Clarett's attorney files appeal with U.S. Supreme Court

Milstein hoping to get stay of 2nd Circuit ruling

Ginsburg will handle case

April 21, 2004|By Ken Murray | Ken Murray,SUN STAFF

Faced with a losing battle in federal appeals court and a diminishing window of opportunity, the attorney for Maurice Clarett went to the U.S. Supreme Court yesterday in a last-gasp attempt to get the former Ohio State running back into Saturday's NFL draft.

Attorney Alan Milstein filed an emergency appeal with the Supreme Court one day after a ruling by the 2nd U.S. Circuit Court of Appeals in New York bounced Clarett out of the draft.

Justice Ruth Bader Ginsburg will handle the case that began with a federal district court ruling last February that overturned the NFL eligibility rule banning players who are not three years removed from high school graduation.

Also riding on the outcome is the immediate football future of Southern California wide receiver Mike Williams, who was granted draft eligibility after the ruling by U.S. District Judge Shira Scheindlin, only to lose it Monday.

"We're hoping justice will prevail and Mr. Clarett will play football, which is what he was born to do and which is what he is ready to do," Milstein told the Associated Press.

The NFL is confident it will win, based on having gotten a stay from the 2nd Circuit Court on Monday.

"There was ample support for the ruling of the 2nd Circuit, which thoroughly considered and completely rejected the arguments that Mr. Clarett's lawyers have presented to the Supreme Court," said Jeff Pash, the NFL's chief in-house counsel.

But two attorneys agreed last night that Ginsburg is a judge who might be sympathetic to Clarett's case.

"If I had to pick a justice, Justice Ginsburg would be the judge I'd want if I were [Clarett]," said Gary Roberts, director of sports law at Tulane University in New Orleans.

Could Clarett win the latest round in his three-month legal skirmish with the NFL?

"Yes, I think so," said Matthew J. Mitten, a law professor and director of the National Sports Law Institute at Milwaukee's Marquette University.

"He's got a different judge who tends to be liberal and protective of individual rights. What she's going to be looking at is whether the stay of the lower court decision is consistent with how the Supreme Court has viewed the nonstatutory labor exemption.

"Or she can look at it and say the NFL will not suffer irreparable harm [by allowing Clarett into the draft]."

Nevertheless, Mitten admitted that Clarett's chances to force his way into the draft this weekend remain a long shot.

"It's fourth-and-long, and he's dropping back to throw a Hail Mary," Mitten said.

Roberts, who once handled antitrust litigation for the NFL while working with now-commissioner Paul Tagliabue, said he would be "shocked" if Ginsburg were to rule for Clarett.

"Courts always can surprise me, but I would be shocked if she paid more than 30 seconds' attention to this," Roberts said. "Because there's no reason for her to take action. The 2nd Circuit hasn't even issued an opinion on the merits. But it said in its judgment, the NFL was going to succeed on the merits.

"This would be a shock; [Clarett] is just flailing in desperation. The Supreme Court is not going to sully its hands on this kind of matter in this kind of posture."

The NFL contends that players younger than college juniors are not physically or emotionally mature enough for pro football.

Nevertheless, Williams was regarded as a mid-first-round draft choice had he been able to enter the draft, even though he is only a sophomore. After the appellate court decision knocked him out of the draft on Monday, Williams filed his own lawsuit in federal court in Manhattan.

Williams' lawsuit says that the NFL made conflicting statements after the district court ruling that caused him to give up his college career.

The NFL has said that if it loses the case, it would hold a supplemental draft this summer for Clarett, Williams and seven other players of varying experience who applied for eligibility in February. Clarett was not expected to be drafted in the first round, but more likely in the second or third.

Clarett was a freshman in 2002 when Ohio State won the national championship. He was suspended in 2003 for accepting improper benefits from a family friend and allegedly lying about it to NCAA investigators.

Both players could apply to the NCAA for reinstatement at their respective schools, although neither has indicated a desire to do so.

The Associated Press contributed to this story.

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