The Antitrust Division said in May that it thought the Supreme Court shouldn't take the case -- you know, the one that let the National Football League get away with conspiring to halt competition for fan headgear sales. The Court grabbed it anyway.
Today, the AD said vacate and remand. Will the Justices see things the agency's way this time?
Blawgletter won't hold our breath. The Roberts Court seems to get an endorphin rush each time it opens a new way for dominant firms to escape antitrust liability. We called the Decision Below "silly" -- mainly because the Seventh Circuit declared the opposite outcome "silly".
Vermont Law School Professor Michael McCann's approach in "American Needle v. NFL: An Opportunity to Reshape Sports Law" (forthcoming in Yale L.J.) (downloadable here) looks interesting: "[T]he Supreme Court should reverse American Needle and encourage Congress to engage its ultimate authority over statutory antitrust law" by granting narrow exemptions for sports leagues like the NFL.
Update: The American Antitrust Institute and the Consumer Federation of America filed a joint amicus brief. They summarize their points thus:
1. Single-entity treatment under Copperweld requires that an entity be controlled by those with legal and economic incentives to act for the interests of the entity as a whole. Sports leagues and join ventures that are controlled by independent economic actors, like the NFL, are not single entities. The Seventh Circuit’s holding that the NFL is a single entity because it produces a product for which cooperation is essential is inconsistent with NCAA and numerous other cases that treat the degree of integration of a joint venture as a rationale for applying the rule of reason, not exemption from § 1 of the Sherman Act. The Seventh Circuit’s extension of immunity beyond the production of football games to unnecessary and anticompetitive restraints on related activities is also inconsistent with the well settled framework for analyzing restraints related to an efficiency-enhancing integration. Even if the NFL were a single entity when collectively licensing the teams’ logos, the agreement not to license outside the venture would be subject to scrutiny under § 1.
2. Extending Copperweld to sports leagues and other highly integrated joint ventures would open a huge gap in the enforcement of the antitrust laws. It would permit the leagues to engage in anticompetitive conduct, and undermine enforcement against unnecessary and anticompetitive restraints by otherwise legitimate joint ventures in many industries. including those targeted by ongoing initiatives of the Justice Department and FTC.
3. There is no basis for immunizing sports leagues or other joint ventures because of the expense and supposed chilling effect of the rule of reason. Congress has repeatedly rejected the type of broad immunity respondents seek here. Rather, it has enacted narrow immunities for sports leagues and joint ventures in other industries that would be superfluous under respondents’ reading of Copperweld, and has otherwise rejected immunity even for extremely valuable joint ventures engaged in research and development and standard setting.
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