- The Washington Times - Thursday, January 14, 2010

Supreme Court justices on Wednesday did not seem interested in immediately granting the National Football League the broad antitrust law protection the league is seeking.

In a closely watched case with broad applications for the nation’s sports businesses, justices seemed skeptical of arguments that the NFL should be considered one business, not 32 separate teams working together, when it comes to selling NFL-branded items. The lower courts had thrown out an antitrust lawsuit brought against the league by one of its former hat makers.

Illinois-based American Needle Inc. appealed the dismissal to the Supreme Court. But the NFL also appealed, hoping to get broader protection from antitrust lawsuits.

Major League Baseball is the only professional sports league with broad antitrust protection. The National Basketball Association, the National Hockey League, the NCAA, NASCAR, professional tennis and Major League Soccer are supporting the NFL in hopes the court will expand the same broad antitrust exemption to other sports.

If the court rules broadly for the NFL, it could shield professional sports leagues from antitrust claims in other areas, including player salaries, relocating teams, video-game rights and television-broadcasting rights.

“You are seeking through this ruling what you haven’t gotten from Congress: an absolute bar to an antitrust claim,” Justice Sonia Sotomayor told NFL lawyers.

NFL lawyer Gregg H. Levy said the league is making a narrower argument — that, as “long as the NFL clubs are members of a unit [and] they compete as a unit in the entertainment marketplace, … they should be deemed a single entity” and not subject to antitrust law.

“The question is: Should they be permitted to join their centers of economic power into one when they promote and sell their T-shirts, sweatshirts, et cetera?” Justice Stephen G. Breyer said.

American Needle had been one of many companies that made NFL headgear until the league awarded an exclusive contract to Reebok International Ltd. in 2001.

American Needle sued the league and Reebok in 2004, claiming the deal violated antitrust law. Lower courts threw out the suit, holding that nothing in antitrust law prohibits NFL teams from cooperating on apparel licensing so the league can compete against other forms of entertainment.

American Needle wants the lawsuit revived in the lower courts, while the NFL wants the Supreme Court to uphold the lower court’s decision that it can be considered a single entity and apply it around the nation.

American Needle’s lawyer, Glen D. Nager, under prompting from Justice Ruth Bader Ginsburg, told the court that everything the league’s 32 teams do “in concert, by agreement, by consent” should be subject to antitrust investigation.

“You want the [New England] Patriots to sell T-shirts in competition with the [New Orleans] Saints or whoever,” said Justice Breyer, who said he knows baseball better. The judge argued that it is unlikely that NFL teams could compete with each other in selling apparel, because when it comes to baseball, “I don’t know a Red Sox fan who would wear a Yankees sweater, even if you gave it away.”

Several justices wondered whether the antitrust investigation could stretch to the rules of the game and scheduling, “things that it just seems odd to subject” to antitrust investigation, Chief Justice John G. Roberts Jr. said.

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