Friday, January 15, 2010

American Needle v. NFL: Discussing the Supreme Court Transcript

As many of you know, the Supreme Court heard oral arguments on Wednesday January 13 in the case American Needle v. NFL. A full discussion of the case is available here, and the full transcript is available here.

My main takeaway from the transcript is that the Supreme Court will reject the 7th Circuit's classification of the NFL as a single entity (a classification that I have described as being legally wrong in two law review articles--here and here).

However, some justices may be willing to outline a more narrow antitrust exemption for sports leagues.

Among the justices who seem most likely to reverse and remand is Hon. Antonin Scalia, who responded to Hon. Stephen Breyer's broad questioning about the competitive effects of joint licensing with the following inquiry (p. 18-19):
  • JUSTICE SCALIA: Is this issue before us here? Or is it just the issue of whether the lower court was wrong to dismiss your suit on the basis that this is a unitary operation? I think that was the only issue.
  • MR. NAGER: You're -- that is the only issue, Justice Scalia.
  • JUSTICE SCALIA: Well, why am I worrying about this other stuff.
Another justice who seems likely to reverse is Hon. Sonia Sotomayor, who accused the NFL clubs of "seeking though this ruling what you haven't gotten from Congress: An absolute bar to an antitrust claim." (p. 47).

NFL Counsel Greg Levy gave a long answer to this question but never directly addressed the NFL's failed efforts in Congress.

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Marc Edelman is an Assistant Professor at Barry University’s Dwayne O. Andreas School of Law, where he teaches in the areas of contracts, property, antitrust and sports law. His full collection of law review articles is available here. Professor Edelman’s article, Why the ‘Single Entity’ Defense Can Never Apply to NFL Clubs: A Primer on Property Rights Theory in Professional Sports, has been cited in three Supreme Court briefs on this case.




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2 comments:

Tim Cedrone said...

Marc,

While I agree that certain questions from the justices could be taken to mean that the justice is leaning one way or another, I am hesitant to join in with the conclusion that the Supreme Court will reverse the Seventh Circuit's ruling. Time and again and in case after case, justices reach a result that is opposite to the inferences drawn from their questions at oral arguments. Does it appear right now that some of the justices are leaning towards reversing? Arguably, yes. My point is just that justices have been known to ask questions that appear to lean one way and then rule another way, so drawing a definitive conclusion here, to me, is largely speculative.

A question: if the Supreme Court affirms, or if it renders a narrow opinion recognizing the NFL as a single entity for licensing purposes only (if that's even possible), do you anticipate Congress getting involved by considering legislation to overrule the Court?

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