They Are So Not Ready for Some Football
The Supreme Court justices prove they know nothing whatsoever about the NFL.
Posted Wednesday, Jan. 13, 2010, at 6:17 PM
Justice John Paul Stevens, never one to throw a flag for unsportsmanlike conduct, suggests that since the league shares the apparel revenue equally among all 32 teams, they can't possibly be anti-competitive. "You are not competing among the members of the league," Stevens said. "You're competing in the market that includes all sports paraphernalia." He adds, "That's the end of the ball game." (Toward the end of the morning, Stevens makes a crack about "these players who make so much money." Is the 89-year-old taking a second look at a football career? After all, the NFL's 2009 rookie minimum of $310,000 is slightly higher than his annual salary of $208,100.)
The Obama administration sided in part with each party, suggesting that the 7th Circuit got it wrong; that the NFL is anti-competitive except when it isn't; and proposing a new, arguably more complicated test, for such complicated cases. Because all the sports talk was too exciting, Malcolm Stewart, arguing for the administration, turns the case into a fight about Dunder Mifflin, worrying to death a hypothetical scenario in which the NFL engages in anti-competitive paper-product practices.
Gregg Levy, the NFL's representative, faces a tough defensive line this morning. The pocket collapses on him after his claim that the 32 teams are "not independent sources of economic power, because none of them can produce the product of the venture on their own." Breyer asks what their ability to put on a game alone has to do with anything. "I thought we were talking about T-shirts and helmets. I thought it's the simplest thing in the world. You pick up the phone and say, Hello, Shanghai, do you have a helmet?"
Levy says that selling branded clothing is really just the NFL's way of putting flyers under windshields. The purpose of licensing apparel is to promote the game of football, he says, and fans in Redskins and Saints hats are walking billboards promoting the next Sunday's games. Scalia finds this whole premise preposterous: "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."
Each of the 32 clubs is worthless apart from the NFL, Levy argues: The "trademarks don't have value independent of the game." He then gets to the NFL's fundamental purpose in pursuing this case. The question of how to deal with antitrust claims against sports leagues is "an area of the law that has been troubled for many years." Sotomayor, sussing out Levy's notion about how to untrouble the law, asks what, in his opinion, leagues could possibly do that would be subject to antitrust law. He explains that the line is between promotion and production of the game. "So … you are seeking through this ruling what you haven't gotten from Congress: an absolute bar to an antitrust claim?" she asks.
Levy denies that's his game, but it seems clear that Sotomayor is right. The NFL—as well as the NBA and NHL, both of which filed amicus briefs in support of their football counterpart—wants what Major League Baseball has: a broad antitrust exemption. When Scalia asks whether it would be anti-competitive for teams to fix the prices at which franchises can be sold, Levy says probably not. That feeds into everyone's fears about what kind of nefarious schemes the NFL would concoct with a favorable ruling.
It's fairly clear that most of the justices would like to send this case back to the trial court for a fuller hearing. After further review, almost everybody suggests that one more rinse on the "reasonable" cycle in the lower courts would do wonders to clear up the precise issues in this case. The NFL, it seems, has found itself in the only place in the world where football can strike out.
Correction, Jan 14, 2010: The caption accompanying the photograph originally stated that it was a "referee's cap." Caps worn by referees are white, not black.