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Rhetoric ramps up regarding American Needle case

Though we prefer to focus our attention in the days after the conclusion of the regular season on the coaching carousel and the coming Super Bowl tournament, the United States Supreme Court for some reason didn’t consult with us before scheduling oral arguments in a potential landmark antitrust case involving the NFL.

Go figure.

Next week, the interested parties will appear in D.C. before the nine justices of the highest court in the land and articulate contentions regarding whether the NFL is a “single entity” under a specific aspect of the federal antitrust laws.

The case arises from a challenge to an exclusive apparel deal the league struck with Reebok.  American Needle thinks that the NFL constitutes 32 separate and distinct businesses, and that by law the teams/businesses should not be allowed to come together and decide, for example, to do business with only one vendor.

Some believe that the NFL hopes to obtain a broader ruling that, for any and all purposes, the league is one integrated business, which therefore cannot violate antitrust laws because an integrated business can’t by law conspire with itself.

We’ve previously explained that the NFL Players Association specifically fears that the league will try to use such a ruling to block one of the union’s primary defenses to a work stoppage.  Though the NFL as a single entity would still be forced to collectively bargain with the players, the players’ ace in the hole in the event of a lockout entails the union disbanding and the players collectively suing the league for violating antitrust laws by imposing league-wide rules regarding player salaries, free agency, and the draft.

Basically, the union would use against the league the very procedures that the labor agreement allows the league to employ.

Based on our current understanding, we believe that the Supreme Court will find that the NFL is a single entity for some purposes, but not for others.  When it comes to acquiring players, we believe that the 32 teams are in clear competition and are separate and distinct businesses.

Still, the union is sounding the alarm regarding the possibility that the NFL will obtain a ruling that it is, in all contexts and settings, one large business with 32 franchises.  Most recently, Saints quarterback Drew Brees has attached his name to an op-ed item that he surely didn’t write, unless he has obtained a law degree on the side.  The column is dated January 10; it apparently will appear in Sunday’s edition of the Washington Post.

The obvious goal?  To keep the NFL from slipping an excessively broad ruling through the five hole of the judicial robe — and to make clear to the controlling majority of justices known to be friendly to the interests of Corporate America that the folks who’d be affected negatively by innocuously-worded legal mumbo jumbo are paying close attention to the situation.

At some point over the next few days, I’ll be taking a close look at the briefs submitted by the NFL and other interested parties, and I’ll be addressing the situation in more detail.  (So much for ditching the law practice.)

We realize that most of you don’t care about the issue.  But all of you should — if the union’s fears are accurate and if the NFL wins, the league arguably will have the tools to crush the NFLPA into submission.

But at least we now know what Brees was doing last week, when he wasn’t preparing to play the Carolina Panthers.

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39 Responses to “Rhetoric ramps up regarding American Needle case”
  1. rickyr says: Jan 7, 2010 8:15 PM

    surely you must be joking…
    “Drew Brees has attached his name to an op-ed item that he surely didn’t write, unless he has obtained a law degree on the side.”
    really?
    i’m not sure what kind of lawyer you are florio but you must be nuts if you think that what he wrote required any sort of distinguished legal expertise.
    anyone with even the most rudimentary level of legal knowledge can follow along with this case.

  2. robertamberg says: Jan 7, 2010 8:17 PM

    Thank you!

  3. Chapnasty2 says: Jan 7, 2010 8:20 PM

    “The obvious goal? To keep the NFL from slipping an excessively broad ruling through the five hole of the judicial robe — and to make clear to the controlling majority of justices known to be friendly to the interests of Corporate America that the folks who’d be affected negatively by innocuously-worded legal mumbo jumbo are paying close attention to the situation.”
    Florio you do such a great job articulating this entire situation and then you throw a political jab in there and politically support unions. We all know you work for the liberal empire and that you have liberal political opinions, which is fine and dandy, but do you really think it is appropriate to bring those opinions into a otherwise outstandingly well written journalistic piece? Integrity is something a lot people lack these days.

  4. Observer1 says: Jan 7, 2010 8:20 PM

    I think the league should be able to decide how its employees are compensated. That is what your employer and my employer does.
    If the players don’t like it, they are free to take their skills to the CFL or UFL and try to make more money.

  5. DT79 says: Jan 7, 2010 8:30 PM

    American Needle hats are awful. Too bad it isn’t New Era suing them.

  6. staronhelmet says: Jan 7, 2010 8:32 PM

    Observer1:
    So, you think owners like Jerry Jones and Dan Snyder are entitled to the work the players do? I’d rather see the players get paid what they earn, rather than the owners.
    If you don’t like that, you are free to go watch the CFL or UFL and try to enjoy the sport that way.

  7. KingerIC3000 says: Jan 7, 2010 8:35 PM

    @rickyr:
    you have to understand, the use of the word ‘rudimentary’ alone places you in the 99.999th percentile of readers of this site.

  8. rayg says: Jan 7, 2010 8:36 PM

    Florio, I can’t speak for PFT planet, but these legal posts are the ones that keep me coming back here. You stand head and shoulders above the internet and broadcast noise in making this legal mumbo jumbo accessible to we laypeople and other assorted knuckleheads.

  9. Bigbluefan says: Jan 7, 2010 8:41 PM

    With the UFL it will be hard to fight and if the silly union goes away who cares
    Unions are killing businesses all over the country why is GM in the dump the damn union
    Hence why more and more folks buy so called imports truth is not really imports just made in the USA by nonunion workers
    All our taxes go to keep GM alive when it and its union should have died
    Unions suck

  10. TheBigOldDog says: Jan 7, 2010 8:42 PM

    the players’ ace in the hole resides at 1600 Pennsylvania Avenue and every player and owner in the NFL knows it.

  11. polishkingski says: Jan 7, 2010 8:47 PM

    why, oh why when i decide to comment does chapnasty have to piss me off….as a “liberal” i think the union does not have a leg to stand on on this one if they try to use any positive out come (as they see it) in their favor. the nfl is a single entity. period. the teams that belong to it are part of the greater whole. its simple (you should understand this i can`t get laid, am bitter and full of hate chapnasty) when a business is formed under a legally registered trademark such as the nfl, you must adhere to the rules of said business. by the way florio, i tell everybody i know that LOVES pro football to hit your site. you have been able to achieve every fanatics dream. being able to make a living talking, bullshitting, and breaking balls about the game we love.

  12. 56lightsout56 says: Jan 7, 2010 8:49 PM

    florio says
    At some point over the next few days, I’ll be taking a close look at the briefs submitted by the NFL and other interested parties, and I’ll be addressing the situation in more detail. (So much for ditching the law practice.)
    —————————————
    thats great Florio. If I happen to have insomnia, I will know exactly what to read.

  13. euclidean says: Jan 7, 2010 8:50 PM

    zzzzzzzzzzzzzzzzzzzz….

  14. Kipster says: Jan 7, 2010 8:51 PM

    I do believe that Drew Brees mother who died last year was a pretty big hot shot lawyer in Texas so I wouldn’t be too suprised if he did write it himself… then again he probably has access to a whole bunch of lawyers through his moms acquaintances to help him with writing it as well…

  15. joedimaggio says: Jan 7, 2010 8:59 PM

    Please, don’t apologize for these kind of posts, they are great. And for the moron commenters who will whine and want you to just write boring news you can read anywhere, GET LOST.

  16. Fike Mlorio says: Jan 7, 2010 9:01 PM

    “But all of you should — if the union’s fears are accurate and if the NFL wins, the league arguably will have the tools to crush the NFLPA into submission.”
    God forbid the owners get the upper hand this time after getting raped by the union the last go-around. Perhaps you’ve forgotten that De Smith is friends with Obama and headed up his transition team? Nothing to worry about, Florio, the NFLPA will be able to bring down the full force of the corrupt Chicago thug crew when they need it.

  17. Dr. Hannibal Lector says: Jan 7, 2010 9:10 PM

    Who needs who more?
    All 32 owners would be just fine in life without the NFL.
    The players however, without the NFL, where would most of them be? Not making millions of dollars. And some probably in jail.
    Anyway, if the owners revenue share, they are one single entity. Macy’s doesn’t revenue share with JCPenney. Macy’s can revenue share with other Macy’s stores.
    The problem with unions is that they were created to make sure workers were not abused and underpaid. The NFL is not an industry that needs a union. It should be crushed.

  18. Chapnasty2 says: Jan 7, 2010 9:13 PM

    @ Polish
    Good sir, I am sorry that you are too sensitive to take it. Mr. Florio made a great attempt to bring in his political view points. I was strictly pointing out that it is inappropriate to be done when you are trying to be journalistic, or fair. This article was perfect until that part. My point is simple and I dont care what your political opinion is. You are commenting and are not required to be unbiased. I accept your personal attacks, that is fine. I apologize that I pissed you off simply by stating the truth.
    I do however love how people attack me and Vox in such childish ways. A fake myspace page for him and me not being able to get laid. Not really a good way to win an argument but I guess when you aren’t bright enough to articulate your opinions that is the outcome.

  19. TheBigOldDog says: Jan 7, 2010 9:22 PM

    Maybe Brees did write it. That would explain the Saints Performance lately. Saints Fans should hope he does feel the need to write another one for a while.

  20. silverreign says: Jan 7, 2010 9:25 PM

    he attached his name to it people, drew brees didn’t write anything. look up the word attach in a legal dictionary.

  21. polishkingski says: Jan 7, 2010 9:36 PM

    another thing chapnasty….i`ve noticed that this site removes your posts from time to time. why do you think that happens? i`ll tell you why….because any mention of anything thats not agreeable to your political agenda gets you angry. like i said before, go to town on that rush limblow blow-up doll (or is it a glen beck blow-up), see i`m confused because they both say the same stuff and there both bloated and puffy.

  22. TheBigOldDog says: Jan 7, 2010 9:36 PM

    # Dr. Hannibal Lector says: January 7, 2010 9:10 PM
    Who needs who more?
    All 32 owners would be just fine in life without the NFL.
    The players however, without the NFL, where would most of them be? Not making millions of dollars. And some probably in jail.
    __________________
    Ah, the infamous BOTNA (best alternative to no agreement) strikes again. Damn Getting to Yes…

  23. Somnambulus says: Jan 7, 2010 9:47 PM

    Excellent piece.
    Chapnasty: this is a blog. Mike Florio is a blogger, not a journalist. There is a vast difference between the two. That many Americans cannot discern the difference is both concerning and telling.

  24. bluestree says: Jan 7, 2010 9:56 PM

    Crush the players union, you say? When I was a kid, everybody I new that worked belonged to a union. Even the kids playing at the school dance on Saturday night. You could graduate from high school and have a chance at a good paying job. One income could support a family. America had the finest system af roads, bridges and transportation in the world. We were the undisputed world leader. Good jobs, good wages. Then in the 70’s factories started to close and move down south. Other places were sold and then reopened without unions and soon people were leaving town, moving south and west to find what were lower paying jobs. And meanwhile CEO’s and Bankers incomes ballooned with the profits from their investments, and even when their greed blew up the entire economy, the worker was asked to foot the bill, because you know, if you don’t, that could make it even worse.
    I know that some of you will call me names, just like you’ve been conditioned to. But who can prove me wrong?
    @bigbluefan; “Hence why more and more folks buy so called imports truth is not really imports just made in the USA by nonunion workers”
    Dude, they told you not to eat the brown acid!

  25. Favre On HGH says: Jan 7, 2010 10:30 PM

    I saw “needle case” and expected to see something concerning Favre or Vick and lost needles.
    Good read though, hope the union does get crushed. Would love to see them disband and have it backfire on them. It is the union that criticizes Goodell and his “conduct policy” as being too strict, when it is not nearly strict enough.

  26. PurpleNGold says: Jan 7, 2010 10:34 PM

    keep up the good work, Florio

  27. Pallidrone says: Jan 7, 2010 10:35 PM

    @ChapNasty
    Florio writes a blog. There is no such thing as being journalistic or fair when it deals with a blog.
    You are trying to hold him to a standard that he does not have to be held to.
    If he wants to write an article about Conservatives being sheep to Rush and that liberals worship the ground Obama walks on, then he is absolutely free to do that. It is his site.

  28. Joe C says: Jan 7, 2010 10:40 PM

    Maybe I’m wrong here, but I am sure ESPN, CBS Sports, Fox Sports and CNN SI can put their own spin on the same story.
    If Mr. Florio did not have an opinion, I seriously doubt this site would have went over 2M hits so soon. (Not that Rosenthal, Smith, et al. don’t do their part. :)
    Look, the owners DO have a lot of money. They are also the ones outlaying millions upon millions of dollars to get new stadiums in order to be profitable. Am I expected to cry about guys making six figures universally in the NFL? Sorry, I don’t feel any sympathy for them at all. These are players that bypass a college education (in many cases) for the money. Never mind the fact they are one catastrophic injury/accident away from losing that job, and having nothing to fall back on.
    The owners gave too much in the last agreement, it was a far different economy then, and now they want to level the field. (And personally, a rookie salary cap HAS been needed for a long time). But of course, now the players are stinking rich, more than ever, and they don’t want to give it up.
    More to the point of this case, it simply makes more sense for the NFL to deal with ONE vendor. If it WAS left open, could you imagine the uniform disorder? Reebok, Nike, Adidas, Puma, Under Armour, American Arrow, etc. We’ve all seen the ugly throwbacks of some teams; this could throw open the floodgates for some more ugliness that could approach the Oregon Ducks uniforms.

  29. VegasChris says: Jan 7, 2010 10:49 PM

    I saw that rudimentary on ESPN. It was alright.
    RUDI, RUDI, RUDI…

  30. AbeFreshly says: Jan 7, 2010 11:07 PM

    So, if “the league arguably will have the tools to crush the NFLPA into submission”, I guess that will mean that players salaries will come down.
    What a shame.
    Somehow, I get the feeling that the quality of play would be much better. How can that be bad? Everyone else in western civilization has had to cope with decreasing wages. Why not 22 yr olds who say things like “We gone sting they ass”, or “it is what it is”, or (the ever popular & indispensible) “Nomesayin'”.
    Do I even have to ax you if you agree with me?

  31. Ravens Macg says: Jan 7, 2010 11:08 PM

    This “union” is not what a usual union is. This “union” is for millionaires to make more money on the backs of the fans that watch and go to the games.

  32. Matty Ice says: Jan 7, 2010 11:18 PM

    At least this means more to the future of the NFL than StarCaps.
    I can deal with Florio’s legal “expertise” when it actually….matters.

  33. polishkingski says: Jan 7, 2010 11:55 PM

    hey chapnasty, florio can write anything he likes. i don`t see anything overtly political in what he wrote. maybe because he mentioned the word union you got your panties in a tizzy. i love how loud mouth right wing types like yourself get called out and act like you are the victim. as far as defending vox (?) , who ever that is, i didn`t know you needed a buddy to stand up to somebody taking a jab at what you personally write. c`mon vox….aren`t you going to defend your buddy? GO BILLS!

  34. briano29 says: Jan 8, 2010 1:38 AM

    Headline threw me off but a great post Florio.
    This is why PFT is different . . .

  35. back4dattack says: Jan 8, 2010 2:18 AM

    @ rayg January 7, 2010 8:36 PM
    Florio, I can’t speak for PFT planet, but these legal posts are the ones that keep me coming back here. You stand head and shoulders above the internet and broadcast noise in making this legal mumbo jumbo accessible to we laypeople and other assorted knuckleheads.
    I agree with you. I first respected Florio’s posts on legal matters back when Mike Dick’s dog fighting ring was getting exposed. I also have liked the player and coach contract analysis.

  36. last starfighter says: Jan 8, 2010 6:45 AM

    bluestree says: January 7, 2010 9:56 PM
    Crush the players union, you say? When I was a kid, everybody I new that worked belonged to a union. Even the kids playing at the school dance on Saturday night. You could graduate from high school and have a chance at a good paying job. One income could support a family. America had the finest system af roads, bridges and transportation in the world. We were the undisputed world leader. Good jobs, good wages. Then in the 70’s factories started to close and move down south. Other places were sold and then reopened without unions and soon people were leaving town, moving south and west to find what were lower paying jobs. And meanwhile CEO’s and Bankers incomes ballooned with the profits from their investments, and even when their greed blew up the entire economy, the worker was asked to foot the bill, because you know, if you don’t, that could make it even worse.
    I know that some of you will call me names, just like you’ve been conditioned to. But who can prove me wrong?
    ————————————————————–
    Ding Ding Ding!
    Great comment. When people want to go out and complain that unions are all terrible they are forgetting about most of American history. Sure unions aren’t always perfect and sure they’re subject to corruption just like business but they made the middle class.
    This website which is already highly questionable becomes even more so when uninformed yahoos start injecting uninformed political opinions. That said, you can also find some gold here

  37. Chapnasty2 says: Jan 8, 2010 10:54 AM

    @ polish
    Way to keep living the stereotype. He took a swipe at the conservative members of the majority on the court. If you still cant get that then you are seriously a waste. Being from Central NY and having visited Buffalo many times, combine with your political “philosophy” I can see this going nowhere.
    @ Laststarfighter
    Jobs went overseas because unions demanded unheard of wages and benefits, as a result companies couldnt make money and therefor risked losing their entire business. As a result they opted for cheaper labor which allowed them to make a profit. Comapnies that still use Unions are sinking fast, GM is a good example. I will assume your last statement about uninformed yahoos now directly is aimed at yourslef.

  38. bigrig says: Jan 8, 2010 11:56 AM

    NUMMI [a joint venture between GM and Toyota] auto plant in Fremont, Ca has announced it is ceasing operations in March 2010 due to the fact GM has pulled out. This closure is to be blamed for losing 5,000 union and 30,000/40,000 non-union jobs.
    The UAW has always had an atagonistic relationship with Toyota management. Unions were a needed commodity in the 20th century. Now they are an albatross around the neck of the American work force.
    Unions will always bite their members in the ass when it is all said and done.

  39. SaintB says: Jan 8, 2010 8:16 PM

    The difference between the NFL and your employer is that your employer has competition. The only competition the NFL has is itself, the individual teams competing for free agents. That’s what the article is about. The NFL as a single entity shouldn’t be able to dictate what individual players make. They can attempt to negotiate a rookie salary scale with the union if they wish, but they can’t collude with each other to decide salaries.

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