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DOJ to Associations: Every Statement May Be an Antitrust Violation

Trade associations and other cooperatives should heed the warning implied by the US Department of Justice’s aggressive stance in a recent court filing
Trade associations and other cooperatives should heed the warning implied by the US Department of Justice’s aggressive stance in a recent court filing, in which it took the position that association policies in and of themselves are evidence of potentially unlawful collective action by association members, even if those policies are merely statements of guidance, and even if there is no evidence that members collectively agreed to the policy.
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The policy at issue relates to international play by professional soccer teams governed by FIFA rules.

Fédération Internationale de Football Association (FIFA) is the governing body for most professional soccer leagues around the world, and in that role issues policies governing how the leagues operate within and among one another. In 2018, FIFA issued a statement that it “emphasized the sporting principle that official league matches must be played within the territory of the respective member association.” 

In its antitrust suit, Relevent Sports contends that it could have arranged for international soccer teams to play official season games at stadiums in the U.S., but for FIFA’s “policy” statement against teams playing official games outside of each league’s territory. Relevent argued that this policy, in and of itself, is evidence of an unlawful agreement to restrict competition by constraining the venues in which teams may play. The defendants argued that there was no official policy prohibiting Relevent’s intended games, and that instead leagues are able to interpret FIFA’s statement at their own discretion; FIFA’s official statutes governing league play were not amended for this issue.

The district court concluded that even if there were a policy adopted by FIFA, it was not evidence of an agreement by the U.S.-based league because there were not also allegations that the league or its soccer-team members had agreed to vote on or support the policy. The court effectively reasoned that an association’s adoption of a policy is only evidence of an agreement if there is further evidence that the defendants actually agreed to it—membership in the association was not enough, nor was passive adherence to a policy.

The DOJ takes the aggressive position that any policy, even if merely guidance, is itself evidence of an association’s concerted activities among its members.

The DOJ’s amicus brief emphasized that the Second Circuit should follow the “well-established principle” that when a Sherman Act § 1 claim alleges “an association rule governing members’ conduct in their separate businesses, there is no uncertainty about the existence of concerted action.” The DOJ contends that “[t]he principle applies equally to all association members adhering to the rule, regardless of whether they voted for the rule, actively supported the rule, merely agreed to follow the rule, or even opposed the rule.” The DOJ notes that this does not mean that every association rule necessarily is anti-competitive, only that the rule itself may constitute concerted action among competing firms.

And the DOJ went further, noting that “concerted action is not limited to an association’s formal, binding rules. An advisory rule can also constitute concerted action. Concerted action also encompasses association conduct that does not take the form of a rule, but that similarly eliminates independent centers of decision making. For instance, . . . a state dental board engaged in a concerted action by agreeing to send cease-and-desist letters to non-dentist competitors. In other instances, concerted action might come in the form of an association’s delegation of authority to an agent.”

The takeaway is that associations cannot avoid antitrust scrutiny when taking action related to members’ competitive position.

The DOJ’s (and Relevent’s) position would mean that trade associations and other collaboratives like joint ventures, certifying bodies, cooperatives, and multiple listing services must assume that policies, public statements, guidance, or even blog posts to members may be treated by the DOJ as evidence of an agreement to collude. The DOJ’s position appears to be an extension of the law, and if adopted by courts, could impact some of the fundamental benefits provided by trade associations. For now, if a trade association is considering a topic that relates to constraining members’ competitive dynamics, it may be safe to assume that it could form the basis of an antitrust claim. 

Arent Fox’s Antitrust & Competition team and Nonprofits & Associations practice regularly advise associations and other member-governed organizations on strategies for antitrust compliance that align with their business goals.

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