Writers of Pro Football Prospectus 2008

Most Recent FO Features

HackenbergChr15.jpg

» SDA: From Death Valley to Happy Valley

While Saturday won't give us an answer to which is the best one-loss team, it is still a big week for conference races across the country.

26 May 2010

Breaking Down the American Needle Case

by Mike Kurtz and Tom Gower

How We Got Here

Back before 2000, NFL teams would sign contracts with different companies to sell their apparel rights. Most apparel rights were sold collectively through NFL Properties, but some companies would create contracts with individual teams to sell only that team's apparel. American Needle was one of those companies. Then in 2000, the NFL clubs, who were the members and owners of NFL Properties, decided they could make more money if they gave one company an exclusive license to sell all NFL apparel from every team. In 2002, NFL Properties signed an exclusive contract with Reebok.

American Needle was understandably unhappy with losing its license and Reebok's exclusive deal. Like any business that loses a big contract, the company undoubtedly huddled with its lawyers. They then tried to come up with a way either to break Reebok's new stranglehold or to force the NFL teams they worked with to stick with the old contracts.

American Needle launched a two-pronged attack, claiming that the NFL violated Section 1 or Section 2 of the Sherman Antitrust Act.

CAUTION: Lots of legal language below.

In the U.S., merely having a monopoly is not illegal or otherwise improper. The Sherman Antitrust Act, which has been the basis of the law since it was passed in 1890, has two provisions. Section 1 makes agreements ("trusts") which cause a "restraint of trade" illegal. Section 2 makes monopolization illegal.

As part of its Section 1 claim, American Needle argued that the NFL is 32 separate businesses and that these 32 businesses entered into an agreement (embodied in NFL Properties) not to compete and to make decisions as a group in the area of merchandising. The government is not very fond of this sort of behavior, because allowing competitors to act as a cartel usually means an increase in price for consumers and companies who do business with the cartel. In the 1890's spirit of the Sherman Antitrust Act, it helps if you imagine the various NFL teams with handlebar mustaches, tying American Needle (and us all!) to railroad tracks where it can be hit by a very large and aerodynamic Reebok Train.

American Needle's Section 2 claim covered the contract (or, more specifically, the behavior that lead to the contract) between NFL Properties and Reebok. Monopolization under Section 2 covers monopolistic agreements not to sell, purchase or otherwise use goods of a competitor. NFL Properties, which had a monopoly on the apparel merchandising for NFL teams, had given all the eggs to Reebok and, by definition, refused as a group to license with any other firm. American Needle claims this is monopolistic behavior.

American Needle went to the United States District Court for the Northern District of Illinois, suing pretty much everybody involved (the NFL, all of its teams, NFL Properties and Reebok), as is the custom of the day. Trials are divided into two parts: pre-trial, where each side swaps documents and fights over various legal issues, and trial, which is to determine the actual facts of the case. Before trial, the NFL asked for summary judgment, a declaration by the court that even if all the facts as alleged by one party (American Needle) are true, the other side (the NFL) is entitled to win based on the law. The NFL argued that its teams could not possibly be colluding by creating NFL Properties because, in the realm of merchandising, the entire league is so integrated that the court should think of them as The NFL instead of 32 separate teams. You can't compete with yourself, right? The district court agreed, and entered summary judgment with regard to American Needle's Section 1 (collusion) claim. American Needle appealed.

It is important to keep in mind that American Needle's appeal was only on the summary judgment motion against the Section 1 collusion claim. The Section 2 claim (monopolization) is still sitting around at the district court, waiting to be resolved. The appellate court agreed with the district court that "in some contexts, a league seems more aptly described as a single entity immune from antitrust scrutiny" and that one of those contexts was merchandising. The appeals court then talked about zen riddles, and how one team could play itself, and how "only one source of economic power controls the promotion of NFL football." Confused? Don't worry, so is pretty much everyone else. The Seventh Circuit Court of Appeals follows a unique brand of antitrust intertwined with the so-called "Chicago School," a very laissez-faire legal approach focused on the creation of wealth and competition. This theory is notable because pretty much every other court in the country disagrees -- including the Supreme Court.

[Tom interjects: As an alumnus and loyal son of the University of Chicago Law School, I have to register an objection here. The reason we have antitrust laws in the first place is to prevent economic injury to consumers, with a lesser degree of protection for competitors. What we should be concerned with is the degree to which we believe there's been a loss inflicted on the consumers and the competitors. Instead, antitrust law (for most of its history) has been concerned with legal doctrines that make almost no economic sense. There's been a gradual evolution, starting in the mid-1970s, away from strict legal doctrine in antitrust toward more economic sense. But, outside of the Seventh Circuit, this is a very incomplete evolution.]

Long story short: The NFL and NFL Properties as a whole create the economic value for branded merchandise, therefore it is a single entity in this context. The district court was affirmed. American Needle didn't give up, and petitioned the Supreme Court for certiorari, which is Latin for "please tell the appellate court they're full of it." The NFL, surprisingly, also filed a petition for certiorari, which in this case meant "please tell the appellate court it's not just 'in this context,'" ostensibly because they wanted the Supreme Court to flat-out state that the NFL is a single entity for at least merchandising (and they hoped more), solving this entire headache.

What Happened

The NFL's plan backfired horribly. The Supreme Court didn't buy the single entity theory, because the NFL teams do not possess the "unitary decisionmaking quality" required. In particular, the court took aim at the appellate court's "source of economic power" reasoning, stating that just because the financial performance of a team is related to other teams does not mean it necessarily rises and falls with that of the others. While NFL Properties is one entity, in the end, it is just a label for the 32 separate teams with only partially united economic interests -- the NFL brand. Since it's not a single entity, then the summary judgment (which was entered because the district court believed the NFL was a single entity) was improper.

It's important to note at this point that American Needle won, and won decisively. However, "winning" at the Supreme Court doesn't mean what most people think it means. The Supreme Court did not determine that the NFL teams were engaging in illegal behavior. All the Supreme Court said was that there needed to be a trial (or at least summary judgment based on a different theory) to determine whether the NFL teams' behavior in creating and utilizing NFL Properties was an illegal restraint on trade. The Supreme Court told the appellate court that it was wrong and told the district court that the trial should continue. In fact, what looks like a rout could actually be a Pyrrhic victory.

Antitrust law only operates against agreements which create restraints on trade, not all agreements without exception. Competitors have formed joint ventures, even cartel-like organizations, to realize specific goals without being shredded by the courts. The courts recognize that sometimes competitors have to work together for a legitimately joint interest (copyright enforcement, for instance) and allow companies to do so. Twin standards have been developed to help protect this legitimate behavior while punishing illegitimate behavior.

If an agreement meets the exact requirements of Section 1, then it is referred to as a per se violation. Per se violations mean that the defendant is done -- the plaintiff does not need to prove potential market effects or any evil intent by the conspirators. The reasoning is that these actions have such a pernicious effect on competition with no redeeming value that there is no legitimate reason to allow such behavior. The most famous per se violation is an agreement between competitors to fix prices.

If the agreement isn't a per se violation, then the court will take an in-depth look at the situation, the intent of the conspirators, probable consequences, market conditions, and any number of other factors which led to the agreement. The court will look at the "totality of the circumstances" and determine how much of a restraint on trade the agreement is. If the restraint is reasonable, then it is not illegal.

How does that apply to this case? The Supreme Court could have simply just sent the case back down to the district court without any parting words. It didn't do that. In the last sentence of the opinion, the court explicitly told the district court to apply the rule of reason, the softer test, to NFL Properties, because the product the teams have conspired to sell (the merchandising) could not exist without such an agreement. Furthermore, the last page of the opinion is largely spent making a case that the NFL's actions were reasonable. The court suggests that football itself may be special ("the special characteristics of this industry may provide a justification for many kinds of agreements"), and that sports in general have an interest in maintaining a competitive balance. The court even suggested that the district court forego a detailed analysis and apply this test "in the twinkling of an eye." Finally, the opinion concludes with the thought (directed, again, at the district court, we can assume) that marketing each team's intellectual property as a group is "unquestionably an interest that may well justify a variety of collective decisions made by the teams."

What the Supreme Court provided here was a blueprint for the district court to decide the case. It told the lower court what standard to use (the soft one), told it how exacting it had to be (not very, some variation of eye-twinkling), and arguably even told it how to rule (that marketing individual teams' IP as a group justifies collective decisions). It seems that American Needle won the battle overwhelmingly, but is in serious danger of losing the war.

Then again, anything can happen. And remember, they still have their Section 2 (monopolization) claim lying in wait. Even if the NFL can legally act as a group, the district court might take issue with Reebok's contract, which would be a pretty significant victory for American Needle.

How This Affects The Labor Situation

Now, we get to the real reason the NFL filed for certiorari. The current era of NFL labor peace dates back to the 1993 collective bargaining agreement. That CBA came at the end of a seven-year process and was the result of court decisions. Back in 1987, the existing labor agreement had expired, but the players elected to go on strike without a collective bargaining agreement and returned to work without a new CBA in place.

The key issue in the late 1980s and early 1990s was free agency. NFL teams had never made free agency broadly available in the past and did not want to change the quite satisfactory state of affairs. Since the relationship between players and owners with no CBA resembled the relationship under the expired CBA, there was no free agency.

Since the CBA was between the NFL and NFL Players Association (NFLPA), the existing rules could be applied legally so long as there was a union representing the players. So the players took the step of formally disavowing the NFLPA, a process known as "decertification." Rather than one union representing 1,484 members, there were 1,484 players, none of whom was a member of a labor union. In this new state, the players were under contract to particular teams, and other teams' refusal to sign players when their contracts expired with another team sounded like, and was ruled to be, an illegal conspiracy in restraint of trade under Section 1 of the Sherman Act.

When the NFL asked the Supreme Court to hear the case, its dream was for the Supreme Court to rule that the NFL was exempt from Section 1 scrutiny altogether. This ruling would have removed the threat of decertification altogether. The league's chance of having success on this claim was never very big. Baseball enjoys immunity from the Sherman Act and has since1922, but the Supreme Court denied the NFL the same immunity in 1957 and emphatically refused to change that position.

A Plausible Future

In a world where the NFL remains subject to Section 1 scrutiny, here's how the near future could play out. The NFL and NFLPA fail to reach an agreement by the time the current CBA expires in February 2011. The two sides continue to negotiate but make no progress. The NFL declares that the parties are at an impasse, and under labor law, invokes its right to repeat its 1987 move and act as though the current CBA were still in place with some relatively minor modifications.

These modifications might include things like applying the current (final year) free-agency rules, including the Final 8 and Final 4 rules, and moving away from 2006's change in the player's slice of the pie from Designated Gross Revenue to Total Revenue. This change forced the owners to do more sharing of team-specific revenues, including things like naming rights and local sponsorships.

How much of this revenue should be shared is a genuinely difficult issue with no easy solution, and it was a compromise that made owners at both ends of the spectrum unhappy. Low local revenue owners like Mike Brown (Bengals) and Ralph Wilson (Bills) didn't like it because they knew that if the richer owners stopped sharing their revenue with them, they might have to cut costs to the bone every year -- or lose money. Higher local revenue owners like Dan Snyder (Redskins) and Bob McNair (Texans) didn't like it either, because they'd spent a great deal of time, energy, and money building up a strong local revenue base. Why should Brown and Wilson get FedEx's and Reliant's money when they named their stadiums after people (his dad and himself, respectively)?

If the NFL owners do try to impose something like this, the players have two potential lines of attack. First, they could work within the labor laws and claim that the changes imposed by the owners deviate too greatly from the expired CBA. The NFL could try pointing to changed circumstances within the broader economy and argue that these sorts of changes are necessary to maintain all teams' financial viability. It is impossible to say now just how a decision on this might come out. But if the NFL had the Section 1 immunity it asked for -- if it had won the case -- the players could be truly sunk. Now, though, if the players lose here (or even before that), they could again pursue decertification and claim Section 1 conspiracy in restraint of trade against the owners. As in the early 1990s, there could be a trial on this and one side could lose.

The final possibility is the players could apply to the highest sources of power in the land. The labor and antitrust laws are statutes, passed by Congress. A big reason for the election of NFLPA chief DeMaurice Smith was link to the current administration, including experience working for Attorney General Eric Holder in the Clinton administration. So far, there's no politics in football, but there most definitely can be politics in labor wars, and that may be where NFL v. NFLPA battle is eventually resolved.

Posted by: Mike Kurtz on 26 May 2010

76 comments, Last at 01 Mar 2013, 5:25am by homemaking

Comments

1
by grady graddy (not verified) :: Wed, 05/26/2010 - 5:30pm

While whichever of you wrote "there's no politics in football" has a ridiculous amount of explaining to do, FO should explain why it publishes garbage like Mr. Gower's interjection. "The reason we have antitrust laws in the first place is to prevent economic injury to consumers, with a lesser degree of protection for competitors." Thank god history and human beings had nothing to do with it! The relationship of antitrust laws to agrarian, religious, Marxist, black and other movements is erased in this Law & Economics fiction, as well as the immense political dealings and corporate machinations to determine how such laws would be written and enforced.

"What we should be concerned with is the degree to which we believe there's been a loss inflicted on the consumers and the competitors." In other words, we should have no concern whatsoever for the relative power, autonomy, or freedom of the "consumer." What matters is loss in dollars and cents. Of course, RELATIVE loss is written out of the equation; the acts of trusts to take economic power from people was at the crux of agitation for antitrust laws, yet in this revisionist fantasy all that matters is an "economic loss" to a "consumer."

"Instead, antitrust law (for most of its history) has been concerned with legal doctrines that make almost no economic sense." No s***, Sherlock. That's corporate influence. The antitrust laws make no economic sense because they are written and enforced by people who are in on the take from the trusts. Of course, this is entirely written out of the equation by the U of C school, who are thoroughly uninterested in taking seriously the massive role of lobbyists, bourgeois and petit-bourgeois elected officials and bureaucrats, and their control over the various mass communication and education services. This, of course, because they are the head of this system for ensuring that antitrust law serves no valid economic purpose, because it is designed to maintain mass theft by the wealthy classes.

"There's been a gradual evolution, starting in the mid-1970s, away from strict legal doctrine in antitrust toward more economic sense. But, outside of the Seventh Circuit, this is a very incomplete evolution." Yes, an "evolution." Why, it's downright Darwinian! How does this evolution work, exactly? Who benefits from it - "the consumer?" Or the trusts, who have the money to bankroll massive legal departments to "evolve" the laws so that they can outsource labor and slash capital gains taxes? ("Oh, you are confusing the issues..." No, I am not. Antitrust law and the lack thereof is at the center of corporate law. Burden of proof is on you for this one.)

If there's no room for politics in football, then get your damned U of Chi mouthpieces out of your articles. There are already WAY too many of them in the executive, judicial, and legislative branches of the US government and in the administrations of your various corporate partners. Hold yourselves accountable to human beings, not dollar bills.

2
by Anonymous Jones :: Wed, 05/26/2010 - 6:10pm

While that takedown was a little more extreme than I would have offered, Gower's interjection was jaw-dropping in its simultaneous combination of overconfidence and delusions (my jaw literally dropped), and I'm glad someone decided to present an alternative take. Of course, there is almost always no point in arguing with the UofC crowd; they decide to see a complex world as simple and no amount of contrary evidence will sway them otherwise. They have all the answers, of course. Even those of us with better SAT scores just aren't smart enough to understand them.

3
by billsfan :: Wed, 05/26/2010 - 6:14pm

It's great that *you* feel that way, but guess what? When this case gets appealed after the District Court is done with it, it's going straight to Richard Posner and the Official Brother of TMQ!

(I also like the Eagles)

5
by Still Alive (not verified) :: Wed, 05/26/2010 - 6:35pm

A bit over the top but well put. Talking about why the laws are the way they are without talking about lobbying/log rolling/kickbacks et cetera is just a waste of time. The law in making/application has almost nothing to do with what the "Chicago School" claims it does, or would want it to be.

The school took a bunch of great critiques of late 1800s central european monarchist economics and spent 50 years mutilating them and beating them into the ground. I think economics will finally catch up to the current world by 2050 or 2075...

All they would have to do is read some of their own faculty. Thaler would be a good start. His insights are only 30 years old so you know you might have wanted to incorporate them into your line of thought...

9
by jimbohead :: Wed, 05/26/2010 - 7:48pm

I got a pretty different impression from the interjection, that it was more just a fun aside, giving background on what this particular circuit believes from the perspective of a UC homer. One says, "it's important to note that this circuit is out of line with the rest of the circuits on this issue," while the other says, "here's some background, since its my alma mater!" I mean seriously, way to take something fun and personal and turn it into a vicious ad hominum assault.

I for one think it's incredibly awesome that, among FO staff, we have economists, mathematicians, salary cap professionals, lawyers, a sports medicine doctor, and even liberal arts types, who all share a love for football. This place is pretty unique.

13
by Tom Gower :: Wed, 05/26/2010 - 8:13pm

This was, in fact, the spirit in which the comment was intended, and I'm glad at least one person recognized it as such.

I didn't want to sidetrack an already perhaps over-long article with a 1,000 word digression about why I believed the Seventh Circuit was a lot righter than the Supreme Court thought it was, especially when the point I wanted to make had pretty much nothing to do with football. For more on the point, see this post by someone better versed than me in the economics of organizations criticizing the Supreme Court decision, and I'll stop there before I end up on another hobbyhorse when I have FOA2010 writing to do.

EDIT: I also need to add a disclaimer that the opinions expressed in this article and in my comments are my personal opinions, and should not be imputed to my employer, clients, co-workers, or anybody else. They are also not legal advice, and you should consult an attorney licensed in your jurisdiction if you need legal advice.

27
by Adam B. :: Thu, 05/27/2010 - 9:44am

I had Rosenfield for Antitrust, not Easterbunny. Think I got a 78.

-- '97.

30
by drobviousso :: Thu, 05/27/2010 - 10:30am

Don't worry, I think the moderately educated among us without an ax to grind can pretty clearly see the intent of your aside. It was well written, and exposes an important point.

This is a great article that I'll be passing around. I'd love to see you guys write more about football and the law, as it comes up.

38
by Still Alive (not verified) :: Thu, 05/27/2010 - 11:37am

The axe to grind comes from watching the baby boomer generation and their favored economic philosophy grind this nation into the ground over a bunch of philosophical tenets which were obviously bankrupt 20 or 30 years ago.

The country will fall apart in the next 50-75 years and it was completely avoidable...

So sometimes it raises some hackles when people are flippant about "the Chicago School", which in the long run has probably done more harm to the US than anything else in the 20th century.

The baby boomers simply will not vote to trim their benefits or raise their taxes and the coming generation simply cannot afford that. There rioting and there will be massive inflation/currency devaluation. Which will lead to the military being used against civilians, maybe we will recover at that point, but more likely the country will crack like an egg. The only thing that might save us is if productivity/technology raise the standard of living multiplier quickly enough to mitigate the huge burden. It might also help if some other countries collapsed as people measure their well being comparatively so strongly. Of course then their might be wars...

Anyway, I will probably be mostly dead by then, but my kids won't, and my grandkids will be in their prime. A nice present we are leaving them.

55
by Dave :: Thu, 05/27/2010 - 11:20pm

I was going to go into a reasonable response about how people tend to exaggerate, about how pendulums tend to overswing and thus kill reasonable ideas, and all that peaceful, realistic, and intellectually honest stuff, but your repeated mixing of their/there in your post convinced me it's not worth wasting my time.

I agree with your 50-75 year projection. The blame is a bit misplaced, though.

56
by greybeard :: Fri, 05/28/2010 - 3:10am

There was only one place where their was used instead of there.
I think you made a good decision to not waste your and our time. I do not care about reading what you would have said given that you seem to care more about spelling errors than ideas.

57
by Dave :: Fri, 05/28/2010 - 3:14am

Actually there was another that was the reverse.

There's plenty to applaud about his post, but plenty to argue about too. But it's pretty clear from his ideas and his tone that arguing would do no good. And while I stooped a bit low to make that attack, you're kind of doing the same here, aren't you?

I think we're all probably better off not turning this football site into a political discussion. Those things don't often end well. As these last two posts have shown.

63
by greybeard :: Fri, 05/28/2010 - 4:25pm

I just wanted to give you a taste of your own medicine.
And I agree about not discussing politics on football site. Unfortunately anti-trust cases are about economics and politics, so there is little chance of this one not including discussions about politics. I hope the FO editors made the decision to publish this piece consciously.

67
by dmb :: Sat, 05/29/2010 - 2:09am

I hope the FO editors made the decision to publish this piece consciously.

I do, too. Sleep-publishing sounds like a dangerous path to tread.

34
by billsfan :: Thu, 05/27/2010 - 11:04am

I took it in the same spirit as the repeated and gratuitous mentions of guys like Sean Morey and Zak DeOssie by the Brown alumni.

(I also like the Eagles)

40
by dmb :: Thu, 05/27/2010 - 11:53am

I echo the sentiments that the entire column served its purpose extremely well, and the intentions of the aside were entirely clear. However, I think my favorite part of this was the "EDIT" in this comment... I pictured somebody about to ask you in earnest if they should sue the NFL for the right to purchase a license to sell some absurd type of merchandise (NFL-licensed Snuggies, perhaps?), only to be deterred by your last-second disclaimer.

47
by Marko :: Thu, 05/27/2010 - 2:58pm

There already is an absurd NFL Snuggie knockoff known as "The Huddler."

http://www.walletpop.com/blog/2009/08/10/college-snuggie-nfl-huddler-hit...

49
by bravehoptoad :: Thu, 05/27/2010 - 3:20pm

Well, I read the post you linked, and it was an interesting read, but it concluded with a stink: Some day, one can only hope, there will be an explicit recognition of the fact that competition is simply one way among many to get people to cooperate, and that it is cooperation rather than competition that is the source of wealth.

False dichotomies, anyone? Hugely broad, sweeping generalizations of no use whatsoever? Orwellian redefinition of terms?

Good lord.

53
by grady graddy (not verified) :: Thu, 05/27/2010 - 5:58pm

I don't have an ax to grind. I have a bad article to call out. Since I am writing this at work it will not be particularly well organized.

Ask yourselves this: how does an article get written about a Supreme Court case that has only one paragraph with any direct quotations from the Court's opinion, has only one direct quotation from the appeals court, and has no quotations from any of the oral arguments or briefs filed in the case? And the only time the article does quote from Stevens' opinion, it does so to defend the NFL, and arguably proffers a fundamental misreading of Stevens.

Reread the article. Look at the tense changes. Look at the blocks of text. This reads very clearly as if it had been written in large chunks before this decision was handed down, and was hardly revised to reflect anything in Stevens' opinion. The entire piece is written from (depending on how you want to frame the authors) the perspective of big business, the NFL, Law & Economics, or someone who is a corporate lawyer in Wheaton, IL (i.e., Gower, who was not only trained at U of Chi but works as an acquisitions lawyer for a law firm that handles cases in the 7th circuit!). The slant in this article is quite obvious.

The article states its perspective right at the top: "In the U.S., merely having a monopoly is not illegal or otherwise improper." This is what the Sherman Antitrust Act states:

"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony"

The next paragraph, rather than discussing the very serious and important politics of the guilded age, offers an asinine and worthless joke about handlebar mustaches and train tracks. American Needle's claim is arbitrarily reduced to, "American Needle claims this is monopolistic behavior," right after the article has split the irrelevant hair that monopolies are not per se illegal. What is at issue in the case is not that the NFL or Adidas has a monopoly, what is at issue is whether the "persons ... attemptp[ed] to monopolize ... any part of the trade or commerce among the several states." Any plain view of the case would show this to be true, unless one starts with the presupposition that the NFL is a single entity, or is a single entity with regards to the licensing of apparel. This is simple enough. There was not a monopoly before the Reebok/Adidas deal. There is now.

American Needle is chided for "suing pretty much everybody involved (the NFL, all of its teams, NFL Properties and Reebok), as is the custom of the day." How, exactly, could it have filed an antitrust suit without suing everyone involved? All of the parties involved conspired to monopolization! This is not the custom of the day, it is the wording of the law they were suing to enforce!

The NFL's petition for certiorari was filed for reasons that were plainly obvious. They sought a special antitrust exemption. They sought to be treated as a single entity. This is the crux of all the briefs and amicus briefs in the case. American Needle's brief states,

"There are already 'well documented' consumer 'welfare losses stemming from the potentially anticompetitive agreements among professional sports clubs'... the challenged agreement, by eliminating 'price pressures,' quickly resulted in a 50% increase in the price of NFL team-branded hats.
"The potential harms arising from immunizing this licensing agreement—and other collective but restrictive efforts by the teams to 'promote' NFL football—from antitrust scrutiny are exponentially large. As scholars have demonstrated, professional sports teams are particularly well situated to engage in anticompetitive activity 'because of the lack of product market rivals to whom consumers can turn.' ... In addition to trademark licensing, professional sports teams have instituted restrictions on competition and output in areas such as the satellite and internet broadcasting of games in ways that appear to have raised prices above (and reduced output below) what they would be absent such restraints. ...
"That is not to suggest that the NFL teams’ collective conduct necessarily would be found to violate Section 1. Under the Rule of Reason, the defendants would be able to argue that the procompetitive benefits of the challenged restraints outweigh their anticompetitive effects—either under an ancillary restraints analysis or under a more general Rule of Reason inquiry. ... That is not to suggest that the NFL teams’ collective conduct necessarily would be found to violate Section 1. Under the Rule of Reason, the defendants would be able to argue that the
procompetitive benefits of the challenged restraints outweigh their anticompetitive effects—either under an ancillary restraints analysis or under a more general Rule of Reason inquiry."

American Needle had a clear cut case where the NFL sought to monopolize interstate commerce in football apparel. The NFL, however, hung its case on what is essentially an arbitrary redefinition of their basic services. The NFL's argument begins quite simply, and jaw-droppingly. Their brief states the question of the case as such:

"Whether, consistent with the principles articulated in Copperweld, a professional sports league and its separately owned member clubs, which exist to produce collectively an entertainment product that no member club could produce on its own, function as a single entity for Section 1 purposes in promoting that product."

In other words, the NFL believes that, for the purposes of the Sherman Antitrust Act, the teams/franchises/clubs should not be considered persons under section 7. Section 7 reads:

"The word 'person', or 'persons', wherever used in sections 1 to 7 of this title shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country."

The NFL begins their arguments in the brief thusly:

"The assertedly separate entities here are the 32 member clubs of the National Football League (“NFL”), the League itself, and the clubs’ wholly owned licensing company. The NFL clubs are separate as a formal matter. But they are not and have never been independent sources of economic power. Their function, material value, and reason for existence all are dependent on their membership in the NFL and their joint production of NFL Football."

Any NFL fan should be able to call instant BS on this. Gower, on the other hand, actively promotes this line of reasoning. It is a patently false claim. The entities in question, in fact, have in many cases derived their function and material value entirely independent of the NFL for quite some time. We are not talking about a football league that started and has developed franchises on its own. If, for instance, Mark Cuban founded a league tomorrow that would own all of its teams and their intellectual property, its licensing could fairly be considered in terms of a single entity. However, NFL-licensed apparel's economic value to the consumer is demonstrably not due the NFL. In fact, it is more obvious that the opposite is true: without the franchises as independent entities, the NFL merchandise would not have a market. Tell consumers in San Francisco, Cleveland, Buffalo, Oakland, San Diego, New England, Kansas City, Denver etc. that they only want that team logo hat because the team plays in the NFL. The simple fact is that the NFL profits off the many years of successful football business in these cities that established the economic basis for its present dominance.

Mr. Gower and Mr. Kurtz (whose bio states that he went to law school in Chicago, though it does not state at which institution), however, state the case without exception in a way that takes the NFL's argument for granted:

"The NFL argued that its teams could not possibly be colluding by creating NFL Properties because, in the realm of merchandising, the entire league is so integrated that the court should think of them as The NFL instead of 32 separate teams. You can't compete with yourself, right? The district court agreed..."

"Long story short: The NFL and NFL Properties as a whole create the economic value for branded merchandise, therefore it is a single entity in this context."

"In the last sentence of the opinion, the court explicitly told the district court to apply the rule of reason, the softer test, to NFL Properties, because the product the teams have conspired to sell (the merchandising) could not exist without such an agreement. Furthermore, the last page of the opinion is largely spent making a case that the NFL's actions were reasonable. The court suggests that football itself may be special ("the special characteristics of this industry may provide a justification for many kinds of agreements"), and that sports in general have an interest in maintaining a competitive balance. The court even suggested that the district court forego a detailed analysis and apply this test "in the twinkling of an eye."

The article states the NFL's arguments without attribution and generally does not state any of the arguments of AN. Even more absurd is that the article does not go into the amicus briefs filed by the Player's Union, the Coaches Association, the Dept. of Justice, etc. The article chooses an extremely narrow focus on the details of the case so that it can focus on portraying American Needle as victims of spilt milk while not giving any serious attention to the economic or legal impact of the NFL's actions.

If we examine these briefs, the significance of the case is rather obvious. The players unions for the NFL, NBA, NHL and MLB filed a brief which states:

"The 32 separately-owned and separately-controlled teams in the NFL seek from this court a broad 'single entity' exemption from Section 1 of the Sherman Act, 15 u.S.¢. § 1. This requested defense would apply to all of the NFL teams’ 'core venture functions,' which the NFL owners define as virtually all aspects of their operations. The NFL owners have indicated that even the market for player services, in which the owners fiercely compete, should be immune from Section 1 scrutiny. See ¢ertiorari Brief for NfL Respondents at 4, 10-11 (hereinafter NfL ¢ert. Br.). ...

"The NFL owners’ appeal in this case is a Trojan horse designed to free sports team owners from Section 1 scrutiny so they can restrain competition with impunity in the market for player services. If the broad single entity defense advanced by the owners were adopted, decades of antitrust precedents that have protected competition for player services would be reversed, the benefits that both players and consumers have gained from competitive markets would be jeopardized, and labor disputes and work stoppages would likely ensue. ...

"Having chosen to be separate economic entities for their own business reasons, the NFL teams cannot ask to be treated as a single entity solely when it suits their purposes. Indeed, even in the business of apparel licensing, the NFL teams have not consistently acted jointly; individual teams can “opt-out” of these arrangements in many important respects, and the Dallas Cowboys have done so since 2002. ...

"Even if this court were to determine that the NFL teams should be treated as a single entity for the one facet of their operations addressed by the courts below – the joint licensing of certain intellectual property – there would be no basis to apply that holding to other markets in which NfL teams actively compete. This is especially so in the markets for player services, which this ¢ourt, ¢ongress, and the lower courts have uniformly held are subject to Section 1 of the Sherman Act. Such competition for players has greatly benefited not only player-employees, but also consumers and fans. ...

"Congress enacted a specific antitrust exemption in the SBA regarding the major source of revenue that the NFL teams share equally. ... That exemption allows the teams to jointly negotiate national television broadcasting contracts, and reflects Congress’s intent to permit the NFL teams to share this revenue ‘on a basis of substantial equality.’ The teams, however, do not share revenue from preseason local television broadcasts or from local radio broadcasts. ...

"amici respectfully request that the court vacate the decision below. Alternatively, if the court affirms, it should reject the broad “single entity” defense advanced by the NFL owners and confirm that such a defense would not apply to labor markets and other economic markets in which sports teams compete."

The Coaches Association similarly filed an amicus making the same contentions, applying the situation to the coaches market.

In other words, the article entirely leaves out any consideration of what the world would have looked like had the NFL won the case, this despite the curious "In a world where..." phrasing toward the end (which appears to just be a remnant of an earlier draft of this article, likely written at a time that these ChiLaw boosters thought the NFL had a good chance of victory). It leaves out entirely all of the legal and economic arguments made by the opposition. The only rebuttals to the NFL's position are concentrated in a single paragraph:

"The NFL's plan backfired horribly. The Supreme Court didn't buy the single entity theory, because the NFL teams do not possess the 'unitary decisionmaking quality' required. In particular, the court took aim at the appellate court's 'source of economic power' reasoning, stating that just because the financial performance of a team is related to other teams does not mean it necessarily rises and falls with that of the others. While NFL Properties is one entity, in the end, it is just a label for the 32 separate teams with only partially united economic interests -- the NFL brand. Since it's not a single entity, then the summary judgment (which was entered because the district court believed the NFL was a single entity) was improper."

Firstly, the claim made that the "plan backfired horribly" is a clear red herring. It is unclear why the court would not have granted cert to American Needle; there clearly was no effort by any of the members of the court to ram through the NFL's interpretation of Section 1. One can argue for a backfire, but the sense of a "backfire" is limited solely to the specific case of licensing apparel, and it is unlikely that the NFL will pay any significant damages. Indeed, what the article terms a likely "pyrrhic victory" for AN is a) an actual victory, since it sets a precedent that will benefit AN in the future, regardless of this particular case and b) a substantive victory for the players, coaches, fans, and consumers of NFL merchandise, and c) a substantive victory in the broader scope of enforcing antitrust law.

Second, there is not even a pause to consider the real world implications of these assertions of the NFL's legal status. The paragraph abstracts the arguments involved in ways that are not present in the decision. The article takes "NFL Properties" and "the NFL brand" as given, without even acknowledging that these are mere joint ventures to control and aggregate the marketing of 32 football teams. The question of whether "the NFL" is a single entity is addressed in such a way as to presume that it is in order to explain that it might, in some cases, not be the entity with decisionmaking power.

This abstraction is a) indelibly linked to the authors' affiliations with the Chicago school and corporate firms and b) not at all helpful to the reading audience. The teams, using their independent decisionmaking, voted for monopolization of apparel and monopolized it. This is fundamentally related to the fact that they had already, as independent actors, created the NFL brand as it exists today by monopolizing professional football. The NFL has had every opportunity to allow competitors to flourish; they choose instead to monopolize professional football, with dire results for fan bases and local economic power. The article even alludes to this. The NFL-ization of pro football works as corporate welfare for teams that prefer not to spend to satisfy the fan base and for teams that use the threat of No NFL to blackmail governments into funding stadia and other subsidies. While the article makes sure the audience understands that monopolies are not per se illegal, it does its best to downplay the 800 lb gorilla in the room that the NFL only has these "single entity" facets of its business for the purpose of monopolization, and that this powerful marketing base and centralized capitalization has much grander antitrust implications. That is, even if the labor domain was guaranteed to still be under antitrust protection, monopolization of pro football products sharply effects the way that football is played in this country, the structuring of college and high school programs, etc. The entire ball of twine of the NFL - an avowed monopoly, by process of monopolization - is liable to unravel when one considers the implications of this case without first presupposing (as any Law & Economics discourse, such as that proffered by these authors) that the NFL exists unproblematically and should continue to exist.

This site is called Football Outsiders, rather than NFL Insiders or NFL Apologists. With the upcoming labor conflict, you would think the site would actively be courting people qualified to write on these issues from an outsider perspective. You would think there would be a commitment to innovative and intelligent analysis. Instead, this article only shows the editorial policy of FO to be one that is subservient, blindly or otherwise, to the corporate interests of its partners and the league that drives FO's business. We have three obvious sources of conflict of interest for FO to discuss antitrust law:

1. Loosely speaking, the economic success of the NFL drives the economic success of FO. This is the same principle that underlies the softball approach of the MSM "insiders."
2. FO benefits economically from a number of companies (Disney, News Corp, NYT, etc.) that are themselves trusts or near-trusts.
3. FO has clearly positioned itself so that it eventually could partner, in whole or in part, with the NFL. The NFL has been rapidly expanding its ownership of NFL media content. Given the tenor of FO, it seems highly unlikely they would balk at collaboration with the NFL.

Beyond that, Mr. Gower and, if my suppositions are not incorrect, Mr. Kurtz have clear conflicts of interest in discussing the doctrine of the 7th circuit court. The article contains no disclaimers about Mr. Gower's role as an acquisitions attorney for a firm in the 7th circuit. Nor are the roles of the authors in the drafting of the article clear, as the article is credited to both, posted by Kurtz with the bizarre interjection attributed only to Gower.

The issue with the interjection is not simply what it said. The article was structured to set up the interjection. The paragraph easily could have been rewritten to explain the legal arguments on both sides (or, better yet, from the various interested parties). Instead, the article is set up to treat the circuit court's ruling as a curiosity that the reader of the article SHOULD be uninterested in, with the punchline being that the author then defends the court using vague, arbitrary language that of course was pioneered by the very same judges!

Further, of course, the author refuses to engage his audience, treating the interjection as if it were more a joke than a compromise of journalism. Shouldn't Mr. Gower at least indicate that he is stroking his handlebar mustache when he offers such a tepid defense of his hit-and-run "btw antitrust law should be determined by the chi school doctrine kthxbai roflcopter"?

"I didn't want to sidetrack an already perhaps over-long article with a 1,000 word digression about why I believed the Seventh Circuit was a lot righter than the Supreme Court thought it was, especially when the point I wanted to make had pretty much nothing to do with football."

I wanted you to write a decent article. You didn't. It would not have been sidetracking the article to explain your opinion. Why did you not simply write an editorial? Why did you impose some arbitrary length limit on an internet piece? The problem is that your OPINION that would have taken 1,000 words to explain is part and parcel of the entire article. There is no section of this article which does not reflect your Law & Economics view of antitrust. Rather than defend that, you sought to shield this bias as a mere aside, pointing out that you think the opinion in the case was wrong without stating anything but the most arbitrary and historically inaccurate explanation.

You also link to an article from a "systems theorist" (evidently, the author means this only in the sense of the pseudo-discipline invented by cold war era US academies and long critiqued by world-systems analysis and not in the sense of biologists such as Maturana and Varela who were forced into exile by the Friedman-Pinochet regime) which finds it regrettable that the NFL ruled as it did. This blog entry discusses none of the merits of the case and does not give treatment to any of the arguments from the Players Union or Coaches Association. Rather, it is a whine from somebody who believes that monopolization can benefit from society and regrets when SCOTUS is not activist in interpreting antitrust law. The linked page does not even contain the word "football" and only mentions the NFL in its block quotes from Stevens' decision.

This total disregard for the details of the case is shared by both this article and the article Mr. Gower uses to support his viewpoint. This is intimately related to the objection I initially expressed, which is the writing of history out of the equation. Both Gower and "Broken Symmetry" start by assuming that what is at issue is the economic well-being of the biggest businesses in the room. They assume the role of SCOTUS is to protect the NFL and a German multinational corporation, adidas (as well as the other large businesses that work with the NFL, NBA, MLB, and NHL to monopolizes facets of the professional sports economy). This is, of course, directly contrary to the stated purposes of antitrust law as well as the historic dynamics that led to its creation. Nowhere is a radical, historical, or even liberal critique of the NFL's position or the 7th circuit's position entertained for even a brief moment.

This is football we are talking about, as you insist is the topic. The topic of your article was not football but rather the NFL's failed attempt to be gifted a new echelon of power and immunity. I say your article needed to actually be about football, because the article reads instead like something out of Forbes or Fortune. Your article should have talked about the antitrust implications of the NFL as it already exists and as they relate to labor, both player side and coaches. The giant scandal at the heart of this is that Gower, Broken Symmetry, and the NFL have all essentially argued that they make money not by virtue of football but by virtue of BEING THE NFL. That is, the monopoly that already exists must be protected! With a lockout looming, it is more than fair for fans - not to mention players, etc. - to wonder about whether football would be better off if, instead of having one monopoly league with parity among teams, the fans could choose between four or five professional leagues with roughly equal levels of play. There are a myriad of economic reasons to support the latter case, and these are fundamentally tied to this court case. Unfortunately, FO is taking this opportunity to bury such debate and to publish articles which presuppose that the NFL - the basis of FO's DVOA-centric economy - must continue to exist more or less as presently constituted.

Mr. Gower, you could easily have discussed your opinions in terms of football. The reason you did not is simple – to discuss football in the context of antitrust, you must go well beyond the scope of explaining corporate apologia, something that appears beyond your expertise or perhaps capability.

The monopoly contract is bad for football, football players, and football fans. The point of a monopoly is not to make money, which implies that the point of antitrust law is not to protect against “consumer loss.” Rather, antitrust law is about a capitalist society where everywhere the fallout of violently-created monopolies is evident. The expropriation of land from indigenous persons and the legal and violent coercion of people forced to work for the economic benefit of violent cartels determined who owned the wealth in this country before it became the US, after it became the US, after the abolition of slavery, and after even the Sherman Act. The Sherman Act sought to reduce the power of large firms in controlling the market. It’s highly political to assert that what is at issue is solely how much a consumer pays for good. We are talking about a law passed by a democratic body. The issue is not dollars and cents but democracy, control over one’s life and one’s ability to use the resources one can access to be alive. Monopolies are not insidious because they involve co-operation but rather because they radically limit the power of everyone in society. Moreover, they radically expand the power of certain interests who have a vastly disproportionate share of the power to shape government and media. After the Citizens United case, antitrust law is more important to democratic governance than ever.

This is very serious. If "outsider" media pressed the case that fans should be fighting against the NFL's economic power base, then this would become part of the political debate. It would influence Congress. Such media outlets, however, seem to have simply chosen surrender, as that keeps alive better sources of revenue, present and future.

Why do you not simply write an editorial for FO making the argument that the NFL should have won this case? Instead, you wrote faux-journalism that presupposed such an opinion without any commitment to its defense. This does not merely demonstrate poor and/or corrupt judgment on the part of the authors but also on the part of FO's editorial staff.

What happened in this case is quite straightforward. In plain words, the NFL and Reebok monopolized apparel NFL apparel. American Needle filed an antitrust suit. The NFL pushed for the SCOTUS to hear the case so that it could gain a categorical exemption from antitrust law. The Court’s opinion differs from the arguments advanced by AN in rather esoteric ways that are largely ancillary to the concerns of FO’s readership. On the main issue, the single entity claim advanced by the NFL as essentially a weapon of war against the players union, SCOTUS roundly rejected the NFL’s argument for a variety of reasons that could clearly be explained to the average FO reader (but that were not explained in this article). Stevens’ arguments and holding do not substantially differ from the arguments advanced by the players or coaches in their amicus briefs.

The case and its motivations are easy to summarize. In this case, the summary was needlessly complicated and in some places made opaque in order to accord to the ideological bent of its authors, authors trained by elite institutions that receive millions upon millions from trusts. Institutions whose credibility is built up by the giants of the private sector so that the “qualifications” they bestow on degree holders are accepted widely in the public sector and media (with the 7th circuit judges, of course, among these).

I've paid for FO services and publications in the past. It is quite clear that I, and anyone interested in "objective" analysis, should refrain from doing so in the future. This article is spin from a professional spin doctor or doctors, and is certainly far from the first FO article to fall into that category.

58
by Karl Cuba :: Fri, 05/28/2010 - 11:47am

1- Wow!

2- "Since I am writing this at work it will not be particularly well organized." If I were your boss I'd be annoyed but I'm not, so kudos for putting the time in.

3- I'm not sure that you need to be quite so vitriolic, I'm not sure the writers of this article or the editors of this site are making a conscious attempt to indulge an oppressive monopoly in the manner you are suggesting. Also, I'm really not sure if this is the forum for discussions of the ravages of the effects of the neo-liberal economic concensus, even if it does tangentially have some bearing on this case. This site has a standing policy of not allowing political digression because it can distract from the purpose of the site (talking football intelligently) and tends to incite vicious flame wars. I would have thought that this thread has probably crossed the usual line but I hope that they tolerate it in this instance as it is both interesting and vaguely relevant to the subject. This is a thread about a legal dispute that is based on economics and so is unavoidably tied to the overall economic system. The mods are less likely to be tolerant if you continue to use such a harsh tone.

4- I don't think I understood more than half of what you are saying but please indulge me with one point. You state that the NFL's monopoly of professional football is never in the interest of the fan but I am generally in favour of there only being one professional league for the simple reason that I would rather be able to watch the very best players engaged in direct competition in order to achieve the best quality football.

60
by Lola was a dude (not verified) :: Fri, 05/28/2010 - 1:16pm

I'm sorry, I didn't quite catch that. Could you repeat it?

61
by Will Allen (not verified) :: Fri, 05/28/2010 - 2:58pm

Brevity. Love it!

68
by Alex51 :: Sat, 05/29/2010 - 2:19am

Yeah, when your comment is significantly longer than the article it's responding to, you know you've got some editing to do.

64
by Raiderjoe :: Fri, 05/28/2010 - 4:57pm

Brst commeny of yrar so far. Will drink in crlebration of post.

65
by Temo :: Fri, 05/28/2010 - 7:58pm

*Checks the URL of site*

Wait, this is a football site?

66
by tuluse :: Fri, 05/28/2010 - 8:16pm

I just come here to discuss which date formats make the most sense.

69
by chemical burn :: Sun, 05/30/2010 - 11:08pm

I have never laughed at loud at a comment on a website before, Tuluse. you win.

70
by JetfanMike (not verified) :: Wed, 06/02/2010 - 3:13pm

!!!

24
by DeltaWhiskey :: Thu, 05/27/2010 - 6:53am

Who is the Sports Medicine Dr.?

32
by jimbohead :: Thu, 05/27/2010 - 10:51am

I'm pretty sure Will Carroll is a sports MD, though he may just be an MD.

39
by dmb :: Thu, 05/27/2010 - 11:48am

I'm pretty sure that Will Carroll the younger, who is a senior writer here at FO in addition to doing work for Baseball Prospectus and Puck Prospectus, has no medical degree. Will Carroll the elder (otherwise known as Dr. William Caroll), father of Will Carroll the younger, is the Director of Athletic Training Education and a Professor at the University of Mobile in Alabama. Dr. William Caroll (the elder) is the author of The Carroll Guide to Sports Injuries, while Will Carroll (the younger) is the writer whose work you typically read here or at one of the sister sites.

4
by Karl Cuba :: Wed, 05/26/2010 - 6:34pm

As a non-American, I do find the idea of these circuits intriguing. My mind's eye summons an image of lots of old men and women in gowns running around each other in concentric circles, passing bits of paper up and down to each other as they proceed around their circular ziggurat. I really hope that this is indeed the case.

7
by Shattenjager :: Wed, 05/26/2010 - 7:43pm

I love this image.

14
by GnomeChumpsky (not verified) :: Wed, 05/26/2010 - 9:59pm

This image is exactly correct, except that it takes years for a piece of paper to get passed up or down and the circles that they "run" in are even slower. Also, papers don't get passed sideways, only up and down ... actually, the more that I think about it, it probably looks more like something M.C. Escher would draw, but less practical.

16
by Joe T. :: Wed, 05/26/2010 - 11:48pm

US Federal judges used to "ride circuit", holding court in the many major cities of each district during a session as part of their responsibilities. They of course no longer ride circuit and insist that you as a party to the case come see them in the comfort of their own courtroom.

6
by nuk :: Wed, 05/26/2010 - 7:14pm

As someone who knows almost nothing about the law, I found this piece, and the rebuttal comments, pretty interesting. Thanks.

8
by Shattenjager :: Wed, 05/26/2010 - 7:47pm

I found it interesting as well, and I probably know more than most about the law. (I at least hope I do, since I am through one year of law school.)

17
by gratif1 (not verified) :: Thu, 05/27/2010 - 1:10am

Life advice:
It's not too late to quit.

19
by Shattenjager :: Thu, 05/27/2010 - 2:01am

I have a feeling my student loan holders would disagree.

25
by Rocco :: Thu, 05/27/2010 - 8:16am

As a lawyer, I'd suggest changing to a more noble profession, like bank robbery.

37
by galactic_dev :: Thu, 05/27/2010 - 11:35am

Or even less noble, like banking.

42
by Lance :: Thu, 05/27/2010 - 12:09pm

Zing!

46
by Temo :: Thu, 05/27/2010 - 2:04pm

+1

51
by Rocco :: Thu, 05/27/2010 - 4:15pm

Touche.

20
by Danish Denver-Fan :: Thu, 05/27/2010 - 3:51am

Completely agree!

A good job of giving the reader the highlights of a pretty complicated case.

10
by Bill Prudden (not verified) :: Wed, 05/26/2010 - 7:49pm

I have read everything I could get my hands on regarding this case, and this is, by far, the best explanation of the last couple of years. Very much appreciated, and thank you both.

Bill Prudden

11
by speedegg :: Wed, 05/26/2010 - 7:59pm

whoa, basically SCOTUS sent the case back down to the lower court to tell them to look at it again IAW specific instructions towards collusion (section 1) but still leaves monopolization (section 2) open.

I'd say American Needle won the second battle in a long war, but the campaign is still up for grabs, while baseball enjoys immunity with respect to antitrust status. I can see why NFL lawyers wanted to push this case, it didn't necessarily backfire but didn't go how they planned.

12
by Mike Kurtz :: Wed, 05/26/2010 - 8:10pm

The Supreme Court didn't rule on the Section 2 claim because it wasn't part of the appeal and cert. The only question before the Court was the propriety of summary judgment on the Section 1 claim, so the Supreme Court didn't say anything one way or the other about the Section 2 claim.

15
by speedegg :: Wed, 05/26/2010 - 10:29pm

Yes, essentially section 2 is still open for judgement and in some ways might be the trickier of the two. Wonder if they will use past case law for a ruling or use "new" doctrine to set a precedent.

18
by big_jgke :: Thu, 05/27/2010 - 1:13am

As an ig'nant Canadian, this all seems like a lot of specialised legal mumbo jumbo that has relatively little to do with what basically every fan knows is the truth. The NFL uses one merchandiser so they can maximise profit and the merchandiser will pass the exorbitant fees it pays down to the regular joe consumer. We all know this. The legality of the situation is interesting but is essentially inconsequential to the greater point of this just being another obvious case of the rich getting richer at the expense of their loyal customers.

To me this case is comparable to the hub-bub over a cold weather superbowl. Those with vested interests, like parties, and corporate seats, and sponsorships care about where the game is played, but the 99.99999999999% of people who watch the game do so from their own homes and to them, this is a great thing.

I didn't need to hear the arguments to know that it would be great to watch a snowy superbowl (seriously try watching the Grey Cup, the conditions do NOT detract from the atmosphere at/of the game), just like I didn't need to hear the arguments to implicitly know that this was just another case of the NFL trying to screw consumers out of more money.

22
by bubqr :: Thu, 05/27/2010 - 5:04am

So...Basically you comment about an article whose only topic is the legal issues about this case, and its legal implications, saying that "this all seems like a lot of specialised legal mumbo jumbo that has relatively little to do with what basically every fan knows is the truth" and "(you) didn't need to hear the arguments to implicitly know that this was just another case of the NFL trying to screw consumers out of more money".

Remind me why you opened this web page, read this article you had no interest in and decided to spend time commenting it then ?

Thanks for the article, I enjoyed it btw.

36
by bravehoptoad :: Thu, 05/27/2010 - 11:33am

The guy is pointing out something obvious -- the NFL and Rebok profit by this exclusive agreement, to the detriment of the consumer.

I don't see why that observation is worth scorn.

23
by tuluse :: Thu, 05/27/2010 - 6:43am

Except prices of merchandise aren't much different. Hell, the Madden games are beating inflation.

35
by Still Alive (not verified) :: Thu, 05/27/2010 - 11:26am

Yes but compared to unlicensed products they are complete crap. A lot fo developers would be completely ashamed of them. There is no money put into the franchise at all, they just print money each year off a skeleton budget.

41
by tuluse :: Thu, 05/27/2010 - 12:02pm

I disagree, All Pro Football 2k8 sucked. Especially on the PS3.

44
by Raiderjoe :: Thu, 05/27/2010 - 12:43pm

Have e played many footbal games from tecmo bowl, supet tecmo bowl, original Madden up to madden 05, the ones on sega.dreamcast, joe montana football, espn football, some unlicensed crap.ones in 80s and 90s and some others. And favorite one of all.time and one consider best is all pro footbfll 2k8 so.gooing to have to disagree with you

45
by tuluse :: Thu, 05/27/2010 - 1:05pm

Well maybe they did a much better job on the 360.

On the PS3 there were terrible frame rate issues, I found running to be worthless (even more so than Madden), also the lack of a true franchise mode really turned me off.

71
by zlionsfan :: Thu, 06/03/2010 - 9:30pm

I don't think they did. The way you built a team was interesting, but not nearly enough to be the core of a game in the 2000s. (One-season games were decent in the '90s.)

Let's face it, if we buy an American football game and it's not an NFL game, it's going to struggle. My personal opinion is that once 2K couldn't make NFL games, EA put innovation on cruise ... it seems most of the things they add each year are cute or showy or whatever, but don't really add that much to the gaming experience and certainly don't do anything to fix long-existing bugs in the game. (Obviously online franchise mode would be impressive, and when they have a full online franchise mode, maybe in two or three years, maybe it will be impressive. Right now it's pretty clearly an unfinished product.)

In fact, in terms of gaming, I think that's a common experience, although it's probably limited to sports: I can't think of another type of game that could be limited by licensing. Once the monopoly is established, there isn't much consumers can do other than to complain on message boards and hope the devs listen and are allowed to act on those suggestions.

26
by Independent George :: Thu, 05/27/2010 - 8:57am

Well, you go the ig'nant part right.

21
by The Ninjalectual :: Thu, 05/27/2010 - 3:53am

Great article. I would have liked about 1,000 more words and all the detail that would come with it!

"Just look at that pumpkin."
-John Madden, looking at the moon.

28
by Temo :: Thu, 05/27/2010 - 10:03am

Is it bad that I find this way more entertaining writing than when you two write Scramble?

/only kidding

29
by Raiderjoe :: Thu, 05/27/2010 - 10:12am

Who is Scotus?

Going yo read whole article layer today. Maybe hace a couple drinks yoo. Maybe covered above but wonder if nfl teams going b!ck to old 2000 days when some teams have puma jerseys othedd have nike and some teebok others apex one

31
by tuluse :: Thu, 05/27/2010 - 10:31am

Supreme Court of the United States

33
by panthersnbraves :: Thu, 05/27/2010 - 11:01am

Think of SCOTUS and brother POTUS as kind of like the Duff Sisters (Hillary and Haylie). They used to have some relevance, but nowadays are mostly good for the occasional headline, but not really affecting the average Joe any more.

(Supreme Court of the United States)

48
by bravehoptoad :: Thu, 05/27/2010 - 3:12pm

More importantly, why SCOTUS? It's a six-letter acronym for a three-syllable phrase. "Supreme Court." Short to say, short to type. WTF?

50
by tuluse :: Thu, 05/27/2010 - 3:30pm

There are other Supreme Courts

59
by Noah of Arkadia :: Fri, 05/28/2010 - 11:53am

I would go for SCOT and leave it at that.

Great article, btw

62
by tuluse :: Fri, 05/28/2010 - 3:38pm

SCUS would make a lot more sense.

52
by Joe T. :: Thu, 05/27/2010 - 5:14pm

The scotus is what shrivels up when Brian Cushing takes steroids.

54
by Raiderjoe :: Thu, 05/27/2010 - 6:23pm

lol at cushuing comment

also lol at typing skills madr by me this m
orning from phone

43
by Raiderjoe :: Thu, 05/27/2010 - 12:38pm

Thanks. Never saw suoreme court acronym scotus ever before. Never in school or in print. Learn something new ev3ryday

72
by google map optimization (not verified) :: Sun, 11/11/2012 - 12:15pm

Hi! I could have sworn I've been to this blog before but after checking through some of the post I realized it's new to me.
Anyways, I'm definitely happy I found it and I'll be book-marking and checking back
often!

73
by Dong (not verified) :: Tue, 11/13/2012 - 6:19pm

Excellent beat ! I would like to apprentice at the same time as
you amend your website, how can i subscribe for a blog
site? The account aided me a appropriate deal. I
were tiny bit familiar of this your broadcast offered shiny clear idea

74
by expert wordpress (not verified) :: Fri, 12/14/2012 - 2:27pm

I'm truly enjoying the design and layout of your site. It's a very easy on
the eyes which makes it much more enjoyable
for me to come here and visit more often. Did you hire out a developer to create your theme?
Outstanding work!

75
by mano (not verified) :: Tue, 01/01/2013 - 7:57am

Walker is out this week with a http://www.fresh-tests.com/exam/640-802.htm broken jaw (wierdly kneed in the head accidentially in the week 16 Seahawks game). Not positive how replacing him with non-receiving threat Peelle is going to mess up 640-802 tests those plays (fewer TE arounds for positive).

76
by homemaking (not verified) :: Fri, 03/01/2013 - 5:25am

Appreciation to my father who told me about this weblog,
this website is really amazing.

Here is my homepage - homemaking