viernes, 4 de junio de 2010


….The Supreme Court issued its opinion in the American Needle case this morning and ruled that the actions of the NFL in licensing its trademarks for sports gear were collective actions subject to Sherman Act Section 1 inquiry, en una votación que arrojó el resultado de 9 a 0. Lo acabamos de ver en el Blog de la Facultad de Derecho de Chicago. La sentencia está aquí. Los párrafos más destacables

The NFL teams do not possess either the unitary decisionmaking quality or the single aggregation of economic power characteristic of independent action. Each of the teams is a substantial, independently owned, and independently managed business. “[T]heir general corporate actions are guided or determined” by “separate corporateconsciousnesses,” and “[t]heir objectives are” not “common.” Copperweld, 467 U. S., at 771; see also North American Soccer League v. NFL, 670 F. 2d 1249, 1252 (CA2 1982) (discussing ways that “the financial performance of each team, while related to that of the others, does not . . . necessarily rise and fall with that of the others”). The teams compete with one another, not only on theplaying field, but to attract fans, for gate receipts and forcontracts with managerial and playing personnel. See Brown v. Pro Football, Inc., 518 U. S. 231, 249 (1996); Sullivan v. NFL, 34 F. 3d 1091, 1098 (CA1 1994); Mid-South Grizzlies v. NFL, 720 F. 2d 772, 787 (CA3 1983); cf. NCAA, 468 U. S., at 99

Directly relevant to this case, the teams compete in the market for intellectual property. To a firm making hats, the Saints and the Colts are two potentially competing suppliers of valuable trademarks. When each NFL team licenses its intellectual property, it is not pursuing the “common interests of the whole” league but is instead pursuing interests of each “corporation itself,” Copperweld, 467 U. S., at 770; teams are acting as “separate economic actors pursuing separate economic interests,” and each team therefore is a potential “independent cente[r] of decisionmaking,” id., at 769. Decisions by NFL teams tolicense their separately owned trademarks collectively and to only one vendor are decisions that “depriv[e] the marketplace of independent centers of decisionmaking,” ibid., and therefore of actual or potential competition. See NCAA, 468 U. S., at 109, n. 39 (observing a possible §1 violation if two separately owned companies sold their separate products through a “single selling agent”); cf.Areeda & Hovenkamp ¶1478a, at 318 (“Obviously, the most significant competitive threats arise when joint venture participants are actual or potential competitors”).

Although NFL teams have common interests such as promoting the NFL brand,they are still separate, profit-maximizing entities, andtheir interests in licensing team trademarks are not necessarily aligned… For that reason, decisions by the NFLP regarding the teams’ separately owned intellectual property constitute concerted action. Thirty-two teams operating independently through the vehicle of the NFLP are not like the components of a single firm that act to maximize the firm’sprofits. The teams remain separately controlled, potential competitors with economic interests that are distinct from NFLP’s financial well-being. … In making the relevant licensing decisions, NFLP is therefore “an instrumentality” of the teams…

Football teams that need to cooperate are not trapped by antitrust law. “[T]he special characteristics of this industry may provide a justification” for many kinds of agreements. Brown, 518 U. S., at 252 (STEVENS, J., dissenting). The fact that NFL teams share an interest in making the entire league successful and profitable, and that they must cooperate in the production and scheduling of games, provides a perfectly sensible justification for making a host of collective decisions. But the conduct at issue in this case is still concerted activity under theSherman Act that is subject to §1 analysis...  (“Joint ventures and other cooperative arrangements are also not usually unlawful. . . where the agreement . . . is necessary to market the product at all”). And depending upon the concerted activity in question, the Rule of Reason may not require a detailed analysis; it “can sometimes be applied in the twinkling of an eye.” NCAA, 468 U. S., at 109, n. 39... Other features of the NFL may also save agreements amongst the teams. We have recognized, for example,“that the interest in maintaining a competitive balance” among “athletic teams is legitimate and important,”

Y sobre las consecuencias de esta Sentencia para casos como el de VISA y Mastercard (que se han constituido como sociedades no controladas por los bancos que emiten las tarjetas - dando el control a los accionistas dispersos que han comprado sus acciones en bolsa) v.,Hovenkamp, Herbert J., The Firm as Cartel Manager (June 21, 2010).

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