Berman & Asbel, LLP

May 2010 Archives

Supreme Court rules against NFL in clothing licensing anti-trust case

We often hear about how divided the U.S. Supreme Court is but in a decision handed down today, the Court was unanimous in ruling that the National Football League and its 32 member teams engaged in concerted anti-competitive behavior with regard to licensing of team logos and colors for clothing.  The Court's opinion in American Needle, Inc. v. National Football League et al., written by retiring Justice John Paul Stevens held that the NFL and its member teams violated section 1 of the Sherman Anti-Trust Act (15 U.S.C. § 1). A little background - Since 1963, the NFL teams have operated a separate corporation for the joint marketing of team-licensed clothing, memorabilia etc. called NFL Properties (NFLP).  While the NFL teams were operating in this area through NFLP, until 2000, each team made its own licensing arrangements with manufacturers of clothing.  That changed in 2000 when Reebok was given an exclusive license to produce all of the NFL team licensed merchandise.  American Needle, Inc. had been one of the non-exclusive licensees previously and was denied a new license when the exclusive arrangement with Reebok took effect.  American Needle filed suit alleging that the NFL and the member teams were engaging in concerted anti-competition behavior.  The NFL argued that it is a single business thus no such concerted action could take place.  The Supreme Court, however, found that the NFL is merely an association of the teams and that each of the 32 teams is a separate corporate entity with its own governance and decision-making.  The fact that NFLP is a single corporation did not matter as the Court recognized that the individual teams can make their own decisions and to a significant extent are in competition with each other.  This was still an organized action by 32 separate corporate entities to prevent competition in the market of NFL team clothing and memorabilia.The Court also discussed the issue of whether it is essential for the NFL teams to work together as a unit.  The Court discussed the "Rule of Reason."  In some areas, the NFL must operate as a unit such as the logistics of putting on the football games, making rules for competition etc. but found that this does not apply to the licensing and marketing of merchandise.Now if you are thinking the NFL is being treated differently than Major League Baseball would be, then you would be correct.  Major League Baseball has a specific exemption from anti-trust regulation.  The NFL, NBA, NHL and other leagues do not have such an exemption. The case will go back to lower courts for further proceedings.

Father's rights? Pennsylvania law says no presumption favoring mothers or fathers.

This post is in response to a question from a reader regarding what is the state of "father's rights" in Pennsylvania. In Pennsylvania, it is true that in the past there was a legal principle called the "tender years doctrine" which essentially presumed that a mother was entitled to custody of her child over the father, particularly if the child was of "tender years" i.e. quite young.  This "tender years doctrine" has since been declared invalid in Pennsylvania insofar as it created a presumption in favor of mothers over fathers. The general rule for how a court is to decide a child custody dispute in Pennsylvania is set by statute:
Award of custody, partial custody or visitation, 23 Pa.C.S.A. § 5303

Which court decides when divorced/separated parents in different states battle for custody?

In this age in American society, it is common for parents to be divorced or separated and in many cases, there are disputes over custody of the children.  Sometimes, a key question in the case is which court will decide the case?  To bring order across America in deciding which court should have jurisdiction of the case, there was created the Uniform Child Custody Jurisdiction Act (UCCJA). First, what are Uniform Laws?  These are not federal laws.  Congress does not generally get involved in laws regarding marriage and domestic relations and a lot of other things.  Uniform laws are laws on a particular subject that are adopted identically by the individual states.  Generally, each state version of a uniform law is identical - that's why they are called uniform.  There is a non-governmental body called the National Conference of Commissioners on Uniform State Laws .  This body, established in 1892, is composed of lawyers who are in private practice, legislators, legislative staff and judges who draft and promote uniform statutes in subject areas where having uniform state laws is desirable.  The NCCUSL drafts such laws and then works to get them adopted in the various states.  One can see the need to have uniformity in how to decide which court should decide child custody disputes - even if the laws in the various states regarding child custody itself are different. Getting back to child custody, the UCCJA provides a set of rules so that in any case, it should be possible to resolve which state has jurisdiction over the custody of a child.  The main deciding factor for jurisdiction is which state is a child's "home state."  As provided in the Pennsylvania version of the law: 
This Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;

Elena Kagan would hardly be first Justice without prior judicial experience

This morning, President Obama announced that his nominee to replace retiring Justice John Paul Stevens on the U.S. Supreme Court is Solicitor General Elena Kagan.  I will concede that I do not know much about Ms. Kagan's record so I am not commenting here about the particular individual choice.  However, what I do like is that this nominee, the first in many years, has no prior experience as a judge.  Currently all of the justices were judges in one court or another before joining the Supreme Court.  However, it was not always this way.  Republicans opposed to President Obama and his nominee will attack this nominee for having no prior judicial experience.  Such critics, however, should keep in mind who was the last Supreme Court Justice with no prior experience as a judge - none other than William Rehnquist who was appointed to the Supreme Court by President Nixon and then appointed as Chief Justice by President Reagan.  Rehnquist's prior experience included clerking for Justice Robert Jackson in the early 1950s, working in private practice in Phoenix for 16 years and 2 years as an Assistant Attorney General early in the Nixon Administration.Other former Supreme Court Justices who were never judges before joining the Supreme Court were: Byron White (Deputy Attorney General in Kennedy Administration), Earl Warren (California Attorney General and Governor), William O. Douglas (SEC Chair in Roosevelt Administration), Felix Frankfurter (close adviser to FDR, assistant US Attorney under Henry Stimson in New York, and one of the advocates for Sacco and Vanzetti) and William Howard Taft (President of the United States).  As you see, some of the most well known and distinguished past members of the Court had no prior judicial experience.   Many argue that a long career as a judge can isolate someone and that there is value to having someone with extensive experience in other areas.  Whatever one might think of Elena Kagan as a nominee to the Court individually, her lack of prior experience as a judge is not a negative at all.

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