An attack plan for abolishing the NHL draft, which is both immoral and inefficient.
Please click through to read a long-ass explanation of which body must be convinced that pro sports drafts have outlived their usefulness.
The entry draft of the National Hockey League, which took place during this writing, is a prompt to let it all out about how ALL DRAFTS ARE IMMORAL. Perhaps some smarter, well-connected, media-friendly labor lawyers should do something about it.
Sports media pros who have written an ‘Abolish The (Insert League Name Here) Draft’ thinkpiece also need to grok that well-reasoned facts ’n’ arguments about athletes deserving the same freedom of employment choice as most of us, or not rewarding poorly run franchises or tank jobs, are just air. There is no legislating brains or luck. These billion-dollar sports moguldoms keep a lot of lawyers on retainer in order to be insulated from your or my real world. Might is right at that level.
Big business very seldom willingly increases labor costs just because someone has an idea that is for the good of the game. So, it would do much more to increase understanding about how we get rid of drafts if we focused on who needs convincing first and foremost. That is not commissioner Gary Bettman in the NHL, or his C-suite counterparts in the other leagues.
The players’ associations, rather must be pressured into pulling their support of the draft structure. They have the right to sanction the leagues’ intake process for new players, and need to take it back from the leagues for the good of the games and the players. But who will make them?
Long, long ago, in a sports galaxy whose finances had far, far, fewer zeroes, a former football player named Jim (Yazoo) Smith convinced a court that the NFL draft is illegal. Smith had played free safety for Washington for one season before suffering a permanent injury. The upshot from his court fight was analogous to Smith intercepting a pass and returning it inside the opponent’s 10-yard line, only to watch the NFL Players’ Association cough the ball right back before he had even grabbed a cup of water on the sideline. But there needs to be some background about when, and why, each of the four major male team sports ended up with a draft. In all cases, it was borne from perceived necessity that no longer exists.
NFL: 1936
Like most bad things in sports, the draft was an NFL Original. Bert Bell was the first proprietor of the Philadelphia Eagles and, eventually, the league’s second commissioner.
Bell, per the official narrative, fomented the “league is no stronger than its weakest link”1 institutional memory that the NFL has ridden to owning a day of the week from September until February. For its first 75 years, as Art Modell famously put it, team governors were “28 fat-cat Republicans who sit around and vote Socialist.” The league has shifted from that since Dallas’ Jerry Jones wrested the shadow commissionership.
Pro football, at the time that draft was adopted, was probably the No. 5 sport in the United States (after baseball, college football, boxing, and horse racing). It is probably not for nothing that the franchises that won championships in the early NFL were Midwest teams in Big Ten country — Chicago, Detroit (!), and Green Bay. They had the pipeline, the larger player pool, and given the demographics, access to more large football men.
There was really no such geographical advantage for Bell and the Eagles. Other eastern teams often formed and folded in a trice. That hurt the legitimacy of a fledgling gate-driven league during the Great Depression. Bell, “burned by losing college players to other teams in bidding wars,” proposed having a draft. It won unanimous support since it did save money, and proved the winners with credible opponents.
It is likely no shock to learn that getting his way with the draft did not help Bell and the Eagles immediately. To this day, his .190 winning percentage as a coach is the worst in league history. Bell was also the commish who ushered the Cleveland Browns into the league, and still his record stands.
Bert Bell was a good commissioner in the aggregate. But you can only imagine what Mac from It’s Always Sunny In Philadelphia would say about where Bell was coming from when he pitched his idea for a draft.
NBA: 1947
Second blurst; same as the first. Basketball created a draft in an effort to stamp out bidding wars for “popular players from colleges in their area.” In the 1940s, the league that came to call itself the NBA was the brainchild of sports promoters who were applying the theory that “hockey arenas, which sat empty on many nights, could be put to profitable use hosting basketball games.” They needed all the help they could get.
That even expanded to having a territorial pick option until 1965. All-time greats Wilt Chamberlain and Oscar Robertson were both territorial picks. Anyone familiar with the forces that move the NBA might intuit some incoming fun facts.
Neither legend’s original teams, the Philadelphia Warriors and Cincinnati Royals, are still around in the same form.2 Both demigods earned their championship rings elsewhere. Chamberlain won chips with the Philadelphia 76ers and later with the Los Angeles Lakers. Robertson won with the Milwaukee Bucks after teaming up with Kareem Abdul-Jabbar, who had come to Milwaukee as a No. 1 overall choice.
MLB: 1965
The timeline with baseball getting a draft could fit within a Mad Men episode. You can almost see Don Draper politely but skeptically listening to some Scolding Oldie.
If you watch baseball, you probably have heard someone say the draft was created to Stop The Yankees. It is true that the Evil Empire won 15-of-18 American League pennants prior to the first amateur draft in 1965. That is more like a convenient cover story.
A retrospective authored by John Manuel at SABR.org in 2010 notes that “the draft itself… always has been a reaction to the way major-league clubs procure amateur talent.” (Emphasis mine.)
The real spur, by Manuel’s and many informed accounts, was a big-market coastal team going above the going rate. Fifty-nine years ago this month, the Los Angeles Angels paid two-sport athlete and righty-hitting outfielder Rick Reichardt the equivalent of a $2-million signing bonus. It was not something that happened in isolation. Manuel notes that the 20 AL and NL teams spent more on the intake of amateur players in 1964 than they spent on payroll for their major-league rosters.
It is so baseball to take a rearguard action. All of this was happening while it was being surpassed by football as North America’s No. 1 sport. The reason it conjures up Don Draper is that Mad Men is all about showing people who are only dimly aware of the shifting tectonic plates below their Florsheims.
The challenge to the NFL posed by the American Football League (AFL) fostered innovation. It also gave rookies leverage of negotiating with two potential employers. It is understandable that slow-thinking, always-pick-rock Major League Baseball gulped because they were letting 20 teams drive up the going rates for signing talent.
Five months later, the AFL’s New York Jets signed quarterback extraordinaire Joe Namath to the “enormous sum” of $427,000.3 You can just picture Don at a midtown Manhattan bar overhearing a conversation between a sportswriter and some Yankee front-office type saying that this was a ridiculous amount of money to pay an athlete and that, boy, isn’t it good baseball will not have those ridiculous rookie contracts now? And Don would probably just give a look that conveys that these are people that neither he nor you needs to take seriously.
Adding a draft killed MLB’s defence of its noxious reserve clause. Baseball claimed that, well, at least players got to choose what colour of cap and sleeves would accessorize the bonds of baseball servitude until they were traded or released. Such weaksauce knee-jerkassery ended when they created an amateur draft.
Rick Reichardt was out of baseball by the time the reserve clause was struck down in 1975, ushering in free agency. He did not cash in on that, but even in non-adjusted dollars, he had a larger signing bonus than either Barry Bonds or Ken Griffey Jr. got in the mid-’80s. You could look it up.
NHL: 1969 (or ’63)
The progression in procurement for hockey is innarestin’ since the league did a phased-in 180.
In the NHL six-team era (1942-67),4 prospects were spoken for very early, and guided through a maze of sponsored junior and minor pro teams. It was hella parochial, and the Canadiens, Maple Leafs, and border-city Detroit Red Wings had dibs on most of the most promising boys from Québec, Ontario, and the Prairies. At that time, NHL rosters were 99 per cent Canadian.
It is important not to attribute any long-range vision to men of influence here. This is the NHL, after all. President Clarence Campbell5 at least saw that there was baked-in inequity, more likely for bottom-feeder teams than for child hockey players and their families.6
By 1950, there was an intra-league draft. Starting in 1963, there was an annual draft of “kids that had slipped through the cracks … with an eye to make it universal.”7 The other development that presaged the modern, Bettmanified NHL was that by the mid-1960s, the NHL, at the pushing of Rangers prez William Jennings, was ready to start playing a puck version of Oregon Trail in regions of the U.S. that did not necessarily have fecund youth hockey systems. It mostly worked.
Adding newbie franchises meant reducing their overhead, so direct sponsorship of junior teams got the snip. Let that cost certainty go all the way to the sub-cockles of your black, black heart.
The draft in 1969 was the first where every of-age junior was available. Put a pin in projecting alternative timelines where the system had been adapted for new U.S. teams and the Vancouver Canucks. Like in that Community episode, and like Canucks playoff runs when those actually occurred, it ends with something on fire.
That’s great, Abed. Can we get back to Jim (Yazoo) Smith?
Smith, semi-notably, is a degree or two of separation from other sports disruptors who are admired and adulated to this day: hall-of-fame basketball forward Spencer Haywood and Nike cofounder Phil Knight. You know of their legacies, hopefully, since they survived the test of time by thriving within the system that they dared to challenge. Pointing out, rightly, that the whole system is wrong after it wronged you is just too hard for the myth-making machinery. It also gives the slappies a chance to say you were just a whiner.
Biographical information on Jim (Yazoo) Smith beyond him taking the NFL to Antitrust City in the 1970s seems rather scant. Like Haywood in basketball and Curt Flood in baseball, who both ended up in front of the U.S. Supreme Court over their employment freedom, Smith was a Black athlete who grew up in the Jim Crow South (version 1.0). Smith’s hometown of Yazoo City, Mississippi, is listed as a 21-minute drive from Silver City where Haywood was, in his own words, “born into servitude.”
Smith got out and blossomed as a free safety with the Oregon Ducks in the mid-’60s. That would have been around the time that Phil Knight, a fellow Ducks varsity letterman, was selling running shoes out of his car at track-and-field meets.
By the time Smith could enter pro football in 1968, the NFL and AFL were in the break-the-ice, play-nice stage of the merger. They had adopted a common draft. It might have had something to do with that contract the Jets had given to Joe Namath, which Don Draper’s imagined drinking companion was sure glad they did not have in baseball. Here is where the obvious bitter irony is obvious: Namath achieved star status playing for Alabama in the all-white Southeastern Conference while Smith and other Black players were barred from playing for the ‘big teams’ in their home states.
The common draft meant that Smith, rather than being able to play the Washington NFL team that drafted him No. 12 overall against an AFL team, had only one buyer for his footballing skills. He then suffered a serious neck injury in the last game of his rookie season8 and had to stop playing.
That led to him, as Eriq Gardner outlined for Slate in 2009,9 going “before a judge (in 1970) and assert(ing) that the draft constituted an unreasonable restraint of trade.” The crux of the case was that Smith believed he could have negotiated a better wage if he had been allowed to negotiate with multiple buyers. A federal district court agreed with Smith.
I recall, back in the early days of the FAN 590’s Prime Time Sports, either Bob McCown and/or the late Jim (Shaky) Hunt making sport out of the NFL’s courtroom record. They pointed out then NFL commissioner Paul Tagliabue represented the league in court 27 times — presumably not all against Al Davis and the Raiders — and went 0-27.
What is football, though, but an infinite game of adaptation and adjustments? The Smith case was before an appeals court when, per Eriq Gardner, Tagliabue and various league lawyers diagrammed their Plan B.
Their Eureka moment: an illegal labour practice is nice and legal if a union signs off on it. Or as Gardner wrote in ’09:
A set of recent Supreme Court decisions … 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.)
The draft was what we thought it was. And the NFL Players’ Association let ’em off the hook!
Rebuilding… the narrative.
The fate of Jim Smith gets google-whacked real good. An article by Paul Attner published in The Washington Post on Dec. 30, 198110 illustrates that his win was personally Pyrrhic. An appeals court judge had confirmed that the antitrust violation stood, but slashed the damages award to Smith by about 96 per cent.
The entire ruling of James McCoy (Yazoo) Smith v. Pro Football, Inc., a Maryland Corporation is available on Justia. It might be worth copypasting the link to a lawyer friend. My best understanding is that this came down to determining when a reasonable insistence is reasonable.
The appeals court did not buy the NFL’s arguments that abolishing the draft would cause the sky to fall. Or it reckoned that if the sky would fall, then at least the operators had strong economic parachute. Their reasoning blew a hole in the league’s narrative, but somehow I doubt this has ever been reprinted in a fantasy football guide.
The draft is allegedly "procompetitive" in its effect on the playing field; but the NFL teams are not economic competitors on the playing field, and the draft, while it may heighten athletic competition and thus improve the entertainment product offered to the public, does not increase competition in the economic sense of encouraging others to enter the market and to offer the product at lower cost. Because the draft's "anticompetitive" and "procompetitive" effects are not comparable, it is impossible to "net them out" in the usual rule-of-reason balancing. The draft's "anticompetitive evils," in other words, cannot be balanced against its "procompetitive virtues," and the draft be upheld if the latter outweigh the former. In strict economic terms, the draft's demonstrated procompetitive effects are nil.
The defendants’ justification for the draft reduces in fine to an assertion that competition in the market for entering players' services would not serve the best interests of the public, the clubs, or the players themselves. This is precisely the type of argument that the (United States) Supreme Court only recently has declared to be unavailing.
The Smith ruling has 53 mentions of anticompetitive and 22 mentions of procompetitive. Scoreboard! Scorigami! Now we are getting somewhere, thousands of words later.
The next piece is marshaling the facts and arguments for a draftless sports world. Or drafts that are at least bent to be as favorable to longer-term athlete development as possible. Poorly run teams, those ones whose system seldom nurtures a draft choice to their original projections have not earned the privilege to get to keep drafting high year after year.
Are attitudes changing?
As stared right off the hop, draft abolitionists need to marshal more direct facts and arguments than ones about a free market and freedom of choice.
At least there is a greater understanding that, ‘I went through it, therefore you should too’ is not an adequate answer. In reading up for this screed, I found a case-to-get-rid-of-the-draft column from the great Bill Rhoden. None other than the great Oscar Robertson, now 84 years old, acknowledged to Rhoden, “I don’t think I would have gone to Cincinnati” as a rookie in 1960. That is refreshing.
But the other basketball-biz oracle whom Rhoden leans on, attorney and sports agent C. Lamont Smith, indirectly shows the problem with most anti-draft arguments. They arouse the fear of the unknown that many people will choose every time.
Smith notes that with a different intake process, this year’s generational talent Victor Wembnayama would have much more negotiating leverage with the San Antonio Spurs, or the Spurs and several other teams. Wembnayama, per Smith, “could be a $300 million, $400 million player right now” instead of one who is likely to be “capped out at probably $9 million and $11 million a year for the first two or three years of his NBA existence.”
The obvious point about depressing the market might win in court. But sports needs to win in, wait for it, the court of public opinion. The latter cannot relate to the dollar figures bandied about sports, and thus likely does not give a rip whether Wembnayama signs his NBA max contact at the age of 19 or has to wait until he is a positively ancient 21 or 22. And Rhoden never mentions that the NBAPA has a role in maintaining the draft charade.
The leagues, not without a big assist from their media partners, have done a great job manufacturing consent for the drafts. Chipping away at that, in this hypothetical, might have to come from inside the house. You need to make the point that the draft gets in the way of, duh, winning.
So who will be our draft disruptor?
Shooting from the lip: this would take a few team governors who clue in that the draft, in a 32-team hard-cap league such as the NHL, is anticompetitive for more than just players. It restricts their ability to innovate and to win within a few short years. From here on out, the NHL will be the working model, since this is getting long and it is getting late.
Operation Nuke The Draft will need to be multi-front offensive involving a maverick majority partner in a team. It will also need a few high-profile player agents — think Allan Walsh, obviously — to work the media and show fans how the draft is an anticompetitive measure, since it has been more than 45 years since Jim (Yazoo) Smith proved it in court. Thirdly, and eventually, the NHLPA leadership will have to get back onside and admit the current system is inefficient.
A team has to be bad for a significant length of time during a rebuild. Also, for every player who lives up to their pre-draft hype, how many wither when they might have been better off if they could have chosen their first organization? How many stars are sick of answering leading questions about ‘legacy’ when they didn’t get to pick where they went?
Come on, Connor McDavid of 2023. Do it for Connor McDavid of 2015.
If you still watch the NHL, you know damn well about the issues created by the cap. The Ferris wheel moves slower than a landlord and tenant board. You need to be bad on purpose for a few seasons in order to draft top-end players, hope it yields sexy results before everyone must get paid, then brace for the Cap Crunch Crash. Hopefully, your window yields a Stanley Cup parade that is not tarnished by, well, you know.
Eventually, it will get trite, and fans will stop embracing tanking. The game will be up.
Chicago needed to be bad for more than one season to land Connor Bedard. They have averaged out to a 75-point team for six seasons. Who has time and patience for that?
The draft and the hard cap are supposed to foster parity. But the NHL is trending toward a larger underclass. There were more teams that were sub-.500 and sub.-450 over the last three regular seasons than either the three prior — and the three previous to that.
2020-21 to ’22-23: Ten teams below .500, with seven under .45011
2017-18 to ’19-20: Seven sub-.500 teams, including three under .450
2014-15 to ’16-17: Eight sub-.500 teams, including three under .450
Five teams from the Shitty Seven circa 2017 to ’20 have remained in it since over the most recent three-year period. They are Arizona, Buffalo, Chicago, Detroit, and Ottawa. Is the slow cooker even plugged in?
That segues to why it will take an owner in one of the big four leagues to claim the PA’s sanction of a draft harms their ability to be competitive. And, in turn, their ability to increase hockey related-revenue, which affects the salary cap and the players’ piece of the action. This is a win-win-win.
Playing careers in sports are brutally short, and are getting shorter in hockey particularly. The premium modern hockey has on speed and playmaking means new is always better. That means you need your young players to be good and, yeah, wage-capped.
Selling off veteran players to pile up draft choices only goes so far. You have to wait while 31 other teams make their picks, and very few 18-year-olds can or should play in the NHL. In addition to being bad for Bedard, Chicago also had the most picks among the first 100 selections in the last two drafts. But it will take several seasons to know if even one-third of those 15 draft choices who are not Connor Bedard will pan out.
Now, put yourself in the suit-with-sneakers of a billionaire who has the controlling stake in a team. Your team’s city gets snow, and there are either state taxes or Canadian taxes. The Vegas way of reloading with seasoned players lured by sunny weather and Nevada’s absence of a state income tax will not work for you. But why should a sport played on ice favour the unearned advantages of Vegas, Dallas, Tampa Bay, Florida and Nashville? And, likely, Seattle before too long, and Houston as soon as it gets into the league?
Did you know seven of the last nine Stanley Cup championship series have involved at least one team from a state that has no income tax, or none on salaries and wages?12 You do now.
Athlete taxes are complicated since they play half their games outside of their employer’s city, and often have multiple residences. But there is no way that over-representation is uncoincidental.
So, if you are Michael Andlauer, who is the incoming principal stakeholder in the Ottawa Senators, you should understand a draftless NHL would help you flip the scales. A much more player development-focused draft could also help. This is not an argument pulled out of some uncomfortable place, like the back of a Volkswagen.
Back in 2021, Joshua Kloke of The Athletic wrote a draft-abolishment thinkpiece. It is well worth checking out. Kloke seemed to come at it from the perspective of someone who cut his sporting-life teeth on soccer, where player development is directed by individual clubs instead of drafting from pro-format feeder leagues.
The former is by no means perfect. But a point from Kloke that speaks loudly is that a different system could create incentives for NHL teams to maintain and build up grow grassroots hockey in their home areas. Some do, some don’t, and some only do it for the easy PR. What that piece by Kloke lacked was an explanation of who will direct and drive the bus for draftless leagues. At least the potential windfall is made clear.
Needless to say, no team based in the Great White North has won the Stanley Cup in 30 years. Hockey is a growth sport in the United States, while it is not in Canada. That means the number of players who can culturally adapt to playing in Canada, and playing well in Canada, is getting smaller.
During the draft this week, 80 players from the Ontario, Québec, and Western leagues were selected by the 32 NHL teams. That is a tick fewer than 36 per cent of the draft crop. Just a decade ago, those three pro-format leagues regularly accounted for more than 50% of the picks.
So, yeah, while whatever I say rates as much attention as a handbill taped to a lamppost, at least our target is acquired. As Eriq Gardner illustrated by recounting the Yazoo Smith saga, the targets are the PAs. Push them to change it for the sake of, in rough order, long-term development, the ability of teams outside major markets to compete, and revenue growth. Spitballing further, athletes also age, and a strong players’ association needs veteran players to build strength. Looking out for the younger guys creates engagement that might lead to them taking a stronger interest in protecting all that high-minded freedom of movement.
In closing, you are relieved from following draft nights any more than you need to chirp your friends about who their team selected. Beyond that, DRAFTS ARE IMMORAL and the leagues can blast them to Yazoo City.
June 28-29, 2023
Hamilton, Ont.
(and many OHL media boxes from 2010 till ’18)
That is more than enough for now. Please stay safe, and be kind.
Sam Fortier, The Washington Post, Jan. 29. 2023.
The Warriors moved to San Francisco in 1962, ahead of Chamberlain’s third NBA season. Then they were in Oakland, and now they are not in Oakland. Robertson’s original franchise relocated and was renamed the Kansas City Kings in 1972, then became the Sacramento Kings in 1985.
About $4.12 million (U.S.) in 2023.
Somewhere on YouTube, you can probably find highlight-hogging Keith Olbermann pointing out that Boston, Chicago, Detroit, Montréal, Toronto, and the New York Rangers are not Original Six teams. Between the wars, the NHL was as large as 10 teams. It is more like the Surviving Six.
Funnest dank fact about Clarence Campbell, who was president of the NHL from 1946 till ’77. You might know the bio-highlights: Rhodes Scholar, NHL referee in the 1930s, lawyer who prosecuted Nazi war crimes.
In his reffing days, he was once punched in the face by Dit Clapper of the Boston Bruins. But Campbell came clean to the league that he had sworn at Clapper, and thus the Bruins star was only fined and did was not suspended. Hey, that foreshadows “maximum allowable under the CBA” fines and playoff non-officiating!
As hockey historian Peter Robinson put it recently: “Any player born before 1950 either had to be one of a relatively few to crack the NHL out of junior, or show the type of staying power required to play in the hardscrabble minor leagues of the day.” See? It was the good old days!
Peter Robinson, again.
Game details on Pro-Football-Reference just enhance the grimness. Smith’s life-altering injury came during a basement bowl between Washington (4-9) and the Detroit Lions (4-7-2). The Lions, as a last-place team, were somehow a field-goal favorite on the road. Washington made the bettors happy, pulling it out with two fourth-quarter touchdowns, including the second — and last — of rookie quarterback Harry Theofiledes’s career.
Refer to “Rookie Abuse: In 1970, James “Yazoo” Smith sued the NFL to shut down the draft. What happened next?” Slate, April 23, 2009.
That night, Wayne Gretzky scored five goals for the Edmonton Oilers to reach 50 in a record-fast 39 games. Gretzky was never drafted by a major pro team, bypassing it by signing in the World Hockey Association as a 17-year-old junior.
Not counting the Seattle Kraken, who have a .488 point percentage over their first two seasons.
Source of graphic: Intuit MintLife.