Clarett argues that the NFL clubs are horizontal competitors for the labor of professional football players and thus may not agree that a player will be hired only after three full football seasons have elapsed following that player's high school graduation. That characterization, however, neglects that the labor market for NFL players is organized around a collective bargaining relationship that is provided for and promoted by federal labor law, and that the NFL clubs, as a multi-employer bargaining unit, can act jointly in setting the terms and conditions of players' employment and the rules of the sport without risking antitrust liability. For those reasons, the NFL argues that federal labor law favoring and governing the collective bargaining process precludes the application of the antitrust laws to its eligibility rules. We agree.
Clarett v. National Football League, No. 04-0943 (2d Cir. May 24, 2004), slip op. at 11 (PDF). The bargaining agreement functions to prohibit persons under 21, with a few exceptions (and those probably only a matter of months), from signing NFL contracts. There are good physiological reasons for waiting beyond 18 in such a high-contact sport—particularly since it is only a sport. Now, if they'll just admit that college football is really minor-league professional football and stop the pretense at "amateurism"…
Some losers: The officer corps. The Geneva Convention. Civilization. Phil Carter comments as follows on the revelation that a company commander and a high-ranking NCO at Abu Gh'raib are set to testify that the prisoner abuse was consistent with orders from higher headquarters:
[T]hese leaders' testimony will corroborate the "we were just following orders" defense of the soldiers, by showing the level of command involvement at Abu Ghraib. If there was enough pressure from the top to make the CO and 1SG go along, then surely you can't expect some privates and sergeants to resist orders like these, right? (At least, that's the theory the defense will offer.) My prediction is that this testimony will be key to the defense, and that it may ultimately exculpate the defendants or result in a reduced sentence.
"Did top officers know about Abu Ghraib?" (23 May 04). Without excusing anyone for issuing such orders—assuming arguendo that they were in fact issued and known to the accused soldiers, which although not yet established by evidence looks increasingly likely—the "Nurmeburg Defense" should not do more than mitigate the sentence, even for private soldiers. Nobody can reasonably argue that this was a battlefield situation requiring a snap judgment. As Lt Calley—another individual brought into daylight by Seymour Hersh—found to his detriment, the law requires one to disobey a patently unlawful order. The only question relevant to the court is (or should be) just how clear those orders were. If the orders were unlawful and the soldiers went beyond the scope of the orders, then the orders should provide exactly no benefit at all.
What I find most frightening about this whole controversy is that it was far from difficult to anticipate. In the early 1990s, I was a "guest Assistant Professor of Aerospace Science" for the seniors at the University of Illinois. I used a "problem method" for studying ethics and military law problems in class. One problem that I developed—a problem that resulted in a lot of class discussion spilling outside the hour and onto the exam—was an Air Force-context My Lai incident in Iraq. What really frightens me is that one of the hypotheticals that I had ready—in 1993, mind you—was a prisoner-abuse situation. The spirited discussion never allowed me to get to that particular scenario. But there are (depending on how long they stayed in) forty or so USAF officers who have at least had to think through this situation before.
We have met the enemy. And he is us.