Sherman Act Section 1:

Front 1

Sherman Act: Section 1

Back 1

Agreements that put an unreasonable restraint on trade

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Sherman Act: Section 1

(Elements)

Back 2

1) Must be an agreement between two or more parties;

2) Intended to Harm or Unreasonably Restrain trade;

3) Which causes injury to competition in relevant market.

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Rule of Reason Analysis

Back 3

1) Define the relevant market

2) Weigh the pro and anti competitive effects

3) Look for less anti competitive alternatives

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Single Entity Defense

Back 4

If determined to be a single entity, league would be exempt from Section 1 which bars collaborations by competitor that unduly harms competition.

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Labor Law -

(NLRA)

Back 5

National Labor Relations Act

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Mandatory Subjects of Bargaining

Back 6

1) Hours

2) Wages

3) Working conditions

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CBA's

Back 7

- Collective Bargaining Agreements
- Restraints on trade but they are exempt from antitrust law in two ways: 1) Statutory Exemption; 2) Non-Statutory Exemption.

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Statutory Exemption

Back 8

Clayton Act: Picketing, boycotting, and striking are not antitrust violations.

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Non-Statutory Exemption

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1) The restraint Primarily affects only the parties to the CBA;
2) Concerns a mandatory subject of collective bargaining;
3) Agreement is the product of bona fide arms length dealing

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Wright Line Test

Back 10

*Seahawks case

- Determines whether a union employee who was discharged after a strike was discharged based on the activity of striking or because of a legitimate reason, employer has burden of demonstrating that it would have taken the same action regardless of the employer's protected activity.

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Lanham Act

Back 11

Meant to protect consumers and business competitors from deception and misrepresentation of products and services.
1) Lack of consent;
2) Used in commerce;
3) Any reproduction imitation of a registered mark;
4) Likely to cause confusion or deceit

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Secondary Meaning

Back 12

Even if not trademarked, if untrademarkable items are presented together in a way that creates confusion, there can still be a liability:
1) Degree of similarity; 2) Strength of owner's mark; 3) Price of goods; 4) Length of time "D" used mark without confusion; 5) Intent; 6) Evidence of confusion.

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Trademark

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A word, name, symbol or device used by any entity or person to identify or distinguish his or her goods from those sold by others.

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National Labor Relations Act

Back 14

Gives all employees the right to: 1) Organize and bargain collectively and 2) Engage in protected, concerted activity with respect to their wages, hours, and work conditions.

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Right of Publicity

(Elements)

Back 15

1) Use of likeness
2) Without consent
3) for appropriation that resulted in commercial advantage
4) The use was likely to cause injury to the plaintiff
*Look at the transformative raw materials test.

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Transformative Test

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Look to the extent that the likeness has been transformed by expressive changes or additions in the new work. "Raw materials."

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Brown v. Pro-Football Inc.

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- Developmental Squad case
- Labor laws stabalize, encourage, and protect the collective bargaining process.
- When process breaks down, labor laws provide adequate remedies.
- Employee suits under the Sherman Antitrust Ac by contrast, might undermine the integrity of collective bargaining. The court wants to maintain the balance of power within collective bargaining relationship.

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American Needle

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NFL is not a single entity because each team operates itself, there are 32 separate entities. They compete with each other for talent, fans, dollars, etc. There is no common objective.

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NCAA Responsibilities

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- Athlete Eligibility
- Recruiting
- Championships
- Rules of Competition
- Enforcement
- All NCAA student-athletes are to be amateurs; cannot accept extra benefits