This weekend, the National Football League will hold its annual extravaganza in which college athletes are assigned to the league's 32 franchises. The drafted players have no say in where they're going, of course—an athlete is bound by the NFL's union contract to negotiate the terms of his employment with only the team that happened to call his name from the podium. Those unfamiliar with this ritual may find it strange that team owners are allowed to conspire to claim rights over the lives and labor of young men. Experienced draftologists will know that the NFL Players Association sanctions this compromise of labor rights, as it has for many years now. To understand how that came about, we must recall the story of the NFL's most notorious draft-dodger, James "Yazoo" Smith.
In 1968, the Washington Redskins used their first-round pick (12th overall) on Smith, an All-American defensive back from the University of Oregon. The rookie signed with the team for $50,000, and his unremarkable first season culminated in a career-ending neck injury during Week 14. Smith seemed destined for quick obscurity. Then he sued the NFL.
Two years after his retirement, Smith went before a judge and asserted that the draft constituted an unreasonable restraint of trade in violation of the Sherman Antitrust Act. Had it not been for the draft, he argued, he would have been able to negotiate a more lucrative contract for his one year as a professional. And he demanded that the NFL make up the difference.
The case succeeded at the district court, securing $276,000 in treble damages for Smith, and he won again when the league appealed. In 1977, the U.S. Court of Appeals for the District of Columbia Circuit ruled the "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."
For a moment, Yazoo Smith seemed destined to stand beside Curt Flood, the outfielder who had fought Major League Baseball's "reserve clause" in 1970 and opened the door to free agency, as a giant in the annals of sports-labor history. If the Yazoo decision held up, there would be no more drafts in professional football—or, indeed, in any other professional sport.
But league lawyers (including future Commissioner Paul Tagliabue) had already been working on a Plan B. They realized that even if they lost the Smith case, they might still manage an end-around on the rules against monopolies by securing the support of the NFL Players Association (founded in 1956). A set of recent Supreme Court decisions—in a 1965 case involving meat-cutters and a 1975 case involving plumbers—had established a "non-statutory labor exemption" to antitrust law. That meant the leagues could still hold their drafts as long as they could get the unions to agree to them.
In March 1977, before the appeals court reached its decision in Smith v. Pro-Football, the league and the players arrived at a new collective-bargaining agreement. For the first time, the players association explicitly agreed to sanction the NFL draft. (Other professional sports leagues soon followed suit.)
When you tune in for coverage of the draft this weekend, keep this history in mind: For more than 70 years, "sellers of football services" have been systematically deprived of their bargaining power by being forced into the amateur draft. For the last three decades, the blessing of the players union has ensured the legality of this arrangement. But that doesn't mean the system is fair or equitable. In fact, the players association doesn't really have an incentive to protect the interests of future professionals.
The union's leadership is determined by seniority, with the upper echelon composed of veterans whose financial stakes conflict with those of the rookies. For example, take the way that draftees are paid by their assigned teams. According to the current collective-bargaining agreement, each club is allotted a set amount of "rookie pool money" to sign its draft picks. (Here's last year's breakdown of pool money.) It benefits the veteran players who run the union to keep that pool small: Since the NFL maintains a hard cap on the total amount of money distributed to players throughout the league, less money for rookies means more for the old-timers.
Lawyers for the professional sports leagues argue that is a perfectly acceptable arrangement, as wages and benefits go up with seniority in many other industries. But pro football is not like other industries. According to the players association, the average NFL career lasts about three and a half seasons. That just about covers the term of service that a player must devote to the team that drafts him before he's eligible for unrestricted free agency.
These days, draft reform is a very low priority for the union, especially since any serious demands for change would probably require other sacrifices during the collective-bargaining process—such as lowering player salaries or allowing more restrictions on free agency. In fact, there's buzz that in the next agreement, the union will accept an even tighter wage scale for rookies.
Union-sanctioned drafts have been challenged on their own terms. After basketballer Leon Wood was drafted by the 76ers in the 1984 NBA draft, he declined to accept a one-year-contract offer that would have paid him $75,000, arguing that he shouldn't have to negotiate under a collective-bargaining agreement made by a union of which he was not yet a member. The courts ruled against him on the grounds that doing otherwise would undermine the labor negotiations between unions and employers in all industries.
The time for another challenge in the NFL may be near. At the end of the 2010 season, the league's collective-bargaining agreement will expire. If players and owners can't come up with a new agreement right away, any draft conducted without union support might be subject to all sorts of Yazoo Smith-style legal action. Even with a new agreement, the NFL draft system could still be vulnerable. The 2nd Circuit decision in the Wood case came with an intriguing endnote:
Wood has offered us no reason whatsoever to fashion a rule based on antitrust grounds prohibiting agreements between employers and players that use seniority as a criterion for certain employment decisions. Even if some such arrangements might be illegal because of discrimination against new employees (players), the proper action would be one for breach of the duty of fair representation.
In other words, those who wish to challenge the NFL draft in the post-Yazoo Smith era should think hard about their target. It's not the league. It's the union.
NFL retirees have already pressed the union for action on the league's pension and disability plan, and they've taken the players association to court for a better share of licensing revenue. Now future NFL players have a similar opportunity to make their voices heard. Negotiations over a new collective-bargaining agreement represent the best chance for them to voice displeasure over the drafting process, from age requirements to salary concerns. Of course, it will be tough to organize and motivate young, inexperienced athletes for such a challenge. But it's a great time to try. It's been almost 40 years since Yazoo Smith sued the league. Isn't it time that someone sued the union?