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SBD/Issue 84/Law & Politics
Arguments In American Needle V. NFL Focus Mainly On Licensing
Published January 14, 2010
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.
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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.