Intra-Enterprise Activity, Joint Ventures and Sports Leagues: Identifying Unilateral Conduct Under the Antitrust Laws

In the American Needle case the Supreme Court will consider whether the NFL’s decision to give an exclusive trademark license to one firm should be counted as “unilateral” on the NFL’s part, or rather as the concerted joint venture activity of the NFL’s individual member teams. The intellectual property in question is not trademarks in the NFL itself, but rather the trademarks and other intellectual property developed separately by each individual team, and which the teams in turn have licensed exclusively to the NFL. In general, when a joint venture is engaged in its own business the unilateral characterization is appropriate. Thus, for example, if the ABA decides to hold its convention in San Francisco rather than Chicago that decision should not ordinarily be treated as a “conspiracy” of the ABA’s members to boycott Chicago. By the same token, the NFL has many employees of its own, and labor disputes between those employees and the NFL would be considered as involving a single employer. By contrast, when disputes involving the players of individual teams are at issue the NFL is properly treated as a collaboration of employers, as the Supreme Court assumed to be the case in its Brown vs. Pro Football decision in 1996. A decision that the NFL is a joint venture of multiple firms when it is managing the separable business interests of the member teams need not result in per se illegality or, for that matter, not even in particularly harsh treatment. Output limiting restrictions by legitimate joint ventures are dealt with under the ancillary restraints doctrine and tested for reasonableness. The great majority of such restraints are reasonable and lawful. By contrast, even efficient joint ventures can become vehicles for the naked restraints of their members