By whatever metric you choose— TV ratings, revenues, opinion polls —pro football is America's most popular sport. While the NFL is king among those born since Super Bowl I, baseball still reigns at hangouts frequented by older, intellectual types: the Harvard faculty lounge, George Will's family room, and, this cold Wednesday morning, the U.S. Supreme Court. At oral argument in American Needle v. NFL, Justice Sonia Sotomayor—credited for ending the 1994-95 Major League Baseball strike —admits she doesn't "know enough about football" to conjure a reasonable hypothetical about an alternate, Saturday-only league. And Justice Stephen Breyer, who also confesses to "know baseball better," quickly abandons talk of the New England Patriots in favor of a discussion of the Yankees-Red Sox rivalry. After these displays of pigskin ignorance from the Washington Supremes' starting nine, it's not surprising to learn that the people least likely to express a preference for the NFL are those with postgraduate educations.
People who don't wear robes to their jobs will likely know that the NFL is an association of independently owned teams. The NFL, as a single entity, regulates things like the season's schedule, the rules of football, and team colors. And while the teams own the rights to their own intellectual property, since 1963 they have worked together to promote their products. For several decades American Needle Inc., a maker of headwear based out of Buffalo Grove, Ill., held a nonexclusive apparel license with NFL Properties. But in 2004 the NFL decided to solicit bids for an exclusive manufacturer and ultimately gave a 10-year license to Reebok. American Needle sued under the Sherman Act, claiming that the NFL violated federal antitrust laws by conspiring to give the licensing franchise to Reebok. This was unfair to Reebok's competitors and also to consumers.
If we promise you a wardrobe malfunction at halftime, will you stick with us through a saucy explanation of antitrust law? The Sherman Act doesn't allow companies to collude in ways that impair competition or harm consumers, but Supreme Court precedent holds that a parent company and its wholly owned subsidiary can't be said to have conspired. American Needle lost at the trial court and again at the 7th Circuit Court of Appeals, both of which determined that the 32 NFL teams can't conspire with one another to make an apparel deal because they are a single entity for antitrust purposes (in part because the teams can't really be independent entities considering they can't produce a game unless another team shows up on the field). The Supreme Court agreed to hear the case. Everyone is freaking out over the possibility they'll side with the NFL, which could potentially imperil free agency, emasculate players' unions, and drive up ticket prices, all of which could force Americans into watching Monday Night Curling.
This is one of those days in which the advocates seem to have forgotten that oral argument is not a contact sport. The justices' egos are built for croquet, not football. But whether it's Glen D. Nager (arguing on behalf of American Needle), who steps on Justice Stephen Breyer's words so many times that Breyer is forced to say, "I am asking a question here," or Gregg H. Levy (representing the NFL), who brazenly tells Justice Anthony Kennedy he "takes issue" with his hypothetical, neither lawyer seems to understand that arguing with the refs is never a winning strategy at the court.
When Nager rises to speak for American Needle, he quickly describes the NFL as "32 separately owned profit entities." Ruth Bader Ginsburg asks whether that means every single decision made by the NFL, about anything, could be a potential antitrust violation and subject to antitrust's so-called Rule of Reason analysis. Nager says yes, leading Kennedy to ask whether an NFL rule change that gives "the passer more protection" and hurts teams that prefer to run the ball would also be subject to Sherman Act scrutiny. Justice Samuel Alito, another baseball fan—his love for the game is so all-consuming that he gives lectures on 1922 baseball antitrust cases, by choice—asks whether two NFL teams might collude to play more than the 16 scheduled games.
Chief Justice Roberts chides Nager for continuing to assert that there is "obvious horizontal agreement between the teams," asking, "Isn't that the very question before the court?" Nager agrees—"You're exactly right," he says—at which point the chief, laughing, says, "Then you agree that you've been begging the question?"
Breyer, dreaming of the American League Championship Series, asks whether the 32 NFL teams are really competing against one another for fans given that, "I don't know a Red Sox fan who would take a Yankees T-shirt if you gave it away." When Nager suggests that 3-year-olds have somewhat less-ironclad rooting interests, Breyer retorts that they also have very small allowances. Then Scalia chides Breyer for asking questions that have nothing to do with whether this specific case needs to go back to the trial court. Breyer replies, "I'm not certain this is irrelevant, but given Justice Scalia's persuasive remark, I will withdraw my question."
Nager offers up a strange little touchdown dance toward the end of his presentation in which he says he knows the court is sensitive to the fact that the Rule of Reason is "not quite as well understood, and is an evolutionary doctrine, [although it is] perfectly well understood by me."
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