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Saints' quarterback Drew Brees weighs in on NFL's Supreme Court case

New Orleans Saints quarterback Drew Brees walks off the field after leading his team to victory against the Atlanta Falcons, Dec. 13, 2009.  This month, Brees says he's applying the same sort of vigor to weighing in on an NFL Supreme Court case.
New Orleans Saints quarterback Drew Brees walks off the field after leading his team to victory against the Atlanta Falcons, Dec. 13, 2009. This month, Brees says he's applying the same sort of vigor to weighing in on an NFL Supreme Court case. (AP Photo/Dave Martin)

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By Drew Brees
Sunday, January 10, 2010

As the starting quarterback for the New Orleans Saints, I am used to competing on the football field, not in a courtroom, and I rarely offer a public opinion on complex legal debates. But in a few days, the Supreme Court will hear oral arguments in American Needle v. NFL, a case that could have a profound impact not only on my sport but on all of American professional athletics. So even as the playoffs are beginning, I feel compelled to venture beyond the gridiron to share my thoughts on what is at stake.

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The case involves a multimillion-dollar deal struck in 2000 between the National Football League and Reebok that grants Reebok the exclusive rights to make hats, sweatshirts and other gear with NFL team logos. What does that deal have to do with the ability of my teammates and me to perform our jobs and entertain football fans around the country? Potentially, quite a bit: The gains we fought for and won as players over the years could be lost, while the competition that runs through all aspects of the sport could be undermined.

American Needle is a small manufacturer of hats located in Buffalo Grove, Ill. As a result of the NFL's deal with Reebok, American Needle was excluded from the NFL-branded hat market, so it sued the league and Reebok. American Needle argued that the licensing deal violated antitrust laws because it restricted competition between businesses. The nation's antitrust laws constitute a fundamental part of our economic system and have protected consumers for more than 100 years, providing us with lower prices and fostering innovation.

The NFL originally won the case because the lower courts decided that, when it comes to marketing hats and gear, the 32 teams in the league act like one big company, a "single entity," and such an entity can't illegally conspire with itself to restrain trade. The NFL-Reebok deal is worth a lot of money, and fans pay for it: If you want to show support for your team by buying an official hat, it now costs $10 more than before the exclusive arrangement.

Amazingly, after the NFL won the case, it asked the Supreme Court to dramatically expand the ruling and determine that the teams act as a single entity not only for marketing hats and gear, but for pretty much everything the league does. It was an odd request -- as if I asked an official to review an 80-yard pass of mine that had already been ruled a touchdown. The notion that the teams function as a single entity is absurd; the 32 organizations composing the NFL and the business people who run them compete with unrelenting intensity for players, coaches and, most of all, the loyalty of fans.

I know of this competition because, along with hundreds of other professional football players, I live it every week of the season. I also know about it because in 2006, after five years with the San Diego Chargers, I became a free agent and witnessed firsthand the robust competition among teams for players. Thanks to free agency, I had the opportunity to sign a six-year contract with the New Orleans Saints, and for the past 3 1/2 years, my wife, Brittany, and I have been honored to live in and contribute to the amazingly resilient and welcoming community of New Orleans. We've been privileged to journey with our neighbors on the long road to recovery from the devastation of Hurricane Katrina.

I could choose to sign a contract with the Saints because of a crucial player-led antitrust lawsuit in 1993 that secured players' rights to sell our services as free agents. Until that case, team owners had acted together to control players and keep salaries low, while the popularity of the game and teams' revenues grew exponentially. Today, if the Supreme Court agrees with the NFL's argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.

What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don't reward them when they're promoted and set higher ticket prices (including preventing teams from competing through ticket discounts). These and other concerns prompted the NFL Players Association -- along with the players associations of Major League Baseball, the National Basketball Association and the National Hockey League -- to file an amicus brief with the Supreme Court last fall, arguing against the notion of the NFL as a single entity.

At the moment, the NFL Players Association and team owners are negotiating over a new collective bargaining agreement, and the threat of a lockout looms over the 2011 season. Historically, players have made significant gains, such as free agency, by challenging the NFL on antitrust grounds. If the Supreme Court rules that the league's 32 organizations constitute a single entity that is exempt from antitrust laws, players will lose this important leverage.

In this postseason, my fellow players and I are encouraged and humbled to see that professional football is thriving in our country, even during the most dire recession in decades. Fans continue to express their passion for their teams by spending their limited resources to show their support. Every week during the season, players compete fiercely on the gridiron, and throughout the year, team owners compete to sign the best players and attract fans' loyalty and dollars.

I hope that the justices of the Supreme Court recognize and ensure the continuance of the intense competition inherent in this game, and in the business behind the game. As readers of The Washington Post know well, NFL teams such as the Dallas Cowboys and the Washington Redskins are by no means a single entity -- just ask Dan Snyder or Jerry Jones.

Drew Brees, the starting quarterback for the New Orleans Saints, serves on the executive committee of the NFL Players Association.


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