Old(er), Unathletic Folks Throw Complete Game Shut Out, Blank Harvey Dent 9-0

Posted by Iroquois Plisken

[Note: nothing in this article should be considered to be legal advice of any sort. It is merely the recitation of an opinion held by the author about a current event.]

Okay, so I know a while ago we posted that there would not be any more politics on the site. Well, this isn't so much about partisan politics as it is about something that's happened this morning.

Today, the Supreme Court unanimously ruled in favor of American Needle, Inc. in their lawsuit against the NFL. If you're not familiar, here's a brief summary. American Needle makes hats with logos on them (they are licensed). The NFL gives Reebok exclusive rights in 2001 for making hats (among other things). American Needle sues under the Sherman Anti-Trust Act S 1 & 2, alleging that all 32 teams are acting in conspiracy to monopolize the licenses. American Needle loses. They appeal. They lose again. American Needle and the NFL both appeal to the SCOTUS, ANI seeking a reversal and the NFL seeking the coveted anti-trust exemption, possessed currently by only Major League Baseball (at least in the sports world). They bicker. Judges listen. They rule. And today, they publish.

Put legally, we have the question

"...whether an arrangement is a contract, combination, or conspiracy is different from and antecedent to the question whether it unreasonably restrains trade." American Needle, Inc. v. National Football League, 560 U.S. ____ (2010).

Put more simplier, are NFL teams able to engage in anti-trust behavior (because 32 entities are acting in concert to restrict licensing) or are they a solitary, unified business that does not compete with each other (in terms of trying to get market share, revenues, etc), but with outside leagues?

Apparently, the former. The NFL had a reasonable position, at any rate. They argued that nothing was being done differently than what happens in the NFLPA's collective bargaining agreements (I think...). Also, just because there is evidence of acting in concert doesn't make something a monopoly. In fact, there is a heightened pleading standard when it comes to anti-trust cases like these. "When allegations of parallel conduct are set out in order to make a [section] 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). Bully on American Needle for finding enough to get the case to go through.

Quickly, let's look at the fallout:

1. This is not really a pyrrhic victory for AN, but the fight is not over yet. Since the case was reserved and remanded (back to the lower court), American Needle now has to prove that the exclusive agreement unreasonably restrains trade under the Rule of Reason advocated in Standard Oil Co. of NJ v. U.S., 221 U.S. 1. Surprising though it may be to most folks, monopoly power is not in and of itself illegal, so AN still has to show they'd be harmed and that the NFL's restriction is the cause.

2. Expect to see baseball a little more cooperative when the government comes calling. This case may be enough for the government, when and if it gets pissed, to pull the anti-trust exemption MLB currently enjoys. In fact, I would think this gets removed sooner rather than later, but the trick will be finding someone with proper standing to sue.

3. This is a huge defeat for the NCAA, I think, moreso than any other organization of sports not named MLB. The NCAA, as the administrative body of the 300+ member schools of collegiate athletics, would have stood to make a pantload if they could corral the revenues generated by some schools (e.g. UF, Texas). This would essentially have locked in every college to do exactly what the NCAA says if schools cannot make money off of their own licensed gear, since it would control all of the money in college sports. Ironic, though, that this is exactly the same argument used by those who would advocate paying collegiate athletes (e.g. allowing use of their names by default in NCAA xx). While I don't think "QB #15" will be going away anytime soon, it just strikes me as funny that the big time schools didn't speak up against ruling in favor of the NFL because of how much they had to lose and, in the process, lowering the NCAA's already low credibility.

4. I agree with Deadspin's analysis that the NFL doesn't lose, so much as it just fails to win.

5. I disagree, however, with Deadspin's last point about Madden 20xx and agree more with PointofLaw's analysis on point. He says it more succinctly than I could. To quote and reprint:

Update: Deadspin suggests (h/t W.C.) that the ruling will affect exclusive deals with videogame makers. Not so. For example, the Madden series reflects not just deals for the team trademarks, but for the NFL trademarks and the NFLPA rights, which are unaffected by the ruling. Sure, Jerry Jones could individually sell the rights to a Dallas Cowboys game that doesn't mention the NFL or the other 31 teams or any of the players' names, but who is going to buy those rights? And that's before one gets to the Rule-of-Reason analysis that a videogame is much more valuable with all 32 teams' trademarks than with just 31 of them.

That's the nail in the coffin, I think.


So, why did American Needle win this case? I believe, at the heart of it, because the NFL is not centrally planned. Teams do compete within the organization against each other, for example, with free agents. The results of the games are not fixed (the NBA's are, though. BURN!). With respect to merchandising, I believe the SCOTUS was diligent in narrowly tailoring this ruling to merchandise. Though, I do also agree to an extent with this position, that some monopolistic, single-entity powers are ultimately better for the NFL (trickling down to the players also, especially with revenue distribution).

In the end, the impact of a decision for either party wouldn't have been as bad as projected, especially in light of the narrow tailoring of the decision (no pun intended). This won't be the end of sports as we know it, but don't confuse that point; a victory for the NFL would have been more impactful than the present ruling. Nor will the NFLPA et. al have vastly more power than they did before. The NFL could restructure itself to soften or completely mitigate this blow; an example might be declaring that an official Tampa Bay Bucs hat must have both the NFL shield and the TB logo.

Anyway, that's my take and sorry if not all of it makes sense. I am not a lawyer. Yet.

[Note 2: Again, nothing above constitutes legal advice or even sound reasoning.]

A Course Correction

by Slate Quicksilver

This site is not, believe it not, try to adhere to a political philosophy. Yes, one party usually is attacked more than the other, but this site is composed of multiple political stances. We have, and won't name names, two democrats and two republicans on staff representing a nice cross section of politics in the post-modern world. A "moderate Republican", a "centrist Democrat", an "almost libertarian" and a "I only get political news from the Daily Show."

We remain balanced and although the soup-du-jour is to either slash/laud at "wasteful/progressive" Democrats or deride/praise "obstructionist/stalwart" Republicans, we do not want to tip our hand to a certain political party. Red mentioned Michael Jordan's truthfully funny admission that "Republicans buy shoes too" and that is an excellent point.
From Muhammad Ali refusing to go to Vietnam to Gerald Ford playing football at Michigan and going on to be President to Richard Nixon calling to the Miami Dolphins sideline to call a pass play in an important game (2 WR left slant and slot drag... incomplete pass) to Lynn Swann, Hall of Fame WR for the Steelers, running for Gov. of Pennsylvania. Sports and politics have a touch and go relationship.

These days, most sports players hold their political thoughts to their heads. It was called "refreshing" when Injured Reserve All-Star Greg Oden openly supported Barack Obama in 2008 and Jay Feely was crushed just for walking on to a FOXnews set. Is it fair? Probably not. But to this person, politics and sports should not be included. Sports is an exit for many millions of people and rehashing things of a political nature just brings up things that those many millions are trying to escape from. Unfortunately, this country is very divided... politically. We entered the Century riding an economic bubble (yes, I am aware it was about 60% artificially created) and a feeling of invincibility. After a decade of terrible issues, circumstances and in some cases decisions coupled with political infighting and a lack of admission that things were getting worse, this country has been splintered.

Whether or not you support or oppose Roe v. Wade, it is this person's opinion that we don't need to talk about it during the Super Bowl. Abortions are, and always will be, controversial. It is one of those issues that both sides are unmovable and will not convince the other side just by showing a commercial. It will require logical talks between both sides and some form of compassion. Sadly, logic and compassion rarely touch this particular debate on the American landscape. "Don't have an abortion" to most levelheaded Americans is a statement with gravity, yet passiveness. But in other cases, it will just splinter and fracture.

Tebow is doing what he thinks is right. That is, without question, commendable. Even if you wish for an abortion clinic in every garage, it would take a soul of stone to not be able to tip your hat to someone who is willing to stand up for their beliefs in the face losing face in multiple facets of society. Some will applaud. Some will demean. Some will turn the other cheek and some will just hit the mute button.

We must mention however CBS's curious decision to not air an ad promoting a gay dating website. The ad includes two gentlemen making out at the end of the commercial and that in itself would cause an uproar. CBS made a conscious decision that two gay men kissing is not OK, but bringing up a divisive topic is OK. Whether or not CBS made the decision on the grounds of politics or discretion, we don't know. We do know that CBS has shown godaddy.com commercials involving two women kissing. This, the same CBS which had a full 2 minutes of delay tape to edit out the Janet Jackson "wardrobe malfunction" and did not do so.

The "Obama Backs Saints" post was done as a political satire making fun of borderline childish state of politics that plagues the nation. Digs at both political parties were made. Previous posts with slight political spin (re: The one where an attempt to imitate Glenn Beck/the one where Alabama Gov. Bob Riley was put to the hot coals over a stupid bet) were done either by poking at sillyness that has invaded the political scene: In the "Doomsday Scenario" it was done to poke at his wild accusation throwing craziness that even most ardent Republicans shy away from but put into a college football context. In "Because It's the South... That's Why" we were making fun of the "ticky-tack" issues that bog down the political system.

Anyway, we here at PLS will back off politics for a while. We are here to demean Lane Kiffin... among other things... but we are not here to talk politics. From someone whose facebook page states that his political view is "National League" and his religious view is "SEC Football", I apologize for the political spin that have poured from this site. We are still in our infancy as a site and we will not pull a deadspin.com and fly too close to the sun and effectively get stuck being TMZsports (in our case... politicosports.com).

So, allow me to bridge a gap. Here is something we all can agree on: The new PLS stance on aquatic mammals.