Sports And The Law: Why PETA Shouldn’t Blame Roger Goodell For Michael Vick’s Return
This Sunday marks Michael Vick’s official return to the National Football League—an event that has been widely criticized by People for the Ethical Treatment of Animals (“PETA”), as well as some sports writers and doggie bloggers.
What those who criticize NFL Commissioner Roger Goodell for reinstating Vick fail to understand, however, is that the NFL may have ultimately lacked any real choice. Had the NFL not reinstated Vick, Vick could have potentially filed an antitrust lawsuit against the 32 NFL clubs for concertedly refusing to deal with him. Even though such a lawsuit would have likely failed in the Second and Seventh Circuits (due to the holdings respectively in the Clarett and American Needle cases), a lawsuit against the NFL clubs would have likely gotten to a jury in the Third, Sixth, Eighth and D.C. Circuits—all places where professional athletes have previously won large antitrust settlements.
As a quick background in antitrust law, Section 1 of the Sherman Act, in pertinent part, states that “[e]very contract, combination … or conspiracy in the restraint of trade or commerce … is declared to be illegal.” Although most Section 1 claims involve restraints of trade related to product markets, the Sherman Act likewise prohibits restraints in labor markets, as long as these restraints occur outside of the proper workings of a collective bargaining agreement (“non-statutory labor exemption”).
Courts in general determine whether a particular restraint violates Section 1 of the Sherman Act in three steps. First, courts will determine whether a particular restraint emerges from a “contract, combination or … conspiracy” among two or more parties. Next, they will determine whether the restraint yields a net anticompetitive effect to consumers. Finally, they will assess whether any antitrust exemption would negate the finding of liability.
After the jump, how might a court weigh these factors?
With respect to finding a “contract, combination or … conspiracy,” most courts outside of the Seventh Circuit have found that any decision made by a league commissioner is tantamount to an agreement made among each of the individual club-owners, given that club-owners elect the commissioner to act on their behalf. Thus, outside of the Seventh Circuit, Goodell’s original decision to suspend Michael Vick would be viewed no differently under antitrust law than if the 32 NFL owners sat in a room and all agreed to suspend him. (Of course, this could change depending on the Supreme Court’s pending ruling in the case American Needle v. Nat’l Football League).
As to the net effects of indefinitely suspending a player, a court would likely find these effects to weigh heavily in the direction of being anticompetitive because suspending a player from a premier sports league reduces consumers’ ability to attend games that would feature the boycotted player, presuming a team would otherwise choose to play him. Although the 1961 Southern District of New York case Molinas v. Nat’l Basketball Association had upheld the NBA’s indefinite suspension of a player under antitrust law, that case involved a peculiar set of facts (a player gambling on games in which he played) and has since been called into doubt by the Supreme Court’s decision in U.S. v. National Society of Professional Engineers, which explained that defendants may not use a rationale based solely on public policy to offset liability for anticompetitive conduct.
Finally, with respect to potential affirmative defenses, courts in the Third, Sixth, Eighth, and D.C. Circuits would probably not find any of these defenses applicable. While it is true that most terms of good-faith collective bargaining agreements are exempt from antitrust scrutiny under the non-statutory labor exemption, the NFL Personal Conduct Policy (unlike the NFL drug policy and anti-gambling policy) does not appear explicitly in the NFL Collective Bargaining Agreement, thus likely making it fall outside the exemption in these circuits. In addition, even though a group of NFL players purportedly approved the NFL Personal Conduct Policy in 2007, their approval is likely irrelevant because the NFL Collective Bargaining Agreement requires any changes or modifications to be signed in writing. There is no public record of such writing.
Thus, even if NFL Commissioner Roger Goodell had not reinstated Michael Vick into the league, Vick may still have gone to court and litigated his way back. By simply reinstating Vick, the NFL avoided the headache of legal action, minimized the risk of having to pay damages to Vick, and resolved this matter without drawing added attention to Michael Vick’s past misconduct.
Can PETA really blame the NFL for that?
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Marc Edelman is a Professor at the Barry University - Dwayne O. Andreas School of Law in Orlando, FL. He previously was a Visiting Professor at Rutgers School of Law-Camden. His bio is available here, and his publications, here. For more on this topic, see Professor Edelman’s article in the 2009 Catholic University Law Review: Are Commissioner Suspensions Really any Different from Illegal Group Boycotts.
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Comments
get over it people. not a big deal.
A sound analysis, I'm sure, but too heavy for me for a Friday morning.
Wow--a substantive post on ATL. Thanks, Prof. Edelman.
Michael Vick would have been in less trouble if he would have killed a human being, e.g. Ray Lewis. He did his time. Let the man play football in peace. It's not as if Philly is a big step-up from the pen anyway . . . They threw snowballs at Santa Claus.
A vivid illustration of the fact that while we are a nation of laws, there is not always justice. Mr. Vick is a marginal human being with obvious psychopathic tendencies, but it's not like he's been elected to the Supreme Court. He is an athlete/entertainer, and his moral shortcomings should not necessarily determine his eligibility for employment. But, in a perfect world, he would be in chains in a dirty basement, forced to fight others for survival.
Vick would lose pretty much anywhere. The Clarett case was decided on the basis of the non-statutory labor exemption -- the league and teams could conspire on who to allow in the draft because it was the subject of collective bargaining. The Commissioner's ability to suspend people is part of the collective bargaining agreement. Since the policy is the result of collective bargaining between the employer and employee union, it's pretty much black letter law that this is NOT an antitrust violation.
Other than that, nice article.
Michael Vick eats white children for breakfast.
Sam Ronson
6 here,
The Player Conduct Policy gets its authority from Article 11, Section 1(a) of the CBA.
Excellent post. More like this, please.
4 = classic black guy argument. But he didn't kill anyone!!
The other classic argument is that white people shoot deer and ducks all the time.
I suppose I should know the answer to this, but is Marc Edelman's law school, the Barry University - Dwayne O. Andreas School of Law in Orlando, FL, ranked by US News & World Reports, fully accredited by the American Bar Association and a member of the American and International Associations of Law Schools?
Why are we subjected to the sports and the law posts once again? I thought we expressed our displeasure with them. They suck. Please don't post any more of them.
If you're going to bring back the sports "professor" bring back the crappy clip art!
People who go to law school to deal with sports matters are the saddest I know. All they do is play fantasy sports, read ESPN.com in class and talk about sports. They love sports more than anything. But for most of their lives, they have been the biggest nerd in the room, and have never done anything even remotely athletic. All they want to do in life is play sports, but this dream is completely frustrated and they have to settle for reading leagalese about sports. Sad really.
Vick might also have a claim under his forum's Good Samaritan laws.
this is the best post in awhile. not because it's very interesting, but because it's more than legal gossip. thank you.
On the front page of the NYLJ, there's an article about how NY state courts are starting a volunteer clerk program. No paid clerks will be displaced. Deferred associates cannot apply, however.
The most interesting part of the article is the following sentence....
"...as the economy has has cost some attorneys their jobs or the opportunity to begin their careers, it has also increased the case loads of some judges."
How can that be? Someone please explain that? More cases but less legal work?
Good post, but 4 and 8 are clearly correct--NFL wins--CBA trumps all
ATL listenting to the commenters changing its format. Nice.
#14, as opposed to obsessing over purchase agreements? People shockingly find sports geeks more appealing than lawyers. Don't be bitter.
I think it's about time people just LET IT GO! Obviously as a dog owner I was absolutely disgusted with Vick's antics, and I would have been ecstatic had he never been re-instated; but the fact of the matter is he HAS been reinstated and he's done his time.
"The PETA Files"
Best. Blog name. Evar.
http://blog.peta.org/
14- you can't be serious! nobody is that stupid.
Why do Black people hate everything?
Not to mention, it is illegal in many states to discriminate on the basis of a conviction record (except where there is a reasonable connection to the work at hand). Including NY, where I believe the NFL is based.
PETA = People for the Eating of Tasty Animals
I didn't read the author at first and was shocked at how cognizant this was. Then I checked and now I am not shocked.
PETA should be thanking the NFL for reinstating Michael Vick. How much free publicity have they received because of this case?
4- Ray Lewis killed 2 people at the Super Bowl and then got to play in the Super Bowl the next year and won it. It's the American dream!
If goodell had promised to reinstate Vick earlier this summer, Vick goes and signs a contract with the Eagles, and then later Goodell reneged on his promise to reinstate Vick, could Vick have a claim against Goodell on that basis? Somehow I think the Restatement of Contracts Section 90 might have something to say about this. Can anyone help with this?
PETA's retarded and immune to logic.
Among its recent public opinions are that Obama shouldn't have swatted the fly and that Ben & Jerry's should switch to human breast milk.
Not to be taken seriously.
PHILLIES fans threw snowballs at Santa...40 YEARS AGO. Get over it.
Everytime I hear about PETA and its BS I go out of my way to kick a dog.
32 - you mean Eagles.
This would never hapen at Widener
Great post. Funny that it's about antitrust and from Edelman who teaches at the "Dwayne O. Andreas School of Law". Andreas is only one of the biggest antitrust violators in history
Molinas dealt with conduct that called into question the product itself, i.e., whether the games are fairly competitive. Vick's dogfighting had elements of gambling, yes, but not on football, so i think it's still good precedent.
At the same time, the CBA does allow the commissioner discretion to suspend individual players for the public interest, so I'm not sure the antitrust claim would be viable, since "Vick" is not a product market, and the justification for permiting the suspension of players who break the law, like Donte Stallworth, is probably output enhancing.
Vick plays in a city known for delicious cheesteaks, so it's not like he's PETA's biggest Philadelphia-era worry.
Ahh. My Pet Peeve.
Vick was accused under a brand new federal criminal law. Had he done the same thing two years earlier, he would not have done anything illegal. Now, what he did was not nice, but wait until you see how far the animal cruelty law will go. Soon people will be going to jail for leaving the cats at home when they go on vacation.
I don't see how teams would be refusing to deal. Michael voluntarily relinquished his rights to play in the NFL when decided to torture defenseless animals. The CBA gives the Commissioner broad discretion in these cases. Is the NFL not allowed to enforce the rules to which its players agreed? If player lost an incentive under a contract because of a holding call, the player can't sue the league for prohibiting holding. I fail to see why this should be any different. And in any case, this probably had far more to do with the money Vick owes the Falcons than antitrust. Don't flatter yourself.
Ray Lewis pled to obstruction of justice. He was never convicted of killing anyone. If that doesn't matter to you, you should find another profession. Animal torture is worse than obstruction of justice.
I thought that liberals, of which I am one (mostly), believe in rehabilitiation, giving convicted people a second chance, and not marginalizing a person who has served his time for his crime. PETA is a liberal organization, they should leave Vick alone now that he has done his time. It's over, people.
This particular piece of legal analysis forms a good example for why ATL should eschew substantive commentary. The tortured reasoning on display by the "Professor" (if that is what he is - whomever heard of the "Barry School of Law" named for a criminal no less?) reaches a new low in tortured reasoning cum moral casuistry: in the end it is propped entirely on a speculation ex cathedra that had the Commissioner not allowed this depraved psychopath back, the NFL might have lost a lawsuit. So fucking what!!!!! There ought to be some lines drawn, some operatively enforced standards for behavior for participants in professional sports leagues even if/where/as it might entail losing a lawsuit. Absent this measure of backbone, the NFL (and its near idiot commissioner) is rightly excoriated for being venal and corrupt.
41, get ready for the 'abused animals registry"