US Sports

Anticompetitive practices

A US Court of Appeals upholds the baseball industry’s historic antitrust exemption (City of San Jose)
Constantine Cannon (Washington)
Baseball Antitrust Exemption Extends 93-Year Winning Streak In Federal Courts* Although federal courts may consider baseball’s antitrust exemption to make about as much sense as the infield fly rule, last week’s decision by the U.S. Court of Appeals for the Ninth Circuit in City of San Jose v. (...)

The US Court of Appeal for the 5th Circuit decides on whether a "standard-setting" association should be considered as a single entity and dismisses the case for lack of evidence (Abraham & Veneklasen / AQHA)
Constantine Cannon (Washington)
Fifth Circuit Rejects Jury Verdict Of Quarter Horse Conspiracy, Finding Elite Animal Registries To Be A Horse Of A Different Color* A panel of the U.S. Court of Appeals for the Fifth Circuit has reversed a jury’s verdict that a horse breeding association illegally conspired with some of its (...)

The US Court of Appeal for the 5th Circuit leaves open the possibility that a single entity could conspire with its own members or sub-parts (Abraham & Veneklasen / AQHA)
Siemens (New York)
Patterson Belknap Webb & Tyler (New York)
When Can an Organization Conspire with Itself?* The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA’s ban of cloned horses. The Fifth Circuit left open (...)

The US District Court for the Northern District of California finds that an athletics association’s rules restricting payments to student-athletes violate antitrust laws (O’Bannon / NCAA)
Rutgers University (New Jersey)
On August 8, 2014, in O’Bannon v. National Collegiate Athletic Association (NCAA), Judge Claudia Wilken of the U.S. District Court for the Northern District of California found that the NCAA violated the antitrust laws by enacting rules that prevented student-athletes from being paid for the use (...)

A US District Court files an antitrust action against a boycott impeding private schools to compete on the markets for commercial exhibition of high school football contests and basketball contests in Virginia (Liberty Christian Academy / VHSL)
Womble Bond Dickinson (Washington D.C.)
Do Public School Athletic Leagues Have To Admit Private High Schools?* Liberty Christian Academy (LCA), a private high school in Lynchburg, Virginia, has filed an antitrust action against the Virginia High School League (VHSL), a non-profit organization of public high schools in Virginia. The (...)

A US District Court receives a complaint on an allegation of anticompetitive agreements to exclude the plaintiff from the market for ownership of professional basketball franchises (Donald Sterling / NBA)
Orrick, Herrington & Sutcliffe (San Francisco)
Basketball, Surreptitious Recordings, and Antitrust* Donald Sterling — yes, that Donald Sterling — filed an antitrust lawsuit a few days ago against the National Basketball Association. You can download a copy here: Sterling Antitrust Complaint. It’s not clear if the complaint has now been (...)

The US District Court for the Northern District of California deals with anti-competitive restrictions preventing payments to basketball players for use of their name, image, and likeness (O’Bannon / NCAA)
Womble Bond Dickinson (Charlotte)
Three Questions for the Third Week of the O’Bannon v. NCAA Trial* As the O’Bannon v. NCAA trial enters its third week, commentators are already predicting the fall of the “college sports cartel.” In the case, a group of about 20 current and former college men’s basketball and football players, led (...)

The US District Court for the Northern District of California certifies a class of student athletes seeking injunctive relief, though declines to certify a damages class arising from the allegedly preclusive effect of rules that would impede group licensing arrangements with videogame developers and broadcasters (NCAA Student Athletes)
Orrick, Herrington & Sutcliffe (San Francisco)
Injunctive Relief, but not Damages Class, Certified in NCAA Student-Athlete Litigation* In In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 2013 U.S. Dist. LEXIS 160739 (N.D. Cal. Nov. 8, 2013) (Wilken, J.)., the Court certified a class of current and former (...)

The U.S. District Court of Northern California rejects the defendants’ motion to dismiss challenging antitrust claims arising out of an exclusive license deal (Patrick Dang / San Francisco Forty Niners)
Orrick, Herrington & Sutcliffe (San Francisco)
Single-Brand Market Claims Are Not Dead* Modern antitrust law’s focus on inter-brand competition has made it much more difficult to plead and prove single-brand market claims. The law’s concern with inter-brand competition is so strong that some observers have all but written off such claims as (...)

The U.S. Seventh Circuit Court of Appeals rules that an association may limit the number of available scholarships and place restrictions on those awarded without committing antitrust violations in the market for scholarships granted to student athletes (Agnew/NCAA)
University of Pennsylvania - The Wharton School of Management (Philadelphia)
Many of the most impactful cases in the history of sports law are antitrust based. Those cases range from a 1920s foundational case granting baseball’s antitrust exemption to the series of landmark cases evaluating the move by the Raider’s NFL franchise back and forth between Los Angeles and (...)

A US Court of Appeals vacates a lower court’s injunction lifting football players’ lockout in an antitrust suit (NFL)
Wolters Kluwer (Riverwoods)
Injunction Against NFL Lockout Improperly Granted in Players’ Antitrust Suit* Earlier today, the U.S. Court of Appeals in St. Louis vacated an injunction lifting the National Football League’s "lockout" of its players. The divided appellate court, just five days after hearing oral argument on (...)

The US District Court for the District of Minnesota declares that locking out employees, who have stopped engaging in collective bargaining and are no longer represented by the union, is not protected under the nonstatutory labor exemption to antitrust scrutiny in the market for professional football players (Brady / NFL)
Pepper Hamilton (Philadelphia)
The recent National Football League (NFL) lockout has put a spotlight on federal antitrust law. After failed negotiations between the NFL and the players’ union (the National Football League Players Association, or NFLPA), on March 11, 2011 – the day that the most recent collective bargaining (...)

The US Supreme Court applies functional test to determine whether joint venture activity triggers antitrust liability (American Needle / National Football League)
Shearman & Sterling (New York)
Introduction Section 1 of the Sherman Act outlaws contracts, combinations and conspiracies that unreasonably restrain trade. Therefore, to establish liability under Section 1, it is necessary to show a plurality of actors in agreement; there can be no contract, combination or conspiracy with (...)

The US Supreme Court finds that a football league and its members should not be treated as a single entity (American Needle / National Football League)
Tesoro (San Antonio)
American professional sports associations such as the National Basketball Association (NBA), the National Football League (NFL), the National Hockey League (NHL), and the Major League Baseball (MLB) generate significant economic activity. In 2010, their combined revenue exceeded $21 billion and (...)

The U.S. Supreme Court reverses the lower court’s decisions addressing the issue of single entity notion under antitrust law (American Needle / National Football League)
University of Pennsylvania (Philadelphia)
American Needle, Inc. v. National Football League* In American Needle, Inc. v. National Football League, 130 S.Ct. 2201 (2010), the Supreme Court held that the NFL acting through its incorporated subsidiary NFL Properties, Inc. (NFLP) was not a single entity but rather a combination of its 32 (...)

The US Supreme Court rejects special sports league exemption from antitrust scrutiny adopting a narrow view of Copperweld immunity (American Needle / National Football League)
Jones Day (New York)
The U.S. Supreme Court adopts a narrow view of Copperweld immunity in American Needle, Inc. v. National Football League Section 1 of the Sherman Antitrust Act is, in important ways, extraordinary in its simplicity. It broadly prohibits all agreements—“[e]very contract, combination . . . or (...)

The US Supreme Court holds that teams of the national football league engaged in concerted practices (NFL)
Stanford University - Stanford Law School
U.S. Supreme Court holds licensing activities of NFL teams were joint conduct subject to § 1 Sherman Act* On 24 May 2010 the U.S. Supreme Court held that teams of the National Football League (“NFL”) engaged in concerted action subject to Section 1 Sherman Act when licensing their intellectual (...)

The US Second Circuit Court of Appeals allows an association to hold the exclusive right to license intellectual property, finding it a reasonable restraint of trade when licensing the logos of professional baseball teams (MLB Properties/Salvino)
Weil, Gotshal & Manges (New York)
In American Needle v. National Football League and Major League Baseball Properties v. Salvino, the Seventh and Second Circuits, respectively, rejected antitrust challenges to professional sports league licensing arrangements. These decisions demonstrate the difficulties faced by antitrust (...)

The U.S. Tenth Circuit Court of Appeals applies a “quick look” rule of reason analysis and ultimately rejects an association-wide salary cap imposed on a position within each member organization in the college basketball industry (Law/NCAA)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Tenth Circuit struck down an NCAA-wide salary cap imposed on the earnings of “restricted-earnings” coaches as an unreasonable restraint of trade. Instead of applying per se illegality to a price-fixing agreement, the Court determined that a “quick look” rule of reason was more appropriate (...)

The US Court of appeals devotes prevailing application of labor law in labor practices that restrain competition in sports (National Basketball Association v. L Williams)
Infinitum Legal Services
Infinitum Legal Services (Istanbul)
The NBA v. Williams case (45 F.3d 684 (2d Cir. 1995), by the US court of Appeals is one of the rare cases in which the lawfulness of the practice of ‘multiemployer bargaining’, traditionally governed by labor law, challenged fundamental competition law principles, stemming from the Sherman Act (...)

The US Supreme Court prohibits an association from imposing conditions on its members’ televised events, finding that such conditions violate antitrust laws in the market for college football (NCAA / Board of Regents of the University of Oklahoma)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Supreme Court declared that the National Collegiate Athletic Association’s (“NCAA”) restrictions on televised college football games should be assessed under a rule of reason analysis, but still ultimately found that the limitations violate the Sherman Act. The Court refused to apply a (...)

The US Ninth Circuit Court of Appeals affirms a jury’s determination that an agreement requiring association members to gain approval by vote from their fellow members before moving locations constitutes an unreasonable restraint of trade in the market for professional football teams and their home stadiums (LA Mem’l Coliseum Comm’n/NFL)
Akin Gump Strauss Hauer & Feld (Dallas)
The Ninth Circuit Court of Appeals, applying a rule of reason analysis, affirmed a jury verdict that an agreement between NFL teams requiring a 2/3 vote before allowing one team to move within the home territory of another team violated the Sherman Act, Section 1. Rejecting the NFL’s arguments, (...)


The U.S. District Court for the District of Minnesota dismisses an antitrust complaint on the basis that copyright owners may exclude others from using even portions of their work in the market for footage of professional football games (Washington / NFL)
Loeb & Loeb (New York)
Loeb & Loeb (Los Angeles)
Loeb & Loeb (Los Angeles)
Plaintiffs Gene Washington, Diron Talbert, and Sean Lumpkin, former professional football players, brought a class action suit against the National Football League and a number of affiliated entities, including each of the 32 NFL teams, alleging that the NFL defendants, by constraining (...)

The U.S. District Court for the Southern District of New York finds that an association demanding its members to combine their websites into one unified website does not constitute an unreasonable restraint of trade in the hockey industry (Madison Square Garden / NHL)
Entwistle & Cappucci
Epstein Baker Green (Newark)
Ferro Labella & Zucker (New Jersey)
The Southern District of New York recently denied Madison Square Garden L.P.’s ("MSG") attempt to enjoin the National Hockey League (the "NHL") from transferring MSG’s Rangers team website to a server primarily run by the NHL. The Court found that seizing MSG’s website was not a naked restraint on (...)

The Eleventh Circuit rules out prevailing of copyright and bases its analysis exclusively on competition law (Morris Communications / PGA Tour)
Infinitum Legal Services
Infinitum Legal Services (Istanbul)
Over the last years, the relationship between sports and media has evolved in an unprecedented manner. Broadcasting packages now consist of many different rights such as highlights packages, mobile phone rights and Internet packages. Due to this significant enlargement in commercial sports (...)

The US Appellate Court of Illinois, First District, Third Division reverses a trial court’s dismissal of antitrust claims after finding causes of action under theories of monopoly leveraging or the essential facilities doctrine in the market for professional hockey in Chicago (Weinberg / Chicago Blackhawk Hockey Team)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Appellate Court of Illinois reversed and remanded the lower court’s dismissal of antitrust claims brought by Mark Weinberg and Blue Line Publishing Inc. (“Blue Line”) because the Blackhawks excluded Blue Line staff from their hockey games to impair Blue Line’s ability to provide a (...)

The U.S. Second Circuit Court of Appeals affirms a nominal jury verdict of $1 for illegal monopolization by a professional football league (USFL/NFL)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. Second Circuit Court of Appeals affirmed a jury verdict awarding the U.S. Football League (“USFL”) only $1 in nominal damages against the National Football League (“NFL”) and agreed with the jury’s finding that the NFL did not engage in exclusionary conduct through its agreements with (...)

The US District of Columbia Circuit Court of Appeals remands a case due to the lower court’s provision of several incorrect jury instructions and failure to instruct on the “essential facilities” doctrine in a case affecting the market for major-league professional football (Hecht/Pro Football)
Akin Gump Strauss Hauer & Feld (Dallas)
The U.S. District of Columbia Circuit Court of Appeals remanded a jury verdict in a case between a potential franchisor and the operator of the Washington Redskins football team because the lower court improperly instructed the jury on a number of issues. This Court determined that the lower (...)


The U.S. Third Circuit Court of Appeals narrowly construes the scope of recoverable costs from electronic discovery to tasks, such as transferring and scanning data, that are analogous to making copies in the car racing industry (Race Tires Am./Hoosier Racing Tire Corp.)
Morgan Lewis (Philadelphia)
Morgan Lewis (Philadelphia)
Dow Jones (Princeton)
A recent opinion vacating most of the electronic discovery costs affirmed in Race Tires II provides clarity in the Third Circuit as to the limited scope of electronic discovery costs recoverable by a prevailing civil party. The rapidly evolving area of the law regarding whether a prevailing (...)

The US Third Circuit Court of Appeals limits the prevailing party’s recoverable costs from e-discovery to the equivalent of making copies in the motor racing industry (Race Tires Am./Hoosier Racing Tire Corp.)
Paul Hastings (New York)
On March 16, 2012, the Third Circuit Court of Appeals weighed into a debate raging among district courts on whether broad e-discovery costs are taxable on the bill of costs under 28 U.S.C.A. § 1920 and thus recoverable by the prevailing party. Race Tires America, Inc. v. Hoosier Racing Tire (...)

The UK Court of Appeal rejects an allegation of unreasonable refusal to supply and unlawful discriminatory pricing (Attheraces / British Horseracing Board)
King’s College (London)
Introduction This note considers one of the two cases recently heard by the “ordinary” courts (the High Court and Court of Appeal) (See also A. Jones, The UK Hight Court rules on interim unjunction for an alleged unlawful refusal to supply in the pharmaceutical sector (AAH (...)

A US District Court holds that the rule granting exclusive rights to produce “A” horse shows within a 250 mile radius was exempt from antitrust liability pursuant to the doctrine of implied antitrust immunity under the Amateur Sports Act (JES Properties / USA Equestrian)
Sheppard Mullin (Los Angeles)
Horse Show Governing Body Mileage Rule Against Competing Horse Shows Is Subject to Summary Judgment On Ground Of Implied Antitrust Immunity* Plaintiffs, promoters of “A” Hunter-Jumper Competitions on the Florida Winter Horse Show circuit, filed an action against USA Equestrian, Inc., (“USAE”), (...)

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