If the NBA and NFL can retain the draft and salary cap in the heartland of capitalism and litigation, it's safe to say the AFLPA and it's wet lettuce leaf will stay holstered.
They have specific legislation, we don't have, ie baseball's exemption from the anti tust rules in the Sherman Anti Trut Act.
There has never been challenges in the courts about the legality of the draft is USA sports. Australian law and USA law aren't identical and it would require a challenge from someone who hasn't signed onto the AFLPA.
The great battles in the US courts have been about free agency. The famous Curt
Flood v Kuhn case in 1972 which was won 5-3 by the baseball commissioner, but the Supreme Court did say the baseball exemption was an anomaly.
Flood v Kuhn
Although the Court ruled in baseball's favor 5-3, it admitted the original grounds for the antitrust exemption were tenuous at best, that baseball was indeed
interstate commerce for purposes of the act and the exemption was an "anomaly"
[1] it had explicitly refused to extend to other professional sports or entertainment. That admission set in motion events which ultimately led to
an arbitrator's ruling nullifying the reserve clause and opening the door for
free agency in baseball and other sports.
Flood v Kuhn
The court's have never given other professional sports in the USA this exemptions. Baseball decided to introduce the 10 year rule after the Flood case, and then other changes, because Flood said he believed the reserve clause was a form of slavery. Baseball won in court but lost in the court of public opinion.
I downloaded a chapter of the following book when I looked at this in 2007.
GOVERNMENT AND SPORT
The Public Policy Issues
Edited by
ARTHUR T. JOHNSON University of Maryland Baltimore County
and
JAMES H. FREY University of Nevada, Las Vegas
Chapter 8
Professional Sports and Antitrust Law: The Ground Rules of Immunity, Exemption, and Liability
Phillip J. Closius
Team owners in the other sports have tried to mitigate the effects of this
change in judicial attitude by obtaining some variant of judicial or legislative immunity from the full effects of the antitrust laws. This chapter analyzes the three major forms of immunity sought by team owners since the advent of the modern sports litigation era. These are (1) the nonstatutory labor law
exemption to shelter restraints contained within collective bargaining agreements, (2) the single-entity defense to render inapplicable to sports leagues
Section 1 of the Sherman Act, and (3) the direct grant of a congressional
immunity to foreclose antitrust litigation regarding designated league practices.
and to put it in context I watched the ESPN Doco from Elway to Marino (about the 6 quarterbacks drafted in rd 1 of the 1983 NFL draft) 3 or 4 weeks ago and as a college player John Ellway refused to accept his drafting by Baltimore with the #1 pick in 1983 as did Bo Jackson in 1986 when Tampa Bay picked him with pick #1 in 1986 ( That was another great ESPN doco in December last year)
The NFL and NBA draft situation is explained in the following article
http://www.examiner.com/article/the-nfl-draft-celebrating-the-restraint-of-the-free-market
The guest, the National Basketball Players Association Executive Director Lawrence Fleischer, was discussing the then collective bargaining negotiations between his players and the National Basketball Association owners and very early into the presentation Fleischer explained why the NBA didn't need a draft and how the draft was created to artificially lower salaries.
That's the real reason for a draft.
Owners don't want to bid for players but the sports media plays up the draft as a necessary tool for teams.
Major League Baseball did not have a draft until 1965. The National Football League's first draft was in 1936. The Basketball Association of America started picking college players in 1947 and by 1949, the National Basketball League and the Basketball Association of America had merged to become the National Basketball Association. The National Hockey League's initial draft was in 1963.
http://www.examiner.com/article/the-nfl-draft-celebrating-the-restraint-of-the-free-market
The collective bargaining exemption mentioned above is discussed
But is the NFL draft legal? Doesn't it violate antitrust laws and artificially drive down the price that, say, an
Andrew Luck or a
Robert Griffin III who could get on the open market if there was true competition for their services? Doesn't it prevent companies, in this case NFL teams, from bidding for talent? Doesn't it intentionally keep down the salaries of the 260 or so players who will enter the NFL through this form of entry-level hiring?
Football fans come out of hibernation in their best tailgate-stadium attire to celebrate what is essentially a restraint of trade. NFL owners are able to stage a draft because the Players Association has given them a go-ahead through the Collective Bargaining process. The NFL gets a statutory exemption from antitrust laws because the owners and players agreed that it was okay to hold a draft, even though college players are left with few rights.
.....
In essence, NFL owners have perfected a system to the point at which they don't have to compete for the top college students, who are eager to enter the unique business world that is professional football. The teams automatically get the top applicants. Imagine accounting companies just going to Wharton or Harvard Business School and drafting students without the students themselves getting any say about where they go or for how much. It can't be done.
and those who have bucked the system
Very few players have bucked the system. Ohio State linebacker Tom Cousineau was taken as the top overall pick in 1979 by the Buffalo Bills, but he didn't want to play for the Bills and signed with the Canadian Football League's Montreal Alouettes. In those days, the CFL had some money to throw around and the NFL wasn't handing out $5 million signing bonuses like it does today.
The only way for a top athlete to exercise any control over where he goes is by insulting the city he may be going to or by playing another sport. In 1983, John Elway couldn't stand the thought of playing for Robert Irsay's Baltimore Colts and signed a contract with George Steinbrenner's Yankees. While Elway was patrolling the outfield for the New York-Penn League's Oneonta Yankees, the frustrated Colts dealt his rights to the Denver Broncos.
In 1986, Bo Jackson couldn't see himself running behind the Tampa Bay Buccaneers' offensive line, so he signed a contract with the Kansas City Royals. Jackson did eventually play in the NFL for the Los Angeles Raiders. Two years ago, top pick Eli Manning wasn't too pleased with the prospect of playing in San Diego, so he forced a trade to the Giants.
The last time the top college players had a real career choice was between 1983 and 1985, when the United States Football League was in existence. Players like Jim Kelly had a choice between the USFL's Houston Gamblers and the NFL's Buffalo Bills. He went to Houston. In 1983, Herschel Walker signed with the USFL's New Jersey Generals after his junior season because, at that point, the NFL did not allow underclassmen to enter the draft despite being more than qualified to enter the work force in just about any other field.
Nearly three decades later, that option is defunct, and college athletes with highly specialized skills have no say about where they ply their trade. Sometimes, they can't even ply it at all. When Ohio State's Maurice Clarett and USC's Mike Williams sued to enter the NFL draft in 2002 after their sophomore years in college, they won the original case, but it was overturned on appeal and their careers were dealt irreparable harm.
Sophomore year is the 2nd of 4 years at USA university/college
And it isn't easy to win in court in the USA and it won't be in Oz but if an undrafted player challenges it, then only the 3 judges listening to the case will know whether it is possible or not. Remember that in 1991 the Full Federal court 3-0 overturned a single judge's decision to make illegal the forerunner to today's NRL - the NSW Rugby Leauge's draft. See
Re
Phillip Adamson
and Others v New South Wales Rugby League Limited and Others [1991] FCA 425; (1991) 13 Atpr 41-141; 103 ALR 319 (1991) 31 FCR 242 (1991) 38 IR 427 (6 September 1991)
From that USA article they see a little bit of a chance.
As it stands, there is very little a college player seeking entry into the NFL workforce can do to change the system until 2020, when the present Collective Bargaining Agreement ends. Lawsuits won't work because the NFL has the antitrust exemption thanks to its most valuable employees - the players. The NFL draft is the perfect system for the owners to control costs and limit players' options, and that alone, at least for the owners, is a cause for celebration.