Private groups must be able to set own rules

A federal district court judge blew the call recently when she decided former Ohio State running back Maurice Clarett should be eligible for this year’s NFL draft. One needn’t be a football fan to appreciate that the NFL, a private entity, ought to have the freedom to determine who is eligible.

We hope the appeals court uses more sense about allowing a private entity to set its own rules for inclusion.

U.S. District Judge Shira Scheindlin ruled against the NFL’s policy that a player must be out of high school for three years before becoming eligible for the draft. Scheindlin determined the NFL’s policy would keep Clarett and others too young for entry from selling their services to what she sees as the only buyer: the NFL.

“The NFL has not justified Clarett’s exclusion by demonstrating that the rule enhances competition,” Judge Scheindlin said. “Indeed, Clarett has alleged the very type of injury — a complete bar to entry into the market for his services — that the antitrust laws are designed to prevent.”

Clarett, now 20, was a college freshman when he led the Ohio State Buckeyes to a national championship in 2003. We can forgive him for considering three years to be “forever.” However, it’s unimaginable how a federal judge can come to the same conclusion, as she did with the words “complete bar to entry.”

Clarett as a football player does not face a complete bar from the NFL. Clarett as a young man two years out of high school faces a bar for another year. He is still free to pursue a career within the rules of the NFL. But, as a private organization, the NFL has the right to determine that someone so young is not physically ready for the NFL. That’s the consensus of the coaches and executives who adopted the rule in 1990, and it continues to be the consensus of the coaches and executives today who have kept it in place.

“The NFL functions as a private entity and they can set the rules for eligibility as they see fit,” said Raymond Keating, chief economist for the Small Business Survival Committee. Keating, who is working on a book about the relationship between sports and government for the libertarian Cato Institute, says there is a parallel between the Clarett case and that of golfer Casey Martin, who sued in order to use a golf cart during PGA events. In each case, an activist judge determined what a private organization’s membership policy should be.

There is an argument that says Clarett should be able to play if he can prove he has the physical conditioning to compete weekly with NFL players. However, the only sure way to prove or disprove this theory is to allow him to play first. NFL officials, not wanting to first test that, exercised their right to put a rule in place within their organization.

Another argument says an individual team should be able to decide if it wants someone as young as Clarett. After all, the owners of those teams have the rights of private organizations, don’t they? Sure, but in exercising them, those owners voluntarily joined an organization, one with rules for membership.

Clarett got a lucky call in the federal district court. The next round should be judged more appropriately.