The second interesting point is how the case got to the Supreme Court. Not unusually, the loser in the lower courts, American Needle, sought Supreme court review. What is unusual is that the NFL sought Supreme Court review too:

For a time, the American Needle case seemed on its way to a rapid conclusion. The NFL won as quickly and as conclusively as anyone can win an antitrust lawsuit in the trial court and in an appeals court. But American Needle didn't give up. It filed a request for review to the U.S. Supreme Court, one of 7,500 or so such requests filed annually. The court takes only 70 or 75 cases for decision each year, and American Needle's quest seemed quixotic at best.

Then, in a stunning development, the NFL told the Supreme Court it endorsed American Needle's request for a hearing and a decision. The league's attorneys announced, in a remarkable understatement, that they "are taking the unusual step of supporting" American Needle's effort to have the case reviewed at the highest level.

The league's action was a legal bombshell. Instead of standing on its lower-court wins over American Needle, the league told the Supreme Court that it wants the justices to consider an issue far beyond the caps-and-hats contract. It wants the court to grant the NFL total immunity from all forms of antitrust scrutiny, an immunity that would then apply to the NBA, the NHL and MLB, as well.

This excerpt is not correct when it asserts that a ruling in favor of the NFL's position would give it "antitrust immunity." It would however, take away the most likely antitrust attacks on the NFL (and other sports leagues) - that they have agreed to act in concert to restrain trade in violation of Section 1 of the Sherman Act.

The Supreme Court asked the United States for its view on whether cert should be granted on the questions the NFL wanted answered. The Obama Justice Department opposed a grant of cert. But the Roberts Court wanted the case. And it has taken it (PDF):

Two questions are presented:

1. Are the NFL and its member teams a single entity that is exempt from rule of reason claims under Section 1 of the Sherman Act simply because they cooperate in the joint production of NFL football games, without regard to their competing economic interests, their ability to control their own economic decisions, or their ability to compete with each other and the league?

2. Is the agreement of the NFL teams among themselves and with Reebok International, pursuant to which the teams agreed not to compete with each other in the licensing and sale of consumer headwear and clothing decorated with the teams' respective logos and trademarks, and not to permit any licenses to be granted to Reebok's competitors for a period of ten years, subject to a rule of reason claim under Section 1 of the Sherman Act, where the teams own and control the use of their separate logos and trademarks and, but for their agreement not to, could compete with each other in the licensing and sale of Team Products?

LOWER COURT CASE NUMBER: 07-4006

CERT. GRANTED 6/29/2009

The cert. grant seems to be based on circuit split. But was the alleged circuit split on the questions presented the basis of the Seventh Circuit's holding? Here's what the government argued (PDF):

The potential implications of the court of appeals’ decision are problematic. The court’s reasoning could be understood to extend single-entity treatment to separately owned NFL teams with respect to their decision to collectively license their intellectual property, without regard to the possibility that the teams’ agreement would eliminate the potential for meaningful competition among them, simply because potential efficiencies are associated with collective marketing by participants in a lawful venture to produce NFL football. Neither Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), nor any other decision of this Court supports such an expansive application of the single-entity concept.

Nonetheless, this Court’s review is not warranted. The court of appeals specifically limited its holding to the facts of this case. Petitioner’s asserted injury appears to flow not from any anticompetitive effects of the teams’ agreement to market their intellectual property collectively, but only from a subsequent and independent decision to contract with a single licensee. And, although some of the court of appeals’ reasoning is problematic, the court’s holding does not conflict with any decision of this Court or any other circuit. Neither petitioner nor the NFL respondents have presented a question warranting review in this particular case, and the sports-league context is not a suitable one in which to address broader questions concerning the application of single-entity principles to joint ventures generally. Accordingly, the Court should deny the petition.

A modest Court, a restrained Court, would not have reached out to take this case imo. But the judicially activist Roberts Court was eager to reach out to take the case.

How activist will the Court be? The Court could issue a narrow opinion, both in terms of this particular dispute and whether the NFL is a single entity. Or it could take a broader approach, and make sweeping statements regarding antitrust law, and not just for other sports leagues.

It should make for an interesting argument on January 13 and some interesting opinions. I imagine the role of the court will be front and center in both the arguments and the opinions.

Speaking for me only