No big surprise there. But what’s a little peculiar about the American Needle case, as the Los Angeles Times first reported, is that the NFL encouraged the Supreme Court to take it–even though the league actually won at the U.S. Court of Appeals for the Seventh Circuit in 2008. (All of the briefing is here, courtesy of the good folks at Scotusblog.)
Some sports lawyers say the pro sports establishment sees American Needle as its opportunity to obtain a Supreme Court blessing for anticompetitive behavior. The plaintiff, American Needle, used to have licensing deals with some NFL teams. But the arrangements ended in 2001, when the NFL gave Reebok International exclusive licensing rights to all NFL teams’ merchandise. American Needle claimed the Reebok deal violated antitrust laws, but the Seventh Circuit disagreed, finding that for the purposes of marketing and selling products, the NFL operated as a single entity, not a bunch of teams competing against each other.
Other sports leagues joined the NFL in asking the Supreme Court to affirm the Seventh Circuit’s ruling, which prompted suspicion that the leagues are looking for a wide-ranging ruling on antitrust exemptions. Jeffrey Kessler of Dewey & LeBoeuf, who filed a brief on behalf of football, basketball, baseball, and hockey players, told the Los Angeles Times that the NFL’s appeal was like a “Trojan horse designed to free sports owners so they can act without fear of antitrust laws.” Kessler said more work stoppages could result if the NFL wins at the high court.
Levy declined to comment to us, but in the past, as The Wall Street Journal’s Law Blog has reported, NFL in-house lawyer Jeff Pash has spoken of the American Needle case in narrow terms.
Levy is hoping to go 2-0 for the NFL at the Supreme Court. In 1996, he argued Brown v. Pro-Football, in which the Supreme Court affirmed an appellate court’s dismissal of a class action challenging a contract between the NFL and the NFL Players Association that limited how much each club could pay practice players.
Glen Nager of Jones Day is counsel of record to American Needle. He declined to comment on NFL’s motives for seeking a review of the Seventh Circuit’s ruling.