The wide world of sports is getting wider: a look at drafting foreign players into U.S. professional sports.

• Author: Morrow, Heather E.

1. INTRODUCTION II. THE RULES OF THE GAME A. Immigration Laws Affecting Foreign Athletes 1. The Current 0 Visa 2. The Current P Visa 3. Effect of the Current Legislation 4. Practical Application to Foreign Athletes B. Collective Bargaining 1. MLB Draft and Current CBA 2. NBA Draft and Current CBA C. Antitrust Jurisprudence in Professional Sports 1. Major League Baseball's Antitrust Exemption 2. Effects of Antitrust Law on the NBA III. A GLOBAL PLAYING FIELD A. Emergence of Baseball as an International Sport 1. International Awareness in MLB 2. Other International Issues B. The NBA and Global Basketball 1. Introduction of International Players 2. FIBA--Global Basketball Governing Body IV. INSTANT REPLAY--RECENT BIG PLAYS A. MLB Players and Owners Avoid Strike B. Houston Rockets Draft China's Yao Ming as the Number One Pick V. POST-GAME WRAP-UP: COMPARING MLB AND THE NBA A. Global Draft is Necessary B. Baseball Should Learn From Basketball VI. CONCLUSION I. INTRODUCTION

   Our world is getting smaller with each passing year. Advances in science, technology, and industry have bridged geographical gaps between nations. Music, art, and education foster common understanding between vastly different societies. Working toward ideals of equality and freedom will continue to unite politically disparate communities. More and more, citizens of the world are opening their eyes to see that people who seem to live a lifetime away are really not that different after all. That which binds a community together also connects those around the world.

   This global connection is becoming more apparent in the world of professional sports. Over the past few decades, American sports fans have seen a dramatic increase in the number of international players in arenas, stadiums, and ballparks throughout the United States. (1) Some fans undoubtedly disapprove of such a "foreign invasion" of "American" pastimes, while others welcome the new challenges, perspectives, and competition that the international community can bring to American games.

   The changing faces of American sports heroes have not gone unnoticed by those in the sports business. Perhaps players, in particular, feel that their job security and positions in the limelight are threatened by the presence of foreign talent. If so, what can players do about it? Should they do anything about it? Is it right or wrong for sports management to seek talent from outside the United States? Does bringing in outside talent have a detrimental or beneficial effect on American sports? Can players and owners reach amicable solutions to the inherent tensions that these questions raise?

   This comment does not attempt to answer all of these questions. Instead, it will focus on the impact of bringing foreign players into the United States via professional sports drafting systems within the professional sports of baseball and basketball. Part II provides a legal backdrop from which to view the drafting of foreign players. First, it explains the immigration laws that allow international athletes to play in the United States. It then explains the mechanisms through which players can negotiate with and challenge management on issues inherent in drafting systems: collective bargaining and antitrust law.

   Part III of this comment closely examines the ways in which American baseball and basketball have grown into global, rather than American, pastimes. Part IV focuses on two recent events that have brought the issue of foreign players and the draft to the forefront of the sports world. First, America's baseball players agreed during the summer of 2002 to implement a worldwide draft system in Major League Baseball (MLB). Second, Chinese player Yao Ming was the number one draft pick in the National Basketball Association (NBA) starting in the 2002-03 basketball season. Both of these events, occurring closely together, provide a prime opportunity to analyze how foreign players are, or should be, incorporated into the business of sports in this country. Finally, Part V compares baseball and basketball, suggesting first that global drafting is necessary to maintain the health of both sports in this country; second that MLB can learn from the NBA how to bring baseball to the world.

2. THE RULES OF THE GAME

   1. Immigration Laws Affecting Foreign Athletes

      Even the youngest American sports fans may know that not all of their heroes are their neighbors. What these young fans may not know is how athletes from around the world came to play in their cities. Before understanding the X's and O's of how foreign players maneuver through the legalities of American professional sports, it is important to understand how they have access to them.

      All non-U.S. citizens desiring to enter and stay in the United States must first obtain a visa. (2) Athletes are no exception: Those who want to play in the United States begin their American careers by obtaining visas as nonimmigrant aliens, under either the O or P category. (3) These categories were contained in legislation that became effective in 1992 and changed various standards that applying athletes must meet before entry into the United States can be granted. (4) Prior to 1990, foreign athletes seeking entry into the United States were required to obtain an H visa, which required applicants to have "no intention of abandoning" their residences within their native countries, to be of "distinguished merit and ability," and to remain in the United States temporarily to "perform services of an exceptional nature requiring such merit and ability." (5) Various amendments to O and P visas were proposed in 1990. (6) The current visas became effective in 1992, replacing the former H visa as the preferred visa for athletes. (7)

      (1.) The Current 0 Visa

      Today, foreign athletes apply for a temporary work permit via the O visa. (8) Instead of the "distinguished merit and ability" standard under the H visa, athletes must prove "extraordinary ability" to obtain an O visa. (9) Fulfilling this standard requires the athlete to show that he has "a level of expertise indicating that the person is one of that small percentage who has risen to the very top of the field of endeavor." (10)

      The Immigration and Naturalization Service (INS) (11) has stated that membership on a professional team alone does not fulfill the extraordinary ability standard, making it more difficult for players with emerging talent to gain entry to American sports. (12) According to the federal regulation, the nonimmigrant athlete must establish his extraordinary ability through "recognized achievement in athletics and sustained national or international acclaim." (13) An athlete can fulfill the regulatory requirements of extraordinary ability by showing the following:

      (A) being awarded a major internationally recognized award; or

      (B) at least three of the following forms of documentation:

      (1) documentation of the alien being awarded nationally or internationally recognized prizes or awards for excellence in the field of endeavor,

      (2) documentation of the alien's membership in associations in the field for which classification is sought, which requires outstanding achievements of their members, as judged by recognized national or international experts in their fields,

      (3) published material in professional publications or major media about the alien relating to the alien's work in the field,

      (4) evidence of the alien's participation in judging the work of others in the same field for which classification is sought,

      (5) evidence of an alien's original scientific, scholarly, or business- related contributions of major significance in the field,

      (6) evidence of the alien's authorship of scholarly articles in the field, professional journals or other media,

      (7) evidence that the alien has been employed in a critical or essential capacity for organizations that have a distinguished reputation, or

      (8) evidence that the alien has commanded and now commands a high salary evidenced by contracts or other evidence. (14)

      Possessing extraordinary ability no longer requires a showing that the applicant is a star in his sport, as required with the H visa. (15) But, the applicant's challenge is not met once the athlete has proven his ability: He must also prove that he will fill a position that requires extraordinary ability. (16) This can be done one of two ways: showing that the position to be filled involves an "event or activity that has a distinguished reputation," or showing that the position involves a "comparable, newly organized event or activity." (17) In addition, the applicant must also obtain an advisory opinion from a peer group that has attained a level of expertise in the applicant's sport, which must include: (1) whether the position applied for requires extraordinary ability; (2) the applicant's achievements and ability in the sport; and (3) the duties which will be required of the applicant in performing the position. (18)

      2. The Current P Visa

         The current P-1 visa is appropriate for "athletes who perform individually or on a team, who have no intention of leaving his residence, and who wish to perform in one event or competition." (19) For a nonimmigrant athlete to qualify for a P-1 visa, he must demonstrate international recognition by showing that he has attained a high level of achievement. (20) Evidence of this high level of achievement is an athlete's skill and recognition, which both must be "substantially above that which an athlete usually possesses" so that the athlete is "renowned, leading, or well-known in more than one country." (21)

         An athlete wanting to compete either individually or as a member of an American team must demonstrate on his visa application that he has garnered international recognition in the sport and the reputation that supports such recognition. (22) Demonstrating international recognition, according to the regulation, requires two elements of proof:

         (1) A tendered contract with a...