Rev.

177 (2018)

Available at: https://scholarship.law.marquette.edu/sportslaw/vol29/iss1/6

This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. For

more information, please contact [email protected].

LEACH ARTICLE 29.1 (DO NOT DELETE) 12/5/18 3:37 PM

DUMP AND CHASE: WHY THE NFL, NBA,

AND MLB SHOULD ABANDON THEIR

PROBLEMATIC AMATEUR DRAFT AGE

LIMITS AND ROOKIE WAGE STRUCTURES

AND ADOPT THE CURRENT NHL MODEL

ZACH LEACH*

I. INTRODUCTION

It is March of 2018 in State College, Pennsylvania. On the campus of

Pennsylvania State University (Penn State), twenty-one-year-old Saquon

Barkley is hard at work training for several scheduled workouts with National

Football League (NFL) teams. The Penn State junior running back is considered

a generational talent, expected to be selected within the top five picks of the first

round of the 2018 NFL Draft on April 26, 2018.

Michael Salfino of the Wall

Street Journal even declared Barkley the best running back prospect ever.

* Zach Leach is an aspiring sports law professional and currently a salary arbitration consultant for the

Boston Bruins of the National Hockey League. Leach received his J.D. in 2018 from the University of New

Hampshire School of Law with a certificate in both Sports Law and Entertainment Law. He graduated from

the University of Massachusetts – Amherst in 2014 where he received a B.S. for his studies in Sport

Management. Leach’s past work experience includes time in NCAA athletic compliance, pro baseball

operations, and as a junior hockey scout. He has published works as an employee of ProHockeyRumors.com

and the Cape Cod Baseball League and as a guest columnist for The Concord Monitor. Leach also worked

as the research assistant for Ed O’Bannon and Michael McCann’s Court Justice: The Inside Story of My Battle

Against the NCAA, which he credits as his inspiration for this Article. Leach would like to thank Associate

Dean Michael McCann of the University of New Hampshire School of Law and Associate Director of

Athletics for Compliance Ryan Colton of the University of Richmond for their support and contributions to

this Article. Leach may be reached at zleach77@gmail.com.

. Barkley was projected as a top five pick by NFL Draft experts such as Todd McShay and Mel Kiper

Jr. of ESPN, Daniel Jeremiah and Peter Schrager of the NFL Network, and Matt Miller of Bleacher Report,

among others. See generally Cork Gaines & Scott Davis, 2018 NFL Mock Draft Expert Predictions, BUS.

INSIDER (Apr. 26, 2018), https://www.businessinsider.com/2018-nfl-mock-draft-consensus-first-round-2018-

1. Barkley was drafted second overall by the New York Giants. Gregg Rosenthal, Giants Select RB Saquon

Barkley With No. 2 Pick, NFL (Apr. 27, 2018), http://www.nfl.com/news/story/0ap3000000928912/article/gi-

ants-select-rb-saquon-barkley-with-no-2-pick.

. See generally, Michael Salfino, Is Saquon Barkley the Best Running Back Prospect Ever?, WALL

STREET J., Mar. 2, 2018, https://www.wsj.com/articles/is-saquon-barkley-the-best-running-back-prospect-

ever-1520028520.

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178 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

2017, Barkley rushed for 1,271 yards, 18 rushing touchdowns, and made 54

receptions for another 632 receiving yards and 3 touchdowns.

It was an

impressive performance that confirmed Barkley as a top NFL prospect and

propelled Penn State football to eleven wins.

Yet in 2016, Barkley rushed for

1,496 yards—225 more yards than in 2017—with the same amount of rushing

touchdowns and an additional receiving touchdown as the Nittany Lions also

won eleven games during his true sophomore year.

NFL Draft expert Matt

Miller of Bleacher Report had seen enough of Barkley to call him “the best

running back prospect in a decade” back in June of 2017.

However, due to the

NFL’s age limit for entering the draft, Barkley endured another season of

amateur National Collegiate Athletic Association (NCAA) play, and given the

NFL’s complicated rookie wage scale, he continues to train endlessly in

preparation for the draft knowing the difference between being drafted first

overall or fifth overall could be millions of dollars in his rookie contract, which

for many players can be their only contract.

Across campus, nineteen-year-old Evan Barratt is relaxing and reflecting on

his freshman season with the Nittany Lions hockey team. Penn State went

18 –15–5 in the 2017-18 season, advancing to the semifinals of the Big Ten

Conference Tournament and qualifying for the 2018 NCAA Men’s Ice Hockey

Tournament.

Barratt recorded eighteen points in thirty-two games for Penn

State in his first collegiate season.

Although he finished only tenth on the team

in scoring, Barratt does not need to worry about his professional future. The

teenage forward has already been drafted into the National Hockey League

(NHL); he was selected in the third round of the 2017 NHL Draft by the Chicago

Blackhawks.

Barratt knows that he can take his time and develop properly at

Penn State while keeping in contact with Blackhawks’ management throughout

his college career. The NHL’s lack of an age limit in its draft rules allows for

. Saquon Barkley College Stats, SPORTS REFERENCE, https://www.sports-reference.com/cfb/play-

ers/saquon-barkley-1.html (last visited Dec. 13, 2018).

. Id.

. See Stick to Football (@sticktofootball), TWITTER (June 14, 2017, 7:30 AM), https://twitter.com/stick-

tofootball/status/874982360944660481. Matt Miller made his claim about Barkley on the June 14th edition

of Bleacher Report’s Stick to Football Podcast. Id.

. See Collective Bargaining Agreement Between National Football League and National Football

League Players Ass’n, art. 7, https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-

2011-2020.pdf (last visited Dec. 13. 2018) [hereinafter NFL CBA].

. See generally DI Men’s College Ice Hockey, NAT’L COLLEGIATE ATHLETIC ASS’N,

https://www.ncaa.com/sports/icehockey-men/d1 (last visited Dec. 13, 2018).

. Evan Barratt, ELITE PROSPECTS, http://www.eliteprospects.com (last visited Dec. 13, 2018).

. Id.

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2018] ADOPTING THE NHL MODEL 179

players to be drafted without having to be placed on a “draft list.”

Such action

would be counter to NCAA regulations and would cause an athlete in most other

sports to lose his or her amateur status under the governing body of

intercollegiate athletics.

The NHL also allows for teams to retain the rights of

drafted players who are currently playing or committed to playing in the NCAA

for five years.

Barratt can play a full four seasons at Penn State or, at any time,

leave and sign an entry-level contract with Chicago.

When he does sign, his

first contract will not look much different than that of the player selected first

overall.

Barratt faces far less pressure to perform at Penn State than does Barkley.

Barratt can focus more on his development into a professional player rather than

his performance as a collegiate player; the value of his first contract in the NHL

depends far less on draft slot and NCAA résumé than does Barkley’s in the NFL.

Barratt can focus more on his education without the additional concerns of

draft-readiness, seeing as he is already been drafted. Barratt does not face the

same worries that an injury could derail his pursuit of a professional career; if

health became an issue at the amateur level, he has the flexibility to turn

professional at any time and receive professional care, courtesy of the

Blackhawks, to aid in his recovery. Barkley is undoubtedly the superior player

in his sport, but faces a far more challenging amateur experience and a more

difficult road to the professional level. How can two student-athletes with

similar professional ambitions, competing at the same level at the same

institution, be in such different situations?

For more than eighty years now, entry drafts and—soon after—collective

bargaining agreements (CBAs) have dictated how players enter each of the four

major North American professional sports leagues: the NFL, National

Basketball Association (NBA), Major League Baseball (MLB), and the NHL.

Throughout that time, the inherent anticompetitive aspects of the amateur draft

system employed by all four league have only been amplified by age limits and

. See Collective Bargaining Agreement Between National Hockey League and National Hockey

League Players Ass’n, art. 8, at 16,

http://www.nhl.com/nhl/en/v3/ext/CBA2012/NHL_NHLPA_2013_CBA.pdf (last visited Dec. 13, 2018)

[hereinafter NHL CBA].

. NCAA, 2018-19 NCAA DIVISION I MANUAL art 12.2.4.2., at 70 (Aug. 1, 2018).

. See NHL CBA, supra note 11, art. 8.6(c).

. Id.

. Id. art. 9.

. The NFL held the first Entry Draft in 1936, while the NBA and National Basketball Players

Association struck the first CBA agreement in 1957. Draft Timeline – Football History, PRO FOOTBALL HALL

OF FAME, http://www.profootballhof.com/draft-timeline/#1930s (last visited Dec. 13, 2018); NBA Draft

Lottery: Facts, History, Probabilities & All-Time Results, NBA (May 18, 2015),

http://www.nba.com/news/draft-lottery-history/.

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restrictive rookie contracts, which have been an ongoing cause of concern for

players and teams alike. As early as 1971, the rules governing professional

sports drafts have faced numerous legal challenges.

In most cases, it has been

a player—both current and future—who has brought a league to court.

However, the NHL has quietly avoided such situations in its long history.

Even before the first NHL CBA, eighteen-year-olds were debuting at the

professional level and those drafted players in need of further development were

suiting up for NCAA teams without issue.

As will be discussed in far greater

detail, the flexibility afforded to both young players and member teams by the

NHL system, the language of which has now been translated into the league’s

CBA, has eliminated many of the issues that have plagued their professional

league peers.

For too long, the other three major professional leagues have come up with

excuses to enforce their age limits and complicate their rookie wage

configurations, all while ignoring the success that the NHL has had with a much

simpler approach. Now, the corruption in college basketball and the subsequent

creation of the Commission on College Basketball has re-opened the discussion

into the ideal path for athletes from high school to the professional ranks.

The

Commission openly criticizes the draft structures of the NBA and MLB in their

findings and calls for sweeping changes to the landscape of both intercollegiate

and professional basketball.

The many unnecessary and inequitable

requirements thrust on eager young athletes in basketball, as well as football

and baseball, are clear—a commissioned investigation is not necessary to

understand this—but the leagues themselves are handicapped by these rules as

well. Instead of waiting for another player to inevitably file a lawsuit

challenging the customs of one of these leagues, it is time that all three, and their

member teams, take a step back, re-evaluate their own policies and their

relationship with the NCAA, and consider the wide-spread benefit of adopting

the NHL Entry Draft and “Entry Level System” model.

This Article will introduce the history and basic structure of professional

sports amateur drafts and rookie salary limitations, as well as the effect of

collective bargaining, the previous legal challenges against these policies, and

the continuing struggles of collegiate athletes. It will then explore the reality of

. See generally Denver Rockets v. All-Pro Mgmt., 325 F. Supp. 1049 (C.D. Cal. 1971) (the case was

the first of its kind – a challenge to the restrictive NBA age limit).

. Barratt, supra note 9.

. See generally COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO

ADDRESS THE ISSUES FACING COLLEGIATE BASKETBALL (2018), https://www.ncaa.org/sites/de-

fault/files/2018CCBReportFinal_web_20180501.pdf.

. Id. at 29-32.

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2018] ADOPTING THE NHL MODEL 181

the negative effects that these draft structures have on the member teams

themselves and the changing landscape of each league, as well as examine the

role of the NCAA. Finally, it will outline the superior system implemented by

the NHL and hypothesize that the benefits of adopting the NHL model would

outweigh the benefits afforded by the current structures of the NFL, NBA, and

MLB.

II. THE EVOLUTION OF AND CHALLENGES TO THE PROFESSIONAL SPORTS

ENTRY DRAFT

A. Draft Defined

The “draft” is the primary mechanism by which amateur players have been

added to each of the four major North American professional sports leagues for

the better part of each of their existences. Every team in the league is assigned

one pick per round, which they are free to trade to another team if they so

choose, with no limits on the maximum or minimum number of selections a

team may make in a given draft year. Held on an annual basis, each league

determines their draft order following the completion of the league year. In one

manner or another, each of the four leagues implements a reverse-standings

draft order, rewarding the poor-performing teams finishing closer to the bottom

of the standings in the season prior with the opportunity to select the best

remaining players at the beginning of each round.

The purpose of the reverse-standings order is a representation of the overall

purpose of entry drafts: competitive balance.

Over time, the standard amateur

draft has been proven to be the fairest method for allocating talent across each

league and maintaining several balances crucial to success.

The first North

American professional sports draft was held by the NFL in 1936.

Prior to that

inaugural draft, incoming young players were free to sign with any team they

liked.

The result was large market teams and more successful teams

continually stockpiling the more elite young talent, leaving little for the remain-

der and creating great disparity across the league. Although member teams in a

professional sports league are framed as competitors, it is in each team’s best

interests for the level of competition to be more balanced in order to create a

more entertaining product. For that reason, the league’s nine owners, led by

. Jeffrey A. Rosenthal, The Amateur Sports Draft: The Best Means to the End?, 6 MARQ. SPORTS L.

REV. 1 (1995).

. Id.

. Draft Timeline – Football History, supra note 16.

. Id.

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Bert Bell of the last-place Philadelphia Eagles, created a method for all pro-

caliber players to be selected into the league, rather than signed as “free agents,”

and an inverse order that would enable weaker teams to select the top

draft-eligible talent.

As a result, University of Minnesota star and the

inaugural recipient of the Heisman Trophy, Jay Berwanger, was selected first

overall by Bell’s Eagles in that first draft.

Without a players’ union at the time, there was little resistance to the NFL’s

idea of a draft or its accompanying restrictions. It was soon embraced by the

NBA, then the Basketball Association of America, in 1947.

Though the league

originally dismissed the NFL’s “round” system, in favor of simply having teams

select collegiate players until the draft list was complete, the NBA would adopt

“rounds” ten years later in 1957.

From there the league would go through

several iterations of their draft model, including a territorial element and a

separate “hardship draft” for financially struggling underclassmen, before

settling on a structure that more closely resembles the other three major

leagues.

The NHL held its first Amateur Draft, now called Entry Draft, in 1963.

Not only did the NHL seek competitive balance like the NFL and NBA, they

also struggled with a unique problem of member teams “sponsoring” amateur

organizations and holding exclusive access to the products of those programs.

Unlike their peers, the NHL recruited almost exclusively from Canada in its

infancy and the Canadian junior-level teams had become similar to minor league

affiliates for specific NHL organizations.

NHL President Clarence Campbell

was a major proponent of adopting the “draft,” stating “[w]e’re ultimately

hopeful it will produce a uniform opportunity for each team to acquire a star

player.”

Set up very similar to the NFL model, though drawing from a more

eclectic talent pool, the draft met Campbell’s expectations and there has been

little issue with the draft format in the league ever since.

. Id.

. Timeline Detail, PRO FOOTBALL HALL OF FAME, http://www.profootballhof.com/time-

line/1930/1936-the-nfl-s-first-draft/ (last visited Dec. 13, 2018).

. See John C. Graves, Controlling Athletes with the Draft and Salary Cap: Are Both Necessary?, 5

SPORTS L.J. 185, 187 (1998).

. Id.

. Id. at 187-88.

. NHL Entry and Amateur Draft History, HOCKEY REFERENCE, https://www.hockey-refer-

ence.com/draft (last visited Dec. 13, 2018).

. Graves, supra note 28.

. NHL Entry and Amateur Draft History, supra note 31.

. Staff Writer, NHL Draft History, VANCOUVER CANUCKS (Apr. 21, 2008), https://www.nhl.com/ca-

nucks/news/nhl-draft-history/c-452733.

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2018] ADOPTING THE NHL MODEL 183

The final major sport to modernize, which is often true in many regards,

was baseball. The inaugural MLB First-Year Player Draft was held in 1965.

The league had finally grown tired of the disparity between teams, created by

the ability of large-market teams to both attract superior talent and afford the

means to scout and recruit more often and over a wider geographical area.

They also worried about inflating player salaries, driven up by the competition

between teams to sign largely unproven young players.

However, where baseball took things one step further was creating a

dichotomy of draft-eligible players. The NHL aside—the league has always

been comfortable with drafting teenagers—the NFL and NBA only allowed

college graduates to be eligible for selection in their earlier drafts.

The MLB

was not satisfied with this structure, but wanted to continue utilizing the NCAA

for player development when it suited them. Disguising the decision as

preventing young players from being “exploited,” the league ruled that those

choosing to attend college to further their athletic development would be

prohibited from entering the draft until after their sophomore year and, more

importantly, having reached the age of twenty-one.

The true intention of this

rule was again with an eye on salary inflation, allowing only those high school

graduates with the talent to immediately play at a professional level the ability

to command a salary, while ensuring that those deemed to be in need of

seasoning in the NCAA could not be drafted until an arbitrary point in the future

that the league saw as a fitting starting point for another class of prospects.

More than fifty years later, the essence of this draft structure is still the basis of

the MLB’s draft structure.

B. The Impact of the CBA Era

The problem with the concept of a “draft” in professional sports, or any

other unilateral decision by the leagues which restricted the movement of their

players, is that it could be classified as an antitrust violation. Section 1 of the

Sherman Antitrust Act, signed into law by President Benjamin Harrison in 1890,

. See First-Year Player Draft, MLB, http://mlb.mlb.com/mlb/history/draft/(last visited Dec. 13, 2018);

see generally Joanna Shepherd Bailey & George B. Shepherd, Baseball’s Accidental Racism: The Draft,

African-American Players, and the Law, 44 CONN. L. REV. 197, 201 (2011).

. Bailey & Shepherd, supra note 35.

. Id. at 200-01.

. Draft Timeline – Football History, supra note 16; NBA Draft Lottery: Facts, History, Probabilities

& All-Time Results, supra note 16.

. Id. at 201-02.

. Graves, supra note 28.

. First-Year Player Draft, supra note 35.

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184 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

explicitly states that “[e]very contract, combination . . . or conspiracy, in

restraint of trade or commerce among the several State . . . is declared to be

illegal.”

A Section 1 claim requires: a) the showing of the existence of such a

contract, combination, and conspiracy, and b) that it created a restraint of trade

which c) affected interstate commerce.

Section 2 was designed to punish

monopolies who, by definition, engage in the very same combinations and

conspiracies affecting trade, if there is evidence of the presence and use of

monopoly power.

The implied purpose of the statute was to dissuade

companies from engaging in practices that unreasonably restrained interstate

commerce within an industry, both in the product and labor markets. Preventing

the free market from deciding where young, incoming players in professional

sports leagues may sign a contract, and rules that limit rookie compensation, are

very much the type of labor market restraints that garner attention under the

Sherman Act.

However, professional sports have always been held to be unique industries

worthy of special considerations in terms of antitrust practices. In fact, a 1922

Supreme Court case held that baseball was exempt from antitrust law altogether,

a decision that protected the game from many challenges and allowed for labor

control that today may be considered unconscionable.

In Federal Baseball,

the court weighed the merits of the MLB’s controversial “reserve clause” under

antitrust law.

Justice Oliver Wendell Holmes came to the conclusion—since

seen by many as an aberration—that baseball’s labor market did not constitute

interstate commerce, and that player movement throughout the country was

purely incidental to a game played only within one state at a time.

Without

the element of interstate commerce, baseball could not be further challenged on

an antitrust basis, and the reserve clause was thus left unchecked. Football,

basketball, and hockey never enjoyed the same antitrust protections as baseball,

having never earned recognition as being exempt from antitrust scrutiny, but

. Sherman Antitrust Act, 15 U.S.C. § 1 (2018).

. Id.

. Sherman Antitrust Act, 15 U.S.C. § 2 (2018).

. See generally Fed. Baseball Club of Balt., Inc. v. Nat’l League of Prof’l Baseball Clubs, 259 U.S. 200

(1922).

. Id. The “reserve clause” required a player to re-sign in perpetuity with the team whom they had first

signed with until the point that either the team did not want him or the player decided to retire. It was not

until seventy-six years after Federal Baseball that Congress amended baseball’s antitrust exemption with the

Curt Flood Act of 1998, in honor of one of many antitrust challenges against the league that truly awarded

free agency rights to MLB players. See generally Edmund P. Edmonds, The Curt Flood Act of 1998: A Hollow

Gesture After All These Years?, 9 MARQ. SPORTS L. REV. 315 (1999).

. Id. at 209.

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2018] ADOPTING THE NHL MODEL 185

courts have acknowledged the functional and economic uniqueness of industries

wherein competitors share revenue and prefer a higher level of competition.

Yet, challenges to the draft and other elements of each league constitution,

which restrained the player markets, would have been more frequent and more

successful had it not been for the timely rise of labor unions. Although

counter-intuitive, the organizations created to protect players’ rights also gave

the league an avenue to safely negotiate terms that violate antitrust law. The

National Labor Relations Act of 1935, or Wagner Act, gave employees in an

industry the right to form labor unions and bargain in good faith with their

employers over employment terms, without the fear of interference or

discrimination.

This negotiation process, called “collective bargaining,”

results in a “Collective Bargaining Agreement” (CBA), a term that has gained

general awareness among laypeople due to its role in professional sports. The

doctrine of the “non-statutory labor exemption” shields agreed-upon terms

resulting from good faith collective bargaining from antitrust scrutiny; meaning,

amateur draft terms offered by a league and agreed upon by a players’

association cannot be found to violate the Sherman Act.

It also protects

unilaterally-imposed rules that resulted from a breakdown of the collective

bargaining process.

While many industries see labor unions as the enemy, there is no doubt that

players associations have helped the major North American professional sports

leagues maintain the status quo when it comes to the allocation and control of

talent.

The NBA was first to the table, establishing the National Basketball

Players Association (NBPA) in 1954 behind efforts of Boston Celtics star Bob

Cousy, and agreeing to the first CBA in 1957, under threat of strike.

It was

then that the unruly NBA Draft gained some structure with the adoption of the

“round” system.

Additionally, Cousy and company negotiated improvements

in playing and travel conditions, including a more flexible schedule, and in the

formation of a formal player-owner dispute system.

. See National Labor Relations Act, 29 U.S.C. § 151 (2018).

. See generally Brown v. Pro Football, Inc., 518 U.S. 231 (1996).

. Id. at 258-60.

. This is not to say that the NFL, MLB, NBA, and NHL have not had their fair share of conflicts with

their respective players’ unions; several work stoppages, both lockouts by the leagues and strikes by the

players, have occurred in the decades since collective bargaining began. Anthony Castellano, Work Stoppages

in U.S. Sports History, NEWSDAY, Oct. 24, 2012, https://www.newsday.com/sports/hockey/work-stoppages-

in-u-s-sports-history-1.2720169.

. About Us, NBPA, https://nbpa.com/about/ (last visited Dec. 13, 2018).

. NBA Draft Lottery: Facts, History, Probabilities & All-Time Results, supra note 16.

. About Us, supra note 52.

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The National Hockey League Players Association (NHLPA) was next up,

becoming certified by the NHL in 1967.

A group of players, led by respected

Detroit Red Wings player Ted Lindsay, worked toward being recognized as a

union a decade earlier, but fell short of matching the success of their NBA

counterparts.

A second attempt, spearheaded by player agent Alan Eagleson,

was not only successful, but surprisingly led to twenty-five years of relatively

conflict-free negotiation between the league and its players.

The National Football League Players Association (NFLPA) was actually

formed in 1956, but was not recognized by the league until 1968, when a work

stoppage forced the first CBA to be negotiated.

In the years prior, the NFLPA

had simply used the threat of an antitrust lawsuit challenging the NFL’s

unilateral rules restraining the player market, such as the draft, to get the league

to meet some of the players’ demands. In Radovich v. National Football

League, the NFL realized that it did not enjoy the same antitrust exemption as

baseball, and was therefore willing to work behind the scenes with the NFLPA

to prevent yet another decision detrimental to their rules.

It was not until the

threat of missed games and the growing stress of competing with the American

Football League—which would soon after merge with the NFL—became too

much that the league gave in and recognized the players union.

However, the

NFLPA failed in bargaining for many of the proposed changes most valued by

the players in the first CBA.

This may have been the precursor to a

league-union relationship that, in present day, many feel is the most unbalanced

of the four major sports leagues.

The year of 1968 also marked the first CBA between the MLB and the

Major League Baseball Players Association (MLBPA).

Baseball players had

long tried to unionize against the strict hold that the league had on player

movement, but had been largely unsuccessful.

A new approach in 1965 finally

gained enough traction to earn the union recognition three years later.

Under

the leadership of lauded economist Marvin Miller, the MLBPA succeeded in

. Liz Mullen, The Making of a Union, SPORTSBUS. J. (Jan. 23, 2017), https://www.sportsbusi-

nessdaily.com/Journal/Issues/2017/01/23/Labor-and-Agents/NHLPA.aspx.

. Id.

. History, NFLPA, https://www.nflpa.com/about/history (last visited Dec. 13, 2018).

. See 352 U.S. 445, 456 (1957).

. See History, supra note 58.

. Id.

. History, MAJOR LEAGUE BASEBALL PLAYERS ASS’N, https://www.mlbpa.org/history.aspx

(last visited Dec. 13, 2018).

. Id.

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2018] ADOPTING THE NHL MODEL 187

raising the minimum player salary and implementing an arbitration system for

grievances in their first CBA negotiation.

This was just the beginning, as

Miller would help change the landscape of professional baseball during his

tenure as MLPBA Executive Director. However, the Curt Flood Act of 1998,

which finally limited baseball’s antitrust exemption, stopped short of subjecting

the “First-Year Player Draft” to antitrust scrutiny and the rules have remained

unchallenged and under unilateral control of the league to this day.

C. Off the Court and Into the Courtroom

In the brief span of time between each league’s adoption of the amateur

draft model and the advent of players unions, professional sports—except

antitrust-immune baseball—were susceptible to bona fide legal challenges.

After the decision in Radovich, football, basketball, and hockey were confirmed

to not share in the same antitrust exemption as baseball, leaving them open to

attack for their unilateral decisions that restricted the players’ employment

location and terms, such as the draft and rookie contract restrictions.

Yet, no

such cases arose before the formation of each league’s players’ union and what

once could have been a more straightforward challenge became much more

difficult when a CBA was factored in.

That did not stop both the NBA and NFL from losing anti-trust challenges

in the 1970’s. Until the leagues and their respective players’ unions had come

to an agreement on all draft terms and elements of rookie compensation

structure, those rules remained unilateral and subject to antitrust scrutiny.

In 1971, Spencer Haywood challenged the restraints of the NBA Draft rules,

which had not yet become a subject of collective bargaining between the league

and the NBPA, and succeeded.

Haywood argued that the unilaterally imposed

age limit rule that an individual may not play in the NBA until his high school

class had graduated from college was unreasonable.

Haywood had the

experience to back up this claim; he had already won a gold medal with Team

USA Basketball at the 1968 Olympic Games as a teenager; played two

successful seasons of college basketball, including an All-American nod; and,

most importantly, had more than proved himself at the professional level as the

Most Valuable Player, Scoring Champion, All-Star, and Rookie of the Year

. Id.

. See Edmonds, supra note 46; see also supra note 45.

. See Radovich v. Nat’l Football League, 352 U.S. 445, 454 (1957).

. See Denver Rockets v. All-Pro Mgmt., 325 F. Supp. 1049, 1066-67 (C.D. Cal. 1971); see also

Haywood v. Nat’l Basketball Ass’n, 401 U.S. 1204 (1971).

. Denver Rockets, 325 F. Supp. at 1059.

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188 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

with the American Basketball Association’s Denver Rockets in 1969-70.

When Haywood signed with the NBA’s Seattle Supersonics in 1970, few could

argue that he did not belong in the world’s top basketball league, even if he had

not played the four full years of college basketball.

Yet, the NBA decided to uphold its rule and nullify Haywood’s contract. In

response, Haywood argued that this arbitrary age rule was a boycott in violation

of the Sherman Act.

The court agreed, holding that the inflexibility of the age

limit rule exposed its arbitrary nature, and using the financial struggles of

Haywood and his family as proof of this point.

The NBA’s argument that this

rule constituted a valid self-regulatory scheme fell short, as the court pointed

out that the lack of procedural safeguards for making reasonable exceptions to

the rule for talent and financial hardship made the policy overbroad and

arbitrary.

Had those safeguards been in place, the court may have come to a

different conclusion, but instead they ruled that the entire ban on players who

were not four years out of high school was unenforceable.

Haywood was

reinstated by the league and the NBA’s immediate reaction was to institute an

“economic hardship” draft, and later a waiver into the standard draft, before

eventually settling on simply allowing all high school graduates to enter the

draft—a policy that lasted nearly forty years.

Seven years later, James “Yazoo” Smith attacked not the age limit of the

NFL Draft, but its entire essence.

Forgotten by football history is the fact that

Smith actually won the case, as the NFL Draft was ruled to be an unreasonable

restraint of trade by the D.C. Circuit of the United States Court of Appeals.

the decade since the establishment of the NFLPA, the two sides had honored

the NFL’s draft rules, but it had not been a subject of collective bargaining.

Smith, an All-American from the University of Oregon, who had been a

twelfth-round pick of the Washington Redskins in 1975 and received just

$50,000 for a one-year contract, recognized this.

When injuries ended his

career after just that one year, Smith sued the league for the difference in salary

from what he would have been able to receive if given the opportunity to

. See Spencer Haywood College Stats, SPORTS REFERENCE, https://www.sports-refer-

ence.com/cbb/players/spencer-haywood-1.html (last visited Dec. 13, 2018).

. See Denver Rockets, 325 F. Supp. 1049.

. Id. at 1066; see Linseman v. World Hockey Ass’n, 439 F. Supp. 1315, 1323 (D. Conn. 1977).

. Denver Rockets, 325 F. Supp. at 1065.

. Id.

. Graves, supra note 28.

. See Smith v. Pro Football Inc., 593 F.2d 1173, 1174-75 (D.C. Cir. 1978).

. Id. at 1189.

. Id. at 1176.

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2018] ADOPTING THE NHL MODEL 189

negotiate with every team in the league instead of just the one team that drafted

him.

The court agreed that the draft had an anti-competitive effect on rookie

salaries and was in violation of the Sherman Act.

Smith was awarded treble

damages of the estimated difference between his actual and fair-market

salaries.

The court in Smith stated that “[t]he draft inescapably forces each seller of

football services to deal with one, and only one buyer, robbing the seller, as in

any monopsonistic market, of any real bargaining power.”

This statement is

undeniably true, and the NFL—along with the other major sport leagues—knew

it. However, the NFL had a fool-proof plan for countering the decision in Smith:

taking advantage of the “non-statutory labor exemption.”

Before the final

decision had even been made, the NFL and the NFLPA agreed to a new CBA

in which the players association had, for the first time, officially sanctioned the

NFL Draft, with all pre-existing rules intact.

Smith’s victory against the NFL

would serve to only benefit himself, as the essence of the draft was back at

full-strength almost immediately.

The NFL had previously learned first-hand of the power of the

“non-statutory labor exemption.” In Mackey v. National Football League, a

group of veteran players challenged a rule that had previously been unilaterally

enforced by the league.

In analyzing the situation in the context of a rule that

could have been collectively bargained but was not, the court laid a new

groundwork for antitrust review in this area that stretches beyond just

professional sports cases. The court developed a three-prong test to determine

if the term must be collectively bargained or, if not, if it is an unreasonable

restraint of trade in violation of antitrust law: 1) does the restraint of trade

primarily affect parties of the collective bargaining agreement; 2) was the

subject matter part of the collective bargaining agreement; and 3) was the

subject matter a product of bona fide arm’s length bargaining.

The court held

. Id. at 1177-78.

. Id. at 1186-89.

. Id. at 1189-91.

. Id. at 1185.

. See Eriq Gardner, In 1970, James “Yazoo” Smith Sued the NFL to Shut Down the Draft. What

Happened Next?, SLATE (Apr. 23, 2009), http://www.slate.com/arti-

cles/sports/sports_nut/2009/04/rookie_abuse.html.

. Id.

. 543 F.2d 606 (8th Cir. 1976). The rule in question, known as the “Rozelle Rule” after Commissioner

Pete Rozelle, required a team signing a free agent to compensate the free agent’s former club. Id. at 610-11.

Although this rule was struck down as violating antitrust law, the essence of it still remains to this day in the

NFL’s collectively-bargained restricted free agency rules. Id. at 623; see NFL CBA, supra note 7, art. 9.

. Mackey v. Nat’l Football League, 543 F.2d 606, 614 (8th Cir. 1976).

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190 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

that the rule only affected veteran players, a party of the CBA, and was thus a

mandatory subject of bargaining, but had not, in fact, been collectively

bargained.

As such, there was no “statutory labor exemption” in play and the

rule was a Sherman Act violation.

However, the main takeaway from Mackey, in the sport context, was that—

perhaps unintentionally—the court gave the NFL and the other major North

American sports leagues a step-by-step process to create valid, collectively

bargained rules that could restrict the player market while withstanding antitrust

challenge.

Thus, began a new, far less successful era of antitrust challenges against the

major North American sports leagues. By opening up draft and rookie

compensation rules to collective bargaining, the leagues knew that the product

would be a format for introducing new, young talent to their teams by

antitrust-impervious means. NBA star Oscar Robertson and several of his peers

were the first to learn of this new reality.

The players filed a suit against the

league challenging almost every element of its governance on antitrust

grounds.

The court agreed that nearly every system for restricting players was

a per se violation of the Sherman Act, but simply held that since each was a

result of bona fide collective bargaining, they were exempt under the

“non-statutory labor exemption.”

The true victims of this fundamental exception to antitrust laws are those

held to the terms of a CBA without having a true seat at the table. While

Robertson and other veteran players already in a professional sports league are

represented by their players’ union, those at the college level must abide by the

collectively bargained rules even though they do not have a voice. In 1987,

California State University - Fullerton basketball player Leon Wood brought an

antitrust suit against the NBA, challenging the draft and other unreasonably

restrictive measures that deflated his earning potential as a rookie, with his

primary argument being that college student-athletes are “outside of the

bargaining unit” and, under Mackey, should not be held to

collectively-bargained rules.

However, the court held that the National Labor

Relations Act includes potential future employees in their definition of

employees; thus, including student-athletes in a group with veteran professional

. Id. at 615.

. Id. at 616.

. See Robertson v. Nat’l Basketball Ass’n, 556 F.2d 682 (2d Cir. 1977).

. Id. at 686.

. Id.; see generally Powell v. Nat’l Football League, 678 F. Supp. 777, 789 (D. Minn. 1988).

. Wood v. Nat’l Basketball Ass’n, 809 F.2d 954, 960 (2d Cir. 1987).

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2018] ADOPTING THE NHL MODEL 191

athletes, even though their goals often may not align.

The court more or less

sanctioned the concept that the NBA and other professional sports league could

limit the salaries and employment autonomy of incoming “employees” who

never had, and will never have, a say in the matter.

In the most recent major antitrust case in sports, Ohio State University

running back Maurice Clarett sued the NFL over their age limit, arguing that a

rule bargained without the representation of college athletes that specifically

excluded college athletes of a certain age from joining the league was a Sherman

Act violation.

Clarett had been an elite talent at Ohio State, contributing

eighteen touchdowns during his freshman season, leading the Buckeyes to a

National Championship in 2002.

The combination of his success, the financial

struggles of his family, and a suspension from college football in 2003 for

receiving improper benefits, led Clarett to challenge the league for entry prior

to the three-year mark required.

Clarett attacked the three prongs of the

Mackey test, arguing that the NFL failed to secure antitrust protection for its age

limit because the rule: 1) does not concern the rights of NFL teams or players, but

instead the players excluded from participating in the NFL; 2) does not concern a

mandatory subject of bargaining, as Clarett would not “vitally affect” any veteran

players, but rather draft-eligible players; and 3) the age limit rule was not contained

in the current CBA.

The district court found Clarett’s argument to be persuasive

and ruled in his favor.

However, the U.S. Court of Appeals for the Second Circuit

overturned the decision on appeal, dismissing the Mackey test argument.

The court

held that the age limit rule was a valid, collectively bargained rule that withstood

antitrust scrutiny.

100

Having already hired an agent ahead of the 2004 NFL Draft,

forfeiting his remaining NCAA eligibility in the process, Clarett was left without a

place to play that year. After a year off, Clarett entered the 2005 draft and was

selected in the third round by the Denver Broncos; but never saw a regular season

snap in the NFL.

101

The age limit not only prevented a professional ready prospect

from entering the league, but in defending it the NFL lost a potential star.

. Id.; see generally Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964).

. Clarett v. Nat’l Football League, 369 F.3d 124, 126 (2d Cir. 2004).

. Maurice Clarett College Stats, SPORTS REFERENCE, https://www.sports-reference.com/cfb/play-

ers/maurice-clarett-1.html (last visited Dec. 13, 2018).

. Clarett, 369 F.3d at 126.

. Michael A. McCann & Joseph S. Rosen, Legality of Age Restrictions in the NBA and the NFL, 56

CAS. W. RES. L. REV. 731, 741-43 (2006) (discussing Clarett v. Nat’l Football League, 306 F. Supp. 2d 379

(S.D.N.Y. 2004)).

. Clarett v. Nat’l Football League, 306 F. Supp. 2d 379, 409-11 (S.D.N.Y. 2004).

. Clarett, 369 F.3d at 142-43.

100

. Id.

101

. Maurice Clarett College Stats, supra note 95.

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192 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

The next part of this Article will discuss how the recent lack of success in

the courtroom will not necessarily dissuade further challenges to the structures

of the NFL, NBA, and MLB, as student-athletes continue to struggle with the

same problems.

III. AN UNSELFISH PERSPECTIVE

A. The Struggles of a Student-Athlete

The legal avenue to challenging professional sports leagues’ policies on

antitrust grounds, so long as they are the product of collective bargaining with

a players’ union, appears to be closed. Courts have been consistent in their

decision that collectively bargained terms are impervious to antitrust scrutiny.

Yet, in all likelihood, another case will come along soon enough, with efforts to

poke holes in that precedent. Student-athletes with professional ambitions will

continue to push to eliminate the age limits and rookie structures of the NFL,

NBA, and MLB because those student-athletes continue to feel the negative

effects of their entry into the professional ranks being limited.

In many ways, the NCAA takes advantage of standout student-athletes by

capitalizing on their value, both on the field and in their name, image, and

likeness, without the actual athletes getting fair value for their services and

identities. Countless authors have written about the plight of the college athlete

and now actual change has begun to improve student-athlete rights behind the

efforts of those like Ed O’Bannon.

102

However, the source of many problems for student-athletes in

“revenue-generating sports” comes not from the NCAA, but from the

restrictions enforced by the professional leagues. While the NCAA and its

member institutions benefit from these student-athletes participating in

intercollegiate sports, it is the NFL, NBA, and MLB keeping them at the

amateur level when often they are ready—and desperately needing—to move

on to the professional game.

Situations like those of Spencer Haywood and Maurice Clarett, wherein an

athlete from a poor background needs money to support his family, are still very

present in college athletics. As professional ready basketball and football

prospects are denied the ability to enter their respective professional leagues by

age limits, many of their families struggle to get by, and zero income is being

provided from the college level. This is the exact scenario that the court in

Haywood ruled that leagues needed to have flexible safeguards for, which led

102

. See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015); see also ED

O’BANNON & MICHAEL MCCANN, COURT JUSTICE: THE INSIDE STORY OF MY BATTLE AGAINST THE NCAA

(Diversion Books 2018).

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2018] ADOPTING THE NHL MODEL 193

to the short-lived “hardship draft.”

103

Now that draft terms are collectively

bargained, that inflexible nature can no longer be exploited.

Shabazz Napier, a two-time National Champion for the University of

Connecticut men’s basketball program in the early 2010’s, is one of a number

of high-profile student-athletes who have gone public with their distress of

living through these dire conditions.

104

Napier spoke up, not only for himself

but for a number of his peers going through the same struggles and was met

with support from around the college level.

105

While Napier needed four years

of collegiate experience to establish himself as a legitimate NBA prospect, he

was a first-round pick of the Charlotte Hornet in 2014, others around him in

collegiate basketball, football, and even baseball are felt the same pressures to

support their families and already had the talent to play at the professional

level.

106

Instead, they were held back by arbitrary age limits implemented by

the leagues. It is no wonder that the NCAA stage suffers from “levels of

corruption and deception . . . that threaten the very survival of the college

games” when some student-athletes are simply desperate to accept a payout

wherever they can get it.

107

While poverty is a serious problem, those professional caliber college

athletes know that eventually they will be paid to some extent. The same is not

true for professional caliber athletes whom deal with injuries while in the

NCAA. When the professional leagues force players to remain at the amateur

level for a certain amount of time, they are adding additional wear and tear to

their bodies (while they play for free at school), and limiting their future

earnings if those injuries continue. Sometimes, especially in football, recurring

injuries over a college career can completely derail a student-athlete’s

professional ambitions.

One of the best college running backs in recent memory was Marcus

Lattimore of the University of South Carolina. As a true freshman in 2010,

Lattimore played in all thirteen games for the Gamecocks, rushing for 1197

103

. Denver Rockets v. All-Pro Mgmt., 325 F. Supp. 1049, 1060 (C.D. Cal. 1971).

104

. Shabazz Napier College Stats, SPORTS REFERENCE, https://www.sports-reference.com/cbb/play-

ers/shabazz-napier-1.html (last visited Dec. 13, 2018); Rodger Sherman, Shabazz Napier: ‘There’s Hungry

Nights Where I’m Not Able to Eat’, SB NATION (Apr. 7, 2014), https://www.sbnation.com/college-basket-

ball/2014/4/7/5591774/shabazz-napier-uconn-basketball-hungry-nights.

105

. Sherman, supra note 104; Jeremy Fowler, Ole Miss’ Bo Wallace: Shabazz Napier Was Right,

Players Go Hungry at Night, CBS SPORTS (July 17, 2014), https://www.cbssports.com/college-foot-

ball/news/ole-miss-bo-wallace-shabazz-napier-was-right-players-go-hungry-at-night/.

106

. Shabazz Napier College Stats, supra note 104.

107

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 1.

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194 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

yards and 17 touchdowns.

108

In his first season of collegiate football, Lattimore

recorded rushing numbers that were superior to Heisman Trophy winner, and

2011 first-round pick, Mark Ingram, as well as Ryan Williams, and Shane

Vereen, whom were both selected early in the second round.

109

Had he been

draft-eligible, Lattimore almost surely would have been selected in the first

round ahead of that trio of talented players. Perhaps with professional medical

supervision and professional strength training, he could have gone on to be a

top NFL running back. However, as a true freshman, Lattimore was not one,

but two years away from meeting the NFL’s age limit and had to stay at South

Carolina. In 2011, Lattimore suffered a torn right knee ligament and was limited

to just seven games; in 2012, he suffered a dislocated knee cap and tore every

ligament in that same right knee after just nine games.

110

Desperate for

professional care, Lattimore entered the 2013 NFL Draft despite missing

considerable time in each of the past two seasons.

111

He was selected in the

fourth round by the San Francisco 49ers and spent his entire rookie season

rehabbing his knee, but was forced to retire in 2014, having never played a

professional snap.

112

Lattimore received just over $800,000 for the parts of two

seasons he spent in the NFL; in comparison, Ingram has earned more than $22

million in his eight years of service.

113

It was not just his own loss, but the

NFL’s, as Lattimore was a potential star who never got his chance.

B. Time for Teams to Take a Stand

Stories such as these, which outline the many struggles of student-athletes,

are far too common. In many, it is far too apparent that the fault lies with the

professional leagues and their arbitrary draft rules. Yet, the NFL, NBA, and

MLB continue to turn a blind eye to the plight of their potential future players

in favor of a system that they feel benefits their teams.

Do these draft structures really provide the overwhelming benefits to their

member teams that the leagues think they do? Age limits and rookie wage

structures handicap the teams’ abilities to control their own roster management.

108

. Marcus Lattimore College Stats, SPORTS REFERENCE, https://www.sports-reference.com/cfb/play-

ers/marcus-lattimore-1.html (last visited Dec. 13, 2018).

109

. Id.

110

. SI Wire, San Francisco 49ers Running Back Marcus Lattimore Retires Due to Knee Injury, SPORTS

ILLUSTRATED, Nov. 5, 2014, https://www.si.com/nfl/2014/11/05/san-francisco-49ers-marcus-lattimore-re-

tires-knee-injury.

111

. Id.

112

. Id.

113

. Mark Ingram Contract Details, Salary Cap Breakdowns, Salaries, Bonuses, SPOTRAC,

http://www.spotrac.com/nfl/new-orleans-saints/mark-ingram-7743/cash-earnings/ (last visited Dec. 13,

2018).

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2018] ADOPTING THE NHL MODEL 195

Teams should be allowed to determine who is and is not ready to play

professionally. They should be free to call upon a prospect when they see fit

and compensate him according to his role, potential, and performance, not by a

value and term predetermined by the league. In many ways, the NFL, NBA,

and MLB, who are supposed to represent the owners of their member teams, are

only making it more difficult for those teams to do their jobs.

The next part of this Article will describe the current draft structure of each

of the other three major North American leagues, including their age limit policy

and rookie wage scale, and debate the pros and cons of the restrictions that they

have placed upon themselves and their players.

IV. THE CURRENT FORMAT OF AND ONGOING PROBLEMS WITH THE NFL,

NBA, AND MLB AMATEUR DRAFTS AND ROOKIE WAGE SCALES

A. The National Football League

The NFL Draft is by far the most well-known professional sports draft. The

three-day event takes place annually each spring.

114

The first two days air

during prime-time on Thursday and Friday, and the third and final day takes

place on Saturday afternoon with all days covered by the NFL Network, ESPN,

and ESPN2, and, for the first time in 2018, coverage expanded to Fox and

ABC.

115

The popularity of the college game, which in some parts of the country

exceeds its professional counterpart, combines with the popularity of the NFL

to create a large-scale television event, which generates year-long intrigue and

a near cottage industry surrounding what is essentially an administrative

operation of the league.

The NFL Draft is comprised of seven rounds with each round containing

the same number of picks as NFL teams (thirty-two), as well as additional

compensatory picks (also at a maximum of thirty-two) awarded to teams for

“losing certain Unrestricted Free Agents” for a maximum of 256 selections

(verify amount).

116

The draft order for each round is determined by a purely

inverse-standings basis.

117

Those picks are used to select from a narrow group of draft-eligible athletes.

For an individual to be eligible for entry into the NFL Draft, three NFL seasons

114

. NFL CBA, supra note 7, art. 6 § 2(a).

115

. National Football League, NFL Expanding Television Coverage for 2018 NFL Draft, NFL (Mar. 21,

2018), http://www.nfl.com/news/story/0ap3000000922401/article/nfl-expanding-television-coverage-for-

2018-nfl-draft.

116

. NFL CBA, supra note 7, art. 6 § 2(a).

117

. Id.

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196 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

must have passed since his high school graduation.

118

In general, this means

that the earliest a college football player may enter the NFL is following his

junior season. A more common occurrence in recent years has also seen players

enter the draft after their sophomore season, given that they spent one year as a

“redshirt” at the college level and did not see any game action. For any player

to be eligible for selection, he must specifically apply for eligibility.

119

For those

student-athletes who have not yet exhausted their NCAA eligibility—redshirt

sophomores and redshirt and true juniors—this application process requires

risking the remainder of their NCAA careers.

120

A student-athlete may enter the

NFL Draft one time during their collegiate tenure without losing their amateur

eligibility, so long as they declare their intention to resume playing at the college

level prior to the draft and are not drafted by any team.

121

Absent these

conditions, a student-athlete declaring early for the NFL Draft will not be

allowed to play football in the NCAA again, even if they go undrafted or refuse

to sign a contract with the team that drafted them.

122

Once drafted, rookies—and teams—face a complex and strict salary

structure to determine their first contract. A team must first only offer a

four-year, minimum salary contract to each selection to ensure exclusive

negotiating rights with that player.

123

However, most players receive contract

offers exceeding this minimum amount. When negotiating those contracts, the

NFL not only limits each team, but all teams in aggregate.

124

The “Total Rookie

Compensation Pool” is a league-wide limit on total rookie salary, drafted and

undrafted, over the entirety of their contracts.

125

This allotment is further broken

down into a “Year-One Rookie Compensation Pool,” which limits overall team

spending in the first season of these rookie contracts.

126

Each club’s

proportional share of these pools is determined by their total number of draft

selections as well as the round and position of each selection, plus a

one-thirty-second share of the “Undrafted Rookie Reservation.”

127

Then, each

individual rookie is limited in their share of the team’s allocation by a formula

118

. Id. art. 6 § 2(b).

119

. Id.

120

. NCAA, supra note 12.

121

. Id. art. 12.2.4.2.3.

122

. Id. art. 12.2.4.2.

123

. See NFL CBA, supra note 7, art. 6 §§ 3-4(c) (explaining that if a player does not sign the required

tender or a superior offer by the tenth week of the regular season, he forfeits his rookie year eligibility and

must re-enter the subsequent draft and repeat the process).

124

. Id. art. 7 § 1(c).

125

. Id.

126

. Id. § 1(d).

127

. Id. §§ 1(e)-(f), (i).

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2018] ADOPTING THE NHL MODEL 197

that determines a range for their allotment of the total and first-year pools based

on the round and position they were selected.

128

The length of these contracts

are also dictated by round: first-round picks are required to sign for four years

with a fifth-year team option, all other draft picks must sign a four-year contract,

and undrafted rookie free agents may only sign a three-year contract.

129

Even

the types of bonuses and clauses that may be included in a rookie contract are

dependent on if and where a player was drafted.

130

The NFL Draft and rookie wage structure are overwhelmingly restrictive.

The league’s policies leave little to no free will for teams in negotiating rookie

contracts nor do they allow teams to make many decisions in terms of player

development. The term “prospect” is one rarely heard in regards to professional

football. Due to the age of draft-eligible players—three years or more out of

high school, generally over twenty-one—and the physicality of the game, teams

have little option but to play rookies right away. While the average NFL career

for a first-round pick is nine years, the average overall is much shorter at just

three years.

131

Running backs in particular, like Barkley, Clarett, and Lattimore,

last around two-and-a-half years on average.

132

For some players, these

durability concerns often mean that their largely predetermined rookie contracts

are their only NFL contracts. For teams, durability concerns mean that there is

little time to waste with acclimating rookies to the professional level. If a young

player with guaranteed money in his contract is struggling to fit into a team’s

game plan, the mandated length of his contract will either cost the team a roster

spot or cost the player his job and the team a salary cap penalty. With the growth

of college football, an unintended side effect has been the development of

different, non-professional offensive and defensive schemes that are designed

to win in the NCAA, but handicap players, especially coveted quarterbacks, at

the next level.

133

The NFL teams must shoulder this burden, as it lacks a

minor-league system, and thus must themselves spend time re-teaching players

whom may be only a few years away from retirement.

So why not allow players to be drafted earlier and developed more naturally,

and allow teams more flexibility to judge durability and professional readiness

when determining contract length and value? The plaintiff in the Clarett case

128

. Id. § 1(g)-(h).

129

. Id. § 3(a).

130

. Id. § 3(b).

131

. NFL: Average Career Length, STATISTA, https://www.statista.com/statistics/240102/average-

player-career-length-in-the-national-football-league/ (last visited Dec. 13, 2018).

132

. Id.

133

. Barry Petchesky, College QBs Are Unprepared for the NFL, DEADSPIN (Sept. 9, 2015), https://dead-

spin.com/college-qbs-are-unprepared-for-the-nfl-1729636094.

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198 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

asked the same question.

134

The NFL’s response was that the age limit rule was

premised on four beliefs: 1) the players lack the requisite maturity, mentally and

physically, at a younger age; 2) younger players are more prone to injury; 3)

allowing younger players would damage the NFL product and alienate fans; and

4) younger players are more likely to use steroids.

135

Among the many problems

with this rationale is that the league is making these determinations on behalf of

all of their teams. The coaching staffs and front offices of all thirty-two NFL

franchises are more than capable of making their own decisions on a player’s

maturity and behavior, durability, and image. In fact, they make those decisions

every year when drafting players. The NFL’s argument is essentially that their

teams cannot make the same decisions on players who are only a couple of years

younger.

The other problem the NFL faces, regarding its “damaged image” claim, is

that the demand for younger players is rising among both fans and team

executives. Football players are getting better at a younger age than ever before,

and some are professional ready even out of high school. There were 106

“underclassmen” athletes whom applied for the NFL Draft in 2018 with NCAA

eligibility still remaining.

136

This set a new record for the draft, exceeding the

previous mark set in 2014 by nearly twenty players.

137

The first overall pick in

each of the past four drafts have been an underclassmen, including redshirt

sophomore quarterback Jameis Winston in 2015.

138

In that same time span, six

of the eight recipients of the Rookie of the Year Award, given out to both an

offensive and defensive player each season, left college with eligibility

remaining, with the 2017 winners—running back Alvin Kamara and cornerback

Marshon Lattimore—having both played just two years in the NCAA.

139

Even

at the college level, younger talent is being recognized for its improved

134

. See Clarett v. Nat’l Football League, 306 F. Supp. 2d 379, 382 (S.D.N.Y. 2004).

135

. Id. at 408.

136

. College Football 24/7 Staff, List of Underclassmen Granted Eligibility for 2018 NFL Draft, NFL

(Jan. 19, 2018), http://www.nfl.com/news/story/0ap3000000908163/article/list-of-underclassmen-granted-el-

igibility-for-2018-nfl-draft.

137

. Id.

138

. See 2018 NFL Draft Listing, PRO-FOOTBALL REFERENCE, https://www.pro-football-refer-

ence.com/years/2018/draft.htm (last visited Dec. 13, 2018); see also 2017 NFL Draft Listing, PRO-FOOTBALL

REFERENCE, https://www.pro-football-reference.com/years/2017/draft.htm (last visited Dec. 13, 2018); 2016

NFL Draft Listing, PRO-FOOTBALL REFERENCE, https://www.pro-football-refer-

ence.com/years/2016/draft.htm (last visited Dec. 13, 2018); 2015 NFL Draft Listing, PRO-FOOTBALL

REFERENCE, https://www.pro-football-reference.com/years/2015/draft.htm (last visited Dec. 13, 2018).

139

. See AP Offensive Rookie of the Year Winner, PRO-FOOTBALL REFERENCE, https://www.pro-foot-

ball-reference.com/awards/ap-offensive-rookie-of-the-year-award.htm (last visited Dec. 13, 2018); see also

AP Defensive Rookie of the Year Winner, PRO-FOOTBALL REFERENCE, https://www.pro-football-refer-

ence.com/awards/ap-defensive-rookie-of-the-year-award.htm (last visited Dec. 13, 2018).

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2018] ADOPTING THE NHL MODEL 199

standing. Before 2004, only thirteen underclassmen had ever received the

Heisman Trophy as the best player in college football in its sixty-nine-year

history.

140

Since 2004, twelve of the fourteen recipients have been

underclassmen, including three sophomores (in a row) and two freshman

(back-to-back).

141

The NFL is undeniably the most popular sport in the United States, but it is

not without its flaws.

142

As the popularity of the college game grows, the

competition level in the NCAA will increase. The NFL will continue to see

more elite talent at a younger age, but will also see more frequent injuries and

more players being groomed to win at the college level, rather than succeed in

the professionals. The strict nature of the NFL Draft age limit and the league’s

rookie wage structure do not suitably accommodate these trends and the teams

would be better off if the league would consider changes.

B. The National Basketball Association

Of the three leagues in question, the NBA is closest to making changes to

its current draft model. The notorious “one-and-done” rule, as it has become

known, is mired in controversy with opposition coming from players, teams,

and college programs alike. The past year has seemingly led the NBA to a

tipping point and the league must decide soon: eliminate the age limit or extend

the age limit.

In 2005, NBA Commissioner David Stern worked to limit the entry of

players into the NBA Draft for the first time since the Haywood decision. He

succeeded in negotiating an age limit into the 2005 CBA that stated a player

may only enter the NBA Draft if he is age nineteen or older and at least one

NBA season has passed since his high school graduation.

143

This rule has gone

unchanged since 2005 despite immediate and continuing backlash.

144

As a result, a precedent has been set that all professional caliber basketball

players should attend at least one year of college before they can play in the

140

. Heisman Trophy Winners List, HEISMAN, http://heisman.com/sports/2015/12/7/Heisman%20Win-

ners_records.aspx (last visited Dec. 13, 2018).

141

. Id. (including the vacated 2005 Heisman Award given to USC running back Reggie Bush).

142

. The NFL was responsible for twenty-two of the twenty-five most-watched sporting events in 2017.

See generally Most Watched Sporting Events in the U.S. 2017, STATISTA, https://www.statista.com/statis-

tics/619023/number-tv-viewers-sporting-events-usa/ (last visited Dec. 13, 2018).

143

. See generally CBA Principal Deal Points, NBA (Aug. 4, 2005),

http://www.nba.com/news/cba_summary_050804.html.

144

. See Collective Bargaining Agreement Between the National Basketball Association and National

Basketball Players Ass’n, art. X § 1(b)(i), http://3c90sm37lsaecdwtr32v9qof.wpengine.netdna-cdn.com/wp-

content/uploads/2016/02/2017-NBA-NBPA-Collective-Bargaining-Agreement.pdf (last visited Dec. 13,

2018) [hereinafter NBA CBA].

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200 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

NBA. Stern publicly stated that the age limit decision was meant to protect

players, to both keep NBA scouts out of high school gyms, and to prevent

further cases of underdeveloped teenagers struggling at the professional level.

145

In reality, Stern was representing the frustrations of NBA coaches and

executives, whom felt developing high school players paid off too

infrequently.

146

The NBA saw an opportunity to use the NCAA as a free

minor-league, to scout and develop young talent, for at least one year.

As such, the NBA Draft class each year is a hotchpot of players at varying

levels of college experience. Freshmen, sophomores, juniors, and seniors

comprise the available talent, as well as international players whom meet the

age criteria. Held annually, usually in late June, the NBA Draft consists of two

rounds with only as many picks in each round as the thirty NBA teams.

147

The

NBA has used a lottery system to determine the first three picks of the draft

since 1985.

148

The trend in recent years has been to use those top selections to

take the best of the youngest players; a lottery pick has not been used on a

non-freshman since Victor Oladipo and Otto Porter were selected second and

third overall respectively in 2013.

149

The 2017 draft class was the youngest in

league history, with the most freshman and fewest seniors ever selected.

150

Much like in the NFL, once a player has been drafted into the NBA there is

little flexibility when to comes to negotiating their first contract. All draft picks

are first offered a “Required Tender” of a minimum-value contract determined

by the league to lock in exclusive negotiating rights.

151

All first-round picks are

required to sign a two-year contract with team options for third and fourth

years.

152

The “Rookie Salary Scale” determines a value that the player should

be compensated with, depending on the position they were drafted and the salary

cap ceiling in the first year.

153

In the first two years of the contract, as well as

the first option year, the player must be paid at least 80% of that value in base

145

. Buzz Bissinger, Bring Back Basketball’s Little Big Men, N.Y. TIMES, Oct. 26, 2009, https://www.ny-

times.com/2009/10/27/opinion/27bissinger.html

146

. Id.

147

. NBA CBA, supra note 144, art. X §§ 2- 3(a).

148

. NBA Draft Lottery: Facts, History, Probabilities & All-Time Results, supra note 16.

149

. 2013 NBA Draft, BASKETBALL REFERENCE, https://www.basketball-refer-

ence.com/draft/NBA_2013.html (last visited Dec. 13, 2018).

150

. See 2017 NBA Draft, BASKETBALL REFERENCE, https://www.basketball-refer-

ence.com/draft/NBA_2017.html (last visited Dec. 13, 2018).

151

. NBA CBA, supra note 144, art. X § 4(a). Like in the NFL, an NBA rookie must sign his required

tender, if it is the best offer made, or else he may not play in the NBA that season and would be forced to

re-enter the subsequent draft. Id.

152

. Id. art. VIII § 1(a).

153

. Id. § 1(b)(i).

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2018] ADOPTING THE NHL MODEL 201

salary, but base salary plus “unlikely bonuses” may not exceed 120% of the

value.

154

The NBA provides both the “Rookie Salary Scale” value and required

base salary scale value up front, so teams and first-round selections know

immediately what their negotiating range is.

155

A second-round pick or

undrafted free agent does not face the same negotiating restrictions as a

first-round pick, but also does not enjoy the same benefits. Often these players

must accept the minimum “Required Tender.” While inflexible, the NBA’s

rookie wage system is by-and-large a fair process for the thirty first-round

selections. Beyond that, there is a severe lack of security for late picks and

undrafted free agents.

The “one-and-done” rule is troublesome to many because it devalues

education, promotes corruption, and harms young athletes. By essentially

forcing young, professional caliber basketball players to go to school for a year

for no reason other than to play basketball, the NBA’s age limit is at odds with

the NCAA’s purpose of promoting both athletics and education. The result has

been the creation of an environment at the college level that more closely

resembles the professional game than the NCAA’s desired “amateurism.” Elite

high school players realize that they are going to school not to learn, but to play

basketball, and recently exposed scandals show that coaches and apparel

companies share in that understanding.

156

The Federal Bureau of Investigation

took a deep look into the behind-the-scenes operations of college basketball and

uncovered evidence of numerous college programs receiving payouts from

agents and shoe executives, which even led to criminal charges.

157

This

prompted the creation of the Commission of College Basketball in October of

2017.

158

The chairman of the Commission, former Secretary of State

Condoleezza Rice, called the situation in college basketball a “crisis of

accountability” and did not shy away from including the NBA in the share of

the blame; calling for the end of the “one-and-done” rule.

159

In fact, the abol-

ishment of the NBA’s current age limit was Recommendation 1-A to open up

154

. Id. § 1(c)(i).

155

. Id. at Exhibit B-1, B-2.

156

. Andy Staples, FBI Probe Into College Basketball: NCAA Must Change Rules, SPORTS

ILLUSTRATED, Feb. 23, 2018, https://www.si.com/college-basketball/2018/02/23/fbi-probe-investigation-

ncaa-recruiting-rules-andy-miller

157

. Id.

158

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 1-3.

159

. Liz Clarke & Will Hobson, NCAA Basketball Commission: Loosen Some Rules, But Don’t Pay

Players, WASH. POST, Apr. 25, 2018, https://www.washingtonpost.com/sports/colleges/college-basketball-

commission-calls-for-rules-changes-but-sticks-with-amateurism/2018/04/25/8365e31c-4880-11e8-8b5a-

3b1697adcc2a_story.html?utm_term=.8e96d859b088.

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202 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

the Commission’s report.

160

The Commission also stressed concern over the

increasing number of student-athletes whom leave school early, only to go

undrafted or have short-lived NBA careers.

161

This is not the first time that the

debate has become political either: former Secretary of Education Arne Duncan

previously criticized the age limit citing a disconnect between the value of

education and the NBA’s true intentions with the rule.

162

While the NBA and NBPA released a joint statement acknowledging and

supporting the findings of the Commission on College Basketball, the reality is

that they currently do not feel the ill-effects of scandal at the NCAA level.

163

Only 1.2% of college basketball players go on to play in the NBA, and in the

current landscape of the game, those that do, have already been pegged as

professional prospects in high school (counter to Stern’s purported concerns

about high school scouting when the rule was created).

164

The means by which

college programs acquire these players, and the extent of their educational

focus, has little impact on professional basketball.

Yet, the status quo could change quickly for Commissioner Adam Silver

and the NBA. The Commission on College Basketball made it clear that, absent

the abandonment of the “one-and-done” rule, the next move for the NCAA to

combat scandal would be to implement rules that render the age limit moot.

165

One offered idea was to make all freshman ineligible for competition.

166

This

move would eliminate the most popular class of NBA Draft prospects. It would

also likely lead to an exodus away from NCAA basketball altogether. Another

idea was to “lock in” scholarships for a four-year term, regardless of when the

student-athlete leaves for the NBA, which would cripple those college programs

that typically recruit “one-and-done” high school stars.

167

Again, the likely

result would be teams steering away from those high school athletes with

immediate professional playing ability. The NBA is already dealing with a

growing trend of high school graduates bypassing the college level to play

professionally overseas, with players such as Brandon Jennings and Emmanuel

160

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 3-4.

161

. Id. at 5.

162

. Katie Thomas, Education Secretary Criticizes N.B.A. and the N.C.A.A., N.Y. TIMES, Jan. 14, 2010,

https://www.nytimes.com/2010/01/15/sports/15ncaa.html.

163

. Clarke & Hobson, supra note 159.

164

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 5.

165

. Id. at 4.

166

. Id. at 5

167

. Id. at 5.

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2018] ADOPTING THE NHL MODEL 203

Mudiay struggling to justify their early first-round selections in recent years.

168

There are now players simply opting to take a postgraduate year, favoring

continued high school-level participation over playing in college or abroad,

exemplified by the likes of Thon Maker and Anfernee Simons.

169

If Stern’s true

intention for the age limit back in 2005 was to use the NCAA as a developmental

league to showcase top draft-eligible talent, rather than stick the teams with the

task of scouting multiple levels and teaching raw, young players, then that

purpose would be considerably stifled if elite freshman-age players are

discriminated against by the college game begin to choose these different

avenues to the professional league. It seems the time is now for the NBA to

make a call on its controversial age limit.

C. Major League Baseball

The Commission on College Basketball seriously considered

recommending the “baseball rule” to the NBA over the “one-and-done” rule.

170

They also described the MLB’s draft structure as keeping professional ready

players “in school against their will” and “undermining the collegiate model.”

171

The fact that this system was considered a favorable approach to the NBA’s

model exemplifies the dire current state of professional sports’ draft structures.

Where the MLB is more flexible than the NFL and NBA is that it does not

have a hard age limit.

172

The “First-Year Player Draft,” also known as the “Rule

4 Draft,” is open to two classes of players: high school graduates and collegiate

student-athletes.

173

Each year, the MLB Draft is held in June, and is the only

professional sports draft held during the playing season for that sport.

174

The

draft order is determined purely by the inverse of the previous season’s final

168

. See Brandon Jennings Stats, BASKETBALL REFERENCE, https://www.basketball-refer-

ence.com/players/j/jennibr01.html (last visited Dec. 13, 2018); see also Emmanuel Mudiay Stats,

BASKETBALL REFERENCE, https://www.basketball-reference.com/players/m/mudiaem01.html (last visited

Dec. 13, 2018).

169

. Jonathan Givony, Anfernee Simons Declares for NBA Draft, Foregoing Collegiate Eligibility, ESPN

(Mar. 22, 2018), http://www.espn.com/nba/story/_/id/22869177/anfernee-simons-declares-nba-draft-forgo-

ing-collegiate-eligibility.

170

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 3-4.

171

. Id. at 4.

172

. First-Year Draft Official Rules, MLB, http://mlb.mlb.com/mlb/draftday/rules.jsp (last visited Dec.

13, 2018). Major League Baseball retained its antitrust protection over the “First-Year Player Draft” in the

Curt Flood Act, so much of the structure remains unilaterally imposed and is not incorporated into the league’s

CBA. The MLB does not make the full official document of rules for the “First-Year Player Draft” readily

available to the public and were unwilling to provide the author with a copy.

173

. Id.

174

. Id.

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204 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

standings; not including compensatory picks, in each of the forty rounds—by

far the largest of the professional sports drafts.

175

With each pick, a team may

select either a high school graduate, a junior college athlete, or a junior or

senior-year (or otherwise twenty-one-year-old) NCAA athlete.

176

All draft

selections must be natives of, or students in, the United States, Canada, Puerto

Rico or another United States territory.

177

The MLB does not require

international players to enter the league through the draft.

178

The draft slot of a selected player is reflected far less in the base salary and

term of their contract than by the accompanying signing bonus.

179

Due to the

expansive nature of minor league baseball, some major league teams have up to

seven minor league affiliates across many levels, and the amount of time it takes

to reach the MLB level—it takes on average four years to reach the majors, if

at all—the first contract is usually a long-term, low-paying minor league pact.

180

Most draftees sign a seven-year contract worth varying amounts determined by

level of play, and only see a significant raise in base salary once they sign their

first major league contract.

181

However, for those players drafted near the top

of the draft class each year, the signing bonus helps to offset what can be a long,

arduous, and underpaid tenure in the minor leagues. The MLB assigns a specific

signing bonus to each draft slot in the first ten rounds and accounts for an

allowance of $125,000 for each draft slot from round eleven through the end of

the draft.

182

Each MLB team is afforded a “bonus pool,” which is calculated by

the total aggregate of the signing bonuses assigned to each of that team’s draft

slots.

183

These assigned bonuses begin very large with great variance between

each slot at the top of the draft, and grow smaller and more similar to one

another as the draft moves closer to the end of the round ten, after which point

they are all the same.

184

In 2017, the first overall pick had an assigned bonus

value of $7,770,700; in comparison, the tenth overall pick had a value of

$4,376,800; the final pick in the first round had a value of $1,888,800; the final

175

. Id.

176

. Id.

177

. Id.

178

. Id.

179

. Id.

180

. See Doug Bernier, What is Minor League Baseball?, PRO BASEBALL INSIDER, http://probaseballin-

sider.com/what-is-minor-league-baseball/ (last visited Dec. 13, 2018).

181

. Id.

182

. Jim Callis, 2017 MLB Draft Bonus Pools, Pick Values, MLB (June 8, 2017),

https://www.mlb.com/news/2017-mlb-draft-bonus-pools-pick-values/c-223686792.

183

. Id.

184

. Id.

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2018] ADOPTING THE NHL MODEL 205

pick in the fifth round had a value of $285,800; and the final four picks in the

tenth round all had a value of $131,300.

185

MLB teams are permitted to exceed their allotted “bonus pool,” but they

must pay a tax between 75-100% of the overage to the league and may also be

forced to forfeit future draft picks.

186

It may seem strange that a team would

need to exceed the value of a league-set bonus when negotiating a contract with

a prospect, given the fact that they hold exclusive rights to that selection. Yet

this has been a common practice since the rule was implemented. Twenty-three

of the thirty teams exceeded their “bonus pool” in 2017, and it has occurred

seventy-four times in the past five years.

187

Why? Unlike the other three major

professional leagues, signing a draft pick in baseball is not a virtual certainty; in

fact, losing out on selected players happens to every team each year.

Due to the structure of the MLB Draft, the players have just as much say

(until their final year of draft eligibility) in what organization they sign with, as

do the teams themselves. The MLB does not require a petition to be eligible for

the draft, as the NFL and NBA do for early-entry college players. As such, all

high school, junior college players, and NCAA juniors and seniors may be

drafted, regardless of whether they wish to play professional baseball at that

time or at all. The result, especially among late-round high school draftees, is

that often players decide that they would rather play at the college level than at

the minor-league level for the time being. This choice is occasionally made by

junior college and junior-year NCAA players as well, but when it comes to

players whom are drafted in the earlier rounds, these decisions usually come

down to money. The differences between signing bonus values, even within the

same round, incentivize draft selections to turn down contract offers if they feel

that extended amateur play can improve their draft stock.

This system, which seemingly benefits the players, is actually detrimental

to both the players and the teams. For the team, it loses the player it selected—

and may not draft that same player in the subsequent year—and the team is also

saddled with the lost opportunity cost of instead selecting a different player with

that pick who may have signed.

188

As soon as the unsigned pick enrolls in

college, the team loses any exclusive right to sign him, and unless the player

was drafted in the first three rounds and made an offer of at least 40% of his

assigned bonus, the team will not receive a compensatory draft pick in the

185

. Id.

186

. Id.

187

. Id.

188

. First-Year Draft Official Rules, supra note 172.

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206 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

subsequent draft.

189

Additionally, the assigned bonus value of the unsigned

player’s draft slot will be subtracted from the team’s total “bonus pool”

allotment.

190

There is no upside for teams to this structure allowing players to

choose not to sign. Any perceived upside for the athletes is also largely illusory.

The idea that a high school athlete can properly decide whether he is ready for

a professional baseball career, and can accurately conduct a cost-benefit

analysis between accepting the current signing bonus offer or improving their

value at the college level, is irrational. To subsequently deny that athlete the

ability to re-enter the draft for three years if he chooses the NCAA path is

similarly illogical. Unlike the maturity arguments of the NFL and NBA, there

is no case for the MLB to make when the player has already been deemed

professional ready as a drafted player out of high school. For every story of a

draft pick turning down the MLB out of high school to go on to a highly

successful collegiate career and greatly improved draft stock, there are quite a

few more where things do not work out that way.

Take the case of Milwaukee Brewers pitcher Phil Bickford as an example.

Bickford was the tenth overall pick by the Toronto Blue Jays in 2013, but for

reasons that likely included his label as “one of the best high school pitchers in

the country,” he decided to turn down a substantial signing bonus and enroll at

California State University – Fullerton (“Cal State – Fullerton”).

191

At Cal State

– Fullerton, as a freshman and while playing in the best summer college league

in the country, the Cape Cod Baseball League, Bickford was at the top of his

game in 2014.

192

Hoping to capitalize on his increasing value, Bickford dropped

out of Cal State – Fullerton and enrolled at Southern Nevada Junior College, so

that he could enter the draft the following year instead of after his junior year

had he stayed in the NCAA.

193

Although Bickford’s domination continued at

the junior college level, he was drafted only nineteenth overall by the San

Francisco Giants in the 2015 Draft.

194

The Blue Jays lost out on an elite talent,

and Bickford ended up losing signing bonus money, delaying his professional

career by two years, and not inconsequentially, derailing his education along the

way.

189

. First-Year Player Draft (MLB Rule 4 Draft), CUB REP., https://www.thecubreporter.com/book/ex-

port/html/3551 (last visited Dec. 13, 2018).

190

. Id.

191

. Wayne Cavadi, The Brewers Phil Bickford’s Interesting Ride to the Bigs Continues, SB NATION

(Dec. 11, 2016), https://www.minorleagueball.com/2016/12/11/13911626/the-brewers-phil-bickford-s-inter-

esting-ride-to-the-bigs-continues.

192

. Id.

193

. Id.

194

. Id.

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2018] ADOPTING THE NHL MODEL 207

Even worse is the case of Karsten Whitson, another prominent high school

pitcher who, despite being taken with the ninth overall pick by the San Diego

Padres in 2010, opted instead to attend the University of Florida.

195

While at

Florida, Whitson continually struggled with shoulder injuries following his

freshman year, missing the entire 2013 season and seeing his pain affect his

performance when healthy.

196

Whitson was selected by the Boston Red Sox in

the eleventh round of the 2014 Draft, falling 335 spots from his initial draft slot,

out of high school, four years earlier.

197

He threw seven innings for Boston’s

Low-A affiliate that summer before succumbing to injury yet again.

198

He was

released by the Red Sox in 2016 and has not returned to professional baseball.

199

Not only did the choice to attend college cost Whitson millions of dollars, it also

impeded his ability to get the professional care and rehabilitation attention that

a MLB team could have provided. Both the Padres and the Red Sox additionally

suffered as a result of the league’s current draft structure, each wasting a

valuable draft pick.

The other major problem that professional baseball faces is the dichotomy

created by forcing domestic players into the draft, but allowing foreign players

to bypass the process. The MLB Draft, like all professional drafts, is a fair way

to distribute young talent around the league, but the alternative system that

baseball uses to import foreign talent causes more harm to teams and the

league’s overall competitive balance than good. In fairness, the MLB has

reformed their “International Amateur Talent System” in the most recent

CBA.

200

In the past, the international market went completely unchecked,

lacking an age limit or enforcement of an age limit on foreign free agents for

some time, and only recently fixing the lack of a hard spending cap on the

contracts for these free agents.

201

The new rule sorts teams into three

“International Signing Bonus Pools,” based on performance and revenue, with

195

. Pat McCann, Karsten Whitson Recovers from His Second Surgery While Keeping the Dream Alive,

PANAMA CITY NEWS HERALD, June 25, 2016, http://www.newsherald.com/sports/20160625/karsten-whit-

son-recovers-from-his-second-surgery-while-keeping-dream-alive.

196

. Id.

197

. Karsten Whitson Stats, Highlights, Bio, MINOR LEAGUE BASEBALL,

http://www.milb.com/player/index.jsp?sid=milb&player_id=592857#/career/R/pitching/2015/ALL

(last visited Dec. 13, 2018).

198

. McCann, supra note 195.

199

. Karsten Whitson Stats, Highlights, Bio, supra note 197.

200

. See Collective Bargaining Agreement Between Major League Baseball and the Major League

Baseball Players Ass’n, Attachment 46, http://www.mlbplayers.com/pdf9/5450407.pdf (last visited Dec. 13,

2018) [hereinafter MLB CBA].

201

. Michael Bradburn, New International Signing Rules: Who They Benefit and Who They Hurt, SB

NATION (Dec. 12, 2016), https://www.mlbdailydish.com/2016/12/12/13921330/collective-bargaining-agree-

ment-international-signing-rules.

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208 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

those struggling teams allotted more leeway to sign international free agents.

202

This is admittedly a far superior structure.

Yet, the fact that domestic prospects have no employment autonomy and

cannot be drafted until age eighteen—or out of the NCAA even later—while

international prospects may sign at age sixteen with whomever they like is

fundamentally unfair, and the draft-eligible players are not the only ones feeling

the ill-effects. Even in this new system, MLB teams can only offer so much to

an international player (though the league also makes international pool money

a tradeable asset), but may still use their market size and recent performance to

sell the player, who is otherwise presented with similar monetary offers, on

joining their team.

203

When “Japanese Babe Ruth,” star hitter and pitcher

Shohei Ohtani, indicated in the 2017 off-season that he would like to sign in the

MLB, the Minnesota Twins were one of the top teams in remaining international

pool money.

204

However, given their market, the Twins knew they could not

attract Ohtani and traded pool money to the Los Angeles Angels.

205

The Angels

still trailed the Texas Rangers and Seattle Mariners, who had also acquired pool

money from Minnesota, in the maximum bonus they could offer Ohtani, but the

Los Angeles market was enough to entice him to sign.

206

The impact of market

and talent on signing new players is the exact reason that the MLB implemented

a draft in the first place, yet it continues to operate without one for international

players.

207

It hurts the teams without the market power or winning traditions to

influence free agents, and it also hurts the domestic players whom have far less

freedom in their own entry process.

208

The majority of MLB teams, domestic

players, and even the NCAA would benefit from including international players

in the draft process like the other three major sports leagues. The only party

that would suffer are the international prospects themselves, whom have

enjoyed a far superior entry process for long enough.

The next part of this Article will introduce the league with a draft and rookie

contract structure that has long avoided alienating their incoming talent, and the

202

. MLB CBA, supra note 200.

203

. Pedro Moura, Angels Acquire More International Pool Money to Dangle at Shohei Ohtani, L.A.

TIMES, Dec. 6, 2017, http://www.latimes.com/sports/angels/la-sp-angels-international-pool-money-ohtani-

20171206-story.html.

204

. Id.

205

. Id.

206

. Id.

207

. Bailey & Shepherd, supra note 35.

208

. A study conducted by Joanna Shepherd Bailey and George B. Shepherd of Emory Law School in

2011 even came to the conclusion that teams’ increased flexibility in the international market has drawn

attention and effort away from domestic scouting, which has led to the noticeable drop-off in

African-American participation in baseball. Id.

LEACH ARTICLE 29.1 (DO NOT DELETE) 12/5/18 3:37 PM

2018] ADOPTING THE NHL MODEL 209

accompanying legal challenges that brings, and uses an entry-level process that

greatly benefits its teams: the NHL.

V. THE SUPERIOR NATIONAL HOCKEY LEAGUE DRAFT AND ENTRY-LEVEL

SYSTEM

A. Age Is Just a Number

Like any professional sports league, the NHL is not without its

administrative flaws. The league has had four work stoppages since 1992 and

has re-located five teams in that span as well.

209

They have also had continued

struggles with competitive balance and bad teams staying bad for long periods

of time. The most recent complaint has been about unnecessary changes to the

playoff structure that have harmed the postseason product.

210

Yet when it comes

to draft structure and rookie salary management, the NHL model has been far

more successful and has exceedingly fewer problems than its other professional

league counterparts. Most importantly, it is a system that provides the NHL’s

member teams with wide-spread benefits.

On its face, the NHL Entry Draft does not seem all that different. Held in

late June each year, following the conclusion of the Stanley Cup playoffs, the

draft consists of seven rounds with as many picks as teams—currently

thirty-one—as well as occasional compensatory picks.

211

The NHL has used a

lottery system since 1995, with each of the non-playoff teams given a weighted

chance to win based on the final standings.

212

It began as a modest system that

could only move the three selected winners four spots up the draft board, but

since 2014, it has instead given all lottery teams a chance at the top three

selections in the draft.

213

One of the major benefits of the NHL draft model are the types of players

available for teams to pick, whether a team is using a lottery pick or a late

seventh-round choice. There is no age floor in the NHL; any player who will

turn eighteen by September 15th of the calendar year through any player who

will still be age twenty at the end of the calendar year is available to be selected

in the NHL draft, as well as players aged twenty-one and twenty-two whom had

209

. James H. Marsh, National Hockey League (NHL), CANADIAN ENCYCLOPEDIA (Dec. 12, 2016),

http://www.thecanadianencyclopedia.ca/en/article/national-hockey-league/.

210

. Mike Johnston, Ron and Don: The Current Stanley Cup Playoffs Format ‘Sucks’, SPORTSNET

(Apr. 19, 2018), https://www.sportsnet.ca/hockey/nhl/ron-don-current-stanley-cup-playoffs-format-sucks/.

211

. NHL CBA, supra note 11, art. 8 §§ 2-3, at 16.

212

. TSN Staff, NHL Draft Lottery History, TSN (Apr. 28, 2018), https://www.tsn.ca/history-of-the-nhl-

draft-lottery-1.236014.

213

. Id.

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210 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

previously been drafted and did not sign.

214

This includes all domestic and

international players, includes players who have been passed over in previous

drafts, chose not to sign with the team that previously drafted them, or never

received an offer from a team that previously drafted them, and includes players

participating in junior-level, high school, college, or professional hockey

overseas.

215

For those players that are not drafted, there is also a period of time

in which they may sign with a team as an undrafted free agent rather than wait

to re-enter the subsequent draft.

216

The NHL is the only North American

professional league that truly allows their teams the opportunity to add any

player that they feel has professional potential. The NHL entry system more

closely resembles a non-sports industry, where employment is freely available

after high school graduation for qualified individuals, rather than the closed-off

format of the other three major leagues.

Once selected, the league’s system for managing the contract status of

drafted players is also very flexible and friendly to both players and teams. An

NHL team has nearly a year, until the following June 1st, to retain exclusive

negotiating rights with a domestic draft pick.

217

If during that period a “Bona

Fide Offer” of an “Entry-Level Contract” is made to the player, that exclusive

window is extended for an additional year.

218

If an offer is not made within year

one or the player chooses not to sign through year two, the player may re-enter

the subsequent draft.

219

Even if the team or player himself does not feel that the

player is ready for professional hockey through those first two years following

his draft, that does not impede the two sides from agreeing to a contract. The

“Entry Level System” allows for the first contract signed by an

eighteen-year-old to “slide” the term forward in each of the first two years if he

does not play in at least ten NHL games and allows the first contract signed by

a nineteen-year-old to “slide” in the first year as well under the same

conditions.

220

This eliminates much of the risk of a team and player not agreeing

to terms, as the majority of non-college players simply sign their contract in the

first or second year after being drafted and are reassigned to their junior team or

foreign professional team if they are unable to crack the NHL roster.

214

. NHL CBA, supra note 11, art. 8 §§ 4, 10, at 16, 22.

215

. Id.

216

. Id. art. 10 § 1(d).

217

. Id. art. 8 § 6(a).

218

. Id. § 6(a)(ii).

219

. Id.

220

. Id. art. 9 § 1(d).

LEACH ARTICLE 29.1 (DO NOT DELETE) 12/5/18 3:37 PM

2018] ADOPTING THE NHL MODEL 211

B. Retained Rights

This requirement of signing a contract within the first two years of being

drafted would obviously not suit selections who are playing in or committed to

playing in the NCAA. A student-athlete loses his amateur status and collegiate

eligibility if he contracts to play any professional sport.

221

So, the NHL built in

separate exceptions for this class of player, which makes up one-third of their

active players.

222

Any drafted player, domestic or foreign, who is, or becomes,

a college student by June 1st following his initial draft, does not need to agree

to a contract to maintain his relationship with the team that drafted him.

223

Instead, the team receives exclusive negotiating rights throughout the player’s

five years of NCAA eligibility or until the August 15th following his

graduation.

224

While playing in college, the draftee may keep in contact with

coaches and executives and may attend team camps, giving both sides an

understanding of the player’s professional-readiness and organizational fit, and

may even receive and consider contract offers to leave school early, so long as

an agent is not used while enrolled.

225

If the team or player decides after

graduation that there is not mutual interest in a contract, then the player does

not have to re-enter the draft and may become an unrestricted free agent.

226

The process is similar for international selections playing overseas. Teams

may retain exclusive negotiating rights over an eighteen-year-old or

nineteen-year-old foreign player for four years, or a twenty-year-old foreign

player for two years without a contract or bona fide offer being necessary.

227

However, unlike college players, these draft picks may also sign their

entry-level contract and simply be reassigned back to their international clubs.

C. The Entry-Level Contract

Regardless of the path that a player takes to the professional hockey level,

the NHL’s “Entry-Level System” is the same for everyone, and benefits both

teams and players with increased team control over younger prospects and

increased flexibility for both older and superior prospects. The league has a

221

. NCAA, supra note 12, art. 12.1.2.

222

. In the NHL, COLLEGE HOCKEY INC., http://collegehockeyinc.com/in-the-nhl.php (last visited Dec.

13, 2018).

223

. NHL CBA, supra note 11, art. 8 § 6(c).

224

. Id.

225

. NCAA, supra note 12, art. 12.1.2, 12.2.2. Even undrafted college players may communicate with

teams and attend certain camps and tryouts. Id. art. 12.2.1.

226

. NHL CBA, supra note 11, art. 8 § 6(c)(v).

227

. Id. art. 8 § 6(d).

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212 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

structured system for both the term and value of a player’s first contract. A

player who signs his first contract between the ages of eighteen and twenty-one

is given a contract with a three-year term (not including “slide” years).

228

this is the most common age for draft picks to sign their first contract, this is the

most common term, and, especially given the “entry-level slide” rule, gives

NHL teams substantial control without the unreasonably lengthy term seen in

other professional leagues. Players aged twenty-two to twenty-three may sign

a two-year contract, and players of age twenty-four may sign a one-year

contract.

229

These players tend to be unsigned college draft picks and college

free agents whom, after ample time at the amateur level, are rewarded with

lesser term and a quicker turnaround to a second, more lucrative contract. Any

player who signs his first NHL contract at age twenty-five or older does not

qualify for the “Entry Level System” and may sign any contract he likes.

230

All others who do qualify for the system are limited in their rookie contract

base salary. Currently, the cap on the “average annual value” over the course

of an entry-level deal is $925,000 per season.

231

Teams and their prospects may

negotiate a base salary between that number and the league’s salary minimum,

which in 2017-18 was $650,000.

232

However, teams may also reward rookies

with bonuses. A signing bonus of up to 10% of the agreed-upon base salary is

permitted and incorporated into the base, and games played bonuses and

performance bonuses may also be added.

233

The league sets maximums for

performance bonuses a team may issue to any player, and also rewards players

themselves for top statistical finishes and awards voting.

234

Theoretically, a

player on an entry-level contract with a $925,000 salary can earn up to

$3,775,000 each year.

235

228

. Id. art. 9 § 1(b).

229

. Id.

230

. Id.

231

. Id. art. 9 § 3(a). Note that the NHL’s revenue and salary restrictions are significantly less than the

other three major professional leagues. The NHL’s entry-level cap as a proportion of its salary cap would be

equivalent to approximately $2.1 million in the NFL in 2017, during which season the NFL’s average salary

was approximately $1.5 million. See generally NHL Salary Caps, CAPFRIENDLY, https://www.cap-

friendly.com/ (last visited Dec. 13, 2018).

232

. NHL Stats, History, Scores, & Records, HOCKEY REFERENCE, https://www.hockey-refer-

ence.com/#site_menu_link (last visited Dec. 13, 2018).

233

. NHL CBA, supra note 11, art. 9 §§ 3(b), 5, & 7.

234

. Id. at Exhibit 5.

235

. Id.

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2018] ADOPTING THE NHL MODEL 213

D. The End Result

The combination of a broad draft class, simple exclusivity rules, and

flexible contract terms puts the NHL far ahead of its competitors in terms of

appeasing both the teams and players in the entry process. NHL teams are given

the chance to select players of varying ages and experiences from all over the

globe each year. They are permitted to pick players as young as seventeen on

draft day and play them immediately in the subsequent season. They may also

sign a player with no intention of playing them in the next year or two, without

risking losing valuable term on the contract. Teams may also simply wait for

those players in college and overseas to develop and are free to communicate

and work with those prospects unconditionally. When signing their young

players, teams do not have to worry about inflated salaries or exaggerated terms.

They may also reward a rookie for performance, rather than guarantee an

unknown commodity. On the other side of the table, players have the freedom

to sign a substantial contract and play professional hockey immediately if they

have the ability. They are also free to follow whichever developmental path

they choose, including attending college without the fear of being locked into

the amateur level for a specific amount of time. The “Entry-Level System”

gives them a first contract that reflects the time spent developing outside of the

NHL and rewards those older players with restricted free agency sooner. Any

player who does not see a fit on the team that drafted them or is never made an

offer has the ability to re-enter the draft or eventually become an unrestricted

free agent. There are many benefits on both sides of a structure that comes

together in a harmony and has no history of creating conflict or legal challenge.

It is a structure that the other three North American professional leagues

desperately need, whether they realize it or not.

The next part of this Article will address the similarities and differences

between the NHL model and those of the MLB, NBA, and NFL and will

simulate the conditions under which adopting the NHL’s draft structure and

“Entry Level System” would not only be possible but would be greatly

beneficial to each league.

VI. THE MIRACLE OF ADOPTION

A. Criticism and Rebuttal

The easy knock to make on comparing the NHL’s methods of admitting and

contracting young players to those of the other three leagues is that the NHL

draws from a much more diverse talent pool. Each NFL Draft class is almost

exclusively made up of American players from the NCAA. The NBA largely

drafts American NCAA players as well, though they have a significant foreign

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214 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

contingent and a growing base of players bypassing college.

236

The MLB

imports many foreign players each year, but not through the draft, which is

composed almost entirely of American high school graduates or collegiate

players. In contrast, the NHL’s largest producer of talent is the Canadian

Hockey League, the “major junior” hockey organization that houses fifty-two

Canadian teams and eight American teams across three leagues.

237

The league

also recruits heavily from foreign countries, with a greater proportion of players

from outside of North America than any of the other three leagues.

238

Without

a doubt, the NHL is the least American and least collegiate of the four major

leagues.

However, the collegiate influence is growing. As of the 2016-17 season,

32% of the NHL’s players came from the NCAA.

239

At the turn of the century,

that number was at just 20%.

240

In the 2015 NHL Draft, three NCAA

student-athletes were selected in the top eight picks, including Boston

University’s Jack Eichel at number two overall.

241

The following year, three

more college or college-bound players were selected within the first fifteen

picks.

242

In the most recent draft, four more collegiate or college-bound players

were selected within the top fifteen.

243

Given the growth of the NCAA, the

quality of players coming out of the college ranks, and the added bonus of the

educational superiority of the college path, the composition of the NHL could

approach 50% with collegiate experience in the next decade.

244

Yet, regardless of the collegiate makeup of each league, it is the logic of the

NHL’s system for drafting collegiate talent that is the main consideration. The

league allows players to be drafted at ages eighteen to twenty, prior to and

during their NCAA careers, but continue to play at the amateur level. Teams

236

. 2018 NBA Draft, BASKETBALL REFERENCE, https://www.basketball-refer-

ence.com/draft/NBA_2018.html (last visited Dec. 13, 2018). Eight of the sixty selections in the 2018 NBA

Draft were international players with no collegiate experience. Id.

237

. About the CHL, CANADIAN HOCKEY LEAGUE, http://chl.ca/aboutthechl (last visited Dec. 13, 2018).

238

. Gregor Aisch et al., Where Athletes in the Premier League, the N.B.A. and Other Sports Leagues

Come From, in 15 Charts, N.Y. TIMES, Dec. 29, 2017, https://www.nytimes.com/interactive/2017/12/29/up-

shot/internationalization-of-pro-sports-leagues-premier-league.html.

239

. In the NHL, supra note 222.

240

. Id.

241

. 2015 NHL Entry Draft, HOCKEY REFERENCE, https://www.hockey-refer-

ence.com/draft/NHL_2015_entry.html (last visited Dec. 13, 2018).

242

. See 2016 NHL Entry Draft, HOCKEY REFERENCE, https://www.hockey-refer-

ence.com/draft/NHL_2016_entry.html (last visited Dec. 13, 2018).

243

. See 2018 NHL Entry Draft, HOCKEY REFERENCE, https://www.hockey-refer-

ence.com/draft/NHL_2018_entry.html (last visited Dec. 13, 2018).

244

. In the NHL, supra note 222 (calculating a trend line with the given data points on the graph shown.

The percentage of NHL players from the NCAA should exceed 45% by 2026).

LEACH ARTICLE 29.1 (DO NOT DELETE) 12/5/18 3:37 PM

2018] ADOPTING THE NHL MODEL 215

maintain exclusive negotiating rights through their draftees’ college careers,

while the players communicate with the team’s coaches and executives

throughout and even attend workouts and practices. In the end, the decision of

when the player should turn professional is mutual; with input from both the

player and team that is more educated, as draft positions have already been

determined, any continued play can be evaluated, and organizational depth can

be considered. If the player does not feel that the fit is right with his team or the

team does not feel the player is worthy of a contract, then the player can become

an unrestricted free agent after graduation. There is little reason why this same

process that has been so successful in the NHL could not be implemented in the

other leagues.

The other argument would be not that the NCAA retained rights process is

flawed, but that teams in the other three leagues could not properly evaluate

such young talent to draft them prior to entering the NCAA. As will be

discussed in more extensive detail in examining each league, this is an

unsubstantiated claim. The NHL does have a long history of not only drafting,

but playing teenage athletes, yet it is not the only one. The MLB has always

allowed teams to select players out of high school and exceptional players often

take relatively no time to reach the major-league level. For the greater part of

the NBA’s history they too selected players out of high school. The NFL does

not share in this tradition, but the recent growth of the college game has

showcased the improved talent level at younger ages and has at least indicated

the potential for teams to be able to identify talent and perhaps even play athletes

out of high school. The alternative answer is that teams would have the

prerogative not to select eighteen-year-old high school graduates. The NHL

draft structure allows for older players to retain their draft eligibility; teams

could simply choose to favor the athletes that they have seen play one or two

years at the NCAA level. This practice even exists in the NHL.

245

It is fair to question the applicability of the NHL structure to the other three

leagues when they are all different sports with different administrative customs

and different methods for managing young players. However, with each of the

three leagues facing significant issues with their current models and all having

faced legal challenges in their histories related to age limits and restrictive

rookie wage scales, it is time to reconsider what is “right,” and instead think

about adapting to a proven superior structure.

245

. See Barratt, supra note 9. For example, Penn State forward Denis Smirnov was undrafted as a

promising, but undersized junior player in his first year of eligibility and went undrafted, but was selected in

the sixth round of the 2017 NHL Draft by the Colorado Avalanche after he was able to maintain his high level

of play at the college level.

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216 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

B. The NHL Model in Major League Baseball

The MLB Draft and Signing Bonus systems would be the easiest to conform

to the NHL design; the current format is already halfway there. MLB teams’

front offices already spend considerably more time scouting high school and

international talent than collegiate talent, just as NHL front offices do. They

would not need to change the way they evaluate talent whatsoever. However,

they currently go about retaining high school athletes, and acquiring

international athletes, in a different, far more problematic way, which harms the

teams, and the high school and collegiate players. Switching to the NHL system

would fix this.

If the MLB were to adopt the NHL model, it would not look much different

than it does today. Rather than using the fundamentally flawed “International

Amateur Talent System,” all foreign players would be included in the draft.

This idea has been supported by the MLB’s owners in the past and would put

all baseball prospects on an even playing field and afford teams an equal shot at

acquiring foreign talent; regardless of the attractiveness or size of their

market.

246

The MLB could accommodate this added talent pool by expanding

the draft to fifty rounds, which was the length as recently as 2011.

247

The new, expanded draft class would also be easier to manage. Using the

NHL’s retained rights system, there would no longer be cases of teams losing

coveted draft picks when high school selections decide to go to college. Instead,

as has benefited hockey immensely, teams would retain control over those

prospects throughout their collegiate careers, working together to decide when

would be the right time for the player to enter the professional ranks. However,

teams would also not be prevented from drafting college players of all ages after

seeing them at the next level. The issue surrounding signing bonus values would

also go away; the MLB could set a cap on signing bonuses, like the NHL’s cap

on rookie base salaries, and let teams negotiate up to that cap with selections

based on draft slot and post-draft performance.

248

The first contract signed

could then feature substantial bonuses far exceeding the normal earnings of a

minor-league player, allowing performance to help players’ recoup some of the

signing bonus value lost by setting a cap.

246

. Maury Brown, MLB Owners Drop International Draft In Effort To Get New CBA Done, FORBES

(Nov. 28, 2016), https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/mau-

rybrown/2016/11/28/mlb-owners-drop-international-draft-in-effort-to-get-new-cba-done/&re-

fURL=https://www.google.com/&referrer=https://www.google.com/.

247

. First-Year Player Draft (MLB Rule 4 Draft), supra note 189.

248

. See generally NHL CBA, supra note 11, art. 9. Given the unique nature of baseball’s minor league

system, the NHL’s “Entry-Level System” rules would be better applied largely to signing bonuses than

draftees’ actual first contracts. Id.

LEACH ARTICLE 29.1 (DO NOT DELETE) 12/5/18 3:37 PM

2018] ADOPTING THE NHL MODEL 217

The result of the MLB’s adoption of the NHL system would be a new

landscape in baseball that leaves what is good about the draft and rookie

compensation structure and fixes the major problems. Teams can still add

prospects right out of high school, without the risk of losing those players, and

can still add college players as well. International players would now be

available for selection and may be more willing to play at the college level since

they would not risk their previous free agent status under the old structure. An

unintended benefit for teams may even be a downsizing of the minor leagues,

with players no longer disincentivized to enter the college ranks, which would

save teams money, as many own their affiliates at the lowest levels of Minor

League Baseball (MiLB). Another potential money-saving benefit would be in

signing bonuses. A cap on signing bonuses would prevent teams from wasting

large investments on early-round selections of unproven commodities out of

high school.

249

Players could still earn far more than a minor-league paycheck

while playing in the minors though, as performance bonuses included to offset

the lost value in a guaranteed signing bonus. The cap would also eliminate any

reason for a player, who would like to play in college, to instead choose to turn

professional right away; the same maximum amount of money will always be

there to negotiate. Thus, a greater percentage of players could go to the NCAA,

which had previously lost out on foreign players and elite high schoolers. But

the NCAA would now become a better product and a far superior developmental

tool for players. Players would also have the freedom to leave that amateur

level whenever they and their drafted team see fit. Additionally, if a player does

not receive a contract prior to his senior season in the NCAA, he would become

a free agent and could seek a greater opportunity with another club. For teams

and players alike, the NHL model would be a considerable upgrade to the

current MLB system and, not inconsequentially, would also not drastically

change the fabric of baseball’s developmental stage.

C. The NHL Model in the National Basketball Association

The NBA would also be able to easily implement the NHL Draft model and

“Entry-Level System” and, given the pressure put on by the recent Commission

on College Basketball report, may need to consider a change sooner rather than

later.

The two biggest problems with the “one and done” structure are: a) it forces

those players with either the ability to play professionally or those who lacked

249

. Less than 60% of first-round high schoolers make it to the MLB level, with each subsequent round

of high school selections having less than a 40% chance of reaching the majors. See Aaron Fitt, Draft Study:

How Likely Are Your MLB Dreams, D1BASEBALL (Jan. 4, 2017), https://d1baseball.com/analysis/mlb-draft-

study-1996-2011/.

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218 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

the demeanor to attend college to nonetheless play in the NCAA or choose

another unconventional route; and b) it sets a dangerous precedent that talented

NCAA basketball players should leave the amateur level as soon as possible,

leading to many players giving up their collegiate eligibility and academic path

only to go undrafted in a small, two-round NBA format.

250

These problems led

the Commission on College Basketball to recommend both the abolishment of

the “one-and-done rule” and that the NCAA allow players to enter the NBA

Draft and return to college if undrafted.

251

The NHL structure would solve both

of these problems.

If the NHL Draft model was adopted by the NBA, it would serve to truly

meet the needs of all players and teams. Professional caliber basketball players

from ages eighteen to twenty-one could be selected in the NBA Draft which

means, high schoolers would once again be eligible for selection, as they were

prior to 2005. Former NBA Commissioner David Stern’s proclamation that

raising the age limit was meant to protect high school students and keep scouts

away from the high school ranks was a farce; the decision was meant to remove

the temptation of drafting teenage players who had often proved difficult to

coach and develop right away in the NBA.

252

NBA teams continue to scout high

school players and the top freshman in each draft class are regularly predicted

prior to each NCAA season. The NHL system would simply afford teams with

the ability to decide on high school players sooner. If a high school draftee is

truly ready for the NBA—the next LeBron James or Kevin Garnett—then the

team may sign him immediately. If instead they see potential but feel that the

talent or maturity level is too raw, that player can go to college and develop

further. He can then communicate with his team to discuss what he needs to

work on and to decide when to turn professional. Teams can also reserve

judgement on those players and wait to draft them at any point in their college

careers. This would put an end to both the impressment of young, professional

ready players into the college game, but would also serve to better develop those

who need it and eliminate the risk of giving up collegiate eligibility due to

unknown market value. It would likely stymie much of the corruption at the

NCAA level as well.

The NHL’s entry-level contract structure suits the NBA as well. Although

the current NBA rookie wage scale is far less troublesome than its draft

structure, there are still victims. Like the expansive nature of baseball, the NBA

is limited in its draft size by small roster sizes. Even with a retained rights

250

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 3-4.

251

. Id. at 3.

252

. Bissinger, supra note 145.

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2018] ADOPTING THE NHL MODEL 219

structure like that of the NHL, the NBA draft would likely remain at two rounds,

or increase only marginally. First-round picks have their contract terms

narrowly restricted in the NBA’s current model, but largely to their benefit.

Second-round picks and undrafted free agents do not enjoy the same protections

and are often compensated as players who are unlikely to make a difference at

the NBA-level, either as end-of-the-bench players or G-league players.

However, the retained rights structure changes the zeitgeist. These later draft

picks could now have more experience and team guidance and play far greater

roles. Having a system that caps rookie contract base salaries but allows for

significant performance bonuses would reward these later picks for their

contributions. On the other hand, the renewed allowance for younger, less

experienced players to enter the league could result in first-round picks with

higher guaranteed salaries to realistically play a relatively small role. In some

cases, it is foreseeable that these players could spend much of their first season

or two in the G League, the NBA’s minor league. The NHL’s “slide rule”

mitigates this risk, preventing NBA teams from losing precious time on rookie

contracts for those players whom turn professional, but need minor league

seasoning.

The Commission on College Basketball, as well as the scandalous

conditions in college basketball that resulted in its creation, have pushed the

NBA’s draft structure to the forefront. The onus is on the league to make

changes soon, before the Commission is forced to instead make life harder on

NBA teams with restrictive rules at the NCAA level. The easiest and seemingly

best way for the league to go about making these sweeping changes is to adopt

a similar draft and rookie compensation format with a history of success, that of

the NHL.

D. The NHL Model in the National Football League

Admittedly, professional football is the most difficult of the three leagues

to see adapting to the NHL’s draft and entry-level structures. Much of that

dissonance comes purely from the age aspect. The NFL does not have any role

in high school football, nor have they ever. The league has always enjoyed

using the NCAA as their sole minor league and drafting the most professional

ready players of any of the four leagues: seasoned three- or four-year college

athletes. To suddenly change the status quo to a system wherein teams may

select eighteen-year-olds would be an immense adjustment.

However, the evidence has been presented that the time to make this change

has come. Players are getting better at a younger age—bigger, faster, stronger.

As a result, they are also getting injured more severely and more frequently at

the amateur and professional levels. NFL teams would benefit from the ability

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220 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

to identify and add professional ready talent at a younger age, and the NFL

product would improve if these players were able to start earlier and last longer,

with professional coaching and medical care.

There is a fair argument that NFL teams may struggle to identify future

professional players at younger ages. Yet, that argument is defeated by the

success of a college program such as the University of Alabama. Former NFL

coach Nick Saban and the Crimson Tide have a record of 132-20 and have won

five National Championships in the ten years since Saban took over in 2007.

253

In that time, Alabama has had over seventy players drafted into the NFL, over

fifty of which were drafted in the first or second round, twenty-five of which

have since been named to at least one NFL Pro Bowl, and over twenty of which

have won a Super Bowl.

254

If Saban and his staff can have this much success at

identifying top high school talent, so can NFL teams with even more resources.

The alternative defense is that the NHL Draft system does not pigeonhole

players into small windows of draft eligibility. The NFL could adopt the NHL

model and its member teams could decide for themselves that there is little

upside to drafting any high school graduates. Without an NFL minor league, it

is likely any eighteen-year-old selection would go on to play at least one season

in the NCAA anyway, so teams could choose to wait to draft freshman,

sophomore, or even older players. While the custom in the NHL is to draft most

players in their first year of eligibility, the flexibility exists to select “overage”

players as the exception. The NFL teams would have the freedom to establish

their own custom of drafting players later in their eligibility and only take

first-year players as an exception. The point would still stand that the teams and

players would be able to communicate and jointly decide when the best time for

the player to enter the professional ranks would be, as opposed to the current

system which forces at least three years of amateur play on to every individual,

regardless of exceptional ability or other circumstances.

The current NFL rookie compensation system is unnecessarily complex and

does not fit with the NHL’s retained rights structure. Draft slot should not play

such a major role in determining the value of a first contract if the player is able

to go to school and show improved performance after being drafted. Instead,

having a cap on rookie contract values as well as substantial bonuses, which are

already a major piece in NFL contract negotiations, would be a much better fit.

Right now, the lengthy required contract terms only benefit teams when draft

253

. Alabama Crimson Tide Football Record by Year, SPORTS REFERENCE, https://www.sports-refer-

ence.com/cfb/schools/alabama/ (last visited Dec. 13, 2018) (only accounting for seasons 2007-17).

254

. List of Alabama Crimson Tide Players in the NFL Draft, WIKIPEDIA, https://en.wikipe-

dia.org/wiki/List_of_Alabama_Crimson_Tide_players_in_the_NFL_draft#National_Football_League

(last visited Dec. 13, 2018).

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2018] ADOPTING THE NHL MODEL 221

selections pan out and only benefit those players who do not pan out. The more

moderate contract term requirements of the NHL are a far better fit. With a

younger draft class, there is more risk to the NFL teams and a lesser need for a

first long-term contract. For players, the average NFL career is too short to be

locked into a restricted rookie contract for too long as well. The NHL model,

which rewards more experienced players who spent a longer time at the amateur

level with a shorter term, is a happy medium in the NFL as well.

On its face, the transition of the NFL from its current status to one

incorporating the NHL’s lack of an age limit and “Entry Level System” seems

daunting. However, a closer look shows that such a change would combat

current problems facing NFL teams and would fit well in many aspects. Few

outwardly complain about the NFL system in comparison to the NBA or MLB,

but if the league were proactive in addressing the need for their teams to have

more flexibility, they would find wide-spread benefits to adopting the NHL

model.

This final part of this Article will show how the MLB, NBA, and NFL can

only do so much to change the way they manage young talent to be more like

the NHL without the aid of the NCAA.

VII. THE INTERESTS OF THE NCAA

A. The Invisible Hand

The NCAA is not without both a crucial role and fair share of the blame in

how the professional leagues operate in terms of adding young players, and the

many challenges they have faced in this regard over the years. The policies of

the NCAA dictate the flexibility that each league has to change its draft rules,

whether it outwardly seems so or not. The NCAA is an organization “dedicated

to the well-being . . . of college athletes,”

255

but that does not mean that it is not

self-interested. The NCAA implements policies that ensure student-athletes

remain amateurs and not professionals until a certain point, as well as policies

that punish those who attempt to join the professional ranks early.

256

This is

certainly not to protect the athletes’ “well-being.” The NCAA has grown into a

billion-dollar organization and that value is worth protecting even more so than

the interests of the young individuals who work to create it.

257

The NCAA has

255

. NCAA, What Is The NCAA?, NCAA, http://www.ncaa.org/about/resources/media-center/ncaa-

101/what-ncaa (last visited Dec. 13, 2018).

256

. See generally NCAA, supra note 12.

257

. Rodger Sherman, The NCAA’s New March Madness TV Deal Will Make Them a Billion Dollars a

Year, SB NATION (Apr. 12, 2016), https://www.sbnation.com/college-basketball/2016/4/12/11415764/ncaa-

tournament-tv-broadcast-rights-money-payout-cbs-turner. For example, the NCAA recently sold the

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222 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

shown that they will be flexible when it benefits their bottom line, but strict if

the purpose is to defend the precious status quo.

Case in point is the relationship between the NCAA and NHL. There are

special exceptions for Men’s Ice Hockey players throughout the NCAA

Division I Manual.

258

It is the only team sport singled out as facing less

restrictions regarding tryouts and practices with professional teams.

259

This

includes permission to attend the NHL Draft Combine, when football players

are not allowed the same access.

260

The NCAA even passed recent legislation

that now allows men’s hockey players to join baseball players in their ability to

use an agent for contract negotiations prior to enrollment.

261

The reason that

men’s hockey is given this leeway is simple: the NCAA needs to make the

college path more attractive. With alternative developmental paths readily

available in the form of multiple levels of junior hockey in the United States and

Canada and multiple professional leagues overseas, the NCAA knows that their

pipeline of high-end hockey talent depends on those athletes feeling that the

college route will not impede their pursuit of an NHL career.

The NCAA does not feel the same need to appeal to athletes in football or

basketball, who are essentially captives to the collegiate level. The NFL

currently has no alternatives to NCAA play and those who choose to bypass

college basketball in hopes of reaching the NBA do so at their own peril. For

this reason, the NCAA maintains rules that restrict these student-athletes’ access

to the professional level. No rule causes greater harm to the professional

pursuits of football and basketball players, and eliminates the possibilities of

one of the NHL model’s greatest strengths than the “Draft List” bylaw.

262

Unlike hockey and baseball, the age limits of the NFL and NBA require players

to apply for draft-eligibility.

263

Once a student-athlete is placed on the draft list,

the bylaw states that he has surrendered his amateur status, and with it his

collegiate eligibility.

264

This rule applies even if the student-athlete asks to be

withdrawn from the draft list after a certain date or if he is undrafted or chooses

not to sign.

265

This bylaw is punitive in nature, punishing collegiate players for

television rights to the March Madness Division I Men’s Basketball Tournament for the years 2025 to 2032

to CBS and Turner Broadcasting for $8.8 billion. The two sides had already signed a fourteen-year, $10.8

billion contract in 2010 before agreeing to this extension.

258

. See generally NCAA, supra note 12.

259

. Id. art. 12.2.

260

. Id.

261

. Id. art. 12.3.1.1.

262

. Id. art. 12.2.4.2.

263

. Id. art. 12.2.4.2.3. & 12.2.4.2.1.

264

. Id.

265

. Id.

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2018] ADOPTING THE NHL MODEL 223

testing their value in the professional market. It also nullifies clauses in both

the NFL and NBA CBAs that otherwise would bring both leagues closer to the

NHL model. The NBA CBA allows for an early-entry drafted player to return

to school and the team that drafted him to retain exclusive negotiating rights in

each subsequent year until after graduation, so long as a “Required Tender”

offer is made to the player each year.

266

The NFL CBA details that a drafted

athlete with remaining collegiate eligibility who returns to school remains the

exclusive property of the team that drafted him through the end of that

eligibility, meaning that hypothetically, a student-athlete could be drafted into

the NFL and still play another year or two in the NCAA before signing with his

team, much like the NHL.

267

In either scenario, teams would have more

long-term control and athletes would have more career flexibility and security.

Instead, the NCAA prevents its most valuable product, elite football and

basketball talent, from having the option to return to school, seemingly only to

dissuade other players from leaving early.

B. Reality Check

Much like the NFL, NBA, and MLB maintain problematic draft and rookie

wage structures out of a misguided sense of benefiting their member teams, the

NCAA too appears to be protecting itself from change that is not necessarily

going to impact the organization negatively. If the NCAA were to work with

the three leagues to implement systematic changes that would mimic the NHL

structure and relationship, then it would actually stand to benefit.

The MLB already enjoys a symbiotic relationship with the NCAA. Without

an age limit in the MLB, college baseball does lose out on a significant amount

of elite high school talent. However, the MLB’s current draft rules reward the

collegiate ranks with long-term control over athletes if they do attend school. If

the MLB were to adopt the NHL model, there are no NCAA bylaws that could

stop them.

268

However, the NCAA would have little reason to fight the MLB

on that change. Allowing drafted high school players to attend college and leave

for the professionals when they wish would only increase the number of talented

domestic players that choose the college route. The league could then also

abolish free agent rights for draft-age international players so they too might

choose to play in the NCAA. The result would likely be a major uptick in

interest in college baseball, as the superior product, and ties to professional

organizations through drafted products, would make the game far more

266

. NBA CBA, supra note 144, art. X § 6(b).

267

. NFL CBA, supra note 7, art. 6 § 6.

268

. See NHL CBA, supra note 11, art. 8 § 6(c); see also NCAA, supra note 12, art. 12.1.2.

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224 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

attractive. There is no downside to the college level should the MLB choose to

adopt the NHL model.

In football and basketball, there would indeed be a talent drop-off. It would

be unavoidable if the leagues adapted to the NHL model and allowed players to

be drafted out of high school, and at any point while in college. Yet, there are

many positive trade-offs that the NCAA would enjoy. The first is that there is

no concrete evidence that the popularity of either sport, and the prized television

ratings, would also drop-off. Local college fan bases are passionate and loyal

and would likely be unaffected. As far as national audiences and attracting new

viewers, the loss of some star power in both sports would likely be off-set to an

even greater extent than baseball by the additional interest of professional fans.

Players drafted into the NFL, the most popular sport in the United States, and

the NBA, whom then continue playing at the college level, would draw a

substantial new crowd of those who now have a stock in the college game in the

form of their favorite team’s future players.

Another trade-off would likely be a decreased concern over amateurism

problems and major infractions cases. If young football and basketball players

are afforded the freedom to be drafted earlier and choose when they turn

professional, they would be given a clearer picture at their potential future at the

professional level. As such, they should be far less tempted to accept

impermissible benefits.

Finally, the NCAA would do well to work with the NFL and NBA on these

more flexible, player-friendly policies so as to shatter any perceptions of

inequality between sports. Student-athletes’ rights champion Ed O’Bannon

applauds the NHL system in his autobiography.

269

O’Bannon strongly supports

the rights of players to be drafted or enter a draft and still be eligible to play in

college, as well as work with an agent or advisor without risking their

amateurism status.

270

However, O’Bannon stresses that these rights should be

available to all student-athletes.

271

When they are not, there is an inescapable

stigma, real or imaginary, that there could be a racial component to the

inequities.

272

As O’Bannon points out, it is hard to ignore racism questions

when the favored NCAA sports, men’s hockey and baseball, are primarily

white, while the disadvantaged and most lucrative sports, football and men’s

basketball, are primarily black.

273

This is a skeptical viewpoint shared by many

and one less thing that the NCAA would need to worry about if it were to work

269

. O’BANNON & MCCANN, supra note 102, at 228-32.

270

. Id.

271

. Id. at 230.

272

. Id. at 231-32.

273

. Id.

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2018] ADOPTING THE NHL MODEL 225

with the leagues to ensure all professional caliber student-athletes are on an even

playing field.

VIII. CONCLUSION

Fortunately, O’Bannon’s musings are in line with the recommendations of

the Commission on College Basketball, perhaps indicating there is a growing

consensus that the treatment of student-athletes with professional ambitions is

lacking, that the problem is structural on both the professional and amateur ends,

and that the solution is not to simply pay student-athletes. Both have advocated

for allowing student-athletes to work with agents to make informed decisions

on their professional value and when to enter a draft, and both have expressed

the value in letting athletes enter a draft whenever they see fit and not lose their

collegiate eligibility as a result.

274

While O’Bannon focused solely on the

NCAA, the Commission took it one step further by making a recommendation

to the NBA that it abolish the “one-and-done” rule, while also issuing some

threatening alternatives to undermine the NBA’s current structure if it chooses

not to comply.

275

The hope, at the very least, is that a conversation is beginning nationwide

about how to improve the disconnect between talented young athletes, the

NCAA, and the other three major North American professional sports leagues.

For too long, athletes have struggled on their way to the professional level and

there appears to be no greater legal challenge to make today than there was when

Maurice Clarett was defeated by the NFL in 2004.

276

Making the situation

worse is the fact that many of the policies being protected by the leagues no

longer benefit the member teams, and the NCAA is similarly disillusioned. It

is time for all parties to listen to the rising noise and take a step back to

re-evaluate their structure.

If the NFL, NBA, and MLB took the time to review their draft and rookie

compensation structures and examine the issues that they are causing

themselves with these rules, they should want to make a change. They could

then look to the NHL, a league that has never suffered from the same problems

with young players that the other three have faced. There are admittedly many

differences between the NHL and its peers, but none that could not be overcome

by each league adapting the general structure to their own specific needs and

customs. Adopting that NHL structure—a draft model without an age limit,

274

. See id.; see also COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO

ADDRESS THE ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 6-7.

275

. COMMISSION ON COLLEGE BASKETBALL, REPORT AND RECOMMENDATIONS TO ADDRESS THE

ISSUES FACING COLLEGIATE BASKETBALL, supra note 19, at 3.

276

. Clarett v. Nat’l Football League, 369 F.3d 124, 143 (2d Cir. 2004).

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226 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

special rights retention for collegiate players, and a flexible, mutually beneficial

“Entry Level System”—should be the goal of each league. It may not be a clean

transition, or an easy one, but all three leagues stand to benefit greatly.

The current CBA between the NFL and the NFLPA expires after 2020.

277

The current CBA between the NBA and NBPA has an opt-out clause after the

2023-24 season.

278

The MLB has unilateral control over draft rules but will

need to work with the MLBPA on a new CBA to change other aspects after the

current pact expires in 2021.

279

Until then, absent the unions decertifying, there

is only a certain amount of sweeping change that each league can make.

However, some serious effort will need to be put in to reforming the way the

leagues manage young, incoming talent, even with the NHL as a model. The

leagues are now on the clock.

Imagine, though, that the hypothetical changes have already been made.

The effects have been felt around the country, with better situations for

professional-caliber athletes and professional teams alike. It is March of 2018

on the campus of Penn State, and Saquon Barkley has returned to his alma

mater. Rather than select Jeremy Langford in the fourth round of the 2015 NFL

Draft, the Chicago Bears took a chance on Barkley out of high school. He still

enrolled at Penn State as a freshman and rushed for over 1000 yards.

280

He then

signed with the Bears for less than the maximum entry-level salary. However,

he has made up for it substantially in performance bonuses as one of the top

young running backs in the league. Barkley meets up with Chicago Blackhawks

prospect and rising Penn State sophomore Evan Barratt and together they head

to the Penn State baseball game. On the mound is Dante Biasi, a twenty-second

round pick of the Chicago Cubs in 2016.

281

After missing his freshman season

due to injury, Biasi is excited for the 2018 season at Penn State and has had

conversations with the Cubs about signing with the team at the end of the year.

He hopes to continue a line of talented Nittany Lions associated with Chicago

professional teams.

277

. NFL CBA, supra note 7, art. 69.

278

. NBA CBA, supra note 144, art. XXXIX § 1.

279

. MLB CBA, supra note 200, art. XXVI.

280

. Saquon Barkley College Stats, supra note 3.

281

. MLB Draft Tracker, MAJOR LEAGUE BASEBALL, http://m.mlb.com/draft/tracker/ (last visited Dec.

13, 2018) (2016 MLB Draft results).