Fordham Sports Law Symposium: This Friday @ 9:30 A.M.

This Friday, at 9:30 A.M., I (Marc Edelman) will be speaking at the 14th Annual Fordham Sports Law Symposium about the case American Needle v. Nat'l Football League.

The other speakers on my panel will be American Needle's general counsel Jeffrey Carey, Jones Day partner Meir Feder and Herrick Feinstein partner Irwin Kishner. The panel will be moderated by Tulane Law School professor Gabe Feldman.

Friday's sports law symposium is free and open to the public. New York lawyers who attend are eligible for six non-transitional, professional practice CLE credits.

For those interested in the full lineup of events (beginning with registration at 8:30 A.M.), see here.

For those interested in why I believe the Supreme Court should rule in favor of American Needle and remand this case back to the district court for a full antitrust review, please see here and here.

Tonight's Discussion on American Needle v. NFL

Interested in the latest on American Needle v. NFL? I will be interviewed tonight at 9 PM Eastern Time on the radio show Illegal Curve.

The program will be aired live in Winnipeg, but you can download the radio feed directly from their website here.

'Vick'dication? (Or What Do Michael Vick and American Needle Have In Common?)

For the past year, I have argued that NFL Commissioner Roger Goodell might not be allowed under antitrust law to permanently suspend Michael Vick.

This view has received a lot of push back from both those inside and out of the league. However, today Chris Mortenson of ESPN.com reports that Goodell will likely reinstate Vick into the NFL within 2-6 weeks of the start of the 2009 season. In his article, Mortenson even included a quote from an unnamed NFL league source that called into doubt whether Goodell even has the power to suspend Michael Vick:

"Can we suspend him in basically double jeopardy?" asked the league source.
"That's the question."

So, why this change of heart within the NFL front office?

My guess is that with the Supreme Court soon planning to hear the case American Needle v. NFL--a case in which the NFL teams are going to ask for a broad-based antitrust exemption-- NFL club-owners are being especially carefully to avoid any player complaints about the league circumventing antitrust law.

It is possible a change in leadership at the NFLPA might have also played a positive role.

American Needle v. NFL: Talking with ESPN's Lester Munson

For those who may have missed it, I was quoted last week by ESPN's Lester Munson on the practical implications of the Supreme Court case American Needle v. Nat'l Football League.

In addition, my law review article on why the NFL should be treated as a joint venture of 32 separate businesses, and not a single entity, was cited in American Needle's most recent brief to the Supreme Court.

American Needle v. NFL Case Going to Supreme Court

This morning, the Supreme Court granted certiorari in the case American Needle v. National Football League (pdf), for purposes of determining whether the NFL teams' collective licensing of individual team trademarks is exempt from antitrust review under the single entity defense.

While there are a lot of strong defenses to the NFL's current licensing arrangement (e.g., pro-competitive effects, undue delay in bringing suit, etc.), I have long held the position that the NFL is not--and can never be-- a single entity. This is because the NFL is composed of 32 separate teams, with separate owners each containing disparate economic interests.

Indeed, the NFL teams have tried to defend their concerted conduct under the single-entity defense on eight prior occasions. Thus far, the NFL is 0-for-8 in those cases (sounds like the start to the 2008 Detroit Lions season).

In addition, the NFL's single-entity argument has severe economic holes in that NFL teams compete against each other, or at least historically have competed against each other, in a wide range of markets, including ticket sales, naming rights and new media. Despite the Seventh Circuit's claim, the single-entity defense has never before applied on a market-by-market basis. Either the NFL is a single-entity (which seems to make little sense when looking at all of these markets in the gestalt), or it is not a single entity (which is the conclusion that hopefully the Court will ultimately reach).

Sports and the Law: Supreme Court Seems Close to Taking NFL Antitrust Case

Last week, the U.S. Supreme Court asked the acting solicitor general to file an amicus brief in the case American Needle Inc. v. National Football League. This move seems to indicate that the Supreme Court will soon grant certiorari for purposes of clarifying whether the NFL is a single entity for trademark licensing purposes.

The underlying facts in the American Needle case are rather straightforward. The plaintiff, American Needle, had for more than twenty years held a non-exclusive license to design and manufacture headgear bearing the NFL clubs' names and logos. Then, nine years ago, the NFL clubs decided to offer an exclusive license to American Needle's main rival, Reebok.

American Needle thereafter sued the NFL clubs in the Northern District of Illinois, contending that the NFL clubs conspired with one another to keep American Needle out of the NFL headwear market in violation of Section 1 of the Sherman Act. The NFL clubs, in turn, responded by not only alleging that their licensing arrangement was pro-competitive (which is the traditional defense to this sort of antitrust challenge), but also that the NFL clubs could not have illegally conspired with one another because they are really just one entity (the "single entity" defense).

Heading into this case, it did not seem as if any court would find the single-entity defense to apply to the NFL. While the Supreme Court has long held that a parent company and its wholly owned subsidiary combine to constitute a single entity for antitrust purposes, until recently no traditionally structured sports league had ever been defined as a "single entity" because each club in such a league has its own, independent ownership. Indeed, between the years 1982 and 2006, the NFL clubs had raised the single-entity defense on seven different occasions, with the reviewing court rejecting this defense each time.

The Seventh Circuit in American Needle, however, recently has taken a more pro-league view toward the single-entity defense. At the district court level, Judge Moran held that the NFL clubs morphed from a collection of separate businesses into a single entity by jointly licensing their trademarks for many years through a subsidiary, NFL Properties. Then, on appeal, a unanimous court affirmed, stating that the single-entity status of sports leagues "should be addressed not only one league at a time, but also one facet of a league at a time."

If the Supreme Court ultimately grants certiorari in this case (a seems likely) and it affirms the lower courts' rulings in favor of the NFL, the NFL clubs will remain allowed to keep their current licensing program irrespective of the program's actual competitive effects. Meanwhile, if the Supreme Court reverses and rules in favor of American Needle, the case would be remanded back to the Northern District of Illinois for a full trial on the competitive merits. Upon a full trial, a court would then uphold the NFL licensing arrangement only if it is found to yield a net effect favorable to comeptition.

* * *

For further reading on this case, please see the following:

Marc Edelman, Single Entity Ruling: 'Needle' in Haystack, New York Law Journal (Jan. 2, 2008)

Marc Edelman, Why the Single Entity Defense Can Never Apply to NFL Club, Fordham Law Review (2008)