Good commentary.

I just disagree with the NFL and NCAA on this in practically all aspects. To me, it's a simple thing. They passed all the physical tests (at the combine, private workouts, etc...) and excelled at them. Teams were lining up to draft and play them immediately. Williams would have been an early first rounder while Clarrett would have gone in the second or third round, but both would play immediately next season. That seems to be my main point of contention -- if the members of the league think they're viable, then they probably are.

And this "maturity" factor...what about some of the players out there that are too "mature"? If you should only be playing when you're in prime physical condition, why doesn't the NFL keep out players whose athletic abilities are declining as their careers wind down?

When, you're ten years out of school, that's it. No longer prime. Retire. Sorry if you've aged really well, the rules are the rules...Get out.

Wonder if Upshaw and Tags will put that in the next CBA...

Why should the government tell a private association who they can let in and who they can't?

Why should the government tell a private association who they can let in and who they can't?

By this perspective, I suppose we should be glad that the professional leagues determined for themselves that it was time to allow African Americans to play. We wouldn't want the government coming in with their darned anti-discrimination laws.

Not sure if you addressed my question. Since the leagues actually did allow integration on their own, I am not sure what kind of argument it is to bring that up as a point in favor of govt. intervention. Once again, why should the government be able to tell a private association who they can and cannot restrict?

Nice try at Hart's 'Dialogue' -- a "stay" of a ruling on the merits is an exercise of the court's equitable power and is decided using the tradition "injunction" standard (3 factors -- maybe calling public interest a 4th). The district court denied the motion to stay the judgment on the merits. The decision to grant or deny a stay is review for abuse of discretion. A panel of the 2d Circuit said the refusal to grant the stay was "unreasonable", or that the trial judge abused her discretion in refusing the stay the judgment. Justice Ginsburg in her capacity as Circuit Justice also acts in an appellate capacity by asking whether the Court of Appeals abused its discretion in granting the stay. She said its decision was "reasonable"--which is the typical result. Ditto for Justice Stevens.

There are a lot of other factors involved here, among them that the district court's decision is without foundation in economic science--and perhaps contrary thereto. As a matter of black letter law, the absolute prerequisite to any equitible relief (including a stay) is an "inadequate remedy at law." Or, in this case, the NFL had to show that the draft was impending and irreversible damage to the interests it seeks to protect on appeal would occur without the stay. Couple that with the availability of the supplemental draft to protect Clarett from "irreparable harm"--especially since he's a late-round draft choice anyway--and you have a balance favoring the stay. I am frankly shocked that the District Court didn't grant the stay in the first place, because this is a clear case -- where the draft would occur between the trial court judgment and the appelate review -- in which the issue could be mooted. [It arguably wouldn't be moot in the broadest sense because it is capabale of repetition yet evading review. But specifically, i.e. as to the particulars of this case, it would be.]

David, simply because a private association does choose to end a discriminatory policy is not a sufficient argument against the government's enforcing anti-discrimination law. Are you saying that it was good and right for African Americans not to be able to play in the MLB, simply because they were black, until the MLB felt like inviting them in? Or, to refer back to a parallel I drew in the post, that it was good and right for women to be excluded from the workplace, simply because they were female, until employers felt like inviting them in?

Unfortunately, I think that the stay itself is unreasonable as the NFL is clearly going to lose the appeal on the merits. In other sports, such exclusionary rules have been abandoned, or they have other mechanisms for dealing with younger players. The law in this case is pretty clear, as this issue has been played out in other sports, in some form or another.

The only sport that the NFL's rule could stand up in is MLB, and that is largely a historical anomoly that should be struck down. I would not have granted the stay.

I disagree -- the stay should have issued because the antitrust issues involving statutory collective bargaining, S. 1 of Sherman, and the labor exemption are ANYTHING BUT CLEAR -- the district court in this case made a decision that there were no genuine issues of material fact and that judgment as a matter of law was appropriate. I agree with the district judge: there are no issues of material fact. HOWEVER, they are significant, important, crucial, critical, culture changing, economy unbalancing, etc etc etc issues of LAW that are not clear or settled. Because the Court of Appeals for the 2d Circuit -- which is busy working on antitrust daily -- agreed with reason in this instance, they granted a stay on the basic lack of prejudice to Clarett but fabulously out-of-this-world prejudice to the NFL if the district court, it turns out later, had the law all wrong (or the appellate court finally disagrees. It is my opinion that unless the appellate court makes some ridiculous construction of federal law or expands some "policy" issue, in other words unless the court goes beyond the facts of the case (which they should not do ever anyway but do constantly), this case will be reversed by the 2d Circuit (en banc maybe?) and never get 4 votes for certiorari at the Conference.