June 15, 2021

9th Circ. Judges Skeptical Of Ruling Nixing NFL Antitrust Suit

By Hannah Albarazi

Law360, San Francisco (June 14, 2021, 11:15 PM EDT) — Two judges on a Ninth Circuit panel expressed incredulity Monday at a California court’s dismissal of Oakland’s antitrust suit over the National Football League and its teams’ relocation of the Raiders to Las Vegas, saying it seems plausible that without the alleged anti-competitive conduct, Oakland would have an NFL team.

U.S. Circuit Judge Patrick J. Bumatay and U.S. District Judge Douglas L. Rayes, sitting on the panel by designation, appeared sympathetic to Oakland’s argument that the district court erroneously found that the city failed to allege a non-speculative antitrust injury and that the district court applied non-existent, hypothetical pleading standards to dismiss Oakland’s antitrust claims.


In Oakland’s appeal of its federal court dismissal, the city argued that Judge Spero wrongly held the lawsuit up to “non-existent, hypothetical pleading standards” based on the “what if” of more teams. Oakland maintains that it showed “recoverable damages” and that the refusal to allow the city to host the Raiders or any other team amounted to a group boycott.

The City of Oakland maintains the NFL and its teams are a monopoly cartel that artificially restricts its membership to maximize relocation fees.

The NFL and its teams say the city lacks standing to bring a private antitrust action challenging the NFL’s structure because it is neither a competitor of the NFL or its teams, nor a customer in a relevant market in which the NFL and its teams compete.


Oakland’s counsel, Michael Matthew Fay of Berg & Androphy, hit back, accusing the NFL and its teams of conspiring to limit the number of teams in the league and then “use that limitation to inflict on the City of Oakland what experts have called the ‘relocation-extortion.'”

Fay said the defendants create an artificial scarcity of teams to host while demanding that cities — in this case Oakland — pay supra-competitive prices or else lose their team. He said cities such as Oakland, San Diego and St. Louis would like to host professional football teams, but can’t because of the NFL’s 32-limit cap on teams.

“In a competitive market, consumer preference drives supply, but not in the NFL,” Fay told the panel.

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