Should the Teams of the NFL Be Treated as a Single Entity Under the Sherman Act?

Section 1 of the Sherman Act prohibits concerted actions unreasonably restraining trade, but exempts collective actions by separate business entities who share a complete unity of interest.  Whether § 1 applies to the major professional sports leagues has long been a matter of debate.  On the one hand, each team is separately owned and seeks to maximize its own profits.  On the other hand, each team has an important shared interest in maintaining a full league of competitive teams — who will pay to see the Yankees if they effortlessly crush all opponents?  So, does a league potentially violate § 1 when it blocks its members from entering into individual merchandising or broadcasting deals?

Matt Mitten reviews the history of litigation addressing this issue in a new paper on SSRN.  His analysis concludes with a discussion of the Supreme Court’s most recent pronouncement on the question, American Needle, Inc. v. National Football League, 130 S. Ct. 2201 (2010).  In American Needle, the Court held that the NFL’s grant of an exclusive trademark license to a headwear manufacturer was not immune from § 1 scrutiny.  The Court wrote, “Common interests in the NFL brand partially unite the economic interests of the parent firms, but the teams still have distinct, potentially competing interests.”  Although the question is a difficult one, Matt argues that Court reached the right result.  The paper is entitled “American Needle v. NFL: U.S. Professional Clubs are Separate Economic Threads When Jointly Marketing Intellectual Property.”

Continue ReadingShould the Teams of the NFL Be Treated as a Single Entity Under the Sherman Act?

Best of the Blogs

Con law, con law everywhere. Randy Barnett and Jack Balkin continued their debate over the constitutionality of the individual insurance mandate of the health care reform law. Barnett argued on Sunday that the Obama administration’s move to defend the mandate as a tax indicated its assessment that the Commerce Clause might not be sufficient, thus refuting those who dismissed the Commerce Clause challenge as frivolous. Balkin responded that it just shows government attorneys being good lawyers by piling on every argument they can think of, and that what’s really going on here is an attempt to turn back the clock on the cultural-legal shift that accompanied the New Deal. (See Josh Blackman for more on Balkin’s argument.) Barnett replies that if he’s making an “off-the-wall” argument, he’s got 21 state Attorney Generals with him, and that the truly unprecedented argument is “[t]he claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS.”

That wasn’t the only New Deal flashback this week.

Continue ReadingBest of the Blogs

Study Reveals Illegal Racial Discrimination in Jury Selection

Last month, the Equal Justice Initiative (EJI) released a study, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which revealed a prevalence of racial bias in jury selection in the South.  The report stands as the most comprehensive study of racial discrimination in jury selection since 1986, when the US Supreme Court sought to limit the practice in the landmark case Batson v. Kentucky.

Racial discrimination in jury selection first became illegal when Congress passed the Civil Rights Act of 1875.  Despite federal legislation, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.

Evidence suggests the phenomenon persists through the use of peremptory challenges.  A peremptory challenge essentially provides attorneys the ability to exclude a certain number of potential jurors without explanation of their removal.

Continue ReadingStudy Reveals Illegal Racial Discrimination in Jury Selection