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After yet another contentious collective bargaining process, the NBA season is finally underway.  In watching the games this year, Brandon Jennings (a stand-out guard on the Milwaukee Bucks) and his journey to the NBA comes to mind and makes me wonder if the NBA eligibility rules and the recent collective bargaining process will make overseas professional basketball a more attractive option than college for high school players going forward.

The NBA eligibility rules have changed over the years thanks in part to Spencer Haywood, a former star player who had challenged the NBA’s prior rule that required that players be at least four years removed from the date of their high school graduation or in the case of players who did not graduate from high school, four years from the date that the remainder of their high school class graduated.  Haywood was successful in his antitrust challenge against the league and the league eventually relaxed its rule dramatically and allowed players to jump directly from high school to the professional ranks. 

For a while, there were not many high schoolers who even attempted to make the leap, let alone succeed, with notable exceptions like Moses Malone and Shawn Kemp.  Then in 1995, Kevin Garnett made a splash as a high draft pick directly from high school who then also made an immediate impact on the league.  This opened the floodgates for the likes of Kobe Bryant and LeBron James.  The floodgates also included many current no-name players who risked their collegiate eligibility by declaring for the NBA draft and then either did not get drafted or got drafted in the second round and never made an NBA team.  There were too many of these sad stories to mention and a growing concern that a lot of students were foregoing a chance to attend college on an athletic scholarship to chase a highly unlikely dream, so the NBA reacted and included in its collective bargaining agreement a new eligibility rule.  Although the rule is more extensive than this, it basically breaks down as: a player must be at least 19 years old and out of high school for at least one year.  The latter part was included for players that may be 19 when they graduate but not a year removed from high school yet (see O.J. Mayo). 

This has resulted in the so-called “one and done” syndrome where star high school players who now cannot make the direct step into the NBA go to school for a year and then declare themselves eligible for the NBA Draft.  The “one and doners” have changed the focus of college recruiting and college basketball in general.  Many of the big-time programs know that they are only able to keep the players for a year and instead focus their recruiting on a one-year timeframe and not search for a true student-athlete that will grow with the program and the school.

Many have discussed the pros and cons of this, but it was not until Brandon Jennings spurned the University of Arizona to instead take his “one and done” year and play professional basketball in Italy in 2008 that anyone believed avoiding college for a year was even a possibility.  Jennings was the first known American high schooler to opt for European basketball over playing college basketball.  Jennings did not have a stellar year in Italy but declared himself eligible for the 2009 NBA Draft anyway and was selected tenth overall by the Milwaukee Bucks.  A lot of critics scoffed at the choice given Jennings’ lackluster performance in Italy, but Jennings came into the league as a “rookie” and took the league by surprise.  He was a first-team All-Rookie unanimous selection and even scored 55 points in one game, the second highest total for a player under 21 in NBA history.

Given Jennings’ immediate impact, one could make a plausible argument that playing basketball against professionals, and men instead of young adults, could have played a significant factor in his instant success.  Many believed that Jennings hurt his draft chances by going to Europe where no one except maybe Fran Fraschilla saw him play basketball instead of going to a big-time program like University of Arizona.  Jennings proved them wrong and it seemed as though maybe it would spark a movement of more players opting for Europe instead of college, but it really did not happen.  There had been one or two less publicized failures in this regard, but not the mass exodus you may have imagined.  Being an 18 year old and playing basketball with men in a foreign country where you likely do not speak the language and have never been before probably played a major factor in keeping more players in American colleges.  And, if you have ever read Paul Shirley’s “Can I Keep My Jersey?”, it does not paint the most favorable picture of life as an American basketball player in Europe.

Given all of that, then why would a player want to choose playing overseas over college?  For one, beyond Brandon Jennings providing a strong blueprint for success on this road, many college players for years have felt exploited by their schools for making millions from March Madness while the players are left with their small stipend – playing professionally does away with the amateur status issue.  The players will be making money and also do not have to worry about agent tampering or unlawful gifts.

Additionally, this most recent highly publicized collective bargaining process with the NBA owners and the players’ union resulted in a number of players playing overseas or threatening to play overseas.  The overseas teams paid the players an enormous amount of money for a short time period just to have the players on their teams.  With more high profile American players going to Europe even for a short period, it has made the leap less of an unknown than it was previously.  One of the issues argued over in this most recent collective bargaining agreement was over the rules covering draft eligibility.  The league wants to change the rule to require the player to be at least 20 years old and two years removed from high school.  The players do not agree.  This rule was essentially “tabled” in the agreed-upon collective bargaining agreement with the two sides agreeing to form a committee to work on the issue.

If the rule does get changed, and high school players are now looking at two years post-high school before they become eligible for the draft, why would they choose to go to college and be “exploited” when they can go play professionally where some of the big-name current players have played (or threatened to play), gain experience, and then enter the draft? The “one and doners” never planned to stay in college anyway, so it seems that it would not be a big surprise if Europe, going forward, becomes a more attractive option. 

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Josh Winneker is an Assistant Dean at Thomas Jefferson School of Law in San Diego, California. He has taught Sports and the Law and the Business of Sports at Rider University. Josh has also taught at Widener University School of Law, Charleston School of Law and Seton Hall University School of Law. He is also an Associate with the O'Brien Sports Group, which specializes in college sports consulting matters.

Josh graduated magna cum laude from Seton Hall University School of Law where he was a member of the Seton Hall Law Review.  He was a summer associate, law clerk and associate at Skadden, Arps, Slate, Meagher & Flom LLP in New York City in the Antitrust/Sports Law group.  He also served for two years as a judicial law clerk for the Honorable Garrett E. Brown, Jr., Chief Judge of the United States District Court for the District of New Jersey.  Josh was also a litigation associate at Fried, Frank, Harris, Shriver & Jacobson LLP and Winston & Strawn LLP.

Additionally, Josh graduated cum laude from Muhlenberg College, where he was a member of the Varsity Soccer team and Centennial Conference Champion.

Josh has published in the Seton Hall Law Review and is admitted to practice law in New York, New Jersey and the United States District Court for the District of New Jersey. Josh can be reached at jwinneker@tjsl.edu