As has been narrowly reported, the Supreme Court has asked the Solicitor General for an amicus brief in the American Needle case. Marc Edelman has an excellent new post discussing this development on Above the Law. As I discussed in a post here a few months ago, the Seventh Circuit’s conclusion in American Needle that the NFL and its teams act as single entity when promoting NFL football through licensing teams’ intellectual property marked the rebirth of the single entity argument in sports antitrust litigation.
Given that the Seventh Circuit’s decision conflicted with nearly every other court’s determination that sports leagues are not single entities, it is unsurprising that American Needle filed a petition for certiorari with the Supreme Court. As American Needle’s petition notes, “In the 50 years since Radovitch [the Supreme Court case holding that the antitrust laws apply to the NFL], every appellate decision to have considered the question has held that the NFL and other professional sports leagues are subject to rule of reason scrutiny under Section 1 of the Sherman Act….[It} is untenable that the NFL should be exempt from the antitrust laws only in the Seventh Circuit.”
What is surprising, however, is that the NFL also filed a petition for certiorari(and they were joined by the NBA, NBA Properties, and the NHL). Why would the NFL want the Supreme Court to review a case that they won? Well, the NFL wants the Supreme Court to expand on the Seventh Circuit’s ruling and hold that sports leagues are single entities—and this immune from Section 1 attack—for all purposes, or at least with respect to “core [league] functions.” Here is an excerpt from the NFL’s petition:
The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits. If the petition is granted, the NFL will argue that professional sports leagues, which produce a product that no member club could produce on its own, and other joint ventures that involve a similarly high degree of economic integration, should be deemed single entities for Section 1 purposes, at least with respect to core venture functions, notwithstanding that the venture participants are separately owned and may not have a complete unity of interests.
More on this to come…
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