The Case for Clarett

The Case for Clarett


Published: September 25, 2003

PENNSAUKEN, N.J., Sept. 24 - Alan C. Milstein has had his share of emotionally charged legal cases. There was the lawsuit he filed against the University of Pennsylvania on behalf of the family of a young woman who died after undergoing a gene therapy experiment. And there was the suit against the manufacturer of an anthrax vaccine after an American soldier who had received injections died.

These were tragic tales involving power and its use. In reciting them, Milstein makes what seems to be an unusual connection, comparing them to his current high-profile client: the suspended Ohio State running back Maurice Clarett

Of course, they do not compare directly, Milstein said in an interview today at his law office. Clarett is trying to be declared eligible for the N.F.L. draft; the other cases involved life and death.

"I see Maurice's case as a league trying to make certain players, young players, who are often poor, wait on earning a living, while the N.F.L. and colleges, either directly or indirectly, make millions off of them," Milstein said. "To me, his situation is about another huge entity trying to take advantage of a smaller group of people who don't necessarily have powerful voices themselves.''

Like one of his legal idols, Johnnie L. Cochran Jr., Milstein has become rich defending the poor, and his aggressive tactics, part Terminator, part flamethrower, have unnerved hardened defendants. Milstein has sued medical schools and powerful research institutions, and some opponents have accused him of being motivated only by money.

"There's plenty of lawyers who know what they're talking about, and they don't have this sort of ambulance-chasing ethic,'' Glenn McGee, a bioethics specialist at the University of Pennsylvania, said in the February 2002 issue of The American Lawyer.

Milstein is undeterred by the criticism. He said his actions were rooted in a belief that people should question authority. That may explain why his favorite football team is the Oakland Raiders - a maverick lawyer rooting for a maverick owner.

Now Milstein, 49, who is a former newspaper art critic and a former professor of American studies who can quote Kurt Vonnegut and Jackson Pollock, is again taking on an establishment target: the hallowed National Football League.

Milstein is suing pro football over its eligibility bylaws, which prohibit a player from entering the N.F.L. draft until he has been out of high school at least three years. Clarett, a sophomore who was suspended for the season by Ohio State for rules violations, is suing to become eligible for the league's draft next April.

In his office, a neatly framed photo of John F. Kennedy is on the wall. Milstein is a tall, slender man who looks as if he might still be more comfortable in bell-bottom jeans than a suit and tie. He has had a taste of how some people feel about his lawsuit against the N.F.L., which was filed in Federal District Court in Manhattan on Tuesday. He said he had received an anti-Semitic e-mail message that night. Milstein said he had never received such a hateful response before.

Milstein called Clarett as worthy of his representation as many of his past clients. He described as erroneous the sentiment that Clarett is a spoiled problem child who thumbs his nose at authority. Say a bad word about Clarett to Milstein, and you will suddenly be engaged in a verbal sparring match.

Milstein contends that the suit against the N.F.L. is eminently winnable, although the league begs to differ.

Some experts agree with Milstein. The main problem with the league's rule is that it is arbitrary, said Jerome Hoffman, an antitrust lawyer with the Firm of Holland & Knight in Jacksonville, Fla. There is no specific age limit cited by the N.F.L., and that, Hoffman said, is inherently suspicious under antitrust laws.

"Why is it that one day Maurice Clarett is not able to play in the N.F.L. and just a short time later he is?'' Hoffman asked. "That's what a judge will examine.''

The N.F.L. maintains that the rule exists to protect young players from the physical rigors of professional football.

If Milstein is correct and the N.F.L.'s rule can be easily struck down in court, why has no one challenged it until now? Hoffman speculated that few, if any, elite players have been in Clarett's position. "He's been basically banished from Ohio State and has few options,'' Hoffman said.

Milstein said he had tremendous respect for the N.F.L., but he laughed when he was asked if he was nervous about going against a powerful sports league.

"I think it's safe to say," he said, "that I've already gone against some pretty tough opponents."