A Reality Check on the NFL Lockout: You Don’t Know Anything

Posted: May 21, 2011 in Football, Law

I’m not an antitrust attorney, but that’s a good thing. You don’t want a long-winded lecture on that. I took antitrust law in law school, and only tax law was more boring. After listening to some incredibly ignorant statements made by callers to the Lavar & Dukes show on 106.7 FM in Washington, DC, I decided to provide perspective on a few issues that have been raised regarding the National Football League Players’ Association (“NFLPA”) case against the National Football League (“NFL”). I won’t be citing case law (you’re welcome), but I will cite the Sherman Act, which governs antitrust law, in order to make a point (I’ll be as gentle as possible).

Not Everyone Involved on the Owners’ Side Is Filthy Rich

This one has to have you scratching your heads. Bear with me.

As you might know, the named plaintiffs in the NFL lawsuit are, among others, Tom Brady and Peyton Manning. These guys are worth a fortune. They can afford to take a year off to fight a legal battle. They won’t lose their homes or even their lifestyles. As all of you like to point out, though, the average NFL player isn’t a mutli-millionaire. They have a lot of expenses associated with being an NFL player that really eats into the league minimum salary. This hurts those guys, and calling them “filthy rich” or “spoiled” is unfair. They have a genuine need in getting a fair deal, so jumping to the conclusion that they’re just whining is also unfair.

Similarly, though, while the Washington Redskins and Dallas Cowgirls go back and forth between being the most valuable franchise in the NFL, many other NFL franchises aren’t so lucky. The Buffalo Bills are no Washington Redskins. They’re owner might be rich, but the franchise is still standing on the edge of a knife. They have a rabid fan base, but there just isn’t as much money in the Buffalo area as there is in DC. There also isn’t as much interest for the Bills outside of Buffalo, while Dallas enjoys the greatest amount of unamerican, fair-weather fans in the league. It costs a ton of money to operate an NFL franchise, and if the Bills don’t get a fair deal, they could fold. Do you want an NFL that consists of only 10 super-rich franchises? Even though I won’t lose my team, I still don’t want that.

(Aside: most likely, the Bills would just move to Toronto or another bigger market before folding, but if the outcome of the lawsuit is bad enough, even that might not be an option. I don’t have specific knowledge of the Bills folding. They’re just an example of a small, struggling franchise that helps make my point.)

Did I mention that all of these franchises employ a host of “little guys” as concession stand operators, marketers, and admin assistants? Some of these people work for the teams full time all year round. This is how they pay the mortage/rent, feed the kids, etc.

This case needs to be decided fairly. There are fat cats on both sides of the issue, but there are honest hard-working people on both sides as well. Don’t let the anti-rich sentiment running through this country cause you to jump to conclusions about either side.

How Antitrust Cases Are Decided

Case-by-case on facts

Like all legal cases, this one will turn on its facts. The law is usually fairly standard — “You can’t punch people in the noses except in self-defense!” — and those laws are applied to the case’s specific facts to see if the defendant is guilty (criminal case) or liable for damages (civil case). Can any of you honestly say you have all the facts in this case? In fact, I doubt many of us, if given the facts, would even be willing to examine them thoroughly. These are complex issues that will bore even lawyers to tears. So how can you fairly decide who’s to blame here? There may be a bad guy, or there may be no bad guys, or there may be several bad guys. We don’t know, and I for one would rather that the courts and attorneys do all the work deciding it. After all, they’re being paid millions of dollars. If that means we have to place our faith in a bunch of lawyers we don’t trust, so be it.

Case-by-case on law!

The Sherman Act governs Antitrust Law, 15 U.S.C., Chapter 1, governs “monopolies.” Specifically, § 2 provides (in part):

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize . . . shall be deemed guilty of a felony.

This begs an important question: Just what the hell is “monopolization”? That’s a good question. This is one of the vaguest laws on the books, and intentionally so. Congress didn’t want to attempt to define such a vague concept too narrowly. If you try to provide too clear a definition of monopolization, too many people would find a way to wiggle around that definition and get away with harming the economy. So, Congress left it up to the courts to define what monopolization is. This is not the way the law’s supposed to work — judges are supposed to interpret the laws, not write them — but in this case Congress effectively directed the courts to write the law. (I’m going to stop right here to make sure I don’t get on a soapbox about judicial activism.)

Because the Sherman Act has been around a long time, there have been plenty of antitrust cases to define what monopolization is, but it remains a vague concept, and this means that the NFL case isn’t only going to depend on its individual facts, but also, to some small extent, on whatever law the judge applies. So exactly how can you, an uninformed, out-of-the-loop party, possibly form an opinion on this case? You can’t, so really, don’t try.

Monopolies Aren’t per se Illegal

Let’s get back to the definition of monopolization. One thing I can tell you is that monopolization doesn’t necessarily mean “has a monopoly.” There are plenty of legal monopolies out there. For example, the “essential facilities” exception allows a water or electric utility to hold a monopoly in a given jurisdiction. Strict government regulation of that company prevents price gouging. Also, obtaining a monopoly through hard work and outdoing your competitors isn’t illegal, and the Sherman Act doesn’t say it is. What’s illegal is monopolization. So, what’s that? It’s obtaining or maintaining a monopoly through conduct deemed unlawfully exclusionary. In other words, it requires more than merely holding the power of a monopoly; you have to have done unfair or inappropriate things in order to get or keep the monopoly.

What’s unfair or inappropriate? Ask the courts. Seriously. Read a bunch of cases. Congress didn’t define it, and neither did I. You need to read a ton of case law to know the answer to that question, and even if you do, for the reasons I gave above, you still might have trouble predicting the outcome of the NFL case.

Actually, It’s an Oligopoly

The NFL isn’t considered a single entity. It’s considered a small number of entities (i.e., the teams). When a small number of entities holds all (or an overwhelming majority) of the market power, it’s technically an oligopoly. This is just an FYI. If you continue to refer to the NFL as a monopoly, everyone will still understand what you’re saying, and I won’t beat you up for it. I just like being precise.

Fairness Has Its Place, and Ignorant Statements Aren’t Fair

I hope this has given you a better perspective on just how difficult it is to critique the merits of this case. If you don’t have all the facts and a strong knowledge of antitrust law, you can’t fairly take sides. Like it or not, you’ll have to trust in the system to come to the right conclusion. In the end, antitrust law is designed not to protect the owners’ interest or the players’ interest; it’s designed to protect the consumers’ interest. That’s you. You want this done right. Let the professionals do their jobs.

Follow me on Twitter @MMADork
Follow Chad Dukes on Twitter @ChadDukes
Follow LaVar Arrington on Twitter @LaVarArrington
Follow 106.7 The Fan on Twitter @1067thefandc
Follow the National Football League Players’ Association on Twitter @NFLPA (unverified account)
Follow the National Football League on Twitter @NFL
Follow the Washington Redskins on Twitter @RedskinsDotCom
Don’t follow the Dallas Cowgirls on Twitter @DallasCowboys
Follow the Buffalo Bills on Twitter @buffalobills

  1. kesseljunkie says:

    Well constructed – I for one appreciate this sort of thing, because as you point out, the “anti-rich” sentiment gets to be a bit much. It ain’t that simple.

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