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?

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