Monday, October 05, 2009

American Needle vs NFL

“There is hardly a political question in the United States which does not sooner or later turn into a judicial one”

The upcoming Supreme Court season features an interesting anti-trust case, American Needle vs NFL. The Court recently granted certiorari (ie, the Black Robe Posse deigns to grant the case) on the following question:

"Should the National Football League and its member teams be treated as a single entity that is exempt from rule of reason claims under Section 1 of the Sherman Act, which outlaws any "contract, combination ... or conspiracy, in restraint of trade," because they cooperate in joint production of NFL football games, while at the same time they may have competing economic interests, have the ability to control their own economic decisions, and have the ability to compete with each other and the league?"

As with most Anti-trust cases, American Needle involves some rather complex legal and economic issues. The NFL hopes to circumvent the Sherman Act--and American Needle's lawsuit-- by claiming that it is a single entity (like a corporation). As a single entity, they claim they have a right, similar to a union, to act as one unified body, and award all merchandizing to Reebok-Co. Most legal experts think that a majority of the Scalia court will affirm, i.e. side with the Sports corporations, given its pro-business history, and thereby put another loss in the column of the Antitrust movement.

It seems odd that the Sherman Act might allow an anti-trust suit in theory by considering the NFL a non-unified entity comprised of separate teams, but not when the NFL is considered a single corporation (even though individual teams are certainly distinct corporations). By not being unified, teams would seem to be competing, and thus allowed to award merchandise rights to whatever company they choose. By considering the NFL as a single entity competition has arguably been reduced.

The NFL should be held accountable either way, and the Feds should break up the Reebok racket (then, one might say, ala DeTocqueville's occasional cynical rumination on judicial power--or Jefferson's--that the House or Senate could handle Anti-trust cases, or anything related to economics and regulating business...Liberte, egalite, fraternite). The quasi-unionist argument doesn't really work either. Athletes are not workers, at least not of a normal sort. They are entertainers--though perhaps closer to circus clowns than to musicians, or ....thespians, the scab-kings.

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