Who should pay for retired players medical bills?

[jaybadger82]

Here's part of a post I wrote in February of 2011:

"I don't think the NFL is a monopoly since other professional football leagues have and do exist and because the NFL doesn't dictate what each team can charge for tickets, concessions, etc. It also doesn't set a maximum salary for a player. (Beyond that, I don't think a monopoly in the entertainment business is harmful or important since it involves entertainment and not an essential good or service.)

Not sure why an "entertainment business" exception makes sense: If you were a musician and every performance venue in the Los Angeles market formed an agreement not to give you more than 10% of ticket revenue or $10,000 per show, that's a pretty blatant Sherman Act violation. The musician's performance may not be "an essential product" but it seems like he deserves to obtain the best price the market will yield for his services.

But when the USFL wanted to compete directly against the NFL it filed and won an anti-trust lawsuit against the NFL in 1986. (Previously the USFL played in the spring and summer.) It couldn't charge the NFL with just being a monopoly (or a "pure" monopoly) since the USFL - a professional football league - existed. Instead they alleged the NFL had a monopoly regarding TV broadcasting rights, since at the time the NFL had a deal with all three of the "major" networks, ABC, CBS, and NBC. The jury found that the NFL was a legal monopoly but used predatory tactics. However, it also found the USFL filed the case in order to force a merger with the NFL and most of its problems were due to mismanagement so it awarded the USFL one dollar. Luckily for the USFL, damages are tripled in anti-trust cases, so it was awarded $3. That "victory" in court ended the USFL. BTW, Al Davis testified against the NFL in that case and Donald Trump owned the USFL's New Jersey franchise.

(1) A couple practical matters: no plaintiff legitimately expects to win on its claim of a Sherman Act violation on the basis of actual monopoly. It's too easy to expand the boundaries of any market in order to introduce competing actors. For example, one could say MLB is not a monopoly because it competes with all other professional entertainment sports, expanding the market from "professional baseball" to "professional sports." The Sherman Act isn't so much about breaking up actual monopolies as it is about curbing market activity that restrains trade/commerce.
(2) Follow-up on the USFL case: in addition to the $3 in nominal damages awarded by the jury, the NFL was forced to pay $5.5 million in legal fees to the USFL plaintiffs. Because the NFL was in violation of the Sherman Act, even if a jury of fans didn't want to eviscerate them over it on behalf of an unsympathetic plaintiff that had already gone defunct.
(3) Although the USFL litigation offers an interesting story, these sort of jury decisions hold little significance from a legal perspective. Today many (if not most) antitrust cases are decided from the bench because the facts and issues are generally seen as too complicated for a lay jury. (I often think they're too complicated for me.) In the USFL case, the finding of a Sherman Act violation with no actual damages borders on logically inconsistent. Seems to reflect the widespread understanding that the NFL engages in monopolistic practices but it's tolerated because there's no other way to set up a fair competitive environment necessary for the sport of football.

Like I said, there's also the UFL, AFL, and for that matter, the CFL employs mostly American players.

Part of what the Sherman Act prohibits are "attempts to monopolize." See (1) above. Does the NFL completely meet the Webster's Dictionary definition of a monopoly? -Not if you're going to point to "competitors" like the UFL and AFL. But from an antitrust law perspective, the NFL certainly violates the Sherman Act through monopolistic activities that restrain commerce.

 

[TJV]

● The comment about the harm of entertainment business being monopolies was in relation to the harm of a monopoly regarding an essential good or service from the consumer's point of view as few argue the players or other NFL employees are disadvantaged.

● In (1) you write that no plaintiff legitimately expects to win on a Sherman act claim but in (2) you note the plaintiffs "won" and even received legal fees! Just say'n.

● As for the complicated nature of antitrust cases, that may be true, but the jury in the USFL vs. NFL case saw through to the plaintiff's real motive. Some may call the award a form of jury nullification, I call it justice.

I discussed the USFL case because I thought it was funny and interesting. You gotta love Al Davis - he goes to all that trouble to stab his "partners" in the back to no avail. I underlined the real take-away from that post: "More important and more recent is a 2010 US Supreme Court case having to do with trademark licensing (American Needle vs. NFL) in which the Court, in a 9-0 ruling, ruled the NFL is a cartel of 32 independent businesses." And as you wrote in another post,

…I'm not sure where arguing over fairly settled law gets us...

 

[jaybadger82]

● The comment about the harm of entertainment business being monopolies was in relation to the harm of a monopoly regarding an essential good or service from the consumer's point of view as few argue the players or other NFL employees are disadvantaged.

Sure. It just seems like that overlooks the harm suffered by an individuals that are denied the best price the market can deliver for their goods and services due to the collusion of other market actors. But I understand how an "essential product" such as gasoline has greater significance for the public as a whole.

● In (1) you write that no plaintiff legitimately expects to win on a Sherman act claim but in (2) you note the plaintiffs "won" and even received legal fees! Just say'n.

There's no inconsistency here. The Sherman Act outlaws two types of conduct: (1) actual monopoly and (2) attempted monopoly (or, from the text of the law, "...attempts to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states...") Nobody ever wins on the first type of conduct, (1). Virtually all antitrust litigation turns on whether there has been an attempt to monopolize, (2). In the USFL case, the plaintiffs "won" on (2) but the jury refused to award them the actual damages.

● As for the complicated nature of antitrust cases, that may be true, but the jury in the USFL vs. NFL case saw through to the plaintiff's real motive. Some may call the award a form of jury nullification, I call it justice.

Maybe. In a television market where NFL games are so prized by broadcasters (FOX, ABC/ESPN, NBC, and CBS), we can only speculate as to what pressure the NFL exerts on broadcasters NOT to air content from competitors such as the UFL, CFL, and AFL. Could be express pressure, could be implied. But my time in business makes me fairly confident that such pressure exists and that this pressure contributes to the difficulty these other leagues experience when trying to gain traction in the consumer market...

 

[I asked LT to delete my acct]

I totally agree with Amish on this one. NOBODY forced these players into playing football, even if the pay scale were different back in the 50`s and 60`s, and even then they were by comparison to the average Joe, paid very well indeed.
If they didn`t feel the need to put money aside for the end of a career, it`s hardly anybodies fault but their own. IMO

 

[TJV]

The time I've spent on this already outweighs my interest so I'll answer with just two points and let you have the last word if you want it.

In the USFL case, the plaintiffs "won" on (2) but the jury refused to award them the actual damages.

The jury did award them actual damages and they determined those actual damages to be 1 dollar. And then those actual damages were trebled.

And by the plaintiff's "real motive" I meant the USFL wanted to force a merger with the NFL. From my post, the jury "… found the USFL filed the case in order to force a merger with the NFL and most of its problems were due to mismanagement".

 

[jaybadger82]

The time I've spent on this already outweighs my interest so I'll answer with just two points and let you have the last word if you want it.The jury did award them actual damages and they determined those actual damages to be 1 dollar. And then those actual damages were trebled.

And by the plaintiff's "real motive" I meant the USFL wanted to force a merger with the NFL. From my post, the jury "… found the USFL filed the case in order to force a merger with the NFL and most of its problems were due to mismanagement".

I've been using a number of terms that belong to the legal profession. The $1 damage verdict awarded by the jury (and trebled by statute) is generally referred to as "nominal" damages by attorneys. "Actual" damages refer to the costs that the plaintiff's conduct imposed on the defendant (things like medical bills, pain and suffering, in this case, lost television revenue).

I'm not trying be argumentative and I'm not really upset by the outcome of that case.

 

[mayo44]

Part of what the Sherman Act prohibits are "attempts to monopolize." See (1) above. Does the NFL completely meet the Webster's Dictionary definition of a monopoly? -Not if you're going to point to "competitors" like the UFL and AFL. But from an antitrust law perspective, the NFL certainly violates the Sherman Act through monopolistic activities that restrain commerce.

And what "monopolistic activities that restrain commerce" are you referring to? If you're so convince that the NFL is the Great Evil, then why don't you become a lawyer (assuming you're not one) and lead the charge to take them down? Or perhaps you could simply boycott and stop watching the games. There's an idea!