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Guidelines lacking in CBA

Now that the inevitable has occurred, and erstwhile Ohio State tailback Maurice Clarett has filed suit challenging the draft eligibility rules, even casual fans who devoted cursory thought to how the league would defend itself might pay closer attention to a collective bargaining agreement that is the touchstone of the labor peace brokered in 1993.

Those fans need not bother, however, poring over the document seeking the precise black-and-white guidelines dealing with draft eligibility.

Because they aren't there.

The collective bargaining agreement, from its five-paragraph preamble all the way to the final "worker's compensation" listing in the index, covers 292 pages.

There are 61 articles, appendices from "A" through "N" and 357 sections. There is an introduction, countless subsections, tens of thousands of words. There are painstakingly minute details about the salary cap, precise guidelines on severance pay, huge sections on arbitration, collusion, injury grievance procedures, moving expenses and fringe benefits.

What there isn't in the collective bargaining agreement, however, is any explicit language regarding the NFL's rules for draft eligibility. Article XVI of the CBA deals with the draft. Its 13 sections lay out rules covering the annual timing of the draft down to workouts for draft eligible players. But there is nothing about eligibility.

And for the NFL, that could make it more difficult to defend those rules in court.

Make no mistake about it: While those who were advising Clarett kept talking about his possible transfer, most high-ranking league officials expected him to file suit, and he did just that, in federal court in New York, on Tuesday morning. The move came only about 12 hours after Clarett's mother and advisors concluded a Monday evening meeting with league counselors in Washington.

It was a session after which an NFL spokesman announced league officials would "get back to" the Clarett family. Not surprisingly, the family, and attorney Alan C. Milstein didn't see fit to wait for a follow-up from the league. And, to be candid, filing suit was the planned modus operandi anyway, once the NFL refused to roll over in the Monday session and open its doors to the tainted tailback.

You think the legal brief filed on Tuesday morning was drawn up overnight? If so, you are as naïve as those who have suggested the NFL will acquiesce to Clarett's demands. And that is what they are, demands, no matter how Milstein prefers to portray the threatening missive recently dispatched to the league and the NFL Players Association

The league's attorneys were already preparing for the potential assault on the NFL's ability to maintain the college playing fields as a quasi-minor league system. And commissioner Paul Tagliabue has reiterated the NFL will vigorously defend it rules that a player must be three years removed from high school graduation to petition for inclusion in the draft. But assuming that legal action would be forthcoming, and being able to successfully ward off an antitrust action, are two different animals.

And the NFL, to its dismay, has discovered that the hard way in the past.

So you've got to wonder why the league and the NFL Players Association, which pored over every word and closely scrutinized every comma when negotiating the CBA, failed to include the draft guidelines in the document. Heck, even Harold Henderson, the NFL's vice president of labor relations, wonders why the language isn't in the CBA.

The answer seems to be more a case of oversight than a lack of foresight.

"I know that we agree on (the draft eligibility rules)," Henderson told ESPN.com two weeks ago. "Why it didn't get into the CBA, well, I don't know. I certainly wish it was in there."

You bet he does.

Henderson is one of the league's good guys and his candor, and patience in explaining elements to those of us who are not labor attorneys, is always appreciated. He allowed in the recent interview that he was surprised no one had previously asked him, particularly in the wake of the Clarett situation, why the draft eligibility rules weren't in black and white. And he was legitimately perplexed that they are not an explicit part of the CBA, instead of just floating around, aching to be challenged by some kid who feels that he has nowhere else to turn to continue his football career.

In a broad sense, Henderson explained, the draft rules are implicitly covered. "Agreed to by reference" was the term Henderson employed. Translation: The CBA stipulates that, if the league and NFLPA executive director Gene Upshaw are in tacit agreement, that item is, rather flimsily it seems, essentially covered. And Upshaw, who did not return a request to be interviewed, has already said the NFLPA is in concert with the draft rules.

But being in agreement, and being delineated in the CBA, might be two different things in the eyes of a judge. Suffice it to say -- and many labor attorneys have, indeed, said it -- the league would be on much firmer ground were its rules committed to language in the collective bargaining agreement. Because they aren't, it could cost the league millions to defend rules much saner than all the eligibility guidelines that exist in other professional sports. And it could eventually, in theory, open up the league to any 18-year-old who feels he is ready to compete at the highest level of competition.

As Henderson pointed out, even if the draft rules were included in the CBA, it would not necessarily make for a legal slam-dunk for the league. "If putting it in (the CBA) made it an open-and-shut case, hey, we'd close the loophole right now," Henderson said. "We'd have taken care of it."

But companies and unions -- and the NFLPA is the exclusive bargaining agent for the league's rank and file -- have a right to collectively bargain hiring practices and guidelines for such. In most cases, for instance, you can't just stroll in off the street, grab a welder's torch and begin constructing a automobile frame. There is an apprenticeship to be served in most skilled crafts and the rules for those are collectively bargained.

An employer and the exclusive bargaining agent for the workers can be in accord on the terms or conditions of employment. Just as individual states have a right to establish the age at which a citizen can belly up to the bar and legally buy a beer or mixed drink, or the age at which someone can drive, both sides in labor relationships can set guidelines under which people can be employed.

Those rules might not be ironclad, but they are made more difficult to challenge if committed to language.

The fact the NFL's draft eligibility rules aren't included in the CBA makes the task of league attorneys considerably more difficult in front of any judge. And the key oversight certainly means some crafty labor attorney like Milstein was telling Clarett and his family that the NFL is vulnerable to a challenge.

It's not by happenstance that the apparent cornerstone of the Tuesday court action is the fact that the NFL eligibility rules exist outside the purview of the collective bargaining agreement. Or that Milstein charges that the rule is "a restraint of amateur athletes who were strangers to the collective bargaining process."

The fact is, when it comes to draft eligibility rules, everyone is essentially a stranger in terms of the agreement. The strangest part is that, in attempting to dot every "I" and to cross every "T," the league and the players union failed to deal with a key element.