# Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc.

> District Court, E.D. Pennsylvania · November 8, 1972 · 351 F. Supp. 462

URL: https://www.frixlaw.com/law-library/cases/2594904

## Case

- **Full name:** PHILADELPHIA WORLD HOCKEY CLUB, INC. v. PHILADELPHIA HOCKEY CLUB, INC., Et Al.; PHILADELPHIA HOCKEY CLUB, INC. v. John McKENZIE Et Al.; John McKENZIE v. PHILADELPHIA HOCKEY CLUB, INC., Et Al.; SPORTS CENTREPOINT ENTERPRISES, LTD., Et Al. v. NATIONAL HOCKEY LEAGUE Et Al.; WORLD HOCKEY ASSOCIATION Et Al. v. NATIONAL HOCKEY LEAGUE Et Al.
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** November 8, 1972
- **Citations:** 351 F. Supp. 462; 1972 Trade Cas. (CCH) 74,238; 1972 U.S. Dist. LEXIS 11238
- **Precedential status:** Published
- **Opinion:** Opinion by Higginbotham
- **Judges:** Higginbotham
- **Cited by:** 41 later opinions in the Frix Law Library

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## Opinion text

HIGGINBOTHAM, District Judge.
I.
INTRODUCTION
In 1917, the National Hockey League was born with Montreal.and Toronto as its only members. In 1924, Boston was added, followed in 1926 with Chicago, Detroit and New York. In 1967, Los Angeles, Philadelphia, Pittsburgh, California, Minnesota, St. Louis entered the League and in 1970 Buffalo and Vancouver. In 1972, Nassau (New York) and Atlanta joined this now famous League. Since 1966, the National Hockey League has received in exeess of $36,000,000 for the sale of the rights to play major league professional hockey in their league. When in 1970 the National Hockey League admitted Vancouver and Buffalo, each of these two new clubs paid in excess of $8,000,000 for the acquisition of the minor professional league clubs in their locality and for dis
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tribution to National Hockey League clubs.
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Thus, from what in 1917 was a relatively minor sports attraction, the National Hockey League has skated into the 1970’s to a position of substantial wealth, power, broad spectator interest, international recognition and many superstars, all crescendoing into huge profits for both its owners and players.
One writer observes:
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“What has happened is this: the intrinsic speed and excitement of hockey has made it the game of the second half of this century.”
Maybe in 1922 when the Supreme Court decided the baseball case, hockey was also, as Mr. Justice Holmes then described baseball, primarily an effort to give exhibitions with profits and interstate commerce contacts as mere incidentals. But today, as I review the instant record, hockey is primarily a multi-state, bi-national business, where the
fundamental
motive is the making of money. From its multiple interstate contacts it is a business in commerce subject to the federal anti-trust laws.
3
Despite the thousands of words uttered on this record by all parties about the glory of the sport of hockey and the grandeur of its superstars, the basic factors here are not the sheer exhilaration from observing the speeding puck, but rather the desire to maximize the available buck.
Since 1971, the World Hockey Association (hereinafter referred to as WHA)
4
has attempted to enter major league professional hockey to become a real competitor in this field where the National Hockey League
5
(hereinafter referred to as NHL) has for so long held a total monopolistic position as the
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sole supplier of major league hockey competition. The basic issue is whether through their reserve clause, affiliation agreements, and market power dominance, the National Hockey League has violated the federal antitrust laws and if such a violation is found, whether the WHA is entitled to relief at this preliminary injunction stage..
After a careful review of this most detailed record
6
and the extensive briefs and proposed findings of fact, I find, for the reasons noted below, that for the National Hockey League players whose current contracts expired in September, 1972,
7
the National Hockey League violates the Sherman Act, Section 2,
8
in its efforts to preclude those players from joining WHA teams; accordingly the WHA is entitled to preliminary injunctive relief.
I would like to note my appreciation to all counsel for the most diligent manner in which they have pursued their discovery and litigation in this case. In fact, their performance has been a model for the entire legal profession as to the rational way in which able counsel can meet difficult problems in litigating with obvious vigor a preliminary injunction case where time, if not of the essence, is at least critical because any unnecessary delay by counsel or the court could create a substantial injury to some of the parties. If this case could be decided solely on the basis of the talent and diligence of counsel, the parties would be in perfect equipoise.
The original complaint was filed in Philadelphia on August 18, 1972. Since then, the parties have had extensive discovery, meeting with extraordinary dispatch difficult deadlines. They have filed detailed pre-trial memoranda and proposed pre-trial orders and amendments in support of numerous motions to remand, to dismiss, and for partial summary judgment. For one phase of this litigation pertaining to whether one case should be remanded to a Chicago state judge, we had extensive detailed arguments on the afternoon of September 27, 1972 and at 9:21 that evening, I dictated my opinion from the bench— from which no appeal was filed.
Though originally some phases of the case were argued as motions for partial summary judgment and motions to dismiss, on October 10, 1972 the parties agreed that the record was closed and that I “ . . . may consider all of the matters on the preliminary injunction [aspects] which have been [also] submitted on behalf of the [motions for] summary judgment.” Transcript, October 10, 1972, 148-9. The last exhibit was filed on.October 24, 1972 pursuant to the court’s request for additional information.
Since the record has been closed as to the preliminary injunction phase and the record might contain some material facts which are in dispute, T am declining to rule on the summary judgment motions. Instead I am deciding the case on the preliminary injunction phase with all of the facts (whether disputed or not) being resolved in the findings of fact,
infra,
and in the opinion. In accordance with Rule 52 of the Federal Rules of Civil Procedure, this entire opinion, including the discussion, constitutes my Findings of Fact and Conclusions of Law, and any proposed Findings of Fact and Conclusions of Law inconsistent with those not here found are hereby rejected.
9
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II.
FINDINGS OF FACT
GENERAL FINDINGS AS TO JURISDICTION AND PARTIES
1. Five separate actions are consolidated before this Court in this proceeding. They are:
a. Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc. et al., C.A. 72-1661, complaint originally filed in this Court on August 18, 1972.
b. Philadelphia Hockey Club, Inc. v. John McKenzie, et al., C.A. 72-1807, removed from the Court of Common Pleas of Philadelphia. County on September 13, 1972, pursuant to 28 U.S.C. § 1441 .
c. John McKenzie v. Philadelphia Hockey Club, Inc., et al., C.A. 72-1902, complaint originally filed in this Court on September 26, 1972.
d. Sports Centrepoint Enterprises, Ltd., et al. v. National Hockey League, et al., C.A. 72-1906, transferred from the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404 (a).
e. World Hockey Association, et al. v. National Hockey League, et al., C. A. 72-1995, transferred from the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404 (a).
10
2. Philadelphia World Hockey Club, Inc. (hereinafter “Philadelphia Blazers”), plaintiff in C.A. 72-1661, is a corporation organized under the laws of the State of New Jersey with its principal place of business in Philadelphia, Pennsylvania.
11
3. Sports Centrepoint Enterprises, Ltd., (hereinafter “Winnipeg Jets”), plaintiff in C.A. 72-1906, is a corporation organized under the laws of the Province of Manitoba with its principal place of business in Winnipeg, Manitoba, Canada. (Complaint and Answer in C.A. 72-1906, ¶ 3a.)
4. Chicago Cougars Hockey Club, Inc., (hereinafter “Chicago Cougars”), plaintiff in C.A. 72-1906, is a corporation organized under the laws of the Province of Manitoba with its principal place of' business in Chicago, Illinois. (Complaint and Answer in C.A. 72-1906, ¶ 3b.)
5. John McKenzie, (hereinafter “McKenzie”), plaintiff in C.A. 72-1902, is an individual and a citizen of Canada, residing at Boston, Massachusetts (Complaint in C.A. 72-1902, ¶ 3; Complaint and Answer ¶ C.A. 72-1807, ¶ 2.)
6. World Hockey Association, (hereinafter “WHA”), a plaintiff in No. 72-1995, is a non-profit corporation organized and existing under the laws of the State of Delaware, with its main office located in Santa Ana, California. WHA was formed in 1971 to operate a league of professional hockey clubs and to promote the interests of its individual member clubs. WHA has member franchises in cities and states throughout the United States and Canada. (Complaint in C.A. 72-1995, ¶ 3.)
7. The following plaintiffs in C.A. 72-1995 are all WHA franchise holders, and are corporations organized under the laws of the state or province indicated, with a place of business similarly indicated for each defendant:
a. Edmonton World Hockey Enterprises, Ltd., Alberta, McDonald Hotel, Edmonton, Alberta, Canada.
b. Cleveland World Hockey Association Club, Ohio, 3715 Euclid Avenue, Cleveland, Ohio.
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c. Houston Hockey Club, Inc., Ohio, San Houston Coliseum, 810 Bagby, Houston, Texas.
d. Los Angeles Sharks, Inc., California, 3939 South Figueroa Street, Los Angeles, California.
e. Midwest Saints, Inc., Minnesota, Metro Square, St. Paul, Minnesota.
f. New England Professional Hockey Club, Inc., Massachusetts, 17 Lobby Street, Boston, Massachusetts.
g. Metropolitan Hockey Club, Inc., New Jersey, Statler Hilton Hotel, 7th Avenue and 33rd Street, New York, New York.
h. Ontario National Hockey Teams, Inc., Ontario, P.O. Box 1358, Station B, Ottawa, Ontario, Canada.
i. Le Club de Hockey Les Nordiques, Inc., Quebec, Colisee de Quebec, Quebec 3, Quebec, Canada. (Complaint in C.A. 72-1995, ¶ 4.).
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8. National Hockey League, (hereinafter “NHL”), defendant in C.A. 72-1661, 72-1902, 72-1906 and 72-1995, is an unincorporated nonprofit association with its principal place of business in Montreal, Canada. From the time-of its organization, the membership of the NHL has consisted of member clubs engaged in the staging of professional hockey games- throughout the United States and Canada through a league of professional hockey clubs based on franchises covering specific geographical territories. (Complaint and Answer in C. A. 72-1661, ¶ 4; Exhibit P-3, Arts. I & II.)
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9. The following defendants in C.A. 72-1661, 72-1902, 72-1906 and 72-1995, are all corporations organized under the laws of the State or Province indicated immediately following each such defendant, with a place of business as indicated:
a. Boston Professional Hockey Association, . (hereinafter “Boston Bruins”), Massachusetts. (Complaint and Answer in C.A. 72-1661, ¶ 5.)
b. Charles O. Finley and Company, Inc., (hereinafter “California Golden Seals”), holds the' NHL franchise for Oakland, California. (Complaint and Answer in C.A. 72-1661, ¶ 6.)
c. Chicago Blackhawk Hockey Team, Inc., (hereinafter “Chicago Black-hawks”), Illinois, 1800 W. Madison Street, Chicago, Illinois. (Complaint and Answer in C.A. 72-1661, 117.)
d. Detroit Hockey Club, Inc., (hereinafter “Detroit Red Wings”), Michigan, 5920 Grand River, Detroit, Michigan. (Complaint and Answer in C.A. 72-1661, ¶ 8.)
e. California Sports, Inc., (hereinafter “Los Angeles Kings”), California, 3900 West Manchester Boulevard, P.O. Box 485, Inglewood, California. (Complaint and Answer in C.A. 72-1661, ¶ 9.)
f. The Hockey Club of Minnesota, Inc., (hereinafter “Minnesota North Stars”) now known as Northstar Financial Corporation, holds an NHL franchise in Bloomington, Minnesota. (Complaint and Answer in C.A. 72-1661, ¶ 10.)
g. Le Club de Hockey Canadien, Inc., (hereinafter “Montreal Canadiens”), Quebec, 2312 St. Catherine Street West, Montreal, Quebec, Canada. (Complaint and Answer in C.A. 72-1661, ¶ 11.)
h. Madison Square Garden Center, Inc., (hereinafter “New York
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Rangers”), holds an NHL franchise for New York, New York. (Complaint and Answer in C.A. 72-1661, ¶ 12.)
i. Philadelphia Hockey, Inc., (hereinafter “Philadelphia Flyers”), Philadelphia, Pennsylvania, The Spectrum, Pattison Place, Philadelphia. (Complaint and Answer in C.A. 72-1661, ¶ 14.)
j. Pittsburgh Penguin Partners, a Limited Partnership, (hereinafter “Pittsburgh Penguins”), hold an NHL franchise for . Pittsburgh, Pennsylvania. (Complaint and Answer in C.A. 72-1661, ¶ 14.)
k. St. Louis Blues Hockey Club, Inc., (hereinafter “St. Louis Blues”), Missouri, 5700 Oakland Avenue, St. Louis, Missouri. (Complaint and Answer in C.A. 72-1661, ¶ 15.)
l.
Maple Leaf Gardens, Ltd., (hereinafter “Toronto Maple Leafs”), Ontario, 60 Carlton Street, Toronto, Ontario, Canada. (Complaint and Answer in C.A. 72-1661, ¶ 16.)
m. Niagara Frontier Hockey Corporation, (hereinafter “Buffalo Sabres”), New York, Buffalo, New York. (Complaint and Answer in C.A. 72-1661, ¶ 17.)
n. Vancouver Hockey Club, Ltd., (hereinafter “Vancouver Canucks”), holds an NHL franchise for a hockey club in Vancouver, British Columbia. (Complaint and Answer in C.A. 72-1661, ¶ 18.)
o. Atlanta Hockey, Inc., (hereinafter “Atlanta Flames”), Georgia, 2 Forsyth Street, N.W., Atlanta, Georgia. (Complaint and Answer in C.A. 72-1661, ¶ 19.)
p. Nassau Sports, a Limited Partnership, (hereinafter “New York Islanders”), New York, 1 Old Country Road, Carle Place, Nassau County, New York. (Complaint and Answer in C.A. 72-1661, ¶ 20.)
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10. Clarence S. Campbell, (hereinafter “Campbell”), defendant in C.A. 72-1995 is an individual and President of the NHL and maintains a place of business in Montreal, Quebec, Canada. (Complaint in C.A. 72-1995, ¶ 8.)
11. Jurisdiction of the subject matter duly appears pursuant to 15 U.S.C. §§ 15 and 26 and 28 U.S.C. § 1337 and has not been challenged. Jurisdiction and proper venue of the defendants, except Atlanta and Nassau in C.A. 72-1661, is not contested.
(See
Complaint and Answer in C.A. 72-1661, ¶¶ 1 and 21.)
12. C.A. 72-1807 was removed to this Court pursuant to 28 U.S.C. § 1441 (a) and (b). (Removal Petition in C.A. 72-1807, ¶ 11.)
13. This matter comes before the Court on motions for partial summary judgment and preliminary injunction submitted by Blazers in No. 72-1661, Centrepoint and Cougars in C.A. 72-1906 and McKenzie in C.A. 72-1807 and 72-1902.
INTERSTATE TRADE AND COMMERCE
14. The various teams of the NHL transport players and equipment across state lines and the boundary between Canada and the United States in the course of playing their schedules of professional major league hockey games in the various cities in which NHL teams are located. (Defs.’ Proposed Pretrial Order, ¶ 4(c), p. 22.)
15. Each NHL club stages hockey events, contracts with players and other individuals for their services, purchases equipment, contracts with television and radio stations, transports players and equipment, purchases and sells or ar
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ranges for the purchase and sale of refreshments at hockey rinks and carries on other activities in various parts of the United States and Canada. (Defs.’ Proposed Pretrial Order, ¶ 2, p. 21.)
16. The NHL employs the instrumentalities of interstate commerce in the following respects:
(a) The NHL contracts with national network television stations for the broadcast of certain of its games (Exhibit P-27, Campbell dep., p. 148; Exhibit P-38, Wirtz dep., p. 36; Defs.’ Proposed Pretrial Order, ¶ 4(a), p. 22.)
(b) Some of the NHL clubs sell tickets, employ agents and advertise in connection with the staging of some hockey events across state and national boundaries (Defs.’ .Proposed Pretrial Order, ¶ 4(b), p. 22.)
' (c) The staging of hockey events by NHL teams requires interstate travel by them as well as communication in interstate commerce and movement of equipment in interstate commerce. (Defs.’ Proposed Pretrial Order, ¶ 4(c), p. 22.)
THE RELEVANT MARKET
17. The relevant market is major league professional hockey. (Findings of Fact 20-37,
infra.)
18. The relevant geographic markets are the United States and Canada and the metropolitan areas in which the NHL teams are located. (Findings of Fact 20-37,
infra.)
19* There is a sufficient disparity between major league professional hockey on the one hand and minor professional league and amateur hockey on the other to distinguish the former from the latter. (Findings of Fact 20-37),
infra.
20. The average ticket price for NHL games is $5.22; for AHL games it is $3.07; for WHL games $2.47; and for CHL games $2.42. (Exhibit P-27, Campbell dep., p. 147; Exhibit P-71.)
21. Average paid.attendance at NHL games is approximately 14,000; total paid attendance for the 1971-72 season was 7,906,000 for 536 games,. The following is the total and average paid attendance for the 1971-72 season at minor league games:
Total Paid Average Paid No. of Attendance Attendance Games
AHL 1,934,504 4,437 436
WHL 1,032,233 4,779 216
CHL 849,333 3,932 216
Total
Minor
Leagues . 3,816,070
(Exhibit P-71; Exhibit P-27, Campbell dep., pp. 148-149).
22. Total attendance at NHL games was more than twice that of all three minor professional leagues combined, although the minor leagues played more games than the NHL. (Exhibit P-24, Allen dep., p. 225; Exhibit P-27, Campbell dep., pp. 148-49; Exhibit P-71.)
23. The popularity of major league professional hockey vis-a-vis its minor league counterpart is indicated by the fact that average 1969-70 season attendance in the NHL East Division was more than 100% of rated seating capacity. (Exhibit P-59). Chicago Black-hawks President William Wirtz testified that his team’s games are typically sold out, but that in contrast the Blackhawks’ Dallas minor league team draws only 2,500 in an 8,000 seat arena. (Exhibit P-38, Wirtz dept., p. 42.)
24. The NHL has entered into network television contracts, in both the United States and Canada, the proceeds of which are divided among the NHL member teams. It is, however, highly unusual for a minor league team to be able to secure such an agreement. (Exhibit P-27, Campbell dep., pp. 148, 152.) The Chicago Blackhawks have a local television contract under which its out of town games are shown in Chicago. The television station in Chicago pays the Blackhawks for the broadcast rights. No such arrangements can be made for the Dallas minor league team because “(t)here is no market for it”. (Exhibit P-38, Wirtz dep. p. 37.)
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25. Salaries paid NHL players are far higher than in the AHL. (Exhibit P-24, Allen dep., pp. 221-22.) Contracts offered to younger players often contain two salaries, one if the player is signed by his NHL team, a lesser sum if he is transferred to or remains with a minor league club. (Exhibit P-43; Exhibit P-33, O’Neill dep., pp. 89-91.) The average NHL player’s salary in 1971-72 season was $24,000. For minor league players, salaries were typically $11,000 to $12,000. (Exhibit P-24, Allen dep., p. 222.)
26. There is no dispute among the witnesses that the presence of qualified players of major league professional caliber is essential to the successful conduct of major league professional ice hockey competition. (Exhibit D-2, Swados Aff., pp. 3-9; Exhibit P-38, Wirtz dep., pp. 27-28, 44-55; Exhibit P-27, Campbell Test. Senate, p. 545; Exhibit P-28, Cook dep., pp. 74-75.) Robert Swados, Vice President and Counsel of the NHL’s Buffalo Sabres, states that highly developed playing skills are essential to the high quality of hockey demanded by major league fans. (Exhibit D-2, Swados Aff., p. 7, ¶ 5.)
27. Most amateur hockey players do not have sufficiently developed skills to warrant their inclusion on NHL team rosters. Such players usually require two to four years of minor professional league seasoning for major league competition. (Exhibit P-38, Wirtz dep., pp. 27-28; Exhibit P-33, O’Neill dep., p. 119.) Swados, of the Buffalo Sabres’ organization, observes that only in “rare cases” is an outstanding amateur player placed immediately on the roster of an NHL team. Mr. Swados states:
“In most cases he would be assigned to a farm club for further development of his skill conditioning, elimination of his weaknesses, refinement of his team play or whatever special training the hockey department of the NHL club felt was required. Upon attaining the necessary skills and experience in team play, he would move up to his major league club.” (Swados Aff., p. 12.)
28. The use of young amateur players as the sole basis for a professional hockey league team, in the words of the president of the NHL would mean “they (WHA) have got to spend at least another four years in developing them before they can do them one bit of good” and “if they do, they haven’t got a good enough show.” (Exhibit P-26, Campbell Senate, p. 545).
29. There are more than 50,000 amateur hockey players in Canada and the United States. In 1972, approximately 7000 Canadian players attained the age of 20 and were available in the NHL draft; of these, 152 were drafted by NHL clubs. By September 25, 1972, 45 of them had been successfully signed by the NHL clubs. (Exhibit D-126, O’Neill dep., p. 105; Exhibit D-2, Swados Affidavit, p. 14). The record does not reveal whether these 45 players immediately will play for an NHL major league team, or will first be assigned to the minor leagues.
30. Any and all of these 50,000 amateur players, including those subject to the NHL draft or actually drafted by an NHL club, but not successfully signed, are available to play in the WHA or any other league. As stated by Mr. Swados, of the NHL, “there is no provision of contract, constitution, by-law or statute that prevents any amateur player, whether or not drafted by an NHL club, from signing with the WHA or any other new league ...” [Ex. D-2 (Swados), p. 14.] Mr. Davidson, President of the WHA, is also of the view that amateur players are contractually free to sign with any professional team that tenders them a contract. [Ex. D-134 (Davidson), p. 15.]
While there is apparently no legal bar which precludes the WHA’s contracting with amateur players of any age, the Canadian government in regulating its sponsored amateur leagues would prefer that the professional leagues draft only amateurs who are over 20 years of age.
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Even if the WHA observes the 20 year-old rule, there are many “junior hockey graduates”, over the age of 20, who have had prior competitive experience by reason of the extensive play in the amateur leagues.
31. The World Hockey Association does intend to utilize some players from the minor professional leagues in order to stock their newly established clubs.
As stated by one of the two promoters of the WHA, the WHA “started off with the premise . . . that we would most probably not get too many players to join us from the National Hockey League after their contract period was up. We started off with that premise, so we looked at the basis that there was the Central League, the Western League, the International League, the Eastern League and the American League, all minor leagues, and the amateur leagues and the European leagues, and we felt that there was a great reservoir of players.” [Ex. D-135 (Murphy), pp. 70, 79.] The “Player Personnel Executive” for the WHA, Mr. Steve Arnold (See Ex. D-19) gave Mr. Murphy, one of the two WHA promoters, “the feeling that there was plenty of good talent to draw from and that there was going to be a considerable reservoir of players to come from in the future.” [Ex. D-135 (Murphy), p. 71.]
32. Financial considerations of the WHA further dictate that some players other than those of major league caliber will be signed. The WHA has advised its member clubs that:
“We would caution each of you that the expenditures for players could far exceed our budgetary estimates unless we all agree to a
firm
formula. This formula will provide for the stocking of each team under the following recommended structure.
“That each team include six graduating Junior Hockey League players, a minimum of six professional players from the Minor Leagues and five other professionals, hopefully National Hockey League players.
“It is felt that we can secure more than enough excellent Junior Hockey League players — future Super Stars — to build a foundation from. It is also felt that these players can be secured at an average cost of $10,000 bonus and a $15,000 salary. It would be to our advantage to sign these players to a multi-year contract.” (Exhibit D-115)
33. Bobby Hull, apparently one of the “superstars” in professional hockey, has commented on the ability of junior hockey players:
“Some buffs consider the brand of hockey played in the Junior
‘A’
leagues more exciting if not better than that in the NHL. The reasoning is that every player knows he is being watched constantly by the NHL parent club and may be hauled upstairs at any time, if only to fill in for somebody who has been injured. This continued observation is supposed to make the Juniors play better. I doubt they do, regardless of the pressure, and I am certain a fan will see more finesse in the NHL than in the Juniors.” (B. Hull, Hockey is My Game, 15-16 (1967)).
Bobby Hull has also stated:
“I would defy all but the hockey purist to find that much difference between the play in, say, the American Professional League and the NHL. Or for that matter between two of the top Junior ‘A’ clubs in Canada, though I know I have said there is a difference in play between the NHL and these clubs.” (Id. at p. 22)
To the extent there is any inconsistency between the two statements, I adopt the former as a Finding of Fact and specifically reject the latter.
34. The WHA clubs have drafted 104 International Hockey League and Eastern Hockey League players, 105 college players and four known European players. (Exhibit D-3; Exhibit D-135 (Murphy) p. 80-A; Exhibit D-134 (Da
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vidson), p. 16; Exhibit D-87, p. 2; Exhibit D-126 (O’Neill), p. 103.)
THE STRUCTURE OF PROFESSIONAL HOCKEY AND THE SUPPLY OF PROFESSIONAL PLAYERS.
35. Prior to the formation of the WHA in 1971, the NHL was the only major league professional hockey association in North America. (Exhibit P-34, Schmidt dep., p. 11; Exhibit P-73; Exhibit P-32, Mulcahy dep., p. 4-114.)
36. In addition to the NHL, there are three other professional hockey leagues in North America. These are the American Hockey League (AHL), the Western Hockey League (WHL), and the Central Hockey League, formerly the Central Professional Hockey League, (CHL), with a total of 24 teams (Exhibit P-71; Exhibit P-29 at 563-64; Exhibit P-34, Schmidt dep., p. 11; Exhibit P-35, Snider dep., pp. 13-15; Exhibit P-38, Wirtz dep., p. 24.) The best players are found in the NHL (Exhibit P-29, Eagleson Test, in
Flood,
pp. 549-50; Exhibit P-32, Mulcahy dep., pp. 4-114, 4-115), the next best in the American and Western Hockey Leagues, and the lowest level of professional players is in the Central Hockey League (Exhibit P-29, Eagleson, pp. 563-64.)
37. The International and Eastern Hockey Leagues are amateur or at best semi-professional leagues. William Wirtz (NHL) testified that the International Hockey League is an amateur organization “[tjhat does have professional players that have sat out for a couple of years and come back and want their amateur status reinstated.” (Exhibit P-38, Wirtz dep., p. 23; Exhibit P-34, Schmidt dep., p. 11; Exhibit D-2, Swados Aff., p. 12.) And although they are sometimes used by NHL teams for assignment for development of their weakest players
(see
Exhibit P-24, Allen dep., pp. 226-29; Exhibit D-2, Swados Aff., p. 12), their players are generally less talented than those in the minor professional leagues.
38. The NHL requires that each of its member teams must have an affiliation with a “player development team”. (Exhibit P-33, O’Neill dep. at 28; Exhibit D-2, Swados Affidavit at p. 17). Thus, at least 16 of the 24 professional minor league teams are owned or operated by or affiliated with NHL teams. All of the teams in the CHL are owned by NHL teams. (Exhibit P-25, Campbell
Flood
test. p. 574; Exhibit D-2, Swados Affidavit at 18.) C. S. Campbell stated that in addition to the teams owned by NHL members, “ . . . there are almost an unlimited number of affiliations and loaning arrangements of various kinds.” (Exhibit P-25, Campbell
Flood
test. p. 574.)
39. The National Hockey League is governed by a Board of Governors and a President selected by that Board, and each individual team defendant herein has a representative and a vote on the Board of Governors. (Exhibit P-3, NHL Constitution, Arts. 5.2, 61.).
40. The NHL By-laws provide that the Board of Governors will adopt a uniform Standard Player’s Contract. The contract used during the 1971-72 playing season contained the following provision :
Clause 17
“The Club agrees that it will on or before September 1st . . . next following the season covered by this contract tender to the Players personally or by mail ... a contract upon the same terms as this contract save as to salary.
The Player hereby undertakes that he will at the request of the Club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement.
(Exhibit P-4, NHL By-Laws, § 2.2(a); Exhibit D-1, Campbell Affidavit, Ex. D-4 attached thereto.)
Any player’s Standard Player’s Contract entered subsequent to March 29, 1972,
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will contain the following new Clause 17:
“17. The Club agrees that it will on or before September 1st (August 10th, in the case of ‘protected’ players and those who played fifty NHL games in the preceding season) next following the season covered by this contract tender to the Player personally or by mail directed to the Player at his address set out below his signature hereto a contract upon the same terms as this contract save as to salary. The Player hereby undertakes that he will at the request of the Club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement, failing which, by arbitration under the Arbitration Agreement between the League and the NHL Players’ Association dated March 29th, 1972.” Ex. P-1, ¶ 17.
A reserve clause has been in effect since at least 1952. (Exhibit P-38, Wirtz dep. at p. 48)
41. On May 15, 1967, the NHL entered into an agreement with the Canadian Amateur Hockey Association (hereinafter “CAHA”) and the Amateur Hockey Association of the United States (hereinafter “AHAUS”). (Exhibit P-8). Prior to this agreement, various NHL member teams had individually sponsored amateur clubs. (Exhibit D-2, Swados Affidavit at p. 15). The Pro-Amateur Agreement also replaced an earlier agreement of September 1, 1958, between the .NHL and the CAHA, AHAUS and the International Ice Hockey Federation. (Exhibit P-8, Preamble, P. 2).
42. Unlike professional football and basketball, which can draw on an ample supply of talented players developed in competition at the college level in the United States at no cost to the member clubs of the professional leagues, the NHL has never had such a ready-made source of talent. Accordingly, it has invested millions of dollars to help support a system of amateur league and minor league hockey in Canada and the United States which will give youngsters an opportunity to play hockey and develop their hockey skills and which will thus also provide a source of potential players of major league calibre. (Ex. D-2 (Swados), pp. 7-8; Ex. D-126 (O’Neill), pp. 108-113).
43. During the period June, 1967 through June, 1971 alone, the NHL made grants totaling $5,493,000 to amateur hockey associations for distribution to and support of amateur hockey leagues throughout Canada and the United States. (Ex. D-2 (Swados), pp. 12-14.)
44. In addition to the NHL’s support of amateur hockey, the NHL clubs have invested large sums for the development and support of professional minor league hockey clubs in Canada and the United States, many of which could not continue to operate without the subsidies provided by the NHL clubs. (Ex. D-2 (Swados), pp. 16-20.)
45. The willingness of the NHL clubs to invest so heavily in the development of hockey players in the amateur and minor leagues is based in large part on their belief that if a player developed through this system signs a contract with an NHL club that club will, because of the “reserve” clause, have the right to his services as a professional hockey player. (Ex. D-2 (Swados), pp. 7-9, 16.)
46. On May 1, 1968, NHL and the three minor professional leagues entered into a memorandum of agreement commonly referred to as the Joint Affiliation Agreement or “JAA” (Exhibit P-5 § 1). The JAA recites that its object is the "... furtherance of the mutual welfare and interests of the parties hereto and their member clubs in particular . . .” (Exhibit P-5, Preamble.)
47. The Constitution of the NHL gives each team the exclusive control over all professional hockey activities in its “home territory”, defined as the city where each team is located and an area
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of fifty miles from the city limits. (Exhibit P-3, Art. IV).
48. The “home territory” of each NHL team is preserved from minor professional league competition by the Joint Affiliation Agreement [Exhibit P-5, ¶ 31.] Simultaneously with the execution- of the Joint Affiliation Agreement NHL teams acquired from the minor professional leagues territorial rights for Los Angeles, Pittsburgh and San Franciseo-Oakland. [Exhibit P-5, ¶ 3, 32.]
49. Clause 17 of the Standard Player’s Contracts in the AHL and CHL contain language identical in all material respects to that of Clause 17 of the NHL Standard Player’s Contract prior to the March 29, 1972 addition of the Arbitration clause. [Exhibits P-6; P-7, P-42.]
Clause 17 of the Standard Player’s Contract of the WHL is identical to the above, except that instead of stating “the club agrees . . . ”, it states “The Club shall have the option. ...”
The similarities of phraseology and basic incorporation of Clause 17 in the Standard Player’s Contract of the AHL, CHL, WHL, and NHL is the result of a common agreement, mutual understanding, and conspiracy by the NHL and its affiliated minor leagues to maintain a monopolistic position so strong that the NHL precludes effective competition by the entry of another major professional hockey league. Through the totality of many interlocking arrangements, including the Joint Affiliation Agreement, the Pro-Amateur Agreement, and Clause 17 in the Standard Player’s Contract, the NHL perpetuates a conspiracy and combination with the intent to monopolize and. which monopolizes major league professional hockey. These concerted efforts were done not solely to maintain a high level of professional competition among the NHL teams, but rather the major reason was the desire to preclude others from ever having immediate access to the reservoir of players who could become part of another major professional hockey league which could be a material and viable competitor to the NHL. In the words of Mr. Clarence Campbell, President of the NHL, part of the NHL’s purpose was to make certain that the NHL would always be “ . . . the only major professional hockey league operating from coast-to-coast in the United States or Canada.” [Exhibit P-73.]
THE NATIONAL HOCKEY LEAGUE BY-LAWS
50. Paragraph 18 of the Standard Player’s Contract, provides that the player and the club are “ . . . to be legally bound by the Constitution and By-Laws of the league.” [Exhibit P-1, ¶ 18].
51. The By-Laws provide that no member club may derogate from or change the provisions of the Standard Player’s. Contract without authorization of the Board of Governors. [Exhibit P-4, §2.2(a)].
52. The By-Laws [Exhibit P-4, § 4] also establish “lists” relating to the right of NHL teams to control the services of professional players and provide the number of players which each team may maintain on such lists:
List Number of Piayers
a. Reserve List 30 [Exhibit P-4, § 53
b. Goal Keepers Reserve 3 [Exhibit P-4, § 63 List
c. Negotiation list 4 [Exhibit P-4, § 7.13
d. Voluntarily Retired List
e. Playoff Eligibility List
f. Sponsorship List (now obsolete)
g. Protected List 20 [Exhibit P-4, § 16A.13
h. Inactive List
53. Pursuant to the By-Laws, the Joint Affiliation Agreement with the minor leagues and the Pro-Amateur Agreement, a Central Registry is maintained by the. NHL which receives and records all of the documents relating to the rights of NHL and minor league teams to various players and the transfer of amateur draft rights [Exhibit P-
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4, § 9.9; Exhibit P-5, § 13; Exhibit P-8, § 14.]
54. Section 15 of the By-Laws forbids “tampering” with any player owned by any other club. “Tampering” as used in section 15 includes negotiating with, offering employment or discussing employment. It includes also the making of any public or private statement indicating a desire, interest or intention of acquiring the services of a player. Punishment for violation of this By-Law may include a fine of not less than $2,-000 but not more than $10,000 of which 50% is received by the offended club, prohibition of employment of the “tampered” person, and deferment by the offending member club of its choice in the draft proceedings. [Exhibit P-4, § 15]. Similarly, no member club may directly or indirectly negotiate with a player on another team’s negotiation list. [Exhibit P-4, § 7.2].
55. Paragraph 14 of the By-Laws provides that each NHL team shall be liable for any act or omission of a minor league team owned, operated or affiliated by it which violates the By-Laws. The President of the NHL has the sole discretion to determine ownership, operation or affiliation. [Exhibit P-4, § 14.3].
56. The By-Laws, the Joint Affiliation Agreement and the Pro-Amateur Agreement establish the procedures for drafting players. [Exhibit P-4, §§ 16, 16A; Exhibit P-5, §§ 19, 22, 23.] There are four types of drafts:
a. The Inter-League draft, between the NHL and the three minor professional leagues;
b. The Intra-League draft, among NHL teams
inter
se;
c. The “reverse” draft, by which players move from the NHL back to the minor leagues;
d. The universal amateur draft.
57. The Inter-League draft is controlled by Section 16 of the By-Laws [Exhibit P-4, § 16], and the Joint Affiliation Agreement [Exhibit P-5, § 19]. Players selected in the Inter-League draft are placed on the reserve list of the selecting NHL club. [Exhibit P-4, § 16.6]. Not more than three hours following the Inter-League draft, each NHL team submits to the President a list of 18 players and two goal keepers it wishes to “protect”. The “protected” lists are then circulated among the NHL member clubs as an offer to sell for $40,000 any “unprotected” professional or amateur player over the age of 22, on the club’s reserve list (other than a first year professional). [Exhibit P-4, § 16A.3]
58. The Universal Amateur Draft is conducted pursuant to By-Law 16B and the Pro-Amateur Agreement. The ByLaws provide that “no player shall be exempt from such right of selection in the year in which he is eligible for claim.” [Exhibit P-4, § 16B.2(b)]. Conversely, the Joint Affiliation Agreement prohibits any professional team from dealing with a player before he has passed through the Universal Amateur Draft. [Exhibit P-5, § 15(c)]. Selected players are placed on the selecting club's reserve list as “unsigned draft choices”, which gives the selecting club the exclusive right to negotiate with such players. [Exhibit P-4, § 16B.-5(a)], The selecting player may be held on the selecting club’s reserve list so long as that club offers him employment in the NHL for a minimum of $10,000 per year or in the minor league for a minimum of $5,000 per year. [Exhibit P-4, § 16B.5(b)].
59. Payment to the amateur associations for selected players is set out in the By-Laws [Exhibit P-4, § 16B.6] and Pro-Amateur Agreement [Exhibit P-8, ¶ 18] as follows:
a. $3,000 for each player selected in the Universal Amateur draft.
b. An additional $3,000 if such player is signed by an NHL team.
c. $4,000 if in his first year under a Standard Player’s Contract, such player plays in 25 or more NHL games.
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Recently, these amounts have been amended. [Exhibit D-2, Swados Affidavit, at p. 13.]
60. Any player under contract or reserved by a member who, without permission, plays for any other league or organization may be expelled or suspended as may a player refusing to sign a standard player contract containing an arbitrator’s award. [Exhibit P-4, § 17.-5] The President of the league may prohibit the employment of any person by any member club if in his opinion such employment would be “prejudicial to or against the welfare of the league”. [Exhibit P-4, § 18].
61. In addition to establishing the waiver price ($40,000) for NHL players and minimum salary levels for drafted amateurs ($10,000 in NHL, $5,000 in the minors), the By-Laws provide that no member shall pay or offer to pay its players any bonus or other reward which would be a special inducement over and above the contracted salary [Exhibit P-4, §§ 16A.7, 16B.5(b), 25.3; Exhibit P-38, Wirtz dep. p. 15].
THE PRO-AMATEUR AGREEMENT
62. The Pro-Amateur Agreement recites that the NHL is contracting on behalf of its associated and affiliated minor professional leagues, and the Joint Affiliation Agreement confirms that authority. [Exhibits P-8, p. 1; P-5, 1128].
63. The NHL agrees to recognize the CAHA and AHAUS (hereafter “amateur associations”) as the “sole and exclusive governing bodies of amateur hockey within their respective territorial and constitutional spheres . . ” and agrees that “. . in all matters relating to amateur hockey and its relations with professional hockey .” the NHL will deal only with the amateur associations. The NHL also agrees to notify the amateur associations if it becomes aware of the possibility that a professional hockey club might be entering an amateur association’s territory, and if any amateur group seeks recognition as a professional league, application for such change in status would be first submitted to the amateur associations. [Exhibit P-8, ¶ 2].
64. The amateur associations acknowledge that the NHL and its affiliated and associated minor leagues “. . . are the sole and exclusive governing bodies of professional hockey in Canada and the United States of America . . . ” and agree that “. . .in all matters relating to professional hockey and its relations to amateur hockey . . .” the amateur associations will deal only with the NHL. [Exhibit P-8, ¶ 3].
65. The amateur associations and the professional leagues agree to recognize each other’s suspensions in a manner similar to the reciprocal recognition of suspensions contained in paragraph 26 of the Joint Affiliation Agreement. The effect of these agreements is to preclude a suspended player from any participation in organized professional or amateur hockey. [Exhibits P-8, ¶¶ 4, 5; P-5, § 26],
66. The amateur associations also acknowledge that the Standard Player’s Contract, the negotiation claim and the unsigned draft claim will be the “. . . only officially recognized relationships in existence and use .” by the NHL and minor professional leagues [Exhibit P-8, ¶] 6], and that a player will be considered a “professional” only when he has signed a Standard Player’s Contract [Exhibit P-8, ¶] 9]. The recognition of the Standard Player’s Contract, the negotiation nomination and unsigned draft claims are supplemented with the recognition by the amateur associations of the various lists employed by the .four professional leagues. [Exhibit P-8, 1117].
67. The NHL, CAHA, and AHAUS agree that ordinarily no amateur player may be a “professional” unless he has reached his 20th birthday by December
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31-January 1 of that season. [Exhibit p-8, uno, 11].
68. The NHL and the amateur associations agree to establish a Joint Development Committee to oversee liaison between the groups and that the NHL will subsidize the amateur associations, and make certain payments also specified in the NHL By-Laws [Exhibit P-8, ¶¶ 17, 18] for players drafted in the Universal Amateur Draft.
69. The Pro-Amateur Agreement also recites procedures by which a professional player seeking to be reinstated as an amateur must obtain permission of either the club with whom he was affiliated or the Joint Development Committee. [Exhibit P-8, ¶ 16].
70. The parties agree that they and their respective clubs will not “tamper” with each other’s players. [Exhibit P-8, ¶ 16; see, Finding 54,
supra.]
THE JOINT AFFILIATION AGREEMENT
71. The NHL Constitution and ByLaws are subject to § 29(a) of the Joint Affiliation Agreement:
“(a) Each league, party to this agreement, is free to adopt such Constitution and By-Laws and League Rules or Regulations as it may see fit, provided always that nothing in such Constitution, By-Laws, Regulations or Rules shall conflict with this agreement while it is in force.”
72. Under the Joint Affiliation Agreement each NHL member is permitted to protect 37 players, including players under Standard Player Contracts, not more than three goalies, and four negotiation nominees or unsigned draft choices. AHL and WHL clubs are entitled to protect thirty-one players, CHL clubs are entitled to protect thirty players. [Exhibit P-5, § 2].
73. Protection is recognized by the four professional leagues only if the player in question is under a Standard Player Contract. [Exhibit P-5, § 3]. Paragraph 3 of the Joint Affiliation Agreement specifies the Standard Player’s Contract and registration of draft claims and negotiation nomination and states: “No other forms of agreement will be recognized or acted upon for the purpose of registering the rights to the services of any player upon the reserve list of any club.” [Exhibit P-5, §§ 3, 12e].
74. Section 12(d) of the Joint Affiliation Agreement provides:
“Every professional player must sign a Standard Player’s Contract in the form recognized by the league in which he plays, which contract shall be filed with the Central Registry Bulletin. Such contract shall not be modified by any deletion therefrom or by the addition of any provision thereto which has the effect of derogating from the printed contract in any manner whatsoever.”
75. Under Section 5(a) and (b) each league agrees to “acknowledge and respect” the negotiation nominees or negotiation claims of the member teams in each league to a maximum of 4 such nominations for NHL clubs, three for AHL and WHL clubs and two for CHL clubs. The parties also agree that “a player whose name has been validly placed on any of the club or league lists hereinbefore described shall not be placed on any list of any other club in any league.” [Exhibit P-5, §§ 5(a) and (b), 8(a)].
76. The Joint Affiliation Agreement recognizes and refers to the Pro-Amateur Agreement, provides that the age limit for competition in the junior category of amateur competition in the CAHA and AHAUS shall be 20 years [Exhibit P-5, § 15(a)], and establishes interleague rules governing the conduct of the Universal Amateur Draft. [Exhibit P-5, §§ 15(b), 22]. Similarly, the Joint Affiliation Agreement also establishes the procedures for the Inter League draft, one of the methods by which players are transferred from the minor professional leagues to the NHL [Exhibit P-5, § 19, See Exhibit P-33,
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O’Neill Dep. at 29], and the “reverse draft” by which the minor leagues may draft players from NHL teams. [Exhibit P-5, § 23]. Section 20 provides that “ [a] draft claim shall be considered as an actual purchase of the player drafted and subject to the normal rules governing purchases." Conversely, Section 23 provides that, by selecting a NHL player, the selecting minor league in the reverse draft becomes the owner of the right to the services of the player claimed. [Exhibit P-5, §§ 20, 23(i) ].
CLAUSE 17 OF THE NATIONAL HOCKEY LEAGUE STANDARD PLAYER’S CONTRACT
77. Since at least 1958 the NHL Standard Player’s Contract has contained the following language:
“The player hereby undertakes that he will at the request of the club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement . . . ” [Exhibit D-l, Affidavit of Clarence Campbell, especially Exhibits D-l through D-5 attached thereto.]
78. In 1969 certain provisions of the NHL Standard Player’s Contract came under severe criticism from Task Force on Sports for Canadians, including the reserve clause which is described as giving the Club the “right to require [a player under contract] to give his services indefinitely and wholeheartedly to the Club.” The Report concludes:
“The Task Force cannot approve of this reserve clause. We recommend that steps be taken, if necessary by legislation, to require its deletion.” [Exhibit P-68 at 35.]
79. R. Alan Eagleson, Executive Director of the NHL Players’ Association, testified in 1970 in Flood v. Kuhn that:
“[The reserve clause] is considered by me, and I am sure by most, to be simply a lifetime option clause and that a player once he signs the contract, since that is the standard contract of the league, signs with a team for life.” [Exhibit P-29, Eagleson
Flood
at p. 550.]
80. On June 28, 1972, Mr. Eagleson testified before the Senate Commerce Committee that the nature of the reserve clause had not changed in the intervening two years. He stated:
“There is no way that the players in the National Hockey League can accept the position [the reserve clause] under the present circumstances, namely,
lifetime option
on a player’s services.” [Exhibit P-30, Eagleson Senate at p. 507 (Emphasis added).]
81. Charles W. Mulcahy, Jr., General Counsel and Vice-President of the Boston Bruins, on September 30, 1972, agreed that the reserve clause is a perpetual option. [Exhibit P-32, Mulcahy dep. at p. 2-173, p. 3-38.] In addition, William Wirtz, President of the Chicago Blackhawks, concurs in the view that the reserve clause constitutes a “continual option clause”. [Exhibit P-38, Wirtz dep. at p. 49.]
82. In his 1969-1970 Report to the NHL Board of Governors, President Campbell expressed opposition to any attempt to “water down” the reserve clause and urged the Governors to use the League’s position to maintain the provision. [P-59 at pp. 7-8.]
83. Clause 17 of the Standard-Player’s Contract, Amended Form, June, 1970 — the contract used for the 1971-72 season, made no reference to any method for resolving disputes as to salary except by mutual agreement between the parties. [Exhibit D-1, Campbell Affidavit, Exhibit D-4, Cl. 17.]
84. On August 20, 1971, pursuant to a directive of the NHL Owner-Player Council, R. Alan Eagleson and Clarence Campbell initially entered into an arbitration agreement for the resolution of salary disputes for the 1971-72 season naming Edward J. Houston as Arbitrator. [Exhibit D-1, Campbell Affidavit at ¶ 9.]
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85. The August 20, 1971 arbitration agreement reflected a change in the means or the manner in which salary was to be determined, and it is clear that the parties did not intend the entire standard player’s contract to expire at the conclusion of 1972 because there was no agreement as to arbitration in the contract. [Based on Findings 79-81, 83, 84, 89.]
86. On March 29, 1972, an agreement was reached between the NHL Players’ Association and the NHL that salary disputes would be submitted to a neutral arbitrator pursuant to an arbitration agreement signed by R. Alan Eagleson on behalf of the NHLPA and Clarence Campbell on behalf of the NHL. This agreement by its terms expires at the end of three years. [Exhibits P-52 and D-1, Campbell Affidavit at ¶ 10, Exhibit C.] The only purpose of the arbitration agreement was to provide a means for resolving salary disputes for the option years of the Standard Player’s Contract. [Exhibit D-1, Campbell Affidavit at ¶ 10.]
87. This arbitration agreement was neither intended nor understood by the parties to it to alter in any way the perpetual nature of the reserve clause. Mr. Eagleson’s testimony referred to above before the Senate Commerce Committee and the testimony of Messrs. Mulcahy and Wirtz in their depositions, all were given from three to six months after the March 29, 1972 arbitration agreement was executed. As found above, the testimony of both the owners and the players indicates that, notwithstanding any time limitation in the arbitration agreement, the reserve clause of the Standard Players’ Contract continues to be understood as a perpetual option on the players’ services without limitation. [Based in part on Findings 79, 80, 81.]
88. Section 2.2 of the By-Laws of the NHL provides in pertinent part :
“The provisions [of the Standard Player’s Contract] shall not be changed or derogated from except as may be authorized by resolution of the Governors.”
There is no evidence of record to indicate that the arbitration agreement dated March 29, 1972, and alleged to be part of the Standard Player’s Contract, has ever been approved by the Board of Governors. [Exhibit P-4, § 2.2.]
89. The record does not indicate that any players who have signed with WHA teams signed an amended March 1972 Standard Player’s Contract. Therefore, the court finds that none of the Standard Player’s Contracts here in dispute —those between NHL teams and players who have signed with WHA teams for the 1972-73 season — contain a reference to the Ai'bitration Agreement of March 29, 1972 between NHL member clubs and professional players [Exhibit D-l, Campbell Affidavit, Exhibit C.]
PARAGRAPH 17 OF THE NHL’S STANDING PLAYER’S CONTRACT AND COLLECTIVE BARGAINING
90. Since 1967, the NHL has recognized the NHL Players’ Association as the representative of all the NHL players for purposes of collective bargaining with the players’ employers, the various clubs that comprise the NHL, who in turn bargain jointly with the Association. [Exhibit D-1 (Campbell), ¶ 6, and attached Exhibit A, p. 3; Exhibit D-2 (Swados), ¶ 9, p. 23, ¶ 10.] During the 1971-72 NHL playing season, every NHL player was a dues-paying member of the Players’ Association. This latter accomplishment was undoubtedly facilitated by a “check-off” arrangement adopted in 1969 by the Players’ Association. [Exhibit D-1 (Campbell), ¶¶ 7, 15, attached Exhibit A, p. 4 and attached Exhibit F (Eagleson), pp. 480-81; Exhibit D-2 (Swados), ¶ 10, p. 25.]
91. Bargaining between the NHL Players’ Association (NHLPA) and the NHL clubs is carried on principally through the medium of an Owner-Player Council, which meets regularly. Ex. D-
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1 (Campbell), ¶¶ 5-10, 15, and attached ex. A, ex. F (Eagleson), p. 481; Ex. D-128 (Mulcahy), p. 26; Ex. D-129 (Wirtz), p. 65. The Owner-Player Council has incorporated into a cumulative book of “Minutes and Agreements” those agreements reached by the Council that were in effect as of January 1, 1972. Ex. D-1 (Campbell), ¶ 6, and attached ex. A.
92. During 1969, 1971 and 1972, the NHL clubs and the NHLPA entered into agreements relating to the arbitration of salary disputes under paragraph 17. The 1971 agreement is the “Agreement Establishing the ‘Terms of Reference for the Arbitration of Salary Differences between NHL Member Clubs and Professional Players for the Season 1971-72’ ” agreed to by the NHL clubs and the NHLPA on June 10, 1971, and signed by the executive director of the Players’ Association and the president of the NHL on August 20, 1971, and the 1972 agreement is the “Agreement Establishing the ‘Terms of Reference for the Arbitration of Salary Differences between NHL Member Clubs and Professional Players for the Seasons 1972-73, 1973-74 and 1974-75,’” similarly agreed to and signed on March 29, 1972 (hereafter sometimes referred to as the “1971 Arbitration Agreement” and the “1972 Arbitration Agreement” respectively). Ex. D-1 (Campbell) ¶¶ 9-10, and attached exs. B, C. The NHL clubs and the NHLPA have acknowledged that these agreements constitute, during their operative periods, part of the overall set of agreements existing between and binding upon them. [Ex. D-1 (Campbell), ¶¶[9-10; Ex. D-1 (Campbell), ¶ 6, and attached ex. A, p. 7; Ex. D-1 (Campbell), ¶ 15, and attached ex. F (Eagleson), pp. 485-86; Ex. D-2 (Swados), ¶ 10, p. 26, item 8.]
93. Paragraph 17 of the NHL Standard Player’s Contract directly involves terms and conditions of employment and is one of the subjects about which the clubs and the Players’ Association have discussed since 1967. [Findings of Fact 94-103].
94. As early as June 1969 the Players’ Association and the NHL clubs agreed, following negotiations between them, that disputes over what salary should be paid to a player under paragraph 17 should be determined by binding, third-party arbitration. The agreement reached by the NHL clubs and the NHLPA at that time provided that each party to such a dispute was to select one arbitrator, with the two arbitrators thus chosen deciding the salary question jointly, and that in the event that these two arbitrators were unable to reach a decision, they were to select a third arbitrator who would then decide the issue. Ex. D-1 (Campbell) ¶ 8; Ex. D-2 (Swados), ¶ 10, app. A. Previously, disputes regarding salary under paragraph 17 had been determined by the president of the NHL, as reflected in the version of the Standard Player’s Contract then in effect. [Ex. D-1 (Campbell), ¶¶ 8, 12, and attached Exhibit D-3, ¶. 17].
95. This system of arbitration continued in operation for the next two years. At the time of the NHL Board of Governors’ meeting of June 8-9, 1971, however, the Owner-Player Council considered the question further and agreed on June 10 of that year to institute a new system on a trial basis for a period of one year. Under that system, salary arbitration decisions under paragraph 17 were to be made by a single independent arbitrator to be chosen jointly by the president of the NHL and the executive director of the Players’ Association; and Edward J. Houston, Q. C., was in fact chosen by them to serve as arbitrator. [Ex. D-1 (Campbell, ¶¶ 6, 9, ex. A, p. 7, ex. B, Ex. D-121 (Campbell), pp. 154-55; Ex. P-39, item 18, p. 4.]
96. Further negotiations between the Players’ Association and the NHL clubs resulted, on March 29, 1972, in an agreement between those parties extending the 1971 Arbitration Agreement, with certain modifications, for another three years. Under this 1972 Arbitration Agreement, Mr. Houston remains as arbitrator for the next three playing sea
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sons, and a procedure is set out for selecting a successor in case of his inability to so act during the specified three-year period. Ex. D-1 (Campbell), ¶ 10, and attached ex. C; Ex. D-2 (Swados), ¶ 10, item 8; Ex. D-129 (Wirtz), pp. 67-68; Ex. P-39, item 21, p. 5. The NHL Board of Governors, having failed to ratify the 1972 Arbitration Agreement, could assert that the 1972 Arbitration Agreement is not enforceable.
97. The NHLPA and the NHL acknowledge that the Arbitration Agreement, like all Owner-Player agreements, automatically modifies and supersedes any conflicting provisions in
subsequently signed
NHL player contracts and automatically becomes a part of such contracts. Ex. D-1 (Campbell), ¶¶ 10, 15, and attached ex. F (Eagleson), p. 481; Ex. D-127 (Eagleson), pp. 547-8; Ex. D-122 (Cooke), pp. 53-54, 56; Ex. D-123 (Snider), Vol. 2, pp. 78-79, 82; Ex. D-125 (Mulcahy), Vol. 4, pp. 33-35; (for a discussion of the effect on contracts then in existence, see pages 505-10,
infra).
The form of the NHL Standard Player’s Contract promulgated by the League in June 1972 incorporates this agreement by explicit reference in paragraph 17. [Ex. D-1 (Campbell), ¶ 11; Ex. P-1, ¶ 17.]
98. In the summer of 1969, the NHL Board of Governors approved the use of binding third-party arbitration to settle salary disputes under paragraph 17 (Ex. D-1 (Campbell), ¶ 6, and attached ex. A, pp. 7-8; Ex. D-2 (Swados), ¶ 10, and attached app. A, p. 1; Ex. P-39, item 6, p. 2); and the 1971 and 1972 Arbitration Agreements state they are based on authorization by both the Players’ Association and the NHL. [Ex. D-1 (Campbell) ¶ 9, and attached ex. B, p. 4; Ex. D-1 (Campbell), ¶ 10, and attached ex. C, p. 4; Ex. D-121 (Campbell), pp. 153-55.] At the October 25-27, 1971 semi-annual meeting of the Board of Governors, the Board unanimously approved and ratified a change in the NHL Standard Player’s Contract to incorporate the provision for binding arbitration of salary disputes under para graph 17 already agreed upon through collective bargaining. [Ex. P-39, item 19, p. 5.]
99. Assuming that the 1972 Arbitration Agreement will be ratified by the Board of Governors, the legal status of the contractual obligations of the players upon the expiration of the 1972 Arbitration Agreement at the end of the 1974- 75 playing season is unclear. This legal issue is further clouded because, as was done in 1971 and 1972, the Players’ Association and the NHL can agree to extend the arbitration arrangements previously entered into. Some NHL officials assert that upon the expiration of the 1972 Arbitration Agreement at the end of the 1974-75 playing season there will exist no provision in the NHL Standard Player’s Contract for the determination of salary under paragraph 17. Therefore, they contend there would at that point be no binding contractual obligation upon any player, under paragraph 17, to sign a new contract for the 1975- 76 playing season. This conclusion, while a conclusion of law (Ex. D-128 (Mulcahy), pp. 32-33), is expressed in the deposition testimony of Mr. Jack Kent Cooke, president of the NHL California Sports, Incorporated, taken on September 14, 1972, and Mr. Edward Snider, chairman of the Board of the NHL Philadelphia Hockey Club, Inc., taken on September 25, 1972. As the testimony appearing below indicates, Cooke recognized the possibility of an extension of the Arbitration Agreement and qualified his answer to allow for that contingency. [Ex. D-1 (Campbell), ¶ 15; Ex. D-122 (Cooke), pp. 58, 69; Ex. D-123 (Snider), Vol. 2, pp. 78-79],
100. On September 14, 1972, Mr. Jack Kent Cooke, President of the NHL California Sports, Incorporated, and a member of the Board of Governors of the NHL, was asked in a deposition by Mr. Stabile, WHA counsel, whether, assuming that a player contract was entered into for an express term of one year, it would “be the position of California Sports that in those circumstances the term of the Standard Play
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er’s Contract is three years” by virtue of the operation of the 1972 Arbitration Agreement. His answer was that “[i]t would, at this moment,
subject to an extension of the current arbitration agreement and collective bargaining agreement.”
Ex. D-122, p. 58 (emphasis added).
101. Similarly, Mr. Edward Snider, Chairman of the Board of the NHL Philadelphia Hockey Club, Inc., testified in his deposition on September 25, 1972, that “[t]he agreement we have with the Players Association include [s] many, many things of which an arbitration agreement is one and the arbitration agreement is for three years which is an amendment to or whatever you might call it to the player’s contract that in essence in my view gives [us] the rights to our players for three years.” [Ex. D-123, pp. 78-79.]
102. Mr. Alan Eagleson, executive director of the Players’ Association, testified before the Senate Commerce Committee in June 1972 that “[e]very contract is signed for three years. It is for three years.” [Ex. D-1 (Campbell), [[ 15, and attached ex. F, p. 488.] His testimony, however, provides no substantiation as to whether all of the players’ contracts are of three years’ duration or that they all cover the time span of the March 29, 1972 Arbitration Agreement. In fact, some players have had contracts of less than three years. [Ex. P-77, 116.]
103. The negotiations with respect to
arbitration
outlined above have been bona fide, good-faith collective bargaining negotiations relating to genuine issues of employer-employee relations, and the currently existing 1972 Arbitration Agreement is a product of such negotiations. This finding does
not
mean that there has been bona fide, good-faith collective bargaining with respect to the “reserve” clause. [Findings 90-102,
supra.]
104. In addition to the above negor tiations with respect to salary arbitration under paragraph 17, “discussions” between the parties relating to that paragraph have taken place on several occasions. [Ex. D-59, item 1; Ex. D-60; Ex. D-61; Ex. D-62; Ex. D-63; Ex. D-128 (Mulcahy), pp. 26-29; Ex. D-129 (Wirtz), pp. 50, 65-68.]
105. Other than the self-serving statement of certain NHL representatives that the reserve clause has been maintained in its traditional form as a trade-off for certain benefits to the players, the record is devoid of any evidence implying much less demonstrating that the reserve clause has been retained as the result of serious, good-faith collective bargaining.
106. Although the issue of the reserve clause has been discussed often, neither party has ever modified its position. The owners have been insistent on the continuation of the reserve clause basically in its present form, and the players have, since the formation of the Players’ Council, been consistently against this type of reserve clause. As an example, on May 26, 1969, Mr. Alan Eagleson, Executive Director of the NHLPA, made as his first request that “the standard NHL contract b'e amended so that a player has the right to play out his option in a manner similar to that which exists in professional football in Canada and in the U.S.A.” [Exhibit D-59].
At a later joint press conference on June 11, 1969, Mr. Alan Eagleson, executive director of the Players’ Association, and Mr. Charles Mulcahy, negotiator for the NHL clubs in the Owner-Player Council, stated specifically that the “matter of the reserve clause was discussed” in the Council and that the parties “will continue to discuss” the issue. [Ex. D-2 (Swados), ¶ 10, and attached app. A, p. 1.]
It should be noted that while apparently the “reserve” clause was discussed, there was never any modification of the provision. In 1969, the Players’ Association signed an agreement, independent of the discussions concerning the “reserve” clause, which granted the
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players improvements in the pension fund system.
The minutes of the Player-Owner Council show that “a committee composed of Messrs. Berenson, Ullman, Eagleson, Putnam, Wirtz, and Mulcahy has been formed to make a joint review of this matter [the reserve clause] upon the express understanding that the formation of said Committee' does not necessarily imply that either the Owners or the Players will change their position in this regard. The first of these meetings was held on August 20th, [1969].” Despite continuing discussions from that date to the present, the reserve clause has not been modified. [Ex. D-62].
107. Additional discussions regarding paragraph 17 have taken place at various times and are continuing with no change of position by either party, as indicated by a press release issued jointly on August 30, 1972, by Mr. Eagleson and Mr. Clarence Campbell, president of the NHL. That press release states with respect to an August, 1972 meeting of the Owner-Player Council (Ex. D-125 (Mulcahy), vol. 3, p. 37), that “[s]ection 17 of the NHL contract was discussed again. Meetings took place on the reserve clause in early 1972 and this matter was raised again.” [Ex. D-2 (Swados, ¶ 10, and ex. A, p. 3].
108. I find that the testimony of both R. Alan Eagleson and Charles W. Mulcahy, Jr., NHL owner representative to the Owner-Player Council, are credible and that they establish that the reserve clause has never been the subject of bona fide, good-faith collective bargaining. [Findings 109-110,
infra.]
109. On June 22, 1972, Mr. Eagleson wrote to Mr. Mulcahy and made the following observations:
“Although I distinguish between hockey and baseball in that the latter enjoys antitrust exemption, I noted with interest one of the comments of a dissenting judge.
He suggested that the reserve clause should be the subject of collective bargaining.
As
you know, we have skirted this issue for some time now.
Would you agree that this matter should be a topic for discussion at our next Player-Owner Council Meeting?” [Exhibit P-55 (emphasis added).]
110. Mr. Mulcahy .in his deposition taken on October 2, 1972, when asked to describe the nature of the discussions in the Player-Owner Council concerning the reserve clause responded as follows:
“The proposals were made, I believe, by both sides, sir.
Let me put it then this way: I don’t know that they were actually proposals. Proposals is the wrong word. There were — There was an examination by both sides of various avenues that could — that were possibilities of solving it. No one said, ‘This is our proposal, if you would accept this, we would do this.’
They never got to that stage.
It was an examination of what other sports had done, whether they would be applicable, could be used by hockey, and also some that have never been used by other sports, I believe.” (emphasis added) [Exhibit P-31, Mulcahy dep. at p. 30].
111. The Court, therefore, finds that the reserve clause, as it now exists, has been discussed; the owners have never been willing to modify it except as to the arbitration of salary. There is no indication that for any of the benefits offered the' players that the owners would have been willing to modify the reserve clause in lieu of the other benefits given. Thus in that context there does not appear to have been any “collective bargaining” on the reserve clause except as to arbitration of salary. Further, the arbitration of salary did not in any respect modify the perpetual nature of the reserve clause.
112. Paragraph 13(c) of the 1970 version of the Standard Player’s Contract was eliminated from the Standard Contract as a result of collective bargaining. [Ex. D-2 (Swados), ¶ 10,
*486
items 7, 13.] Inasmuch as persons knowledgeable with respect to NHL affairs could not recall an instance in which paragraph 13(c) had been invoked (Ex. P-51, p. 1), and, indeed, since the provision would not have permitted decisions to “cut” a player to be made arbitrarily, the impetus for this change came solely from certain of the NHL clubs, along with the subsequent support of the Players’ Association. [Ex. D-1 (Campbell), ¶ 15, ex. F. (Eagleson), pp. 481-84, especially p. 484)]. Complete deletion of paragraph 13(c) with respect to the contracts of all clubs was not possible until the issue was negotiated and agreed upon by the Owner-Player Council. [Ex. D-137 (Swados), pp. 8-9] This change had the effect of removing the only exception to the club’s honoring its obligation under paragraph 17 to tender to the player a contract for the year following the original period covered by the prior contract. [Ex. D-1 (Campbell), ¶¶ 13-14; Ex. D-2 (Swados), ¶ 10, app. A, p. 3.]
THE NECESSITY FOR SOME FORM OF RESERVE CLAUSE
113. Every major professional team sport utilizes some form of “reserve” clause in its standard player’s contract. [Exhibit D-1 (Campbell), attached Exhibits E-l through E-4.] Some of the purported justifications for a “reserve” clause
(e. g.,
the need for competitive balance within the league) apply to all sports. A less anti-competitive “reserve” clause than the present one may be needed in hockey.
114. In order to be successful, a professional hockey league normally must have some of the qualities of parity among its member teams which make other sports successful. That is, the public must believe that there is relative parity among the member teams and that each team has the opportunity of becoming a contender over a reasonable cycle of years and a reasonable chance of beating any other team on any given night. [Exhibit D-134 (Davidson), pp. 17-21; Exhibit D-135 (Murphy), pp. 92-96; Exhibit D-8, p. 23; Exhibit D-1 (Swados), pp. 29, 37; Exhibit P-27 (Campbell, supplemental designation), p. 93; Exhibit D-121 (Campbell), p. 220.]
115. The history of the NHL’s Stanley Cup Series, the “World Series” of hockey, indicates that relative parity does not exist within the NHL. In the last twenty years, Montreal has won the Stanley Cup on twelve occasions, Toronto has won four times, Detroit has won three times, and Chicago has won once. [Exhibit D.]
116. The founders of the WHA believe that even if the quality of the hockey played by its member teams is not as high as in the NHL, the WHA will still be successful if it can maintain sufficient parity of quality among its own teams. [Exhibit D-135 (Murphy), pp. 92-93.]
EXPANSION
117. The' NHL was organized in 1917. By 1942, the League consisted of six teams. In 1967, six new teams were added. In 1970, the NHL expanded to fourteen teams. [Exhibit D-2 (Swados), pp. 21-24.]
118. In 1971, the NHL authorized franchises for Nassau County, New York, and Atlanta, Georgia, for additional expansion to 16 clubs for the 1972-73 season. [Exhibit P-58.]
119. Since 1966, the NHL has received in excess of 36 million dollars for the sale of the rights to play major league professional hockey. [Exhibit D-2, Swados Affidavit at 36; Exhibit P-38, Wirtz Deposition at pp. 12-15.]
120. In 1967, the NHL, then a six-team organization, permitted six additional teams to be formed, charging $2,000,000 to each new team for the privilege of joining the league. That $2,000,000 from each new entrant was distributed among the original six teams. [Exhibit P-38, Wirtz Deposition at p. 26; Exhibit D-2, Swados Affidavit at pp. 36-37.]
121. Since 1967, the question of additional expansion has been the subject
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of constant discussion in the NHL. [Exhibit D-121 (Campbell), p. 218; Exhibit P-35 (Snider), pp. 34-36; Exhibit D-123 (Snider), pp. 67-68.] At the time of the 1970 expansion, the NHL indicated that additional expansion was anticipated. [Exhibit D-2 (Swados), p. 24; Exhibit P-35 (Snider), pp. 34-36; Exhibit D-123 (Snider), p. 68.]
122. In 1965, Clarence Campbell announced that the intention of the league was that expansion would make the NHL “ . . . the
only
major professional hockey league operating from coast-to-coast in the United States or Canada.” (Emphasis added.) [Exhibit P-73.]
123. In the course of that expansion 120 players were drafted from the six original clubs which had a reserve list of 37 players and a squad of 20. Clarence Campbell stated that that draft from the original clubs rosters could occur without lessening the level of play in the NHL. [Exhibit D-2, Swados Affidavit, pp. 24, 28; Exhibit P-73.]
124. The NHL has permitted a similar loss of skilled players in the successive expansions, since existing teams can protect only 15 players. [Exhibit P-58, at pp. 9, 12.]
125. In 1970, the NHL admitted two additional teams to its league, Vancouver and Buffalo. Each of those new clubs paid in excess of $8,000,000 for the acquisition of the local American Hockey League and Western Hockey League Clubs, for the acquisition of the territorial rights of the Western and American Hockey Leagues, and for distribution to NHL clubs. [Exhibit D-2, Swados Affidavit, p. 36.]
126. “Similar costs will be incurred by the Atlanta and Long Island Clubs entering the league this year.” [Swados Affidavit at pp. 36-37; Exhibit P-38, Wirtz Deposition, pp. 12-15.]
FINDINGS OF FACT RELATING TO NHL REACTION TO ANNOUNCEMENT OF WHA FORMATION
127. The WHA was formed in 1971. The NHL learned of the .organization of the league by at least August 1971, and subsequent to that date the following events outlined in Findings of Fact 128-143,
infra,
occurred: [Defendants’ Proposed Pretrial Order, Statement of Fact 22, Exhibit P-9]
128. On August 4, 1971, a special and highly confidential NHL Presidential Study Committee was established to make recommendations with regard to several problems faced by the NHL in the light of the formation of the WHA. The Committee had representatives from six of the member clubs of the NHL. [Exhibit P-9, at pp. 2-3.]
129. The initial meeting of the special NHL Study Committee was held in New York City on September 15, 1971, the agenda calling for the consideration of:
(1) The implication of the proposed formation of the World Hockey Association ;
(2) All aspects of future expansion of the NHL; and
(3)
The preservation of the reserve clause in the Standard Player’s Contract.
(Emphasis added.) [Plaintiffs’ Amended Supplemental Consolidated Proposed Pretrial Order, Plaintiffs’ Statement of Fact 27 (admitted in Defendants’ Proposed Pretrial Order) ; Exhibit P-9.]
130. That Study Committee amended Provision 13(c) of the Standard Player's Contract for use by NHL clubs in 1972-73 removing the club’s right to unilaterally void the Contract in order to make the Standard Player’s Contract more “bilateral.” This change was initiated by the owners and not by the Players’ Association. [Exhibit P-51.]
131. As a result of a report of the NHL Study Committee, the Board of Governors of the NHL at its October 25-27, 1971. meeting made certain changes in the Standard Player’s Contract, including the elimination of Paragraph 13(c) and further called a special meeting of the Board for November 9 to consider expansion. [Exhibit P-39, Minutes of Board of Governors Meeting on October 25-27, 1971, at 5, 6.]
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132. At the November 8-9, 1971 special meeting the Board of Governors awarded franchises to the territories of Long Island and Atlanta, each franchise to cost $6,000,000 before territorial indemnification. [Exhibits P-27, Campbell dep., pp. 143-44; P-39, Minutes of Board of Governors Meeting on November 8-9, 1971, at 2; P-10, Campbell Press Release; P-58.]
133. The franchises were awarded to territories before the individual owners were selected. [Exhibit P-27, Campbell dep., p. 136.]
134. Prior to November, 1971, the NHL Board of Governors was aware that the WHA was interested in obtaining a lease for its franchise in the New York metropolitan area in the Nassau Coliseum which was presently under construction in Hempstead, Long Island. [Exhibit P-41.]
135. The Nassau Coliseum together with Madison Square Garden are the only two arenas in such metropolitan area suitable for major league professional hockey. The new WHA franchisee’s efforts to obtain a lease on the Nassau Coliseum were rejected by William Shea, “Sports Consultant” of that institution, who is also a member of the Board of Directors of the Los Angeles Kings, a defendant in this action and a member of the NHL. [Plaintiffs’ Amended Supplemental Consolidated Proposed Pretrial Order, Plaintiffs’ Statement of Fact 32 (admitted in part in Defendants’ Proposed Pretrial Order) ; Exhibits P-40, P-41.]
136. In January, 1972, a committee of the Board of Governors of the NHL recommended the award of the Long Island franchise to a group headed by Roy Boe who was also the owner of the New York franchise in the American Basketball Association. By December 28, 1971, Mr. Boe who had agreed upon an indemnification fee of $4,000,000 to the New York Rangers and had acquired a satisfactory lease for the Nassau Coliseum, therefore, was awarded the franchise. [Exhibit P-39, Minutes of NHL Board of Governors Meeting for January 24, 25, 1972 at 2; Exhibit P-38, Wirtz Dep., p. 26.]
137. In late May, 1972, the NHL Board of Governors established a Legal Committee whose duties,
inter alia,
were to develop and implement a policy with regard to players who had signed contracts with the WHA. The Legal Committee promptly employed the law firm of Covington & Burling in Washington, D. C., to aid in this task. [Exhibit P-39, Minutes of NHL Board of Governors Meeting for June 6, 1972, at 23; Exhibit P-37, Swados Dep., pp. 27, 29-30.]
138. During the summer President Campbell suggested to all member teams that they send a form letter to all players, particularly those who had signed with the WHA reminding them of the club’s contract rights and, at the club’s option, raising the question of litigation to enforce the reserve clause. [Exhibits P-13 (a), P-14; P-27, Campbell Dep., p. 200.]
139. At a later date a further letter was circulated by member teams and used by many of those teams to demand a return of players who had signed with the WHA. [Exhibit P-37, Swados Dep., pp. 33-35; Exhibit P-16.]
140. Member clubs of the NHL have circulated to particular players letters substantially similar in form and substance, wherein such player is threatened with legal action if he does not return to the NHL. [Exhibit P-16; Findings 190-197,
infra.]
141. Since the advent of the World Hockey Association, salaries have increased even for those players who have remained with the National Hockey League. [Exhibits P-24; P-69, Allen Dep., pp. 222, 256.]
142. As of the present date NHL member clubs have instituted at least 11 legal actions against NHL players who have signed contracts with WHA teams. The targets of the suits have included several well-known players, such as Bobby Hull, Derek Sanderson, and Gerry Cheevers. [Plaintiffs’ Amended Supple
*489
mental Consolidated Proposed Pretrial Order; Statement of Fact 46 (second sentence admitted in Defendants' Proposed Pretrial Order); Exhibit P-27, Campbell dep., pp. 243-45; Exhibit P-49.]
143. In these legal actions the NHL teams have sought judicial enforcement of paragraph 17 of the Standard Player’s Contract, requesting,
inter alia,
injunctions against the particular player from playing .for other than the NHL team owning his contract. [Plaintiffs’ Amended Supplemental Consolidated Proposed Pretrial Order; Statement of Fact 47 (admitted in Defendants’ Proposed Pretrial Order.]
FINDING OF FACT RELATED TO PLAINTIFF-COUNTERCLAIM-ANT MC KENZIE
144. Plaintiff-counterclaimant McKenzie is 34 years old and has been a major league professional hockey player for 14 years, playing at the position of right wing. [Exhibit P-77, ¶[ 2].
145. Major league professional hockey is the only trade or endeavor in which McKenzie can utilize his talents and skills to maximize his vocational satisfactions and income. [Exhibit P-77, ¶ 3].
146. Because of the tremendous requirements of skill, speed and stamina plus the ability to take tremendous physical punishment, professional major lea.gue hockey players have a limited number of potential high-earning years during their career. [Exhibit P-77, ¶ 4].
147. Until the recent birth of the WHA, the National Hockey League has been the only major professional hockey league; and major league professional hockey caliber players like McKenzie, in order to play major league professional hockey at all, have been required to play for and negotiate compensation only with the NHL team holding an NHL Standard Player’s Contract, which has uniformly retained the so-called “right to renew” clause in paragraph 17. [Exhibit P-77, ¶ 5].
148. The last contract which McKenzie signed with an NHL team is the Standard Player’s Contract, dated September 1, 1971, entered into between McKenzie and the Boston Bruins, which contract by its terms expired on September 30, 1972. [Exhibits P-75; P-77, 116].
149. Paragraph 20 of the Standard Player’s Contract signed by McKenzie [Exhibit P-75] provides as follows:
“It is severally and mutually agreed that the only contracts recognized by the president of the league are the standard player’s contracts which have been duly executed and filed in the league’s office and approved by him.” 150. There, is no evidence that be-
tween September 1, 1971 and September 30, 1972, the stated term of McKenzie’s NHL Standard Player’s Contract, McKenzie agreed to amend, modify or in any way alter the terms of the aforesaid contract.
151. McKenzie played hockey for the Boston Bruins in the National Hockey League during the 1971-72 playing season. Every player during that season was a member of the NHL Players’ Association, which negotiated the Arbitration Agreement of March 29, 1972. Verified Complaint in No. 72-1807, ¶ 10.
152. The NHL Standard Player’s Contract, subject only to § 2.2(a) of the NHL By-Laws, is inviolate and cannot be modified even by the President of the league. [Exhibit P-25, at 568].
153. The NHL By-Laws in § 2 specifically refers to, incorporates, adopts and requires the Standard Player’s Contract. Section 2.2 of the By-Laws provides as follows:
“2.2 The following standard forms are authorized:
Standard Player’s Contract.
A contract to play hockey for a Member Club shall be made on a standard player’s
contract as adopted by the Governors,
which form is contained in
*490
Appendix I to these By-Laws.
The provisions thereof shall not be changed or derogated from except as may be authorized by resolution of the Governors
. . . ” (emphasis added).
154. There is no evidence that the so-called arbitration agreement of March 29, 1972, relied on by defendants Has ever been formally approved or adopted by the Board of Governors of the National Hockey League, as required by NHL By-Laws 2.2(a).
155. Prior to being assigned to the Philadelphia Flyers, as part of the 1972 “Expansion II” intra-league draft, McKenzie was left “unprotected” by the Boston Bruins and therefore exposed to possible draft by either the New York Islanders or Atlanta Flames, the new expansion teams. [Exhibit P-70 at 29, 45; Exhibit P-69 at 264],
156. McKenzie was left “unprotected” by the Boston Bruins organization, because it felt that it had excellent young players whom it could not afford to lose. [P-69 at 265].
157. Neither the Islanders nor the Flames, the 1972 expansion teams, picked up McKenzie as part of the intra-league draft. [Exhibits P-70 at 29, 42; P-77, ¶ 7, P-69 at 266].
158. Although McKenzie was not on the “protected list” of the Boston Bruins at the commencement of the expansion draft proceedings in 1972, he was placed on the list immediately after the first Boston Bruins player was drafted. Since McKenzie was then a “protected player” he could not thereafter be drafted by either of the NHL expansion clubs. [Ex. P-68 (Allen), p. 266.]
159. In June 1972, McKenzie signed a three year contract with the Philadelphia Blazers of the WHA, as player and head coach, at an annual salary of $100,000. [Exhibit “B” to Complaint in C.A. No. 72-1902; Exhibit P-77, ¶[8],
160. Players are almost never consulted prior to a player contract assignment by the NHL clubs holding their contracts whether and where the player should be assigned. [Exhibits P-69, at 258-59 and P-34 at 55].
161. On July 27, 1972, the Bruins assigned McKenzie’s contract to the Flyers. [Exhibit P-70 at 32, 45],
162. The consideration -for the assignment of McKenzie’s contract was $30,000 cash [Exhibit P-70 at 32, 34, 37, 45, 47, 50], less than the “waiver” or minimum price permitted for an intraleague assignment by the NHL ByLaws. [Exhibit P-4, § 16A.3].
163. Boston never informed McKenzie of its assignment of McKenzie’s contract to the Flyers. [Exhibit P-70 at 42, 44, 55, 57].
164. At the end of July, McKenzie received a telephone call from Don Earle, former broadcaster of Boston Bruins games who invited McKenzie to meet with his “bosses” at Joe’s Aquarium restaurant in Boston on the evening of August 2, 1972; McKenzie was led to believe that Earle’s “bosses” were in the communications or advertising fields and wished to speak with McKenzie regarding opportunities for him in these areas. [Exhibit P-77, ¶ 10; P-70 at 45, 58].
165. Earle’s telephone call to McKenzie to arrange the meeting was ordered by Edward Snider, Chairman of the Board and owner of the Philadelphia Flyers. [Exhibit P-70 at 40-42, 53-55].
166. On August 2, 1972, after attending a meeting with Snider and Gilbert Stein, Esq., General Counsel of the Flyers, McKenzie for the first time was informed of the assignment of his contract by the Bruins to the Flyers. [Exhibits P-70 at 42-43, 55-56; P-77, ¶ 11].
167. At the August 2, 1972 meeting, McKenzie was offered by the Flyers a five-year playing contract at $100,000 per year, plus an additional five-year contract at an undetermined salary in an undisclosed capacity in the Flyers’ management. [Exhibits P-36 at 123, 124; P-77, ¶ 12].
168. Subsequent to August 2, the Flyers’ offer to McKenzie, referred to
*491
above, was repeated but also was coupled with the threat that should a court of law enjoin McKenzie from playing for any other team than the Flyers, the offer would be withdrawn and any contract would only be for one year at $100,000 per year. [Exhibit P-77, ¶ 12; P-36 at 121, 123, 124],
169. On August 10, 1972, counsel for McKenzie informed Stein that McKenzie would keep his contract with the Blazers and his word to the hockey fans of Philadelphia by playing for the Blazers, and that he would not under any circumstances negotiate with or play for the Flyers. [Exhibits P-36 at 112-114; P-77, ¶ 13].
170. On September 6, 1972, the Flyers filed a Complaint in Equity in Philadelphia Common Pleas Court (September Term, 1972, No. 378), which was removed to this Court on September 13, 1972 (C.A. No. 72-1807), seeking an injunction not only to prevent McKenzie from playing on the Blazers hockey team, but also to prevent him from acting as their head coach, and to prevent him from being paid by the Philadelphia Blazers. [Complaint-Equity, C.A. No. 72-1807, p. 8; Exhibit P-77, ¶ 14].
171. Prior to October 1, 1972, when all parties agree McKenzie was contractually bound under his contract with Boston, and after the assignment of that contract to the Philadelphia Flyers (which assignment also took place prior to October 1, 1972), McKenzie in violation of his contract engaged in extensive promotional and advertising activities on behalf of the Philadelphia Blazers. Exhibit D to Verified Complaint in C.A. 72-1807; Ex. P-75, ¶ 8.
172. If McKenzie is not permitted to play or to coach the Blazers this year— the opening and therefore financially crucial season for the Blazers — on account of enforcement of the reserve clause, he and hockey players and coaches like himself will not have the opportunity to negotiate the competitive salaries occasioned by the birth of the WHA, or even in some cases to play major league professional hockey at all. [Exhibits P-77, ¶ 15; P-24 at 222; P-69 at 256-257],
173. McKenzie asserts that he will not play for the Flyers during the 1972-73 season or any other season. [Exhibits P-77, ¶ 13; P-36 at 112-114].
174. If McKenzie is not allowed to play as a member of the Blazers team during the upcoming year, as a result of enforcement of the reserve clause, at the present stage of his career, McKenzie may never be able to play major league professional hockey again due to the rigorous requirements of continuing exercise, coordination, and competitive team play. [Exhibit P-77, ¶ 16],
175. The loss of McKenzie’s services to the Blazers would be severe and irreparable; McKenzie is not only a player, but head coach of the Blazers, whose team has to date played thirteen league games, losing eleven. The competitive accomplishments and financial success of the Blazers would be adversely affected if McKenzie is precluded from coaching and playing with the Blazers.
176. McKenzie recently broke his right arm and was then advised by his physician that he would be unable to play for approximately four to six weeks. The Blazers opened their season on October 12, 1972. Although McKenzie shall not be able to play until his arm heals, the Blazers require his services as their head coach. [Exhibit P-77, ¶ 14].
177. The Flyers will suffer no substantial prejudice if they play without McKenzie or if McKenzie plays and coaches for the Blazers.
Even if the Flyers sustain some injury, such harm would be insubstantial and the balance of hardship clearly would favor McKenzie. The Flyers presently have under contract four right wings of major league professional hockey caliber, exclusive of consideration of McKenzie (the validity of whose contract is challenged herein), plus other players of similar caliber who also can
*492
play right wing. [Exhibit P-69 at 266-267].
178. If McKenzie is not permitted to play for or coach the Philadelphia Blazers, the Blazers have agreed to pay McKenzie in the event he is enjoined and have agreed to indemnify McKenzie for legal expenses or any money judgment against him resulting from the execution of the contract with the Blazers. [Ex. P-76,' addendum j] 4.] Even if McKenzie is indemnified by the Blazers, the Blazers will suffer the dual and substantial hardships of paying McKenzie large sums of money and operating without his services as a player and coach.
Irreparable Injury and Right to Equitable Relief
179. The NHL was organized in 1917 and consisted of only six teams during the entire 25-year period preceding its expansion to twelve teams in 1967. The WHA, on the other hand, held the first meeting of- its incorporators on July 1, 1971, and seeks to create a viable major professional hockey league of twelve teams .in little more than one year. [Ex. D-2 (Swados), pp. 21-22; Ex. D-8, p. 1.]
180. The founders of the WHA started on the premise that they probably would not be able to get many players from the NHL to play for the new leágue, and for budgetary reasons would not want too many NHL players, and that they therefore should draw players from all the minor leagues, including the International and Eastern leagues, from the amateur leagues, and from the European leagues. They believed that these leagues offered a great reservoir of players from which the WHA could procure a number of talented hockey players. [Ex. D-115; Ex. D-135 (Murphy), pp. 69-71; Ex. D-8, pp. 152-153.]
181. Since the formation of the WHA in 1971, it and its member teams have nevertheless planned to induce many players under contract to NHL teams to disregard the “reserve” clause in their 1971-72 contracts and to sign a contract to play for a WHA team in the 1972-73 hockey season. [Ex. D-8, pp. 22, 26; Ex. D-9, pp. 6, 9; Ex. D-10; Ex. D-22; Ex. D-23.]
182. The WHA entered into an employment agreement with one Steven Arnold, an agent for various professional athletes (including hockey players), pursuant to which Arnold agreed to assist the WHA and its clubs to sign to WHA contracts players whom the WHA teams had “drafted” from the NHL and other leagues. Arnold was given the exclusive right to negotiate with certain such players on behalf of the WHA teams which had “drafted” them. The WHA agreed to pay Arnold a fixed salary plus a bonus of $1,500 for each minor league player, $2,500 for each NHL player, and $5,000 for each NHL “star” he signed to a WHA contract. Arnold has been successful in persuading numerous players under contract to NHL teams to disregard the “reserve” clause in their 1971-72 contracts and to sign contracts to play for WHA teams in 1972-73. [Ex. D-10; Ex. D-23; Ex. D-22; Exs. D-12 through D-20.]
183. In order to induce Bobby Hull, an NHL “superstar” to disregard the “reserve” clause in his contract with the Chicago Blackhawks covering the 1971-72 season, each member club of the WHA agreed to pay its pro rata share of a million-dollar bonus offered Bobby Hull to sign a contract with the WHA club which “drafted” him (the Winnipeg Jets). Bobby Hull accepted the offer, signed a contract with the Winnipeg Jets, and has been paid the million-dollar bonus. [Ex. D-9, p. 30; Ex. D-8, pp. 88-89, 118-119, 142; Ex. D-73; Ex. D-134 (Davidson), pp. 81-86; Ex. D-135' (Murphy), pp. 154-159.] The record is devoid of any evidence that any two NHL clubs have agreed to share collectively the cost of retaining any NHL star in the NHL.
j.84. During the entire period of time that the WHA and its member clubs have planned to induce and have induced players under contract to NHL
*493
teams to disregard the “reserve” clause in their NHL contracts, the WHA and its member teams have been well aware that no court has ever held the NHL “reserve” clause to be invalid or unenforceable and that, if tested, the NHL “reserve” clause might be upheld by the courts. [Ex. D-112; Ex. D-66; Ex. D-100, p. 3, ¶ 4; Ex. D-101, p. 5, ¶4; Ex. D-102, p. 3, ¶ 6; Ex. D-105, p. 5; Ex. D-106, p. 4.]
185. Since its formation in the summer of 1971, the WHA and its member teams have plannéd to engage in antitrust litigation against the NHL and its member teams challenging the validity of the NHL “reserve” clause. [Ex. D-8, pp. 17, 27, 59; Ex. D-9, pp. 20, 21(B); Ex. D-134 (Davidson), pp. 41-42.]
186. Shortly after its formation, the WHA and its member teams established a legal committee and retained special outside counsel in order to prepare for the contemplated antitrust litigation and to draft a complaint against the NHL and its member teams which would.challenge,
inter alia,
the validity of the NHL “reserve” clause under the antitrust laws. As early as September 24, 1971, special outside counsel gave a report to the WHA board regarding “the legal problems which the league would be faced with in conjunction with the NHL.”
187. By February 11, 1972, a draft of a complaint against the NHL and its member teams had been completed, the WHA and its member teams had approved its filing, and the legal committee and outside counsel of the WHA were instructed by the WHA Executive Committee to put the complaint into final form as quickly as possible. [Ex. D-9, p. 20; Ex. D-8, p. 59.]
188. Despite these preparations, neither the WHA nor any of its member teams chose to seek a declaratory judgment as to the validity of the NHL “reserve” clause before inducing NHL players to jump to the WHA and before making the financial investments necessary to establish a new league. Instead they chose to wait until August 18, 1972, to file the first of several complaints against the NHL and .its members and even then did not seek preliminary relief from enforcement of the “reserve” clause until September 18, less than a month before the opening of the WHA season. [Complaint and Motion for Temporary Restraining Order and Preliminary Injunction in C.A. 72-1661.]
189. 111 of the 158 players signed as of July 21, 1972 by the 12 teams of the WHA for the 1972-73 playing season were subject to reserve clauses in their 1971-72 contracts with the NHL, AHL, CHL and WHL [Exhibit D-116]. Presently, more than 200 of the 345 of the players signed to WHA teams were subject to reserve clauses in their 1971-72 contracts with the NHL, AHL, CHL and WHL. [Exhibit D-2, Swados Affidavit, § 5 at 8; Exhibit D-131]. Approximately 58 to 60 of these 200-plus players played for an NHL team during the past season. The remainder (more than 140 players) played with a minor league team last year; [Ex. D-2 (Swados), p. 8; Ex. D-134 (Davidson), p. 68; Ex. D-131.]
190. Defendants by letter have threatened many of the players subject to the reserve clause in the 1971-72 contracts who signed or negotiated with WHA teams with the intention to take all steps necessary to enforce the reserve clause. [Exhibit P-16].
191. Letters sent by the New York Rangers, Pittsburgh Penguins, Montreal Canadians, Minnesota North Stars, California Golden Seals, Boston Bruins, and Buffalo Sabres of the NHL and the Baltimore Clippers of the AHL to players who reportedly had signed with WHA teams contained the following language:
“The purpose of this letter is to:
1. Remind you that you are under a contract which requires you to sign a Standard Player’s Contract with the [name of team] for the season 1972-73, and
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2. To notify you that we intend to enforce that contract.”
[Exhibit P-16].
192. The Buffalo Sabres, in addition to the letters containing the above language, sent a letter to Steve Cuddie dated July 20, 1972 stating:
“I have been told that you have already made an agreement with the WHA, but I have no way of knowing that is true. I must remind you that it is possible that we may' go to the courts in order to protect our interests ; and regardless of what other people say, we are talking from great strength.”
[Exhibit P-16]
193. The St. Louis Blues sent out letters containing the following language:
“I wish to bring your attention to the fact that you have a contract with Missouri Arena Corporation a/k/a St. Louis Blues to play for it, which they intend to enforce.”
[Exhibit P-16]
194. The Philadelphia Flyers sent letters containing the following language:
“I trust that you will see fit ,to comply with your contract and spare all of us any unnecessary litigation.”
[Exhibit P-16]
195. The Chicago Blackhawks sent a letter to Andre Lacroix dated August 1, 1972 containing the following language:
“Wherever required, the Black Hawks fully intend to take all steps necessary to protect their rights and interests and to enforce the terms of their contracts.”
[Exhibit P-16]
196. The Toronto Maple Leafs sent letters containing the following language:
“I know you are aware that under the terms of your Standard Player’s Contract, you are committed to play hockey for the Toronto Maple Leafs next season and precluded from playing hockey for any other team. If necessary, we intend to enforce the terms of that contract.”
[Exhibit P-16]
197. The Detroit Red Wings sent letters containing the following language:
“We have heard reports that you have either signed or intend to sign a contract with some other hockey club. If these reports are correct, I believe you should immediately consult your attorney so as to be fully apprised of your obligations to the Detroit Hockey Club. As you are aware the Detroit Hockey Club has always fulfilled its obligations to you under its contracts. We, therefore, expect you to fulfill your obligations to it. You should know that we intend to take all necessary legal action to enforce these contracts.”
[Exhibit P-16]
198. Of the more than 200 players signed by WHA teams who were subject to a “reserve” clause in their 1971-72 contracts, in the case of the NHL Clubs subject to the jurisdiction of this Court, only seven players have been sued in state or federal court proceedings now pending (Sanderson, Cheevers, Barrie, Johnson, Woytowich, Hull, and McKenzie). These suits have been consolidated for trial and involve only two state court and two federal court proceedings. In each of these cases, so far as the record at this stage of the proceedings shows, the decision to bring suit was not arrived at other than unilaterally by the club involved. [Ex. P-64 (Exhibit B); Ex. D-129 (Wirtz), pp. 61-62; Ex. D-128 (Mulcahy), pp. 24-25; Ex. D-121 (Campbell), pp. 222-224.]
199. Of the seven players presently being sued by the NHL clubs subject to the jurisdiction of this Court, only four (Barrie, Johnson, Woytowich, Hull) have been enjoined (temporarily pending a hearing) from playing with a WHA team. All these injunctions are by state courts. Thus, of the 345 players who have signed WHA contracts, only four
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or five are presently enjoined from playing with their WHA teams as a result of the enforcement of the NHL “reserve” clause. (Nassau Sports, Limited (New York Islanders) has a restraining order against Peters, a player claimed by the New York Raiders of the'WHA. They have also brought five other player suits, but have no one else under restraint.)
200. This court takes judicial notice of the fact that in the case of Boston Professional Hockey Ass’n v. Sanderson, 348 F.Supp. 261 in the United States District Court for the District of Massachusetts, the defendant and the intervenor Philadelphia Blazers of the WHA in the Sixth Defense to their Answers both took the position that:
“the plaintiff not only delayed unreasonably in bringing this action so that it is not entitled to relief, but also approved defendant Sanderson’s actions and abandoned any right to negotiate with defendant Sanderson concerning extension or renewal of its alleged contract, upon which conduct both defendant and the Philadelphia Blazers have relied, so that plaintiff is es-topped to seek relief in this action.”
15
In anticipation of the position taken in defense against the complaint in
Sanderson ,
the NHL teams were justified both in tendering (as required by paragraph 17 of the NHL contract) new contracts to their players who had reportedly signed with a WHA team and in putting them on notice of the team’s intent to enforce their NHL contracts, in order to avoid any possible claim of estoppel.
201. Bobby Hull is recognized as one of the greatest living hockey players and is widely known throughout Canada and the United States. [Exhibit P-62, Stukus Affidavit, at ¶ 3; Exhibit P-63, Kaiser Affidavit, at p. 2].
202. The presence of Bobby Hull as a player is, in the opinion of the management of the Winnipeg Jets, essential to the financial well-being and continued operation of the Winnipeg Jets. Hull’s absence may well jeopardize the continued existence of major league professional hockey in Winnipeg, Canada. [Exhibit P-62, Stukus Affidavit, at ¶¶ 4, 6; Exhibit P-63, Kaiser Affidavit, at p. 203]
•203. The new league, composed of fledgling teams will be dependent upon gate receipts, concession receipts and monies received from radio and electronic media. Players such as Hull, with their popularity, will be a major factor in the success of the new league. [Exhibit P-63, Kaiser Affidavit, at p. 2].
204. There are more than 200 additional players besides Hull who played under contracts whose terms have expired for the NHL, CHL, AHL or WHL in 1971-72 and who desire to play and who have contracted to play for WHA teams in 1972-73. [Exhibit D-2, Swados Affidavit, § 5 at p. 8; Exhibit P-64, Cooper Affidavit, at ¶ 19].
Pending and threatened litigation by NHL member teams against players who have signed with WHA teams misleads and confuses these players and may cause them to disregard their contractual commitments to the WHA. [Exhibit P-64, Cooper Affidavit, at ¶ 19].
205. The uncertainty which surrounds the status of Hull and other professional players has caused the WHA to be unable to negotiate favorable media contracts, and has hampered ticket sales. [Exhibit P-64, Cooper Affidavit, at ¶ 18; Exhibit P-63, Kaiser Affidavit, at p. 3].
206. Continued player suits on the basis of the reserve clause will cause the WHA to make substantial expenditures in legal fees. [Exhibit P-64, Cooper Affidavit, at ¶ 12].
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207. Injunctions against players who have signed with WHA teams prohibiting them.from playing for their WHA teams would signal the death of the World Hockey Association. [Exhibit P-78, Cooper Testimony in Sanderson, at p. 50].
208. The total effect of the NHL’s conduct will be to destroy the economic viability of the new league and to return to the NHL their monopoly over major league professional hockey. [Exhibit P-64, Cooper Affidavit, at ¶¶ 10, 12, 18, 19, 20, 21; -Exhibit P-78, Cooper Testimony in Sanderson, at p. 50; Exhibit P-63, Kaiser Affidavit, at p. 3].
209. If the WHA should be driven out of business, the public and players would lose the benefit of competition which has already raised players’ salaries and made hockey available to new audiences. [Exhibit P-26, Campbell Senate, at p. 535; Exhibit P-32, Mulcahy Dep., at p. 2-88].
210. Some of the injury which the WHA will incur in the absence of a preliminary injunction might have been mitigated if the WHA had attempted to establish its new league on a more modest scale, e. g., with six teams, instead of teams in twelve cities in a little more than one year.
211. While the WHA has contracted with players from many sources, the WHA has contracted with former NHL players only when the NHL contracts expired by September 30, 1972, [Transcript, October 9, 1972, pp. 26-27; Finding 89,
supra],
212. Any conclusion of law which should also be deemed a finding of fact is incorporated herein by reference.
III.
THE LABOR EXEMPTIONS OF THE SHERMAN ACT
A preliminary issue is whether the National Hockey League is entitled to invoke the labor exemptions from the Sherman Act authorized by §§ 6 and 20 of the Clayton Act, 15 U.S.C. § 17 ,
16
29 U.S.C. § 52 .
17
For reasons which hereinafter follow, I conclude that the labor exemptions are not applicable and the National Hockey League is subject to the operations of the anti-trust laws.
Initially, the status of the National Hockey League Players’ Association (hereinafter referred to as “Players’ Association”) must be considered to ascertain if it qualifies as a “labor organization” under § 2(5) of the National Labor Relations Act, 29 U.S.C. § 152 (5).
18
The record'indicates that on
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June 7, 1967, a “Recognition Agreement” was executed between the owners of the National Hockey League and the Players’ Association, whereby the Association would be regarded as the official representative of the players in their dealings with the member teams of the National Hockey League. The record, however, does not disclose whether the designation of the Players’ Association complied with the provisions of § 9 of the National Labor Relations Act, 29 U. S.C. § 159. I cannot definitively conclude that the National Labor Relations Board has actually certified the Players' Association as the approved -collective bargaining representative.
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“The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the pur
*497
pose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
But even if the Court assumes,
arguendo,
a duly authorized collective bargaining representative exists, labor-employer activities are not entirely immune from the anti-trust laws. The history, of labor exposure to anti-trust liability has not been ideologically and homogeneously consistent, but certain standards have been articulated by the courts which can be applied to the present factual context.
See generally, 7
J. O. von Kalinowski, Anti-Trust Laws and Trade Regulation, §§ 48.01 et seq., pp. 48-1 to 82 (1971), and the references cited therein.
In United States v. Hutcheson, 312 U.S. 219 , 61 S.Ct. 463 , 85 L.Ed. 788 (1941), the Supreme Court sought to adumbrate the outer perimeters wherein labor unions would not be prosecuted under and insulated from the regulations of the Sherman Act. In order not to lose this exemption, the two caveats imposed by the Court were that the “union acts in its self-interest and does not combine with non-labor groups”. 312 U.S. at. 232, 61 S.Ct. at 466 .
The latter limitation enunciated in
Hutcheson
was reinvigorated in Allen Bradley v. Local Union No. 3, 325 U.S. 797 , 65 S.Ct. 1533 , 89 L.Ed. 1939 , rehearing denied, 326 U.S. 803 , 66 S.Ct. 11 , 90 L.Ed. 489 (1945). In
Allen Bradley ,
the Supreme Court declared the union activities to be in contravention of the Sherman Act when the union combined with all local contractors and manufacturers to restrain trade in and monopolize the supply of electrical equipment in the New York City area. While undoubtedly the “hot cargo” clause contained in the collective bargaining agreement furthered the union interests, the Court held that “ . . . Congress never intended that unions could, consistently with the Sherman Act, aid non-labor groups to create business monopolies and to control the marketing of goods and services.”' 325 U.S. at 808 , 65 S.Ct. at 1539 , Moreover, the Court continued, “ . . . when the unions participated with a combination of business men who had complete power to eliminate all competition among others, a situation was created not included within the exemptions of the Clayton and Norris-LaGuardia Acts.” 325 U.S. at 809 , 65 S.Ct. at 1540 . Finally, the Court remarked:
“The primary objective of all the Anti-trust legislation has been to preserve business competition and to proscribe business monopoly. It would be a surprising thing if Congress, in order to prevent a misapplication of that legislation to labor unions, had bestowed upon such unions complete and unreviewable authority to aid business groups to frustrate its primary objective. For if business groups, by combining with labor unions, can fix prices and divide up markets, it was little more than a futile gesture for Congress to prohibit price fixing by business groups themselves.” 325 U.S. at 809-810 , 65 S.Ct. at 1540 .
The Supreme Court was again presented the opportunity to examine the
Allen Bradley
doctrine in United Mine Workers v. Pennington, 381 U.S. 657 , 85 S.Ct. 1585 , 14 L.Ed.2d 626
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(1965). The Court reaffirmed the labor exemption position previously adopted in
Allen Bradley
and made it indisputably clear that “ . . . [a collective bargaining] agreement resulting from union-employer negotiations is [not] automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement.” 381 U.S. at 664-665 , 85 S.Ct. at 1590 .
In invalidating the wage scale the union sought to impose on all the coal mine operators in
Pennington ,
the Court further stated “there are limits to what a union
or an employer may offer or extract
in the name of wages, and because they must bargain does not mean that the agreement reached may disregard other laws.” (Emphasis added.) 381 U.S. at 665 , 85 S.Ct. at 1591 . Unions (and derivatively, employers) will not be shielded from the enforcement of anti-trust legislation against them when they do not act alone and function in concert with non-labor groups to effectuate their labor goals and policies. See, also, Ramsey v. United Mine Workers, 265 F.Supp. 388 (E.D.Tenn.1967), aff’d 416 F.2d 655 (6th Cir. 1969) (en banc), rev’d on other grounds 401 U.S. 302 , 91 S.Ct. 658 , 28 L.Ed.2d 64 (1971); South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767 (6th Cir. 1970), cert. denied 402 U.S. 983 , 91 S.Ct. 1662 , 29 L.Ed.2d 149 (1971), rehearing denied 404 U.S. 877 , 92 S.Ct. 28 , 30 L.Ed.2d 124 (1971).
While the Union activities in Meat Cutters Local Union 189 v. Jewel Tea Co., 381 U.S. 676 , 85 S.Ct. 1596 , 14 L.Ed.2d 640 (1965), were held to be outside the scope of the Sherman Act, the National Hockey League (the employer) is not a beneficiary of that decision in behalf of the union. First, the Court in
Jewel Tea
noted there was no claim raised of union-employer conspiracy, and, second, the collective bargaining dispute related to an area in which the union had forcefully negotiated:
“Thus the issue in this case is whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the unions’ successful attempt to obtain that provision through
bona fide, arm’s-length bargaining in pursuit of their own labor union policies, and not at the behest of
or in combination with non-labor groups, falls within the protection of the national labor policy and is therefore exempt from the Sherman Act.” (Emphasis added.) 381 U.S. at 689-690, 85 S.Ct. at 1602.
“The crucial determinant is not the form of the agreement — e. g., prices or wages — but its
relative impact
on the
product market
and
the interests of union members.”
(Emphasis added.) Footnote 5, 381 U.S. at 690, 85 S.Ct. at 1602.
From my examination of the foregoing cases, several conclusions can be drawn. First, those cases all involved situations where the union had been sued for its active, conspiratorial role in restraining competition of a product market, and the union, not the employer, sought to invoke the labor exemptions. Here there is no evidence that the Players’ Association was a joint-conspirator with the National Hockey League in creating and retaining the reserve clause. The evidence establishes the Players’ Association's persistent opposition to the present form of reserve system. The reserve clause, in fact, was more than a sturdy teenager when the Players’ Association was born. The reserve clause was fathered by the NHL, and the Players’ Association has repeatedly sought to exclude it in its present form.
19
Second, the cases cited above pertained to issues which furthered the interests of the union members and on which there had been extensive collective
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bargaining. Again, that is not true in this litigation. The National Hockey League has not come forward with any substantial evidence which could warrant this Court finding that the reserve clause — as it presently operates in conjunction with the other interlocking agreements — was ever a subject of serious, intensive, arm’s-length collective bargaining. When the Players’ Association was recognized in 1967, some variation of the reserve system had existed for probably sixteen years prior thereto. Subsequent efforts by the Association to markedly revamp the reserve system have been continually rebuffed by the NHL. The discussions revolving around the Arbitration Agreements related only to resolving salary disputes, and did not' in any way alter or affect the basic perpetual option of the reserve system.
19A
Finally, even if,
arguendo,
there had been substantial arm’s-length collective bargaining by the National Hockey League and the Players' Association to revise the perpetual option provision of the reserve clause (see, e. g., Exhibits D-59-64; D-2, ¶ 10, App. A; and D-129, p. 50), those negotiations would not shield the National Hockey League from liability in a suit by outside competitors who sought access to players under the control of the National Hockey League.
“A stronger argument might be made by a newly-formed league that a collective agreement between an established league and players’ union which, for example, permitted suits for injunction against players who attempted to ‘jump’ leagues, was designed to prevent the new league from gaining access to the best players and to consign it permanently to second class status. This claim is similar to the one which succeeded in Allen Bradley: a union-employer combination to exclude entry by newcomers.” (Jacobs and Winter, “Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage,” 81 Yale L.J. 1 , 28 (1971).)
Even if the benefits of the labor exemptions can be extended to encompass the employer’s activities, that outcome is not changed merely because the employer is a member of a multi-employer association. A multi-employer, group will not be accorded any greater protections than a single employer. Though a multi-employer organization will be insulated from unfair labor practice prosecutions only if it acts in good faith and takes only the limited steps necessary to protect itself, see,
e. g.,
NLRB v. Truck Drivers Local 449, 353 U.S. 87 , 77 S.Ct. 643 , 1 L.Ed.2d 676 (1957), however, restraining, anti-competitive acts will not be immunized from the Sherman Act. Cf. Kennedy v. Long Island R. R., 319 F.2d 366, 370-373 (2nd Cir. 1963), cert. denied, 375 U.S. 830 , 84 S.Ct. 75 , 11 L.Ed.2d 61 (1963); Prepmore Apparel, Inc. v. Amalgamated Clothing Workers of America, 431 F.2d 1004, 1007 (5th Cir. 1970), cert. dismissed by consent, 404 U.S. 801 , 92 S.Ct. 21 , 30 L.Ed.2d 34 -(1971). While the employer activities in the two latter cases were not subject to the Sherman Act,the Courts clearly intimated that employer efforts to monopolize a particular product market would not be similarly treated.
In providing a special exemption from Sherman Act regulations for labor unions and employers who in good faith negotiated with those unions, Congress attempted to accommodate what frequently were conflicting public policies: the fostering and preservation of competitive business conditions in a free enterprise system on one hand, counterbalanced by a legitimate concern in'improving and bettering the working conditions of laborers and the reduction of industrial strife through vigorous union organization and collective bargaining. The labor exemption which could be defensively utilized by the union and employer as a shield against Sherman Act proceedings when there was bona fide collective bargaining, could not be seized
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upon by either party and destructively wielded as a sword by engaging in monopolistic or other anti-competitive conduct. The shield cannot be transmuted into a sword and still permit the beneficiary to invoke the narrowly carved out labor exemption from the anti-trust laws. To allow and condone such conduct would frustrate Congress’ carefully o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2594904. Public record. Not legal advice.