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The NFL and Antitrust Law

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The Economics of the National Football League

Part of the book series: Sports Economics, Management and Policy ((SEMP,volume 2))

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Abstract

While every owner is likely to say that their goal is to win and to put the best team out on the field, it is clear that win maximization does not completely describe the actions taken by owners. As we will see below, few teams in the NFL lose money from year to year and the exponential growth in franchise values does not suggest a situation in which franchises compete away all of their profits. Moreover, examiners of the win-maximizing hypothesis suggest a likely outcome for a league dominated by win-maximizing teams will be the eventual destruction of competitive balance and inviability of poorer market teams, an outcome which has not manifest in the NFL where competitive parity has reigned supreme. On the other hand, few teams, regardless of profitability, seem to be content to remain in the cellars of their sports from year to year and so winning must factor into the decision-making somewhere. Thus, the answer as to whether the profit-maximizing or win-maximizing model describes the NFL is somewhat inconclusive, though the author would suggest that, on the spectrum of possibilities, NFL owners are more profit-conscious than win-conscious.

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Notes

  1. 1.

    National Collegiate Athletic Ass’n. Board of Regents of University of Oklahoma, 468 U.S. 85, 101 (1984).

  2. 2.

    United States v. National Football League, 116F. Supp. 319, 323 (E.D. Pa. 1953).

  3. 3.

    Id. Simon Rottenberg was the first to tackle these concepts in his seminal 1956 article titled “The baseball players’ labor market” (J Polit Econ 64:242).

  4. 4.

    See, e.g., Hamlen WA Jr (2007) Deviations from equity and parity in the national football league. J Sports Econ 8:596–615, 596 (“Thus, it is recognized that although the profit motive is only one of the possible motives that could be assumed, it does represent the benchmark objective and the one that should be considered first.”). Id. at 598.

  5. 5.

    See, e.g., Neale WC (1964) The peculiar economics of professional sports. Q J Econ 78:1–14; Cairns J, Jennett N, Sloane PJ (1986) The economics of professional sports leagues: some insights on the reform of transfer markets. J Econ Stud 13:87–107; and Dr. Kesenne S (2006) Club objectives and ticket pricing in professional team sports. Eastern Econ J 32:549 (“[m]aximizing the winning percentage of a team, as a special case of utility maximization, is a rather specific but not unrealistic objective” of many sports teams).

  6. 6.

    See Vrooman J (2009) Theory of the perfect game: competitive balance in monopoly sports leagues. Rev Ind Org 34:5–44.

  7. 7.

    Id. at 7.

  8. 8.

    Id.; see also Fort R, Quirk J (2004) Owner objectives and competitive balance. J Sports Econ 5:20–32.

  9. 9.

    Fort & Quirk, supra note 8 at 25.

  10. 10.

    Simon Rottenberg was the first to introduce the implications of this model in his examination of the labor market for baseball players. See Rottenberg, supra note 3. Rottenberg’s “invariance proposition” is based on the assumption that teams are profit maximizers whose willingness to pay for the input of player talent is derivative of the demand for the team’s output (games).

  11. 11.

    The foregoing analysis is useful to understand the decision-making process and its implements with respect to owners, though it should be acknowledged that it is a fairly simplistic and, in some respects, unrealistic way of looking at the functioning of teams. As many economists would note, the decisions of owners with respect to player talent, coaching talent, and even venues are not made individually or in a vacuum, but are made within the context of a market for such inputs where any one team’s decisions and the associated costs are to varying degrees dependent on the choices of other teams in the market. See, e.g., Kesenne S (2009) What’s the game team owners play? Rivista di Diritto ed Economia Dello Sport 5:81–84; Szymanski (2004) Professional team sports are only a game: the Walrasian fixed-supply conjecture model, contest-Nash equilibrium and the invariance principle. J Sports Econ 5:111. That said, the realities of these markets do not change the analysis which instructs owners’ ultimate goals, only the degree to which they may actually achieve them.

  12. 12.

    Previous work in this area suggests that the most talented players do have a higher marginal revenue product of labor with respect to large market teams than for small market teams. See, e.g., Scully GW (1974) Pay and performance in major league baseball. Am Econ Rev 64:915–930. Ultimately, this is likely to lead to significant talent discrepancies between large (or otherwise “good”) market and small (or otherwise “poor”) market teams, which may intuitively be expected to have a deleterious effect on fan interest as the contests between the teams become more and more predictable. See Quirk J, Fort R (1997) Competitive balance in sports leagues. Princeton University Press, Princeton, pp 240–293; see also Crooker JR, Fenn AJ (2007) Sports leagues and parity when league parity generates fan enthusiasm. J Sports Econ 8:139, 157.

  13. 13.

    See Fort and Quirk, supra note 8.

  14. 14.

    Id.

  15. 15.

    See Sloane PJ (1971) The economics of professional football: the football club is a utility maximiser. Scott J Polit Econ 18:121–146.

  16. 16.

    Id.

  17. 17.

    The revenue data per team is set forth in an annual survey of team values and financial information conducted by Forbes Magazine. For the most recent iteration of Forbes’ invaluable list, see Badenhausen K, Ozanian MK, Settimi C (2010) The business of football, 2010. Forbes. Available at http://www.forbes.com/2010/08/25/most-valuable-nfl-teams-business-sports-football-valuations-10_land.html (last visited October 2, 2010).

  18. 18.

    The author that the discussion herein contemplates the results of a simple correlation analysis, which is needfull here to illustrate the relative movements of team revenues and winning percentages. This should not be confused with causation, which can only be described at a level of confidence and statistical siginificance using a robust regression analysis that was not employed here.

  19. 19.

    Gary Roberts, in an influential piece in the UCLA Law Review, lays out the argument, if not the defense, for the prospect that professional sports leagues are single entities. See, Roberts (1984) Sports leagues and the Sherman Act. UCLA Law Rev 32:219–301.

  20. 20.

    A very useful discussion of the various output markets with respect to professional teams and leagues can be found in Kesenne (2007) The economic theory of professional team sports: an analytical treatment, pp 8–25.

  21. 21.

    American Needle, Inc. v. National Football League, 538F.3d 736, 737 (7th Cir. 2008).

  22. 22.

    NFL Constitution and Bylaws, Section 2.2.

  23. 23.

    NFL Constitution and Bylaws, Sections 3.2(A) and 9.1(B)(1).

  24. 24.

    NFL Constitution and Bylaws, Section 2.1(A).

  25. 25.

    NFL Constitution and Bylaws, Section 8.1.

  26. 26.

    See Zimbalist AS (2002) Competitive balance in sports leagues: an introduction. J Sports Econ 3:111, 117–118 (finding that “[e]conometric work has made it clear that there is little, if any, profit incentive to win in the NFL.”).

  27. 27.

    Major League Soccer, Standard Player Agreement, at 1 (on file with the author) [hereinafter Standard Player Agreement].

  28. 28.

    See Fraser v. Major League Soccer, LLC, 284F.3d 47, 54 (1st Cir. 2002) (noting that the investor-operators hire coaches, general managers, and local staff at their own expense and in their sole discretion and that agreements involving home ticket prices, local marketing campaigns, and local broadcast licensing rights may be entered into by each of the investor-operators without prior approval of or notification to the MLS, each of which suggested to the court a significant amount of independence and economic autonomy).

  29. 29.

    Alfred, Lord Tennyson, In Memoriam A.H.H., verse XVI, in In Memoriam (1850) (“And love Creation’s final law—Tho’ Nature, red in tooth and claw ….”).

  30. 30.

    U.S.C. §§ 1–7 (2004) (1890).

  31. 31.

    “Market power” is itself a somewhat ambiguous phrase. In the context of this chapter, the author takes the term to mean either sole or concerted action by firms in a particular market which reduces output or restricts competition in order to raise prices.

  32. 32.

    See Standard Oil v. Fed. Trace Comm’n, 340 U.S. 231, 248 (1951) (“The heart of our national economic policy long has been faith in the value of competition.”). See also Nat’l Soc’y Prof. Engineers v. United States, 435 U.S. 679, 695 (1978) (“The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services … all elements of a bargain-quality, service, safety, and durability-and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers.”).

  33. 33.

    See, e.g., Bork R (1966) Legislative intent and the policy of the Sherman Act. J Law Econ 9:7, 12 (“Congress was very concerned that the law should not interfere with business efficiency. This concern, which was repeatedly stressed, was so strong that it led Congress to agree that monopoly itself was lawful if it was gained and maintained only through superior efficiency.” This suggests a significant, if not the prevailing interest was in promoting market efficiency and competition); Robert Bork, supra, at 7 (“the policy the courts were intended to apply is the maximization of wealth or consumer want satisfaction.”). But see Bradley R Jr (1990) On the origins of the Sherman Antitrust Act. Cato J 9:737–742 (arguing that personal animus for particular trust heads and his political defeat for the Republican nomination aided by the head of a diamond trust led Sherman on a “crusade” to break those who had spurned him).

  34. 34.

    See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984) (finding that a “plurality of actors” an implicit requirement for violation of Section 1 of the Sherman Act).

  35. 35.

    See Jacobs MS (1991) Professional sports leagues, antitrust, and the single-entity theory: a defense of the status quo. Indiana Law J 67:25, 27.

  36. 36.

    See, e.g., Los Angeles Mem’l Coliseum Comm’n, 726F.2d at 1388–1389 (rejecting the claim that the NFL is a single entity for Section 1 purposes and finding that the operation of the league is as a result of all the teams acting in a coordinated fashion). But see American Needle, 538F.3d at 737 (finding that, at least in the context of the licensing of intellectual property, the NFL teams constituted a single entity for antitrust purposes, though this decision was later reversed by the Supreme Court as discussed in Section 16.5.5 below. See American Needle, Inc. v. National Football League, No. 08-661 (U.S. May 24, 2010).

  37. 37.

    U.S.C. § 2 (2004) (1890).

  38. 38.

    See, e.g., Berkey Photo, Inc. v. Eastman Kodak Co., 603F.2d 263, 294 (2d Cir. 1970) (the existence of monopoly power alone “is not in itself anticompetitive. Indeed, although a monopolist may be expected to charge a somewhat higher price than would prevail in a competitive market, there is probably no better way for it to guarantee that its dominance will be challenged than by greedily extracting the highest price it can.”).

  39. 39.

    United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966) (“The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”).

  40. 40.

    See, e.g., United States Football League v. National Football League, 842F.2d 1335, 1361 (2d Cir. 1988) (upholding jury verdict that a monopolist “is free to set as its legitimate goal the maximization of its own profits so long as it does not exercise its power to maintain that power.”).

  41. 41.

    See, e.g., United States Football League, 842F.2d at 1364; Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351F. Supp. 462 (E.D. Pa. 1972); Fishman v. Estate of Wirtz, 1981-2 Trade Cas. (CCH) ¶64,378 (N.D. Ill. Oct. 28, 1981), at 74,756.

  42. 42.

    U.S.C. § 12-27, 29 U.S.C. § 52-53 (2004) (1914).

  43. 43.

    U.S.C. § 13 (2004) (1914).

  44. 44.

    U.S.C. § 14 (2004) (1914).

  45. 45.

    U.S.C. § 18 (2004) (1914).

  46. 46.

    See Kaplan D (2010) Goodell sets revenue goal of $25B by 2027 for NFL. Sports Bus J. Available at http://www.sportsbusinessjournal.com/article/65348 (last visited July 23, 2010).

  47. 47.

    See The CIA World Fact Book, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2195.html (last visited July 23, 2010).

  48. 48.

    Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 209-10 (1922).

  49. 49.

    U.S. 356, 364-65 (1953).

  50. 50.

    U.S. 445 (1957).

  51. 51.

    Id. at 451-52.

  52. 52.

    See, e.g., American Football League v. National Football League, 205F. Supp. 60 (D. Md. 1962) (“It is not disputed that [the attendant professional football leagues and teams] are engaged in interstate commerce and subject to the provisions of the antitrust laws.”); see also, Hecht v. Pro Football, Inc., 444F.2d 931 (D.C. Cir. 1971) (referring to the “usual applicability of the antitrust laws to any other contract ‘by, between or among persons engaging in, conducting, or participating in the organized professional team sports of football.’”

  53. 53.

    U.S. 752 (1984).

  54. 54.

    Id. at 752, 769.

  55. 55.

    Id. at 767 (citing Monsanto Corp. v. Spray-Rite Services Corp., 465 U.S. 752, 761 (1984) (“The Sherman Act contains a basic distinction between concerted and independent action.”).

  56. 56.

    Id. at 767. With regard to those single enterprises, Justice Burger was explicit—section 1 was to have no jurisdiction: “it is perfectly plain that an internal ‘agreement’ to implement a single, unitary firm’s policy does not raise the antitrust dangers that section 1 was designed to police.” Id.

  57. 57.

    See McNeil v. National Football League, 790F.Supp. 871, 879–80 (D. Minn. 1992).

  58. 58.

    See Sullivan v. National Football League, 34F.3d 1091, 1099 (1st Cir. 1994) (citing City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838F.2d 268, 274–77 (8th Cir. 1988) (defining “diverse interests” as “interests which tend to show that any two of the defendants are, or have been, actual or potential competitors.”).

  59. 59.

    See, e.g., United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150 (1940) (finding that combinations formed for the purpose of raising, depressing, fixing, pegging, or stabilizing price of commodity is illegal per se).

  60. 60.

    See, e.g., Addyston Pipe & Steel Co. v. United States, 85F. 271 (6th Cir. 1898); Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792F.2d 210 (D.C. Cir. 1985).

  61. 61.

    See Gavil AI, Kovacic WE, Baker JB (2002) Antitrust Law in Perspective 27.

  62. 62.

    See, e.g., National Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325F.3d 712, 719 (6th Cir. 2003) (citing an earlier case in noting that “‘courts have consistently analyzed challenged conduct under the rule of reason when dealing with an industry in which some horizontal restraints are necessary for the availability of the product’ such as sports leagues.”).

  63. 63.

    NCAA, 468 U.S. at 101.

  64. 64.

    See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979) (implementing a “consumer ­welfare test” in its analysis and characterizing the Sherman Act as “designed … as a ‘consumer welfare prescription.’”).

  65. 65.

    See Clarett v. NFL, 369F.3d 124, 143 (2d. Cir. 2004) (upholding NFL rule which limited player eligibility to those who are three seasons removed from their high school graduation). But see Kapp v. National Football League, 586F.2d 644 (9th Cir. 1978) (affirming a lower court ruling that the “Rozelle Rule,” which required a new team to compensate the old team with players, draft picks and/or money upon signing a player from the old team (deterring the signing of free agents), was violative of Section 1 of the Sherman Act).

  66. 66.

    Of course, placing television cameras in a room with United States Senators likely accounts for just as much, if not more, of the devolution, not to be cynical about the “most deliberative” legislative body in the world.

  67. 67.

    Weiler PC, Roberts GR (2004) Sports and the law, 3rd edn, p 634.

  68. 68.

    Id.

  69. 69.

    National Football League, 116F. Supp. at 319.

  70. 70.

    Id. at 327.

  71. 71.

    Weiler and Roberts, supra note 67 at 431.

  72. 72.

    Id. at 325–326.

  73. 73.

    Id. at 641.

  74. 74.

    Id.

  75. 75.

    United States v. National Football League, 196F. Supp. 445 (E.D. Pa. 1961).

  76. 76.

    Id. at 446–447.

  77. 77.

    Anderson DL (1995) The sports broadcasting act: calling it what it is—special interest legislation. Hastings Comm Ent Law J 17:945, 949 (discussing lobbying efforts by the NFL).

  78. 78.

    U.S.C. § 1291

  79. 79.

    See American Needle, Inc. v. National Football League, Amicus brief of economists in support of petitioner at 13–14 (Sept 24, 2009).

  80. 80.

    Weiler and Roberts, supra note 67 at 431.

  81. 81.

    Badenhausen K, Ozanian MK, Settimi C (2009) Recession tackles NFL team values. Forbes. Available at http://www.forbes.com/2009/09/02/nfl-pro-football-business-sportsmoney-football-values-09-values.html (last visited July 25, 2010).

  82. 82.

    Fort R, Quirk J (1995) Cross-subsidization, incentives, and outcomes in professional team sports leagues. J Econ Lit 33:1265, 1291.

  83. 83.

    American Needle, Inc. v. National Football League, Amicus Brief of Economists in Support of Petitioner at 14 (Sept. 24, 2009).

  84. 84.

    United States Football League v. National Football League, 842F.2d 1335, 1357 (2d Cir. 1988).

  85. 85.

    Weiler and Roberts, supra note 67 at 673–674.

  86. 86.

    Id. at 674.

  87. 87.

    Forbes, supra note 49.

  88. 88.

    See American Needle, Inc. v. National Football League, Amicus Brief of Various Players’ Associations in Support of Petitioner at 9 (Sept. 25, 2009) (stating its findings that of the $7.5 billion generated by NFL teams in 2008, approximately $4.5 billion came from revenue sources whose prices were set by the teams individually).

  89. 89.

    See Associated Press (2009) NFL to cut $100 million annual revenue-sharing program. Available at http://www.nfl.com/news/story?id=09000d5d814bea04 (last visited July 23, 2010).

  90. 90.

    Chicago Pro. Sports Ltd. Partnership v. Nat’l. Basketball Ass’n., 961F.2d 667, 672 (7th Cir. 1992).

  91. 91.

    See Telecasting of Professional Sports Contests: Hearing before the Antitrust Committee of the House Committee on the Judiciary on H.R. 8757, 87th Cong. 1st Sess. at 4, 36 (Sept. 13, 1961). See also, Zimbalist A (2004) The practical significance of baseball’s presumed antitrust exemption. Ent Sports Law 22:1, 24 (quoting Commissioner Pete Rozelle as saying “[t]his bill covers only the free telecasting of professional sports contests and does not cover pay TV.”).

  92. 92.

    Shaw v. Dallas Cowboys Football Club, 172F. 3d. 299, 303 (3d. Cir. 1999) (holding that the sale of games in a satellite programming package did not fall within the scope of the SBA’s exemption).

  93. 93.

    U.S.C. § 1291.

  94. 94.

    U.S.C.C.A.N. 4378.

  95. 95.

    U.S.C. § 1291.

  96. 96.

    Weiler and Roberts, supra note 67 at 728.

  97. 97.

    Los Angeles Mem’l Coliseum v. National Football League, 726F.2d 1381 (9th Cir. 1981).

  98. 98.

    Weiler and Roberts, supra note 67 at 577.

  99. 99.

    See Raiders I at 1385.

  100. 100.

    See Los Angeles Mem’l Coliseum v. National Football League, 468F. Supp. 154, 162 (C.D. Cal. 1979).

  101. 101.

    Id.

  102. 102.

    See Raiders I at 1385.

  103. 103.

    Weiler PC and Roberts GR (2004) Sports and the law, 3rd edn, p 577.

  104. 104.

    See Raiders I at 1385.

  105. 105.

    Id.

  106. 106.

    Id. at 1387.

  107. 107.

    Id. at 1390.

  108. 108.

    Id. at 1395.

  109. 109.

    Section 4.3 of Article IV of the NFL Constitution currently states: “The [NFL] shall have exclusive control of the exhibition of football games by member clubs within the home territory of each member. No member club shall have the right to transfer its franchise or playing site to a different city, either within or outside its home territory, without prior approval by the affirmative vote of three-fourths of the existing member clubs of the [NFL].”

  110. 110.

    United States Football League, et. al. v. National Football League, et al, 842F.2d 1335, 1340 (2d Cir. 1988). The USFL’s plans to directly compete with the NFL by scheduling games for the fall of 1986 were abandoned following the jury verdict in the trial court.

  111. 111.

    The Los Angeles Raiders, Ltd. was not named as a defendant in the complaint. Id. at 1341 n.2. This is possibly due to the fact that Raiders owner Al Davis was the only NFL-affiliated witness who agreed to testify on the USFL’s behalf without a subpoena and who was one of the advocates of the theory that the NFL and the City of Oakland had conspired to injure the USFL’s Oakland franchise.

  112. 112.

    Id. at 1341; see also United States Football League v. National Football League, 634F. Supp. 1155, 1176 n.3 (S.D.N.Y. 1986).

  113. 113.

    F. Supp. at 1158–1166.

  114. 114.

    Id. at 1176; see also id. at 1160–1166, 1180–1184.

  115. 115.

    F.2d at 1343.

  116. 116.

    United States Football League v. National Football League, 842F.2d at 1341.

  117. 117.

    See United States Football League v. National Football League, 644F. Supp. at 1054 (jury instructed to make a “quantifiable distinction between losses the USFL had suffered as a result of the NFL’s misconduct and losses the USFL had suffered as a result of other factors,” including the USFL’s business decisions and its own financial mismanagement).

  118. 118.

    United States Football League v. National Football League, 842F.2d at 1341.

  119. 119.

    Id. at 1355.

  120. 120.

    Id. at 1355–1357.

  121. 121.

    Id. at 1379–1380.

  122. 122.

    Id.

  123. 123.

    Id. at 1379-80.

  124. 124.

    Weiler and Roberts, supra note 67 at 736.

  125. 125.

    American Needle, Inc. v. National Football League, No. 08-661, slip. op. at 2 (U.S. May 24, 2010).

  126. 126.

    American Needle, Inc. v. National Football League, 538F.3d 736, 737 (7th Cir. 2008).

  127. 127.

    Id. at 738.

  128. 128.

    Brief for the Petitioner at 6, American Needle, Inc. v. National Football League, No. 08-661 (U.S. May 24, 2010).

  129. 129.

    F.3d at 738; see also No. 08-661, slip op. at 2 (U.S. May 24, 2010).

  130. 130.

    F.3d at 738.

  131. 131.

    Id.

  132. 132.

    Id.

  133. 133.

    Id.

  134. 134.

    Brief for the Respondent at 1-2, American Needle, Inc. v. National Football League, No. 08-661 (U.S. May 24, 2010).

  135. 135.

    American Needle, Inc. v. New Orleans La. Saints, 496F. Supp. 2d 941, 943 (2007).

  136. 136.

    See Chi. Professional Sports Ltd. v. National Basketball Association, 95F.3d 593, 598 (7th Cir. 1996) (noting other circuit courts which have found single entity status for sports leagues in certain circumstances and stating that, “when acting in the broadcast market, the [National Basketball Association] is closer to a single firm than a group of independent firms.”).

  137. 137.

    F.3d at 743.

  138. 138.

    U.S. at 768–769.

  139. 139.

    F.3d at 743–744.

  140. 140.

    Id. at 744.

  141. 141.

    William Shakespeare, Hamlet, Act III, Scene II (The original quote is “[t]he lady doth protest too much, methinks” and has evolved to generally mean that one can insist so passionately about something being true that others suspect the opposite).

  142. 142.

    No. 08-661, slip op. at 1 (U.S. May 24, 2010).

  143. 143.

    Id. at 6.

  144. 144.

    Id.

  145. 145.

    United States v. Sealy, Inc., 388 U.S. 350, 353 (1967).

  146. 146.

    See generally, United States v. Sealy, Inc., 388 U.S. 350 (concerning a group of mattress manufacturers controlled by Sealy, Inc. who dictated that each of the manufacturers operate only within a specific geographic area).

  147. 147.

    No. 08-661, slip op. at 7 (U.S. May 24, 2010).

  148. 148.

    Id. at 10 (quoting Copperweld, 467 U.S. at 769 and Fraser v. Major League Soccer, L.L.C., 284F.3d 47, 57 (1st Cir. 2002)) (emphasis added).

  149. 149.

    Id. at 11-12.

  150. 150.

    Id. at 12.

  151. 151.

    Id.

  152. 152.

    Id. at 17 (quoting Major League Baseball Properties, Inc. v. Salvino, Inc., 542F.3d 290, 335 (2d. Cir. 2008) (Sotomayor, J., concurring)).

  153. 153.

    Id. at 13-14.

  154. 154.

    Id. at 15 n.7.

  155. 155.

    Brief for the Petitioner at 6, No. 08-661 (U.S. May 24, 2010).

  156. 156.

    See McCann MA, American Needle V. NFL (2010) An opportunity to reshape sports law. Yale Law J 119:726, 763–765.

  157. 157.

    Id. at 763.

  158. 158.

    See 538F.3d at 744 (holding that a single entity is free to license its intellectual property on an exclusive basis and suggesting that a unilateral decision by such entity to reduce output would not give rise to a colorable antitrust claim under Section 2 of the Sherman Act).

  159. 159.

    McCann, supra note 124 at 765.

  160. 160.

    Id. (noting that EA dropped the price of Madden 2005 to $29.95 in response to competition from ESPN NFL 2 k5 which sold for an initial price of $19.95 and then, in the absence of competition the next year following the exclusive deal, EA raised the price of Madden 2006 by 70%).

  161. 161.

    Id. at 766.

  162. 162.

    Id.

  163. 163.

    Id. at 767.

  164. 164.

    Id.

  165. 165.

    See infra notes 4–17 and accompanying text.

  166. 166.

    See infra notes 18–27 and accompanying text.

  167. 167.

    See infra notes 28–44 and accompanying text.

  168. 168.

    See infra notes 45–64 and accompanying text.

  169. 169.

    See infra notes 65–163 and accompanying text.

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  1. Kirkland & Ellis LLP, Chicago, IL, USA

    Adam Winters

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  1. Adam Winters
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Correspondence to Adam Winters .

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  1. , Department of Economics, St. Norbert College, 100 Grant Street, De Pere, 54115-2009, USA

    Kevin G. Quinn

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© 2012 Springer Science+Business Media, LLC

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Winters, A. (2012). The NFL and Antitrust Law. In: Quinn, K. (eds) The Economics of the National Football League. Sports Economics, Management and Policy, vol 2. Springer, New York, NY. https://doi.org/10.1007/978-1-4419-6290-4_16

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  • DOI: https://doi.org/10.1007/978-1-4419-6290-4_16

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