Supreme Court gives NFL the Terry Tate treatment

The NFL, having convinced both a district court and the Seventh Circuit Court of Appeals that it was a “single-entity” for anti-trust purposes and thus exempt from anti-trust liability under Section 1 of the Sherman Act, asked the U.S. Supreme Court to make that the law of the land for the entire country. Justice John Paul Stevens, writing for a unanimous court, said simply:

Actually that was Terry Tate, but the message was basically the same: NFL, you’ve overreached — you can’t transform 32 disparate, separately owned teams into a single-entity simply by setting up a joint venture, National Football League Properties or NFLP. For background, I’ve written about the case several times (where I confidently predicted that the NFL would lose), and the NY Times explains the posture well:

The case was brought by American Needle, an apparel maker from Illinois that lost its contract with the league when the N.F.L. entered into an exclusive 10-year, $250 million deal with Reebok in late 2000 to produce hats, jerseys and other league-branded merchandise.

American Needle argued that the league’s deal with Reebok violated antitrust law because the N.F.L. was a collection of individually owned teams that compete with one another, not a single entity able to negotiate contracts on behalf of its teams. By striking a deal with Reebok, the league effectively conspired to stifle competition, the company argued.

American Needle appealed to the Supreme Court….

In rejecting the position of the NFL (and that of the various other leagues who filed briefs in support of the NFL), the Court explained (I’ve removed the citations):

“Every contract, combination in the form of a trust or otherwise, or, conspiracy, in restraint of trade” is made illegal by §1 of the Sherman Act. The question whether an arrangement is a contract, combination, or conspiracy is different from and antecedent to the question whether it unreasonably restrains trade. This case raises that antecedent question about the business of the 32 teams in the National Football League (NFL) and a corporate entity that they formed to manage their intellectual property…

[...]

“[S]ubstance, not form, should determine whether a[n] . . . entity is capable of conspiring under §1.” This inquiry is sometimes described as asking whether the alleged conspirators are a single entity. That is perhaps a misdescription, however, because the question is not whether the defendant is a legally single entity or has a single name; nor is the question whether the parties involved “seem” like one firm or multiple firms in any metaphysical sense… The relevant inquiry, therefore, is whether there is a “contract, combination . . . or conspiracy” amongst “separate economic actors pursuing separate economic interests,” such that the agreement “deprives the marketplace of independent centers of decision-making” and therefore of “diversity of entrepreneurial interests.”

In applying this framework, the Court rejected the NFL and lower courts’ rationale that the NFL is a “single-entity” because the NFL is seems like a single-entity in what it termed a “metaphysical sense,” simply because you need multiple teams and hence cooperation to play a football game:

Each of the teams is a substantial, independently owned, and independently managed business. “[T]heir general corporate actions are guided or determined” by “separate corporate consciousnesses,” and “[t]heir objectives are” not “common.”… Directly relevant to this case, the teams compete in the market for intellectual property. To a firm making hats, the Saints and the Colts are two potentially competing suppliers of valuable trademarks. When each NFL team licenses its intellectual property, it is not pursuing the “common interests of the whole” league but is instead pursuing interests of each “corporation itself”… Decisions by NFL teams to license their separately owned trademarks collectively and to only one vendor are decisions that “depriv[e] the marketplace of independent centers of decision-making,” and therefore of actual or potential competition.

[The NFL and its teams] argue that they constitute a single entity because without their cooperation, there would be no NFL football….But that does not mean that necessity of cooperation transforms concerted action into independent action; a nut and a bolt can only operate together but an agreement between nut and bolt manufacturers is still subject to §1 analysis. Nor does it mean that once a group of firms agree to produce a joint product, cooperation amongst those firms must be treated as independent conduct. The mere fact that the teams operate jointly in some sense does not mean that they are immune.

And in a footnote, the Court summed up its rejection of the “Zen riddle: Who wins when a football team plays itself?” argument the NFL advanced:

Although two teams are needed to play a football game, not all aspects of elaborate inter-league cooperation are necessary to produce a game. Moreover, even if league-wide agreements are necessary to produce football, it does not follow that concerted activity in marketing intellectual property is necessary to produce football.

The Court of Appeals carved out a zone of antitrust immunity for conduct arguably related to league operations by reasoning that coordinated team trademark sales are necessary to produce “NFL football,” a single NFL brand that competes against other forms of entertainment. But defining the product as “NFL football” puts the cart before the horse: Of course the NFL produces NFL football; but that does not mean that cooperation amongst NFL teams is immune from §1 scrutiny. Members of any cartel could insist that their cooperation is necessary to produce the “cartel product” and compete with other products.

(Emphasis mine.) This is correct: the NFL’s position was really too bizarre to stand (hence the unanimity in rejecting it). But it’s also true that this case is not that significant: it merely overturned the ruling of one outlier lower court, and otherwise it was a narrow opinion. It did not rule out that the NFL could ultimately win the case — indeed, it sent fairly clear signals that the NFL ought to win under the “rule of reason” analysis (which again speaks to why it was so weird that the NFL wanted pure immunity in the first place). All the Court determined was that the NFL could be liable.

So it was a narrow case, likely to soon be forgotten other than as a real but relatively minor humiliation of the NFL’s upper management and legal counsel for asking the Supreme Court to take the case in the first place (a rare thing for a party that wins in a lower court). Lyle Denniston of Scotusblog explains the ho-hum nature of the case:

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Tebow goes in the first round to the Broncos

I like Tim Tebow as a player and I have always thought he will one day start at quarterback in the NFL — the only variables are how long it takes and how long he stays there.

What makes the discussion interesting really gets to the nature of quarterback, as opposed to almost all other positions in sports. Namely, that usually when you see these debates you’ll see them regarding whether to take a guy with great character and questionable talent, or great talent and questionable character. The thing about Tebow is that he not only has great character he actually has a great deal of talent, at least in terms of his big frame, good feet, and overall arm strength. Instead what he needs to work on is technique. Now, all rookies must work on technique, but there’s no question that quarterback is different, and at the end of the day it is throwing technique and the skill to put the ball where it must be that separates quarterbacks from citizens.

In other words, this isn’t the flipside of whether you’re drafting Lawrence Phillips or Randy Moss, two great talents who came in with character issues, or whether Tebow is another Graham Harrell or Danny Wuerffel, two guys with great character and drive but questionable ability. Instead Tebow has some design flaws in what he’s doing — which, it must be noted, have never actually done much to deter him from winning games or setting passing records — and the question is whether, given a year or two on the bench as all but the most highly drafted rookies have, he can improve his technique and marry it with his other great qualities.

So I throw it out to the readers: Don’t just tell me whether you think this was a good pick, tell me whether it’s possible to draft a guy with both talent and great character who needs to be molded into a better quarterback. And also tell me whether, if it is possible, if Denver can be that place for Tebow.

Smart Links 4/16/2010

- Jon Gruden with Tim Tebow: Nothing too dramatic here — and who knows if it will hold up when the lights are on — but Tebow’s throwing motion looks pretty smooth here to me. If nothing else just further evidence that the kid will work to improve anything you tell him is a weakness. Again, we’ll see if he can really fix a motion he’s had since he was at least 16, but he’s clearly worked at it. Footwork looked pretty solid too. (If I was running a team, I’d consider him as a third-to-fourth rounder and get him into camp and make him work on this stuff for the next year.) As a bonus, see here for Gruden tearing Colt McCoy down pretty good. And he’s right — even about the accent stuff — though there’s no reason the NFL playcall should be as long as it is. (McCoy remains a better pro prospect at the moment than Tebow.)

Do football writers know football? To be fair, reporters need to be experts on different things, and being a beat reporter and Xs and Os guru is not really realistic. That said, one reason I write is to try to provide a window into strategy and analysis, and that is important to the average fan is because so much sports commentary is about assigning credit and blame, if you don’t understand what the coaches were trying to do or you don’t understand what the players were being asked to do, it is hard to know who to praise and who to chide. (Also see this post for Orson Swindle.)

Can Charlie Strong succeed at Louisville? I say yes, but (a) it will take a few or two to undo the Kragthorping, and (b) Strong will find that he and offensive coordinator Mike Sanford (former Utah OC with Meyer) won’t be able to just run the Florida O at Louisville; it’ll have to evolve.

– The secret of the Airraid: “distilled offense.” (H/t Brophy.) Lede: “Talk to a few players and you’ll get the impression that Louisiana Tech’s old playbook was the college football equivalent of War and Peace. The new playbook? It’s more like a pamphlet. That’s if you could even call it a playbook. The players don’t necessarily refer to what they’re running as plays, but ‘concepts.’ Change a few details and a single concept grows into an offensive attack that looks overwhelming to opposing defenses, but could be executed by the Bulldogs with their eyes closed.”

The “greatest play in football”?

Why yes, the NCAA is quite interested in Reggie Bush’s testimony.

Tips on running the option.

– The West Virginia Mountaineers will honor the 29 coal miners killed in the Upper Big Branch explosion by wearing helmet decals with a white circle with 29 in the middle. (H/t WizOfOdds.)

Defending the counter-trey. (You can find a quick primer on the counter trey here.)

Why blitz?

Did Ohio State steal Oregon’s signals in the Rose Bowl?

Doc Sat on Brian Kelly.

Sorkin vs. Krugman

– And as an addendum, I have a lengthy piece on the NFL for the NY Times online on Monday; I will link to it when it is up. I also have some other topics I’d like to finish this weekend and schedule this week. Once I do I will post a schedule of what to expect on the blog this week.

Smart Notes 3/30/2010

West Virginia coach Bill Stewart singing is, well, a, um, sight to behold (h/t EDSBS):

- Nick Saban to use Julio Jones some at safety. Seriously. But I don’t think it’s that big of a deal. As high school coaches have long recognized: your best players have to play.

- How cold are Big Ten football games? The Daily Gopher concludes that “[t]he words “freezing” and “frozen” were completely inappropriate for describing Big Ten football in 2009.”

cold

But — what about a comparison with other conferences? And, as a Big Ten alumnus myself, I can say I’ve been to some very cold football games. Finally, I think one thing that skews the analysis it that in the midwest it simply gets colder sooner than, say, the southeast or west coast. As the chart shows, on October 10th, hardly the dead of winter, there were two games in the low 30s and three more in the 40s. If it’s 65-70 degrees in Georgia or Miami, it’s still fair to say that it’s cold in Big Ten country.

- Speaking of Big Ten country, will Paul Petrino be able to turn around the Illini offense? Last year I speculated about whether former Illinois offensive coordinator Mike Schulz, newly hired from TCU, would be able to improve upon or expand on Mike Locksley’s success (I use that term generously) with Juice Williams. It turns out the answer was a resounding no (while TCU seemed to hardly miss Schulz, who was banished to Middle Tennessee State). The Zooker has kept his job, and managed to score what I thought was a pretty good pick as offensive coordinator: Bobby Petrino’s brother, Paul Petrino. This move made more sense to me for Zook than it did Petrino, as another dismal season and Paul’s hopes of joining his brother as a head coach of a BCS school might be seriously derailed. (Though I’d wager there’s always a position open on Bobby’s staff, just as there was for former mentor and Michigan State cast off John L. Smith.)

Petrino brings to Illinois a pro-style offense, and one that actually deserves the name because of the heavy resemblance to the pros and multiple nature. And if outgoing coordinator Schulz’s modus operandi was to “spread the wealth,” the brothers Petrino have summed up their offense as “FTS — Feed the Studs,” something that probably would have worked better with Arrelious Benn around. I have to think Illinois will improve on offense simply because Paul will bring more coherence, but with so many stalwart players gone and the state of the Zooker’s program being so perilous, it’s hard to say.

But who knows, maybe in the Janus-like Big Ten, where teams are either spread-happy or old school grinders, a pro-style, multiple attack can work wonders.

- Socialized football? Not that football. From The Guardian: The British “is to unveil radical proposals that would give football fans first option to buy their clubs when they were put up for sale and require clubs to hand over a stake of up to 25% to supporters’ groups. The ideas, due to be included in the Labour manifesto with a promise of action in the first year of a new government, are designed to give fans a far greater say in how their football clubs are run and overhaul the way the game is governed.”

Brian Cook takes neither side in the Tebow-Fowler dust-up, and thus comes out ahead.

Josh Cribbs is very romantic. And by that I mean, well, not really very romantic.

- David Warsh gets meta about bloggers and journalists. It’s a good piece, though I fear it’s that time of the year when the offseason really hits and everyone wants to write about writing and blog about blogging.

- Go Kentucky: The entire U.S. population in 1790, a bit under 4 million, is less than the 2008 population of Kentucky.

Updated Featured Articles/Top past articles

I have updated the “Featured Articles” section of the site (located in the upper right hand corner), for two reasons: (1) it’s the offseason, and (2) I’d like to think many of my articles, although often written about specific teams and times, have an evergreen quality about them that makes them useful after their dates of publication.

Hopefully others agree, so do check it out. I’ve also rearranged some of the presentation, so let me know if there’s a better way I could do it, as the list of articles is beginning to grow long.

Smart Football Super Bowl Preview: Manning vs. Brees

Give the media two weeks before the Super Bowl and they will find every weird angle to take to fill the void: Who has the best food (uh, not Indianapolis); what U.S. Presidents are like what Super Bowl (In a matchup between Super Bowl III, with Broadway Joe, against Thomas Jefferson, the third President, Jefferson won because he “wanted it more.”); and opinion from every blustery ex-player and coach that can be found. But now that the game is here, there’s one aspect that absolutely is at the top of my list: The game features arguably the two best quarterbacks in the league who run undoubtedly the best — and most interesting offenses.

Colts

The show Peyton runs is amazing not only because of its effectiveness, but also because of its simplicity. Indeed, in all but specialty situations they have basically two personnel groups — two wide receivers, two tight-ends, and one running back and three wide receivers, one tight-end and one running back — and they have run the same few plays for the last decade. They rarely shift and instead rely on Peyton to get them to the line and find the appropriate play.

The theory for all this is simple. Although a defense has some options and disguise some things, there are only so many things a defense can do: they might be able to disguise press or loose coverage, or rotate the secondary or send an unexpected blitzer, but they can’t move a cornerback from one side of the field to the other after the snap, and there might be blitzers but there are only so many candidates. As a result Peyton gets his team to the line and surveys the defense. Offensive coordinator Tom Moore typically sends in three plays: two passes and a run or two runs and a pass, and Peyton makes his choice among those three options. Typically, Manning gets the ball snapped with under six seconds left on the play clock; he both wants to take his time surveying the defense and limit late shifts before the snap.

And Manning’s menu of plays are both simple and have been constant for a decade. For runs, he basically has three choices: outside zone (the most common), inside zone, and draw (there are a few others mixed in as well). Believe it or not, the run game comes basically verbatim from what the University of Colorado did in the early 1990s (except for the option runs, of course) — football is not as complicated as people think.

For the passing game, on early downs they run a lot of play-action, where the goal is either to beat the defense deep (through post routes and go routes) or to hit a deep void with a deep crossing route or corner. (The deep crossing route concept is described here.) Another go-to concept is three-verticals, though Manning likes to look for the inside slight off play-action as a quick throw right behind the linebackers. (Video below courtesy of Brophy.)

Play-action from under center:

Play-action from shotgun:

On passing downs and when Peyton is in the shotgun, you’ll see most of the traditional routes that other teams run, but far and away his favorite is the “levels” play. It’s almost idiotically simple — the inside receiver runs a ten-yard in route (often Dallas Clark) while the outside receiver (Reggie Wayne, most typically) runs a five yard in-route. Typically the linebacker runs with the slot and the quick five yarder is open, but once he’s hit that a few times Manning will hit the inside square-in for an easy first down.

levels

I’ve described the “levels” concept (with video) previously here. Below is another diagram showing what typically happens with the coverage:

ds
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Recap: Supreme Court hears argument in American Needle v. NFL

The U.S. Supreme Court today heard argument in the American Needle v. NFL case, which proposed the question whether the NFL is a “single-entity” for antitrust purposes and thus immune to antitrust liability. (Read more about it here.) Or does it present that question? The excellent Lyle Denniston attended today’s oral argument (and, unlike most sports outlets, understands the issue), and has his take up on scotusblog.com:

If the National Football League, and other pro sports leagues, want to combine their efforts in commercial activity, they probably are going to have to justify that in federal court, in perhaps prolonged trials focusing on whether any such action is really for the good of the game, or is aimed only at making more money. Just one trip to the Supreme Court to avoid that, it appears, will not be enough. That prospect loomed on Wednesday as the Justices weighed the NFL’s broad claim to antitrust immunity for joint operations, a claim that the other pro sports leagues similarly make.

The Court heard 70 minutes of oral argument in American Needle v. NFL (08-661), a case that supposedly was to focus on a single, simple question: is the NFL, along with its 32 teams, a “single entity” and therefore immune to the Sherman Antitrust Act when they act jointly in a business effort? But Justice after Justice insisted strenuously that that is not really the issue, and that the case probably needs to go back to the lower courts for a potentially penetrating inquiry into what kinds of commerce are closely enough related to pro football that they escape antitrust liability.

In particular, the Justices were unconvinced of the NFL’s sweeping arguments:

The specific kind of activity under legal attack in the case is the joint effort of the NFL and its teams to sell hats, jerseys, and other fan gear displaying the teams’ trademarked logos. While the NFL insists that that is crucial to promoting the popularity of the games on the field, it did not appear that any Justice was firmly convinced — right now — of that. From the bench, for example, came the question of whether the NFL could escape antitrust liability if it decided, jointly, to build houses. While the NFL’s lawyer said that would not promote the game, Chief Justice John G. Roberts, Jr., shot back that, maybe, selling trademarked goods was closer to selling houses than it was to promoting football games. And that, it seems, is precisely the issue that would dominate a subsequent trial on the legality of joint selling of fan goods.

That doesn’t mean, however, American Needle would win the case outright — indeed, they probably have a loser. But the sweeping legal ruling that the NFL won at the lower courts preempted further inquiry into the specific facts. A remand to the lower courts would allow the NFL to win the case on narrower grounds that would not have much application in other, future cases beyond this one. Moreover, such a ruling would absolve the Justices of the danger of deciding a case about the NFL that applies to a wide swath of joint business ventures throughout the country. (The NFL’s argument was founded largely on its exceptionalism: We are the NFL and get this treatment, though no other business joint ventures should. That kind of argument is more persuasive on Around the Horn than it is in the Supreme Court building.) As Denniston added:

The content of the entire argument strongly suggested that there was not now a majority either to uphold broad immunity for pro sports leagues’ joint commercial enterprises, or to make everything the league and its teams do jointly open to antitrust challenge. What most of the Justices seemed to be tempted by was a middle-ground approach, with each specific joint effort tested under a “rule of reason” analysis to determine whether it was essentially to the success of the sporting enterprise. Even that, though, would amount to a significant tactical loss for pro sports.

I will post the transcript when it is up.

Update: The Associated Press has an article up titled “Court seems sceptical of NFL antitrust protection.”

Update: The transcript of the oral argument is available here.

Update again: It’s unclear what the Supreme Court will actually do (likely hold that these decisions of the NFL are subject to a “rule of reason” analysis, which means that the NFL could win below but they aren’t automatically immune). But this exchange at the end of the argument explains why I think it is highly unlikely that the NFL will succeed (after the jump; Levy is the NFL’s lawyer):

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Texas vs. ‘Bama: Smart Football in review

Apologies for not posting more about this game (and for lack of posting in general — factors beyond my control), but tonight’s matchup involves two teams that I’ve written much about.

On the one side you have Nick Saban’s Alabama squad. On offense, the run game that propelled Mark Ingram to the Heisman trophy involves basically five or six run plays: inside zone, outside zone, power, counter, and sometimes a draw and sometimes a toss play. But it’s the defense that makes ‘Bama go. Of course, I’ve previously written about Saban and his strategies and philosophy:

Saban has been coaching defense – and coaching it quite well – for decades. But there is no question that the defining period of his coaching career was 1991-1994, when he was Bill Belichick’s defensive coordinator with the Cleveland Browns. Just knowing that tells you a great deal about Saban’s defense: he (primarily) uses the 3-4; he’s very aggressive, especially on passing downs; he wants to stop the run on first and second down; he’s not afraid to mix up schemes, coverages, blitzes, and looks of all kinds; and, most importantly, he is intense and attentive to detail, which is the hallmark of any great defensive coach.

…One thing that distinguishes Saban is that he uses pattern-reading in almost all of his coverages, including the traditional Cover 3, whereas many coaches only let certain defenders pattern read or only use it with certain defenses like Cover 4. Sounds a lot like Belichick, no?**

On the other side is Texas and their great quarterback, Colt McCoy. McCoy, who will deservedly be considered one of the great quarterbacks of all time, did not have an overly impressive year. He had some good games but few of those came against top flight opponents. He’ll have to carry the load for Texas, which is something I think a now relatively pressure free McCoy can do. I have previously written about McCoy’s pass game too:

Colt McCoy, University of Texas’s record-setting triggerman (and Heisman hopeful), is known for one thing above all else: his astounding accuracy. . . .

Texas’s favorite route concept, by far, is something known as the “two-man” game, known in some coaching circles as the “stick concept.” Texas runs their a little different, but they also use it a great deal; it’s their number one concept by far. . . .

This concept has been Texas’s go-to route since Mack Brown and Greg Davis arrived. Everyone from Major Applewhite, to Chris Simms, to Vince Young and now McCoy have been asked to master the play.

The concept itself is simple enough…. It can be run from really any formation — any set with at least two receivers to one side — but Texas favors it from sets with at least three receivers, as the diagram below shows. This way the outside receiver can run deep. He serves both as an option on the fade route against single-coverage, but primarily he draws the defense away. And, from a formation and personnel standpoint, he typically draws the other team’s cornerback, allowing the two inside receivers to work against inferior pass defenders — the linebackers, safeties, and nickel backs.

The “two-man” concept itself has one receiver run immediately to the flat, while another bursts upfield to a depth of about eight yards — slightly deeper than most other teams run the route. He can then turn inside or outside depending on where the coverage is pressuring him. He wants to find the crease in the zone and to find the window that gets created as the flat defender widens for the other receiver on the “shoot” route to the flat. Against man coverage, he can break back to the sideline….

…[I]n watching Colt, I see a lot of parrallels with another guy known for his accuracy: Drew Brees. Both have underrated athleticism, both are smart, and both can stick the ball on the receiver, exactly where they want to. That is something that cannot be taught, and it should continue to serve Colt well.

It will be fascinating to see who comes out on top tonight.

**FN: During the Big 12 title game Jesse Palmer kept saying that Nebraska was “pattern reading” Texas’s routes and therefore defeating them. Some bloggers picked up the trail, but although true that Bo Pellini uses some pattern reading, this was not the reason they lost. They lost because Nebraska could blow up pass and run plays with a couple of linemen (Suh!) and swarm everyone else. Texas’s pass game understands pattern reading and is as well prepared for it as you can reasonably be. There are criticisms of Greg Davis but I’m not sure this is one of them.

More on whether the NFL is a “single-entity” for anti-trust purposes

This question — which is trickier than many give it credit for — is the subject of an upcoming Supreme Court case, American Needle v. NFL. I previously discussed it here, and now Gabriel Feldman of Tulane Law School is chiming in:

[American Needle v. NFL] involves an unremarkable set of facts. For many years, all of the NFL teams jointly licensed their trademarks and logos to a variety of apparel manufacturers. American Needle was one of these licensees, and had sold NFL-logoed hats since the late 1950’s. After retail sales of sports-related merchandise struggled in the 1990’s, the NFL teams decided to grant an exclusive license to Reebok to manufacture all NFL-licensed apparel, thus eliminating American Needle’s ability to continue selling NFL hats. In response, American Needle brought an antitrust lawsuit against the NFL and its teams, claiming that the exclusive license with Reebok eliminated competition in the market for NFL apparel and constituted an illegal “contract, combination…or conspiracy” in violation of the Sherman Antitrust Act. In American Needle’s brief to the Supreme Court, they note that “a Reebok vice-president hailed the elimination of price competition as ‘a godsend from a profitability standpoint,’ explaining that ‘[b]asic fitted caps that were selling for $19.99 a few years ago because of the price pressures are now selling for $30.'”

…[T]his case is about a lot more than whether the NFL’s exclusive license violates Section 1 of the Sherman Act. Instead, at issue here is whether the NFL is even capable of violating Section 1. Section 1 of the Sherman Act only applies to agreements, and (as Rob Bass and DJ EZ Rock might have put it) it takes two to make an agreement. So, for example, if all of the manufacturers of wool hats in the world got together to make a series of agreements, those agreements would be scrutinized under Section 1 to ensure they were not anticompetitive (e.g., to ensure that the manufacturers were not agreeing to fix prices). The question is, what happens when all of the NFL teams in the world get together and make a series of agreements? Should those agreements be scrutinized under Section 1?

In American Needle, the NFL argued that they are a single entity, and thus incapable of violating Section 1 (because a single entity cannot reach an agreement with itself). The NFL concedes that they do not look like a traditional single entity — that is, a single firm with a single owner. Instead, the NFL argues that they are a single entity because the NFL is a product that can only be created by cooperation among its teams, and none of its teams have any economic value without the league. The NFL’s argument is that the product created by the NFL teams is an interconnected series of games (the regular season) that leads to a playoffs, that eventually produces a Super Bowl champion, and that no individual team can produce this product on its own. Rather, the teams must make a series of agreements with each other–where to play, when to play, under what rules, etc. The NFL believes that this interdependence and need for cooperation renders the league a single entity, and that all of the agreements made by the league and its teams –ranging from scheduling to free agency restrictions to salary cap rules to franchise relocation restrictions –should thus not be subject to scrutiny under Section 1.

This is not a new argument. Sports leagues have been making this same argument for over thirty years, and virtually every court to address the issue has rejected the argument for over thirty years, often finding that agreements made by teams have violated Section 1. . . . I want to quickly touch on three basic points that have either been overlooked or misconstrued by the press covering this story.
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Mike Leach fired “for cause”

Mike_Leach_surrounded_by_microphonesMike Leach, the quirky head coach of Texas Tech, has been fired following a wild few days of accusations, suspension, and a lawsuit over his alleged mistreatment of Craig James’s son, Adam James. Others closer to the program will have to chime in, but my sense is that Adam James was a problem player (see these emails on CBS’s website from former players and various coaches), and that as a result a frustrated Leach set out to embarrass Adam James (who showed up to practice wearing sunglasses) by telling him to stand in the dark during practice rather than skip out completely. It clearly was an error in judgment on Leach’s part: Players may act up, but as long as you’re the head coach, you have to take the higher road. Although I honestly doubt whether this would have happened were it not for the volatile mixture of Leach, Adam and his father Craig James, and the acrimonious state of Leach’s and the athletic director’s relationship, Leach opened the door by making an example of the player.

So that’s how we got to the point where Leach is no longer the head coach. The lingering question is whether Tech had grounds to fire him “for cause,” as is being reported. If Tech fired him without cause, it would be required to pay him $1.6 million ($400,000 for the four remaining years on his contract) as a lump sum. (Leach’s camp claims that he will be entitled to the $800k owed to him if he were still the coach on December 31, citing the language in the contract about 10 days. I’m not so sure: that language allows the coach to “cure” violations that can be cured within 10 days, before firing him. Instead, he has already been fired. But that’s a negotiating point, which I’ll address in a moment.)

Leach’s contract is interesting on a number of levels — it is heavily incentive oriented, and has a variety of non-traditional terms — but it works like most college head coaching contracts in that there are separate outcomes if the coach is fired “for cause” or “without cause.”

“Cause” is defined as “Coach’s violation of any material provision of this Agreement (with specific reference to Article IV.” “Article IV” lays out most of the duties and restrictions put on the coach, and is worded very broadly and vaguely. It directs Leach to “conduct himself at all times in a manner consistent with his position as an instructor of students” (the Mike Price provision), to “follow all applicable University policies and procedures,” and to “devote his entire time, labor, effort and attention, in good faith, to conduct and perform the duties commensurate with the position of Head Football Coach.”

I don’t think the University will focus on those. Instead I anticipate them to focus on this clause: “Coach shall assure the fair and responsible treatment of student-athletes in relation to their health, welfare and discipline.” Did he not give Adam James fair treatment? That’s unclear. Adam James claimed to suffer from a concussion, and, contrary to Craig James’s assertions, there is nothing detrimental to a player’s health about being isolated in a dark equipment shed or media room. Yet it does sound something akin to punishing an injured player, and I expect the University to take the position that Leach was trying to deter injured players from coming forward or not participating. That might have some weight.

The other side of the coin is obviously that Leach seemed not to really believe Adam James; that he was reputed to be lazy; and that Leach’s policy was that if you are injured you must still participate in practice and cannot simply go back to your dorm room. Interestingly (or tellingly, for both sides) I’ve yet to see an official report from a trainer or anyone besides the James family that said James was not cleared to play, and I’ve heard mixed things coming from Texas Tech — both that he was cleared to play and Leach was just playing along, or that he wasn’t and so Leach didn’t make him practice but did make him stand in the shed and media room.

The contract also states that violations of these provisions must be either “willful or through negligence,” which means two things: Leach did not have to intentionally try to harm or damage James, but they must show that his conduct was actually detrimental to him in some way. I take it that their argument will be that Leach, even if he didn’t think what he was doing was wrong, sent the wrong message to James and the rest of the team that injuries and concussions won’t be taken seriously and that they should rush back to practice. Leach will dispute that and say he did nothing wrong to James at all, and in any event under the circumstances (James’s history and reputation especially), he acted reasonably.

In the end, you assert that you’re firing someone “for cause” because why wouldn’t you? If you say without cause at the outset, you automatically have to pay. (Note too that it sounds like the University tried to get Leach to sign an “apology” letter that quoted from the contract, which would have been used against him as an admission as having violated it and thus giving them permission to fire him for cause.) But that doesn’t mean you always fight it out to the end. My guess is that the University will pay Leach something but it will be less than the $1.6 million they initially said they owed him. This is not a Mark Mangino case where a lot of people came out in favor of firing the coach, nor is it a situation where the coach did something disreputable in his personal life or committed NCAA infractions. If Tech wants Leach gone — and many in the athletic department clearly do — they have a right to, but I’d be surprised if Leach got nothing. He’ll just get a lot less than he was set to make a week ago.