Restraint Of Trade Research Articles

The NIL Paradox: How Unfettered NIL Rights Will Shrink Student-Athlete Opportunities

In 2019, California passed the Fair Pay to Play Act which granted student-athletes (“SAs”) attending institutions within the state the right to monetize the use of their name, image, and likeness (“NIL”). That enactment ushered in the most transformative change in college sports since the National Collegiate Athletic Association’s (“NCAA”) decision over 50 years ago to allow freshman eligibility to play varsity football. The California law, coupled with the subsequent Supreme Court decision in NCAA v. Alston, which held that the NCAA’s limitations on education-related SA benefits constituted an unlawful restraint of trade under the Sherman Act, unleashed a tidal wave of states legislation conferring SAs within their borders the right to receive compensation for the use of their NIL. In the immediate aftermath of Alston, more than 30 states enacted a version of the Fair Pay to Play Act, creating a dizzying patchwork of NIL laws. In scarcely the two years since Alston, the NIL landscape has devolved into what many describe as the “Wild West” resulting in virtually every stakeholder in this new economy—the NCAA, college leaders and coaches, SAs, and collectives—to plea for federal regulation to bring uniformity and order to the extant chaos. The author concurs with the call for reform and Congressional action. However, this Article argues that key areas of NIL reform—expanded access to institution intellectual property and assets (“IP”) and the elimination of restricted deal categories—are ill-considered and, indeed, will have a material, adverse impact on athletic department wellness.

Provider Exclusion in US Private Health Insurance Contract

Two national newspaper articles published in the Fall of 2018 addressed the issue of private health insurance provider contracts that act to exclude specific health systems from health plan networks. Inevitably, the question arises: Are such agreements illegal restraints of trade actionable under federal and state antitrust laws? A long-standing tenet of antifrust law is that it exists to protect competition not competitors. Excluding providers may be a legitimate outgrowth of the contracting process and therefore legal. However, an examination of the contracting process may reveal anticompetitive intent to restrain trade. The specific facts surrounding provider exclusion must be analyzed carefully in an effort to determine if there is illegal restraint of trade.

Restraint of Trade and Non-compete Clauses in Cross Border M&A

Restraint of Trade and Non-compete Clauses in Cross Border M&A

Application of the Doctrine of Restraint of Trade in Employment Contracts: A Dichotomy between English Law and Indian/ Bangladeshi Law and Its Potential in Outsourcing Contracts

The doctrine of restraint is no more confined to the entrenched words of the sections of the Contract Act, 1872. It has travelled beyond by encompassing the reasonableness doctrine within it. However, the development is still in its rudimentary state in context of Bangladesh as very few cases are dealt with by the Bangladeshi Courts on this issue. As a result, we do not have enough legal premises to make an in-depth analysis of the applicability of the doctrine in our perspective. However, the Grameenphone Ltd vs Chairman case in the First Labor Court has opened a new dimension on this issue through anatomizing an outsourcing contract. It has provoked us to think again of the application of restraint of trade doctrine in employment contracts. But before delving into the matter with a research methodology, we need to know more about it since the texts on the issue of outsourcing are still nascent. The aim of the article is to introduce to the reader the developments of the doctrine of restraint of trade and contextualize it in Bangladesh’s context.
 Dhaka University Law Journal, Vol. 33(1), 2023 P.49-66

Is Labor in Sport a Commodity? The Case of American and Japanese Professional Baseball

An important rule that underpins international and domestic labor law is the principle that labor is not a commodity. This principle has interesting application to the labor regulation in professional team sports such as baseball that utilize drafts, salary restraints, the reserve system, and free agency. The article will examine whether these and other labor controls in Major League Baseball in the United States and Nippon Professional Baseball League in Japan commodify labor. Baseball’s labor controls and practices will be assessed to determine if labor is treated as a commodity, and if so, whether there is undue commodification. In doing so, a construct will be created of labor practices that commodify labor on a spectrum. These labor practices and controls will also be evaluated in the context of antitrust law and restraint of trade. The article concludes by suggesting ways to improve the treatment of players that will decommodify labor.

The “Perfect Dress”

The process of “knocking off” the work of others has been an integral practice of the United States ready-to-wear industry since the 1890s. In the 1930s, the Fashion Originators Guild of America (FOGA) created an internal system to protect its members’ design work, but in 1941 this system was declared in restraint of trade, and the next best protection option laid in the US design patent system. This research examines the 4,523 dress patents issued in the United States between 1936 and 1942, focusing on the designers and/or manufacturers represented and the process and timing of patent applications. Analysis of select court cases of design patent infringement, including a case study of a patent for “The Perfect Dress” by leading FOGA member and ready-to-wear dress manufacturer Samuel Zahn, demonstrates the difficulty of protecting a patented dress design and the complicated nature of what constituted an original design.

The Friction Paradox: Intermediaries, Competition, and Efficiency

Commentators sometimes say that the elimination of impediments to trade—namely, market friction—tends to expand trade and foster competition. This casual assumption is known to be erroneous. Antitrust law recognizes that restraints of trade—which are forms of market friction—are often pro-competitive and frequently have both pro- and anticompetitive effects. Accordingly, antitrust law prohibits unreasonable restraints of trade, but not all restraints of trade. Trust-busting advocates promote a different approach to market friction. They argue that the antitrust laws intend to maintain fragmented industries and favor small businesses. This approach, which has been embraced by the antitrust agencies in recent years, implies that high-friction markets are more competitive than low-friction markets. It is an expression of a phenomenon that can be called the “ friction paradox”: the elimination of market friction is desirable until this goal is accomplished. Notable examples of the friction paradox include hostility toward new generations of market intermediaries, such as supermarkets, chain stores, department stores, big-box stores, digital platforms, and digital ecosystems. This article observes that antipathy for large intermediaries results in a willingness to sacrifice the core benefits of competition—low prices, convenience, efficiency, and innovation. It, therefore, argues that antitrust expressions of the friction paradox place competition policy at war with itself.

Hayek on labor unions and restraint of trade

Hayek on labor unions and restraint of trade

(Lack of) Competition, Coordination, and Information Sharing in the Pork Industry: United States, 2009–2020

In 2020, an antitrust lawsuit was filed against the Pork Integrators alleging a §1 Sherman Act violation. At the center of the Lawsuit, there is an alleged exchange of atomistic information about the Pork integrators’ operations using Agri Stats, Inc. as a clearinghouse. We use the Supreme Court benchmark in American Column & Lumber to discuss two questions that arise from the Lawsuit. The first is whether the association of Pork Integrators and Agri Stats, Inc., resulted in the restraint of interstate commerce, the main specific issue at stake in the pork Lawsuit. The second is whether information-exchange agreements using clearinghouses like Agri Stats, Inc., lessen competition and offend U.S. antitrust law, a more general issue beyond the pork Lawsuit. We find that there appears to be ample evidence in the Lawsuit to merit prosecution regarding both trade restraints and information-sharing agreements. We conclude by discussing the role of the Agencies in setting the standards in information-exchange agreements.

Secondary Picketing, Trade Restraints, and the First Amendment: A Historical and Practical Case for Legal Stability

Secondary Picketing, Trade Restraints, and the First Amendment: A Historical and Practical Case for Legal Stability

Nothing to Lose but Their Restraints of Trade: Lessons for Employment Non-Compete Clauses from EU Competition Law

Abstract Courts on both sides of the Irish Sea have handed down significant judgments in the field of post-employment restrictive covenants in recent years. This article argues that these cases expose the common law rules on restraint of trade as fundamentally inadequate for regulating non-compete clauses in the modern economy. Ultimately, the scope of these restrictive covenants can only be determined by examining the nature of the relevant market and defining the previous employer’s competitors. This article argues that courts should make full use of methods developed by EU competition law to define the limits of the relevant market, identify the competitors of the previous employer and assess the scale of the restraint. Although this method cannot fully determine the reasonableness of a non-compete clause, it would lead to more effective and systematic treatment of non-compete clauses that considerably improves upon the pragmatic and incompletely theorised approach currently taken by courts in both Ireland and the UK.

International Data Transfer and Trade Restraints

International Data Transfer and Trade Restraints

FRANCHISING AND RESTRAINTS OF TRADE – RESTRAINING EX-FRANCHISEES FROM COMPETING WITH THE FRANCHISE NETWORK

Franchising is a method of expanding a business that allows one (the franchisor) who has developed a successful product or service to increase his distribution network through the investment of others (franchisees) who want to own their own businesses. The relationship between the franchisor and his franchisees is extremely complex but at present it is treated as a normal commercial business transaction. Such an approach fails to take into consideration the entire commitment structure that underlies the franchise network. I have examined this in the light of certain cases dealing with restraints of trade and suggest that there is a need to develop a distinct body of law designed specifically to deal with franchising.

The Intercept That Changed the Game Forever: Fifty Years of Buckley v Tutty

The thirteenth of December 2021 marked the fiftieth anniversary of Buckley v Tutty where the High Court of Australia, in upholding an earlier ruling of the Full Court of the Supreme Court of New South Wales in Tutty v Buckley, found the New South Wales Rugby League’s retain and transfer system to be an unreasonable restraint of trade. The article points to the long-term importance of this decision, especially it being endorsed by lower courts and tribunals in striking down similar employment rules. Prior to the case, Justice Hardie of the Supreme Court of New South Wales found in Elford v Buckley that the NSWRL’s retain and transfer system was not an unreasonable restraint of trade. The article will examine the differences in approach of Justice Hardie in Elford and the Supreme Court of New South Wales and the High Court of Australia, respectively, in Tutty. The article begins with a brief analysis of Nordenfelt v Maxim Nordenfelt Guns and Ammunition which established the modern restraint of trade doctrine. It explores the meaning of ‘carrying on trade’ under this doctrine. It contrasts two possible meanings; ‘absolute freedom’ (subject to contractual and legislative norms) and ‘Hobsonian freedom’. This distinction is used to explain the differences between the Elford and Tutty courts. The article provides an examination of the decisions of courts in previous sports cases – Walker v Crystal Place Football Club, Hawick v Flegg, Eastham v Newcastle United Football Club and Nagle v Feilden – in reaching an understanding of the decision making of the respective courts.

On the Interpretation of No-Hire Provisions in Pennsylvania-- The Case for Utilizing Federal Antitrust Law

Courts around the country lack guidance when evaluating the enforceability of an ancillary no-hire provision. In a jurisdiction without a statute directly on point, such as Pennsylvania, the paths taken thus far have ranged from adopting a noncompete framework to looking to other jurisdictions for assistance to relying on public policy rationales. The Pennsylvania Supreme Court recently adopted a test based on the reasonableness of the challenged provision, but the factors and the overarching reasoning confuse and conflate the concepts of “restraints of trade” and “restrictive covenants,” making it more difficult to reach a clear, sensible, and permanent solution. This Note draws a simple, logical line connecting no-hire provisions and the federal Rule of Reason test, advocating for its use whenever the enforceability of a no-hire provision is at issue. I argue that a no-hire provision is correctly categorized as a horizontal restraint of trade, that only reasonable restraints of trade are enforceable, and that the federal Rule of Reason test is the method by which the reasonability of a restraint is determined. Using this test provides a time-tested, inclusive, and fact-intensive framework that produces a well-considered and thorough conclusion as to the reasonability of a particular no-hire provision.

Contracts in restraint of trade: Pacta sunt servanda and constitutional values: From Magna Alloys to Beadica

Since the advent of the constitutional era, the law of contract and the maxim pacta sunt servanda have been the subject of much jurisprudential discourse. Restraint of trade agreements have, on occasion, been regarded by our courts as distinct from other contracts, with some judges believing that such contracts should be treated with more circumspection and outside the confines of the principles applicable in our law of contract. In Magna Alloys the Appellate Division laid down the general principle that, prima facie, contracts in restraint of trade are valid and enforceable. The employee bears the onus of showing that the restraint is unreasonable and contrary to public policy. Some jurists believe, however, that the application of constitutional principles requires a revision of our jurisprudence in relation to contracts in restraint of trade. This article analyses some of the judgments dealing with the concept of pacta sunt servanda and the application of constitutional values in the decision-making process, and shows that there is no need to cavil against the existing jurisprudence and to treat contracts in restraint of trade as sui generis or more stringently. Although most of the authorities quoted in this article deal with our law of contract in general, such principles have been held by the Supreme Court of Appeal and the Constitutional Court to apply equally to contracts in restraint of trade.

Law Journals, Biomedical Journals, and Restraint of Trade.

Law journals permit submission of scholarly manuscripts to multiple journals concurrently, but biomedical journals strictly forbid submission of manuscripts to more than one journal at a time. Law journals may then compete for the publication of manuscripts. This article examines whether the single-submission requirement of biomedical journals may constitute restraint of trade in violation of Section 1 of the Sherman Antitrust Act.

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

Salt, Smurthwaite, and Smith: The Origins of the Modern Legal Identity of the Church of Jesus Christ of Latter-day Saints

EU Competition Law as Responsive Law

AbstractThis article proposes two broad ways to conceptualise EU competition law. EU competition law could be viewed as ‘autonomous law’ (‘AL’), namely as a closed normative system a technocratic tool consisting in a set of rules that prohibit undue restraints of trade. Or, EU competition law could be viewed as ‘responsive law’ (‘RL’), namely as a relatively open normative system and an interpretive practice that oscillates between openness and integrity. The responsiveness approach offers a compelling conceptualisation as it explains certain endogenous features of EU competition law: its fuzzy mandate, conceptually elastic vocabulary, and use of rules and standards. In addition, the responsiveness approach can clarify the role economics plays in EU competition law. It views economics as an ‘ideological science’, which, even though it cannot insulate this legal field from value disagreements and make it ‘autonomous’, it can provide a source for positive and normative interpretive statements. On this basis the responsiveness approach maintains that EU competition law is by design open—ie conceptually elastic and factually sensitive—and that its openness can enhance, but also undermine its integrity—ie its capacity to realise its objective in a rule of law compatible manner. These conflicts between openness and integrity are the cause of EU competition law's relative indeterminacy. To deal with the problem of indeterminacy, the RL approach proposes a tripartite legal-institutional modus operandi consisting in constructive interpretation, responsive enforcement, and catalytic adjudication. Hence, considering EU competition law as a form of responsive law has three major implications: first, it offers a new way for understanding how this legal field works and changes; second, it suggests a strategy for dealing with EU competition law's indeterminacy, and third it proposes a new framing for the discursive practices of EU competition law's epistemic community.

COVENANTS IN RESTRAINT OF TRADE: A SYNTHESIS OF TRADITIONAL, COMMON LAW AND CONSTITUTIONAL APPROACHES

It seems as if cases dealing with covenants in restraint of trade will forever proliferate in the law reports. The reason for this phenomenon is simply that restraint clauses are by their very nature rather onerous contractual provisions in that they entail the curtailment of commercial activity and thus potentially hold grave consequences for the covenanter. Often the enforcement by the covenantee of such a contract is contested by the covenanter. When the enforcement of a restraint is sought two contractual values come into play: the principle of sanctity of contract (pacta sunt servanda) which holds the maintenance of agreements freely entered into, including limitations of future economic activity, as paramount, and the principle of freedom of trade which stresses the right of an individual to engage without restriction in economic activity. Although inter-related, there is an uneasy tension between these principles linked to the question of which of the two should be afforded preference in the circumstances. Other factors have further caused the South African law on restraint to be somewhat tumultuous, having been applied in terms of English and later Roman-Dutch law, and potentially influenced by the interim and final constitutions. Some recent provincial case law stresses the constitutional aspect of restraints while other decisions display a preference for the common law approach. The crisp question which this note seeks to address in light of the various forces which have been brought to bear on this area of the law of contract is whether at this stage a uniform resolution to the issue is apparent.