Appendix — Mid-South Grizzlies v. National Football League

Office - Supreme Court, U.S,

3

33-1470 FILED

MAR & 19

ALEXANDER L. STEVAS.

| CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

THE MID-SOUTH GRIZZLIES

(A Joint Venture); et al.,

Petitioners*

v.

THE NATIONAL FOOTBALL LEAGUE,

An Unincorporated Association; et al.,

Respondents*

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD A. SPRAGUE GARY GREEN

EDWARD H. RUBENSTONE NEIL A. MORRIS

STEVE ALEXANDER

Of Counsel: Of Counsel:

SPRAGUE & RUBENSTONE SIDKOFF, PINCUS,

Suite 400, Wellington Bldg. GREENBERG & GREEN

135 South 19th St. 12th Floor, 530 Walnut St.

Philadelphia, PA 19103 Philadelphia, PA 19106

(215) 561-7681 (215) 574-0600

Of Counsel:

LOUIS B. SCHWARTZ, Esquire

San Francisco, CA Counsel for

PETITIONERS

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

* Petitioners are:

The Mid-South Grizzlies (A Joint Venture); John Ed-

ward Bosacco; Mid-South Grizzlies (A Limited Partner-

ship); and Consolidated Industries, Inc.

Respondents are:

The National Football League, An Unincorporated As-

sociation; Baltimore Football Club, Inc.; Buffalo Bills, Inc.;

Chargers Football Company; Chicago Bears Football Club,

Inc.; Cincinnati Bengals, Inc.; Cleveland Browns, Inc.;

Dallas Cowboys Football Club, Inc.; Detroit Lions, Inc.;

Five Smiths, Inc.; Green Bay Packers, Inc.; Houston Oil-

ers, Inc.; Kansas City Chiefs Football Club, Inc.; Los

Angeles Rams Football Company; Miami Dolphins, Ltd.;

Minnesota Vikings Football Club, Inc.; New England Pa-

triots Football Club, Inc.; New York Football Giants, Inc.;

New York Jets Football Club, Inc.; New Orleans Saints

Louisiana Partnership; Oakland Raiders, Ltd.; Philadel-

phia Eagles Football Club, Inc.; Pittsburgh Steelers

Sports, Inc.; Pro-Football, Inc.; Rocky Mountain Empire

Sports, Inc.; San Francisco Forty Niners; Seattle Profes-

sional Football, A General Partnership; St. Louis Football

Cardinals Company; Tampa Bay Area NFL Football, Inc.;

and Pete Rozelle.

INDEX TO THE APPENDIX

Opinion of the Third Circuit Panel ......... A-1

Order of the District Court, 11/5/82 ......... A-32

Opinion of the District Court .............. A-33

Memorandum Order of District Court, 8/13/81 A-63

Judgment issued in lieu of formal mandate by

po eee A-67

Order Sur Petition for Rehearing, 12/5/83 .... A-69

Order staying issuance of the mandate, dated _

ES. aaa ES oe hk 00 a 8s WM 0 8 A-71

Order staying issuance of the mandate, dated

eee ra lo pac eco ha bad ae 844 A-73

Order recalling certified judgment issued 2/7/84 A-75

Order staying issuance of mandate, dated

I cc aa k's Oak G6. w bale wa Hie 60% A-78

is bs 4:40 OK Se SANK ROR OO A-79

Judgment of the Third Circuit, entered 11/4/83 A-83

GX hie Ge Was 5.8% Gkale SE be A-84

GA A a ae RES aA A-84

SCR aS Ace ee A-85

EE AC, Glace aw EN «x alan owas eee A-85

I Sha. ig MS's a hod ee Wale A-86

i a ig Sa) hil Sh Ae A-86

iS os ys o's Sale a Rare we ut ews A-87

I Tcl 5a 4-6 ke we 0 o.0 ace Ws a A-87

Fed. R. Civ. P. Rule 56 (b), (c), (f) ......... A-88

LE Oe Wha seg Ba hosel elkcce ee ok A-89

TE a> 5 SCA vie a alk 4.0 5 Wese 4 Wem be Shad Re A-111

INDEX TO THE APPENDIX— Continued)

Letter dated 8/20/81 from Mr. Alexander to

gg ERE CRORE eee

Letter dated 9/10/81 from Mr. Alexander to

er ee eee eee

Letter dated 9/16/81 from Mr. Rubenstone to

es cia p o0' és oe Os

Letter dated 9/18/81 from Judge McGlynn to Mr.

I 8 ek os ck ok hore bbe ob Oa

Letter dated 9/23/81 from Mr. Weisberg to Judge

o's Soaae bac} 6 aces 6h beh ee er

Letter dated 12/4/81 from Mr. Alexander to

I Satoh irae ysis ob ie ae as

Letter dated 12/10/81 from Mr. Rome to Judge

I eo, cucu Nek waa

Letter dated 12/15/81 from Mr. Green to Judge

NN toe die sae Wea ees eee ee es

Letter dated 12/17/81 from Judge McGlynn to

Messrs. Alexander and Green ..........

The MID-SOUTH GRIZZLIES (a Joint Venture); John

Edward Bosacco; Mid-South Grizzlies (a Limited Part-

nership); and Consolidated Industries, Inc., Appel-

lants

v.

The NATIONAL FOOTBALL LEAGUE, §$an

unincorporated association; Baltimore Football Club,

Inc.; Buffalo Bills, Inc.; Chargers Football Company;

Chicago Bears Football Club, Inc.; Cincinnati Ben-

gals, Inc.; Cleveland Browns, Inc.; Dallas Cowboys

Football Club, Inc.; Detroit Lions, Inc.; Five Smiths,

Inc.; Green Bay Packers, Inc.; Houston Oilers, Inc.;

Kansas City Chiefs Football Club, Inc.; Los Angeles

Rams Football Company; Miami Dolphins, Ltd.; Min-

nesota Vikings Football Club, Inc.; New England Pa-

triots Football Club, Inc.; New York Football Giants,

Inc.; New York Jets Football Club, Inc.; New Orleans

Saints Louisiana Partnership; Oakland Raiders, Ltd.;

Philadelphia Eagles Football Club, Inc.; Pittsburgh

Steelers Sports, Inc.; Pro-Football, Inc.; Rocky Moun-

tain Empire Sports, Inc.; San Francisco Forty Niners;

Seattle Professional Football, A General Partnership;

St. Louis Football Cardinals Company; Tampa Bay

Area NFL Football, Inc. and Pete Rozelle.

No. 82-1793.

United States Court of Appeals,

Third Circuit.

Argued Sept. 13, 1983.

Decided Nov. 4, 1983.

Rehearing Denied Dec. 5, 1983.

Member of now defunct professional football league

sued existing league, its members and commissioner

complaining that refusal to grant application for mem-

bership in defendant league violated the antitrust laws.

The United States District Court for the Eastern District

of Pennsylvania, Joseph L. McGlynn, Jr., J., 550 F.Supp.

558, rendered summary judgment for defendants, and

applicant appealed. The Court of Appeals, Gibbons, Cir-

A-1

A-2

cuit Judge, held that: (1) summary judgment motion

was ripe for decision without additional discovery; (2)

statute which insulated from antitrust liability merger of

two competing professional football leagues, resulting in

creation of defendant league, was not directed at pre-

serving competition in the market for professional foot-

ball and did not oblige existing league to permit entry by

a particular applicant to its monopoly power; and (3) as

regards Sherman Act claim, applicant failed to show any

actual or potential injury to competition or that its ad-

mission would be contracompetitive.

Affirmed.

1. Federal Civil Procedure |KEyY) 2553

Where affidavits are filed setting forth specific rea-

sons why movant’s affidavits in support of summary

judgment cannot be responded to and the facts are in

possession of the movant, a continuance of the motion

for discovery purposes should be granted almost as a

matter of course. Fed.Rules Civ.Proc.Rule 56(f), 28

U.S.C.A.

2. Federal Civil Procedure (key) 1269

Additional discovery on issue whether member

teams of defendant professional football league were

competitors was not warranted in antitrust action by re-

jected applicant for admission to league membership

where not only did applicant fail to file required affidavit

but its response to league's reply brief raised no more

than a merely colorable claim that actual or potential

competition for revenue other than from ticket sales and

sales of television rights could be shown between a pro-

fessional team based in applicant's hometown and other

league members and adequate discovery had been had

on agreed issue whether application was rejected on ba-

sis of objective criteria. Fed.Rules Civ.Proc.Rule 56(f),

28 U.S.C.A.; Sherman Anti-Trust Act, §§1, 2, 15

U.S.C.A. §§1, 2.

A-3

3. Monopolies (KEY) 12.(1.10)

Under rule of reason analysis, a Sherman Act re-

straint of trade claim can be established by proof that de-

fendants contracted, combined or conspired among

themselves, that the combination or conspiracy pro-

duced adverse, anticompetitive effects within relevant

product and geographic markets, that objects of and

conduct pursuant to the contract or conspiracy were il-

legal and that plaintiff was injured as a proximate result

of that conspiracy. Sherman Anti-Trust Act, §1, 15

U.S.C.A. §1; Clayton Act §4, 15 U.S.C.A. §15.

4. Monopolies {KEY 28(7.3)

For purpose of rule-of-reason analysis in Sherman

Act challenge to professional football league’s rejection

of application for league membership by former member

of now defunct competing football league it was irrele-

vant that when one member of present league, which

was result of statute insulating merger of leagues from

antitrust liablity, was seeking legislation concerning

television revenue-sharing practices it admitted a new

team in home state of chairman of committee consider-

ing the bill and that when the leagues were seeking stat-

utory exemption permitting their merger a team was

added in home state of powerful senator and congress-

man who supported the legislation and that postmerger

addition of two other teams was prompted by desire to

limit term of proposed legislation prohibiting home

teams from blacking out televised games. Sherman Anti-

Trust Act, §1, 15 U.S.C.A. §1; 15 U.S.C.A. §1291.

5. Monopolies |KEY| 12(6)

Provision of 1966 legislation immunizing from

antitrust liability merger of two or more football leagues

into an expanded single league that “such agreement in-

creases rather than decreases the number of profes-

sional football clubs so operating,” could not reasonably

be construed as addressing competition, and reference

to increase in number of teams “so operating” was to

A-4

professional teams operating under antitrust exemption

for television revenue sharing provided in 1961 statute

and what 1966 statute suggested was that more home

team territories would be added rather than to increase

competition and statute permitted geographic enlarge-

ment of the resulting league’s market power. 15

U.S.C.A. §§1291, 1294.

See publication Words and Phrases for other

judicial constructions and definitions.

6. Monopolies (KEY) 12(6)

The 1966 legislation permitting combination of

members of two or more competing professional football

leagues into one league did not obligate league which re-

sulted from merger of two competing leagues to permit

entry by any particular applicant to its shared market

power and statute did not require the league to admit to

membership an applicant from an area not presently

served by existing league member. 15 U.S.C.A. §1294.

7. Monopolies (KEY) 28(1.4)

Where member of defunct professional football

team showed no actual or potential injury to competition

from rejection of its application for franchise in existing

professional football league which, by statute, had been

granted monopoly power, the applicant could not suc-

ceed on Sherman Act claim of conspiracy to restrain

trade, especially as applicant was not seeking recovery

as a potential competitor outside the league but identi-

fied as the antitrust violation the league’s negative vote

on its application and statutory arrangement under

which league functioned eliminated competition among

its members and there was no showing that football

teams located in applicant’s territory and that of the

nearest existing league member would complete for the

same ticket purchases, etc. Sherman Anti-Trust Act, §1,

15 U.S.C.A. §1; 15 U.S.C.A. §1291.

A-5

8. Monopolies (KEY) 28(6) ;

Regardless of whether members of existing profes-

sional football league, which had been granted statutory

monopoly, competed in a so-called “raw material mar-

ket” for players and coaching personnel, rejection of ap-

plication for admission to league, an act charged as vio-

lating antitrust laws, did not restrain applicant from

competing for players by forming competitive league

and applicant failed to show how, if its exclusion re-

duced competition for team personnel, that reduction

caused an injury to its business or property. Sherman

Anti-Trust Act, §1, 15 U.S.C.A. §1; 15 U.S.C.A. §1291.

9. Monopolies (KEY 12(1.6)

The “essential facilities doctrine,” as applied to

Sherman Act challenge to rejection of application for ad-

mission to membership in professional football league

having a statutory monopoly would result in additional

competition in an’economic rather than athletic sense

and no recovery could be had on such theory where ap-

plicant failed to show how competition in any arguably

relevant market would be improved if it were given a

share of existing league’s monopoly power. 15 U.S.C.A.

§§1291, 1294; Sherman Anti-Trust Act, §1, 15 U.S.C.A.

§1.

10. Monopolies (KEY) 12(b)

Rejection of application by member of now defunct

professional football league for admission to member-

ship in existing league did not violate Sherman Act’s

prohibition on attempts to monopolize as not only did

Congress authorize existing league’s acquisition of its

present market power by way of merger but rejected ap-

plicant failed to show that its admission would be

contracompetive in any way and area in which it would

operate had been left by existing league for potential

competitors. 15 U.S.C.A. §§1291, 1294; Sherman Anti-

Trust Act, §1, 15 U.S.C.A. §1.

A-6

Richard A. Sprague, Edward H. Rubenstone, Steve

Alexander, Sprague & Rubenstone, Philadelphia, Pa.,

Gary Green (argued), Neil A. Morris, Sidkoff, Pincus,

Greenberg & Green, Philadelphia, Pa., for appellants;

Louis B. Schwartz, Philadelphia, Pa., of counsel.

Morris L. Weisberg, Blank, Rome, Comisky &

McCauley, Philadelphia, Pa., James C. McKay, Paul J.

Tagliabue (argued), Covington & Burling, Washington,

D.C., for appellees.

Before SEITZ, Chief Judge, and GIBBONS and

ROSENN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Mid-South Grizzlies, a joint venture, and its mem-

bers (the Grizzlies) appeal from a summary judgment in

favor of the defendants in their suit against the National

Football League (NFL), the league members, and

League Commissioner Pete Rozelle, seeking damages

under Section 4 of the Clayton Act, 15 U.S.C. §15

(1973). The suit concerns the defendants’ refusal to

grant the plaintiffs a football franchise. On appeal the

Grizzlies contend that the district court erred: (1) in

granting summary judgment while the Grizzlies’ discov-

ery requests were outstanding; and (2) in granting sum-

mary judgment when there were disputed issues of ma-

terial fact.'! We affirm.

Background

The NFL is a not-for-profit business league, quali-

fied for exemption from federal income tax under sec-

tion 501(c)6 of the Internal Revenue Code, 26 U.S.C.

§501(c)(6)( 1967). The league has 28 members, each of

1. The court's decision is reported. Mid-South Grizzlies v. Na-

tional Football League, 550 F.Supp. 558 (E.D.Pa. 1982).

A-7

which is an entity organized for profit, engaged in the

business of fielding a professional football team. The

NFL was formed by the merger of two predecessor foot-

ball leagues. That merger took place following the enact-

ment, in 1966, of Pub.L. 89-800, §6(b)( 1), 80 Stat. 1515,

which amended Pub.L. 87-331, §1, 75 Stat. 732 (1961),

15 U.S.C. §1291. Section 1291, enacted in 1961,

granted to certain professional sports leagues a limited

exemption from the antitrust laws with respect to the

joint sale of television broadcast rights for league games,

and the 1966 amendment permitted “a joint agreement

by which the members of two or more football leagues

combine their operations in expanded single leagues

. . . if such agreement increases rather than decreases

the number of professional football clubs so operating.”

The 1961 exemption with respect to joint sale of televi-

sion broadcasting rights, intended to overrule the judg-

ment in United States v. National Football League, 116

F.Supp. 319 (E.D.Pa.1953), does not “otherwise affect

the applicability or nonapplicability of the antitrust laws”

to any other activities of persons engaged in professional

team sports. 15 U.S.C. §1294. The 1966 exemption does

no more than permit the combination of members of two

or more leagues into one.

Under the 1974 constitution and by-laws of the

NFL each member obliges itself to operate a professional

football club which is a member of the league. Each

member has a designated “home territory” within which

it has “the exclusive right. . . to exhibit professional

football games played by teams of the League,” and “|njo

club in the League shall be permitted to play games

within the home territory of any other club unless a

home club is a participant.” Home territory is defined as

a designated city and “the surrounding territory to the

extent of 75 miles in every direction from the exterior

corporate limits of such city.”? Constitution and By-

2. There are special provisions for the New York and San

Francisco Metropolitan areas and for Green Bay, Wisconsin.

A-8

Laws, Article IV, Appendix at 1129a, 1138a. The addi-

tion of a new league member within the home territory

of any member requires unanimous consent of the

league members. Id. Article 3.1(b). Elsewhere, appli-

cants for membership may be admitted by the affirma-

tive vote of not less than three-fourths or 20 members,

whichever is greater. Id. Article 3.3(c). No league mem-

ber may have a financial interest, direct or indirect, in

any other league member. Id., Article 9.1(B)(1).

The combined league began functioning in 1970

with 26 members. Thereafter new home territories were

designated for Tampa, Florida, and Seattle, Washington,

and member teams with franchises for those home terri-

tories began participating in league play in 1976. The

uncontradicted affidavit of Commissioner Rozelle estab-

lishes that the initiative for establishing those franchises

came from the NFL, which negotiated for a stadium lo-

cation, determined methods of providing the franchise

with players, and only then evaluated and selected own-

ers. See, e.g., Rozelle Deposition, Appendix at 1290a,

1431a-1440a.

As authorized by 15 U.S.C. §1291, the NFL has

made a joint sale to three major television networks of

the regular season and post-season television rights.

Television revenues are divided equally among all mem-

bers. Receipts from the sale of tickets are shared be-

tween the home team, 60% and the visiting team, 40%.

Each home team retains other revenues, derived from its

local operations.* On average, however, more than 70%

of each team’s revenue is derived from sources other

than its operations at the home location. See Defendants’

Motion for Summary Judgment, Affidavit of Pete

Rozelle, Appendix at 188a.

3. These include revenue from non-network coverage of pre-

season games, and revenue from food and beverage concessions,

parking, and sale of team paraphernalia. Such revenue varies both

with attendance and depending on the terms of stadium leases.

A-9

In 1974 and 1975 the Grizzlies participated in the

World Football League from a home team location in

Memphis, Tennessee. The members of that league

could be found to have been competitors of the members

of the NFL in the national market for network television

revenue. The World Football League disbanded, how-

ever, halfway through the 1975 football season. The

NFL had no franchise at Memphis, and a home team

designation for that location would not infringe upon the

home territory of any NFL member. Upon the demise of

the World Football League the Grizzlies applied to the

NFL for admission to the league with a designated home

territory at Memphis.

At meetings with the NFL Expansion Committee,

and with the full NFL membership, the Grizzlies urged

that it had in place at Memphis an established, function-

ing professional football enterprise. The application was

rejected. This lawsuit followed.

Il.

The Complaint

The Grizzlies’ complaint, filed on December 3,

1979, does not charge that the provisions of the NFL's

Constitution and By-Laws reserving to its members

franchise exclusivity for designated home territories vio-

lates the antitrust laws. Indeed, the Grizzlies sought

such an exclusive franchise for themselves. Thus this

case does not present any issue of possible antitrust vio-

lation from the exclusion of potential competitors in the

designated exclusive home territories.

Nor do the Grizzlies complain that the NFL's 60-40

home team-visitor revenue sharing arrangement, which

is not exempted from antitrust scrutiny by 15 U.S.C.

§1291, caused any injury to their business or property.

Indeed, the Grizzlies sought to participate in that ar-

rangement. Moreover, the Grizzlies make no complaint

about the operation of the NFL arrangements for joint

A-10

sale of television rights. They do not charge, for exam-

ple, that the demise of the World Football League was

caused by the NFL's television marketing practices. Nor

do they charge that if they had been admitted those

practices should have been changed. Rather, as with the

60-40 split of ticket sale revenue, they sought to partici-

pate.

Determining what the Grizzlies do not charge as

antitrust violations is somewhat easier than determining

what is charged. The complaint alleges that Memphis is

a highly desirable submarket for major league profes-

sional football, that the refusal to consider it as a home

territory for a franchise was made pursuant to an agree-

ment or understanding or conspiracy among NFL mem-

bers, the NFL and the Commissioner, that no valid basis

for rejection of the Grizzlies was articulated for formu-

lated by the defendants, and that the rejection amounted

to an unreasonable restraint of trade, or a group boycott.

One motive for that conspiracy is alleged to have been a

desire to punish, intimidate and restrain plaintiffs from

participation in major league professional football be-

cause they had entered into competition with NFL

members by participating in the World Football League.

The exclusion, so motivated, and having the effects al-

leged, is said to be a violation of Section 1 of the Sher-

man Act, and an attempt to monopolize interstate trade

and commerce in professional football in violation of

Section 2 of that Act.

Ill.

The Summary Judgment Record

The defendants moved for summary judgment on

March 2, 1981, supporting their motion with affidavits

by Commissioner Peter Rozelle and by Daniel M.

Rooney, Chairman of the NFL Expansion Committee, to

which defendants attached 12 supporting exhibits. At

the time of the motion there was outstanding a motion

by the Grizzlies to compel answers to certain

A-11

interrogatories, and to compel production of documents.

In opposition to the summary judgment motion the

Grizzlies filed an extensive brief addressing the merits,

and the affidavits of William R. Tathan, I.B. Rowe and

Steve Alexander, Esq. The Grizzlies contended that the

summary judgment motion should not be considered

until the completion of discovery.

On August 13, 1981 the trial court filed a memoran-

dum and order declining to consider the motion for sum-

mary judgment until the completion of the Grizzlies’ dis-

covery, but restricted the scope of discovery to “matters

relating to the NFL’s decision not to grant the plaintiffs

an NFL franchise at Memphis, Tennessee, and to the

NFL’s prior practices and standards with respect to the

admission of new franchises into the league since the

merger of the NFL and the American Football League.”

4 App. at 894. The Grizzlies were permitted to depose

Mr. Rozelle, Mr. Rooney, and the other members of the

NFL Expansion Committee; but solely with respect to

the designated subject matter. The order fixed a sched-

ule for renewal of the motion for summary judgment, for

filing opposition to it, and for briefing. Id. at 895.

On September 16, 1981 counsel for the Grizzlies

wrote to the trial judge asking for clarification of the dis-

covery order. The court was asked if the order was in-

tended

to focus the parties’ attention . . . solely upon the is-

sue of whether fair, objective, and articulated stand-

ards were applied by the defendants in passing

upon plaintiffs’ application for membership in the

NFL, whether such standards existed at the time,

and whether any substantive consideration, . . . was

ever given to plaintiffs’ application by the defen-

dants.

If, in fact, it was the Court's intention to focus

only on the objective criteria question at this time,

and to accept the remaining criteria in the plaintiffs’

Nel

A-12

Complaint as true for the purpose of this motion

proceeding, the scope of discovery can be substan-

tially limited without waiving our position, many of

the pending discovery requests can be withdrawn,

subject to renewal... , and more specific discovery

... can surely proceed... .

Letter of Edward H. Rubenstone, Esq. to Hon. Joseph L.

McGlynn, Sept. 16, 1981, 4 App. at 1083-1084. The

court replied two days later that “[y]our assumptions

concerning the rationale underlying my order dated Au-

gust 13, 1981 are correct.” The court noted the Grizzlies’

concession in open court on August 12, 1981 “that un-

der some circumstances, and applying objective, ra-

tional and fair decisional criteria, defendants might le-

gitimately, collectively refuse to deal with a potential

competitor demanding entry into the professional foot-

ball market place.” The court explained further:

In an effort to spare all parties the time and expense

of what may prove to be unnecessary discovery pro-

ceedings, I entered my order of August 13th, which

limited discovery “solely to matters relating to the

NFL’s decision not to grant the plaintiffs an NFL

franchise at Memphis, Tennessee, and to the NFL's

prior practices and standards with respect to the ad-

mission of new franchises into the league since the

merger of the NFL and American Football League”.

If discovery in this discrete area should reveal that

the NFL applied objective standards to the plain-

tiffs’ application, there may not be a need to conduct

further discovery.

4 App. at 1085. The trial judge also stated his assump-

tion that there was no need to rule on outstanding dis-

covery requests, since counsel's letter stated that he

would be able to reach an accord with defense counsel

regarding them. He warned, however, that all discovery

must be complete by October 31, 1981, Id. at 1086. Fur-

A-13

ther correspondence between the parties and the court

took place respecting the issues posed by the NFL’s mo-

tion for summary judgment, and on December 17, 1981

the trial judge by letter reiterated his intention to con-

sider the NFL motion “because if it is undisputed that

the defendants used ‘objective, rational and fair

decisional criteria’ in rejecting plaintiffs application,

then that may well be the end of the litigation ball

game.” 4 App. at 1099.

On December 21, 1981 the defendants filed a re-

newed motion for summary judgment, relying on the

pleadings, depositions, answers to interrogatories, ad-

missions on file, and the Rozelle and Rooney affidavits

accompanying their initial motion. 4 App. at 901. The

brief in support of the renewed motion is not restricted to

the question of whether the decision to reject the

Grizzlies’ application was based on “objective, rational

and fair decisional criteria.” Rather it relies on the

“undisputed facts” in the record made to date with re-

spect to the nature of the professional football business,

and asserts that those facts warrant summary judgment

for defendants as a matter of law. Thus the renewed mo-

tion put the Grizzlies on notice that the defendants were

relying upon the summary judgment record as then

comprised, and of the obligation to set forth in affidavits

the reasons why additional discovery would be necessary

in order to oppose it. Fed.R.Civ.P. 56(f).

On March 10, 1982 the Grizzlies filed a 107 page brief

in opposition to the renewed motion for summary judg-

ment. 4 App. at 963 et seq. That brief is not limited to the

question whether the Grizzlies’ application was rejected

on the basis of objective rational and fair decisional crite-

ria. It addresses the full range of issues discussed in the

defendants’ brief in support of the motion. Although the

correspondence between counsel and the court was in-

cluded in an appendix to the Grizzlies’ brief, no affidavit

was filed setting forth any reason why additional discov-

ery should be afforded before the court ruled on the mo-

A-14

tion. Nor was that subject addressed in the brief in oppo-

sition to the renewed motion. It surfaced, however, in a

Grizzlies’ brief in response to defendant's reply brief. Re-

sponding to the defendants’ contention that the mem-

bers of the NFL are not competitors, but are engaged in

a joint venture in the promotion of an entertainment

spectacle, the Grizzlies argued:

Nevertheless, despite Defendants’ heavy reli-

ance on this argument, the “single entity” issue was

not the subject of discovery. Indeed, in order to de-

termine whether there is any merit to Defendants’

“single entity” contention, the starting point in dis-

covery would be necessarily an examination of the

business and financial records of the individual

teams. These records would show what part of each

team’s revenue is not shared by any other team,

what activities generated that revenue, and how the

revenue was treated on the team’s books. Based on

these records, Plaintiffs could prove that the teams

are not a “single entity.”

In addition, other factors or economic competi-

tion between the teams would have to be discov-

ered, along with the views of each team about that

economic competition. This would entail, (a) a

study of the league’s operations; (b) an inquiry into

the existence of factionalism and voting blocks in

league deliberations and at meetings; (c) deposi-

tions from representatives of each team; and discov-

ery of a host of other categories of facts which need

not be listed here. All of this information would be

needed before the Court would have an adequate

record on which to make a ruling on Defendants’

contentions that the separate teams must be viewed

as a single entity for antitrust purposes. It suffices to

note that depositions were limited by Court Order to

the four members of the 1973 NFL “Expansion

Committee”, and Pete Rozelle, and that the written

A-15

discovery was confined to the issue of “objective

standards”. Perhaps it should be noted as well that

before the Court entered its August 31, 1981 Order,

Plaintiffs had, in fact, filed discovery requests seek-

ing information which would have shed light on De-

fendants’ “single entity” contention, but Defen-

dants objected to all of this discovery. Therefore, the

record does not contain evidence for the Court to

rule on Defendants’ “single entity” contention.

5 App. at 1217-18. This brief made no reference to spe-

cific discovery requests addressed to what the Grizzlies

characterize as defendants’ “single entity” contention.

There is no suggestion that there are sources of revenue

other than sales of tickets, sales of television rights, and

revenues derived from food and beverage concessions,

parking, and sales of team paraphernalia. There is no in-

dication that a professional football business located at

Memphis, Tennessee would compete with any NFL

member for these perpheral sources of revenue. The

Grizzlies do not contend that the league members (or

the Grizzlies themselves if they were admitted to the

league) compete for rather than share in network televi-

sion and ticket sale revenues.

{1, 2] The trial court addressed the Grizzlies’

unfocused contention that there should be additional

discovery, noting:

Plaintiffs have had more than sufficient discovery to

fully develop their case. All of the outstanding re-

quests to which defendants have refused to respond

are not calculated to lead to relevant evidence nec-

essary to resolving this matter. As a result I find that

this case is now ripe for a decision on the merits.

550 F.Supp. at 565.

The Grizzlies contend that this ruling was error, be-

cause with additional discovery they could have discov-

ered facts which would suggest the existence of actual

A-16

or potential competition between their Memphis based

team and members of the NFL in some relevant product

market.

Where Rule 56(f) affidavits have been filed, setting

forth specific reasons why the moving party’s affidavits

in support of a motion for summary judgment cannot be

responded to, and the facts are in the possession of the

moving party, we have held that a continuance of the

motion for purposes of discovery should be granted al-

most as a matter of course. Costlow v. United States, 552

F.2d 560, 564 (3d Cir.1977); Ward v. United States, 471

F.2d 667, 672 (3d Cir.1973). But as Judge Friedman so

aptly observed:

It is true that Rule 56(f) also authorizes the court in

appropriate cases to refuse to enter summary judg-

ment where the party opposing the motion shows a

legitimate basis for his inability to present by affida-

vit the facts essential to justify his opposition, but to

take advantage of this provision he must state by af-

fidavit the reasons for his inability to do so and these

reasons must be genuine and convincing to the

court rather than merely colorable. It is not enough

to rest upon the uncertainty which broods over all

human affairs or to pose philosophic doubts regard-

ing the conclusiveness of evidentiary facts. In the

world of speculation such doubts have an honored

place, but in the daily affairs of mankind and the in-

tensely practical business of litigation they are put

aside as conjectural.

Robin Construction Company v. United States, 345

F.2d 610, 614 (3d Cir. 1965). Judge Friedman's observa-

tions are relevant here in two respects. First, the

Grizzlies filed no Rule 56(f) affidavit.* Second, treating

4. Most courts which have considered the issue agree that fil-

ing an affidavit is necessary for the preservation of a Rule 56(f) con-

tention that summary judgment should be delaved pending further

discovery. See, e¢.g., Gray v. Udevitz, 656 F.2d 588 ( 10th Cir. 1981);

A-17

their response to the defendants’ reply brief as if it were

such an affidavit, it raises no more than a merely

colorable claim that actual or potential competition for

revenue other than from ticket sales and sales of televi-

sion rights could be shown between a professional team

based in Memphis and the other members of the NFL.

Just how speculative the Grizzlies’ Rule 56(f) showing

was, even assuming that it should be considered absent

an affidavit, can be appreciated from the analysis, in the

margin, of the outstanding discovery requests, the de-

fendants’ objections, and this court’s conclusion as to

their relevance to the issue of competition.®

NOTE — (Continued)

Thi-Hawaii v. First American Financial Corp., 627 F.2d 991 (9th

Cir. 1980); Over the Road Drivers v. Transport Insurance Co., 637

F.2d 816 (1st Cir.1980); British Airways Board v. Boeing Com-

pany, 585 F.2d 946 (9th Cir.1978), cert. denied, 440 U.S. 981, 99

S.Ct. 1790, 60 L.Ed.2d 241 (1979); Altemose Construction Com-

pany v. Building and Construction Trades Council of Philadelphia,

443 F.Supp. 492, 498 (E.D.Pa.1977); Mayerson v. Washington

Mfg. Co., 58 F.R.D. 377 (E.D.Pa.1972). But see Littlejohn v. Shell

Oil Co., 483 F.2d 1140, 1146 (Sth Cir. 1973), cert. denied, 414 U.S.

1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1974) (continuance granted

“[ojut of an abundance of caution and to prevent a possible injus-

tice” despite absence of affidavit); Murrell v. Bennett, 615 F.2d 306

(5th Cir.1980) (absence of affidavit excused in prisoner's pro se

case).

5. Appellees’ Relevance to

Request Objection Competition Issue

I: #2—4, 6 Beyond Scope of Irrelevant to competi-

All documents relat- issue tion issue — only rel-

ing to formal meet- evant to “objective

ings at which appel- standards” issue.

lants’ application was

discussed.

I: #10 Imposs‘hie to Relevant to establish-

Informal meetings of produce ing motive for exclu-

NFL Expansion Com- sion, not to competi-

mittee and Sub-com- tion.

cussed.

A-18

Considering the already large record compiled prior

to its consideration of the summary judgment record,

the absence of a Rule 56(f) affidavit, the irrelevance of

NOTE — (Continued)

I: #8(d)

All documents relat-

ing to possible trans-

fer of NFL teams.

II: #5

Identify “specifically

provisions in NFL

Constitution and By-

Laws governing vot-

ing procedures for

making business de-

cisions.”

I: 8(m)

Identify all docu-

ments relating to

the World Football

League.

Il: #3

Identify players and

coaches in the WFL

who subsequently

joined the NFL.

Il: #4

State with specificity

each administrative

and promotional func-

tion performed by the

NFL.

amounts of

assessments

against individual

members and expen-

ditures against which

such assessments

were applied.

Irrelevant

Contained in by-

laws

Involves enormous

amounts of infor-

mation. Not rea-

sonably calculated

to lead to admissi-

ble evidence.

Overly burden-

some

They are broadly

stated in the by-

laws. Specific

functions are be-

yond enumeration.

1) Unduly

densorne.

2) Might lead to

disclosure of confi-

dential informa-

tion.

3) Not reasonably

calculated to lead

to discovery of ad-

missible evidence.

bur-

Arguaviy relevant,

but extremely broad

and cumulative of

materials in sum-

mary judgment re-

cord.

Provisions are easily

identified in sum-

mary judgment re-

cord.

Irrelevant to competi-

tion issue. Related

only to the retaliation

claim.

Irrelevant to competi-

tion issue. Relates to

retaliation and objec-

tive standards issues.

Irrelevant to competi-

tion issue.

Irrelevant to competi-

tion issue.

A-19

most of the pending discovery requests, and the conjec-

tural nature of the Grizzlies’ contentions as to the possi-

bility of establishment of actual or potential competition

NOTE — (Continued )

Il: #8(c),(d)

Amount of disburse-

ment of expansion

fees from 1966 to

present; amount of

“assets” contributed

to new franchises.

II: #29-30

Specify how plain-

tiffs’ expansion into

the NFL would di-

minish the league's

joint assets; identify

all specific docu-

ments.

Ill: #1-7

Financial statements

and tax returns of

each defendant for

1976-1979: all docu-

ments revealing

terms of operating

agreements between

defendants and NFL

Properties, Inc.; all

contracts by defen-

dants or by NFL

Properties, Inc. con-

cerning broadcast

rights and stadium

leases.

1) Unduly _ bur-

densome.

2) No bearing on

issues of suit.

1) [General dis-

cussion of joint

revenue producing

assets of NFL:

goodwill, League

trademarks, etc.|

2) Exact diminu-

tion can't be fore-

cast

3) Documents are

confidential, bur-

densome to

produce, not rel-

evant.

1) Irrelevant.

2) Documents are

confidential. Pro-

duction not justi-

fied by any com-

pelling necessity.

Irrelevant to competi-

tion issue.

Irrelevant to competi-

tion issue.

Plaintiffs advance

five reasons for re-

questing these docu-

ments. See Motion to

Compel, App. at

125a. Only one of

these reasons is rel-

evant: the financial

data is relevant to

plaintiffs’ allegation

that the defendants

are engaged in con-

spiratorial, anti-com-

petitive activities.

However, the request

is otherwise unnec-

essarily broad, and

the information could

be obtained in other

ways.

A-20

in any arguably relevant market, we conclude that the

court did not err in considering the motion for summary

judgment on the present record.

IV.

The Merits

A. Sherman Act Section 1

Public Law 89-800 establishes as a matter of law

that the merger which produced the NFL from two for-

NOTE — (Continued)

Il: #6

State with particular-

ity all facts relating to

use of voting proce-

dures in context of

plaintiffs’ application.

Il: #12

Identify all docu-

ments that relate to

any interest or con-

cern of defendant in

locating or relocating

a franchise in Mid-

South/Memphis area.

Il: #33

Whether any suits

have been filed relat-

ing to the Tampa ex-

pansion.

Il: #34

Give all information

relating to transfers

of ownership inter-

ests from 1959 to

present.

Information is in

documents _relat-

ing to plaintiffs’

application.

NFL has already

produced this.

Doesn't relate to

appellants’ appli-

cation.

Beyond scope of

suit.

Irrelevant to competi-

tion issue. Related to

“Objective stand-

ards” issue.

Relevant, since this

would establish ele-

ment of competition

between plaintiff and

defendant for

geographical market.

But all that the plain-

tiffs ask for in their

motion to compel is

that the NFL deny

the existence of any

more documents un-

der oath. This is not

hikely to lead to mate-

rial facts. See Motion

to Compel, App. at

108a.

Irrelevant to competi-

tion issue. Goes to ob-

jective criteria ques-

tion.

Irrelevant to competi-

tion issue. Goes to ob-

jective criteria ques-

tion.

A-21

merly competing leagues did not violate the antitrust

laws. Public Law 87-331 establishes as a matter of law

that the members may lawfully pool revenues from the

sale of television rights. The parties agree that in other

NOTE — (Continued)

IV: #1-9, 15-22

This set includes re-

quests for all recent

opinion polls and

market surveys for

each NFL team, all

documents concern-

ing correspondence

between a member

and a fan, season

ticket holder mailing

lists for 15 teams, all

documents _ relating

to trademark licens-

ing, all documents

relating to local

broadcast rights,

“any document con-

cerning the identifi-

cation of a

statistic regarding to

number of players

from any given team

defendant who

played in the Pro-

Bowl. . .”, etc.

V: #2,3,6,12,13

All documents relat-

ing to expansion de-

cisions, including all

documents _ relating

to designation of Paul

Brown as operator of

the Cincinnati Ben-

gals.

“ . , a ‘fishing ex-

pedition’ of the

worst kind... .”

Defendants’ Ob-

jections to Plain-

tiffs’ Requests for

Production of Doc-

uments Set No. 4

at 3. [Not in ap-

pendix].

There may be docu-

ments in this request

that would tend to

suggest the possibil-

ity of competition for

the Memphis home

team market. How-

ever, the request is

extraordinarily broad,

and no showing was

made that anything

would be likely to im-

peach the provision

in Art. 9.1(B)(1) of

the Constitution and

By-Laws of the NFL

prohibiting a mem-

ber club from having

a financial interest,

directly or indirectly,

in any other league

member.

Irrelevant to competi-

tion issue.

A-22

respects a rule of reason analysis is appropriate.° The

Grizzlies, moreover, make no contention that the 60-40

sharing of ticket sale revenue is an unreasonable re-

straint of trade.

[3] Under a rule of reason analysis a Section 1 vio-

lation and a right to recover under Section 4 of the Clay-

ton Act can be established by proof:

(1) that the defendants contracted, combined, or

conspired among each other; (2) that the combina-

tion or conspiracy produced adverse, anticompeti-

tive effects within relevant product and geographic

markets; (3) that the objects of and conduct pursu-

ant to that contract or conspiracy were illegal; and

(4) that the plaintiff was injured as a proximate re-

sult of that conspiracy.

Request Appellees’ Relevance to

VI: #2(a), (b), (c), 8, Objection Competition Issue

13-15, 24 Irrelevant to competi-

All minutes and tion issue.

notes of each partici-

pant at any meeting

concerning expan-

sion, labor unrest,

antitrust problems,

etc.; all studies of the

college draft; all stud-

ies of effect of further

expansion; all docu-

ments “reflecting any

TV rating concerning

any defendant ...”,

all documents _re-

flecting amount of

gate receipts; sta-

dium leases for each

defendant between

1972 and 1979.

6. In the complaint the Grizzlies alleged that their excluison

was the result of a group boycott, which was a per se violation of

Section 1 of the Sherman Act. The per se violation contention is not

made in this court.

A-22.1

Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139,

147 (3d Cir. 1981), cert denied, 455 U.S. 1019, 102 S.Ct.

1715, 72 L.Ed.2d 137 (1982), quoting Martin B.

Glauser Dodge Co. v. Chrysler Corp.;570 F.2d 72, 81 (3d

Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56

L.Ed.2d 413 (1978). In this case there is no dispute

about the requisite concert of action among the defend-

ants. The defendants do deny injury to competition in

any relevant market from their rejection of the Grizzlies’

application. They urge that any limitations on actual or

potential competition in any relevant market were insu-

lated from antitrust scrutiny by the 1961 and 1966 stat-

utes referred to, or, are reasonable as a matter of law.

They also urge that as a matter of law there was no com-

petition among league members or between league

members and non-members in other markets to which

the Grizzlies point.

The Grizzlies identify as the relevant product mar-

ket major-league professional football, and as the rel-

evant geographic market the United States. The trial

court found these markets to be relevant. 550 F.Supp. at

571 n. 33. The court observed as well that “|there is no

doubt that the NFL currently has a monopoly in the

United States in major league football.” 550 F.Supp. at

571. The Grizzlies pose as the question on this appeal

“whether it can be said as a matter of law that defend-

ants neither acquired nor maintained monopoly power

over any relevant market in an unlawful manner.” Ap-

pellants’ Brief at 27.

A-23

As to the acquisition of dominant position and mo-

nopoly power, the facts are undisputed. Long before the

Grizzlies and the World Football League came into exist-

ence, Congress authorized the merger of the two major

football leagues extant in 1966, and granted to the

merged league the power to pool television revenues.

That congressional decision conferred on the NFL the

market power which it holds in the market for profes-

sional football. Congress could not have been unaware

that necessary effect of the television revenue sharing

scheme which it approved for the NFL would be that all

members of that league would be strengthened in their

ability to bid for the best available playing and coaching

personnel, to the potential disadvantage of new entrants.

[4] In an effort to bolster its “unlawful acquisition of

monopoly power” contention, however, the Grizzlies

point to certain activities of the NFL and its predeces-

sors which occurred prior to the 1966 legislation author-

izing its formation. They point out that in 1961, when

the old NFL was seeking legislation which would over-

rule United States v. National Football League, 116

F.Supp. 319 (E.D.Pa. 1953), which prohibited certain

television revenue sharing practices, it admitted a new

team in Minnesota, the home state of the Senate Major-

ity Leader and Chairman of the Committee which con-

sidered the bill; that in 1966 when the old NFL and AFL

leagues were seeking a statutory exemption which

would permit their merger, a team was added in New

Orleans, the home state of a powerful senator and pow-

erful congressman who supported the legislation. Even

the post merger addition of Seattle and Tampa Bay, ac-

cording to the Grizzlies, was prompted by a desire to

limit the term of proposed legislation prohibiting home

teams from blacking out televised games when they

were playing. See Pub.L. 93-107, §1, 87 Stat. 350, re-

pealed by Pub.L. 93-107, §2, 87 Stat. 351 (1973). If

these allegations are true, as we must assume for pur-

poses of a summary judgment motion, they are, perhaps,

A-24

instructive on the nature of the federal legislative proc-

ess. For purposes of rule of reason analysis, however,

they are irrelevant. It would take a court bolder than this

to claim that the congressionally authorized acquisition

of market power, even market power amounting to mo-

nopoly power, was unlawful under Section 1 of the Sher-

man Act.

But, the Grizzlies urge, the 1966 statute did not

confer the authority to abuse the market power, even

though it may have authorized its acquisition. Rather,

the merger was approved only “if such agreement in-

creases rather than decreases the number of profes-

sional clubs so operating.” 15 U.S.C. §1291. Paraphras-

ing their argument, it is the Grizzlies’ contention that

the statute which authorized NFL acquisition of monop-

oly power in the professional football market required

not only that the league members refrain from abusing

that power against potential competitors, but that it take

affirmative steps to shre its market power with others.

This reading of the 1966 legislation is at least plau-

sible. It poses two separate issues. One is the issue of

abuse uf monopoly power against potential rivals of the

NFL in the business of promoting professional football

as a spectator spectacle. The other is the issue of admit-

ting others to a share in the NFL’s dominant market po-

sition. Although the Grizzlies’ briefs, both here and in

the district court, tend to blur the distinction between

those issues, the complaint makes clear that only the

second is presented in this case. The only basis on which

the Grizzlies seek recovery under Section 4 of the Clay-

ton Act is that they were denied admission to the monop-

oly, and thus were deprived of a share of the NFL's mo-

nopoly power. No claim is made that abuse of NFL

market power led to the demise of the World Football

League, and no issue is before us concerning activities

of the NFL, since that demise, which may have inhib-

ited the development of competition by another football

league. The NFL structure as a barrier to entry to the

A-25

market by another football league is relevant in this case

only to the extent that it bears on the obligation to permit

entry to the NFL.’

There are two possible sources of any NFL obliga-

tion to permit entry to its shared market power: the 1966

statute, and the Sherrnan Act. Each will be considered

separately.

[5] The provision in the 1966 statute that “such

agreement increases rather than decreases the number

of professional football clubs so operating” cannot rea-

sonably be construed as addressing competition, the

preservation of which is the object of the Sherman Act.

The basic thrust of the 1966 statute is to authorize an

arrangement which eliminated competition among the

only two viable competitors then in the professional foot-

ball market. The reference to an increase in the number

of professional football teams “so operating” is a refer-

ence to professional teams operating under the antitrust

exemption for television revenue sharing provided in the

1961 statute. Thus what the 1966 statute suggests is

that more home team territories would be added, not to

increase competition in professional football, but to per-

mit geographic enlargement of the NFL’s market power.

The Grizzlies urge that home team regions derive

important economic benefits from the presence of a pro-

fessional football team, in the form of hotel, restaurant

and travel business, stadium employment, and the like.

Undoubtedly that is so, and probably such derivative

economic benefits were in the minds of those Senators

and Congressmen interested in NFL expansion. Those

benefits, however, do not result from competition with

the NFL or even from competition, other than athletic,

7. There is no doubt that the NFL structure authorized by the

1961 and 1966 legislation in itself presents a formidable barrier to

entry by a competitive football league. That legally countenanced

barrier might well, if abused against extra-league competitors, re-

sult in anti-trust liability. But the issue of competition by another

league is not presented here, except to the limited extent noted.

A-26

among its members. Rather they result from the pres-

ence of a franchisee which shares the NFL market

power over professional football. Moreover, even if one

assumes that Congress intended in the 1966 statute to

extend incidental economic benefits on businesses in

new home territory areas, it is difficult to see what stand-

ing the Grizzlies have to rely on that intent with respect

to their claim for league membership. Finally, even if

there was a congressional intent to confer economic

benefits in some new home territories, nothing in the

1966 statute or its square legislation history suggests a

basis for concluding that businesses in Memphis, Ten-

nessee, rather than in other metropolitan areas were to

receive them.

[6] Since the 1966 statute is not directed at preser-

vation of competition in the market for professional toot-

ball, and cannot be construed as conferring any eco-

nomic benefit on the class to which the Grizzlies belong,

we conclude that it does not oblige the NFL to permit

entry by any particular applicant to the NFL shared mar-

ket power.

We turn, therefore, to the Sherman Act. As noted

above, Sherman Act liability requires an injury to com-

petition. In this case the competition inquiry is a narrow

one, because the Grizzlies are not seeking recovery as

potential competitors outside the NFL. They identify as

the antitrust violation the league’s negative vote on their

application for membership.

From affidavits, pleadings, and discovery materials

which comprise the summary judgment record it could

be found, and the trial court assumed, that the Grizzlies

met all the qualifications for membership specified in

the NFL Constitution and By-Laws. 550 F.Supp at 568.

It is undisputed that in 1974 expansion teams were lo-

cated at Tampa, Florida and at Seattle, Washington,

raising to 28 the number of league competitors for the

1976 season. Ii is also undisputed that in deciding on ex-

pansion the NFL Expansion Committee considered a so-

A-27

cioeconomic study prepared for it by the Stanford Re-

search Institute in December of 1978, which identified

fourteen potential locations for new franchises, includ-

ing Memphis® The Expansion Committee met with rep-

resentatives of the Grizzlies, but made a negative recom-

mendation on expansion, as of 1975, . eyond 28 teams.

The full membership of the league accepted the recom-

mendation of the expansion committee.

The NFL’s stated reasons for rejecting the Grizzlies’

application included scheduling difficulties created by

the presence of an odd number of teams, a long-running

collective bargaining dispute with league players, sev-

eral pending antitrust lawsuits, and league concern over

legislation prohibiting television blackouts in home team

territories, all of which allegedly made consideration of

expansion unpropitious. The Grizzlies contend that

there are material issues of disputed fact as to the accu-

racy of these reasons. They contend that at trial they

could prove that the motivation for their rejection was to

punish them for having attempted in the past to compete

with the NFL in the World Football League, or to re-

serve the Memphis location for friends of present league

team owners.

[7-9] Assuming, without deciding, that the sum-

mary judgment record presents disputed fact issues

with respect to the actual motivation of the NFL mem-

bers, those disputed facts are not material, under Sec-

tion 1 of the Sherman Act, if the action complained of

produced no injury to competition.

As to competition with NFL members in the profes-

sional football market, including the market for sale of

television rights, the exclusion was patently pro-com-

8. The other areas are Mexico City, Birmingham, Alabama, Se-

attle, Washington, Nassau County, New York, Anaheim, California,

Chicago, Illinois, Phoenix, Arizona, Honolulu, Hawaii, Tampa, Flor-

ida, the Tidewater area of Virginia, Charlotte-Greensboro, North

Carolina, Indianapolis, Indiana, and Orlando, Florida.

A-28

petitive, since it left the Memphis area, with a large sta-

dium and a significant metropolitan area population,

available as a site for another league’s franchise, and it

left the Grizzlies’ organization as a potential competitor

in such a league. If there was any injury to competiton,

actual or potential, therefore, it must have been to intra-

league competition.

The NFL defendants’ position is that the summary

judgment record establishes conclusively the absence of

competition, actual or potential, among league mem-

bers. Rather, they urge, the league is a single entity, a

joint venture in the presentation of the professional foot-

ball spectacle.

For the most part the congressionally authorized ar-

rangements under which the NFL functions eliminate

competition among the league members. Indeed it is

undisputed that on average more than 70% of each

member club’s revenue is shared revenue derived from

sources other than operations at its home location. The

Grizzlies do not challenge the legality of the NFL’s rev-

enue sharing arrangements, and seek to participate in

them. The Grizzlies emphasize that there nevertheless

remains a not insignificant amount of intra-league non-

athletic competition. We need not, in order to affirm the

summary judgment, accept entirely the NFL’s position

that there is no intra-league competition. Conceivably

within certain geographic submarkets two league mem-

bers compete with one another for ticket buyers, for local

broadcast revenue, and for sale of the concession items

like food and beverages and team paraphernalia.? Thus

rejection of a franchise application in the New York met-

ropolitan area, for example, might require a different

antitrust analysis than is suggested by this record. But

the Grizzlies were obliged, when faced with the NFL de-

9. Thus we need not, in order to affirm, approve the suggestion

in Levin v. National Basketball Ass’n., 385 F.Supp. 149, 152

(S.D.N.Y.1974), that there can never be competition among league

members.

A-29

nial of the existence of competition among NFL mem-

bers and a potential franchisee at Memphis, to show

some more than minimal level of potential competition,

in the product markets in which league members might

compete. They made no such showing. The record es-

tablishes that the NFL franchise nearest to Memphis is

at St. Louis, Mo., over 280 miles away. There is no rec-

ord evidence that professional football teams located in

Memphis and in St. Louis would compete for the same

ticket purchasers, for the same loca! broadcast outlets, in

the sale of team paraphernalia, or in any other manner.

The Grizzlies contend on appeal, although they did

not so contend in the trial court, that league members

compete in what they call the “raw material market” for

players and coaching personnel. Entirely apart from the

propriety of considering a legal theory not presented in

the trial court,!° there are major defects in this Grizzlies’

argument. First, the Grizzlies exclusion from the league

in no way restrained them from competing for players by

forming a competitive league. Second, they fail to ex-

plain how, if their exclusion from the league reduced

competition for team personnel, that reduction caused

an injury to the Grizzlies’ business or property. See Van

Dyk Research Corp. v. Zerox Corp., 631 F.2d 251, 255

(3d Cir. 1980), cert. denied, 452 U.S. 905, 101 S.Ct.

3029, 69 L.Ed.2d 405 (1981). (Section 4 plaintiff has

burden of proving that injury was caused by illegality re-

lied on).

One final Grizzlies’ argument in support of their

section 1 Sherman Act claim bears mentioning. Relying

on the essential facilities doctrine developed in cases

10. See Halderman v. Pennhurst State School & Hospital, 673

F.2d 628, 639 (3d Cir.) (in banc), cert. granted, 457 U.S. 1131, 102

S.Ct. 2956, 73 L.Ed.2d 1348 (1982); Caisson Corp. v. Ingersoll

Rand Co., 622 F.2d 672, 680 (3d Cir. 1980); Teen-Ed, Inc. v.

Kimball International, Inc., 620 F.2d 399, 401 (3d Cir. 1980);

Toyota Industrial Trucks U.S.A., Inc. v. Citizens Nat'l Bank of Ev-

ans City, 611 F.2d 465 (3d Cir. 1979).

A-30

such as Silver v. New York Stock Exchange, 373 U.S.

341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963); Associated

Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89

L.Ed. 2013 (1945), and Gamco, Inc. v. Providence Fruit

& Produce Bldg., 194 F.2d 484 (lst Cir.), cert. denied,

344 U.S. 817, 73 S.Ct. 11, 97 L.Ed. 636 (1952), they

urge that because the NFL is a practical monopoly it had

an obligation to admit members on fair, reasonable, and

equal terms, absent some procompetitive justification

for their exclusion. This Grizzlies argument suffers from

the same defect as the others. The essential facilities

doctrine is predicated on the assumption that admission

of the excluded applicant would result in additional com-

petition, in an economic rather than athletic sense. The

Grizzlies have simply failed to show how competition in

any arguably relevant market would be improved if they

were given a share of the NFL’s monopoly power.

Since on the record before us the Grizzlies have

shown no actual or potential injury to competition re-

sulting from the rejection of their application for an NFL

franchise, they cannot succeed on their section 1 Sher-

man Act claim.

B. Sherman Act Section 2.

The Grizzlies also plead a violation of Section 2 of

the Sherman Act, 15 U.S.C. §2 (1973). That section pro-

hibits attempts to monopolize. In section 2 cases the al-

leged monopolist is prohibited from acting “in an unrea-

sonably exclusionary manner vis-a-vis rivals or potential

rivals... .” Byars v. Bluff City News Co., Inc., 609 F.2d

843, 853 (6th Cir. 1979). See also Official Airline

Guides, Inc. v. FTC, 630 F.2d 920, 926-28 (2d Cir.

1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1962, 67

L.Ed.2d 343 (1981) (Federal Trade Commission Act §5

claim); Mid Texas Communications v. American Tele-

phone & Telegraph Co., 615 F.2d 1372, 1387 (5th Cir.

1980), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66

L.Ed.2d 140 (1981).

:

A-31

[10] Our analysis of the section 1 Sherman Act

claim applies equally to the Grizzlies’ section 2 claim.

Congress by legislation in 1961 and 1966 authorized the

NFL acquisition of the market power which it holds, and

the Grizzlies cannot challenge that acquisition. The only

action they complain of is their exclusion from the

shared monopoly, but they have failed to show that their

admission would be contra-competitive in any way. In-

deed the Memphis home team market has been left by

the NFL for potential competitors. Thus on this record

summary judgment on the section 2 Sherman Act claim

was also proper.

Conclusion

The court did not err in considering the defendants’

summary judgment motion on the present record. There

are no disputed fact issues material to the legal issues

presented. The trial court did not err in applying the

Sherman Act. Thus the judgment appealed from will be

affirmed.

A-32

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MID-SOUTH GRIZZLIES, et al. : CIVIL ACTION

Vv. -

NATIONAL FOOTBALL LEAGUE, etal. : No. 79-4373

ORDER

AND NOW, this 5 day of NOVEMBER, 1982, upon

consideration of Defendants’ Motion for Summary Judg-

ment pursuant to Rule 56 of the Federal Rules of Civil

Procedure, it is hereby

ORDERED

that the motion is GRANTED and judgment is entered

in favor of the defendants and against the plaintiffs.

BY THE COURT

JOSEPH L. McGLYNN, Jr. J.

A-33

MID-SOUTH GRIZZLIES, et al.

v.

NATIONAL FOOTBALL LEAGUE, et. al.

Civ. A. No. 79-4373.

United States District Court,

E.D. Pennsylvania,

Civil Division.

Nov. 5, 1982.

Unsuccessful applicants for a National Football

League franchise for the Memphis, Tennessee area

brought Sherman Act suit against the League. The

League moved for summary judgment. The District

Court, McGlynn, J., held that: (1) rule-of-reason test ap-

plied; (2) neither essential-facility doctrine nor the trade

association cases were applicable; (3) a Section 1 viola-

tion had not been made out; and (4) although the

League currently has a monopoly in the United States in

major league football it had not used that power to pre-

vent formation of the rival league or fielding of a team in

Memphis.

Motion granted.

1. Federal Civil Procedure (key) 2543

Summary judgment is a drastic remedy and a court

must resolve all doubts as to existence of genuine issues

of fact against the movant and must view all inferences

from the facts in the light most favorable to the opposing

party. Fed.Rules Civ.Proc. Rules 56, 56(c), 28 U.S.C.A.

2. Federal Civil Procedure |KEyY| 2484

Summary judgment should be used sparingly in

antitrust cases. Sherman Anti-Trust Act, §§1, 2, 15

U.S.C.A. §§1, 2; Fed. Rules Civ.Proc. Rules 56, 56(c), 28

U.S.C.A.

3. Federal Civil Procedure |KEy| 2484

Although a party’s right to trial should be carefully

guarded, filing of an antitrust complaint cannot insure a

right to trial, i.e., defeat a summary judgment motion,

A-34

absent any significant probative evidence supporting the

party’s claims and such a party should not be permitted

to proceed to trial in the hope of developing evidence to

support his claims. Sherman Anti-Trust Act, §§1, 2, 15

U.S.C.A. §§1, 2; Fed.Rules Civ. Proc. Rules 56, 56(c),

28 U.S.C.A.

4. Federal Civil Procedure (key) 2484

Summary disposition of antitrust cases is proper

even when employing the rule of reason. Sherman Anti-

Trust Act, §§1, 2, 15 U.S.C.A. §§1, 2; Fed.Rules Civ.

Proc. Rules 56, 56(c), 28 U.S.C.A.

5. Federal Civil Procedure |KEY| 1267

District court has discretion in controlling the dis-

covery process.

6. Federal Civil Procedure {kEy| 1272

Where appropriate, a district court may limit a par-

ty’s discovery as long as he is able to fully develop his

case.

7. Monopolies (KEY) 12(6)

Unlike professional baseball, professional football is

not totally exempt from the antitrust laws and in two

areas only does football escape the antitrust laws’ watch-

ful eye: joint agreement concerning the telecasting of

games and the 1966 merger of the AFL with the NFL.

Sherman Anti-Trust Act, §§1, 2, 15 U.S.C.A. §§1, 2; 15

U.S.C.A. §§1291—1295.

8. Monopolies (KEY) 12(1.2)

Not all group decisions refusing to do business with

someone should be measured against the strict per se

criteria and per se violations should be found only where

the involved agreements are so clearly anticompetitive

and lacking in any redeeming quality that they can be

conclusively presumed illegal without further inquiry.

Sherman Anti-Trust Act, §§1, 2, 15 U.S.C.A. §§1, 2.

A-35

9. Monopolies (KEY) 12(6)

Because of the unique character of professional

sports courts have rejected the per se test and have rou-

tinely applied the Rule of Reason in deciding antitrust

suits concerning league practices. Sherman Anti-Trust

Act, §§1, 2, 15 U.S.C.A. §§1, 2.

10. Monopolies (KEY) 12(1.10)

The “Rule of Reason test” mandates that a court de-

termine whether the restraint imposed merely regulates

and thereby promotes competition or is one that may

suppress or destroy competition. Sherman Anti-Trust

Act, §§1, 2, 15 U.S.C.A. §§1, 2.

See publication Words and Phrases for other judi-

cial construction and definitions.

11. Monopolies |KEy| 12(1.10)

Crucial to proving an antitrust violation under the

rule-of-reason test is a showing of anticompetitive intent

or effect. Sherman Anti-Trust Act, §§1, 2, 15 U.S.C.A.

§§1, 2.

12. Monopolies (KEY) 28(8)

Even where state of mind is material in an antitrust

case, there must be some demonstration that there is a

sufficient quantum of evidence to permit a party to go to

the jury. Sherman Anti-Trust Act, §§1, 2, 15 U.S.C.A.

§§1, 2.

13. Monopolies (KEY) 12(1.2)

The essential-facility doctrine is applicable in an

antitrust case only where a party is being denied access

to something necessary for that party to engage in busi-

ness which is controlled by his competitors. Sherman

Anti-Trusi Act, §§1, 2, 15 U.S.C.A. §§1, 2.

14. Monopolies (KEY) 12(6)

The essential-facility doctrine was not applicable in

antitrust suit challenging professional football league’s

refusal to accept application for a new franchise. Sher-

man Anti-Trust Act, §§1, 2, 15 U.S.C.A. §§1, 2.

A-36

15. Federal Civil Procedure |key) 2542

Judicial notice may be used in resolving a motion for

summary judgment. Fed.Rules Civ.Proc. Rules 56,

56(c), 28 U.S.C.A.

16. Monopolies (Key; 12(18)

Because the potential harm to outsiders is so great

when their competitors are brought together through a

trade association the law requires access to the group be

available to anyone who meets fair criteria. Sherman

Anti-Trust Act, §§1, 2, 15 U.S.C.A. §§1, 2.

17. Monopolies (KEY) 12(6)

Trade association antitrust cases were inappropriate

in determining antitrust violation by refusal of profes-

sional football league to accept franchise application in

that production of professional sports necessarily re-

quires joint planning and decision making and unlike

normal business competitors the teams are interdepend-

ent and while economic success of one team does not

necessarily mean the success of another member the

stability which is derived from membership in a league

produces a better product which is to the benefit of the

public at large and the teams do not compete in the same

manner as the independent businesses in the trade asso-

ciation. Sherman Anti-Trust Act, §§1, 2, 15 U.S.C.A.

§§1, 2.

18. Monopolies (KEY) 12(6)

Refusal of professional football league to grant fran-

chise for the Memphis, Tennessee area did not consti-

tute unreasonable restraint of trade in violation of Sher-

man Act. Sherman Anti-Trust Act, §1, 15 U.S.C.A. §1.

19. Monopolies {Key} 12(1.3)

Possession of monopoly power in a relevant market

alone is not enough to establish an antitrust violation.

Sherman Anti-Trust Act, §2, 15 U.S.C.A. §2

A-37

20. Monopolies (ki y} 12(1.3)

Antitrust laws were not intented to punish a busi-

ness that has become a monopoly because of a superior

product, business acumen or historic accident but the

law does require that a monopoly not abuse its power

and where business possessing monopoly power wilfully

acquires or maintains such power it will incur a penalty.

Sherman Anti-Trust Act, §2, 15 U.S.C.A §2.

21. Monopolies (Key; 12(1.2)

To avoid a Sherman Act violation, a monopoly must

refrain at all times from conduct directed at smothering

competition and, put another way, a monopoly abuses its

power when it behaves in an unreasonably exclusionary

mannor vis-a-vis rivals or potential rivals.

22. Monopolies (KEY; 12(6)

Although National Football League currently has a

monopoly in the United States in major league football,

its refusal to accept application for franchise for Mem-

phis, Tennessee area did not violate Sherman Act as

franchise applicants were still free to promote a rival

league and NFL's actions did not prevent formation of

the rival league or the feilding of a team in Memphis.

Sherman Anti-Trust Act, §2, 15 U.S.C.A §2.

Richard A. Sprague, Edward H. Rubenstone

Sprague, Goldberg & Rubenstone, Gary Green, Robert

A. Davitch, Sidkoff, Pincus, Greenberg & Green, Phila-

delphia, Pa., for plaintiffs.

Edwin P. Rome, Morris L. Weisberg, Blank, Rome,

Comisky & McCauley, Philadelphia, Pa., Hamilton

Carothers, James C. McKay, Washington, D.C., for de-

fendants.

A-38

MEMORANDUM OF DECISION

McGLYNN, District Judge.

Pending before the court is Defendants’ Motion for

Summary Judgment. Although the submissions regard-

ing the motion are voluminous, they in essence address

one issue: does a professional sport league’s refusal to

accept for membership a qualified applicant for a fran-

chise in an area where no current league team is located

violate Sections 1 or 2 of the Sherman Act? Based on the

undisputed material facts and the reasons set forth be-

low, I believe not. Therefore, Defendants’ Motion for

Summary Judgment is granted.

The Team Rosters

The offensive team (plaintiffs) is the Mid-South

Grizzlies, a joint venture established on November 1,

1975 consisting of the Mid-South Grizzlies, a Tennessee

limited partnership,' Consolidated Industries, Inc., a

California corporation, and John Edward Bosacco, an in-

dividual. The defensive lineup (defendants) is composed

of the National Football League (“NFL”), the twenty-

eight individual NFL football teams, and calling the sig-

nals, Pete Rozelle, the NFL Commisioner.

Plaintiffs’ Game Plan

In the fall of 1975, plaintiffs applied to the NFL in

the hope of obtaining a franchise for the Memphis, Ten-

nessee area. Along with their application, they submit-

ted an application fee as required by the NFL Constitu-

tion and By-Laws. This fee was returned to the plaintiffs

a few weeks later. In December 1975, plaintiffs met with

the NFL Expansion Committee. This committee was re-

sponsible for the investigation and planning for the addi-

tion of new NFL teams. Its members at the time of plain-

tiffs’ application were Daniel M. Rooney, President of

the Pittsburgh Steelers, Gerald H. Phipps of the Denver

1. The partnership's Chief Executive Officer is John F. Bassett.

A-39

Broncos, Louis Spadia of the San Francisco '49ers and

Texas Schramm of the Dallas C Uwboys. At this meeting

' plaintiffs were told that further expansion of the NFL at

that time was in their opinion unwise and that they

would recommend to the full NFL membership that no

further expansion be considered for the moment.

Plaintiffs met with defendants on at least two more

occasions. One of these meetings was with the entire

NFL membership. A few months after their presentation

to the full membership, the NFL passed on March 17,

1976 the following resolution:

RESOLVED, after thorough review of the major

problems presently confronting the NFL, that the

member clubs do not believe they can formally com-

mit to specific expansion arrangements at this time.

The clubs do, however, reaffirm their desire to bring

total League membership to thirty teams as soon as

possible after resolution of current problems and as-

similation of the new Tampa Bay and Seattle teams.

At that time, Memphis and Birmingham, which

have most actively sought admission in recent

months, will be among the cities receiving strongest

consideration for NFL franchises.

The problems referred to in the resolution were

many. Around the time of plaintiffs’ application, no

collective bargaining agreement with the Players Associ-

ation had been in effect for two seasons. In addition a

district court in California had held several player re-

strictions to be unlawful.? A few months later another

district court in California enjoined application of the

“Rozelle rule” by the NFL. Pending in a third district

2. The court found the “Rozelle rule,” the “draft rule,” the

“one-man rule” and the “tampering rule” violative of the Sherman

Act. Kapp v. National Football League, 390 F.Supp. 73 (N.D. Cal.

1974), aff'd, 586 F.2d 644 (Sth Cir. 1978), cert. denied, 441 U.S.

907, 99 S.Ct. 1996, 60 L.Ed. 2d 375 (1979).

A-40

court was a case attacking the NFL college draft.* Near

the end of 1975, another district court found the

“Rozelle rule” unlawful.* Also during this time period ef-

forts were afoot to make permanent legislation which

prevented the practice of blacking out television cover-

age of sold out home games in the area surrounding the

home team’s stadium. In addition, the NFL Players As-

sociation threatened to challenge the procedures the

NFL implemented to man the new Tampa Bay and Seat-

tle teams.° The players filed suit in March 1976.®

Because defendants had already decided expansion

anywhere at the time of plaintiffs’ application was not

prudent, they never fully considered plaintiffs’ applica-

tion on the merits.’ Defendants did, however, tell plain-

3. Smith v. Pro-Football, Inc., 420 F.Supp. 738 (D.D.C.1976),

affd in part and rev'd in part, 593 F.2d 1173 (D.C.Cir. 1978).

4. Mackey v. National Football League, 407 F.Supp. 1000

(D.Minn.1975), affd in part and rev'd in part, 543 F.2d 606 (8th

Cir. 1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54 L.Ed.2d 59

(1977).

5. These franchises were awarded in 1974. They did not begin

actual play, however, until 1976. In order to man these new teams,

each one was permitted to draft up to three men from each existing

team except a minimum of thirty-two men placed on a protected

list. They were also given preferential selection rights in the NFL

college draft. Exhibit 4F to Rooney Affidavit, Motion of Defendants

for Summary Judgment and Addenda.

6. The NFL's litigation problems have continued. Recently.

the Second Circuit affirmed a district court's finding that the NFL

cross ownership ban preventing NFL owners from owning any

other major professional sports team violated the Sherman Act.

North American Soccer League v. National Football League, 670

F.2d 1249 (2d Cir.1982), cert. denied, _ U.S. __, 103 S.Ct 499

(1982). In May 1982, the NFL also lost a fight to prevent the owner

of the Oakland Raiders from moving his team to the Los Angeles

area. Los Angeles Memorial Coliseum Commission v. National Foot-

ball League, Civ. No. 78-3523-HP (C.D.Cal.). And of serious conse-

quence to the owners, players’ strike which began in September

1982.

7. As a result of this lawsuit, defendants have since examined

the merits of plaintiffs’ application and have found it, in their eves.

SS ae

A-41

tiffs they would receive serious consideration in the fu-

ture when definite expansion plans were formulated.

Plaintiffs finally filed this lawsuit in December

1979. In their Complaint, plaintiffs allege that part of de-

fendants’ motive in rejecting plaintiffs’ application was

to retaliate against plaintiffs for their past involvement in

the now defunct rival of the NFL, the World Football

League (“WFL”).® The WFL was formed in 1973 and

played games in the entire 1974 football season and in

the 1975 season until October 1975. Several of its teams

had competed directly with NFL teams for fan support

and revenue.

In any event plaintiffs assert that defendants’ ac-

tions constitute an unlawful group boycott and an un-

reasonable restraint of trade in violation of Section 1 of

the Sherman Act.® Moreover, they allege that defen-

dants’ behavior constitutes monopolization violative of

Section 2 of the Sherman Act.!°

The Defensive Strategy

Defendants respond with several defenses. First

they deny their actions were motivated by animus to-

wards plaintiffs because of their WFL involvement. De-

NOTE — (Continued)

wanting. Because I am assuming plaintiffs were qualified for a fran-

chise in deciding this motion, I make no finding regarding this par-

ticular contention of defendants.

8. Mr. Bosacco owned and operated the Philadelphia Bell; the

limited partnership owned and operated the Memphis Southmen,

also known as the Memphis Grizzlies; and Consolidated owned and

operated the Portland Storm.

9. Section 1 reads in part: “Every contract, combination in the

form of trust or otherwise, or conspiracy, in restraint of trade or

commerce among the several States, ... is declared to be il-

legal... .”

10. Section 2 provides: “Every person who shall monopolize, or

attempt to monopolize, or combine or conspire with any other per-

son or persons, to monopolize any part of the trade or commerce

among the several States, ... shall be deemed guilty of a fel-

Ws..."

A-42

fendants also contend that their behavior was neither a

group boycott nor an unreasonable restraint of trade. In

addition they assert there was no contract, combination

or conspiracy as required by Section 1 because the NFL,

in this case, acted as a single entity. Moreover, they as-

sert they have performed no act of monopolization pro-

scribed by Section 2. Lastly, they contend that plaintiffs

Bosacco, Consolidated and the joint venture are not real

parties in interest and thus lack standing to sue. Be-

cause I find that defendants’ conduct is neither an un-

lawful group boycott, an unreasonable restraint of trade

nor an act of monopolization, I will not make a call on

defendants’ remaining contentions. !!

The Pregame Show

The NFL is well known to any football fan. It is an

unincorporated association comprised of twenty-eight

teams located throughout the United States. All but one

team are privately owned and operated. Although these

teams “compete” with one another on the playing field

and for the top players, they act jointly in many aspects

of their enterprise as the term league necessarily im-

plies. For example, they set rules for the games, sched-

ule contests, provide for joint marketing of national

broadcast rights and, of importance here, decide the lo-

cations and owners of new franchises.'2 The rules

which govern the awarding of new franchises are

contained in the NFL's Constitution and By-Laws. !*

11. The Second Circuit on facts different from this case re-

cently rejected the single entity theory in North American Soccer

League v. National Football League, 670 F.2d 1249 (2d Cir. 1982),

cert. denied, _U.S. __., 103 S.Ct. 499 (1982).

12. An award of a new franchise requires three-quarters ap-

proval of the then existing franchises. Constitution and By-Laws for

the National Football League for 1975, €3.3(C).

13. The Constitution and By-Laws for the National Football

League at the time of plaintiffs’ application contained the following

provisions governing the awarding of a franchise:

A-43

Each team derives a great deal of its revenue through

jointly generated income. For example, money resulting

from national broadcasting contracts is shared among

league members on agreed upon formulae. Other rev-

enue, such as the sale of team paraphernalia and local

NOTE — (Continued)

3.1(a) Membership in the League shall be limited to the

twenty six (26) member clubs specified in Section 4.3(A)

hereof and such new members as may be thereafter duly

elected.

(b) The admission of a new member within the home terri-

tory of a club is prohibited unless approved by the unanimous

consent of all members of the League.

3.2 Any person, association, partnership, corporation, or

other entity of good repute organized for the purpose of operat-

ing a professional football club shall be eligible for membership

except:

(a) No corporation, association, partnership or other entity

not operated for profit nor any charitable organization or entity

not presently a member of the League shall be eligible for

membership.

3.3(A) Each applicant for membership shall make a writ-

ten application to the Commissioner. Such application shall de-

scribe the type of organization and shall designate the city in

which the franchise of the applicant shall be located; such ap-

plication shall further describe and contain the following infor-

mation:

(1) The names and addresses of all persons who do or shall

own any interest or stock in the applicant, together with a state-

ment that such persons will not own or hold such interest or

stock for the benefit of any undisclosed person or organization.

(2) A detailed balance sheet of such company as of the date

of organization and a pro forma statement as of the time it shall

commence actual operation. A written financial statement shall

be required from the applicant and from anyone owning an in-

terest in any applicant, including stockholders and partners.

(3) If applicant is a corporation, a certified copy of the Arti-

cles of Incorporation, By-Laws and share certificate shall ac-

company such application provided, however. if the organiza-

tion of such corporation has not been commenced or completed

a detailed statement summarizing the proposed plan of opera-

tion and the capital structure thereof shall be furnished.

A-44

advertising, is individually generated and not shared

with other NFL members.

The NFL has its roots early in this century.

Throughout the years several other leagues appeared

usually only for a short time and without much success.

One entry, however, did succeed. In the early 1960’s the

American Football League (“AFL”) was formed with

eight teams. The two leagues were run separately until

1966 when the two agreed to a merger to be fully imple-

NOTE — (Continued)

(4) If applicant is partnership [sic], unincorporated associ-

ation or other entity, certified copy of the Articles of Co-Partner-

ship or organization government agreement shall accompany

such application.

(5) The names and addresses of all officers and directors.

(6) All applications shall contain a representation that

upon acceptance, the applicant will subscribe to and agree to

be bound by the Constitution, By-Laws, Rules and Regulations

of the League and any amendments or modifications thereof.

(B) Each application for membership shall be accompa-

nied by a certified check for Twenty-Five Thousand Dollars

($25,000.00). Upon approval of any application for member-

ship, an additional Twenty-Five Thousand Dollars ($25,000.00)

shall be paid to the League. If any application for admission is

rejected, the League shall repay to the applicant the sum of

Twenty-Five Thousand Dollars ($25,000.00) paid by the appli-

cant at the time of such application, less all expenses reason-

ably incurred in connection with the consideration and investi-

gation of such application.

(C) Upon receipt of any application for membership in the

League, the Commissioner shall conduct such investigation

thereof as he deems appropriate. Following the completion of

such investigation, the Commissioner shall submit the applica-

tion to the members for approval together with his recommen-

dation thereon, and such information thereon that the Com-

missioner deems pertinent. Each proposed owner or holder of

any interest in a membership, including stockholders in any

corporation, members of a partnership and all other persons

holding any interest in the applicant must be individually ap-

proved by the affirmative vote of not less than three-fourths or

20, whichever is greater. of the members of the League.

A-45

mented by 1970.'4 At the time they entered the merger --

agreement, the NFL had fifteen teams and the AFL had

nine.

Expansion beyond these twenty-four teams has

been sporadic. In 1967, the NFL awarded a franchise to

New Orleans. A year later, the AFL added Cincinnati. By

the time the merger was completed, the NFL consisted

of twenty-six teams and stayed at that number for sev-

eral years. In 1974, a year before plaintiffs’ application,

plans were made to add to two more franchises in Tampa

Bay and Seattle. These two teams first became active in

1976, shortly after plaintiffs’ application. Each new team

was manned by taking a maximum of three players from

each previously established team. No new NFL fran-

chise has been awarded to anyone since the time of

plaintiffs’ application. Although the NFL does expect to

award two more franchises in the foreseeable future,

they have not decided when, where or to whom.

No current NFL franchise operates in the Memphis

area. The closest NFL team location is St. Louis, Mis-

souri which is two hundred and eighty-one miles from

Memphis. !*

The Rules of the Game

[1] Rule 56 of the Federal Rules of Civil Procedure

authorizes a district court to enter summary judgment

where “the peladings, depositions, answers to interrog-

atories, and the admissions on file, together with the affi-

davits, if any, show there is no genuine issue as to any

material fact.” Fed.R.Civ.P. 56(c). Only those facts

which “tend to prove or disprove elements of the

disputed claim for relief’ need be examined before a de-

14. Congress exempted the merger from the antitrust laws.

Pub.L. No. 89-800, 80 Stat. 1515 (codified at 15 U.S.C. §1291

(1976)).

15. Mileage was provided by the American Automobile Associ-

ation.

A-46

cision is rendered. Chuy v. Philadelphia Eagles, 407

F.Supp. 717, 723 n. 9 (E.D.Pa. 1976), citing McCormick

on Evidence §185, at 434-35 (2d ed. E. Cleary 1972).

The court must recognize, however, that summary judg-

ment is a drastic remedy, resolve all doubts as to the ex-

istence of genuine issues of fact against the moving

party, and view all inferences from the facts in the light

most favorable to the parties opposing the motion. Conti-

nental Insurance Co. v. Bodie, 682 F.2d 436 (3d Cir.

1982).

[2-4] The Supreme Court has cautioned that sum-

mary judgment should be used sparingly in antitrust

cases. Poller v. Columbia Broadcasting System, Inc., 368

U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). However

as my former colleague then District Judge, now Circuit

Judge, Becker noted, a legion of cases granting either

partial or total summary judgment in antitrust cases

have been upheld by the Supreme Court and the Third

Circuit since Poller.'© Zenith Radio Corp. v. Matsushita

Electric Industrial Co., Ltd., 513 F.Supp. 1100, 1140 &

n. 53 (E.D.Pa. 1981), appeal docketed, Nos. 81-2331,

81-2331, 81-2332 and 81-2333 (3d Cir. Aug. 24, 1981).

In fact courts have since recognized that summary judg-

ment is particularly apropos in antitrust cases:

[T]he very nature of antitrust litigation wouid en-

courage summary disposition of such cases when

permissible. Not only do antitrust trials often en-

compass a great deal of expensive and time con-

suming discovery and trial work, but also, ... the

statutory private antitrust remedy of treble damages

affords a special temptation for the institution of

vexatious litigation. . . . If a trial would serve no use-

ful purpose, summary judgment is proper.

16. One court has stated that the Poller case has become the

“magic wand waved indiscriminately by those opposing summary

judgment motions in antitrust actions.” Mutual Fund Investors,

Inc. v. Putnam Management Co., 553 F.2d 620, 624 (9th Cir. 1977).

A-47

Lupia v. Stella D’Oro Biscuit Co., Inc., 586 F.2d 1163,

1167 (7th Cir. 1978), cert. denied, 440 US. 982, 99 S.Ct.

1791, 60 L.Ed.2d 242 (1979). See In Re Municipal Bond

Reporting Antitrust Litigation, 672 F.2d 436 (5th Cir.

1982); Solomon v. Houston Corrugated Box Co., Inc.,

526 F.2d 389 (5th Cir. 1976). Although a party’s right to

trial should be carefully guarded, it is nonetheless clear

that the filing of an antitrust complaint cannot insure a

right to trial absent any significant probative evidence

supporting the party’s claims. Harold Friedman, Inc. v.

Kroger, 581 F.2d 1068 (3d Cir. 1978), citing First Na-

tional Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct.

1575, 20 L.Ed.2d 569 (1968). Such a party should not be

permitted to proceed to trial in the hope of developing

evidence to support his claims. Parsons v. Ford Motor

Co., 669 F.2d 308 (5th Cir. 1982), cert. denied, ____ U.S.

—____, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982). Moreover,

summary disposition of antitrust cases is proper even

when employing the Rule of Reason. See Evans v. S:S.

Kresge Co., 544 F.2d 1184 (3d Cir. 1976), cert. denied,

433 U.S. 908, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977).

Thus summary judgment is an appropriate vehicle for

disposing of this matter.

Under the special rules of this match-up if the of-

fensive team does not score, the defendants win.

The Kickoff

Defendants first filed their motion for summary

judgment in March of 1981. In their initial response and

again at oral argument, plaintiffs contended that defen-

dants’ motion was premature as plaintiffs had not had

the opportunity for adequate discovery.'’ See

Mannington Mills, Inc. v. Congoleum Industries, Inc.,

610 F.2d 1059 (3d Cir. 1979). Agreeing that defendants

were “offsides”, I entered a Memorandum Order

17. At that time plaintiffs had several outstanding discovery re-

quests and had not yet deposed any of the defendants.

7 oe

A-48

permitting plaintiffs to pursue their discovery inquiry

but limiting the scope solely to matters relating to the

NFL’s decision not to grant plaintiffs an NFL franchise

in Memphis and to the NFL’s prior practices and stand-

ards concerning the awarding of new franchises since

the NFL-AFL merger.'® Plaintiffs subsequently re-

ceived additional material and deposed at length the four

members of the expansion committee and Mr. Rozelle.

[5, 6] Defendants renewed their motion for sum-

mary judgment in December 1981. Again plaintiffs as-

serted that still they had not had sufficient discovery. It

is well settled that the district court has discretion in

controlling the discovery process. Montecatini Edison

S.p.A. v. E.1. du Pont de Nemours & Co., 434 F.2d 70 (3d

Cir 1970). Where appropriate, a district court may limit a

party’s discovery as long as they are able to fully develop

their case. Staffin v. Greenberg, 672 F.2d 1196 (3d Cir.

1982). See First National Bank of Arizona v. Cities Ser-

vice Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569

(1968) (summary judgment in antitrust suit affirmed

despite petitioner’s claim it had been unduly restricted

in its discovery).

Plaintiffs have had more than sufficient discovery to

fully develop *w%r ease. All of the outstanding requests

to which defendants have refused to respond are not cal-

culated to lead to relevant evidence necessary to resolv-

ing this matter. As a result, I find that this case is now

ripe for a decision on the merits.

The First Half

(7, 8) I will first address plaintiffs’ Section 1

claim.'? In the development of antitrust law some cases

18. Plaintiffs had sought and received a volume of other mate-

rial from defendants as a result of earlier discovery requests.

19. Unlike professional baseball, professional football does not

enjoy the good fortune of being totally exempt from the antitrust

laws. Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728

(1972). In two areas only does football escape the antitrust laws’

A-49

viewed group boycotts as per se violations. See, e.g.,

Fashion Originators’ Guild of America v. Federal Trade

Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949

(1941); Klors, Inc. v. Broadway-Hale Stores, Inc., 359

U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). However

it became apparent that not all group decisions refusing

to do business with someone should be measured

against the strict per se criteria enunciated in these ear-

lier cases. See Silver v. New York Stock Exchange, 373

U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963). See also

L. Sullivan, Handbook of the Law of Antitrust §90

(1977). Per se violations should be found only where the

involved agreements are so clearly anticompetitive and

lacking in any redeeming quality that they can be con-

clusively presumed illegal without any further inquiry.

Broadcast Music, Inc. v. Columbia Broadcasting Sys-

tem, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1

(1979); National Society of Professional Engineers v.

United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d

637 (1978). A threshold question here then is whether

the decision of a professional sports league to deny an

assertedly qualified applicant a franchise is unques-

tionably anticompetitive.

[9] Almost twenty years ago, Judge Grim of this

court was called upon to decide the legality of the televi-

sion policies of the NFL in United States v. National

Football League, 116 F.Supp. 319 (E.D.Pa. 1953).?°

There he pointed out the differences between the pro-

duction of professional sporting contests and normal

business activity:

NOTE — (Continued)

watchful eye: joint agreements concerning the telecasting of

games; and the merger in 1966 of the AFL with the NFL, 15 U.S.C.

§1291 (1976).

20. Group decisions by the NFL concerning the telecasting of

their games is now covered by statute. See 15 U.S.C. §§1291-95

(1976).

A-50

Professional football is a unique type of busi-

ness. Like other professional sports which are or-

ganized on a league basis it has problems which no

other business has. The ordinary business makes

every effort to sell as much of its product or services

as it can. In the course of doing this it may and often

does put many of its competitors out of business.

The ordinary businessman is not troubled by the

knowledge that he is doing so well that his competi-

tors are being driven out of business.

Professional teams in a league, however, must

not compete too well with each other in a business

way. On the playing field, of course, they must com-

pete as hard as they can all the time. But it is not

necessary and indeed it is unwise for all the teams

to compete as hard as they can against each other in

a business way. If all the teams should compete as

hard as they can in a business way, the stronger

teams would be likeiy to drive the weaker ones into

financial failure. If this should happen not only

would the weaker teams fail, but eventually the

whole league, both the weaker and the stronger

teams, would fail, because without a league no team

can operate profitably.

It is particularly true in the National Football

League that the teams should not compete too

strongly with each other in a business way. The evi-

dence shows that in the National Football League

less than half the clubs over a period of years are

likely to be financially successful. There are always

teams in the League which are close to financial

failure. Under these circumstances it is both wise

and essential that rules be passed to help the

weaker clubs in their competition with the stronger

ones and to keep the League in fairly even balance.

Id. at 323. See Philadelphia World Hockey Club, Inc. v.

Philadelphia Hockey Club, Inc., 351 F.Supp. 462

A-51

(E.D.Pa. 1972). The view that the production of profes-

sional sports requires joint decisions of the different

teams in order to insure their continued existence has

become widely recognized. 16F J. von Kalinowski,

Antitrust Laws and Trade Regulation §50.01 (1982); R.

Bork, The Antitrust Paradox, Ch. 17, at 332 & 337-38

(1978). The Second Circuit recently reaffirmed this view

in North American Soccer League v. National Football

League, 670 F.2d 1249 (2d Cir. 1982), cert. denied, __

U.S. ___, 103 S.Ct. 499 (1982). Although rejecting the

NFL’s position that there was no Section 1 “contract,

combination . . . or conspiracy” because they were a sin-

gle entity, the court nevertheless recognized the need

for joint activity:

[T]he economic success of each franchise is de-

pendent on the quality of sports competition

throughout the league and the economic strength

and stability of other league members. Damage to or

losses by any league member can adversely affect

the stability, success and operations of other mem-

bers... . In view of this business interdependence

team owners, through their leagues, invariably re-

quire that the sale of a franchise be approved by a

majority of team owners rather than by the selling

owner alone.

Id. at 1253. Because of the unique character of profes-

sional sports, then, courts have rejected the per se test

and have routinely applied the Rule of Reason in decid-

ing antitrust suits concerning league practices. See, e.g.,

Brenner v. World Boxing Council, 675 F.2d 445 (2d Cir.

1982), cert. denied ___._ US. 103 S.Ct. 79, 74

L.Ed.2d 76 (1982); North American Soccer League v.

National Football League, supra; United States Trot-

ting Association v. Chicago Downs Association, 665

F.2d 781 (7th Cir. 1981); Neeld v. National Hockey

League, 594 F.2d 1297 (9th Cir. 1979); Smith v. Pro-

Football, Inc. 593 F.2d 1173 (D.C.Cir. 1979); Mackey v.

A-52

National Football League, 543 F.2d 606, 609 (8th Cir.

1976), cert. dismissed, 434 U.S. 801, 98 S.Ct. 28, 54

L.Ed.2d 59 (1977).

[10, 11] The Rule of Reason test as enunciated in

the landmark case of Chicago Board of Trade v. United

States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918),

mandates that a court determine whether the restraint

imposed merely regulates and thereby promotes compe-

tition or is one that may suppress or destroy competition.

In order to do this, the court:

must ordinarily consider the facts peculiar to the

business to which the restraint is applied; its condi-

tion before and after the restraint was imposed; the

nature of the restraint, and its effect, actual or prob-

able. The history of the restraint, the evil believed to

exist, the reason for adopting the particular remedy,

the purpose or end sought to be attained, are all rel-

evant facts.

Id. at 238, 38 S.Ct. at 244.2! Crucial to proving an

antitrust violation under the Rule of Reason is a showing

of anticompetitive intent or effect. Phil Tolkan Datsun,

Inc. v. Greater Milwaukee Datsun Dealers’ Advertising

Association, 672 F.2d 1280 (7th Cir. 1982); Tose v. First

21. Plaintiffs ask that this court apply the test announced by

the court in Denver Rockets v. All-Pro Management, Inc., 325

F.Supp. 1049 (C.D.Cal. 1971). That court viewed the Silver case as

(2) the group action is intended (a) to reach a result consistent with

the policy justifying self-regulation; (b) is reasonably related to that

goal; and (c) is no more expansive than necessary; and (3) there are

safeguards assuring the restraint is not arbitrary and

which provides a basis for judicial review. Id. at 1064-65. This test

not been applied by the Third Circuit. Thus I will use instead

traditional Rule of Reason test, this test having been recently

reaffirmed by the Third Circuit in Fleer Corp. v. Topps Chewing

., 658 F.2d 139 (3d 1981), cert. denied, .§.: U.S. __,

102 Ct 1715, 17 L.Ed.2d 137 (1982)

A-53

Pennsylvania Bank, N.A., 648 F.2d 879, 892 & n. 17 (3d

Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 390, 70

L.Ed.2d 208 (1981); Associated Radio Service Co. v.

Page Airways, Inc., 624 F.2d 1342 (5th Cir. 1980), cert.

denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 226

(1981). In this regard, the case of Levin v. National Bas-

ketball Association, 385 F.Supp. 149 (S.D.N.Y.1974) is

instructive.

In Levin, the plaintiffs were two businessmen who

had an agreement to buy the Boston Celtics basketball

team. Before this deal could be consummated, it had to

be approved by three-fourths of the members of the Na-

tional Basketball Association (“NBA”), a league compa-

rable to the NFL. The NBA failed to approve the sale.

The reasons for the disapproval were disputed by

the parties. Plaintiffs alleged they were rejected only be-

cause they were friendly with an obstreperous and

disliked member of the NBA. Defendants on the other

hand claimed that to permit the transfer would result in

a violation of a conflict of interest provision of the NBA

constitution. The court decided, however, that the rea-

son for the disapproval was irrelevant because whatever

the reason, it was not anticompetitive.

Here the plaintiffs wanted to join with those unwill-

ing to accept them, not to compete with them, but to

be partners in the operation of a sports league for

plaintiffs’ profit. Further, no matter which reason

one credits for the rejection, it was not an anti-com-

petitive reason. Finally, regardless of the financial

impact of this rejection upon plaintiffs, if any, the

exclusion of the plaintiffs from membership in the

league did not have an anti-competive effect nor an

effect upon the public interest.

Id. at 152 (footnote omitted) (emphasis in original). Be-

cause defendants’ actions were not prompted by any

A-54

anticompetitive intent or effect, the court granted sum-

mary judgment in defendants’ favor. ?

The reasoning in the Levin case is applicable to

plaintiffs here. They do not want to compete with the

NFL. They tried that and failed. Now they seek to join

the asserted antitrust violaters and share all the advan-

tages of an established organization. Plaintiffs try to es-

chew this obvious conclusion by emphasizing that a

franchise’s revenue does not come solely from jointly

earned profits; some money is earned by individual pro-

motion, for example, of team paraphernalia and from

local broadcast revenues. This does not change the obvi-

ous fact that the ability to earn these individual profits is

an indirect benefit of being a member of the league. A

franchise's popularity is inextricably bound up with the

quality of its competition on the playing field and the re-

sulting excitement and sense of team loyalty. If the Mid-

South Grizzlies played inept teams, their revenue gener-

ating potential would no doubt drop. Plaintiffs simply are

22. Two commentators on the law of sports have expressed the

following view concerning the awarding of sports franchises:

The admission practices of sports leagues present a different

concern. An analysis of the relationship between clubs within a

league suggests that the various league members do not com-

pete with one another in an economic sense. Rather, a league is

more like a partnership. While each club initially contributes its

own capital, the various participants to a large extent share in

the joint profits of the venture . This participation in profits is

achieved through various arrangements, such as the pooling of

television receipts and the division of gate receipts between

home and visiting clubs. Thus, a decision on access to member-

ship is basically a decision as to whether particular individuals

(or their business entities) will be allowed to participate in the

partnership venture. Since the various members pool their ef-

forts and do not engage in economic competition with one an-

other, an adverse decision on membership in the usual case has

no appreciable impact on the level of competition which will

take place.

J. Weistart & C. Lowell, The Law of Sports §3.16, at 315 (1979)

(footnotes omitted ).

A-55

not competitors of defendants who have been injured by

any anticompetitive behavior of defendants.

In fact, were plaintiffs to prevail, the receipt of a

franchise would be more anticompetitive than their fail-

ing to obtain one. Were plaintiffs’ premise embraced by

this court — that all acceptable applicants for franchises

be given one—then motivation to form a rival league

would be substantially dampened. See J. Weistart & C.

Lowell, The Law of Sports §5.11, at 751 (1979).

Moreover, defendants acted fairly and objectively in

deciding to reject plaintiffs’ application. They met with

plaintiffs at least three times over the course of four

months to hear plaintiffs out and to explain the reasons

why neither plaintiffs’ nor any other application would

be considered on the merits.?* Rozelle and the Expan-

sion Committee arranged a meeting between plaintiffs

and the entire league membership despite their own be-

lief and recommendation that further expansion not be

initiated at that time. Plaintiffs’ were thus afforded an

opportunity to dissuade the membership from following

the Committee’s recommendation. Furthermore,

Rozelle again reiterated the reasons for refusing plain-

tiffs application in a letter dated December 29, 1975.

Exhibit 3B, Motion of Defendants for Summary Judg-

ment and Addenda. There is no evidence that plaintiffs

were treated in a manner less favorably than any other

party expressing an interest in obtaining a franchise.

The fact defendants failed to fully consider plain-

tiffs’ application on its merits does not suggest a contrary

result. Defendants had substantial business reasons to

justify their decision not to plan any further expansion at

the time of plaintiffs’ application. They were in the mid-

dle of assimilating the first two new teams in several

23. In addition Mr. Bassett testified that he met with Mr.

Rozelle another three or four times as well as talked with him on the

on three or four occasions. Bassett Deposition, January

21, 1981, at 103.

A-56

years each of which took three players from each exist-

ing team. Moreover, the NFL had several lawsuits

against it which were creating a great deal of uncer-

tainty as to the future of several NFL rules and policies.

Given these factors, it was a business judgment that fur-

ther expansion at that time would be foolhardy. Thus, an

in depth inquiry into plaintiffs’ application would have

been a waste of defendants’ and plaintiffs’ time. To re-

quire such busywork for each application which was

submitted to the defendants when it was already decided

not to expand would simply be bad business.?* It just

does not make sense to pass judgment on a potential

franchisee when no franchise is available and it would

be equally as foolish to commit a future franchise to an

entity which may not even be in existence or otherwise

fail to qualify on the date the franchise becomes avail-

able.

[12] Recognizing the irrelevance of their game plan

plaintiffs try an end run based upon their allegation that

the defendants’ sole motivation for rejecting them as a

franchisee was their past involvement with the WFL.

See J. Weistart & C. Lowell, supra §5.11, at 756-57.

Plaintiffs fail, however, to muster any substantial evi-

dence to support this assertion. Even where a state of

mind is material in an antitrust case, there must be some

demonstration that there is a sufficient quantum of evi-

dence to permit a party to go to the jury. White v. Hearst

Corp., 669 F.2d 14, 17 (1st Cir. 1982).

The only evidence to support plaintiffs’ allegation

comes from the testimony of Mr. Bassett. At his deposi-

tion Mr. Bassett stated that some people had expressed

the opinion that his past WFL affiliation would hurt his

24. Mr. Rozelle testified that he has received inquiries from

twenty to thirty cities about obtaining an NFL franchise since he

became Commissioner in 1960. It is not clear how many of these

submitted a formal application. Rozelle Deposition, November 12.

1981, at 28.

A-57

chances at obtaining an NFL franchise.?° Some of this is

speculation and some is hearsay. This is hardly the kind

of play upon which to rely for an antitrust score.2© Of

particular importance, however, is that Bassett admitted

these views were personal to the speakers and did not

represent the NFL’s position. Bassett Deposition, Janu-

ary 21, 1981, at 111-21. Notably, Bassett did not testify

that similar statements were voiced by Rozelle?’ or any

member of the Expansion Committee, all of whom al-

ready had decided further expansion would be unwise

and recommended this course to the NFL membership.

It is clear that if any mind-set existed, it was against im-

mediate expansion and not against plaintiffs as fran-

chise applicants.

[13] In plaintiffs’ next series of downs they concen-

trate on the essential facility doctrine.?® See, e.g., Otter

Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct.

1022, 35 L.Ed.2d 359 (1973); Hecht v. Pro-Football,

25. These people are Mr. Lynn, then General Manager of the

Minnesota Vikings; Mr. Robbey, the owner of the Miami Dolphins;

Mr. Thomas, then General Manager of the Baltimore Colts; and pos-

sibly Mr. Finks of the Chicago Bears. In addition, Mr. Keating, an

NFL player representative, and Mr. Czonka, a former NFL and

WFL player, stated they had heard Mr. Robbey express disfavor of

Mr. Bassett’s WFL activities. Lastly, a Mr. Mix, a former player and

player representive said he had heard similar thoughts expressed by

some NFL people. Bassett Deposition, January 21, 1981, at 111-21.

26. Indeed, it seems to me that for this play to have any chance

at all it should be made in the context of the Memphis franchise

having been awarded to another applicant.

27. In fact, Mr. Bassett testified Mr. Rozelle assured him his

WFEL past would not be held against him. Bassett Deposition, Janu-

ary 21, 1981, at 116 & 121.

28. The essential facility doctrine applies in the following situ-

ation: “|I)f a group of competitors, acting in concert, operate a com-

mon facility and if due to natural advantage, custom or restrictions

of scale, it is not feasible for excluded competitors to duplicate the

facility, the competitors who operate the facility must give access to

the excluded competitors on reasonable non-discriminatory terms.”

L. Sullivan, Handbook of the Law of Antitrust §48, at 131 (1977).

A-58

Inc., 570 F.2d 982 (D.C.Cir.1977), cert. denied, 436

U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978). Plain-

tiffs’ reliance on this doctrine is misplaced. The doctrine

is applicable only where a party is being denied access to

something necessary for that party to engage in business

which is controlled by his competitors. The Hecht case is

illustrative.

In Hecht, plaintiffs were a group of promoters who

had tried and failed to obtain an AFL franchise in Wash-

ington, D.C.2° The apparent reason for this failure was

the plaintiffs’ inability to procure a contract with the only

stadium suitable for professional football play due to a

clause in the contract the stadium owner had with the

NFL franchisee in the area which prohibited the sta-

dium being leased for use by any other professional foot-

ball team. The Hecht court held that the trial court erred

in failing to instruct the jury concerning the essential fa-

cility doctrine.

[14, 15] In Hecht it was clear that a competitor was

being denied access to an essential facility by a rival

team in a different league. Such is not the case here. As

previously stated, plaintiffs wish to join with defendants

not compete with them. Nor are the defendants denying

the Mid-South Grizzlies access to any stadium. More-

over, it is not economically infeasible for plaintiffs to en-

gage in professional football. Hecht v. Pro-Football, Inc.,

supra, at 992. Although not an easy task, plaintiffs are

free to again attempt to form a rival football league.*°

29. Plaintiffs’ attempt took place prior to the AFL's merger

with the NFL in 1966.

30. In Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139

(3d Cir. 1981), cert. denied, U.S. 102 S.Ct. 1715, 72

L.Ed.2d 137 (1982), a manufacturer of bubble gum sued a rival

bubble gum manufacturer and the Major League Baseball Players

Association claiming the defendants had excluded effective compe-

tition in the sale of baseball cards because of their exclusive licens-

ing contracts. The Third Circuit held that these contracts did not

foreclose competition in part because Fleer could still compete for

A-59

Plaintiffs concede a history of a number of leagues ap-

pearing over the years. See Plaintiffs’ Brief in Opposition

to Defendant's Motion for Summary Judgment at 4-9.

The AFL proved the task of forming a rival league is not

impossible. Indeed, a new football league, the United

States Football League (“USFL”), is currently being or-

ganized and John Bassett, the chief executive officer of

the plaintiff Mid-South Grizzlies partnership, is the

owner of the Tampa franchise in that league.*! See The

Philadelphia Inquirer, May 16, 1982, Section E, at 1.%?

[16] For similar reasons, plaintiffs’ reliance on sev-

eral trade association cases is also inappropriate. See,

e.g., United States v. Realty Multi-List, Inc., 629 F.2d

NOTE — (Continued )

licensing contacts with minor league players which, in time, may

become major league players. The fact this process may take several

years to become profitable, the court found, did not make the defen-

dants’ agreements anticompetitive.

31. Judicial notice may be used in resolving a motion for sum-

mary judgment. 10 C. Wright & A. Miller, Federal Practice and Pro-

cedure §2723 (1973).

32. Even were plaintiffs true competitors with defendants, I

have serious doubts the essential facility doctrine would apply. The

cases applying the doctrine involved the denial of access to physical

structures or discreet services. See, e.g., Otter Tail Power Co. v.

United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973)

(electrical transmission lines); Silver v. New York Stock Exchange,

373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963) (direct tele-

phone access to stock exchange for instantaneous communication);

United States v. Terminal R.R. Ass'n, 224 U.S. 383, 32 S.Ct. 507,

56 L.Ed. 810 (1912) (railroad switching facilities); Hecht v. Pro-

Football, Inc., 570 F.2d 982 (D.C.Cir. 1977), cert. denied, 436 U.S.

956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978) (football stadium); He-

lix Milling Co. v. Terminal Flour Mills Co., 523 F.2d 1317 (9th Cir.

1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642

(1976) (flour mill); United States v. Standard Oil Co., 362 F.Supp.

1331 (N.D.Cal. 1972), affd, 412 U.S. 924, 93 S.Ct. 2750, 37

L.Ed.2d 152 (1973) (fuel storage facilities). In contrast, plaintiffs

seek to participate in an entire business organization. Thus, the

principles enunciated in these cases seem inapposite.

:

i)

¥

.

p< a . +. wv. He

A-60

1351 (5th Cir. 1980). In such cases, the courts have re-

quired that the association’s membership criteria be fair,

reasonable and the least restrictive as possible. The

philosophical foundation for this rule is stated in the Re-

alty case:

When a group of competitors like the member-

ship of RML [the trade association] join together to

cooperate in the conduct of their business, there

naturally arise antitrust suspicions. As Adam Smith,

the archangel of the free enterprise system, ob-

served, “People of the same trade seldom meet, even

for merriment or diversion, but the conversation

ends in a conspiracy against the public. .. .”

Id. at 1370 (citation omitted). Because the potential

harm to outsiders is so great when their competitors are

brought together through a trade association, the law re-

quires access to the group be available to anyone who

meets fair criteria. Id. at 1371-72; Associated Press v.

United States, 326 U.S. 1,65 S.Ct. 1416, 89 L. Ed. 2013

(1945).

{17] The evil that this rule is designed to thwart is

absent in the case at bar. As stated earlier, the produc-

tion of professional sports necessarily requires joint

planning and decision making. Unlike normal business

competitors, the teams are interdependent, North

American Soccer League v. National Football League,

670 F.2d at 1251, and while the economic success of one

team does not necessarily mean the success of another

member, the stability which is derived from membership

in a league produces a better product which is to the

benefit of the public at large. They do not compete in the

same manner as the independent businesses in these

trade association cases. Thus, these cases are inapposite.

[18] Based upon the undisputed material facts |

conclude as a matter of law that a Section 1 violation has

not been made out. Thus, plaintiffs are scoreless at

halftime.

A-61

The Second Half

Finding no Section 1 violation is not the end of the

ball game. Plaintiffs also assert that defendants’ behavior

constitutes an unlawful act of monopolization proscribed

by Section 2 of the Sherman Act. This effort also fails to

penetrate the NFL's defensive line.

[19-21] There is no doubt that the NFL currently

has a monopoly in the United States in major league

football.** However, the possession of monopoly power

in a relevant market alone is not enough to establish an

antitrust violation. Berkey Photo, Inc. v. Eastman Kodak

Co., 603 F.2d 263 (2d Cir. 1979), cert. denied, 444 U.S.

1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). The

antitrust laws were not intended to punish a business

that has become a monopoly because of a “superior prod-

uct, business acumen, or historic accident.” United

States v. Grinnell, 384 U.S. 563, 571, 86 S.Ct. 1698,

1704, 16 L.Ed.2d 778 (1966).** The law does require

that a monopoly not abuse its power. Thus where a busi-

ness possessing monopoly power willfully acquires or

maintains such power, it will incur a penalty. Id. To

avoid a Section 2 violation, then, a monopoly must “re-

frain at all times from conduct directed at smothering

competition.” Berkey Photo, Inc. v. Eastman Kodak Co.,

603 F.2d at 275. Put another way, a monopoly abuses its

power when it behaves in an “unreasonably exclusion-

33. Judge Learned Hand in United States v. Aluminum Co. of

America, 148 F.2d 416 (2d Cir. 1945), found a 90% share of a rel-

evant market conclusive evidence of monopoly power. Plaintiffs al-

lege that the relevant product market is major league professional

football; the relevant geographic market is the United States, with a

submarket in the “Mid-South” area comprised of Tennessee, Mis-

sissippi and Arkansas. Defendants do not dispute these contentions

and | find them to be acceptable.

34. Judge Hand phrased it in this manner: “The successful

competitor, having been urged to compete, must not be turned

upon when he wins.” United States v Aluminum Co. of America,

148 F.2d at 430.

A-62

ary manner vis-a-vis rivals or potential rivals. .. .” Byars

v. Bluff City News Co., Inc., 609 F.2d 843, 853 (6th Cir.

1979); Borden, Inc. v. Federal Trade Commission, 674

F.2d 498, 513 (6th Cir. 1982).

[22] Once again plaintiffs fail to get the necessary

yardage. Plaintiffs simply are not rivals or potential rivals

of defendants except on the playing field. Moreover, de-

spite plaintiffs’ failure to obtain a franchise, they are still

free to promote a rival league. The actions plaintiffs com-

plain of here have done nothing to prevent the formation

of a rival league or the fielding of a team in Memphis,

Tennessee. Thus, no Section 2 violation has been shown

as a matter of law. Plaintiffs fail to score again and the

time has run out on the clock. Defendants win.

Post Game Analysis

I do not hold that the NFL and its members cannot

be guilty of anticompetitive behavior but only that the

denial upon demand of a new National Football League

franchise to a qualified person does not run afoul of the

antitrust laws.

Defendants are entitled to summary judgment on

plaintiffs’ claims under both Sections 1 and 2 of the

Sherman Act.

A-63

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MID-SOUTH GRIZZLIES, et al

Civil Action

No. 79-4373

NATIONAL FOOTBALL LEAGUE, et al :

MEMORANDUM ORDER

This is an antitrust action against the National Foot-

ball League (“NFL”) and its composite members. Plain-

tiffs are individuals who were active in the formation of

the World Football League (“WFL”), a competitor of the

NFL. The WFL terminated operations on October 22,

1975.

The complaint alleges that plaintiffs organized a

professional football team named the Mid-South

Grizzlies; that om November 18, 1975 they applied for a

NFL franchise for Memphis, Tennessee, a city that the

NFL had previously designated as capable of financially

sustaining a franchise; and that they satisfied all of the

criteria for membership of the NFL. In Count One of the

two-count complaint, plaintiffs allege that the defen-

dants never considered the merits of their application for

a franchise but rather, in retaliation for their participa-

tion in the WFL, have boycotted and collectively refused

to deal with them. Plaintiffs contend that this conduct

violates Section 1 of the Sherman Act, 15 U.S.C. §1.

Count Two of the complaint alleges a violation of

Section 2 of the Sherman Act, 15 U.S.C. §2. Specifically,

it is contended that since the Fall of 1975, defendants

have combined and conspired “to maintain complete

control over major league professional football activities

. 9

* ‘ ’

:

A-64

in the United States, to eliminate all competitors and po-

tential competitors and to punish, intimidate and re-

strain plaintiffs and all other participants in the WFL

from participation in major league professional football.”

Complaint 959.

Defendants have filed a motion for summary judg-

ment pursuant to Fed.R.Civ.P. 56. Among the docu-

ments submitted in support of the motion are the affida-

vits of Pete Rozelle, Commissioner of the NFL and

Daniel M. Rooney, Chairman of the Expansion Commit-

tee of the NFL. In their affidavits, these officials give a

variety of reasons for the NFL’s refusal to grant the

plaintiffs’ application for admission to the NFL.

Plaintiffs vigorously argue, however, that the grant-

ing of a motion for summary judgment at this time

would be premature because they have not had the op-

portunity to conduct discovery in order to test the accu-

racy of the Rozelle and Rooney affidavits. Defendants

have resisted plaintiffs requests for voluminous docu-

ments and answers to numerous interrogatories, claim-

ing that they are umnecessary and unreasonable and

that compliance would be unduly burdensome. A district

court has discretion to protect a party from answering

interroratories or producing documents if it would prove

unduly burdensome or unreasonable. Fed.R.Civ.P.

26(c); Bowman v. General Motors Corp., 64 F.R.D. 62,

68 n.6 (E.D.Pa. 1974).

I agree that plaintiffs should have the opportunity to

test the sufficiency of these affidavits, see Costlow v.

United States, 552 F.2d 560, 564 (3d Cir. 1977), but this

does not mean that they are entitled to embark on a

“fishing expedition” through defendants’ records or to

harass them with countless interrogatories. Accordingly,

to protect the defendants but at the same time to permit

the plaintiffs an opportunity to obtain adequate discov-

a

A-65

ery to support their claim, it is hereby ORDERED, pur-

suant to Fed.R.Civ.P. 26(c) and Local Rule 21, that:

1. Plaintiffs and defendants complete all their

discovery before 5:00 p.m. on October 31, 1981.

2. Plaintiffs limit their requests for production

of documents and interrogatories solely to matters

relating to the NFL’s decision not to grant the plain-

tiffs a NFL franchise at Memphis, Tennessee and to

the NFL's prior practices and standards with re-

spect to the admission of new franchise into the

league since the merger of the NFL and the Ameri-

can Football League.

3. Plaintiffs’ depositions of defendants be

limited to Pete Rozelle, Daniel M. Rooney and other

members of the NFL Expansion Committee and

their inquiry be limited solely to matters relating to

the NFL's decision to deny plaintiffs’ application for

a franchise at Memphis, Tennessee and the NFL’s

prior practices and standards with respect to the ad-

mission of new franchises into the league since the

merger of the NFL and the American Football

League.

After completion of discovery on October 31,

1981, defendants may renew their motion for sum-

mary judgment and supplement it with any materi-

als made pertinent by Rule 56, but must do so by

5:00 p.m. on November 16, 1981.

5. Plaintiffs must file their opposition to defen-

dants’ renewal of their motion with all materials per-

tinent thereto no later than 5:00 p.m. on November

30, 1981.

6. If they so desire, defendants may file a reply

brief to plaintiffs’ opposition no later than 5:00 p.m.

on December 8, 1981.

A-66

7. If they so desire, plaintiffs may file a

counter-reply to defendants’ reply no later than 5:00

p.m. on December 15, 1981.

BY THE COURT:

JOSEPH L. McGLYNN, JR., J

Date: 8/13/81

A-67

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

THE MID-SOUTH GRIZZLIES (a Joint Venture);

JOHN EDWARD BOSACCO; MID-SOUTH

GRIZZLIES (a Limited Partnership); and CON-

SOLIDATED INDUSTRIES, INC.,

Appellants

v.

THE NATIONAL FOOTBALL LEAGUE, an

unincorporated association; BALTIMORE FOOT-

BALL CLUB, INC.; BUFFALO BILLS, INC.;

CHARGERS FOOTBALL COMPANY; CHICAGO

BEARS FOOTBALL CLUB, INC.; CINCINNATI

BENGALS, INC.; CLEVELAND BROWNS, INC.;

DALLAS COWBOYS FOOTBALL CLUB, INC.;

DETROIT LIONS, INC.; FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.; HOUSTON OIL-

ERS, INC.; KANSAS CITY CHIEFS FOOTBALL

CLUB, INC.; LOS ANGELES RAMS FOOTBALL

COMPANY; MIAMI DOLPHINS, LTD.; MINNE-

SOTA VIKINGS FOOTBALL CLUB, INC.; NEW

ENGLAND PATRIOTS FOOTBALL CLUB, INC.;

NEW YORK FOOTBALL GIANTS, INC.; NEW

YORK JETS FOOTBALL CLUB, INC.; NEW OR-

LEANS SAINTS LOUISIANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.; PHILADELPHIA

EAGLES FOOTBALL CLUB, INC.; PITTSBURGH

STEELERS SPORTS, INC.; PRO-FOOTBALL,

INC.; ROCKY MOUNTAIN EMPIRE SPORTS,

INC.; SAN FRANCISCO FORTY NINERS; SEAT-

TLE PROFESSIONAL FOOTBALL, A General

Partnership; ST. LOUIS FOOTBALL CARDINALS

A-68

COMPANY; TAMPA BAY AREA NFL FOOTBALL,

INC. AND PETE ROZELLE

(D.C. Civil No. 79-4373)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: SEITZ, Chief Judge; GIBBONS and ROSENN,

Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Pennsylvania and was argued by counsel September

13, 1983.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court, entered November 5, 1982, be and the

same is hereby affirmed. Costs taxed against appellants.

ATTEST:

Clerk

November 4, 1983

Certified as a true copy and issued in lieu

of a formal mandate on February 7, 1984.

Test:

Chief Deputy Clerk, U.S. Court of Appeals

for the Third Circuit

A-69

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

THE MID-SOUTH GRIZZLIES (a Joint Venture);

JOHN EDWARD BOSACCO; MID-SOUTH

GRIZZLIES (a Limited Partnership); and CON-

SOLIDATED INDUSTRIES, INC.,

Appellants

v.

THE NATIONAL FOOTBALL LEAGUE, an

unincorporated association; BALTIMORE FOOT-

BALL CLUB, INC.; BUFFALO BILLS, INC.;

CHARGERS FOOTBALL COMPANY; CHICAGO

BEARS FOOTBALL CLUB, INC.; CINCINNATI

BENGALS, INC.; CLEVELAND BROWNS, INC.;

DALLAS COWBOYS FOOTBALL CLUB, INC.;

DETROIT LIONS, INC.; FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.; HOUSTON OIL-

ERS, INC.; KANSAS CITY CHIEFS FOOTBALL

CLUB, INC.; LOS ANGELES RAMS FOOTBALL

COMPANY; MIAMI DOLPHINS, LTD.; MINNE-

SOTA VIKINGS FOOTBALL CLUB, INC.; NEW

ENGLAND PATRIOTS FOOTBALL CLUB, INC.;

NEW YORK FOOTBALL GIANTS, INC.; NEW

YORK JETS FOOTBALL CLUB, INC.; NEW OR-

LEANS SAINTS LOUISIANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.; PHILADELPHIA

EAGLES FOOTBALL CLUB, INC.; PITTSBURGH

STEELERS SPORTS, INC.; PRO-FOOTBALL,

INC.; ROCKY MOUNTAIN EMPIRE SPORTS,

INC.; SAN FRANCISCO FORTY NINERS; SEAT-

TLE PROFESSIONAL FOOTBALL, A General

Partnership; ST. LOUIS FOOTBALL CARDINALS

A-70

COMPANY; TAMPA BAY AREA NFL FOOTBALL,

INC. AND PETE ROZELLE

(D.C. Civil No. 79-4373)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge; ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM,

SLOVITER, BECKER and ROSENN, Circuit Judges

The petition for rehearing filed by appellants in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied.

By the Court,

Judge

Dated: December 5, 1983

A-71

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

December 23, 1983

Steve Alexander, Esquire

Sprague & Rubenstone

Suite 400, Wellington Bldg.

135 S. 19th Street

Phila., PA 19103

Re: The Mid-South Grizzlies, etc., Appellants vs.

The National Football League, etc.

No. 82-1793

Dear Counsel:

Enclosed herewith is a conformed copy of order

filed today staying the issuance of the mandate to Janu-

ary 4, 1984, in the above-entitled case.

If during the period of the stay we receive notifica-

tion from the Clerk of the Supreme Court that a petition

for writ of certiorari has been filed, the stay shall con-

tinue until final disposition by the Supreme Court.

Very truly yours,

Sally Mrvos, Clerk

By

Deputy Clerk

CH

enc.

cc: Gary Green, Esquire

Morris L. Weisberg, Esquire

(James C. McKay, Esquire

(Constance J. Chatwood, Esquire

A-72

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

The Mid-South Grizzlies, etc., et. al., Appellants

v.

The National Football League, etc., et. al.

Pursuant to Rule 41(b) of the Federal Rules of Ap-

pellate Procedure, it is ORDERED that issuance of the

certified judgment in lieu of formal mandate in the

above cause be, and it is hereby stayed until January 4,

1984.

Circuit Judge

Dated: Dec. 23, 1983

A-73

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

January 9, 1984

Steven Alexander, Esquire

Sprague & Rubenstone

Suite 400, Wellington Bldg.

135 S. 19th St.

Phila., PA 19103

Re: The Mid-South Grizzlies, etc., et al., Appellants

vs. The National Football League, etc., et. al.

No. 82-1793

Dear Mr. Allexander: /further

Enclosed herewith is a conformed copy of order

filed today staying the issuance of the mandate to Febru-

ary 3, 1984, in the above-entitled case.

If during the period of the stay we receive notifica-

tion from the Clerk of the Supreme Court that a petition

for writ of certiorari has been filed, the stay shall con-

tinue until final disposition by the Supreme Court.

Very truly yours,

Sally Mrvos, Clerk

By:

Betty J. Robinson

Deputy Clerk

A-74

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

The Mid-South Grizzlies, etc., et. al., Appellants

v.

The National Football League, etc., et. al.

Pursuant to Rule 41(b) of the Federal Rules of Ap-

pellate Procedure, it is ORDERED that issuance of the

certified judgment in lieu of formal mandate in the

above cause be, and it is hereby fi, ther stayed until Feb-

ruary 3, 1984.

Circuit Judge

Dated: Jan. 9, 1984

A-75

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No.82-1793

THE MID-SOUTH GRIZZLIES, etc., et al.,

Appellants

v.

THE NATIONAL FOOTBALL LEAGUE, etc., et al.

(D. C, Civil No. 79-4373)

It appearing that a panel of this Court filed an Opin-

ion and entered a Judgment on November 4, 1983, and

it further appearing that appellants filed a timely petition

for rehearing on November 18, 1983 which petition was

denied on December 5, 1983, and it further appearing

that the mandate was stayed to and including February

3, 1984 and it further appearing that appellants filed a

motion on February 2, 1984 for a further stay of the

mandate to and including March 5, 1984, and it further

appearing that the Clerk's office erroneously issued the

certified judgment in lieu of formal mandate on Febru-

ary 7, 1984, while the motion was still pending before

the Court, all in the above-entitled case,

It is ORDERED that the certified judgment issued

February 7,1984, be and hereby is recalled.

For the Court,

Chief Deputy Clerk

Dated: February 8, 1984

A-76

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

THE MID-SOUTH GRIZZLIES (a Joint Venture);

JOHN EDWARD BOSACCO; MID-SOUTH

GRIZZLIES (a Limited Partnership); and CON-

SOLIDATED INDUSTRIES, INC.,

Appellants

v.

THE NATIONAL FOOTBALL LEAGUE, an

bie

unincorporated association; BALTIMORE FOOT-

BALL CLUB, INC.; BUFFALO BILLS, INC.;

CHARGERS FOOTBALL COMPANY; CHICAGO

BEARS FOOTBALL CLUB, INC.; CINCINNATI

BENGALS, INC.; CLEVELAND BROWNS, INC.;

DALLAS COWBOYS FOOTBALL CLUB, INC.;

DETROIT LIONS, INC.; FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.; HOUSTON OIL-

ERS, INC.; KANSAS CITY CHIEFS FOOTBALL

CLUB, INC.; LOS ANGELES RAMS FOOTBALL

COMPANY; MIAMI DOLPHINS, LTD.; MINNE-

SOTA VIKINGS FOOTBALL CLUB, INC.; NEW

ENGLAND PATRIOTS FOOTBALL CLUB, INC.;

NEW YORK FOOTBALL GIANTS, INC.; NEW

YORK JETS FOOTBALL CLUB, INC.; NEW OR-

LEANS SAINTS LOUISIANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.; PHILADELPHIA

EAGLES FOOTBALL CLUB, INC.; PITTSBURGH

STEELERS SPORTS, INC.; PRO-FOOTBALL,

INC.; ROCKY MOUNTAIN EMPIRE SPORTS,

INC.; SAN FRANCISCO FORTY NINERS; SEAT-

TLE PROFESSIONAL FOOTBALL, A General

cag

A-77

Partnership; ST. LOUIS FOOTBALL CARDINALS

COMPANY; TAMPA BAY AREA NFL FOOTBALL,

INC. AND PETE ROZELLE

(D.C, Civil No, 79-4373)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: SEITZ, Chief Judge;

GIBBONS and ROSENN, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Pennsylvania and was argued by counsel September

13, 1983.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court, entered November 5, 1982, be and the

same is hereby affirmed. Costs taxed against appellants.

ATTEST:

Clerk

November 4, 1983

Certified as a true copy and issued in lieu

of a formal mandate on February 7, 1984.

Test:

Chief Deputy Clerk, U.S. Court of Appeals

for the Third Circuit

A-78

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

THE MID-SOUTH GRIZZLIES, etc., et al.,

Appellants

Vv,

THE NATIONAL FOOTBALL LEAGUE, etc., et al.

Pursuant to Rule 41(b) of the Federal Rules of Ap-

pellate Procedure, it is ORDERED that issuance of the

certified judgment in lieu of formal mandate in the

above cause be, and it is hereby stayed until March 5,

1984.

s/ JOHN J. GIBBONS

Circuit Judge

Dated: February 13, 1984

— are

A-79

NOTICE OF APPEAL

TO

U.S. COURT OF APPEALS, THIRD CIRCUIT

U.S. DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

U.S. TAX COURT

THE MID-SOUTH GRIZZLIES (A

Joint Venture); JOHN EDWARD

BOSACCO; MID-SOUTH

GRIZZLIES (A Limited Partner-

ship); and CONSOLIDATED

INDUSTRIES, INC.

v.

THE NATIONAL FOOTBALL

LEAGUE, an unincorporated as-

sociation, et al.

BALTIMORE FOOTBALL CLUB,

INC.;

BUFFALO BILLS, INC.;

CHARGERS FOOTBALL

COMPANY;

CHICAGO BEARS FOOTBALL

CLUB, INC.;

CINCINNATI BENGALS, INC.:

CLEVELAND BROWNS, INC.;:

DALLAS COWBOYS FOOTBALL

CLUB, INC.;

DETROIT LIONS, INC.;

FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.;

HOUSTON OILERS, INC.;

KANSAS CITY CHIEFS Foot.

BALL CLUB, INC.;

LOS ANGELES RAMS FOOTBALL >

COMPANY;

Circuit Court

Docket Number

82-1793

District or

Tax Court

Docket No. CA

79-4373JLM

District or

Tax Court

Judge Hon. Joseph L.

McGlynn, Jr.

No.

A-80

MIAMI DOLPHINS, LTD.;

MINNESOTA VIKINGS FOOT-

BALL CLUB, INC.;

NEW ENGLAND PATRIOTS

FOOTBALL CLUB, INC.;

NEW YORK FOOTBALL GIANTS,

INC.;

NEW YORK JETS FOOTBALL

CLUB, INC.;

NEW ORLEANS SAINTS LOUISI-

ANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.;

PHILADELPHIA EAGLES FOOT-

BALL CLUB, INC.; .

PITTSBURGH STEELERS

SPORTS, INC.;

PRO-FOOTBALL, INC.;

ROCKY MOUNTAIN EMPIRE

SPORTS, INC.;

SAN FRANCISCO FORTY

NINERS;

SEATTLE PROFESSIONAL

FOOTBALL,

A General Partnership; :

ST. LOUIS FOOTBALL CARDI.-

NALS COMPANY; :

TAMPA BAY AREA NFL FOOT-

BALL, INC.;

and PETE ROZELLE, : CIVIL ACTION

Defendants : No. 79-4373JLM

Notice is hereby given that The Mid-South

Grizzlies, et al., plaintiffs appeals to the United States

Court of Appeals for the Third Circuit from ( ) Judg-

ment (X) Order ( ) Other (Specify) Order and Memo-

randum of Decision granting defendants’ motion for

summary judgment.

entered in this action on November 5, 1982.

i

Dated:

A-81

Counsel for Appellant — Signature

Steven Alexander, Esquire

Name of Counsel—Typed

SPRAGUE & RUBENSTONE

Suite 400, Wellington Building

135 South 19th Street

Philadelphia, Pa. 19103

(215) 561-7681

Gray Green, Esquire

SIDKOFF, PINCUS, GREENBERG

& GREEN

530 Walnut Street

12th Floor

Philadelphia, Pa. 19106

(215) 574-0600

James C. McKay, Esquire _

Counsel for Appellee

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

Post Office Box 7566

Washington, D.C. 20044

(202) 662-6000

Morris L. Weisberg, Esquire

BLANK, ROME, COMISKY &

McCAULEY

Four Penn Center Plaza

Philadelphia, Pa. 19103

(215) 569-3700

A-82

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1793

THE MID-SOUTH GRIZZLIES (a Joint Venture);

JOHN EDWARD BOSACCO; MID-SOUTH

GRIZZLIES (a Limited Partnership); and CON-

SOLIDATED INDUSTRIES, INC.,

Appellants

v.

THE NATIONAL FOOTBALL LEAGUE, an

unincorporated association; BALTIMORE FOOT-

BALL CLUB, INC.; BUFFALO BILLS, INC.;

CHARGERS FOOTBALL COMPANY; CHICAGO

BEARS FOOTBALL CLUB, INC.; CINCINNATI

BENGALS, INC.; CLEVELAND BROWNS, INC.;

DALLAS COWBOYS FOOTBALL CLUB, INC.;

DETROIT LIONS, INC.; FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.; HOUSTON OIL-

ERS, INC.; KANSAS CITY CHIEFS FOOTBALL

CLUB, INC.; LOS ANGELES RAMS FOOTBALL

COMPANY; MIAMI DOLPHINS, LTD.; MINNE-

SOTA VIKINGS FOOTBALL CLUB, INC.; NEW

ENGLAND PATRIOTS FOOTBALL CLUB, INC.;

NEW YORK FOOTBALL GIANTS, INC.; NEW

YORK JETS FOOTBALL CLUB, INC.; NEW OR-

LEANS SAINTS LOUISIANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.; PHILADELPHIA

EAGLES FOOTBALL CLUB, INC.; PITTSBURGH

STEELERS SPORTS, INC.; PRO-FOOTBALL,

INC.; ROCKY MOUNTAIN EMPIRE SPORTS,

INC.; SAN FRANCISCO FORTY NINERS; SEAT-

TLE PROFESSIONAL FOOTBALL, A General

Partnership; ST. LOUIS FOOTBALL CARDINALS

A-83

COMPANY; TAMPA BAY AREA NFL FOOTBALL,

INC. AND PETE ROZELLE

(D.C. Civil No. 79-4373)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: SEITZ, Chief Judge;

GIBBONS and ROSENN, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Pennsylvania and was argued by counsel September

13, 1983.

On consideration whereof, it is now here ordered

and adjudged by this Court that the judgment of the said

District Court, entered November 5, 1982, be and the

same is hereby affirmed. Costs taxed against appellants.

ATTEST:

Clerk

November 4, 1983

A-84

15 U.S.C.

§15. Suits by persons injured; amount of recovery

Any person who shall be injured in his business or

property by reason of anything forbidden in the antitrust

laws may sue therefor in any district court of the United

States in the district in which the defendant resides or is

found or has an agent, without respect to the amount in

controversy, and shall recover threefold the damages by

him sustained, and the cost of suit, including a reason-

able attorney’s fee.

(Oct. 15, 1914, c. 323, §4, 38 Stat. 731.)

15 U.S.C.

§1. Trusts, etc., in restraint of trade illegal; exception of

resale price agreements; penalty

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is declared to be illegal: Provided, That nothing

contained in sections 1 to 7 of this title shall render il-

legal, contracts or agreements prescribing minimum

prices for the resale of a commodity which bears, or the

label or container of which bears, the trademark, brand,

or name of the producer or distributor of such commodi-

ty and which is in free and open competition with com-

modities of the same general class produced or distrib-

uted by others, when contracts or agreements of that

description are lawful as applied to intrastate transac-

tions, under any statute, law, or public policy now or

hereafter in effect in any State, Territory, or the District

of Columbia in which such resale is to be made, or to

which the commodity is to be transported for such re-

sale, and the making of such contracts or agreements

shall not be an unfair method of competition under sec-

tion 45 of this title: Provided further, That the preceding

proviso shall not make lawful any contract or agreement,

providing for the establishment or maintenance of mini-

mum resale prices on any commodity herein involved,

A-85

between manufacturers, or between producers, or be-

tween wholesalers, or between brokers, or between fac-

tors, or between retailers, or between persons, firms, or

corporations in competition with each other. Every per-

son who shall make any contract or engage in any com-

bination or conspiracy declared by sections 1 to 7 of this

title to be illegal shall be deemed guilty of a misde-

meanor, and, on conviction thereof, shall be punished by

fine not exceeding fifty thousand dollars, or by imprison-

ment not exceeding one year, or by both said punish-

ments, in the discretion of the court.

(July 2, 1890, c. 647, §1, 26 Stat. 209; Aug. 17, 1937, c. 690, Title

VIII, 50 Stat. 693; July 7, 1955, c. 281, 69 Stat. 282.)

$2. Monopolizing trade a misdemeanor; penalty

Every person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other per-

son or persons, to monopolize any part of the trade or

commerce among the several States, or with foreign na-

tions, shall be deemed guilty of a misdemeanor, and, on

conviction thereof, shall be punished by fine not exceed-

ing fifty thousand dollars, or by imprisonment not ex-

ceeding one year, or by both said punishments, in the

discretion of the court.

(July 2, 1890, c. 647, §2, 26 Stat. 209; July 7, 1955, c. 281, 69 Stat.

282.)

§1291. Exemption from antitrust laws of agreements cov-

ering telecasting of sports contests and combining

of professional football leagues

The antitrust laws, as defined in section 1 of the Act

of October 15, 1914, as amended (38 Stat. 730), or in the

Federal Trade Commission Act, as amended (38 Stat.

717), shall not apply to any joint agreement by or among

persons engaging in or conducting the organized profes-

sional team sports of football, baseball, basketball, or

hockey, by which any league of clubs participating in

professional football, baseball, basketball, or hockey con-

tests sells or otherwise transfers all or any part of the

A-86

rights of such league’s member clubs in the sponsored

telecasting of the games of football, baseball, basketball,

or hockey, as the case may be, engaged in or conducted

by such clubs. In addition, such laws shall not apply to a

joint agreement by which the member clubs of two or

more professional football leagues, which are exempt

from income tax under section 501(c)(6) of Title 26,

combine their operations in expanded single league so

exempt from income tax, if such agreement increases

rather than decreases the number of professional foot-

ball clubs so operating, and the provisions of which are

directly relevant thereto.

(Pub.L. 87-331, §1, Sept. 30, 1961, 75 Stat. 732; Pub.L. 89-800,

§6(b)(1), Nov. 8, 1966, 80 Stat. 1515.)

§1292. Area telecasting restriction limitation

Section 1291 of this title shall not apply to any joint

agreement described in the first sentence in such sec-

tion which prohibits any person to whom such rights are

sold or transferred from televising any games within any

area, except within the home territory of a member club

of the league on a day when such club is playing a game

at home.

(Pub.L. 87-331, §2, Sept. 30, 1961, 75 Stat. 732; Pub.L. 89-800,

§6(b)(2), Nov. 8, 1966, 80 Stat. 1515.)

$1293. Intercollegiate and interscholastic football con-

test limitations

The first sentence of section 1291 of this title shall

not apply to any joint agreement described in such sec-

tion which permits the telecasting of all or a substantial

part of any professional football game on any Friday after

six o’clock postmeridian or on any Saturday during the

period beginning on the second Friday in September

and ending on the second Saturday in December in any

year from any telecasting station located within seventy-

five miles of the game site of any intercollegiate or inter-

scholastic football contest scheduled to be played on

such a date if—

A-87

(1) such intercollegiate football contest is be-

tween institutions of higher learning both of which

confer degrees upon students following completion

of sufficient credit hours to equal a four-year course,

or

(2) in the case of an interscholastic football con-

test, such contest is between secondary schools,

both of which are accredited or certified under the

laws of the State or States in which they are situated

and offer courses continuing through the twelfth

grade of the standard school curriculum, or the

equivalent, and

(3) such intercollegiate or interscholastic foot-

ball contest and such game site were announced

throug) publication in a newspaper of general cir-

culation prior to August 1 of such year as being reg-

ularly scheduled for such day and place.

(Pub.L. 87-331, §3, Sept. 30, 1961, 75 Stat. 732; Pub.L. 89-800,

§6(b)(3), Nov. 8, 1966, 80 Stat. 1515).

§1294. Antitrust laws unaffected as regards to other ac-

tivities of professional sports contests

Nothing contained in this chapter shall be deemed

to change, determine, or otherwise affect the applicabil-

ity or nonapplicability of the antitrust laws to any act,

contract, agreement, rule, course of conduct, or other

activity by, between, or among persons engaging in,

conducting, or participating in the organized profes-

sional team sports of football, baseball, basketball, or

hockey, except the agreements to which section 1291 of

this title shall apply.

(Pub.L. 87-331, §4, Sept. 30, 1961, 75 Stat. 732.)

$1295. “Persons” defined

As used in this chapter, “persons” means any indi-

vidual, partnership, corporation, or unincorporated asso-

ciation or any combination or association thereof.

(Pub.L. 87-331, §5, Sept. 30, 1961, 75 Stat. 732.)

A-88

Fed.R.Civ.P.

Rule 56. Summary Judgment

eee

(b) For Defending Party. A party against whom a

claim, counterclaim, or cross-claim is asserted or a de-

claratory judgment is sought may, at any time, move

with or without supporting affidavits for a summary

judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion

shall be served at least 10 days before the time fixed for

the hearing. The adverse party prior to the day of the

hearing may serve opposing affidavits. The judgment

sought shall be rendered forthwith if the pleadings, de-

positions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.

A summary judgment, interlocutory in character, may

be rendered on the issue of liability alone although there

is a genuine issue as to the amount of damages.

eee

(f) When Affidavits are Unavailable. Should it ap-

pear from the affidavits of a party opposing the motion

that he cannot for reasons stated present by affidavits

facts essential to justify his opposition, the court may

refuse the application for judgments or may order a con-

tinuance to permit affidavits to be obtained or deposi-

tions to be taken or discovery to be had or may make

such other order as is just.

A-89

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THE MID-SOUTH GRIZZLIES (a : CIVIL ACTION

Joint Venture); : NO. 79-4373

JOHN EDWARD BOSACCO; :

MID-SOUTH GRIZZLIES (a

Limited Partnership); and

CONSOLIDATED INDUSTRIES,

INC., :

Plaintiffs, :

v.

THE NATIONAL FOOTBALL

LEAGUE, an unincorporated

association;

BALTIMORE FOOTBALL CLUB,

INC.;

BUFFALO BILLS, INC.;

CHARGERS FOOTBALL COMPANY;

CHICAGO BEARS FOOTBALL

CLUB, INC.;

CINCINNATI BENGALS, INC.;

CLEVELAND BROWNS, INC.;

DALLAS COWBOYS FOOTBALL

CLUB, INC.;

DETROIT LIONS, INC.;

FIVE SMITHS, INC.;

GREEN BAY PACKERS, INC.;

HOUSTON OILERS, INC.; :

KANSAS CITY CHIEFS FOOTBALL :

CLUB, INC.; :

Los ANGELES RAMS FOOTBALL

COMPANY;

MIAMI DOLPHINS, LTD.;

MINNESOTA VIKINGS FOOTBALL

CLUB, INC.;

NEW ENGLAND PATRIOTS

FOOTBALL CLUB, INC.;

A-90

NEW YORK FOOTBALL GIANTS,

INC.;

NEW YORK JETS FOOTBALL

CLUB, INC.;

NEW ORLEANS SAINTS

LOUISIANA PARTNERSHIP;

OAKLAND RAIDERS, LTD.;

PHILADELPHIA EAGLES

FOOTBALL CLUB, INC.;

PITTSBURGH STEELERS

SPORTS, INC.;

PRO-FOOTBALL, INC.;

ROCKY MOUNTAIN EMPIRE

SPORTS, INC.; :

SAN FRANCISCO FORTY NINERS; :

SEATTLE PROFESSIONAL FOOT-

BALL, A General Partnership;

ST. LOUIS FOOTBALL CARDINALS .

COMPANY; :

TAMPA BAY AREA NFL

FOOTBALL, INC.; :

and PETE ROZELLE, - JURY TRIAL

Defendants. - DEMANDED

COMPLAINT

The above-named plaintiffs, by and through their

counsel, Sprague, Goldberg & Rubenstone, file this

Complaint against the above-named defendants and

state as follows:

COUNT I.

A.

JURISDICTION AND VENUE

1. This action is brought to secure treble damages

from each defendant pursuant to Section 4 of the Clay-

ton Act (15 U.S.C. §15) for defendants’ violations of Sec-

A-91

tion 1 of the Sherman Act (15 U.S.C. §1), as hereinafter

alleged.

2. Jurisdiction of the Court is invoked pursuant to

28 U.S.C. §1337.

3. Each defendant transacts business in and is

found, has an agent or resides within the Eastern Dis-

trict of Pennsylvania or has carried on the unlawful ac-

_tivities herein alleged, in part, in the Eastern District of

Pennsylvania. The interstate commerce activities de-

scribed below are carried on, in part, in the Eastern Dis-

trict of Pennsylvania.

B.

PARTIES

4. Plaintiff Mid-South Grizzlies is a Joint Venture

(herein “Joint Venture”) established on November 1,

1975 and consisting of the following joint venturers:

Mid-South Grizzlies, a Tennessee limited partnership,

John Edward Bosacco, a citizen and resident of the

Commonwealth of Pennsylvania, and Consolidated In-

dustries, Inc., a California corporation.

5. Plaintiff John Edward Bosacco (“Bosacco”) is a

citizen and resident of the Commonwealth of Pennsylva-

nia and resides at 344 W. Front Street, Media, Pennsyl-

vania. “a

6. Plaintiff Mid-South Grizzlies is a Tennessee

limited partnership. The general partner of Mid-South

Grizzlies is Toronto Football, a limited partnership. The

Chief Executive officer of Mid-South Grizzlies is John F.

Bassett.

7. Plaintiff Consolidated Industries, Inc., is a Cali-

fornia corporation, having its principal place of business

at 1377 W. Shaw Avenue, Fresno, California. It is solely

owned and controlled by William R. Tatham.

8. Defendant National Football League (herein-

after referred to as “NFL”) is an unincorporated associ-

ation with its headquarters at 410 Park Avenue, New

A-92

York, New York. Defendant NFL was organized for the

purpose of engaging in the business of major league pro-

fessional football. Defendant NFL is made up of and is

operated by its member-professional football teams lo-

cated in several cities throughout the United States, as

identified in paragraph 10 of this Complaint, including

defendant Philadelphia Eagles Football Club, Inc.,

which is located in the Eastern District of Pennsylvania

and which plays professional football games on a regular

basis with other defendant member-clubs in the Eastern

District of Pennsylvania. Defendant NFL is found, has

an agent in and transacts business in the Eastern Dis-

trict of Pennsylvania.

9. Defendant Pete Rozelle (“Rozelle”) is an individ-

ual and is the Commissioner of the defendant NFL, with

his office at 410 Park Avenue, New York, New York. De-

fendant Rozelle is found, has an agent in or transacts

business in the Eastern District of Pennsylvania.

10. The remaining twenty-eight defendants above-

named are members of the defendant NFL, were mem-

bers of defendant NFL at the time of the illegal acts

complained of in this Complaint, and operate major

league professional football teams in their respective

cities and in each other city in which defendants mem-

ber-clubs are located pursuant to a schedule fixed by the

defendants NFL and Rozelle. They are:

PRINCIPAL PLACE OF

BUSINESS

Baltimore Football Club, Inc. 11000 Bonita Avenue

(Baltimore Colts) Ellings Mill, Maryland

Buffalo Bills, Inc. 1 Bills Drive

Orchard Park, New York

Chargers Football Company San Diego Stadium

(San Diego Chargers) 9449 Friars Road

San Diego, California

Chicago Bears Football 533 E. Jackson Street

Club, Inc. Chicago, Illinois

Cincinnati Bengals, Inc. 200 Riverfront Stadium

Cincinnati, Ohio

A-93

Cleveland Browns, Inc.

Dallas Cowboys Football Club,

Inc.

Detroit Lions, Inc.

Five Smiths, Inc.

(Adanta Falcons)

Green Bay Packers, Inc.

Houston Oilers, Inc.

Kansas City Chiefs Football

Club, Inc.

Los Angeles Rams Football

Company

Miami Dolphins, Ltd.

Minnesota Vikings Football

Club, Inc.

New England Patriots Football

Club, Inc.

New York Football Giants,

Inc.

New York Jets Football Club,

Inc.

New Orleans Saints Louisiana

Partnership

Oakland Raiders, Ltd.

Philadelphia Eagles Football

Club, Inc.

Pittsburgh Steelers Sports,

Inc.

Pro-Football, Inc.

(Washington Redskins)

Rocky Mountain Empire

Sports, Inc. (Denver Broncos)

San Francisco Forty Niners

Cleveland Stadium

Cleveland, Ohio

Expressway Tower Building

6116 N. Central Expressway

Dallas, Texas

1200 Featherstone Street

Pontiac, Michigan

317 1-85

Buford, Georgia

1265 Lombardi Avenue

Green Bay, Wisconsin

6910 Fannon Street

Houston, Texas

1 Arrowhead Drive

Arrowhead Stadium

Kansas City, Missouri

10271 W. Pico Blvd.

Los Angeles, California

330 Biscayne Blvd.

Miami, Florida

7110 France Avenue

Edina, Minnesota

Schaefer Stadium

Foxboro, Massachusetts

Giant Stadium

East Rutherford, New Jersey

598 Madison Avenue

New York, New York

1500 Poygras Street

New Orleans, Louisiana

7811 Oak Port Street

Oakland, California

Veterans Stadium

Broad and Pattison Avenues

Philadelphia, Pennsylvania

Three River Stadium

300 Stadium Circle

Pittsburgh, Pennsylvania

J.F.K. Stadium

Washington, D.C.

5700 Logan Street

Denver, Colorado

1255 Post Street

Suite 300

San Francisco, California

A-94

Seattle Professional Football 5305 Lake Washington

(Seattle Seahawks) Blvd., N.E.

Kirkland, Washington

St. Louis Football Cardinals 200 Stadium Plaza

Company St. Louis, Missouri

Tampa Bay Area NFL Football, 1 Buccaneer Place

Inc. (Tampa Bay Buccaneers) Tampa, Florida

11. Each of the foregoing defendants is found in,

has an agent in, resides or transacts business within the

Eastern District of Pennsylvania.

C,

CO-CONSPIRATORS

12. Various other persons, firms entities and corpo-

rations, not named or made defendants herein, have par-

ticipated as co-conspirators with defendants in the

offenses charged in this Complaint, have performed acts

declared illegal by the Sherman Act and have acted in

furtherance of the unlawful conspiracy, in unreasonable

restraint of trade, group boycott, monopolization, at-

tempted monopolization and conspiracy to monopolize,

as is hereinafter alleged.

D.

INTERSTATE COMMERCE

13. The conduct of the defendants and co-conspira-

tors constitute, involve and affect commerce among the

several states including, inter alia, the nationwide pres-

entation of televised games, the purchase of substantial

quantities of equipment and supplies across state lines,

the sale of admission tickets to professional football

games across state lines, the convening of meetings of

NFL members who travel across state

This text is long and has been trimmed here. Open the source document for the complete record.