Wednesday, July 22, 2009

Does Michael Vick Have An Antitrust Suit Against the NFL?

Yesterday, the Associated Press reported that NFL Commissioner Roger Goodell plans to decide slowly whether to reinstate quarterback Michael Vick. The funny part about this article, however, is that is presumes Goodell has the authority to decide whether Michael Vick may practice his profession. It entirely ignores the possibility that the NFL indefinitely suspending Vick might violate antitrust law.

In a recent law review article entitled "Are Commissioner Suspensions Really Any Different From Illegal Group Boycotts," I argue that the 3rd, 6th, 8th and D.C. Circuits might find Goodell's attempt to indefinitely suspend Michael Vick to violate Section 1 of the Sherman Act. This is because the NFL Personal Conduct Policy serves as an agreement amongst the 32 independently owned NFL-clubs to boycott a particular player. At the same time, the NFL Personal Conduct Policy seems to harm consumers by taking away their ability to voice a preference for football games that contain Michael Vick.

In antitrust terms, this is essentially the Spencer Haywood or Maurice Clarett case all over again, but with "NFL Personal Conduct Policy" replacing "League Age Requirement" as the purportedly anticompetitive conduct.

Of course, player suspensions today are common in sports. However, the NFL's attempt to enforce its Personal Conduct Policy is different in three ways: (1) the NFL Personal Conduct Policy leads to player suspensions for more than just a de minimis number of games; (2), the NFL Personal Conduct Policy does not involve conduct so directly related to the existence of a sport that it is needed to make the sports product viable; and (3) the NFL Collective Bargaining Agreement ("CBA") does not specifically empower the league commissioner to suspend players for off-the-field wrongdoing (albeit, the NFL CBA more generally allows the commissioner to suspend players for conduct "detrimental to the League or professional football").

This does not mean that the Atlanta Falcons will be stuck with Michael Vick at quarterback. Indeed, in my article, I propose four legal, and I believe more appropriate ways, for the NFL clubs to address player misconduct: (1) individual teams can release players for breach of the morals clause in their contracts; (2) the NFL teams can petition Congress to publicly regulate pro football player eligibility; (3) the NFL teams could petition Congress for a limited antitrust exemption to regulate player eligibility; or (4) the NFL teams could collective bargain with the NFL Players Association to add the NFL Personal Conduct Policy directly into the CBA.
A fifth and final way that the NFL teams might become able to ban players from the league would be to convince the Supreme Court to construe the NFL as a single-entity for all purposes.

Some, such as ESPN's Lester Munson, are fearful that such "Armageddon" might happen. Meanwhile, others at Sports Law Blog find a broad-based single-entity ruling in favor of the NFL less likely.


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Jesmi said...

I'm not an antitrust lawyer, but, if the NFL is successful in its "single entity" argument, then wouldn't all business in an industry just combine and form an unbrella organization to set prices, etc.?

The NLF's argument seems to be that, as long as you rename and incorporate your collusion, then it's a single entity immune from antitrust. Am I boiling it down correctly?