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Waiting for SCOTUS

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In the next month, the Supreme Court of the United States (SCOTUS) will issue its much-awaited decision involving professional sports, in particular the National Football League, although the principles likely to be announced should apply across the board to all team sports leagues. The opinion (and the dissents) will be reported in the media, but only in a very simplified fashion. The sports law and antitrust blogs will offer their instant analysis, and law faculty will be writing about the case for years to come. I will have to teach the case in my Sports Law course.

The case was brought by a manufacturer of athletic apparel, American Needle, against the NFL and its member clubs, claiming a violation of the antitrust law that prohibits "contracts, combinations and conspiracies" that have anti-competitive effects. The threshold issue involved in the litigation is whether, for antitrust purposes, the NFL should be considered a "single entity" or a combination of individual clubs. If the NFL is unitary in nature, it could not collude with itself, and thus would be insulated from antitrust liability under section 1 of the Sherman Act. A majority of the three-judge panel of the Seventh Circuit Court of Appeals in Chicago ruled in American Needle that the NFL was a single entity, the first circuit to so hold. The Supreme Court took the case to resolve this conflict among the circuits.

Much ink (or electrons, if that is what is used up in online discussions) has been devoted to the intricacies of this issue. My two colleagues, Dean Gary Roberts of the University of Indiana-Indianapolis Law School and Professor Stephen Ross of Penn State Law School, have been the chief academic advocates on different sides of the issue. Their law review articles provide splendid academic arguments. I have stood on the sidelines for the most part watching my informed co-authors battle it out. We are all waiting for SCOTUS, and both Dean Roberts and Professor Ross deserve a citation in a footnote. The only real issue now is who will be cited by the majority and who by the dissent.

Translating legal issues and court decisions into information accessible by the public is always a challenge. Members of the press are smart folks, but not necessarily trained in the intricacies of antitrust and labor law. Academics are also smart folks, but they are often gun-shy of the media. I have tried for thirty years to breach that gap. The law does not belong to the legal academics or even to lawyers. It belongs to all of us. Yet the courts have not made it particularly easy to have their methodology and reasoning understood.

Consider the very recent decision by the state trial court in Minnesota in the StarCaps case. Because the plaintiff football players said the NFL's violation of a state law on drug testing did not damage them, they lost their case. The media blared the headlines of a great NFL victory, because the League could now suspend the two Vikings players. In fact, it was a great NFL loss. The court found that the NFL was an "employer" covered by state law, which should mean that the League would have to comply with such statutes in a variety of states that have NFL franchises. This has the potential of ruining the NFL's uniform national plan on drug testing that it successfully negotiated with the NFL Players Association. The next plaintiffs to arrive in court will explain how the NFL's violation actually injured them, certainly with regard to their reputations.

The Minnesota trial judge also blasted the League for its arrogance and indifference. Make no mistake. The NFL lost big. In fact, within days it appealed the federal circuit court opinion that laid the foundation for the state court trial. Later this year, the U.S. Supreme Court will announce whether it will grant the NFL's petition for certiorari in StarCaps. If it does, we will once again be waiting for SCOTUS.

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