Commentary

The NFL's latest legal muscle pose

It backed down from its campaign against 'Who Dat' gear, but it isn't finished flexing

Originally Published: February 4, 2010
By Lester Munson | ESPN.com

It's the greatest extravaganza in sports -- the biggest game, the highest-priced tickets, the largest TV audience, the most expensive ads. The best of everything.

Is it enough for the Lords of the NFL?

No. Apparently not.

[+] EnlargeWho Dat
AP Photo/Cheryl GerberIn the "Who Dat" case, a public backlash helped convince the NFL to stand down.
While the entire nation of sports fans has been turning its eyes to Miami for Super Bowl XLIV on Sunday evening, the giant commercial engine that is the NFL has been grinding on away from the field, issuing cease-and-desist orders to anyone who sells a "Who Dat" T-shirt until earlier this week.

In the middle of the buildup to an event that is the envy of all sports leagues everywhere, the NFL's leaders and lawyers were worried about a $13.95 T-shirt.

Were they kidding?

No, they weren't, although the NFL ultimately called off the dogs in its tough-guy attack on Louisiana merchants who were selling unlicensed shirts with the Saints-related catchphrase "Who Dat" and the team's fleur-de-lis logo design. In the end, the league said the effort to stop retail sales of such merchandise was a misunderstanding borne of their attempt to protect licensees who've paid for the right to use the team and league brands.

So that little skirmish is over. But if there are any lingering doubts about the NFL's willingness to play legal hardball, consider what else the league's executives and lawyers are doing. You need look no further than their bold and ingenious attempt to revolutionize the laws that govern sports.

In a grand and glorious gambit that dwarfs the "Who Dat" controversy, they're asking the U.S. Supreme Court for total immunity from antitrust laws, a change in the rules that would be the most dramatic legal development ever in sports. (We've addressed the case of American Needle vs. NFL before, here, here and especially here, among other places.)

The NFL might not be able to achieve total control of the production and sale of merchandise featuring the Saints' beloved "Who Dat" cheer; but as the result of a huge decision in the high court two weeks ago, it has new hope of achieving a legal ruling that will bring the largest enterprise in all of sports even greater profits.

For NFL owners to succeed in the Supreme Court in the American Needle case, the court must do four dramatic things. And in a different case -- Citizens United vs. FEC -- the justices showed their willingness to do all four of them.

• They overruled a law that had been on the books for 63 years.

• They ignored a series of the court's own previous decisions.

• They made a decision highly favorable to big business.

[+] EnlargeAmerican Needle NFL Football
AP Photo/Nam Y. HuhSignals from the Supreme Court about campaign financing don't bode well for the American Needle office in Buffalo Grove, Ill.
• And they did not hesitate to use conservative ideology as a basis for the decision.

If the court does the same four things in its decision in the American Needle case, it will produce a new map of the sports world, a series of profound changes that will benefit team owners and harm players, coaches and fans.

The court's action two weeks ago came in a 5-4 decision in Citizens United vs. FEC, a blockbuster ruling that prompted the wrath of liberals and reformers who worry about the power of big businesses to influence the outcomes of elections. (The ruling allows corporations to spend freely on political advertising.) The reaction to the decision reached its highest or, perhaps, its lowest point when President Barack Obama criticized the justices who made the ruling as they sat before him during the State of the Union message, prompting Justice Samuel Alito to mouth the words "not true," a response caught on camera.

What does it all mean? Is the court's decision in the Citizens United case a prelude to a dramatic, precedent-shattering and revolutionary decision for the NFL in the American Needle case?

At the oral arguments in the American Needle case on Jan. 13, it appeared that the court was inclined to make a limited ruling, sending the case back to a federal judge in Chicago for depositions, exchange of documents and a trial. But predictions based on the justices' questions and the lawyers' responses in oral arguments are at best speculative and amount to little more than an educated guess.

If, however, the court is willing to do what it did in the Citizens United case, it may well be willing to do what the NFL wants it to do and issue another blockbuster decision.

Although lawyers and scholars can argue endlessly on the issues, it is clear from the NFL's briefs and arguments that it is looking for the same kind of revolutionary ruling that the court made in Citizens United. It's asking the court for the same four things.

The league wants the court to make sharp limits on an antitrust law (the Sherman Act) enacted 120 years ago, allowing the 32 teams to collude on salaries, prices and paraphernalia contracts.

The NFL also wants the court to set aside previous decisions that refused to grant antitrust immunity to sports leagues. The process of interpreting and analyzing previous cases is known among lawyers and judges as "stare decisis" and can be difficult to predict. The court's ruling in Citizens United indicates, however, that the five conservative justices are activist in their approach to precedents, setting them aside as needed to reach a conclusion they favor. That's exactly the approach to "stare decisis" that will give the NFL what it wants.

On top of the willingness to limit the effect of venerable statutes and to set aside previous decisions, the court's tilt toward big business and conservative ideology may contribute to a decision favorable to the NFL.

The NFL is, of course, the biggest of all sports businesses. The same five justices who ruled that big business should be free to do what it wants in political campaigns could easily conclude that the biggest business in sports should be free to do what it wants in the sports market.

The ideology that supports these ruling is based on the idea that a free market is the best way to promote competition and that a free market benefits both business and consumers. It's known as the Chicago School of economics and is well described in the NFL's briefs. Its theories have produced drastic limits on antitrust enforcement beginning in the 1980s and continuing through the eight years of the George W. Bush administration.

[+] EnlargeBarack Obama
Alex Wong/Getty ImagesPresident Barack Obama and Supreme Court Justice Samuel Alito aren't seeing eye to eye these days.
On top of these four factors is the Obama factor. Two of Obama's top lawyers appeared at the arguments in the American Needle case, and one of them argued on both technical and ideological grounds that the court should rule against the NFL.

In addition to the official arguments offered by the Obama administration, it is important to note the relationship between Obama and certain justices.

As a member of the U.S. Senate, Obama voted against the confirmations of both Chief Justice John Roberts and Alito. On Obama's first day in office, he signed into law a bill that reversed a major decision made by the Roberts-Alito majority. The new law was the Lilly Ledbetter Fair Pay Act, which eliminates the requirement that a discrimination case against an employer must be filed within six months of decision that produced the discrimination. The decision in the Supreme Court case (Ledbetter vs. Goodyear Tire & Rubber Co.) that law reversed had been written by … that's right. Alito.

When Obama made a courtesy call to the Supreme Court in the early days of his presidency, Alito chose to stay home.

As Obama began his attack on the court during his State of the Union speech, he said, "with all due respect to the separation of powers." When any lawyer, including Obama, starts a sentence with the phrase "with all due respect," you know that something is coming and it won't be favorable.

Alito obviously didn't like what Obama said, and his reaction elicited widespread criticism. But the exchange may be a snapshot of the relationship between the president and certain members of the court.

When the court decides on American Needle, will the Roberts-Alito majority reject the arguments of the Obama administration and make the kind of blockbuster ruling it made in Citizens United? Will it give the NFL and the other leagues the four dramatic things they need to gain new powers in the industry?

We will know the answers when the court issues its opinion some time between now and the end of June.

When the justices issue their opinion, it may be that players, coaches and fans will be asking, "Who dat say dey gonna make dem changes?"

Who dat, indeed.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

MORE COMMENTARY >>