Put Up or Shut Up Time

[Stallion]

I think the BCS should have challenged a long time ago with attorney's cost shared by all non-BCS schools if the Justice Department or a combination of state attorneys general wouldn't take the case. A monopolist rarely voluntarily gives away his control. It ain't ever going to happen in Congress-forget it. I have less patience with the crying of non-BCS schools every year when they don't have the balls to stand up for their rights.

http://www.idahostatesman.com/sports/story/826862.html

[Dooby]

Two thoughts:

I am no student of anti-trust law, but I have a hard time believing that signing on to a bad deal at gunpoint prevents you from bringing a claim. I also think that in any anti-trust claim against the BCS, the NCAA has to be a party.

Second, I think the only anti-trust claim is for potential financial losses. The right to hoist a trophy in the air in January is too intangible. Accordingly, everyone needs to be careful what they wish for in cheering these suits on. You may not get what you are hoping for.

[PlanoStang]

Maybe the C-USA could say we signed under duress, and join the Defiant
18 if they do decide not to sign.




Hatch calls for Justice investigation into BCS
http://www.dallasnews.com/sharedcontent ... 97199.html


"Frankly, there's an arrogance about the BCS that just drives me nuts," he told reporters. "Hopefully this hearing will open the door to have some people reconsider their positions. And if nothing else, the Justice Department ought to be looking at this." He said that it's clear to him that the BCS is in violation of antitrust laws.

[jtstang]

Two thoughts:

I am no student of anti-trust law, but I have a hard time believing that signing on to a bad deal at gunpoint prevents you from bringing a claim. I also think that in any anti-trust claim against the BCS, the NCAA has to be a party.

Second, I think the only anti-trust claim is for potential financial losses. The right to hoist a trophy in the air in January is too intangible. Accordingly, everyone needs to be careful what they wish for in cheering these suits on. You may not get what you are hoping for.

I have the same question as your first thought. I know that signing on to the agreement raises an issue of whether you have standing to bring a private anti-trust claim, but signing it under a statement of duress should cut against that. I suppose it could, duress is one of those contract defense, which if proven, can set aside the contract. I'd be interested in Stallion's thoughts on this.

As for the second, I was always under the impression that the Sherman Act was all about breaking up monopolies, and not so much about economic damages, although they are available. If you can't break the BCS, it's probably not worth pursuing.

[Stallion]

In simple terms, the first element of antitrust is a contract, combination or conspiracy in restraint of trade. If you sign the very contract in restraint of trade then you are part of the conspiracy. I'm sure you can make the argument that it was under duress but in reality this doesn't meet the definition of duress. They have known their rights have been trampled on for over 10 years and now may consciously make an informed, deliberate decision to continue the conspracy by signing the new agreement. There are multitudes of cases stating the basic premise that a plaintiff can't conspire with himself ie. be a co-conspirator because he becomes part of the conspiracy. I've never researched the duress argument but you can be sure that the BCS Contract signed by all non-BCS conferences will be Argument No. 1 in the BCS's motion to dismiss and/or summary judgment. I bet it could severely hinder damages too because the non-BCS conferences have been receiving the financial benefit of this Contract for at least the last 5-6+ years. How can you be legally damaged by the enforcement of a contract that you agreed to? Doesn't make any sense.

[jtstang]

You're probably right, it's not duress if you've been doing it willingly for years. But if they have even the slightest urge to sue, they should tall the BCS to stick it and pull the trigger now anyway. It's never going to get any more obvious than what happened last year with Utah and Boise, so the BCS anti-trust action is ripe.

[EastStang]

Does Texas have a state version of the Sherman Act? Would it not be better politically speaking for a school like UTEP and UH to sue Texas, Texas Tech, Baylor and A&M and the rest of the BCS schools, for entering into a combination or conspiracy which has restrained trade to the detriment of UTEP and UH. Bring the case in El Paso. Add in a case in another few states brought by a non-BCS school like CSU vs. Colorado. Fresno vs. Cal, UCLA, Stanford, and USC. And suddenly the BCS is litigating on 25 fronts. If a state school is the plaintiff, it would obviously be more sympathetic to a jury than if it was a private school. But the result would be the same, if a judge found a restraint of trade, that usually entails triple damages. But be careful what you ask for. The USFL won its anti-trust suit against the NFL and the jury awarded it a dollar. Triple that to $3. Big whup.

[jtstang]

You'd have teh same standing issue if those school's presidents' signed off on the BCS agreement. The unique opportunity here is for the WAC and/or MWS to simply refuse to sign and then file suit.

[Dooby]

In simple terms, the first element of antitrust is a contract, combination or conspiracy in restraint of trade. If you sign the very contract in restraint of trade then you are part of the conspiracy. I'm sure you can make the argument that it was under duress but in reality this doesn't meet the definition of duress. They have known their rights have been trampled on for over 10 years and now may consciously make an informed, deliberate decision to continue the conspracy by signing the new agreement. There are multitudes of cases stating the basic premise that a plaintiff can't conspire with himself ie. be a co-conspirator because he becomes part of the conspiracy. I've never researched the duress argument but you can be sure that the BCS Contract signed by all non-BCS conferences will be Argument No. 1 in the BCS's motion to dismiss and/or summary judgment. I bet it could severely hinder damages too because the non-BCS conferences have been receiving the financial benefit of this Contract for at least the last 5-6+ years. How can you be legally damaged by the enforcement of a contract that you agreed to? Doesn't make any sense.

No, it makes perfect sense to me.

Three

Two

One

Perma Life Mufflers v. Int'l Parts Corp., 392 U.S. 134 (1968)

We find ourselves in complete disagreement with the Court of Appeals. There is nothing in the language of the antitrust acts which indicates that Congress wanted to make the common law in pari delicto doctrine a defense to treble damage actions, and the facts of this case suggest no basis for applying such a doctrine even if it did exist. Although in pari delicto literally means "of equal fault," the doctrine has been applied, correctly or incorrectly, in a wide variety of situations in which a plaintiff seeking damages or equitable relief is himself involved in some of the same sort of wrongdoing. We have often indicated the inappropriateness of invoking broad common law barriers to relief where a private suit serves important public purposes. It was for this reason that we held in Kiefer-Stewart Co. v. Seagram & Sons, 340 U. S. 211 (1951), that a plaintiff in an antitrust suit could not be barred from recovery by proof that he had engaged in an unrelated conspiracy to commit some other antitrust violation. Similarly, in Simpson v. Union Oil Co., 377 U. S. 13 (1964), we held that a dealer whose consignment agreement was canceled for failure to adhere to a fixed resale price could bring suit under the antitrust laws even though by signing the agreement he had, to that extent, become a participant in the illegal, competition-destroying scheme. Both Simpson and Kiefer-Stewart were premised on a recognition that the purposes of the antitrust laws are best served by insuring that the private action will be an ever-present threat to deter anyone contemplating business behavior in violation of the antitrust laws. The plaintiff who reaps the reward of treble damages may be no less morally reprehensible than the defendant, but the law encourages his suit to further the overriding public policy in favor of competition. A more fastidious regard for the relative moral worth of the parties would only result in seriously undermining the usefulness of the private action as a bulwark of antitrust enforcement. And permitting the plaintiff to recover a windfall gain does not encourage continued violations by those in his position, since they remain fully subject to civil and criminal penalties for their own illegal conduct. Kiefer-Stewart, supra.

Suck it, b!tches!

[Stallion]

Did you forget to Shepardize-the headnote stating the point of law has been:

overruled twice including by the Supreme Court In Copperweld
distinguished 7 times
and criticized

the entire case has 25 negative treatments

[smupony94]

Did you forget to Shepardize-the headnote stating the point of law has been:

overruled twice including by the Supreme Court In Copperweld
distinguished 7 times
and criticized

the entire case has 25 negative treatments

tell him to suck it.

[EastStang]

Shepard's, the lawyer's friend. You love finding those d notes there.

[Dooby]

Did you forget to Shepardize-the headnote stating the point of law has been:

overruled twice including by the Supreme Court In Copperweld
distinguished 7 times
and criticized

the entire case has 25 negative treatments

As a matter of fact, I did not shepardize it. JT asked me the same thing. I said I was sure you would do that for me.

Of course, since you read it, I don't need to tell you it was overruled in part only. And it wasn't that part. And it has been followed 37 times. It was also still cited favorably by the Suprme Court some 11 years later.

And of course, you know how to use headnotes, right? See, it is important to recognize which part was overruled. And it wasn't that part. At least, the 5th Circuit didn't think so as recently as 2008. Rogers v. McDorman, 521 F.3d 381, 2008 U.S. App. LEXIS 5748 (5th Cir. Tex. 2008)(RICO case).


As my advanced legal research professor always made a point of telling us, Shepards was intended to be a researching tool and was never intended to be used for what it is used for today. You have to read the cases.