I want to leave aside the complex antitrust technicalities on which this decision hinged and just focus on what it means for enterprise to be “free.” Free from what? If the term has any objective meaning, it denotes freedom from coercion, from physical interference by others. So if Barra is correct about this court decision being a victory for freedom, it must mean that some coercive practice has been swept away. But was it?
Consider what led to the court case. All thirty-two teams in the National Football League formed an association (NFL Properties) that entered into a contract with Reebok, a manufacturer of sporting goods. In this contract, Reebok promised to pay NFL Properties licensing fees on the sales of headwear featuring team logos. In exchange, NFL Properties promised that Reebok would have exclusive licensing rights for ten years.
That contract was entered into freely. The court case featured no evidence that Reebok made physical threats against NFL Properties—or that NFL Properties made physical threats against Reebok—or that any of the member teams made physical threats against the others. Physical coercion was simply not an issue in the case. On the contrary, the Supreme Court’s decision to declare the contract illegal is itself coercive. It obliterates, by government force, the freedom in which the NFL-Reebok contract was conceived and written.
According to the decision’s supporters, the 32 teams who formed NFL Properties are now “free” to enter into individual contracts with American Needle. But when the teams actually had freedom, they chose differently. They chose to contract together, as an association, and they chose to contract with Reebok. Now that contract has been swept into the trash can, by force of law. The teams are, in fact, less free than they were before the Supreme Court decided their case. That’s anything but a “clear victory for free enterprise.”
Image: WikiMedia Commons