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:

As the Supreme Court moved in to referee a major dispute over pro sports leagues and their plea for antitrust immunity, the labor unions that represent the players in those leagues warned the Justices not to allow team owners to send a “Trojan horse” into that arena. Whether or not that was a valid fear, the Court with Monday’s decision clearly did not give team owners a free pass to carry on a wide range of joint activity to promote their sport with American consumers. But neither did the Court add much of anything new to antitrust law in general.

[...]How much further beyond trademark licensing this exemption might have gone, no one could be quite sure. The players’ unions, in their expressed fear of a “Trojan horse,” speculated that the leagues would next argue that “promoting” the game also meant a joint, anti-competitive deal on players’ salaries and selection. And the coaches, in turn, worried about an anti-competitive approach to hiring and paying the on-the-field managers. And so on.

The Supreme Court, ruling unanimously in American Needle v. NFL (08-661), put at least a temporary end to the speculation — at least to this extent: a claim that joint action is the only way to promote the “brand” of “NFL football” was simply but firmly rejected…

If promoting pro football with the consuming public is the economic goal, “there would be nothing to prevent each of the teams from making its own market decisions relating to purchases of apparel and headwear, to the sale of such items, and to the granting of licenses to use its trademarks,” Stevens said. “Competitors,” he added, quoting colleague Justice Sonia Sotomayor when she was a judge on the Second Circuit Court, ” ‘cannot simply get around’ antitrust liability by acting ‘through a third-party intermediary or ‘joint venture.’ ”

The concluding part of the opinion represented an attempt to narrow the scope of the ruling, suggesting that the NFL and other pro leagues may well be entitled to quite broad antitrust immunity for such joint efforts as producing and scheduling games, taking steps to maintain “a competitive balance” between teams, and acting to ensure that the sport makes money. The actual legality of any joint practice, the Court made clear, was not being decided in this case — including the specific tactic of joint marketing of the right to use team trademarks. Each “collective decision” a league chooses to make, the opinion concluded, is to be judged by an antitrust “rule of reason” — a flexible standard that is keyed to particular facts and circumstances.

The trademark licensing case now returns to the Seventh Circuit, and very likely back to District Court, for a trial on whether that scheme is, in fact, an “unreasonable restraint of trade” in the way that it actually operates. The outcome was not foreordained by Monday’s ruling.

While the American Needle case always had the potential to produce a significant new statement from the Court on the Sherman Act’s application to commercial “joint ventures” in general, in the end it did not do so. Much of Justice Stevens’ opinion is simply a reiteration of past rulings on such collective activity, and, indeed, did not mark any deviation from the main precedent on the subject, the Court’s 1984 decision in Copperweld Corp. v. Independence Tube Corp. Stevens was an entirely faithful follower of that decision — even though he had dissented when it was issued.

2. Haiti. EDSBS collects links on how and where to donate for Haiti. Please do.

3. American Needle round-up. In addition to my post from yesterday, there has been some other great work on yesterday’s oral arguments. The consensus with all seems to be: The NFL won’t get what it wants, though it may ultimately win the case on narrower grounds. From the NFL’s perspective, it was kind of like going deep on second and short: could have been a big play, but as it stands they’ll probably get the first down. If you read one thing, I highly recommend Josh Levin and Dahlia Lithwick’s piece on Slate, where they note how little the Justices seem to know (or care) about football. Both Justices Breyer and Sotomayor disclaim knowledge of football, and Breyer keeps turning the hypotheticals into ones about baseball. Justice Alito, who is a huge baseball fan, doesn’t seem too interested either. (The Court’s biggest football fan, Justice Thomas, is more of a college football fan — his favorite team is the Nebraska Cornhuskers — and in any event he rarely if ever asks questions at oral argument.) Other good takes on the case from: Adam Liptak (NY Times), David Savage (L.A. Times), Jess Bravin (WSJ), and Ashby Jones (WSJ Law Blog).

4. “Depends on what the meaning of ‘is,’ is.” Check the 1:30 mark of Lane Kiffin’s press conference.

5. Speaking of books, I’m currently reading Hilary Martel’s Wolf Hall: A Novel (Man Booker Prize), a sort of reiminaging of the court of Henry VIII. I recommend it.

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):

MR. LEVY: But, Your Honor, I would agree with almost everything that you said, but we are not dealing here with independent sources of economic power. These clubs are not independent. None could produce their product on their own.

JUSTICE SOTOMAYOR: But they own the trademarks, so they could.

MR. LEVY: They do, but the trademarks don’t have any value. They don’t have any purpose independent of the game. The trademarks are invented to identify the clubs on the field. They are — they are promoted and distributed to — to encourage loyalty among fans of the clubs. The — the trademarks are simply a tool that the clubs use . . . .

JUSTICE SCALIA: Well, you — you say that the — that the trademarks have no value apart from the — from the game. I guess you could say the same thing for each individual franchise of each of the 32 clubs. They are worthless, if NFL Football disappears. So does that mean they — that they — they can agree to fix the price at which their — their — their franchises will be sold, by concerted agreement, because after all, they are worthless apart from the NFL?

MR. LEVY: Well, I — I certainly agree with your — your premise, Your Honor, that they are worthless apart from — except there is some residual value, I don’t — I don’t –

JUSTICE SCALIA: Yeah.

MR. LEVY: I don’t dispute — dispute that. Could they agree on prices for their franchises to be sold? Yes, I assume they could agree because they are not independent sources of economic power.

JUSTICE SCALIA: Oh, okay, you –

JUSTICE BREYER: So we don’t even ask the question whether under the rule of reason such a thing is reasonable or justified?

MR. LEVY: Your Honor –

JUSTICE SCALIA: I thought I was reducing it to the absurd.

(Laughter. )

In other words, the NFL argues that basically all its decisions are immune from any antitrust scrutiny, and the reason for that is that everything the NFL does is worthless except as a part of the whole — including the value of the trademarks (as if the Dallas Cowboys logo at this point has no value of its own) and the very franchises themselves. Indeed, Levy says the trademarks have no value of their own, but earlier in the argument the Justices discussed how its disingenuous to say that the only reason the NFL says hats is to “promote the game,” rather than make money selling hats. (If that was the case, they would give them away, or at least not sell them for as high of prices as they do.)

But the franchise point was even more striking. Justice Scalia said he was simply trying to come up with an “absurd” hypothetical to test the contours of the NFL’s argument — it had to have some limit — but instead, as suspected, their argument was limitless. And keep in mind too that this case was about selling hats, not the business of putting on football games or even broadcasting them. You never know, but I think it’s a safe bet that the Seventh Circuit will be reversed, and the NFL will lose on their sweeping claim. Again, however, this doesn’t mean they have tons of liability, just that they can’t deflect anticompetitive practices by saying they are a single entity — they will have to make some effort to show their practices aren’t anticompetitive.

[I]n American Needle v. National Football League, the justices will decide a legal question that has long hung over pro sports. Are their leagues a “single entity” and, therefore, immune from antitrust laws, or can these independently owned teams be sued for conspiring to restrain trade? A suburban Chicago maker of stocking hats and caps, American Needle sued in 2004 after it was shut out from using NFL logos. The league had made an exclusive deal with Reebok. The suit was thrown out by the 7th Circuit, but the justices agreed to decide whether pro leagues are shielded from antitrust charges.

Upon reading this you probably have an impulsive answer right away. Either, “Hey, of course the NFL is just one entity!” Or “Hey, of course there are thirty-two teams!” But you have to understand the weird nature of sports leagues as a branch of joint ventures, and the stakes — that a ruling of them as a joint entity makes them immune from anti-trust action, even with respect to other possible competitors.

Without getting too complicated, baseball has long enjoyed a unique place in anti-trust law — it doesn’t apply to it. Other leagues have come close, but haven’t been so lucky. There’s really no reason for these leagues to have such unique status, but baseball does and football wants it, anyway it can get it. The best they can muster from a policy perspective is that “hey, we’re the NFL, we’re important right!” And, within the cloistered halls of the NFL (not to mention ESPN, and the like) the world begins and ends insofar as it affects The Game, be it terrorism or the stockmarket or whatever else.

But legal battles in real courts deal with larger themes. Specifically, the government, in the form of the Solicitor General’s office, was asked to chime in on this case. This put them in an awkward position because (a) American Needle has a very weak case, even apart from this “single-entity theory,” and (b) the government really only cares about this case insofar as it affects other joint-ventures beyond sports leagues. As Morrison & Foerster partner Deanne Maynard noted at a recent Supreme Court panel, if the Court rules in favor of the NFL, this case could have wide-ranging implications beyond just sports organizations.

“I think it could affect any kind of joint business venture,” she said. “It could mean that in doing these (joint) activities, the companies are a single entity.”

Moreover, here’s some excellent commentary and background from Lyle Denniston of SCOTUSBlog (written while the Justices were still considering whether to hear the case):

The National Football League, the National Basketball Association, and the National Hockey League — all the big-time sports combines except baseball and soccer — have told the Court they want it to hear Amercian Needle’s case, even though it is targeted at one of them, the NFL, with a potential impact on all of them. . . .

The case raises a core question of antitrust law: what kind of joint ventures, perhaps including pro sports leagues, are immune to the Sherman Act because they may qualify as “single entities”? To American Needle, it is all about whether it is going to be allowed to compete with Reebok International, Ltd.., to sell league-sanctioned sports apparel, like hats.

The NFL used to license American Needle to sell hats that bore the logos, the names or other insignia of pro football teams. That was when NFL Properties was allowing various companies the right to produce goods bearing their trademarked imagery. It was all part of an effort to build up the public exposure of pro football as an event on which the public would spend its entertainment dollars.

But, in 2000, the NFL opted to solicit bids for an exclusive license to produce caps and other headwear. Reebok won the bidding, and in 2001 got an exclusive ten-year license. American Needle’s license was not renewed. So it sued the NFL, all of its teams, NFL Properties, and Reebok.

American Needle’s case was thrown out by lower courts. Most of the discussion there focused on the Sherman Act’s Section 1. It outlaws “every contract, combination in the form of trust or otherwise, or conspiracy” that seeks to restraint commercial activity among the states. If an entity sued is considered a single operation, though, there is no one to “combine” or “conspire” with but itself, so the Sherman Act does not apply, as a general rule.

The Seventh Circuit Court, in rejecting American Needle’s Sherman Act claims last August, focused upon a premise that clearly led to its conclusion: that is, the NFL and its 32 teams are just one entity, at least for purposes of licensing their protected images for sale on consumer goods for fans.

“Certainly,” the Circuit Court said, “the NFL teams can function only as one source of economic power when collectively producing NFL football. Asserting that a single football team could produce a football game is less of a legal argument than it is a Zen riddle. Who wins when a football team plays itself?”

Selling identifying goods to build itself up in the entertainment market, the Circuit Court found, is part of selling its single product: pro football games. It concluded: “The NFL teams are best described as a single source of economic power when promoting NFL football through licensing the teams’ intellectual property, and we thus cannot say that the District Court was wrong to so conclude.”

The case, from a sports perspective of law, may turn on what the Supreme Court meant in the 1957 decision in Radovitch v. NFL. There, as American Needle notes in its petition to the Supreme Court, the Justices ruled that the NFL is subject to antitrust liability for violations of Sherman Act Section 1. The Court declined to extend to pro football and other sports leagues the antitrust immunity that major league baseball alone has had since an idiosyncratic 1922 Supreme Court ruling.

But, for businesses beyond big-time sports, American Needle’s case may be seen as more important for what it might lead the Court to say about the present meaning of a 1984 ruling, in Copperweld Corp. v. Independence Tube Corp. There, the Court ruled that a parent corporation and its wholly-owned subsidiary can be treated as a single entity for antitrust purposes.

Lower courts have extended this approach to other arrangements, including affiliated companies involved in joint ventures. American Needle argued that it is time for the Supreme Court to get involved again, at least as to pro sports. It argues that the Seventh Circuit ruling not only conflicts with the Radovitch decision, but with rulings in six other federal Circuit Courts.

“The Court has stated, on more than one occasion,” American Needle asserted, “that application of the Sherman Act to professional sports teams is wholly consistent with Congressional inent.” The Seventh Circuit, it added, “stands alone” in concluding otherwise. . . .

So no one really knows what might happen, but some people have different theories. Obviously the place to start is to read the Seventh Circuit’s opinion. And then a couple of the filings are interesting (the full list can be found here). An interesting amicus (or “friend of the court”) brief is from a group of sports economists recommending that the Supreme Court hold that the NFL is not a single-entity: “We believe that a ruling that any sports league is a single entity in which teams cannot [by definition] engage in anticompetitive collaboration in ‘core venture functions’ is inconsistent with the consensus among economists about the efficient scope of league authority and the nature of competition in professional sports.”

The most wortwhile brief to read, and the one the Justices are likely to give the most weight to, is the one from the Solicitor General urging that the Justices reverse the Seventh Circuit and hold that the NFL is not a “single-entity” and therefore is not exempt from antitrust scrutiny. The SG’s brief though takes a slightly middle path, however, arguing that the proper way to look at this case is not the black-and-white way the parties have looked at it:

The NFL is a legitimate joint venture of 32 separately owned and operated teams that compete vigorously in many respects but, out of reasonable necessity to create and sustain the league, cooperate in others. Although lower courts generally have applied rule-ofreason analysis when challenges to the conduct of sports leagues have been brought under Section 1 of the Sherman Act, this Court has not definitively addressed whether or when such a hybrid organization may be considered a “single entity” for purposes of Section 1.

This Court’s decisions make clear that concerted action occurs when separately owned teams form a league,
or cede to the league authority over an aspect of their operations. Similarly, there is concerted action when teams decide collectively to constrain “the way in which they will compete with one another” in the marketplace. NCAA v. Board of Regents. Because such agreements restrict actual or potential competition among the teams, they are subject to Section 1, though they may ultimately be found procompetitive and lawful.

The reasoning of Copperweld Corp. v. Independence Tube Corp., and Texaco Inc. v. Dagher, however, supports a more nuanced analysis to the extent that teams (or other joint venturers) have effectively merged an aspect of their operations, completely eliminating competition among themselves in that respect. In Copperweld, the Court held that, because a parent and its subsidiary are not actual or potential competitors, collaboration between the two does not “raise the antitrust dangers that [Section] 1 was designed to police.” Dagher illustrates that similar considerations are relevant when competitors have entered into a joint venture.

The functional analysis of the enterprises in Copperweld and Dagher can be extended to the NFL, which is
a legitimate joint venture among competitors. Single entity treatment for the teams and the league is appropriate if, but only if, two conditions are satisfied. First, the teams and the league must have effectively merged the relevant aspect of their operations, thereby eliminating actual and potential competition among the teams and between the teams and the league in that operational sphere. Second, the challenged restraint must not significantly affect actual or potential competition among the teams or between the teams and the league outside their merged operations. Only a limited range of conduct would qualify for single-entity treatment under this standard, since most forms of collaboration are not equivalent to an effective merger, and many restraints have competitive effects on more than one aspect of operations.

Petitioner contends that the conduct of NFL teams is always subject to Section 1 because the teams are separately owned and controlled. But courts and commentators have recognized that neither the single-entity nor the conspiracy characterization is apt for all actions of a hybrid organization like the NFL. While Section 1 scrutiny is appropriate for restraints that affect actual or potential competition among the teams (or between the teams and the league), it should not be applied to putative horizontal agreements among the participants in a hybrid organization when such competitive concerns are absent.

The NFL respondents’ request for a broad judicially created exemption from Section 1 also should be rejected. That proposal extends far beyond the rationale of Copperweld and Dagher, and it oversimplifies the competitive landscape the teams inhabit. Such blanket proposals are properly addressed only to Congress. Moreover, the limited record makes this case an unsuitable vehicle for considering such a wide-ranging limitation on the application of Section 1. The decisions below were specific to the NFL respondents’ licensing of marks and logos, and the record lacks key evidence about other aspects of the league’s operations. More generally, a broad-brush approach to the single-entity concept could affect antitrust enforcement far beyond the sports-league context. The judgment below should be vacated, and the case remanded. Although the court of appeals was correct that each “facet” of the league’s operation must be considered separately, its analysis of the particular facet at issue here—licensing of marks and logos—was flawed and incomplete. On remand, the lower courts should clarify the scope of petitioner’s Section 1 claim, perhaps allow appropriate additional discovery, and then apply the principles from this Court’s decision.

On the academic side, Gabe Feldman of Tulane Law School has an interesting article called “The Puzzling Persistence of the Single Entity Argument for Sports Leagues: American Needle and the Supreme Court’s Opportunity to Reject a Flawed Defense.” And, finally, Michael McCann of Vermont Law School has written a paper called “American Needle v. NFL: An Opportunity to Reshape Sports Law.” The abstract for that article states:

This Feature will explore American Needle v. NFL and its potential impact on professional sports in the United States. In August 2008, the United States Court of Appeals for the Seventh Circuit held that the National Football League (“NFL”) and its teams operate as a “single entity” for purposes of apparel sales. Because a single entity cannot conspire with itself, it cannot violate section 1 of the Sherman Act, which prohibits concerted action that unreasonably restrains trade. . . .

As this Feature will detail, American Needle presents the most meaningful sports law controversy in recent memory. For the first time, a U.S. court of appeals has expressly recognized that in certain settings of collusive behavior, a professional sports league and its independently-owned franchises may function as a single entity. American Needle offers the Supreme Court an opportunity to settle a longstanding source of confusion: how should antitrust law regulate the peculiar, if incomparable, business entity known as a professional sports league?

The stakes could not be higher. If the Supreme Court agrees with the Seventh Circuit or, as the NFL hopes, furnishes an even more sweeping recognition of single entity status, professional sports leagues could be shielded from section 1 in a bevy of decision-making contexts that have traditionally been subject to section 1 scrutiny. Particularly when compared to their past treatment, leagues could become uniquely sovereign and commanding.

. . . This Feature will conclude with a recommendation that the Court reject the NFL’s single entity defense on grounds that it would belie legal precedent and mistakenly characterize league operations. The recommendation, however, will leave open the door for leagues to pursue, and for Congress to consider, targeted exemptions from section 1.

I don’t know what the Supreme Court will do, but, while the Justices no doubt will care how this affects the NFL, they will be well aware of what effect their decision might have on areas beyond sports. Any sports commentator who can’t see that far is probably not worth listening to.