When we last heard from NFL general counsel Jeff Pash in connection with the league’s 9-0 slam-dunk defeat before the U.S. Supreme Court on the question of whether the league is a single entity or 32 separate business, Pash expressed a high degree of optimism that, even though the league’s silver-bullet defense has failed, the NFL eventually will win the antitrust case filed by an apparel company frozen out by an exclusive deal with Reebok.
“We remain very confident about the ultimate outcome of this litigation.
I have the highest degree of confidence that when it is decided it will
be decided in our favor,” Pash said. “I don’t have the slightest
doubt about it. I’m as confident of that
outcome as can be.”
More recently, Pash elaborated on his optimism by suggesting that he had some inside information.
“Most of the justices and their clerks think we will prevail and therefore there was no need to take the step we were asking them to take,” Pash said, according to Daniel Kaplan of SportsBusiness Journal. “Within the context of the antitrust laws, it is very likely we will have been found to have acted in a perfectly lawful and appropriate manner.”
Look, Pash is brilliant. He wouldn’t be the NFL’s general counsel if he wasn’t. But the notion that the Supreme Court would decide on a 9-0 basis that the NFL doesn’t constitute a single entity because the judges think the NFL ultimately will win the underlying case sounds a lot like a man who is in deep denial regarding the fact that he lost.
If Pash is accurate, he should be distraught and disenchanted to think that the justice system would opt not to do the right thing in the first instance because of a belief that, after spending hundreds of thousands in additional legal fees, the NFL eventually will be exonerated.
Regardless of whether Pash’s theory has any applicability, the decision means that the NFL constantly will be forced to fight antitrust lawsuits on the merits — including the one that the union eventually may file upon decertification, just as it did after the failed strike of 1987.