# Opposition Brief — Deutscher Tennis Bund v. ATP Tour, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2534%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1064

## Text

\ aa
\ A * ‘
No. 10-421
In the

Supreme Court of the Anited States

DEUTSCHER TENNIS BUND, ROTHENBAUM
SPORTS GMBH AND QATAR TENNIS FEDERATION,
Petitioners,
V.

ATP TOUR, INC., ETIENNE DE VILLIERS, CHARLES
PASARELL, GRAHAM PEARCE, JACCO ELTINGH,
PERRY ROGERS, AND IGGY JOVANOVIC,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION.

LAWRENCE C. ASHBY BRADLEY I. RUSKIN
PHILIP TRAINER, JR. Counsel of Record
ASHBY & GEDDES JENNIFER R. SCULLION
500 Delaware Avenue JORDAN B. LEADER
8th Floor ROBERT D. FORBES
Wilmington, DE 19899 PROSKAUER ROSE LLP
(302) 654-1888 1585 Broadway

New York, NY 19036
(212) 969-3000
bruskin@proskauer.com

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

(1)

QUESTION PRESENTED

Did the Court of Appeals correctly affirm the
jury’s rejection of Petitioners’ Sherman Act Section |
claim where the District Court found that there were
factual and economic disputes precluding a “Quick
Look” analysis of the changes to the format, rules
and structure of Respondent’s tennis circuit and
where the jury found that Petitioners failed to prove
their asserted relevant market for “top-tier” player

services in any event?

(11)

RULE 29.6 CORPORATE
DISCLOSURE STATEMENT

The caption contains the names of all parties to
the proceeding below. Respondent ATP Tour, Inc. is
a non-profit, Delaware non-stock membership
corporation. No publicly held company owns 10% or
more of ATP Tour, Inc.

(i11)

TABLE OF CONTENTS
Page
I ane aca cdidde daicgn sankeeeneeoaneeians 1
PRE EBT EGFR BRE CRI oi cc cevnsendeccaicerssccecoccensscnssascess 6
A. The Federations Sought to Prove a
Restraint on an Alleged “Top Player”
lac tcsanenieunenineaios 7
B. The Jury Rejected the Federations’
Antitrust Claims After a Two Week
Trial, Finding Insufficient Proof of the
Alleged “Top Players” Market ....................... 7
C. The Third’ Circuit Unanimously
Affirmed the Jury Verdict........................208- 10
REASONS FOR DENYING THE PETITION ................. 1]
I. The Third Circuit Applied Well-Established
Antitrust Law Precluding a Quick Look
Analysis Given the Disputed, and Ultimately
Unproven, “Top Player Services” Market as
Well as the Lack of Inherently Suspect
Isc a vias daccaveiicncovsdepassns teuctabandeteeurlaeioe 11
Il. The Federations Did Not Move for Quick
Look Treatment in the District Court.................. 17

Ill. There is No Circuit Split on the Requirement
of a Relevant Market for a Quick Look
PRM. vs, ccssscuchexapssdusmnsduebasoriiaasecsaioaear poaket 15

IV. The Burden of Proof Under Quick Look Is
Irrelevant Here and Correctly Stated by the

ck. SRR nROS Poem Tee Ratan Cen anne pin coney 19
V. The Federations Failed to Prove Additional
Elements Required Under Section l.................... 23

NIE ois cccercionsdisecindanineddbvndaeamereapoeuaaienal 25

(iV)

APPENDICES:

Appendix A

Appendix B

Appendix C

Appendix D

Judgment of the United States
District Court for the District of
Delaware, entered October 3,
2008, Verdict Form Attached....

Excerpts of Parties’ Proposed Jury

Instructions, Submitted to the
District Court on August 4, 2008..

Excerpts of Final Jury
Instructions, Read to the Jury on
PRIS Gas cscscinccascscccstess

Excerpts of Joint Appendix
Submitted to Third Circuit Court
of Appeals May 29, 2009....

l6a

20a

(v)

TABLE OF AUTHORITIES
Page(s)
CASES
Alabama v. Shelton,
Be Oe i Me IED i icsicocevcucccsscdieckecencccseniiasca 17, 24
Am. Needle, Inc. v. Nat’ Football League,
U.S... 190 B. Ct. SB01 ([O1G). ..crcrecese: ro
Associated Gen. Contractors of Cal. v. Cal.
State Council of Carpenters,
Be OF Oe Oe Ue cncesonecsccdncaccdcdcdcavcassscectscs ie OO
Brunswick Corp. v. Pueblo Bowl-O-Mat,
Oe ts HE 0 OE Pikik vcr nce cekdadacacencdatschexearsinss 23, 24
Cal. Dental Ass'n v. FTC,
Be EF, CE Ces vcciccndeivanccsscestsaterssaccisens passim
Cal. ex rel. Brown v. Safeway, Inc.,
F.3d, 2010 WL 3222187 (9th Cir
Be ey icaites usasncdcacdacnaccaneovezeseon’ . 15, 20, 21
Cargill v. Monfort of Col.,
ee aaa cid ndnckeecaccvancncubccacendenvocedcwan 25
Continental T.V., Inc. v. GTE Sylvania Jnc.,
Be EE Bic nsiucckacasnrsdevssasddencs daksaeucdeasaneae 22
Eichorn v. AT&T Corp. ,
248 F.3d 131 (Sd Cir. 2001) .........cccccsesees Pays asus

FTC v. Ind. Fed’n of Dentists,
476 U.S. 447 (1987)................ STE Re Oe a Re 16

(vi)

Gordon v. Lewistown Hosp.,
423 F.3d 184 (3d Cir. 200) ..........cccccsecccccccssccceee 14

Hennessy v. NCAA,
BG4 F.2d LISS (GER Cir. 1977)... .ccccceccococcccecsccccess. 21

Law v. Nat] Collegiate Athletic Ass'n,
134 F.3d 1010 (10th Cir. 1998)............... 16. 17, 21

Los Angeles Mem’! Coliseum Comm'n v. NFL,
726 F.2d 1381 (9th Cir. 1984).................cccseeceeees 22

Mid-South Grizzlies v. NFL,
ip (2 ge Wer Ob” Le RRL.) 24

MLB Properties Inc. v. Salvino,
642 F.3d 290 (2d Cir. ZOO8) ........c0cceccccssccsssecceeees 14

NCAA v. Bd. of Regents of Univ. of Okla.,
ee ED ss cesssestccceeocansonsoncsanes 4,13, 17, 22

Oltz v. St. Peter’s Cmty. Hosp..,
861 F.2d 1440 (9th Cir. 1988)................0...... 15, 16

Polygram Holding, Inc. v. FTC,
416 F.3d 29 (D.C. Cir. 2005)................0....000. 16, 20

Sullivan v. NFL,
34 F.3G 1081 (let Cir. 1904) .......ccccccocccscecscscsccees 22

Texaco, Inc. v. Dagher,
ss abansibabedéonveriunvies 12

Toscano v. PGA Tour,
201 F. Supp. 2d 1106 (E.D. Cal. 2002)............... 22

(vl)

Unitherm Food Sys. v. Swift-Eckrich, Inc.,
SEG U5, BPO Cp aswkesetsarsessossstccsccsssees. 18

Worldwide Basketball & Sport Tours, Inc. v
NCAA,
388 F.3d 955 (6th Cir. 2004)..... joes O, LL, 13, 16

STATUTES

15 U.S.C.

Der ees passim
© D uscccceccouseansceeeee .. 7,9, 10
OTHER AUTHORITIES

ABA Section of Antitrust Law, Antitrust Law
Developments (6th ed. 2007) ................6.. . 13,18

ABA Section of Antitrust Law, Model Jury
Instructions in Civil Antitrust Cases (2005) . 18

Areeda & Hovenkamp, Antitrust Law,
(Ded Oh. BE y sears caves ca ssnccecccccas. ... 18,19

“‘ederal Rules of Civil Procedure
Mule BO. 6:62: ee, Oo. &. i718
Beate BG, .

/

A. The Federations Sought to Prove a Restraint
on an Alleged “Top Player” Services Market.

The Federations sued ATP and the individual
Board members who voted to reject the Federations’
application. The Federations alleged claims under
Sections 1 and 2 of the Sherman Act, as well as
various state law claims.

The Federations’ antitrust claims alleged, in
relevant part, that ATP had restrained the input
“market for player services for top-tier men’s
professional tennis.”" Opp. App. 20a-27a. The
existence and contours of this professed market were
among the most hotly contested factual issues at
trial. Pet. App. 20a.

B. The Jury Rejected the Federations’ Antitrust
Claims After a Two Week Trial, Finding
Insufficient Proof of the Alleged “Top Players”
Market.

The Federations’ claims were tried to a jury over
the course of more than two weeks. The Federations
presented their theory of the case through the direct
and cross examination of more than fifteen fact
witnesses and four economics and damages experts
and the presentation of nearly 1,000 exhibits.

ATP’s Board members moved for judgment as a
matter of law on the Section 1 claims brought
against them individually. The Board members
argued that they could not be liable absent a per se

' The Federations also sought to prove an output market for
“top-tier men’s professional tennis” and an input market for
“sanctions for top-tier men’s professional tennis events. Opp.
App. 20a.

8

Section 1 violation and that the Federations had

failed to prove any per se violation. The District

Court agreed, finding that:
“The complexity of these particular
arrangements, the peculiar industry of sports,
and the ambiguity of the bounds of the relevant
market, all counsel against treating the business
practices in dispute here as per se violations of
antitrust law.”

The District Court further held that:

“The evidence adduced by the plaintiffs in this

case could perhaps be evidence of certain

illegalities, that is, antitrust violations, but only
after one engaged in a detailed examination of the
industry in question, and, furthermore, only after
taking the industry in question to be top-tier
men’s. professional tennis, rather than, for
example, professional sports or spectator sports
more generally.”

Pet. App. 44a.

The Federations never moved for judgment as a
matter of law under Fed. R. Civ. P. 50 to have the
District Court condemn ATP’s challenged conduct
under a Quick Look analysis (although any such
motion would have failed given the evidence and the
subject matter of the Federations’ challenge). The
Federations instead merely proposed supposed Quick
Look jury instructions (without citing a single case
holding that Quick Look can be applied by a jury).
Yet, tellingly, the Federations’ own _ proposed
instructions expressly presumed findings of
“significant competitive harm” in “relevant markets”
from the challenged conduct even though the District
Court had never been asked to make such findings.
Opp. App. 16a.

9

ATP objected to the proposed instructions,
including on the ground that Quick Look is not a jury
issue and that the prerequisites for Quick Look were
absent. Opp. App. 16a-19a.

The District Court held that it would be
“inappropriate” to give the proposed Quick Look
instructions in light of its findings that the
complexities of the industry and the ambiguous
nature of the relevant market precluded any
conclusion that the challenged conduct was obviously
anticompetitive. Pet. App. 50a. Instead, a “detailed”
examination of the industry was needed, including
consideration of whether any analysis could be
limited to “top tier” tennis, as the Federations had
urged. Id.

The District Court instructed the jury to analyze
the Federations’ Section 1 claims under a Rule of
Reason analysis. This included instructions with
respect to proof of the posited “top-tier” player
services market. Opp. App. 20a-27a. (The same
relevant market instruction was given with respect
to both the Section 1 and Section 2 claims. Id.)

After deliberations, the jury returned a special
verdict that rejected the Federations’ claims. The
jury found that the Federations had failed to prove
any requisite “agreement.” Opp. App. 2a. It also
found that the Federations failed to prove any
relevant market. Opp. App. 6a, 9a, 12a. As such,
the jury rejected both the Section 1 and the Section 2
claims.

The Federations did not file any post-trial motion
to challenge the jury’s finding that the Federations
failed to prove a relevant market.

10

C. The Third Circuit Unanimously Affirmed the
Jury Verdict.

The Federations appealed the judgment with
respect to the failed Section 1 claims against ATP.
The Federations did not appeal the jury verdict
rejecting their Section 2 claims.

The Third Circuit unanimously affirmed the
jury’s verdict and the resulting judgment.” Pet. App.
3a. The Third Circuit found that the jury’s finding of
no relevant market with respect to the Section 2
claims was equally applicable to, and doomed, the
Section 1 claims because the claims rested on
identical proposed market definitions. Pet. App. 11la-
12a n.5, 12a n.6, 33a.

The Third Circuit rejected the Federations’
arguments that the District Court should have
instructed the jury under a Quick Look analysis and
that such analysis would have relieved the
Federations of their failure of proof on a relevant
market. The Third Circuit affirmed that Quick Look
was inappropriate given, among other things, the
substantial, factual disputes as to the Federations’
claims of a “top player services” market to this case:

“Although the Federations contended the Brave
New World Plan restrained the ‘top player
services’ market, the definition of the relevant
market was one of the most contested issues at
trial — so much so that after all the evidence was
presented the District Court saw the bounds of

* The Third Circuit also affirmed the antitrust and fiduciary
duty claims against the individual Board members. Pet. App.
23a-24a n.8, 34a-41a.

1]

the relevant market as ‘ambiguous.’ Because ‘the
contours of the market’ here are not ‘sufficiently
well known or defined to permit the court to
ascertain without the aid of extensive market
analysis whether the challenged practice impairs
competition,’ ‘quick look’ is not appropriate and
proof of relevant market is required under full-
scale rule of reason.”

Pet. App. 20a-2la (quoting Worldwide Basketball,
388 F.3d at 961).

The Third Circuit also reasoned, in dicta not
essential to the judgment, that even if Quick Look
had been applied initially, ATP’s_ substantial
evidence of the procompetitive effects of BNW would
have required the jury to undertake a full-scale Rule
of Reason analysis. Pet. App. 22a-23a. Thus, any
error the District Court made in not applying Quick
Look ultimately was harmless. J/d.

REASONS FOR DENYING THE PETITION

The Third Circuit correctly affirmed the verdict
and judgment. It did so by applying standard, long-
settled antitrust law to the jury’s finding of fact. No
further review by this Court is required.

I. The Third Circuit Applied Well-Established
Antitrust Law Precluding a Quick Look Analysis
Given the Disputed, and Ultimately Unproven, “Top
Player Services” Market as well as the Lack of
Inherently Suspect Conduct.

The Federations indisputably failed to prove the
existence of the market on which they chose to rest
their Section 1 claims — namely, a vaguely defined
“top-tier” player services market. The Federations
do not challenge the jury instructions concerning
their posited market. Nor do they claim that they
were unlawfully barred from presenting their best

12

evidence of such a market. They also do not dispute
that, under a Rule of Reason analysis, the failure to
prove a relevant market precludes Section 1 liability
as a matter of law.

Instead, each of the Federations’ arguments for
review presumes that, if a Quick Look analysis were
used, the failure to prove a “top-tier” player services
market somehow could be ignored. Respectfully, the
Federations have it exactly backwards. This was
never a Quick Look case given the lack of any naked
restraint, inherently suspect conduct, or obvious
anticompetitive market impact. The Federations
cannot remake it into a Quick Look case post hac to
avoid their failed trial strategy and the consequent
jury finding. Quick Look is a procedural device used
to cut to the chase when the anticompetitive effects
on a posited market are obvious, not to ignore a jury
finding that a market is so unobvious that it was not
proven after a two week trial.

The antitrust principles applied by the Third
Circuit are clear and long-settled.

First, every Section 1 claim is premised on harm
or threatened harm to a market. This Court has
made clear that the categories of per se, Quick Look,
and Rule of Reason are merely modes of analysis
along a continuum. Cal. Dental, 526 U.S. at 780-81
(“(T}here is generally no categorical line to be drawn
between restraints that give rise to an intuitively
obvious inference of anticompetitive effect and those
that call for more detailed treatment. What is
required, rather is an enquiry meet for the case,
looking to the circumstances, details, and logic of a
restraint.”) Each mode of analysis ultimately is
concerned with anticompetitive impacts on actual
“customers and markets.” Jd. at 770; Texaco, Inc. v.

13

Dagher, 547 U.S. 1, 5, 7 n.3 (2006) (finding per se
and Quick Look inapplicable given lack of
competition between joint venturers “in the relevant
market”); Bd. of Regents, 468 U.S. at 104 n.26 (“Per
se rules may require considerable inquiry into
market conditions before the evidence justifies a
presumption of anticompetitive conduct.”). Thus,
while different depths of analysis may be “meet for
the case” depending’ on the particular
“circumstances, details, and logic” of the challenged
conduct (Cal. Dental, 526 U.S. at 780-81), the various
modes of analysis do not change the elements of a
Section 1 claim — including the need for “market”
effects and, therefore, for a cognizable market.
Second, as a corollary to the above, Quick Look
does not eliminate the basic Section 1 requirement of
anticompetitive impact in a relevant market. See
ABA Sec. of Antitrust Law, Antitrust Law
Developments 65 (6th ed. 2007) (“Without defining
the relevant market, there is no meaningful context
within which to assess the restraint’s potential
competitive effects.”). To the contrary, as the Third
Circuit correctly explained, the threshold
requirement for a Quick Look analysis is that “the
anticompetitive effect on customers and markets”
must be so obvious that no elaborate or detailed
analysis is needed. Pet. App. at 17a (citing Cal.
Dental, 526 U.S. at 770). The Federations clearly
recognized this when they proposed Quick Look jury
instructions that included a threshold finding of
impact in a “relevant market.” Opp. App. 16a-17a.

Third, given the prerequisites for a Quick Look
analysis,. where the relevant market is ambiguous or
there are disputes over its contours, Quick Look is
not appropriate. Worldwide Basketball, 388 F.3d at

14

961 (rejecting Quick Look and remanding for Rule of
Reason review where market was “neither obvious
nor undisputed” and plaintiff failed to account for
market alternatives); MLB Properties Inc. v. Salvino,
542 F.3d 290, 332-34 (2d Cir. 2008) (Quick Look
inappropriate where no proof of impact on output);
Gordon v. Lewistown Hosp., 423 F.3d 184, 209-10 (3d
Cir. 2005) (Quick Look inappropriate for non-price
vertical restraints where market effects are not
obvious). In such a case a more detailed inquiry into
the nature of the posited market and the impact, if
any, of the challenged conduct on that market is
required.

Finally, the Federations ignore that neither the
District Court nor the Third Circuit concluded that
there was any self-evident anticompetitive impact on
the posited (but vague and unproven) “top player
services” market. Although the Third Circuit also
discussed general concepts concerning a market for

“player services,” the jury instructions confirm that
is not a market that the Federations posited at trial.
Opp. App. 20a-27a. In any event, neither the
District Court nor the Third Circuit found the self-
evident anticompetitive effect in such a market
required for a Quick Look case, let alone any naked
restraint or other inherently suspect conduct. At
best, the Court of Appeals speculated that there
“might” have been an impact on a market. That
clearly is not close to a finding of an actual, obvious
impact necessary for Quick Look. The Third
Circuit's comment is nothing more than _ the
observation that, as in any Kule of Reason case that
goes to a jury, there may be competitive impacts for
the jury to find and to weigh.

L5

Il. There is No Circuit Split on the Requirement of a
Relevant Market for a Quick Look Analysis.

Because this never was and is not now a Quick
Look case (and because the Federations failed to
preserve any claim to Quick Look treatment), review
is not necessary to resolve any alleged “circuit split”
concerning the role of relevant markets in Quick
Look cases. In any event, the Third Circuit adhered
to established Section 1 and Quick Look principles.
The Federations manufacture a “split” based on
tortured readings of excerpts from opinions divorced
from their context. None of the cases cited by the
Federations conflict with the Third Circuit’s ruling.

In Cal. ex rel. Brown v. Safeway, Inc.,__ F.3d __,
2010 WL 3222187 (9th Cir. Aug. 17, 2010), the Ninth
Circuit applied Quick Look to an agreement among a
group of supermarket competitors to share profits
during a labor strike. The court held this agreement
between competitors created “a great likelihood of
anticompetitive effects” by creating a “negative effect
on their incentives to compete with one another for
customers.” Jd. at *11-12. The Ninth Circuit
identified the group’s “60% or 70% of the market
share” of the “Southern California [grocery] market”
as a significant factor in its finding of likely
anticompetitive effects of the agreement between
competitors. Jd. at *13.

The Ninth Circuit’s holding in Oltz v. St. Peter’s
Cmty. Hosp., 861 F.2d 1440 (9th Cir. 1988) did not
involve a Quick Look approach. Nonetheless, that
case also cited the defendant’s 84% market share as
a persuasive factor in affirming a directed verdict
that the relevant market was the market for
anesthesia services in Helena. Jd. at 1442, 1447.
The record in Oltz contained evidence of actual

L6

anticompetitive effects in that market through a
reduction in output and a corresponding increase in
consumer prices. Jd. at 1448. By contrast, the Third
Circuit here held the record evidence was insufficient
to demonstrate actual anticompetitive effects
“without the aid of extensive market analysis.” Pet.
App. 20a-2la (quoting Worldwide Basketball, 388
F.3d at 959).

In Polygram Holding, Inc. v. FTC, 416 F.3d 29
(D.C. Cir. 2005), the D.C. Circuit reviewed the FTC’s
determination that competitors who had entered a
joint venture violated Section 5 of the Federal Trade
Commission Act by agreeing to enact price
restrictions and limit advertising on their own
products that competed with the joint venture’s
product. The D.C. Circuit agreed with the FTC that
appellants “failed to identify any competitive
justification” for conduct that “looks suspiciously like
a naked price’ (fixing = agreement between
competitors.” 416 F.3d at 37-38. The court held that
this conduct was sufficiently suspect to presume “a
deleterious effect upon consumers” because
“agreements restraining autonomy in pricing and
advertising impede the ‘ordinary give and take of the
market place.” Jd. at 37 (citing FTC v. Ind. Fed’n of
Dentists, 476 U.S. 447, 459 (1987)). The D.C. Circuit
did not, however, find that the determination of a
relevant market (or, as here, a jury’s determination
that the alleged relevant market has not been
proven) has no significance in a Quick Look analysis

Likewise, in Law v. NCAA, 134 F.3d 1010, 1017
(10th Cir. 1998), the Tenth Circuit found an
agreement among NCAA member institutions to
limit the salaries of assistant basketball] coaches
“constitutes the type of naked horizontal agreement

17

among competitive purchasers to fix prices usually
found to be illegal per se” but applied Quick Look
because horizontal restraints were necessary to
produce the product of college basketball. “No ‘proof
of market power’ is required where the very purpose
and effect of a horizontal agreement is to fix prices so
as to make them unresponsive to a competitive
marketplace.” /d. at 1020 (citing Bd. of Regents, 468
U.S. at 110). Nowhere did the Tenth Circuit hold, as
the Federations suggest, that a jury’s factual finding
that a plaintiff failed to prove a relevant market is
irrelevant under a Quick Look analysis.

Iil.The Federations Did Not Move for Quick Look

Treatment in the District Court.

Even if the substantive parameters for Quick
Look existed, the Federations never made any
motion for judgment as a matter of law under Fed. R
Civ. P. 50 for the District Court to condemn the
ATP’s BNW under Quick Look. Instead, they merely
proposed supposed Quick Look jury instructions
Opp. App. 16a-19a. The Federations’ strategic
choices resulted in procedural defaults that preclude
review of any Quick Look issues

First, Quick Look is not a jury issue. It is a
“procedural device” used by courts to assess whether
“inherently suspect” conduct should be condemned as
unlawful by the court without a plenary trial or,

instead, assessed by a jury under a full Rule of

’ Although the Third Circuit's conclusions obviated the need
to address the Federations’ procedural defaults, ATP preserved
this issue for appeal. ATP raises this issue here to preserve it

for its potential ments brief. Alabama v. Shelton, 535 U.S. 654
(2002)

18

Reason analysis. Antitrust Law Developments 59-
60. As the ABA Model Jury Instructions in Civil
Antitrust Cases explains, “because application of the
quick look analysis is a question of law to be
determined by the court,” there are no jury
instructions for Quick Look. ABA Section of
Antitrust Law, Model Jury Instructions in Civil
Antitrust Cases A-8, n.2 (2005). Leading
commentators likewise confirm that Quick Look is
an analysis “to enable the court to make a judgment
on reasonableness.” Areeda & Hovenkamp, Antitrust
Law, ¥ 1914(d) at 355-356 (2d ed. 2005) (emphasis
added).

Second, the jury instructions that the Federations
proposed were expressly premised on the District
Court first making findings that “as a matter of law
... these restraints constitute ... naked restraints of
trade” resulting in “significant competitive harm.”
Opp. App. 16a. But, in fact, the Federations had
never made any motion asking the District Court to
make such determinations “as a matter of law.”
Thus, even if Quick Look were a jury issue and not
simply a procedural tool for the courts, the
Federations failed to seek the threshold court
findings “as a matter of law” on which their own jury
instructions were premised. As explained above, the
District Court found that, on the evidence presented
at trial, the market definitions, dynamics, and
competitive effects were too complex and non-obvious
to warrant either per se or Quick Look treatment.

Finally, the Federations also are precluded from
attacking the sufficiency of the evidence supporting
the jury’s special verdict on relevant markets
because they failed to make the requisite Rule 50

19

motions below. Unitherm Food Sys. v. Swift-Eckrich,
Inc., 546 U.S. 394, 400-402 (2006).

IV.The Burden of Proof Under Quick Look and the
Analysis of Competitive Impacts on Related
Markets Are Irrelevant Here and In All Events
Correctly Stated by the Third Circuit.

The Federations incorrectly claim that (a) Quick
Look puts the burden on the antitrust defendant to
establish procompetitive justifications that outweigh
the presumed anticompetitive effects (Pet. at 34) and
(b) that Section 1 myopically focuses solely on alleged
competitive impacts to the plaintiffs chosen market
— and prohibits courts and juries from considering
procompetitive justifications in any other market,
including related markets (Pet. at 15-22). Neither
argument is relevant given the Federations’ failure
to prove any relevant market. The Federations are
wrong on both counts in any event.

With respect to the burden of proof, none of the
cases the Federations cite even reach this issue. The
Third Circuit accurately stated (in dicta) that it was
the Federations’ burden to establish that BNW’s
alleged anticompetitive effects outweighed the
procompetitive benefits that ATP established.

This Court held in Cal. Dental that, upon a
showing of an “obvious” likelihood of anticompetitive
effects, “quick look analysis in effect requires” a court
to “shift[] to a defendant the burden to show
empirical evidence of procompetitive effects.” 526
U.S. at 775 n.12. This is a burden of production, not
a burden of proof: This Court has never held that a
defendant bears the burden to show “empirical
evidence of procompetitive effects” outweigh the
presumed anticompetitive effects. See also Areeda &
Hovenkamp, 4 1914(d) at 356 (“[I]f a proper

20

competitive justification is adequately demonstrated
[by the defendant]...the burden of showing market
power and presumed or actual anticompetitive
effects falls on the plaintiff....”).

The Federations themselves proposed that the
jury be instructed that “[t]he challenged restraint is
illegal under Section 1 of the Sherman Act if you find
that the competitive harm outweighs the competitive
benefit,” (Opp. App. 16a.) and that, “ilf the
competitive harm outweighs the competitive
benefits, then the challenged restraint is
unreasonable. If the competitive harm does not
outweigh the competitive benefits, then the
challenged restraint is not unreasonable.” Opp. App.
19a. In short, the Federations’ own proposed
instructions confirmed that the burden of proof
remains on the antitrust plaintiff to show that
anticompetitive effects outweigh competitive
benefits.

The two cases the Federations rely on to frame a
purported “circuit split” are not to the contrary.
Neither Safeway, supra, nor Polygram, supra,
reached the issue of who bears the burden under
Quick Look with respect to balancing the competitive
effects of an alleged restraint. In both cases, the
defendant failed to establish evidence of any
legitimate procompetitive effects.

In Safeway, the Ninth Circuit quoted Cal. Dental
in describing the Quick Look burden of the defendant
grocery stores to produce evidence of procompetitive
effects of their agreement to share profits during a
labor dispute. 2010 WL 3222187 at *9, 16. The
Ninth Circuit found that the only “benefit” the
defendants offered was that the profit sharing
agreement would help them win their labor dispute,

21

which in turn would allow them to pay lower wages,
and in turn offer lower prices to consumers. The
Ninth Circuit rejected this argument, holding that
“driving down compensation to workers is not a
benefit to consumers cognizable under our laws as a
‘procompetitive’ benefit.” Jd. at *17. Because the
“defendants offerfed] no plausible procompetitive
benefits,” the Ninth Circuit did not reach the issue of
who bears the burden of weighing procompetitive
and anticompetitive effects under Quick Look. Id. at

*5.

Similarly, in Law, the Tenth Circuit articulated
the defendant’s burden under Quick Look: “Once the
plaintiff meets that burden [of establishing
anticompetitive effects]...the burden shifts to the
defendant to justify the restraint as a ‘reasonable’
one.” 134 F.3d at 1021. In describing the
defendant’s burden to “justify the restraint,” the
Tenth Circuit distinguished the Fifth Cuircuit’s
holding in Hennessy v. NCAA, 564 F.2d 1136, 1153-
54 (5th Cir. 1977), in which the Fifth Circuit
“admittedly border[ed] on speculation” in presuming
the reasonableness of an NCAA rule capping the
number of assistant basketball and football coaches
so as to avoid “forecloseling], by way of injunction,
any opportunity to build up experience on which the
issue could ultimately be judged.” Law held that the
defendant NCAA failed to establish any evidence of

procompetitive effects, not — as the Federations
suggest — that the defendant failed to prove the
procompetitive effects outweighed the

anticompetitive effects. 134 F.3d at 1022-1024.

The Federations also wrongly claim that the
Third Circuit created a “conflict” when it observed
that ATP’s evidence of procompetitive benefits in

22

“the sports and entertainment market” could be
weighed by a jury against the Federations’ claimed
evidence of anticompetitive impacts on their asserted
input market for “top player services.”

First, again, the Third Circuit’s observation was
dicta not necessary to its holding given the
Federations’ failure of proof as to any relevant
market.

Second, the case law is clear that a competitive
analysis is not strictly limited to one market and,
instead, should include consideration of related
markets. See, e.g., Continental T.V., Inc. v. GTE
Sylvania Inc., 433 U.S. 36, 52 n.19, 54-55 (1977)
(recognizing that positive effects on interbrand
competition can justify anticompetitive effects on
intrabrand competition, even though “the degree of
intrabrand competition is wholly independent of the
level of interbrand competition.”); Bd. of Regents,
468 U.S. at 115-20 (considering the NCAA's interest
in protecting live attendance at untelevised games
and the NCAA's “legitimate and important” interest
in maintaining competitive balance between amateur
athletic teams as a justification for asserted restraint
on the market for the telecasting of collegiate football
games); Sullivan v. NF'L, 34 F.3d 1091, 1111-13 (1st
Cir. 1994) (noting that cases from Supreme Court
and Circuits have looked to procompetitive benefits
beyond the relevant market where the benefits in
one market are related to another) (citing, inter alia,
Continental T.V., supra, Bd. of Regents, supra and
Los Angeles Mem’ Coliseum Comm'n v. NFL, 726
F.2d 1381, 1404-1405 (9th Cir. 1984)); Toscano v.
PGA Tour, 201 F. Supp. 2d 1106, 1121 (B.D. Cal.
2002) (rejecting Quick Look review when the PGA
proffered evidence that its eligibility rules had the
procompetitive effect of “ensurling] that spectators

23

see the marquee players they want to see thereby
helping to attract sponsors who ultimately finance
the Senior PGA Tour and create the product.”).
Finally, the Federations ignore the evidence that
ATP presented at trial of the vast array of
procompetitive benefits that BNW would have in the
production of men’s tennis’ events, including
increased player compensation, better travel
schedules (protecting player health), increased
investment in facilities, increased geographic reach
of the Tour, increased and better quality
broadcasting, and an easier to understand and more
exciting overall format for the Tour season. Pet.
App. 22a. ATP brought forth this evidence of wide-
ranging procompetitive effects of BNW in the face of
the Federations’ assertion of restraints in three
vaguely defined alleged relevant markets: the
market for “top player services,” the market for “to;
tier men’s professional tennis events,” and the
market for “sanctions for top-tier men’s professional
tennis events.” Opp. App. 201. Nevertheless, as this
Court recently stated in Am. Needle, Inc. v. Nat'l
Football League, ___ U.S. __, 180 S. Ct. 2201, 2216-17
(2010), a sports league’s interest “in making the
entire league successful and profitable” can justify
many restraints within the league and its input
markets.
V. The Federations Failed to Prove Additional
Prerequisites to Recovery.

Review of this case also would be of no practical
utility because, even if the Federations could
overcome their fundamental failure of proof of a
relevant market under a Quick Look approach, their
claims fail for additional, independent reasons.

24

Specifically, the Federations failed to prove that
they had suffered any antitrust injury or possessed
antitrust standing. Proof of both antitrust injury
and antitrust standing are required to prevail on a
Section 1 claim. Brunswick Corp. v. Pueblo Bowl-O-
Mat, 429 U.S. 477, 489 (1977) (antitrust injury);
Associated Gen. Contractors of Cal. v. Cal. State
Council of Carpenters, 459 U.S. 519, 538-40 (1983)
(antitrust standing). The Federations’ failures of
proof are dispositive of any appeal. *

It was the Federations’ burden to prove that they
had suffered “antitrust injury” — i.e. injury “of the
type the antitrust laws were intended to prevent and
that flows from that which makes defendants’ acts
unlawful.” Brunswick, 429 U.S. at 489. The only
injury they alleged was not injury to competition, but
injury to the Federations as competitors for “top
player services.” A key executive for the Federations
made this absolutely clear at trial when he testified
that the Federations’ goal in the lawsuit was not to
challenge an anticompetitive system of player
allocation, but to remain as a top-tier event within
the Tour. Opp. App., 29a-30a. The Federations did
not allege, and the jury did not find, the existence of
any barriers that would prevent the Federations or
any other potential competitor from “competing for
players by forming a competitive league.” Mid-South
Grizzlies v. NFL, 720 F.2d 772, 787 (3d Cir. 1983).
Indeed, if BNW had resulted in any restraint on

* Although the Third Circuit’s conclusions obviated the need
to address the Federations’ lack of antitrust standing and
antitrust injury, ATP preserved both issues for appeal and does
so here to preserve them for any review by this Court. Shelton,
535 U.S. 654.

25

compensation to the players, that restraint would
have made it easier for the Federations and others to
form a competitive league and offer the players
greater compensation. Even more fundamentally,
where no market has been proven, a party plainly
has no injury and no standing to recover. Eichorn v.
AT&T Corp., 248 F.3d 131, 140 (3d Cir. 2001) (no
“antitrust injury unless the activity has a wider
impact on the competitive market.”)

The Federations also were required to prove
“antitrust standing” by showing that their alleged
injuries were “the type that the antitrust statute was
intended to forestall” and that the Federations were
appropriate parties to seek redress. Associated Gen.
Contractors of Cal. v. Cal. State Council of
Carpenters, 459 U.S. 519, 538-40 (1983); Cargill v.
Monfort of Col., 479 U.S. 104, 110 n.5 (1986) (“[A]
party may have suffered antitrust injury but may not
be a proper party under § 4 for other reasons.”). Any
alleged claim that ATP restricted a market for “top
player services” would be more directly brought by
the players whose ability to market their services
allegedly would have been constrained.

CONCLUSION

For the foregoing reasons, the Court should deny
the petition for a writ of certiorari.

26

Respectfully submitted.

LAWRENCE C. ASHBY BRADLEY I. RUSKIN
PHILIP TRAINER, JR. Counsel of Record
ASHBY & GEDDES JENNIFER R. SCULLION
500 Delaware Avenue JORDAN B. LEADER
8th Floor ROBERT D. FORBES
Wilmington, DE 19899 PROSKAUER ROSE LLP
(302) 654-1888 1585 Broadway

New York, NY 10036
(212) 969-3000
bruskin@proskauer.com

OCTOBER 27, 2010

APPENDIX

la
APPENDIX A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

[Filed 10/03/2008}

Civil Action No. 07-178 GMS

DEUTSCHER TENNIS BUND et al.,
Plaintiffs,

Vv.

ATP TouR, INC. et al.,
Defendants

JUDGMENT

This action came before the Court for a trial by
jury. The issues have been tried and the jury
rendered its verdict on August 5, 2008. The verdict
was accompanied by a verdict form (D.I. 195), a copy
of which is attached hereto. Therefore,

IT IS HEREBY ORDERED AND ADJUDGED
that judgment be and is hereby entered in favor of
the defendant, ATP TOUR, INC., and against the
plaintiffs, DEUTSCHER TENNIS BLIND, ROTHEN-
BAUM SPORTS GMBH AND QATAR TENNIS
FEDERATION.

Dated: October 3, 2008

/s/ Gregory M. Sleet
CHIEF, UNITED STATES DISTRICT JUDGE

2a
SHERMAN ACT § 1
WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant entered inte
contract(s), combination(s) or conspiracy(ies) with
any separate entity or entities? (A “yes” answer to
this question is a finding for Plaintiffs. A “no” answer
is a finding for the Defendant. If “yes,” proceed to
question 2 below. If “no,” please sign this jury verdict
form and return it to the U.S. Marshall.)

Question 1 Yes No X
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties
to each such agreement:

2. Have Plaintiffs proven by a preponderance of
the evidence the existence of a relevant product
market within a relevant geographic market? (A
“yes” answer to this question is a finding for Plain
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 3 below. If “no,” please sign
this jury verdict form and return it to the U.S.
Marshall.)

Question 2 Yes No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify each rele-
vant product market and the associated
geographic market:

3. Have Plaintiffs proven by a preponderance of
the evidence that any contract, combination or
conspiracy that you found in question 1 had a harm-
ful effect on competition in a relevant product and
geographic market(s)? (A “yes” answer to this ques-

ja
tion is a finding for Plaintiffs. A “no” answer is a
finding for the Defendant. If “yes,” proceed to ques-

tion 4 below. If “no,” please sign this jury verdict form
and return it to the U.S. Marshall.)

Question 3 Yes No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated relevant product and _ geographic
market(s):

4. Do you find by a preponderance of the evidence
that any contract, combination or conspiracy for
which you answered “Yes” to question 3 had procom
petitive benefits? (A “yes” answer to this question is a
finding for the Defendant. A “no” answer is a finding
for Plaintiffs. If “yes,” proceed to question 5 below. If
“no,” proceed to question 7 below.)

Question 4 Yes No
(for Plaintiffs) (for Defendant)

5. Do you find by a preponderance of the evidence
that any contract, combination or conspiracy for
which you answered “Yes” to question 4 was reasona-
bly necessary to achieve the procompetitive benefits
you found? (A “yes” answer to this question is a find-
ing for the Defendant. A “no” answer is a finding for
Plaintiffs. If “yes,” proceed to question 6 below. If
“no,” proceed to question 8 below.)

Question 5 Yes | No
(for Plaintiffs) (for Defendant)

6. Have Plaintiffs proven by a preponderance of
the evidence that the harmful] effect on competition
of any contract, combination or conspiracy for
which you answered “Yes” to question 5 substantially

4a
outweighs the procompetitive benefits you found? (A
“yes” answer to this question is a finding for Plain
tiffs. A “no” answer is a finding for the Defendant. If
“ves,” proceed to question 7 below. If “no,” please sign
this jury verdict form and return it to the U.S

Marshall.)
Question 6 Yes No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated relevant product and = peopraphi
market(s)

7. Do you find by a preponderance of the evidence
that the contract(s), combination(s) or conspiracy(ies)
the Defendant entered was or were a material cause
of any injury to the Plaintiffs in their business or
property? (A “yes” answer to this question is a finding
for Plaintiffs. A “no” answer is a finding for the
Defendant. If “yes,” proceed to question .8 below. If
“no,” please sign this jury verdict form and return it

to the U.S. Marshall.)
Question 7 Yes No
(for Plaintiffs) (for Defendant)

8. For any injury you found in response to question
7, do you find by a preponderance of the evidence
that any such injury to Plaintiffs was caused by a
reduction in competition, acts that would lead to a
reduction in competition., or acts that would
otherwise harm consumers? (A “yes” answer to this
question is a finding for Plaintiffs. A “no” answer is a
finding for the Defendant. If “yes,” proceed to
question 9 below. If “no,” please sign this jury verdict
form and return it to the U.S. Marshall.)

5a
Question 8 Yes___ No _
(for Plaintiffs) (for Defendant)

9. For any injury for which you answered “Yes” to
Question 8, do you find by a preponderance of the
evidence that Plaintiffs failed to take all reasonable
steps available to minimize their losses? (A “yes”
answer to this question is a finding for the Defen-
dant. A “no” answer is a finding for Plaintiffs. If “no,”
proceed to question 10 below and do not answer
question 11. If “yes,” please proceed to question 11
below and do not answer question 10.)

Question 9 Yes __ No ___
(for Plaintiffs) (for Defendant)

10. For any injury for which you answered “No” to
question 9, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury
based on the evidence available to you? Write your
answer in the line labeled “Amount” below.

11. For any injury for which you answered “Yes” to
question 9, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury if
they had take all reasonable steps to mitigate their
damages? Write your answer in the line labeled
“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,
THE FOREPERSON MUST SIGN THIS VERDICT
FORM AND SIGNAL THE U.S. MARSHALL THAT
THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 Jury Foreperson:
[Redacted Stamp]

6a
SHERMAN ACT § 2 - MONOPOLIZATION
WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of
the evidence the existence of any relevant product
market(s) within any relevant geographic market(s)?
(A “yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 2 below. If “no,” please sign
this jury verdict form and return it to the US.
Marshall.)

Question 1 Yes No X
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties
to each such agreement:

2. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant had monopoly power
in any market for which you answered “Yes” to Ques-
tion 1? (A “yes” answer to this question is a finding
for Plaintiffs, A “no” answer is a finding for the
Defendant. If “yes,” proceed to question 3 below. If
“no,” please sign this jury verdict form and return it
to the U.S. Marshall.)

Question 2 Yes ___ No |
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify to which
relevant product and geographic market(s) this
answer applies: —__

3. For each relevant product market you listed in
your answer to question 2, have Plaintiffs proven by
a preponderance of the evidence that Defendant
willfully acquired or maintained monopoly power
through exclusionary conduct without legitimate

7a
reasons for engaging in such conduct? (A “yes”
answer to this question is a finding for Plaintiffs. A
“no” answer is a finding for the Defendant. If “yes,”
proceed to question 4 below. If “no,” please sign this
jury verdict form and return it to the U.S. Marshall.)

Question 3 Yes _ No
(for Plaintiffs) (for Defendant)

[f you answered “Yes,” please specify to which
relevant product and geographic market your
answer applies:

4. Have Plaintiffs proven by a preponderance of
the evidence that the conduct for which you answered
“Yes” to question 3 caused injury to the Plaintiffs in
their business or property? (A “yes” answer to this
question is a finding for Plaintiffs. A “no” answer is
a finding for the Defendant. If “yes,” proceed to

question 5 below. If “no,” please sign this jury verdict
form and return it to the U.S. Marshall.)

No.

5. For any injury you found in response to question
4, do you find by a preponderance of the evidence
that any such injury to Plaintiffs was caused by a
reduction in competition, acts that would lead to a
reduction in competition, or acts that would other-
wise harm consumers? (A “yes” answer to this ques-
tion is a finding for Plaintiffs. A “no” answer is a
finding for the Defendant. If “yes,” proceed to ques-
tion 6 below. If “no,” please sign this jury verdict form
and return it to the U.S. Marshall.)

Question 5 Yes No

(for Plaintiffs) (for Defendant)

8a

6. For any injury for which you answered “Yes” to
Question 5, do you find by a preponderance of the
evidence that Plaintiffs failed to take all reasonable
steps available to minimize their losses? (A “yes”
answer to this question is a finding for the Defen-
dant. A “no” answer is a finding for Plaintiffs. If “no,”
proceed to question 7 below and do not answer ques-
tion 8. If “yes,” please proceed to question 8 below
and do not answer question 7.)

Question 6 Yes ___ No
(for Plaintiffs) (for Defendant)

7. For any injury for which you answered “No” to
question 6, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury
based on the evidence available to you? Write your
answer in the line labeled “Amount” below.

8. For any injury for which you answered “Yes” to
question 6, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury if
they had taken all reasonable steps to mitigate their
damages? Write your answer in the line labeled
“Amount” below.

Amount: _

WHEN THE JURY HAS REACHED A VERDICT,
THE FOREPERSON MUST SIGN THIS VERDICT
FORM AND SIGNAL THE U.S. MARSHALL THAT
THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 | Jury Foreperson:

[Redacted Stamp]

Ya
SHERMAN ACT § 2 -
ATTEMPTED MONOPOLIZATION

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of
the evidence the existence of a relevant product
market within a relevant geographic market? (A
“yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 2 below. If “no,” please sign
this jury verdict form and return it to the U.S.
Marshall.)

Question 1 Yes _ No X
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties
to each such agreement: __

2. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant engaged in anticom-
petitive conduct with an intent to achieve monopoly
power in a relevant product market within a relevant
geographic market for which you answered “Yes” to
Question 1? (A “yes” answer to this question is a
finding for Plaintiffs. A “no” answer is a finding for
the Defendant. If “yes,” proceed to question 3 below.
If “no,” please sign this jury verdict form and return
it to the U.S. Marshall.)

Question 2 Yes ____ No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated product and geographic market(s):

3. Have Plaintiffs proven by a preponderance of
the evidence that there is a dangerous probability

10a

that the Defendant would achieve its goal of mono-
poly power in any relevant product market? (A “yes”
answer to this question is a finding for Plaintiffs. A
“no” answer is a finding for the Defendant. If “yes,”
proceed to question 4 below. If “no,” please sign this
jury verdict form and return it to the U.S. Marshall.)

Question 3 Yes ___ No _
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated product and geographic market(s):

4. Have Plaintiffs proven by a preponderance of
the evidence that the actions of the Defendant caused
injury to the Plaintiffs in their business or property?
(A “yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 5 below. If “no,” please sign
the jury verdict form and return it to the U.S.
Marshall.)

Question 4 Yes ___ No _
(for Plaintiffs) (for Defendant)

5. For any injury you found in response to question
4, do you find by a preponderance of the evidence
that any such injury to Plaintiffs was caused by a
reduction in competition, acts that would lead to a
reduction in competition, or acts that would other-
wise harm consumers? (A “yes” answer to this ques-
tion is a finding for Plaintiffs. A “no” answer is a
finding for the Defendant, If “yes,” proceed to ques-
tion 6 below. If “no,” please sign this jury verdict form
and return it to the U.S. Marshall.)

lla
Question 5 Yes___ No _

(for Plaintiffs) (for Defendant)

6. For any injury for which you answered “Yes” to
question 5, do you find by a preponderance of the
evidence that Plaintiffs failed to take all reasonable
steps available to minimize their losses? (A “yes”
answer to this question is a finding for the Defen-
dant. A “no” answer is a finding for Plaintiffs. If “no,”
proceed to question 7 below and do not answer ques-
tion 8. If “yes,” please proceed to question 8 below
and do not answer question 7.)

Question 6 Yes ___ No
(for Plaintiffs) (for Defendant)

7. For any injury for which you answered “No” to
question 6, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury
based on the evidence available to you? Write your
answer in the line labeled “Amount” below.

8. For any injury for which you answered “Yes” to
question 6, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury if
they had taken all reasonable steps to mitigate their
damages? Write your answer in the line labeled
“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,
THE FORE PERSON MUST SIGN THIS VERDICT
FORM AND SIGNAL THE U.S. MARSHALL THAT
THE JURY IS READY TO RENDER A VERDICT.

Date: _8-5-08 Jury Foreperson:
[Redacted Stamp]

12a

SHERMAN ACT § 2 -
CONSPIRACY TO MONOPOLIZE

WE, THE JURY, unanimously find as follows:

1. Have Plaintiffs proven by a preponderance of
the evidence the existence of a relevant product
market within a relevant geographic market? (A
“yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 2 below. If “no,” please sign
this jury verdict form and return it to the U.S.
Marshall.)

Question 1 Yes___ No _X
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify all parties
to each such agreement:

2. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant entered into an
agreement or mutual understanding to obtain or
maintain monopoly power in a relevant market
within a relevant geographic market? (A “yes” answer
to this question is a finding for Plaintiffs. A “no”
answer is a finding for the Defendant. If “yes,”
proceed to question 3 below. If “no,” please sign this
jury verdict form and return it to the U.S. Marshall.)

Question 2 Yes ____ No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated product and geographic market(s):

3. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant knowingly became
parties to that agreement or mutual understanding?

l3a

(A “yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding ior the Defendant. If
“yes,” proceed to question 4 below. If “no,” please sign
this jury verdict form and return it to the U.S.
Marshall.)

Question 3 Yes No
(for Plaintiffs) (for Defendant)

4. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant intended that the
parties to the agreement or mutual understanding
would obtain or maintain monopoly power in any
relevant product market within a relevant geographic
market you specified in your answer to question 2? (A
“yes” answer to this question is a finding for Plain-
tiffs. A “no” answer is a finding for the Defendant. If
“yes,” proceed to question 5 below. If “no,” please sign
this jury verdict form and return it to the U.S.
Marshall.)

Question 4 Yes __ No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the asso-
ciated product and _ geographic market(s):

5. Have Plaintiffs proven by a preponderance of
the evidence that the Defendant took an overt act in
furtherance of that agreement or mutual under-
standing? (A “yes” answer to this question is a find-
ing for Plaintiffs. A “no” answer is a finding for the
Defendant. If “yes,” proceed to question 6 below. If
“no,” please sign this jury verdict form and return it

to the U.S. Marshall.)

l4a
Question 5 Yes No
(for Plaintiffs) (for Defendant)

If you answered “Yes,” please specify the
associated relevant product market(s):

6. Do you find by a preponderance of the evidence
that the anticompetitive actions of the Defendant
caused injury to the Plaintiffs in their business or
property? (A “yes” answer to this question is a finding
for Plaintiffs. A “no” answer is a finding for the
Defendant. If “yes,” proceed to question 7 below. If
“no,” please sign the jury verdict form and return it to
the U.S. Marshall.)

Question 6 Yes ___ No
(for Piaintiffs) (for Defendant)

7. For any injury you found in response to question
6, do you find by a preponderance of the evidence
that any such injury to Plaintiffs was caused by a
reduction in competition, acts that would lead to a
reduction in competition, or acts that would other-
wise harm consumers? (A “yes” answer to this ques-
tion is a finding for Plaintiffs. A “no” answer is a
finding for the Defendant. If “yes,” proceed to ques-
tion 8 below. If “no,” please sign this jury verdict form
and return it to the U.S. Marshall.)

Question 7 Yes __ No
(for Plaintiffs) (for Defendant)

8. For any injury for which you answered “Yes” to
Question 7, do you find by a preponderance of the
evidence that Plaintiffs failed to take all reasonable
steps available to minimize their losses? (A “yes”
answer to this question is a finding for the Defen-

L5a
dant. A “no” answer is a finding for Plaintiffs. If “no,”
proceed to question 9 below and do not answer ques
tion 10. If “yes,” please proceed to question 10 below
and do not answer question 9.)

Question 8 Yes No
(for Plaintiffs) (for Defendant)

9. For any injury for which you answered “No” to
question 8, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury
based on the evidence available to you? Write your
answer in the line labeled “Amount” below.

10. For any injury for which you answered “Yes” to
question 8, what is the total amount of damages that
would fairly compensate Plaintiffs for this injury if
they had taken all reasonable steps to mitigate their
damages? Write your answer in the line labeled
“Amount” below.

Amount:

WHEN THE JURY HAS REACHED A VERDICT,
THE FOREPERSON MUST SIGN THIS VERDICT
FORM AND SIGNAL THE U.S. MARSHALL THAT
THE JURY IS READY TO RENDER A VERDICT

Date: _8-5-08 Jury Foreperson:
(Redacted Stamp]

l6a
APPENDIX B

Plaintiffs’ Proposed Antitrust
Jury Instruction 7

Antitrust Claims: Sherman Act Section 1
Rule of Reason — Quick Look

Under Section 1 of the Sherman Act, a restraint of
trade is illegal if it is found to be unreasonable. You
must determine, therefore whether the restraints
challenged here are unreasonable. The restraints
alleged here are: the channeling of players to certain
events via rules, regulations, bonuses and sanctions;
the creation and sale of a limited number of “sanc-
tions” which are required if a tournament is to
attract players; the pooling of broadcast and sponsor-
ship rights; geographic market protections for
favored tournaments; calendar market protection for
certain tournaments; and the limitation and/or cap of
output of top-tier men’s professional tennis. I have
determined as a matter of law that these restraints
constitute horizontal market divisions, geographic
market divisions and price fixing and, as such, are
naked restraints of trade. The Plaintiffs have estab-
lished, therefore, that the Defendants’ restraints
have caused substantial harm to competition in a
relevant market. You must consider whether the
restraint produces countervailing competitive bene-
fits. If you find that it does, then you must balance
the competitive harm against the competitive benefit.
The challenged restraint is illegal under Section 1 of
the Sherman Act if you find that the competitive
harm outweighs the competitive benefit. I have found
as a matter of law, significant competitive harm. It is

lva
your duty to consider the competitive benefits, if any
and to balance them against this harm.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In
struction 16 because it is not relevant to the facts and
issues to be tried, because the Court has not made
the determination described and the evidence at trial
will not support such a determination. Defendant
further object to the extent that it purports to list
specific restraints that Plaintifis have never pre
viously alleged. Additionally, it is unnecessary and
potentially confusing to repeat Plaintiffs’ allegation
in the context of this instruction. Furthermore,
alleged restraints Nos. 1 and 2 are unreasonably
argumentative, and No. 6 is unreasonably vague and
undefined

Plaintiffs’ Proposed Antitrust
Jury Instruction 8

Antitrust Claims: Sherman Act Section ]
Rule of Reason - Quick Look Evidence
of Competitive Benefits

As I have found that Plaintiffs have proven that
the challenged restraint resulted in substantial harm
to competition in a relevant markets, you must deter
mine whether the restraint also benefits competition
in other ways. The only legitimate rationales that you
may consider are those that are necessary to produce
competitive men’s professional tennis. Further, ratio
nales relating merely to profitability or cost savings
do not qualify as a pro-competitive justification

© Law v. NCAA, 134 F.3d 1010, 1019-21 (10th Cir. 1998)
NCAA ov. Board of Repent of the University of Oklahoma, 104
5.Ct. 2984, 2965 (1984)

lSa

In this case, Defendants contend that the chal
lenged restraint benefits competition the following
way(s): the Defendants, certain men’s professional
tournaments, and certain men’s professional tenni:
players will make more money because consumers in
the relevant output market(s) will pay more therein
If you find that Defendants have proven that the
challenged restraint does result in competitive
benefits, then you also must consider whether the
restraint was reasonably necessary to achieve the
benefits. If Plaintiffs prove that the same benefit:
could have been readily achieved by other, reasonably
available alternative means that create substantially
less harm to competition, then they cannot be used to
justify the restraint.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In
struction 17 because it 1s not relevant to the facts and
issues to be trned, because the Court has not made
the determination described and the evidence at trial
will not support such a determination. Defendant
further object on the yvrounds that it contains an
inaccurate and argumentative characterization of
Defendants’ contentions as to the pro-competitive
benefits of their challenged actions

Plaintiffs’ Proposed Antitrust
Jury Instruction 9
Antitrust Claims: Sherman Act Section 1
Rule of Reason — Quick Look - Evidence
of Competitive Benefits
If you find that the challenged restraint was rea

sonably necessary to achieve competitive benefits,

“ABA SECTION OF ANTITRUST LAW, MODEL JURY INSTRUM
MONS IN CIVIL ANTITRUST CASES, 2005 Edition A-10 (2005)

19a

then you must balance those competitive benefits
against the competitive harm resulting from the
same restraint. If the competitive harm outweighs
the competitive benefits, then the challenged re-
straint is unreasonable. If the competitive harm does
not outweigh the competitive benefits, then the
challenged restraint is not unreasonable. In conduct-
ing this analysis, you must consider the benefits and
harm to competition and consumers, not just to a
single competitor or group of competitors.”

Defendants’ Objection

Defendants object to Plaintiffs’ Proposed Jury In
struction 18 because it is not relevant to the facts and
issues to be tried, because it eliminates the require-
ment that the jury determine whether there has been
any competitive harm. Defendants further object on
the grounds that it misstates the law. Plaintiffs bear
the burden of proving that the alleged competitive
harm substantially outweighs the procompetitive
benefits.

10 ABA SECTION OF ANTITRUST LAW, MODEL JURY INSTRUC-
TIONS IN CIVIL ANTITRUST CASES, 2005 Edition A-12 (2005).

20a
APPENDIX C

Antitrust Jury Instruction 2

Antitrust Claims: Sherman Act Sections 1 and 2
Private Actions Under the Antitrust Laws

This type of lawsuit is known as a private antitrust
civil action. Private antitrust actions are a means of
enforcing the antitrust laws, because they serve to
deter defendants who have violated the antitrust
laws from violating the law in the future.

Plaintiffs have brought two separate antitrust
claims. Plaintiffs’ first claim is under Section 1 of the
Sherman Act, which prohibits a person or corporation
from entering into contracts, combinations and con-
spiracies that unreasonably restrain trade. Plaintiffs
allege that Defendants entered into agreements, com-
binations and conspiracies to restructure men’s pro-
fessional tennis that unreasonably restrained trade
in the market(s) for top-tiez: men’s professional ten-
nis, player services for top-tier men’s professional
tennis, and/or sanctions for top-tier men’s profes-
sional tennis.

Plaintiffs’ second claim is under Section 2 of the
Sherman Antitrust Act, which prohibits a person or a
corporation from maintaining a monopoly in any part
of our country’s trade or commerce. In this case,
Plaintiffs allege that Defendants unlawfully gained
and maintained a monopoly in the relevant mar-
ket(s); conspired to gain and maintain a monopoly in
the relevant market(s); and attempted to gain and
maintain a monopoly in the relevant market(s).

Zla
Antitrust Jury Instruction 13
Rule of Reason — Proof of Relevant Market

As I mentioned, Plaintiffs must show that the
harm to competition occurred in an identified market,
known as a “relevant market.” There are two aspects
to a relevant market. The first aspect is known as a
relevant product market. The second aspect is known
as the relevant geographic market. It is Plaintiffs’
burden to prove the existence of a relevant market.

Relevant Product Market

The basic idea of a relevant product market is that
it includes all products that are reasonable substi-
tutes for each other from a buyer’s point of view; that
is, the products compete with each other. In other
words, the relevant product market includes the
products that a consumer believes are reasonably in-
terchangeable or reasonable substitutes for each oth-
er. This is a practical test with reference to actual
behavior of buyers and marketing efforts of sellers.
Products need not be identical or precisely inter-
changeable as long as they are reasonable substi-
tutes. For example, if consumers seeking to cover lef-
tover food for storage considered certain types of flex-
ible wrapping material — such as aluminum foil, cel-
lophane, or even plastic containers — to be reasonable
alternatives, then all those products would be in the
same relevant product market.

To determine whether products are reasonable sub-
stitutes for each other, you should consider whether a
small but significant permanent increase in the price
of one product would result in a substantial number
of consumers switching from that product to another.
Generally speaking, a small but permanent increase
in price is approximately a five percent increase in

22a
price not due to external cost factors. If you find that

such switching would occur, then you should conclude
that the products are in the same product market.

In evaluating whether various products are rea-
sonably interchangeable or are reasonable substi-
tutes for each other, you may also consider: (1) con-
sumers’ views on whether the products are inter-
changeable; (2) the relationship between the price of
one product and sales of another; (3) the presence or
absence of specialized vendors; (4) the perceptions of
either industry or the public as to whether the prod-
ucts are in separate markets; (5) the views of Plain-
tiffs and Defendants regarding who their respective
competitors are; and (6) the existence or absence of
different customer groups or distribution channels.

In this case, Plaintiffs define the relevant product
markets as the market for the production of top-tier
men’s professional tennis, the market for player ser-
vices for top-tier men’s professional tennis, the mar-
ket for hosting top-tier men’s professional tennis,
and/or the market for live top-tier men’s professional
tennis. By contrast, Defendants assert that Plaintiffs
have failed to prove a proper relevant product market
because Defendants claim that Plaintiffs’ alleged
product markets do not include all reasonably inter-
changeable products or substitutes. If you find that
Plaintiffs have proven a relevant product market or
markets that includes all reasonably interchangeable
products or substitutes, then you should continue to
evaluate the remainder of Plaintiffs’ claim with re-
spect to that market or those markets. However, if
you find that Plaintiffs have failed to prove such a
market, then you must find in Defendants’ favor on
this claim.

23a
Relevant Geographic Market

For each relevant product market you determine
that Plaintiffs have proven, Plaintiffs must also prove
a relevant geographic market. The relevant geo-
graphic market for a given relevant product market
is the area in which the defendant faces competition
‘from other firms that compete in that relevant prod-
uct market and to which customers can reasonably
turn for purchases. When analyzing the relevant
geographic market, you should, consider whether
changes in prices or product offerings in one area
have substantial effects on prices or sales in another
area, which would tend to show that both areas are
in the same relevant geographic market. The geo-
graphic market may be as large as global or nation-
wide, or as small as a single town or even smaller.
The relevant geographic market for one relevant
product market may be larger or smaller than that
for a different relevant product market.

Plaintiffs have the burden of proving the relevant
geographic market by a preponderance of the evi-
dence. In this case, Plaintiffs claim that the relevant
geographic market for each of these markets is glob-
al. By contrast, Defendants assert that Plaintiffs
have failed to prove a proper geographic market. In
determining whether Plaintiffs have met their bur-
den and proven that their proposed geographic mar-
ket is proper, you may consider several factors, in-
cluding:

e The geographic area in which the relevant
products are sold and where customers for the
relevant products are located;

e The geographic area to which customers turn
for supply of the relevant products or have se-
riously considered turning; and

24a

e The geographic areas that suppliers of the re-
levant products; view as potential sources of
competition.

Antitrust Jury Instruction 18

Antitrust Claims: Sherman Act Section 2 -
Monopolization General Elements

Plaintiffs allege that they were injured by the De-
fendants’ unlawful monopolization of the markets for
top-tier men’s professional tennis; player services for
top-tier men’s professional tennis; and sanctions for
top-tier men’s professional tennis tournaments. To
prevail on this claim, Plaintiffs have the burden of
proving each of the following elements by a prepon-
derance of the evidence:

First, that the alleged market is a valid anti-
trust market;

Second, that the ATP Tour possessed monopoly
power in that market;

Third, that the Defendants “willfully” acquired or
maintained monopoly power in that market by
engaging in anticompetitive conduct; and

Fourth, that the Plaintiffs were injured in their
business or property because of the Defendants’
anticompetitive conduct.

If you find that Plaintiffs have failed to prove any
of these elements as to any Defendant, then you must
find for that Defendant and against Plaintiffs on this
claim. If you find that Plaintiffs have proved each of
these elements by a preponderance of the evidence,
then you must find for Plaintiffs and against Defen-
dants on this claim.

25a
Antitrust Jury Instruction 24

Antitrust Claims: Sherman Act Section 2 -
Attempt to Monopolize General Elements

Plaintiffs allege that they were injured by Defen-
dants’ unlawful attempt to monopolize the markets
for top-tier men’s professional tennis; player services
for top-tier men’s professional tennis; and sanctions
for top-tier men’s professional tennis tournaments.
To prevail on its claim of attempted monopolization,
Plaintiffs have the burden of proving each of the fol-
lowing elements by a preponderance of the evidence:

First, that Defendants engaged in anticompeti-
tive conduct.

Second, that Defendants had a specific intent to
achieve monopoly power in a relevant market;

Third, that there was a dangerous probability
that Defendants would achieve their goal of mo-
nopoly power in the relevant market; and

Fourth, that Plaintiffs were injured in their
business or property by Defendants’ anticompeti-
tive conduct.

If you find that the evidence is insufficient to prove
any one or more of these elements against any specif-
ic Defendant, then you must find for Defendants and
against Plaintiffs on Plaintiffs’ claim of attempted
monopolization. If you find that the evidence is suffi-
cient to prove all four elements as to a Defendant,
then you must find for Plaintiffs and against that De-
fendant on Plaintiffs’ claim of attempted monopoliza-
tion.

26a
Antitrust Jury Instruction 27

Antitrust Claims: Sherman Act Section 2 -
Conspiracy to Monopolize’ General Elements

Plaintiffs allege a conspiracy to monopolize in vi-
olation of Section 2 of the Sherman Act, which dec-
lares unlawful every conspiracy to monopolize inter-
state or foreign commerce.

To prevail against Defendant(s) on their claim of
conspiracy to monopolize, Plaintiffs have the burden
of proving by a preponderance of the evidence as to
Defendant(s) each of the following elements:

First, that an agreement or mutual understand-
ing between two or more persons to obtain or
maintain monopoly power in the market(s) for
top-tier men’s professional tennis, player services
for top-tier men’s professional tennis, and sanc-
tions for top-tier men’s professional tennis tour-
naments;

Second, that Defendant(s) knowingly - that is,
voluntarily and intentionally - became a party to
that agreement or mutual understanding;

Third, that Defendant(s) specifically intended
that the parties to the agreement would obtain or
maintain monopoly power in the market(s) for
top-tier men’s professional tennis, player services
for top-tier men’s professional tennis, and sanc-
tions for top-tier men’s professional tennis tour-
naments;

Fourth, that Defendant(s) committed an overt
act in furtherance of the conspiracy;

Fifth, that Defendant’s (or Defendants’) activi-
ties occurred in or affected interstate or foreign
commerce; and

2/a
Sixth, that Plaintiffs were injured in their busi
ness or property because of the conspiracy to
monopolize.

If you find that the evidence is sufficient to prove
each element as to a Defendant, then you must find
for Plaintiffs and against that Defendant on Plain-
tiffs’ conspiracy to monopolize claim. If you find that
the evidence is sufficient to prove each element as to
a defendant, then you must find for Plaintiffs and
against that defendant on Plaintiffs’ conspiracy to
monopolize claim.

28a
APPENDIX D

7/30/2008 Transcript of Trail (Day 8)

(JA 1729] Now, as this goes forward, the one thing |
want to address is, you know, I listened yesterday, as
you did, of course, too, and this comment of what
happened, he was being asked about what about this
market for fans? Well, there was an exchange about
this Cincinnati/Washington. Well, okay, there was.
But that is not our lawsuit. We’re not focusing on
those.

But as we get here, what we have, I have to say
this is an immensely complicated area of the law. It’s
an immensely complicated area of just getting your
mind around the economic principles involved. And I
have to say I go to bed at night sometimes and I have
to start over. What is Point A? What is Point B?
What is Point C in the analysis, honest to God. It is
that complex. And then you have courts doing their
absolute best with it to see that parties are treated
fairly on both sides of the case in terms of the law
and the economics and the evidence. And I think we
all know it is extremely subtle and it needs an ex-
tremely careful and nuanced analysis.

But that goes to the point that I think is of the es-
sence here. There needs to be, I think the Court
needs to hear from Dr. Walker and you need to hear
how

Dr. Walker goes about his work. And I think that
may help you understand how another economist
goes about a methodology. And you may see things
may become more clear

* * *k 4

29a
8/2/2008 Transcript of Trial (Day 10)
(JA 2090] “Answer: I do not believe that ATP would

have over the course of so many years left the Ham
burg Tournament in its standing the way it was in
May if ATP had not, like me, believed that that was
the only logical consequence in the calendar of events
on the way to Paris, to the Paris Tournament.

“Question: Would you agree there could be other
logical calendars that one could create? Yes?

“Answer: I would have to be convinced, I don’t ses
any other — any other logical calendar.

“Question: As part of how the tour should go for
ward, is it your view that Hamburg should continue
to be a Masters series event and should receive a
thousand points?

“In your view of how the tour should go forward,
how should Hamburg be treated?

“Answer: If I were in Mr. de Villiers’s position and
looked at the overall European tennis and I weren’t
German, I would still be in favor of Hamburg because
even in that case — so even if I were not a German, if
! were an Austrian or an Italian, I would still be in
favor of Hamburg because I would still think that
Hamburg fits into this Masters Series circuit.

“Question: And you would be in favor of continuing
a Masters Series?

“Answer: Yeah, I’m struggling, battling for the
[JA 2091] resumption of Hamburg as a 1000 event, as
a Masters event in May.

“Question: And as part of that you would want
Hamburg to be the only event during its tournament
week?

30a
“Answer: Yes, I want the player tournament—the
player commitment, excuse me, to continue as it was
before, that is that the top players commit to playing
that Masters Series.

“Question: And would you want Hamburg to have
the benefit of the player commitment that is being
proposed for the 1000 events starting in 2009”

“Answer: Yes, exactly. That’s how I understand the
plan, namely, that the players would have to commit
to these 1000 events as a precondition of the 1000
events to take place.

“Question: With respect to which tournaments in
German did you plead that they should not pay any
appearance fees?

“Answer: | actually pleaded with all tournament
organizers in Germany. I mean I told them that in
my opinion that’s the wrong way to go, but it was my
opinion at the time.

“Question: Is that still your opinion?

“Answer: I am against appearance fees. That’s why
I’m so adamant about keeping the 1000 tournaments,
(JA 2092] because it enables us to force the players to
play without appearance fee.

(Deposition ends.)

... PETER R. GREENHALGH, having been duly
Sworn as a witness, was examined and testified as

follows. .
DIRECT EXAMINATION
BY MR. UNDERWOOD:

Q@. Good afternoon, Mr. Greenhalgh. Could you
please tell the jury what your profession is?

sia

,

. Ye lam an econom!

) Do you have a particular irea | | WitNI!

the broad discipline of economi

A. Yes. | principally am what called a micro
economist, someone who studies firms and industrie
And within that broad field, my real specialty |
called industrial organization, which is the specifi

tudy of firms and industrie:

And CVC?) Vvithin that at id my most narrow p>
clalty is really antitrust economi well as the
computation of damage: both in antitrust cast i!

in other case

() Could you please daescnil ediucat
background?

A Ye have a Bache IO] le pret mn matnemat
from Princeton University ther pent four veay}

pr rduate

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2534%3A3. Public record. Not legal advice.