Archive for June 2010
Competition Law and Sport (IV)- The US Supreme Court’s decision in American Needle v NFL
On May 24th the US Supreme Court issued its most important antitrust decision of the term in the case confronting American Needle and the NFL. As we expected, the Court unanimously rejected the NFL’s contention that its 32 teams should be treated as a “single entity” for antitrust purposes.
The last opinion authored by Justice Stevens reverses a previous decision by the 7th Circuit and holds that NFL’s teams “are still separate, profit-making entities, and their interests in licensing team trademarks are not necessarily aligned”. The Court rejected a formal analysis by ruling that the single entity created by the NFL to manage teams’ IP rights was merely an instrument at the service of its teams.
In essence, the Supreme Court’s Judgment preserves the status quo, thus fully subjecting agreements entered into by sport leagues to a rule of reason analysis. However, some have pointed out that American Needle could have wider implications affecting other ventures between competitors outside the sports world.
The Supreme Court showed some sympathy to the idea that leagues have a “legitimate and important” interest in “maintaining a competitive balance among athletic teams.” Nevertheless, the weight that shall be accorded to such interest in balancing the pro and anti-competitive features of a given agreement remains unclear. In any case, the Supreme Court appears to legitimize competitive balance as a potential redeeming virtue for Section 1 purposes. Whether Article 101 TFEU allows or not to consider similar interests remains highly controversial. What’s your take?
Paper and Slides presented at Vienna Competition Conference
I attach below a set of slides (very simple) and a very preliminary draft text (loads of things to complete) presented at the Vienna Competition Conference 2010 which took place yesterday in Austria. Comments welcome.
I am told that all the materials presented at the conference will shortly be posted there.
I am off for a few days. Meanwhile, Alfonso will take care of the shop.
Behavioral Economics and Abuse of Dominance – PETIT and NEYRINCK
Slides on Review of the Rules Applicable to Horizontal Cooperation Agreements
- 48th lunch talk – 7 July – First Settlement Decision in the DRAMs Case, with K. Dekeyser, P. Mansfield and R. Snellders
- 49th lunch talk – 23 September – Quantification of Damages with Judge P. Roth and A. Lofaro
Re: I love my job
I recently took some time off to put to put an end to my stay in the US, and during those days I gave some thought to Nicolas’ recent post about competition lawyers disliking their job. Since I’m told that he had me in mind when referring to the 1% of lawyers that do “love their job”, I feel I should share my views on the issue:
It’s true that after a yet very brief experience I can say that I enjoy what I do (and apparently this turns me into a weird specimen..). I must however admit that I have been enormously fortunate with regard to the people with whom I’ve worked and the cases that I’ve dealt with, and so I cannot fully rule out that my opinion might change in the future. I would like to think that I’d quit if this ever happened, or if I eventually felt that I could make a wider positive contribution elsewhere.
The way I see it, practicing competition law at a law firm offers constant and varied challenges as well as a privileged insight into a wide array of markets and business practices or strategies. It also generally implies working closely with a multinational group of highly skilled colleagues to an extent that can hardly be matched by any other jobs outside international institutions. Moreover, in parallel to the strictly legal stuff there is a great business component to working at a firm (finding, managing and preserving clients) that distinguishes this job from other law-related jobs and that I find most appealing. Finally, the job is generally quite well paid too.
Of course there are downsides to it, but I agree with Nicholas that us lawyers are, to a certain extent, part of the problem. We have a noticeable tendency to believe that our job is the most important thing in the world (and it surely is important, it’s challenging, it’s interesting, and sometimes is very visible, but no doubt there are many more important things), and we also often tend to talk about how stressed and busy we are (if what we do is soo important and we are soo busy, then we should be really important people, right?) Nonetheless, the world is much larger than a lawyer’s desk, and passion for our job should not make us lose focus. Greater consciousness about this could perhaps contribute to mitigating what seems to be a constant competition about who’s busier.
To be sure, I do think that long hours or lack of flexibility do pose a significant problem that is yet to be satisfactorily addressed by many law firms. Failure to do so implies turning the back to brilliant people who could love their job but who also value other aspects of life (precisely the people with whom most of us would be more comfortable working with). In my view, the best example of this can be found in the limited number of women making a career in law despite the fact that they tend to perform better academically (and, in my view, often have a greater common sense…). Favoring unhappy and narrow-minded “robots” over brilliant and motivated people can hardly do any good. One should avoid thinking that a client is better served by people who execute tasks without any engagement, no matter how many hours they devote to their work. Most of us would agree that firms which strive to keep their lawyers happy and motivated are better positioned to attract talent and to thereby excel in their service. At the end of the day, whether we’re talking about lawyers or about their firms, there can be no real success without satisfaction.
It’s nothing as it seems
I recently peer-reviewed a paper for a competition law journal.
The paper was crap: a recycled and biased “expert” opinion, poorly translated from a non-English language to English, with a significant amount of considerations that were entirely off-topic (technical discussion of the regulatory framework for IPRs). My assessment was negative, bad, tough. I made loads of comments, supposing that the editors would forward them to the author, who in turn would try to implement and/or contest them. In brief, I expected to see a new version of the paper, or at least receive some explanation to the effect that my comments were not relevant, etc. My experience is that this is how it works with professional journals.
Anyway, I was quite surprised to learn today, by myself, that the paper had been published. I have not yet seen it but I doubt that it differs much from the initial version. So I am pissed off: I spent a considerable time on this peer-review, and this was probably useless.
More importantly: European legal journals like to say that they now implement peer-review procedures, but I believe that the practical implementation of such procedures remains far from perfect, and that politics still play a huge role in the publication process. It’s nothing as it seems (as Pearl Jam said in a great song).
(Image possibly subject to copyrights: source here)
Nice
My excellent colleague Frédéric Marty has sent me the programme of a promising conference which will take place on 4 June 2010 in Nice (France).
The conference is organized under the auspices of GREDEG – CNRS. It is devoted to negotiated procedures (settlements and commitments) and gathers a number of top notch French lawyers and economists.
In addition, with summer approaching, Nice is a very pleasant location to stay for a WE.
See link to programme below.
affiche pour les journées de droit éco 4 juin fait le 7 mai 2010 (2)
Congrats
Hat tip and best of luck to my LL.M. students A-S. Come, M. Coquelet, M. DeVos and P. Sabbadini, who have reached the finals of the Concours Lamy de la Concurrence, and are now invited to Paris to plead their case at the French NCA. I am really proud. Congrats’ also to their coach Norman Neyrinck.
Again, our LL.M. offers unique training in antitrust and IP law, and this is just the proof of it.
Here’s a link to the subject of the concours.
Do We, AT Lawyers, need a Shrink?
This is the question which arises from the growing influence of behavioral economics in competition law.
Ahead of a conference in Vienna which will take place next week (“Industry v. Competition“, see programme below), and where I have to speak of this issue, I would like to share a thought with my readers :
There’s an irrational me that understands that economic agents do not necessarily seek to profit maximize;
There’s a rational me that thinks that this is probably the exception more than the rule. Irrationality is not, and cannot, be a good basis for devising general rules and making public policy choices. In so far as firms’ behavior is concerned, the rationality hypothesis remains indeed a reasonable assumption because most CEOs, and more generally sales agents go to business school and learn how to make informed decisions. In so far as consumers are concerned, the undisputable success of low costs business model, and customers’ increased sensitivity to price in times of crisis are blows to the irrationality hypothesis. At best, behavioral economics shall play at the margins, and inform individual decisions on particular cases where markets depart from rationality (retail banking and telcos, where consumers do not switch despite price competition).
So no, we do not need a shrink.




