Pash thinks NFL lost American Needle battle because it will eventually win the war

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.

9 responses to “Pash thinks NFL lost American Needle battle because it will eventually win the war

  1. It doesn’t make sense for Pash to be publicly chest beating. Surely future judges will be mindful of his boastful behavior.

  2. Pash also ignores a critical point: if the Supreme Court was so sure that the NFL would prevail, and therefore their decision didn’t matter, they’d never have granted cert in the first place. The Supreme Court is not in the habit of wasting its time, and hears just a small percentage of the cases brought to it. When they do hear one, they do so because it has precedential value and they want to make a judicial statement.

  3. i think the the williams wall lost the battle because it will eventually win the war too

  4. Amm14 is absolutely right — the Court is too busy and too self-important to take cases that are not meaningful, and they certainly don’t make decisions 9-0 against you because they think on remand the case is going to go the opposite direction. I’d say he was an idiot for thinking so, but I rather think Pash is just pontificating and knows better. At most, “the Justices and their clerks” tells me that he has a buddy clerking right now that said “oh you guys will probably win eventually” and he extrapolated that into “the whole court agrees with us” for marketing purposes.

  5. If each team is it’s own business, does that mean each team could create their own CBA with the NFLPA?

  6. much ado about nothing. the case involves merchandising $. these dollars are separate from operational costs. the court decision will not be considered as precedent for anything relating to NFL rules or CBA. Even a failed lawyer like Florio knows this, but he’s omitting this info because it would kill the hourly posts that he tries to drum up controversy with.

  7. Having just completed law school, I can tell you that there are many law professors (including my antitrust professor) that would agree that some of these cases are driven by context and outcome. So it seems that this sentiment is not totally off-the-wall. That being said, declaring it in such a public way does not seem like the brightest thing to do.

  8. To the Lawyers:
    Is there any chance that this American Needle case (that applies to jersey sales) would apply to video games as well? Right now EA sports has exclusive rights to make NFL video games (madden), and since those exclusive rights were acquired Madden has quite frankly sucked compared to it’s pre-2006 counterparts.
    One would think that giving exclusive rights to one company for apparel sales (Reebok) and giving exclusive rights to one company for video game sales (EA Sports) would be exactly the same thing.
    What do the lawyers say?

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