The American Antitrust Institute (AAI) applauded the 9-0 decision issued today by the Supreme Court rejecting the National Football League’s (NFL) bid for immunity from Section 1 of the Sherman Act. AAI President Bert Foer said, “This is a solid touchdown not only for sports fans, but all consumers, as the Supreme Court made clear that all competitively meaningful arrangements by joint ventures are subject to review for reasonableness.”
“This decision is a fitting capstone to Justice Stevens’ antitrust jurisprudence, which has always sought to ensure that the antitrust laws remain vibrant, even as the conservative majority in the Supreme Court has been cutting back on antitrust in recent years,” added Foer, referencing plaintiffs’ ten straight losses in Supreme Court antitrust decisions during the past six years. Foer noted that antitrust plaintiffs have not won a victory in the Supreme Court in nearly 17 years.
The decision was particularly gratifying to the AAI because the Court adopted the reasoning that the advocacy group had urged in its amicus brief, namely that a joint venture like the NFL should not be treated like a single, independent firm, exempt from conspiracy claims, because its decisions reflect the separate economic interests of its members and not necessarily the best interests of the venture as a whole.
“Sports leagues are famous for taking action that protects individual teams from competition, at the expense of maximizing efficiency for the league and sports fans,” Foer said. “This decision shows that the Supreme Court is still capable of rejecting extreme pro-defendant positions, and should be a cautionary tale for defendants that seek to short-cut sound antitrust analysis, as the NFL did.”
The AAI amicus brief was co-authored by AAI's Director of Legal Advocacy Richard Brunell and AAI Senior Fellow Stephen Ross of Pennsylvania State University Law School. The brief is available below.