Munson on American Needle

Lester Munson of ESPN has a lengthy column on American Needle v. NFL (see here, here, and here). Among the many law professors he speaks with is our own Barry Law School-bound Marc Edelman.

I like Munson's stuff. But this piece suffers from a number of weaknesses that plague much popular reporting and conversation on the judicial system. I confess up front that some of this is nitpicking, but it goes to some pet peeves.

First, the piece makes it sound as if whatever the Court says in this case will be the final word on single-entity status. But the antitrust laws are statutory, so Congress always can undo whatever the Court does. And while such statutory or legislative overrides" are relatively rare (witness the many started-but-failed proposals to overturn Federal Baseball Club), the very characteristics that bring the case so much attention in the Court make it a likely candidate for override, depending on what the Court does. Prediction: If the Court holds that the NFL (and by logical extension, all other professional leagues and probably the BCS) is a single entity for Sherman Act purposes, given the dramatic consequences for players and fans described in the article, Congress will act to undo the decision very quickly and across party lines.

Now perhaps the judicial-legislative connection is too much legal detail for a MS(S)M piece. But Munson spends a lot of time spinning out the parade of horribles if the Court adopts the single-entity rule: Strikes, $ 300 team jerseys, rigid league-wide salary scales for players and coaches, the end of individual team broadcasts. But those horribles would not happen because Congress could (and I believe would) step-in (put another way, they only happen if Congress does nothing). That was worth mentioning.

Second, the piece makes what I think is a somewhat lazy move in counting noses (although he cites to "experts," presumably law professors, in doing so): He predicts that Sonia Sotomayor, the Court's newest member once she is confirmed next month, will side with the players, based on her ruling as a district court judge in Silverman v. MLB Player Relations Comm. in 1995, which functionally ended the baseball strike (See Mike's take on the case). This strikes me as silly for a number of reasons. The baseball-strike case had nothing to do with the single-entity rule or the antitrust laws; it was a case under the National Labor Relations Act. Judges are not that result-oriented that we can say that one decision that went against the league under a different statute in a different factual situation is any sort of indicator that she always sides with the players over the leagues. Plus, what about her joining the panel opinion upholding the NFL's age limit in Clarett, which actually might be a closer analogue--at least that case arose under the same law.

Third, Munson spends three paragraphs giving the resumes of the "all-star team of attorneys" that players' unions have hired to litigate the case before the Supreme Court--all from impressive schools, former Supreme Court clerks, and experienced Supreme Court litigators--to illustrate that there should be no doubt how significant this case is and how seriously the Unions are taking it. So, if it were a case before the Court that the Unions believed was less significant or less serious, they would have hired less experienced or competent attorneys? Come on; the case is before the Supreme Court of the United States, so by definition interested parties and entities will seek out top Supreme Court litigators, most of whom went to top schools, clerked for the Court and/or worked in the Solicitor General's Office, and have experience before the Court. That is true regardless of whether the case is the most signficant antitrust case ever or something more routine. This is an example of a fact that is not remotely newsworthy.

Again, I recognize that most of this is my personal annoyances that I get to spread to unsuspecting readers because I happen to write on a blog; fifteen years ago, I would have complained about it to my wife or over lunch at work. Still, these details bothered me for the same reason the Sotomayor hearings last week bothered me: If we are going to have a public discussion of law in which we hope to educate the public, let's try to get it right.