For the non-legalese inclined, think of it like this … the legal argument that allows for single entity legal treatment is like a game of Jenga. That’s right, Jenga. Bear with me here. As some of you may know, Jenga is a game that includes 54 wooden blocks. You build a tower consisting of 18 rows, with three blocks per row. Then teams alternate removing one block at a time from the tower and placing it on top of the tower. The team that removes the block causing the structure to fall loses.
Now, think of the Jenga blocks as the legal factors that add up to single entity status for MLS. One of those blocks is free agency. From a legal standpoint, no one can say for certain that removing the free agency block will cause single entity to crumble, but removing it makes it more likely that the league’s single entity status will fall.
I postulated something similar back in January, but the more I've thought about it, the less certain I am with the effectiveness of the strategy. Although even the threat to decertify and sue under anti-trust theories would be another bargaining chip the players could use to give themselves leverage.
However, I disagree with Clive that MLS's single entity structure is on shaky ground. While the court of appeals noted in passing that it wasn't entirely convinced of MLS being a single entity in Fraser v. MLS, it never came close to putting out an opinion on that issue. Furthermore, with American Needle firmly on the desk of the most corporate friendly Supreme Court in decades, and almost a decade of Republican bench appointments behind us, I'd argue that a league explicitly constructed as a single entity, not just asking to be treated like one, has got a pretty good chance of beating off legal challenges for the foreseeable future.
-FS
4 comments:
What happens when one of the Judges decides to retire,there are rumors that one will soon and I do not think that you will get a very business friendly judge from Obama.
That's if a player-initiated antitrust suit even makes it to the Supreme Court...an enormous if.
By shaky ground, I just meant that a court has already raised its eyebrows at the league's single entity claim. On the single entity to joint venture continuum, MLS is definitely closer to single entity than any other sports league. Shaky might be a slight overstatement, but I'd imagine the league is weary of every step that it takes that could be characterized as moving towards joint venture behavior.
As far as the process of actually litigating the issue, I think you and Richard are spot on. A ruling wouldn't come overnight.
One thing to keep your eye on with regard to American Needle is what the ruling will apply to. The lower courts have ruled that the NFL is a single entity (but here's the kicker) for purposes of licensing team logos. The legal question that would require further litigation to sort out is whether this ruling would be applied to labor issues.
Anon -
I'm not sure a conservative justice is on his way out soon any time.
Clive,
Raising eyebrows is a lot different from shaky ground, IMHO. I'd agree that they want to keep it as close to SI as possible. Although MLS did make the changes after contraction that loosened things up a bit, which may be why they don't want to go further.
As for American Needle, my understand was the NFL was asking for a much broader reading in the current case. Which makes the SC taking it all the more interesting.
-FS
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