MHR University - Supreme Court Edition (American Needle Inc v. NFL)
by Steve Nichols on Jan 12, 2010 11:30 AM MST
in MHR University
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Not much good comes from missing the playoffs. Well, okay. There ARE some good things. For one, we get higher draft picks. And for another, we get back to MHR University (Yeah, I'd rather be in the playoffs, too).
Readers and trolls (and may it please the court): Comes now before the court a question of antitrust and intellectual property law involving the National Football League. This Wednesday a case will be heard before the Supreme Court of the United States (hereafter referred to by the common acronym SCOTUS) that may have some interesting ramifications for the pro football world (and even other leagues). Here's a small tidbit on what to watch for.
My degrees are in political science, and I have always been fascinated with SCOTUS and constitutional law. In fact, were it not for the costs associated with law school, and the time away from my family that I would want to invest to dive into it, I would love to go to law school (even at my "older" age). Instead, I follow some cases here and there by reading the oral arguments in SCOTUS cases and watching (with fascination) the careers of those who sit on the highest court.
From Oyez.org comes this excellent background on the case we'll be discussing:
Facts of the Case:American Needle Inc. filed suit in an Illinois federal district court against the National Football League ("NFL") and Reebok International Ltd. alleging that the teams' exclusive licensing agreement with Reebok violated the Sherman Antitrust Act. American Needle argued that because individual NFL teams separately own their team logos and trademarks, their collective agreement to authorize NFL Properties to award the exclusive headwear license to Reebok, was in fact a conspiracy to restrict other vendors' ability to obtain licenses for the teams' intellectual property. The district court disagreed and dismissed the case.
On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed. It held that NFL teams were a single entity for purposes of antitrust laws, and thus could not have conspired to restrict trade. Therefore, the court stated that the teams were free to license their intellectual property on an exclusive basis.
Question:1) Are the NFL and its members a single entity for the purposes of antitrust laws?
2) Is the agreement of NFL teams with Reebok subject to Section 1 of the Sherman Antitrust Act, when teams own and control the use of their separate logos and trademarks and, but for their agreement not to, could compete with each other in the licensing and sale of team products?
On Wednesday a case will be argued called "American Needle Inc. v. NFL" (docket 08-661 for you political and law junkies). Basically, American Needle is a company that used to make products for teams in the NFL, but they lost out when the League decided that Reebok would carry the official endorsement of the NFL for products that American Needle used to make. So far, the NFL has won every lower court ruling in this case. American Needle doesn't like the rulings, and have taken their case to the very top court.
On the surface, it seems to me that a small company lost its business to a competitor, got jealous, and tried to get the government to intervene on the side of the "little guy" to force the NFL to make a decision for American Needle. In fact, I still believe that. However, at the root of the case is a constitutional question that makes the case more important than the parties involved in the dispute. The question is, "Is the NFL one big entity, or 32 franchised entities that have some reasonable amount of autonomy"? Beyond that is the question, "Is the agreement of NFL teams with Reebok subject to Section 1 of the Sherman Antitrust Act"? Beyond who wins the dispute in a business sense (Reebok or American Needle), the ruling may impact things well beyond the products made by American Needle.
For example, issues dealing with free agency, labor negotiations, pay for coaches, team relocation, etc. may hinge on the decision. All of this comes up this week, oddly in the same year that the NFL faces another big hurdle: the Collective Bargaining Agreement for 2010 and beyond. Maybe the Broncos are out of the playoffs, but the off-season is still going to be interesting.
I put together a reading list for those of you who might want want to delve deeper into the antitrust case. This way, you can go toe to toe with your friends who like to talk football (or law) and hold your own.
SCOTUS WIKI - Here is the best summary of anything at all you want to know about this case. There are links to explain every step of the process for this case, and the arguments on both sides. This is the best source out there in my opinion, but it is also very technical reading (within the links).
Forbes Magazine - For the layman, this is the best article I've found. (Disclosure - the article is biased towards the NFL in the dispute, as I am). The author is clearly taking a side (the magazine is geared towards those in the business sector), but he lays out the case in easily understood terms. The author believes the NFL has the upper hand, and nothing will change if the NFL wins.
The New York Times- This article is also a very good review of the case. Like the Forbes article, it slants a little - but more towards the American Needle side. Still, I think both articles are fair overall, and make the issues a little clearer.
Here are some of the arguments I anticipate being made at the fan level (based on which side a fan is for, American Needle or NFL):
Prices
AN - If the NFL wins, prices could increase for everything from tickets to merchandise.
NFL - The NFL should determine its own prices without government dictating to the market. The NFL is in the business of making money. (There is also the argument that prices would stay the way they are, since the status quo before the ruling favors the NFL anyway).
Franchise
AN - Teams should be allowed to make more decisions apart from the NFL.
NFL - The teams are franchises, and the ownership of each team gets 1 out of 32 votes in running the League as a whole, anyway. Only owners like Al Davis and Jerry Jones want to buck the system.
Labor
AN - If AN wins, free agency may be done away with. Players should have more control over where they play.
NFL - Teams pay ridiculous salaries to players to play football. Those teams (and the NFL) have the right to run their own business, and not to have players dictate to the NFL how to run their business. Playing in the NFL is a privilege, not a right.
There are good arguments to be made either way, and where one stands likely depends on what one's political philosophy is. Clearly, I am biased in the above arguments. For example, I hate the BCS system, and think that a playoff system would be more fair; however, I don't think it is the constitutional place of the government to dictate that policy to the NCAA. I favor the rights of businesses to run themselves instead of being run by employees or the government. I also like any court ruling that sticks it to Al Davis. As a consumer, I don't like high prices, but as an American, I think businesses should set their own prices and suffer or thrive based on their own decisions. However, there are folks who believe that there is a role for employees and/or the government to dictate to businesses (beyond obvious roles such as safety and the preservation of the civil liberty rights of employees). I respect these arguments, and think we can all discuss them here in a narrow manner.
So let's lay some ground rules out. Let's discuss the case, but in the narrow terms of what could happen to the NFL. For example, don't argue for or against the value of labor unions, the need for or against government intervention, etc. Also, let's try to stay away from examples outside of football. Instead, let's discuss how the game would be improved or worsened if the NFL had more or less power to run itself. Has the League been doing well over the last few years, or going in the wrong direction? Are players overpaid, are tickets overpriced, is Al Davis a jerk? Do you feel the commissioner has more power than the owners, or do you think the commissioner is the guy the owners have selected to run their franchise? Has free agency been good for football?
Or, if you really, REALLY want to score extra credit points, discuss the case itself. Can you discuss the merits of American Needle's case (or the NFL's) without getting too far astray of football? We like to avoid politics and religion at MHR, since those are issues not germane to football and can lead to a lot of hateful comments by folks on every side of those issues. However, in this instance, our dearly beloved game has injected itself into the political world by becoming a part of the federal legal process. A discussion of the constitutional laws governing the case are risky fare for our MHR family, so I ask each of us to take particular care while we share our thoughts on this case and the implications for our game.
Next week at MHR-U, a look at how abortion, whaling, and gay marriage are issues that enter football on a weekly basis.
: )
~~~~~~~~~~~~~
Jabar Gaffney, seen here slapping (in his own words) a mosquito from Brandon Stokley's face mask. The behavior led to Stokley's hospitalization, and Gaffney's ejection for assaulting his teammate. AP photo - Jack Dempsey
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Thanks so much Steve!!
Im going to spend the rest of the night reading those articles that you’ve provided! Appreciate it!
I love football, but I also am very interested in the politics behind it. While it’s tough to get them (in Europe), I try to read as many books on the business/politics side of football, and have read alot about local politics and franchise relocation, but other business/politcs topics interest me as well. Though I heard about cases between the NFL and the Supreme Court, I didnt know a hearing would be so soon.
I dont want to make a statement on who should win until I read all the sources, but I have to say I am leaning towards the side of the NFL before studying this case further.
Bleeding Orange & Blue in The Netherlands
I have a tough time picking sides after reading some more articles
Both sides present some good arguments. It looks like a lot of people who voice their opinion side with American Needle, arguing that the NFL will look to use it’s power to do even more what it wants regarding the players, free agency and stuff like that… and arguments like raising ticket prices etc, is that really what the NFL wants? People would just not go to games anymore I think…. Yet I do see why it has to be considered as a single entity for purposes such a TV deals etc. Tough tough…
Gonna wait to see what arguments others bring up in the topic….
Anyone happen to know how long this case is supposed to last in the court? When the verdict is expected?
Bleeding Orange & Blue in The Netherlands
Oral arguments...
..are on Wed. The court will review the arguments (about an hour long) along with briefs already filed with the court. THe decision will likely be announced this spring.
It seems to me that the Forbes article is correct, in terms of no major changes if the NFL wins. (Most court watchers think the NFL will win this case). However, while I as a fan want lower prices, I don’t want those prices to be dicated by anyone outside of the NFL (including and act of congress, for example, or as the result of a court decision). I think businesses should set their own prices, and garner the rewards or punishments for their own decisions.
For example, should the government tell health insurers they aren’t allowed to consider prior medical conditions? As a consumer, I’d say sure. But as an American, I’d say no. After all, if my house has already caught on fire, should I then be allowed to take out fire insurance and then bill the insurance company? Just because something benefits me doesn’t make it right.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:24 PM MST up reply actions
I thought that was sarcasm, just like the comment about whaling, abortion and gay marriage ;)
Bleeding Orange & Blue in The Netherlands
You're right about the sarcasm.
And broncos909: I’ve been using AP photos with my own silly captions for several weeks now. In fact, go back in the archives and look at my last several Chalk Talk articles. You’ll see that they are all in jest.
I got a kick out of nobody noticing for awhile, and now my e-mail box is lit up with folks that have been proud to notice the jokes.
Just a little fun is all.
: )
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 1:12 PM MST up reply actions
USA Today: Supreme Court to tackle NFL-merchandiser antitrust case
I would like to know what you think of this article, I thought AN was trying to lower prices on merchandise by giving a better deal than Reebok? Having only Reebok represents a monopoly and they can charge whatever they want , am I wrong about this? Just curious what you think.
The only difference between genius and insanity is perception.... Matthew 12:30
My opinion only.
Remember, good minds can differ on this.
My opinion is that this isn’t a monopoly. If AN was making a better deal for the NFL, the NFL could take their deal. But as far as monopolies are concerned, AN has the ability to market themselves to several sports and at several levels. The NFL just decided that Reebok (which is bigger) can provide the NFL with a better service. In my opinion, it wouldn’t be a monopoly if Reebok OR AN had the the business of the NFL. I just don’t think a court should dictate to the NFL who they have to buy from. (So far, 2 courts have agreed on this).
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:28 PM MST up reply actions
I am more interested in the fact that the NFL GAVE Reebok the monopoly
from the standpoint that all the merchandise from an AMERICAN sport is being made in a foreign country and NOT by the Americans that support the sport.
Besides, if the greedy owners and players run the league into the ground, the government will bail them out anyway. They will print more money and the people will pay for it as they have every other time.
Character may be manifested in the great moments but it is made in the small ones -- Philip Brooks
by KaptainKirk on Jan 12, 2010 11:17 PM MST up reply actions
Americans can spend their money on what they want.
They can still buy American Needle or Reebok, and nobody is forcing them to buy one product or the other. The NFL is only endorsing an official product, that’s all. Consumers (whether individuals or the NFL) will continue to purchase items based on cost and qualtity. If an item is more expensive or of lesser quality, being “US made” may not be the best purchasing decision.
(I was recently at a local union hall with a friend for an even not related to the union. Someone came into the room we had rented for the meeting, and announced that there was a foreign made vehicle on the property, and it had to be moved right away. The vehicle belonged to someone attending the event who was a purple heart recipient from Vietnam, and had lost an arm. While I support the right of the union to dictate the rules on their own property, I had to question who was “more American”, the wounded vet, or someone driving a Daimler/Chrysler vehicle).
But I do agree that federal tax money shouldn’t bail out the NFL, or any other entity. I don’t think that’s at issue here though.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:17 PM MST up reply actions
I thought Chrystler was German...no wait, Italian...no wait, where was I?
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
Opposing position...
is that the NFL is to some extent a “public good”, which is why the NFL has an anti-trust exemption in the first place. By only selling marketing rights to reebok, AN can not produce anything with NFL logos, etc. on them.
Therefore, even if you as a fan wanted to buy an “American made” good that was better and cheaper than the foreign made good, you are prohibited from doing so because of the exclusive rights deal given (on a “public good”), potentially arbitrarily, to Reebok.
So under the current state of things, you as an American consumer can not in fact spend your money on whatever you want.
Thanks Steve, an interesting article/dilemma?
Is this why, some jerseys are quote official: ( cost more ) than others.
Also, what ramfications ( if any ) are say, Green Bay? Owned by the Fans.
Al Davis is a jerk, yes?
Real Power, comes with the realization that One cannot change the Moment;
only ones perception of it: Atitude! JQM
Official ones cost more.
But in our free market, we may choose to buy them or to by other similar products (or not to buy at all).
As for GB, they are a smaller market team, and would seem to be better placed siding with the NFL. Dallas (who markets many items apart from the NFL) would likely be against. The Raiders organization seems to thrive on suing the NFL, and has sided against the NFL in several past cases (and lost).
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:31 PM MST up reply actions
I'm one to think
that antitrust laws should apply, just because any other group seeking to market themselves in pro football is at such a competitive disadvantage. This isn’t like McDonalds’ franchises.
Why I might disagee...
AN is free to market to several sports and at several levels, so I don’t think this is a monopoly issue. Also, why should the NFL be required to give AN its business? I’m sure there are many small companies just as willing to sue for the NFL’s business.
It stands to reason that any business decision the NFL makes is in its own interest, and meddling from the govt (or the courts) may not be. Is the NFL the only pro level football program? Not really. There is a league in Canada for example, and leagues spring up every couple of years in the US and fail. Why? Because the NFL is a great “product”. If it wasn’t, consumers would vote with their feet for a different league.
Just my opinion. Reasonalbe minds will differ.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:35 PM MST up reply actions
It probably
depends on where you draw the line between what is a product offering and what is a monopoly. I compare it to McDonald’s. Where the NFL is McDonald’s, a team is a McDonald’s franchise, and needlepoint is a company that tries to sell a promotion of some sort to a local McDonald’s. I think the comparison breaks down at the team=franchise level. I think the collection of NFL to UFL to Canada to Arena Football is very different than McDonalds, Wendy’s, Burger King. There isn’t really a choice of football avenues here, not in a reasonable sense. If you look at other things that have been judged monopolies, it isn’t that their competitors can’t exist, it’s that their competitors have an unfair disadvantage and are unable to grow past a certain point. The structural biases are too great.
I’m not a lawyer, though – that’s just how it hit me. From a business perspective, it’s a head-scratcher why a business would choose to make their livelihood so dependent on the NFL.
I think you make some great points.
There really are two valid sides to the whole debate. I think the SCOTUS case is much more narrow, and will go to the NFL. But the general debate on the philosophy behind antitrust is filled with smart points on each side.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:21 PM MST up reply actions
Antitrust is such a circular argument...
I guess the big question in any of these case is where does the ‘free’ in free market apply? If you take the sentimentality for the NFL out of it, its just another case of two huge entities coming together to squeeze out a littler guy (and competition along with it). At the national level, its hard to figure that Reebok doesn’t have a huge competitive advantage over most of their natural competition. The NFL, obviously, is so entwined with the national fabric that they have incredible economic power, and, by extension, the ability to abuse it.
Yet who’s to say its anybody’s business to dictate how the NFL wants to run their organization, and why should Reebok be penalized for building a company with that type of competitive clout?
I guys that’s why we have lawyers and high-courts. I’ll trust their judgement.
So this is war...misfortune at every bend in the road. Misery and murdered mules and sudden death in a ditch.-- Rick Atkinson
by PredominantlyOrange on Jan 12, 2010 2:43 PM MST reply actions
Good points both ways PO.
I’ll add to your second point too – Reebok has plenty of competitors. Also, AN has plenty of sports programs at several levels they may market to.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:37 PM MST up reply actions
The issue with the governments involvement is...
Since the NFL (teams) use taxpayer money to build/improve/etc there stadiums, they have to have some government intervention.
And this is where it gets sticky. Does the government, and in so the taxpayers, have a right to regulate some of the business side of the NFL?
Quit drinking the Kool-Aid and start drinking the good stuff, and everything is always alright.
by Chuck "DeadDrunk" Breedlove on Jan 12, 2010 2:55 PM MST reply actions
Not exactly correct.
SOME teams do use tax money, but at the city level (to fund stadiums). In those cases, those teams have contracts with the city that allow for certain concessions (like revenie back to the city). In every case though, the team brings money back to the cities by increasing local business opportunities, as well as tourism and city prestige issues.
However, no NFL team (nor the NFL in whole) receives federal funds from taxes. This is an important distinction if we discuss the context you are using.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:40 PM MST up reply actions
The problem with this case is that both sides have salient points.
History has proven that business left to their own free will actually exploit and oppress freedoms. They raise prices, force indentured servitude and enact child labor – all for massive personal profit.
I have no problems with profits, but even as my anti-government sentiment screams no to what I am about to say, there must be protections in place against the potential abuses of corporate power.
It has become apparent to me that the NFL has become too monopolistic and has driven prices far too high for the average consumer. This is due more to the Collective Bargaining and also government taxation. The NFL must charge hideously high rates just to turn a profit. The cost increases have vastly outpaced the inflation rate in America for at least the last 25 years.
If anyone thinks that isn’t a problem then they obviously don’t understand why a lockout is just on the horizon. America is in a deflationary depression and sooner or later the stimulus money will run dry and the government-backed economy will finally deflate to sensible levels. It will be painful, make no mistake, but America will be stronger and healthier for it. The NFL is currently facing the same problems. It must deflate in order to become strong again. The problem is, the owners are not willing to take all of the deflating – they desire to share the pain with the players. The NFLPA will never go along with it and I find myself wondering just how long a lockout could last under these circumstances.
I hope, that when the NFL resumes prices will come back to reality. People have less money. Which means owners will have less money. Which means players must live with less money.
The insanity lies in groups of people unwilling to go back to previous levels of wealth. If my wife and I can take over a 1/3 hit in our yearly income in just six months; then so can the government and so can the NFL and so can the NFL players. My financial situation is actually better than it was when I made more money…I don’t know how, but it is. Perhaps its because I stopped being loose with my spending, either way we have more money now than we did when we made $25k more per year!
I’m off tangent, how does this all apply to this court case? If American Needle wins its case, it will open the flood gates for a deflate of the NFL product. This will not be a bad thing. It will bring the NFL product back into line with people’s wages. It will reinvigorate the fanbase of every team in the league.
If the NFL wins, it’s business as usual and the lockout will only decide how much prices will need to be increased in order to support the ever increasing demands of ever increasing player salaries. I think an NFL loss here will empower the individual teams to push even harder for what they want from the NFLPA.
I know this might eliminate Free Agency, but so what. I would rather be able to afford to attend a Bronco game than to be priced out because I have to pay for the lack of attendance in Detroit or Oakland. Make no mistake, that’s where alot of the price increases come from. I hate revenue sharing…single biggest scam on the fans of all time.
Anyway, I’ve digressed and wrote WAY to much on this subject.
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
by Tim Lynch on Jan 12, 2010 3:38 PM MST reply actions 9 recs
+1, Nice Tim, and Rec
Real Power, comes with the realization that One cannot change the Moment;
only ones perception of it: Atitude! JQM
Well stated Tim agree totally.
If anyone thinks that isn’t a problem then they obviously don’t understand why a lockout is just on the horizon. America is in a deflationary depression and sooner or later the stimulus money will run dry and the government-backed economy will finally deflate to sensible levels. It will be painful, make no mistake, but America will be stronger and healthier for it. The NFL is currently facing the same problems. It must deflate in order to become strong again. The problem is, the owners are not willing to take all of the deflating – they desire to share the pain with the players. The NFLPA will never go along with it and I find myself wondering just how long a lockout could last under these circumstances.
Where does it all end? A lockout might be the answer, I’m not sure. We’ve had them before and got along very fine. It would be sad not to have football for a season or two, but something has to be done, it becomes more and more evident every year when folks can’t afford to take their family to a game.
I think that is why I want the NFL to lose this ruling...
anything that empowers the owners individually benefits US, the fans. Believe it or not, but the NFL is a mircochasm of American itself.
The NFL is the Federal Government, the teams are state or local governments. In the last 20 years power has been transferred from the teams to the NFL and what has happened to prices? Skyrocketing. I am a local kind of guy and when things stay local, they stay cheap.
I am probably oversimplifying, but I think the concept is sound. Maybe… ;-)
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
Another disgreement.
Tim, we are on the same page with the 10th amendment. I don’t favor a federal goverment dictating policy to the states.
But that isn’t a germane example here. The owners and the NFL are on the same side in this suit. The NFL isn’t fighting the teams – the NFL AND the teams are fighting AN. AN is trying to dictate to the NFL whom they must buy products from. Only Jerry Jones (who snubs the NFL on product sales) and Al Davis (who sides against the NFL in every major suit out of personal malice) are against the NFL in this sort of case. And for what it is worth, neither of those teams filed a brief against the NFL in this present case.
The NFL is following the desire of the team’s owners in this case Tim. They aren’t at odds, and I wouldn’t call this analagous to a states rights issue in any way.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:54 PM MST up reply actions
Tim
My leanings are more conservative, while yours are somewhere between libertarian and anarchistic.
Let’s focus on one small issue (where “big business” and “big government” collide). You and I would agree that the US Constitution, and its limits on government power, are the controlling factor in determining what is right from wrong. Agreed?
If so, where in the constitution do I have a right to lowered costs for an entertainment medium? Where (constitutionaly) is the NFL required to be affordable? I don’t like ticket prices, and I sure as heck don’t like DIrect TV. But are you seriously going to check your political ideals at the door for personal gain – letting the governement (through the courts) dictate the prices of goods or services? That sound very “Hugo Chavez” to me. Price controls (both in terms of rent control and gas prices) were abysmal failures in the US in the early and mid 70’s, and I’d hate to see those policies enforced on the NFL. (Though I don’t think that is much of an issue in the present SCOTUS case).
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:49 PM MST up reply actions
I'm actually more Constitutional than anarchistic. :)
I may come off as the other, if only because I would like to see America claim a mulligan for the last 100 years and start over from that point.
I am vastly in the minority though, no doubt…when I hear terms like “Tea Party” it angers me because the original meaning was usurped by a certain political party for their own gain. Though I’ll probably still vote for them if only to ensure gridlock in the nation’s capital. lol
Anarchist…that’s a scary thought dude. I did call for regulation at one point in my post above too. ;-) That isn’t Libertarian or anarchist. Just sayin. :P
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
Lol
Anarchist…that’s a scary thought dude. I did call for regulation at one point in my post above too. ;-) That isn’t Libertarian or anarchist. Just sayin. :P
That’s why I said,
But are you seriously going to check your political ideals at the door for personal gain – letting the governement (through the courts) dictate the prices of goods or services?
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:25 PM MST up reply actions
Screw it. Burn down the courthouse.
Oh wait…I mean, uh, what is the right answer again?
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
Sorry, but Mile-High University?
Absolutely love reading your stuff Steve, but this post doesn’t belong in your University series…I don’t think for a second this is true, but from afar it looks like you’re using your bread-and-butter series to get people to read your post on something most wouldn’t be interested in.
How much sense would it make for a new user to be reading through the MHU articles and then see this?
Just saying…
"Precipitation, which side are you on?
Are you on the rise? Are you falling down?
Let me know, Come on let's go, yeah
Got some if you need it!" -EV
I find it very interesting
and relevant, especially for the off-season.
I have to side with the NFL in this. They and their franchises are, it seems to me, similar to McDonalds and their franchises. The individual restaurants more-or-less recieve dictates about everything from bathroom cleaner to pricing. For a franchise to deviate in any way from the strict company policy, it must present a compelling case to the parent corporation. MickeyD’s has no problem getting all their french fries for all franchises from one source.
Now, I know Steve wanted this kept to football, but decisions like this affect the other sports as well. Plus, I’m a big hockey fan. So when I saw this article, I immediately thought of the bankruptcy case last summer involving the NHL and the Phoenix Coyotes. The core of the proceedings revolved around the simple question of how much autonomy from the parent organization does the individual franchise have? The answer turned out to be “little to none.”
I’m pretty sure ANI is screwed on this one.
I thought it was relevant in the long term, because in a few months MHR-U will likely be all legalistic about lockouts and lawsuits, ect.
MHR-U is all about learning and how many of us know anything about what is coming to the NFL? 2011 we’ll be watching Court TV instead of CBS, FOX, ESPN, or NFLN. lol
I just think that might be the route Steve was considering when he put this post together.
Disclaimer: I do not speak for Steve, so if I am way offbase I apologize. lol
Verbose in style, dispersion of thought, procrastination in life.
The guy formerly known as ZAPPA
We agree on that 100% my friend.
See my response below.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 7:01 PM MST up reply actions
Sadaraine
I understand your point, and respect it. It isn’t “Xs and Os”.
However, I have defined MHR University as any article I write that that attempts to “teach” in some manner. While this doesn’t come from the football tactics department, it seems to me that there is room for legal, medical, and other areas of “teaching”.
My degrees are in political science, not law. But I’m hoping that the article gives enough links to spark conversation and to make the average MHR reader more knowledgable about this issue than their fellow fans.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 6:59 PM MST up reply actions
Fair enough
It definitely has sparked some interesting conversation and made those who read it more knowledgeable about something we otherwise wouldn’t know about.
"Precipitation, which side are you on?
Are you on the rise? Are you falling down?
Let me know, Come on let's go, yeah
Got some if you need it!" -EV
I think it fits.
I mentioned lower down the comment thread that this isn’t a strong suit, but I really appreciate that there are knowledgeable people here that do know about it. It’s certainly a valid article and I’ve learned a lot.
How much sense would it make for a new user to be reading through the MHU articles and then see this?
Well, none of this made sense, to me, until Steve got going in the article. I love seeing things like this that challenge our minds and make us think about the NFL from a broader scope.
If Taylor Swift were to try and tackle me, I'd let her.
Why has nobody made a live-action game of Chutes and Ladders? I'd be first in line.
by Troy Hufford on Jan 12, 2010 7:04 PM MST up reply actions
So MHRU has a pre-law program
No big deal. It wouldn’t surprise me to see something along the lines of a pre-med series, either. As long as we’re learning something from HT, and being talked to like adults, it works for me!
"All we're trying to do is win the *********** game!" -- Josh MF McDaniels tearing into his offensive line after three false starts in the red zone. The tirade turned the tide of the game, and the Broncos dominated from that point on.
by broncosmontana on Jan 12, 2010 7:43 PM MST up reply actions 1 recs
that said
who’s got a good SCOTUS joke? ; )
"All we're trying to do is win the *********** game!" -- Josh MF McDaniels tearing into his offensive line after three false starts in the red zone. The tirade turned the tide of the game, and the Broncos dominated from that point on.
by broncosmontana on Jan 12, 2010 7:46 PM MST up reply actions
by the way, on a related note, just had to share
My little brother in the law program at Notre Dame just got his commission to the Army JAG Corps!!! He’s been dreaming of this day for years!!!
"All we're trying to do is win the *********** game!" -- Josh MF McDaniels tearing into his offensive line after three false starts in the red zone. The tirade turned the tide of the game, and the Broncos dominated from that point on.
by broncosmontana on Jan 12, 2010 7:50 PM MST up reply actions
Pass on our congrats!
ND Law is a fine program, and Army Jag is a great way to apply his education. Good on him!
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:30 PM MST up reply actions
That would be awesome. Pre-med at MHRU with guest lecturer, Doc Bear.
Discussing long term injuries such as Brian Dawkin’s neck and Ryan Harris’ toe. The biomechanics of throwing a football. As a bioengineering student, that would be very interesting, IMO. Bring it on.
While we’re at it, why not MHRU economics (capology) or psychology (rookie learning curve, QB’s mentally adjusting to McD’s system and so on)? Let’s keep them coming. Montana, you’ve provoked a University expansion.
If Taylor Swift were to try and tackle me, I'd let her.
Why has nobody made a live-action game of Chutes and Ladders? I'd be first in line.
by Troy Hufford on Jan 12, 2010 7:55 PM MST up reply actions
Oh That's just Great
NOW I have to take more requisite courses to get my degree from MHR-U.
Looks like summer school for me!
Character may be manifested in the great moments but it is made in the small ones -- Philip Brooks
by KaptainKirk on Jan 12, 2010 11:24 PM MST up reply actions
Stop by my office.
You may have gotten some bad advice from your academic advisor. I’d hate for the Kaptain to be held back by summer school. Frankly, you’re the best transfer student from Star Fleet Academy that we’ve ever had. (Well, you and member Spock, of course).
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:35 PM MST up reply actions
Lol
Character may be manifested in the great moments but it is made in the small ones -- Philip Brooks
FWIW,
Doc Bear does the med program, not pre-med. He’s too darned good to be running the undergrad programs.
Also, you may find that Doc disagrees with me on much of the current issue. Given his stature and experience, he has earned more of your ear than I have.
: )
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:33 PM MST up reply actions
We have a few atty's as members...
…and at least one law school prof. We also have a wonderful physician who is on the MHR staff. MHR is full University, offering programs in Broncos Law, Broncos Medicine, etc.
Just don’t try to pass of your MHR degree for employment. That would be, uhm, dicey.
: )
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:29 PM MST up reply actions
Nice write-up
I did a similar one at BRB with a little more procedural and jurisprudential background that might interest some of you.
My prediction: 5-4 decision, Breyer siding with the Roberts-Scalia-Alito-Thomas group, on very narrow grounds (i.e. affirming the decision with respect to an exemption for marketing intellectual property for apparel, but not a broad sweeping grant of single entity status to the NFL). Bonus prediction: As a way to duck the single entity question, the Court will point to the Sports Broadcasting Act of 1961 and say that Congress is who has to give such a broad grant for Section 1 purposes.
I always assumed "You're The Reason God Made Oklahoma" would be some sort of country music diss track. Live and learn, I guess.
Oh, yeah...
I always assumed "You're The Reason God Made Oklahoma" would be some sort of country music diss track. Live and learn, I guess.
Thanks for sharing that MDC.
I read both this article and your article and, together, feel a lot more comfortable with this subject. Usually, things like this, where lawyers and such come into play, I am lost. It’s something that is hard to wrap my head around at times. I’m more of a game film guy and a stats/numbers guy. The business and legal sides of the NFL are some things that I’ve yet to grasp with any kind of comfort, yet.
I really appreciate that you and Steve have put together articles that make it easy to understand and form an opinion. +1 to the both of you.
If Taylor Swift were to try and tackle me, I'd let her.
Why has nobody made a live-action game of Chutes and Ladders? I'd be first in line.
by Troy Hufford on Jan 12, 2010 6:34 PM MST up reply actions
Agreed.
I think most SCOTUS watchers (with leanings on both sides of this case) are prediciting that the NFL’s case is stronger than ANs.
I’ll go you one more. I think the vote might be higher than 5-4. I agree the decision will be narrow (not sweeping) in keeping with the Roberts tradition so far. But I think that there may be more votes than just Breyer. First, while the court splits on many issues that lay folk would call “left and right”, I think there may be more pro-business votes on the court than just the traditional conservative votes of Roberts, Alito, Scalia, and Thomas. Second, just on the merits of the case, I think the decision may approach a near unanimous decision.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 12, 2010 7:07 PM MST up reply actions
I can't see
Ginsburg, Stevens, or Sotomayor going along. Sotomayor was on the Clarett case and explicitly shot down the single entity argument. So, that leaves Kennedy, but he has tended to lean toward Ginsburg, et al., in antitrust matters. So, I suppose 6-3 is possible, but I think 5-4 is much more likely just based on how these things tend to play out.
That said, I don’t know that I buy that the NFL’s case is stronger. The Seventh Circuit tortured the holding in Copperweld to reach its decision in Bulls I (which was where Judge Easterbrook laid out the framework that would become the American Needle holding) and in so doing ignored 50 years of precedent against finding the NFL a single entity. Their claim about “we can’t put on a football game by ourselves” had been tried and shot down for years. Really, the only thing that makes their case plausible is the current makeup of the court as compared to the makeup of courts that didn’t buy those arguments the first time around.
I always assumed "You're The Reason God Made Oklahoma" would be some sort of country music diss track. Live and learn, I guess.
MDC
first, great article over there, and thanks for bringing it over.
Secondly, my take on Copperweld was that the court was finally dealing with the collective bargaining aspect of prosports head on, instead of nibbling around the edges, which is the 50 years of precedent you are talking about. Antitrust is shaky ground to begin with, so I wouldn’t say that precedent holds as much water with it as it does with a lot of other constitutional law.
In Copperweld they specifically said that the single-entity argument needs to be looked at one piece at a time, not swept away or upheld in large, sweeping rulings. The single-entity argument has been accepted for some time in regards to negotiating televison contracts, so in my eyes, the seventh circuit put the onus on the courts to get consistent on the issue. I fully agree with an “it is or it isn’t” burden for the courts. The result will be somewhere in between, of course, but precedent is no excuse to be conservative with rulings in antitrust.
To me, the real problem is the nature of antitrust itself. Its history is sordid, its legal roots questionable, and its use redundant. White collar crimes were prosecuted fairly for years before Sherman, under correct classifications like fraud. The wording and teminology used in Sherman is ambiguous and its use as a political tool more than an objective rule speaks to this more eloquently than I could….
Precision in thought, concision in style, decision in life.
"That's MR.Styg..."
by Jeremy Bolander on Jan 12, 2010 9:32 PM MST up reply actions 1 recs
Copperweld
wasn’t a pro sports case. It was the one where the Supreme Court said a parent company and a wholly owned subsidiary company are a single entity because of a unity of interests, even where the parent doesn’t maintain strict day-to-day controls over the sub. This is a very narrow holding on its face, and the Seventh Circuit exceeded the scope and came up with its hybrid approach that was later applied in American Needle.
The single entity argument was shot down by the court in the context of negotiating TV deals, which prompted congress to pass the Sports Broadcasting Act of 1961 to allow the NFL to do exactly what the court said it could not when the court dismissed with the single entity claim.
My point as far as precedent goes is that the Supreme Court has consistently told the NFL, no, you are not a single entity. It’s taken Congressional acts to counter this in the past. Yet here is the NFL, again, trying to say they are a single entity. They’ve rehashed the same rejected arguments again, this time banking on a differently constituted court to agree with them. In fact, after baseball was granted an antitrust exemption in the 1920s (’21, I think), football and basketball both later asked based on that precedent for exemptions of their own. The court went so far as to say not only where NFL and NBA not single entities, but, if it were reconsidering the MLB case today (this is roughly 1960), it would probably not grant baseball the single entity status either.
All that said, I do agree that Sherman is a political tool 9 times out of 10 in modern usage.
I always assumed "You're The Reason God Made Oklahoma" would be some sort of country music diss track. Live and learn, I guess.
MDC and Styg have earned an A+ on this presentation.
Both are invited to be on the staff of the MHR Law Journal. Well done to you both.
BTW, I’ll provide a link as soon as I get a copy of oral arguments. That’s the best way to read the tea leaves for the decision, though imperfect. I can’t wait to check them out.
At least we all seem to agree on Sherman.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:42 PM MST up reply actions
Thanks for your response MDC
You’ve really got your finger on this, and I appreciate your time. I look forward to seeing your take ont he oral arguments, and however much farther it goes…
Precision in thought, concision in style, decision in life.
"That's MR.Styg..."
by Jeremy Bolander on Jan 13, 2010 8:12 PM MST up reply actions
Re: the Sherman Act.
In it’s early history, it was used to quash the labor movement.
If this be Hell, let us make the most of it!
by Trinidad Jack on Jan 13, 2010 9:37 PM MST up reply actions
+1
The Mile-High Magic must be rediscovered!
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."
John Adams
I should have elaborated...
Since the franchises agreed to the Reebok deal, it’s not a franchise versus league issue and is much more likely to go the NFL’s way….
Should there ever be a case between the league and the franchises (let’s pray that never happens), I don’t think the decision would be as weighted toward the league. We’ve seen cases with MLB, involving Sotomayor no less, that would make this much more prone to be a left/right split…..
The Mile-High Magic must be rediscovered!
"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."
John Adams
Sotomayor and MLB
I read an article some time ago about her involvement in the MLB case. Supporters initialy said her involvement was pro baseball, but later on the detractors countered that this wasn’t the case. Caring little for baseball, I didn’t put much time into the article, and didn’t think it was an issue that was terribly relevent to her judicial abilities in any event.
Did you have a take on her ruling?
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:49 PM MST up reply actions
Very stirring post Steve
Character may be manifested in the great moments but it is made in the small ones -- Philip Brooks
Thanks!
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:49 PM MST up reply actions
If AN won. . .
would that mean that local TV stations could broadcast games? Since the NFL currently has a contract with ESPN, NBC, CBS, and FOX, if a team wanted to opt out of the contact would they be able to (understandably no team would opt out because they would lose the national market and the many dollars that come with those contracts). It is wishful thinking more than anything.
I doubt it, but I'm not an atty.
I’d kind of like to see sporting events treated as news events, with coverage open to anyone who wants to cover the event. The counter is that the events are private, and held on private property. (Though the public is allowed to attend with a ticket, this doesn’t make the event a public event, since it isn’t run by a government entity).
However, I don’t think coverage of an event cuts down on ticket sales. For example, am I going to buy a $200 ticket just because the NFL blacked out my local game? Heck no. And I don’t think anyone else makes their ticket buying decisions based on blackouts either. I also think that Direct TV is a form of “pay per view”, as is the NFL Network games, and is a poor business decision by the NFL. In fact, if the NFL went entirely “pay per view”, I imagine their product would collapse right away.
Over all, I support the NFL’s right to make their own decisions, good or bad. I think a more open NFL (no limits on broadcasts of games) would create a better product, more viewership (aka advertising dollars), and more marketing (product sales, such as jerseys). But that should be the NFL’s choice (in my opinion), and not mandated.
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 1:57 PM MST up reply actions
Interesting:
PFT reports that the Supreme Court seemd ‘skeptical’ of NFL’s argument about being a single entity.
While the report obviously the necessary stupid PFT comments, i think it’s an interesting response from the supreme court.
Bleeding Orange & Blue in The Netherlands
It's a slam dunk for the NFL, no mixed metaphores intended.
The NFL is clearly a single entity that has divided it’s market area, the nation, into several “franchises”, btw, that’s where the word comes from.
Nor is the NFL a monopoly. Anybody can create a football league and go into competition with the NFL. Some have been successful: the AFL, maybe the NCAA (lol), your local high school; some have not: the USFL, arena football, etc.
Further, football is not like steel or petroleum or the rail roads or even the phone company, industries that inspired the creation of the Sherman Act. Though we might be able to accept it, we can get along just fine without football but not those other products.
I’m surprised the U.S.S.Ct. even granted cert.
If this be Hell, let us make the most of it!
Well there it is.
Trinidad Jack is the “Go to” attorney when I have a question about law at MHR-U. (He is also dean of the MHR-U Law school).
Good legal minds may disagree with Jack, but his opinion is gold for me. Thanks for weighing in!
Formerly known as HoosierTeacher or just HT.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" Defoe
by Steve Nichols on Jan 13, 2010 2:00 PM MST up reply actions
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