SBD/Issue 84/Law & PoliticsPrint All
WHAT NEEDS TO BE PROTECTED: The justices addressed matters pertaining to which league functions should be protected from antitrust review, a continuing thorn in the side of sports leagues and bodies. "You are seeking to get from the courts what you can't get from Congress," Justice Sonia Sotomayor told Levy. But American Needle's outside counsel, Glen Nager, was also aggressively questioned. Justice Samuel Alito asked him when could the league's 32 teams work together. Even rules changes, which both sides have said are the proper function of the league, could be challenged, Alito said, if say, for example, the league voted to go from 16 to 14 games, but some teams disagreed. The NFL's core contention is that the license signed with Reebok in '00 and which bumped American Needle from team contracts is protected from antitrust scrutiny because the NFL is a joint venture for the purposes of playing and promoting games. But some of the justices asked if selling caps was really about promoting the game. Sotomayor in particular frequently came back to this point, asking Levy how long the NFL has sold collective apparel rights (since '63), and saying later, "Is it so evident that T-shirts promote the game?" Levy said that selling intellectual property like caps and T-shirts was intrinsic to the game because the logos meant nothing unless a team was playing.
Kessler Says Labor Became Issue When
Stewart Discussed Things NFL Couldn't Do
NOT 100% WITH EITHER SIDE: Daniel Glazer, who runs the sports practice at Patterson Belknap Webb & Tyler and who was in the courtroom, said he thought the justices seemed uncomfortable giving either the NFL blanket immunity from antitrust laws or completely agreeing with American Needle's position. In the end, he said, the U.S. Solicitor General's brief, which described a framework in which there would be some instances that the league could be deemed a single entity exempt from antitrust scrutiny and others where it is not, seems the most logical outcome. For his part, Levy said not to read too much into the questioning in terms of how the justices would vote, but he said that Justice Stephen Breyer, who seemed particularly enthusiastic in his questioning of Levy, probably was a lost vote.
Levy Argues Teams Must Form "Single,
Cooperative Unit" To Produce Football League
FIRST DOWN & LONG: In N.Y., Adam Liptak writes under the header, "Justices Skeptical Of NFL's Court Claim." Several justices yesterday suggested that they "might rule against the league on the narrow question in the case -- whether it was entirely immune from antitrust scrutiny because it is a single entity" (N.Y. TIMES, 1/14). BLOOMBERG NEWS' Stohr & McQuillen noted several justices suggested that they "would give American Needle a chance to prove that the NFL's apparel marketing was anticompetitive." Justice Stephen Breyer said to the NFL, "Why shouldn't they have their shot? You might well win, but they want to make that claim." Much of the debate during yesterday's hearing "centered on how closely connected apparel sales are to the league's core functions." Levy told the justices that apparel sales are a "means of promoting the on-field product, an argument that Justice Antonin Scalia disparaged." Scalia said, "The purpose is to make money. I don't think that they care whether the sale of the helmet or the T-shirt promotes the game" (BLOOMBERG NEWS, 1/13). ESPN.com's Lester Munson noted there were "important indications that the NFL may not succeed." Comments and questions from an "unlikely combination of three justices -- Antonin Scalia, Breyer and Sonia Sotomayor -- seemed to lay the foundation for the court to make a more limited ruling." The word that the NFL "really didn't want to hear -- 'remand' -- was mentioned eight times" yesterday, a decision that would "send the American Needle lawsuit back to Chicago for a trial." Munson noted instead of "focusing on the broad immunity question initiated by the NFL, the Scalia-Breyer-Sotomayor line of questioning pushed" Levy "into a corner he wanted to avoid" (ESPN.com, 1/13).
NFL States Teams License Trademarks
Jointly To Better Promote The League