In American Needle Inc. v. National Football League, 130 S. Ct. 2201 (2010), the U.S. Supreme Court unanimously held that collective licensing of the 32 National Football League teams’ intellectual property constituted an “agreement” among competitors under § 1 of the Sherman Act, 15 U.S.C. 1. The Court’s decision will extend well beyond the arena of professional sports, however, to preserve or strengthen antitrust enforcement in several critical sectors of the U.S. economy. In particular, the Court’s decision supports government and private suits against real estate multiple-listing services, physician joint ventures and payment-card networks, and perhaps joint ventures in other industries as well.
The facts of American Needle date back to 1963, when the separately owned and operated teams of the National Football League created an entity known as NFL Properties (NFLP) to license the intellectual property — such as logos, names and colors — of the individual teams. Until December 2000, NFLP licensed to clothing manufacturers on a nonexclusive basis. Then, the NFL teams authorized NFLP to grant an exclusive license to produce headwear (such as baseball caps and stocking hats) and other items to Reebok International Ltd. In so doing, the NFL refused to renew the license of American Needle, which previously produced headwear under the nonexclusive license.
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