By Gary Chester, Senior Writer
In 1963, the 14 teams of the National Football League created an entity known as NFL Properties (NFLP) to handle the licensing of team and league trademarks. In its first year, NFLP generated a mere $36,000 in revenue. Six decades later, the 32 NFL teams continue to pool their licensing rights, which generate more than $3 billion annually. The NFLP, which acts as a cartel in dealing with wholesale and retail purveyors of NFL merchandise, can be very proactive in protecting the marketing rights of its members.
In Casey’s Distributing, Inc. v. National Football League, No. 1:22-cv-03934 (S.D.N.Y. July 14, 2025), Judge Andrew Carter, Jr. decided whether a key NFLP business practice violated the Sherman Antitrust Act and the Clayton Act.
The NFL Acts to Control the Sale of Trademarked Products
In simpler times, team logos were an afterthought. Prior to 1960, only the Eagles, Colts, Rams, and Redskins placed trademarked images on their helmets. Three years later, 11 of the 12 NFL teams displayed the team logo on their helmets. (Only the Browns had no logo on the team helmet, a practice which continues in 2025.) The league had recognized the monetary potential of licensing its intellectual property (IP) to a manufacturer who made a product that was sold to distributors who re-sold them to retailers. In the age of Amazon, however, there is sometimes an additional link in the distribution chain. Some retailers choose to sell their products on third-party online marketplaces (TPOMs).
In 2015, the NFLP implemented an Online Distribution Policy (ODP) restricting NFL Licensed Product sales on TPOMs by licensees. The ODP requires retailers to obtain NFLP approval before selling NFL merchandise on Amazon, Walmart.com or other TPOMs. The proffered reason was “to ensure that such retailers maintain control over, and responsibility for, their e-commerce transactional environment.”
Casey’s Distributing is a distributor of licensed sports collectibles based in Omaha, Nebraska. Casey’s and other companies legitimately purchased NFL licensed products from licensees and sold them through online platforms without being informed of the ODP or other limitations on their lawful purchases. Casey’s alleged that the NFL unlawfully conspired to restrict the sale of its licensed products on Amazon and other TPOMs.
In 2017, Casey’s began selling on Walmart.com where sales grew steadily until 2019. After Fanatics agreed to be the exclusive seller of NFL products on Walmart.com in January 2019, all or nearly all the plaintiff’s products were removed from the website. In October 2020, Casey’s supplier and wholesaler/licensee, WinCraft, allegedly said during a phone call that it was acting on Fanatics’ behalf and demanded that Casey’s remove products from Amazon that Casey’s lawfully bought from WinCraft. Amazon subsequently told Casey’s that it must become an NFL-authorized seller to continue selling NFL Licensed Products on Amazon due to a “new agreement with the NFL.”
Casey’s Alleges a Monetary Loss from NFLP Collusion
The defendants, NFLP, NFL Enterprises, each of the NFL member teams, and Fanatics, Inc., a digital sports apparel platform, filed their Motion to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable antitrust claim. A key issue in any antitrust case is the relevant market because the actions of a defendant will have a less significant impact on broad markets than on narrowly defined markets.
Casey’s alleged that the relevant market is the TPOM retail market for NFL licensed products. Casey’s argued that consumers have “fan loyalty and do not deem licensed products from other athletic leagues or other types of licensed products to be reasonable substitutes.” The plaintiff also argued that the market does not include brick-and-mortar sales or online sales that are not TPOM retail sales.
The plaintiff alleged that the defendants’ collusion “in enforcing the NFLP’s TPOM policy or other anticompetitive policies … hinder[s], interfere[s] with, limits[s], and/or prevents[s] Plaintiff and the Class from selling NFL Licensed Products on TPOM.” This conduct allegedly caused a decrease in the number of licensees willing to sell NFL Licensed Products to Casey’s and other retailers, which increased their cost of purchasing NFL Licensed Products.
To prevail on the motion to dismiss, the plaintiff needed to show it adequately pleaded standing to sue. The court noted that the U.S. Supreme Court in Associated General Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983) identified six factors (the AGC factors) that courts should consider in determining whether a plaintiff has antitrust standing. Judge Carter focused on “the type of injury and whether it was one Congress sought to address.”
Did the Defendants’ Conduct Harm Consumers?
The Second Circuit Court of Appeals has applied the AGC factors using a two-prong analysis. First, a plaintiff must allege facts showing it suffered the type of injury the antitrust laws were intended to prevent. Judge Carter stated that a plaintiff must identify the offending practice and the reasons the practice might be anticompetitive.
The court found that Casey’s failed to adequately allege antitrust injury. Even if the plaintiff was harmed by the defendants’ refusal to continue to sell trademarked NFL merchandise to it, this is not an injury that the antitrust laws were designed to redress. Though the defendants’ conduct harms Casey’s, it does not, as alleged, harm competition. The court wrote: “Antitrust law protects competition not competitors.”
The court further stated: “Plaintiffs fail to sufficiently allege anything anticompetive about the NFL Defendants’ insistence that only authorized retailers sell licensed products on TPOMs.” In addition, the court made a critical observation that goes to the heart of antitrust law: if other licensees are willing to sell to Casey’s, then the result is higher prices for Casey’s but not for consumers.
The second step of the AGC analysis requires a court to examine how the plaintiff claims it is in a worse position because of the defendant’s conduct. Here, the court noted that Casey’s alleged that it suffered a dramatic decrease in revenue but that the defendants’ conduct did not raise the prices paid by consumers for NFL trademarked products.
Judge Carter also compared the anticompetitive effect of the specific practice in issue to the alleged injury. The court found that there was nothing in the complaint adequately alleging that consumers must pay higher prices because of the alleged scheme. Judge Carter stated: “While it appears that consumers who insist on buying from unauthorized retailers, like plaintiff, would pay higher prices, there is no adequate allegation that consumers, in general, would be forced to pay higher prices as a result of the scheme.”
The court concluded that Casey’s lacked antitrust standing and it granted the defendants’ motion to dismiss the complaint.
