경쟁사업자의 사업제휴와 반트러스트법

Section 1 of the Sherman Act proclaims that “[e]very contract, combination … or conspiracy in restraint of trade … is declared to be illegal.” Virtually all “intraleague” player-restraint lawsuits alleging that the NFL and its member clubs have violated this statute are based on one of two theories: that one of the League’s rules constitutes a “contract, combination or conspiracy” that restrains trade by either (1) artificially lowering the compensation that a player would have received absent the rule —that is, in a free market for player services; or (2) excluding a particular player or class of players from League employment (otherwise known as a “group boycott”). The first theory is perhaps best exemplified by antitrust lawsuits challenging the legality of a league-wide salary cap. The salary cap can be defined as the maximum amount of money that any one club is permitted to spend on player services during a given season. Without the salary cap, players argue, clubs with greater financial means would capitalize on that advantage by spending more than the salary cap limit to acquire the best players in an attempt to increase their chances of winning. Accordingly, the salary cap artificially depresses player salaries and constitutes an illegal “restraint of trade.” The second theory is best illustrated by the NFL’s rule that a player must be three full college football seasons removed from high school graduation before being allowed to play in the NFL. The argument here is that, absent punishment in the form of fines and loss of draft picks, clubs would employ the best players regardless of age. Accordingly, the rule precludes talented young players from earning an NFL salary for all of the years that NFL member clubs legitimately desire their services. American Needle answered a simple question correctly, but failed to address a number of crucial issues about the permissible scope of joint-venture conduct, the nature of a “single entity,” and the application of the rule of reason to sports leagues and comparable ventures. We argue that distinguishing a sports league’s “core” activities from its other kinds of conduct is neither a workable nor a legitimate means of conducting antitrust analysis. If that distinction is unworkable for sports leagues, it is equally unworkable for other joint ventures. We offer some thoughts on how courts and scholars should interpret American Needle, and we formulate a framework within which to assess the antitrust legality of intra- and extra-league restraints. We conclude that, in analyzing the business conduct of joint ventures, courts should appeal to a hypothetical bargain that would occur ex ante between the prospective members of the relevant venture, at the time of the venture’s formation and thus under conditions of economic uncertainty. To the extent that the members would agree to adopt a particular practice to promote the effective functioning of the league, where the league faced efficiency-ensuring competition, that practice should satisfy any antitrust concerns. This approach suggests that the NFL’s exclusive licensing of its members’ IP ought to pass muster under the rule of reason.