United States Court of Appeals
For the First Circuit
No. 01-1296
IAIN FRASER; STEVE TRITTSCHUH; SEAN BOWERS;
MARK SEMIOLI; RHETT HARTY; DAVID SCOTT VAUDREUIL;
MARK DODD; and MARK DOUGHERTY,
Plaintiffs, Appellants,
v.
MAJOR LEAGUE SOCCER, L.L.C.; KRAFT SOCCER, L.P.;
ANSCHUTZ SOCCER, INC.; ANSCHUTZ CHICAGO SOCCER, INC.;
SOUTH FLORIDA SOCCER, L.L.C.; TEAM COLUMBUS SOCCER, L.L.C.;
TEAM KANSAS CITY SOCCER, L.L.C.; LOS ANGELES SOCCER PARTNERS,
L.P.; EMPIRE SOCCER CLUB, L.P.; WASHINGTON SOCCER, L.P.;
and UNITED STATES SOCCER FEDERATION, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Woodlock,* District Judge.
Jeffrey L. Kessler with whom James W. Quinn, Bruce S. Meyer,
Michael A. Rona, Allan L. Garcia, Tamir M. Young, Weil, Gotshal &
Manges LLP, Paul B. Galvani, Ropes & Gray and Richard A. Berthelsen
were on brief for appellants.
Michael A. Cardoza with whom Steven C. Krane, Lee M.
Goldsmith, Brooke H. Spigler, Daniel L. Goldberg, Daniel S. Savrin
and Bingham Dana LLP were on brief for appellees Major League
Soccer, L.L.C., et al.
*
Of the District of Massachusetts, sitting by designation.
John Paul Robbins with whom McLaughlin & Stern, LLP and
Morgan, Brown & Joy were on brief for appellee United States Soccer
Federation, Inc.
March 20, 2002
BOUDIN, Chief Judge. Professional soccer players sued
Major League Soccer, LLC ("MLS"), nine independent
operator/investors in MLS, and the United States Soccer Federation,
Inc. ("USSF"), alleging violations of Sherman Act sections 1 and 2,
15 U.S.C. §§ 1-2, and Clayton Act section 7, id. § 18, and seeking
injunctive relief and monetary damages.1 The district court
granted summary judgment for defendants on the section 1 and
Clayton Act counts. After a twelve-week long trial on the section
2 count, the jury returned a special verdict leading to judgment in
favor of defendants. Players now appeal the disposition of all
three counts. We begin with a statement of the background facts.
I. BACKGROUND FACTS
Despite professional soccer's popularity abroad, the
sport has achieved only limited success in this country. Several
minor leagues have operated here (four such leagues exist today),
but before the formation of MLS, only one other U.S. professional
league--the North American Soccer League ("NASL")--had ever
obtained Division I, or top-tier, status. Launched in 1968, the
NASL achieved some success before folding in 1985; MLS attributes
the NASL's demise in part to wide disparities in the financial
resources of the league's independently owned teams and a lack of
centralized control.
1
The plaintiffs comprise eight named MLS players and a
certified injunctive class of 600 past, present, and future MLS
players. The operator/investors named in the suit include: Kraft
Soccer, LP; Anschutz Soccer, Inc.; Anschutz Chicago Soccer, Inc.;
South Florida Soccer, LLC; Team Columbus Soccer, LLC; Team Kansas
City Soccer, LLC; Los Angeles Soccer Partners, LP; Empire Soccer
Club, LP; and Washington Soccer, LP.
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In 1988, the USSF, the national governing body of soccer
in the United States, 36 U.S.C. § 220501 et seq., was awarded the
right to host the 1994 World Cup soccer tournament in the U.S. by
the Federation Internationale de Football Association ("FIFA"),
soccer's international governing body. In consideration for the
coveted sponsorship rights, the USSF promised to establish a viable
Division I professional soccer league in the U.S. as soon as
possible.
The USSF decided as early as 1988 to sanction only one
Division I professional league. The concern was that sanctioning
rival leagues would dilute revenues, drive up costs, and thereby
dim the long-term prospects for Division I soccer in the U.S.
Indeed, MLS contends no other country has sanctioned more than one
Division I league within its borders, although arrangements in
other countries could be variously described.
Just before World Cup USA play began, in early December
1993, three organizations presented competing plans to develop a
Division I professional soccer league to the USSF National Board of
Directors. The three competing organizers were: League One
America; the American Professional Soccer League ("APSL"), an
existing Division II league; and Major League Professional Soccer
("MLPS"), the precursor to MLS, headed by the USSF's own president,
Alan Rothenberg.
At its December 5, 1993, meeting the USSF board
tentatively selected MLPS as the exclusive Division I professional
soccer league in the U.S., based upon its relatively strong
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capitalization, higher proposed spending, business plan and
management. The board also reaffirmed its intention to sanction
only one Division I league. But in January 1995, the USSF
announced that it would consider sanctioning additional leagues
which could meet rigorous new financial and operating standards
beginning with the 1998 season.
In the wake of a successful World Cup USA, MLS was
officially formed in February 1995 as a limited liability company
("LLC") under Delaware law. The league is owned by a number of
independent investors (a mix of corporations, partnerships, and one
individual) and is governed by a management committee known as the
board of governors. Some of the investors are passive; others are
also team operators as explained below.
MLS has, to say the least, a unique structure, even for
a sports league. MLS retains significant centralized control over
both league and individual team operations. MLS owns all of the
teams that play in the league (a total of 12 prior to the start of
2002), as well as all intellectual property rights, tickets,
supplied equipment, and broadcast rights. MLS sets the teams'
schedules; negotiates all stadium leases and assumes all related
liabilities; pays the salaries of referees and other league
personnel; and supplies certain equipment.
At issue in this case is MLS's control over player
employment. MLS has the "sole responsibility for negotiating and
entering into agreements with, and for compensating, Players." In
a nutshell, MLS recruits the players, negotiates their salaries,
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pays them from league funds, and, to a large extent, determines
where each of them will play. For example, to balance talent among
teams, it decides, with the non-binding input of team operators,
where certain of the league's "marquee" players will play.
However, MLS has also relinquished some control over team
operations to certain investors. MLS contracts with these
investors to operate nine of the league's teams (the league runs
the other three). These investors are referred to as
operator/investors and are the co-defendants in this action. Each
operator/investor has the "exclusive right and obligation to
provide Management Services for a Team within its Home Territory"
and is given some leeway in running the team and reaping the
potential benefits therefrom.
Specifically, the operator/investors hire, at their own
expense and discretion, local staff (including the general managers
and coaches of their respective teams), and are responsible for
local office expenses, local promotional costs for home games, and
one-half the stadium rent (the same portion as MLS). In addition,
they license local broadcast rights, sell home tickets, and conduct
all local marketing on behalf of MLS; agreements regarding these
matters do not require the prior approval of MLS. And they control
a majority of the seats on MLS's board, the very same body which
runs the league's operations. Among other things, the board is
responsible for hiring the commissioner and approving national
television contracts and marketing decisions, league rules and
policies (including team player budgets), and sales of interests.
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The operator/investors also play a limited role in
selecting players for their respective teams. While the operating
agreements provide that the operator/investors will not bid
independently for players against MLS, they may trade players with
other MLS teams and select players in the league's draft. Such
transactions, however, must follow strict rules established by the
league. Most importantly, no team may exceed the maximum player
budget established by the management committee.
In return for the services of the operator/investors, MLS
pays each of them a "management fee" that corresponds (in large
part) to the performance of their respective team. The management
fee equals the sum of one-half of local ticket receipts and
concessions; the first $1,125,000 of local broadcast revenues,
increasing annually by a percentage rate, plus a 30% share
(declining to 10% by 2006) of any amount above the base amount; all
revenues from overseas tours; a share of one-half the net revenues
from the MLS Championship Game and a share of revenues from other
exhibition games.
The remaining revenues of the league are distributed in
equal portions to all investors. Thus, while the investors qua
investors share equally in the league's profits and losses, the
individual team operators qua operators fare differently depending
at least in part on the financial performance of their respective
teams. It bears mentioning, however, that neither the league nor,
apparently, any of its teams has yet made a profit.
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Although the league retains legal title to the teams, the
operator/investors may transfer their operating rights, within
certain limits, and retain much of the value created by their
individual efforts and investments. Investors may transfer their
ownership stakes and operating rights to other current investors
without obtaining prior consent; transfers to outside investors,
however, require a two-thirds majority vote of the board. For its
part, MLS may terminate any operating agreement on its own
initiative if, by a two-thirds vote of the board, an
operator/investor is determined to have failed to act in the best
interests of the league. If so, it must still pay such
operator/investor fair market value for its operating rights and
ownership interest.
The league began official play in 1996. The following
February of 1997, eight named players sued MLS, the USSF, and the
operator/investors under various antitrust theories. The
injunctive class was certified in January of 1998. Fraser v. Major
League Soccer, LLC, 180 F.R.D. 178 (D. Mass. 1998). In count I,
the players claimed MLS and its operator/investors violated Sherman
Act section 1 by agreeing not to compete for player services. In
count III,2 the players claimed MLS monopolized or attempted to
monopolize, or combined or conspired with the USSF to monopolize,
the market for the services of Division I professional soccer
players in the U.S., in violation of Sherman Act section 2, by
2
Count II, a challenge to FIFA's transfer fee policies, and a
state law contract claim were severed and stayed pending final
resolution of this appeal.
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preventing any other entity from being sanctioned as a Division I
professional soccer league in the United States or otherwise
competing against MLS. In count IV, the players claimed that the
combination of assets of the operator/investors in MLS
substantially lessened competition and tended to create monopoly in
violation of Clayton Act section 7.
In February 1998, before the close of discovery, MLS and
its operator/investors moved for summary judgment on counts I and
IV; players cross-moved, seeking to block MLS from asserting a
single entity defense on count I. On April 19, 2000, the district
court granted MLS summary judgment on both counts, holding that MLS
and its operator/investors comprised a single entity and as such,
could not conspire in violation of section 1. Fraser v. Major
League Soccer, LLC, 97 F. Supp. 2d 130, 135-39 (D. Mass. 2000). On
the section 7 claim, the court held that the creation of MLS "did
not reduce competition in an existing market because when the
company was formed there was no active market for Division I
professional soccer in the United States." Id. at 141.
Subsequently, at a June 2000 status conference on the
remaining section 2 claims, players indicated (apparently for the
first time) that they intended to introduce evidence that MLS
prohibited all competition for players among the MLS
operators/investors as part of their section 2 claim as well. The
court, however, prohibited players from introducing evidence on the
operation of MLS--except to the extent it provided the jury with
useful background information--finding this version of players'
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monopoly conduct argument precluded by its earlier section 1
summary judgment decision.
A three-month jury trial commenced in September 2000 on
players' remaining section 2 claims. At the close of evidence, the
court dismissed the section 2 claims against the
operator/investors, and that ruling is not appealed now, leaving
only MLS and the USSF as defendants. Fed. R. Civ. P. 50. The
court then submitted a 15-question special verdict form to the
jury. On December 11, 2000, the jury returned its verdict after
answering only the first two questions. It found that players had
failed to prove what they had alleged, namely, that the relevant
geographic market is the United States and that the relevant
product market is limited to Division I professional soccer
players. The court thereafter entered judgment dismissing count
III and denied players' Rule 50 motions. Players then filed this
appeal.
II. SHERMAN ACT SECTION 1
Some have urged that sports leagues in general be treated
as single entities--individual sports teams, after all, must
collaborate to produce a product. Cf. Chicago Prof'l Sports Ltd.
P'ship v. NBA, 95 F.3d 593, 599-600 (7th Cir. 1996); NFL v. N. Am.
Soccer League, 459 U.S. 1074 (1982) (Rehnquist, J., dissenting from
the denial of certiorari). However, this approach has not been
adopted in this circuit, Sullivan v. NFL, 34 F.3d 1091, 1099 (1st
Cir. 1994), and we must work with the framework of existing circuit
-10-
law. Single entity status for ordinarily organized leagues has
been rejected in several other circuits as well.3
Even so, the district court concluded that under
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984),
MLS and its operator/investors were uniquely integrated and did
comprise a single entity. Copperweld established that a parent and
its wholly owned subsidiary are not subject to attack under section
1 for agreements between them. They are treated for section 1
purposes as a single economic actor. But what the Supreme Court
has never decided is how far Copperweld applies to more complex
entities and arrangements that involve a high degree of corporate
and economic integration but less than that existing in Copperweld
itself.
While MLS defends the district court's single entity
ruling, players say that this view is form over substance and the
substance is simply a conspiracy among de facto team owners to fix
player salaries, which they claim to be a per se violation of the
antitrust laws. We disagree completely with this latter
characterization. We also find that the case for applying single
entity status to MLS and its operator/investors has not been
established but that in this case the jury verdict makes a remand
on the section 1 claim unnecessary.
3
E.g., Los Angeles Mem'l Coliseum Comm'n v. NFL, 726 F.2d
1381, 1388-90 (9th Cir. 1984); N. Am. Soccer League v. NFL, 670
F.2d 1249, 1256-58 (2d Cir. 1982); Smith v. Pro Football, Inc.,
593 F.2d 1173, 1185-86 (D.C. Cir. 1978); Mackey v. NFL, 543 F.2d
606, 620 (8th Cir. 1976).
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If ordinary investors decided to set up a company that
would own and manage all of the teams in a league, it is hard to
see why this arrangement would fall outside Copperweld's safe
harbor. Certainly the potential for competition within the firm is
not enough: after all, a railroad could in theory provide
alternative routes between the same cities and a grocery could
locate competing branches of its chain quite near one another; yet
no law requires competition within a company. It is common
practice, but hardly essential, that the teams in a sports league
have independent owner/managers.
Further, MLS is manifestly more than an arrangement for
individual operator/investors by which they can cap player
salaries. In many ways, MLS does resemble an ordinary company: it
owns substantial assets (teams, player contracts, stadium rights,
intellectual property) critical to the performance of the league;
a substantial portion of generated revenues belongs to it and is to
be shared conventionally with both operator/investors and passive
investors. And the fact that MLS was structured with the aim of
achieving results that might not otherwise be possible does not
automatically condemn it.
Focusing on the operator/investors' role as stockholders,
the district court stressed that both sides of the supposed
conspiracy were parts of the same corporate entity; and it noted
that "unlike MLS, NFL football clubs do not exist as part of an
overarching corporate structure." Fraser, 97 F. Supp. 2d at 138
n.10. And, as Copperweld itself shows, its protection is not lost
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merely because there are separate legal entities--here, the
operator/investors--or because one posits arrangements between them
and MLS that could not be made by existing competitors without
violating the antitrust laws.
Nevertheless, it is hard to treat the corporate
integration as conclusive. The challenge here is primarily to the
operator/investors' role as team managers, not as ordinary
stockholders, and to restrictions imposed on them in that role
preventing competition for player services. That a stockholder may
be insulated by Copperweld when making ordinary governance
decisions does not mean automatic protection when the stockholder
is also an entrepreneur separately contracting with the company.4
Above all, there are functional differences between this case and
Copperweld that are significant for antitrust policy.
First, there is a diversity of entrepreneurial interests
that goes well beyond the ordinary company. MLS and its
operator/investors have separate contractual relationships giving
the operator/investors rights that take them part way along the
path to ordinary sports team owners: they do some independent
hiring and make out-of-pocket investments in their own teams; they
retain a large portion of the revenues from the activities of their
teams; and each has limited sale rights in its own team that relate
4
Cf. Victorian House, Inc. v. Fisher Camuto Corp., 769 F.2d
466, 469-70 (8th Cir. 1985), and Greenville Publ'g Co., Inc. v.
Daily Reflector, Inc., 496 F.2d 391, 399-400 (4th Cir. 1974) (both
cases standing for the proposition that antitrust immunity covering
an action between a corporation and its agent does not extend to
action of the agent acting in its own behalf).
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to specific assets and not just shares in the common enterprise.
One might well ask why the formal difference in corporate structure
should warrant treating MLS differently than the National Football
League or other traditionally structured sports leagues.
This contrasts with Copperweld's observation that the
parent and its wholly owned subsidiary in that case shared a
"complete unity of interests." 469 U.S. at 771. The phrase is not
self-executing and, in addition, it could be taken to explain
Copperweld's result without being an outer limit of the defense.
Chicago Prof'l Sports, 95 F.3d at 598. Still, the existence of
distinct entrepreneurial interests possessed by separate legal
entities distinguishes Copperweld; it further indicates that
certain functions have already been disaggregated and assigned to
different entities; and it makes the potential for actual
competition closer to feasible realization.
Second, in this case the analogy to a single entity is
weakened, and the resemblance to a collaborative venture
strengthened, by the fact that the operator/investors are not mere
servants of MLS; effectively, they control it, having the majority
of votes on the managing board. The problem is especially serious
where, as here, the stockholders are themselves potential
competitors with MLS and with each other. Here, it is MLS that has
two roles: one as an entrepreneur with its own assets and
revenues; the other (arguably) as a nominally vertical device for
producing horizontal coordination, i.e., limiting competition among
operator/investors.
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From the standpoint of antitrust policy, this prospect of
horizontal coordination among the operator/investors through a
common entity is a distinct concern. Whatever efficiencies may be
thought likely where a single entrepreneur makes decisions for a
corporate entity (or set of connected entities), the presumption is
relaxed--and may in some contexts be reversed--where separate
entrepreneurial interests can collaborate; the fixing of above
market prices by sellers is the paradigm.5 This does not make MLS
a mere front for price fixing, but it does distinguish Copperweld
by introducing a further danger and a further argument for testing
it under section 1's rule of reason.
To sum up, the present case is not Copperweld but
presents a more doubtful situation; MLS and its operator/investors
comprise a hybrid arrangement, somewhere between a single company
(with or without wholly owned subsidiaries) and a cooperative
arrangement between existing competitors. And, of course, there is
not one kind of hybrid but a range of possibilities (imagine the
operator/investors with their separate entrepreneurial interests
but without their control of MLS). The question is what legal
approach to take.
The law at this point could develop along either or both
of two different lines. One would expand upon Copperweld to
5
A less vivid but closer parallel is a situation in which
dealers or franchises, by control or coercion, make the
manufacturer or franchiser impose on them restrictions that the
dealers or franchisees select. See United States v. Topco Assocs.,
405 U.S. 596 (1972); United States v. Sealy, 388 U.S. 350 (1967);
General Leaseways v. Nat'l Truck Leasing Ass'n, 744 F.2d 588 (7th
Cir. 1984); see also XII Hovenkamp, Antitrust Law ¶ 2033b (1999).
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develop functional tests or criteria for shielding (or refusing to
shield) such hybrids from section 1 scrutiny for intra-enterprise
arrangements. This would be a complex task and add a new layer of
analysis; but where the analysis shielded the arrangement it would
serve to cut off similarly difficult, intrusive scrutiny of such
intra-enterprise activities under extremely generalized rule of
reason standards.6 It would also prevent claims, clearly
inappropriate in our view, under per se rules or precedents dealing
with arrangements between existing independent competitors.
The other course is to reshape section 1's rule of reason
toward a body of more flexible rules for interdependent multi-party
enterprises. Sports leagues are a primary example but so are
common franchising arrangements and joint ventures that perform
specific services for competitors (e.g., a common purchasing
entity, see Northwest Wholesale Stationers, Inc. v. Pac. Stationery
and Printing Co., 472 U.S. 284 (1985)). Certainly the trend of
section 1 law has been to soften per se rules and to recognize the
need for accommodation among interdependent enterprises.7
The same choice of approach presents itself in franchise
cases. There, too, we have a close but not complete integration of
separate entities under separate entrepreneurial control.
6
There is some, although not a lot of, circuit case law that
looks in this direction. City of Mt. Pleasant v. Associated Elec.
Coop., Inc., 838 F.2d 268, 274-77 (8th Cir. 1988); see also Chicago
Prof'l Sports, 95 F.3d at 598.
7
E.g., NCAA v. Bd. of Regents, 468 U.S. 85, 100-103 (1984);
McCormack v. NCAA, 845 F.2d 1338, 1344 (5th Cir. 1988); Los Angeles
Mem'l Coliseum, 726 F.2d at 1387; N. Am. Soccer League, 670 F.2d at
1258-59; Smith, 593 F.2d at 1177-81; Mackey, 543 F.2d at 619-20.
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Traditionally, vertically imposed arrangements restricting
competition among franchisees have been tested (and often upheld)
under the rule of reason. E.g., Am. Motor Inns v. Holiday Inns,
Inc., 521 F.2d 1230, 1241-43 (3d Cir. 1975); see also 1 Glickman,
Franchising § 4.03[2] (2001); XII Hovenkamp, Antitrust Law ¶ 2033
(1999). Yet since Copperweld, several district court decisions
have avoided the section 1 inquiry by deeming franchiser and
franchisee part of a single entity.8
Once one goes beyond the classic single enterprise,
including Copperweld situations, it is difficult to find an easy
stopping point or even decide on the proper functional criteria for
hybrid cases. To the extent the criteria reflect judgments that a
particular practice in context is defensible, assessment under
section 1 is more straightforward and draws on developed law.
Indeed, the best arguments for upholding MLS's restrictions--that
it is a new and risky venture, constrained in some (perhaps great)
measure by foreign and domestic competition for players, that
unquestionably creates a new enterprise without combining existing
competitors--have little to do with its structure.
In all events, we conclude that the single entity problem
need not be answered definitively in this case. The case for
8
The criteria suggested in these cases are so general and so
various (unity of interest, lack of existing competition, extent of
control), as to emphasize the lack of any developed body of law.
See Search Int'l, Inc. v. Snelling & Snelling, 168 F. Supp. 2d 621,
624-26 (N.D. Tex. 2001); St. Martin v. KFC Corp., 935 F. Supp. 898,
906 (W.D. Ky. 1996); Hall v. Burger King Corp., 912 F. Supp. 1509,
1548 (S.D. Fla. 1995); Williams v. Nevada, 794 F. Supp. 1026, 1030-
32 (D. Nev. 1992), aff'd, 999 F.2d 445 (9th Cir. 1993) (per
curiam).
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expanding Copperweld is debatable and, more so, the case for
applying the single entity label to MLS. But even if we assume
that section 1 applies, it is clear to us that the venture cannot
be condemned by per se rules and presents at best a debatable case
under the rule of reason. More significantly, as structured by
plaintiffs themselves, this case would have been lost at trial
based on the jury's rejection of plaintiffs' own market definition.
The rejection of the per se rule is straightforward.
Although players portray MLS as a sham for horizontal price fixing,
the extent of real economic integration is obvious. Further, MLS
and its investors did not compete previously; the arrangement was
formed as a risky venture against a background of prior failure,
cf. United States v. Jerrold Elecs. Corp., 187 F. Supp. 545, 556-68
(E.D. Pa. 1960), aff'd, 365 U.S. 567 (1961); and the outcome has
been to add new opportunities for players--a Division I soccer
league in the United States--and to raise salaries for soccer
players here above existing levels.
The possibility that a less integrated and restrictive
salary regime might make some individual salaries even higher is
hardly conclusive. Without the restrictions, MLS might not exist
or, if it did, might have larger initial losses and a shorter life.
This would hardly enhance competition. Thus, the effects of the
MLS arrangement are simply too uncertain to warrant application of
the per se rule. NCAA v. Bd. of Regents, 468 U.S. at 100-103. As
in any other non-per se case, players would have to show that MLS
exercised significant market power in a properly defined market,
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that the practices in question adversely affected competition in
that market and that on balance the adverse effects on competition
outweighed the competitive benefits. See Augusta News Co. v.
Hudson News Co., 269 F.3d 41, 49 (1st Cir. 2001).
Here, the jury said that neither the United States nor
Division I delimited the relevant market--findings that imply that
MLS faced significant competition for player services both from
outside the United States and from non-Division I teams. That
inference at a minimum creates uncertainty as to whether the jury
could have found market power under section 1. However, the
peculiar assemblage of evidence, including MLS-authored materials
suggesting that it expected to exercise some control over player
salaries (see Part III below), makes it impossible to rule out
abstractly the possibility of a jury finding of MLS market power in
a broader market.
MLS has urged that the jury verdict rejecting the United
States/Division I market urged by plaintiffs should be preclusive.
The argument purportedly rests on the doctrine of collateral
estoppel. We agree with the plaintiffs that collateral estoppel
goes no further than to preclude them at a new trial from urging
the market already rejected by the jury. Restatement (Second) of
Judgments §§ 27-28 (1982). In theory, there may be a broader
market which plaintiffs might show (without contradicting the jury
findings) in which unrestricted salary competition between the MLS
operator/investors might result in somewhat higher player salaries.
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In that event, assuming that the single entity defense failed, a
basis for liability might exist.
However, we have been given no reason to think that any
other market would have been alleged and made the subject of proof
if the section 1 claim had gone to trial along with the section 2
claims. In their complaint, the plaintiffs' main theory under
count I was that MLS operated as a price-fixing or group boycott
conspiracy for which no market power needed to be shown. A
relevant market was nevertheless alleged in count I, apparently
because the plaintiffs recognized that a pro-competitive purpose
might be urged and a rule of reason balancing might be required.
That relevant market was described by count I, as in the section 2
and section 7 counts, as competition for Division I soccer players
in the United States. See Plaintiffs' First Amended Complaint ¶¶
32, 59, 70, 78.
Proof of such a market was the consistent theme of
plaintiffs' section 2 trial evidence. To be sure, had the section
1 claim been put to trial, the plaintiffs could have sought to
amend their complaint to allege a different market, but there is no
obvious reason to think that they would have done so. The United
States/Division I theory alleged in the complaint was the most
favorable for each of their claims and the easiest to define; and
the focus on a single market theory would have allowed the
plaintiffs to focus their proof on a single market definition.
Plaintiffs did have some incentive to allege a broader market under
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sections 1 and 7,9 but that incentive existed when they filed their
complaint as well.
Even if the players had sought to amend their complaint
after summary judgment, we have great doubt whether such an
amendment would have been permitted. See Acosta-Mestre v. Hilton
Int'l of P.R., Inc., 156 F.3d 49, 51-52 (1st Cir. 1998). The
district court granted summary judgment in April 2000--more than
three years after the initial complaint was filed, more than one
year after discovery was largely complete, and barely five months
before beginning of trial. At that point in the proceedings,
adding a new market theory would have substantially altered the
contours of the case--potentially requiring new discovery and
expert analyses based on the new alleged market.10
We thus have every reason to think that if the section 1
claim had not been dismissed on summary judgment it would have been
presented at trial with the same market analysis alleged in the
complaint. It follows that had the district court allowed the
section 1 claim, it too would have been defeated by the jury's
finding that the market alleged in the complaint had not been
9
Whereas section 2 requires monopoly power or a prospect of
it, significant market power is enough to trigger section 1's rule
of reason approach; similarly, something less than monopoly power
is required to condemn mergers under section 7's "substantially
lessen competition" test. Columbia Metal Culvert Co. v. Kaiser
Aluminum & Chem. Co., 579 F.2d 20, 27 n.11 (3d Cir. 1978).
10
Indeed, by June 1999, players' economic expert, Roger Noll,
had concluded that the relevant market was limited to U.S. Division
I soccer; he did not attempt to define any alternative market, nor
did he suggest that MLS might exercise market power in some broader
market.
-21-
proved. Accordingly, any error in dismissing the claim based on a
single entity theory was harmless so long as the jury verdict
stands, a matter we address in the next section. The outcome, as
the plaintiffs shaped their own case, would have been the same.
Liberty Mut. Ins. Co. v. Metro. Life Ins. Co., 260 F.3d 54, 62 (1st
Cir. 2001).
III. SHERMAN ACT SECTION 2
At trial, players alleged three possible violations of
section 2: that MLS monopolized the market for Division I
professional soccer in the U.S.; that it attempted to monopolize
that market; and that it conspired with the USSF to monopolize the
same market. The jury found that players had failed to establish
the relevant market as alleged; it reached no other issue in the
case. The court thereafter entered judgment for the defendants on
all three section 2 claims.
Monopolization and attempted monopolization claims. At
the outset, players contend that the district court erred by
refusing to allow them, in their monopolization and attempted
monopolization claims, to argue that elimination of competition for
players was an anticompetitive means of monopolization. The
district court did so on the ground that this argument would simply
resurrect the section 1 claim that had already been rejected by its
single entity ruling; section 2 remained available to attack the
exclusivity arrangement between MLS and the USSF, which was the
gravamen of the complaint's section 2 count. Players respond that
-22-
the same conduct may constitute an element of both antitrust
claims.
To show monopolization, players had to prove that MLS had
engaged in an act that helped create or maintain its alleged
monopoly. III Areeda & Hovenkamp, Antitrust Law ¶ 650a (rev. ed.
1996). In section 2 cases, the wrongful act is usually one
designed to exclude competitors from the market (e.g., predatory
price, exclusive dealing). See Aspen Skiing Co. v. Aspen Highlands
Skiing Corp., 472 U.S. 585, 605 & n.32 (1985). If MLS and its
operator/investors are viewed as a single competitor, then the
league's centralized hiring structure hardly constitutes an
exclusionary act, even if it results in below-market wages for
players. See Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922,
927 (1st Cir. 1984). After all, suppressing player salaries ought
to spur, rather than impair, competition from rival leagues.
However, if the operator/investors are viewed instead
more as individual potential competitors--an issue that we (unlike
the district court) have not decided--it is not difficult to see
how an agreement among them not to compete--a mirror image of
players' section 1 claim--might create a monopsony and eliminate
competition among them. See III Areeda & Hovenkamp, supra, at ¶
703a. Such an act would arguably "exclude" competition for
purposes of section 2, even if it did not harm individual
competitors. Anyway, "exclusion" is only a gloss on the statutory
term "monopolize"; and "merger to monopoly," benign as to the
merged competitors, is a feasible section 2 claim, see Golden Grain
-23-
Macaroni Co. v. FTC, 472 F.2d 882, 886 (9th Cir. 1972), even if it
is more often challenged under Clayton Act section 7, which
requires much less.
Nonetheless, the jury's findings remain as an obstacle.
Attempt and monopolization both require a showing that a market has
been or may well be subject to monopoly power, Spectrum Sports,
Inc. v. McQuillan, Inc., 506 U.S. 447, 457-58 (1993); the only
market alleged by the players was rejected by the jury; and this
dooms the players' section 2 claims regardless of which practice--
the exclusive arrangement with the USSF or the agreement not to
compete for players--is alleged to satisfy the exclusionary act
element of the cause of action. This assumes, however, that the
jury verdict stands.
Not surprisingly, players next shift their focus to the
jury verdict. They say the jury's market findings were tainted by
several trial errors. We review the jury instructions de novo,
Ponce v. Ashford Presbyterian Cmty. Hosp., 238 F.3d 20, 24 (1st
Cir. 2001), and the court's evidentiary rulings for abuse of
discretion unless (as is occasionally true) an issue of abstract
law is presented, United States v. Sposito, 106 F.3d 1042, 1046
(1st Cir. 1997).
First, players say the court's instructions to the jury
on how to define the relevant market were inaccurate and
misleading. Players claim the instructions left the jury unable to
weigh the significance of evidence showing that some MLS players
had employment opportunities in other leagues. For example, MLS
-24-
offered testimony that its players had played in 67 different
foreign leagues, prior to or after playing for MLS; plaintiffs
countered that the opportunities were more limited and less
attractive than MLS claimed.
Specifically, plaintiffs complain that the district court
refused to give two requested instructions: first, that the jury
in defining the relevant market "should consider whether any
effective competition significantly restrains MLS's ability to
control wages for its players"; and second, that the jury should
include in the relevant market only those leagues which are
"sufficiently attractive and practically available to a large
enough number of MLS players to prevent MLS from having the power
to pay wages below competitive market levels."
The first problem is that the plaintiffs did not preserve
these two requests by making, as Fed. R. Civ. P. 51 requires, a
post-instruction objection "stating distinctly the matter objected
to and the grounds of the objection." Plaintiffs did not repeat
these two requests in the same words; instead they objected after
the charge that the instructions had overemphasized the concept of
substitutability at the expense of "other factors" that have been
identified in the case law, which plaintiffs' brief in this court
says includes "the ability of other leagues to constrain the power
of MLS to depress plaintiffs' wages."
Unfortunately, plaintiffs' counsel did not spell out the
last quoted objection at the post-charge conference. To refer only
to "other factors" obviously does not tell the judge just what
-25-
previously requested instruction has been omitted or identify the
factors claimed to be insufficiently stressed. Davis v. Rennie,
264 F.3d 86, 100 (1st Cir. 2001). Accordingly, the failure to give
the two instructions in question is reviewed only for "plain
error"; especially in a civil case this is a very hard test to meet
because over and above plain error, it requires a showing both of
prejudice and a miscarriage of justice or something of this
magnitude. See id. at 101.
As it happens, the district court gave standard
instructions on market definition which, to a considerable extent,
tracked the ABA's model jury instructions in civil antitrust cases.
ABA Sample Jury Instructions in Civil Antitrust Cases, at C-6 to C-
13 (1999). It defined monopoly power as "the power to pay lower
than competitive wages for the services being acquired without
having the sellers of those services--the players--turn to another
league or team for employment"; and it explained that the
geographic market was the geographic area "to which players can
turn, as a practical matter, for alternate opportunities for
employment as professional soccer players." Accord United States
v. Philadelphia Nat'l Bank, 374 U.S. 321, 357-61 (1963); Tampa
Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327 (1961).
The district court could permissibly have enlarged on the
issue, explaining (for example) that a foreign league would be more
likely part of the market as the number of players who could turn
to it increased. But how much to elaborate is largely the
discretion of the district court, Interstate Litho Corp. v. Brown,
-26-
255 F.3d 19, 29 (1st Cir.), cert. denied, 122 S. Ct. 666 (2001),
and in some respects, the players' more detailed formulation could
itself be misleading: MLS could be constrained so long as enough
individual players had an alternative foreign league even if an
individual foreign league would by itself attract or be available
to only a small number of players.11
Next, players claim the court erred in permitting Alan
Rothenberg, one of the founders of MLS and former president of the
USSF, to testify about a legal opinion received by the USSF while
shielding the opinion from discovery or questioning. On direct and
then on cross-examination, Rothenberg disclosed without detail that
the USSF board had obtained a legal opinion that it was lawful to
grant exclusive Division I certification to a single league. At
trial, the players sought to discover the opinion or have all
references to it struck. The court denied both requests, finding
that Rothenberg had not waived the attorney-client privilege by
making his brief references.
It is true, as MLS asserts, that the statement was first
adduced on direct examination by plaintiffs, and its repetition on
cross added nothing new. On the other hand, plaintiffs did not ask
the witness whether a legal opinion had been sought or about its
contents. The witness, himself a lawyer, more or less volunteered
this information. Possibly, the district judge felt that the
11
It is well-settled that a party claiming that an instruction
should have been given forfeits the objection if the instruction it
tenders is itself objectionable. See Savard v. Marine Contracting,
Inc., 471 F.2d 536, 540 (2d Cir. 1972).
-27-
disclosure, even if not directly invited, was legitimate because
otherwise the witness--who had been asked whether antitrust
concerns had been raised by the USSF board--would have been forced
to leave the impression that they had been raised but not seriously
addressed or resolved.
We think that if defense counsel had adduced this
disclosure in the first instance it would be unfair to allow the
legal opinion to be used affirmatively without allowing plaintiffs
to examine it or, at the very least, requiring a severe limiting
instruction (which plaintiffs did not request). The case law is
mixed as to whether there is a waiver of the privilege where there
is a very limited disclosure as to the ultimate opinion without a
disclosure of contents and the answer may depend upon context.12
But on our facts, it is fairly arguable that the plaintiffs opened
the door to the response and, if so, could not use their own
conduct to force the waiver.
So viewed, the district court's decision is tested under
an abuse of discretion standard, and we are unwilling to say that
the decision here was an abuse. Whatever discomfort we feel--and
there is some--is assuaged by our grave doubt that Rothenberg's
disclosure of the opinion as to lawfulness could have had any
effect on a jury verdict that plaintiffs had failed to prove the
relevant market they alleged. Plaintiffs make a stab at showing
12
See United States v. Desir, 273 F.3d 39, 45-46 (1st Cir.
2001); Frontier Ref., Inc. v. Gorman-Rupp, 136 F.3d 695, 704 (10th
Cir. 1998); Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d
851, 863 (3d Cir. 1994).
-28-
prejudice by equating the failure to prove the relevant market with
lawfulness; but although this might be plausible in the abstract,
the notion that the jury decided an essentially factual issue, as
to which there was a mass of conflicting evidence, on the basis of
a brief reference to a legal opinion seems to us highly remote.
Next, players say the court erred in excluding two pieces
of documentary evidence that supported their claims of market
definition and market power. The first is a September 1994
correspondence between Clark Hunt, a prospective MLS
operator/investor, and Mark Abbott, an executive working on the
formation of MLS, regarding assumptions made in a financial model
disseminated by the league's organizers. Hunt later became an
operator/investor in the league through a firm he helped form,
which was a defendant below; Abbott became a senior league officer.
In his letter, Hunt urged that the team player salary
budget be reduced by $70,000, with the "bulk of the reduction"
coming from the "bottom 12 players on each team whose only
alternative is to play in one of the other U.S. professional
leagues or one of the lower division foreign leagues." Hunt also
suggested that salary growth should also be limited to five percent
a year, reasoning that "[u]ntil there is significant domestic-based
competition for MLS players, the rate of salary growth should be
relatively easy to contain." In response, Abbott cautioned that "a
reduction of $70,000 in player salaries per team [would] impact the
quality of players we are able to attract." At the same time, he
-29-
agreed that, "for modeling purposes the player salaries should be
held to [a] 5% [increase] per year."
The court excluded the correspondence, finding it
irrelevant since it was not "made by someone who matters to the
case" and the transcript then reveals a four-page colloquy in which
the parties argue about the issue with the judge. Plaintiffs' main
basis for urging admission of the Hunt letter was that it tended to
show Hunt's own intent to monopolize, the suggestion being that
this view should also be attributed to the firm that Hunt formed
(apparently later) which became an operator/investor and defendant
in the case. On this appeal, plaintiffs switch grounds and urge
that the Hunt letter and Abbott's reply as well were evidence of
plaintiffs' proposed market definition.
Whether the evidence should have been admitted to show
intent on the attempt to monopolize claim is a nice issue but
irrelevant here since the jury resolved the case on market
definition grounds. Plaintiffs' present claim that the evidence
should have been admitted to bolster their market theory and show
the existence of monopoly power founders because it was never
offered for that purpose. See United States v. Joselyn, 206 F.3d
144, 154 (1st Cir. 2000). Further, although no hearsay objection
was made, an interesting question remains whether Hunt's statement
as a prospective investor is properly admissible for either purpose
as an admission of the defendant firm that Hunt later helped form.
Fed. R. Evid. 801(d)(2).
-30-
As to Abbott's letter, it appears from the transcript
that the court was prepared to consider admitting the letter
without the Hunt document but plaintiffs' counsel understandably
demurred. Abbott's statements are quite tame (the first suggests
a lack of market power as to quality players and the second was
"for modeling purposes"). Plaintiffs' further suggestion--that
Abbott was adopting on behalf of MLS whatever was said in the Hunt
letter--is a stretch that the language of the letter does not
support.
Further, any error was harmless. Players were allowed to
introduce numerous other documents, authored by MLS itself,
expressing virtually the same opinions. For example, players were
allowed to introduce a November 1995 offering memorandum, in which
MLS admits that it "does not view [the Division I and Division II
or indoor soccer leagues] as significant competition."13 And at
trial, players' economic expert, Roger Noll, relied on these
documents to support his testimony and conclusions. The excluded
correspondence was thus redundant and could hardly have changed the
outcome.
The next piece of evidence is a March 1994 internal
memorandum written by two employees of the investment firm
13
Players also introduced the league's 1993 business plan, in
which MLS asserted that it would be able to maintain its salary
structure because "[i]t is not anticipated that there will be any
other significant domestic professional league to compete for
players' services." Another document allowed in evidence, a
December 1994 offering memorandum, said "MLS believes it will be
able to maintain this salary structure because of the
competitiveness of the salary and benefit package and the lack of
comparable alternatives in the United States to players."
-31-
Donaldson, Lufkin & Jenrette ("DLJ"). MLS's promoters had
approached DLJ to act as its financial advisor. In the memo, the
DLJ employees conclude that MLS has favorable prospects for
success, noting, inter alia, that the league will "be able to
operate with a strict salary cap," and that there "is a plentiful
supply of good American players that have limited professional
opportunities to play elsewhere."
The court excluded the memo, first, on hearsay grounds,
since it was unclear whether an agency relationship existed at the
time the memo was drafted and whether its contents were within the
scope of the agency, Fed. R. Evid. 801(d)(2)(D); and second, on
relevance grounds, since the views were not attributable to MLS.
On appeal, plaintiffs simply do not respond to the claim that at
the time the statement was made, DLJ was an independent contractor
and not an agent of MLS. See Merrick v. Farmers Ins. Group, 892
F.2d 1434, 1440 (9th Cir. 1990).
In all events, the other documents discussed above which
were introduced into evidence contained virtually identical
statements penned by MLS itself attesting to MLS's early view that
competition in the market was limited. And the DLJ memo, while
helpful to players' cause, was hardly dispositive; it addressed
only the opportunities of American soccer players and said nothing
about the 40% of MLS players who have foreign or dual citizenship
and yet are part of plaintiffs' class. By contrast, MLS's own
statements which were introduced were more helpful to plaintiffs.
Next, players claim the court erred in permitting a
-32-
defense witness, Neil Farnsworth, co-owner of a Seattle Division II
professional soccer team, to testify that he was competing with MLS
for two specific players, while refusing to identify the players by
name on "confidentiality" grounds.
At trial, Farnsworth testified that:
We compete with MLS for players every
day. We have a situation right now where
I have one player that is being courted
by MLS. He's rejected one offer by MLS
now to stay with us.
. . .
We also have a player from MLS that has
played in MLS for probably four years
that has contacted us for next season
expressing an interest to play for us and
then play indoor in addition to playing
for us, instead of playing for MLS.
On cross-examination by players' counsel, Farnsworth
revealed certain details about the player from his own team,
including his salary, but he refused to identify either that player
or his MLS recruit by name, claiming he wanted to keep the
information confidential. Players' objections were denied; the
district court ruled that the players' privacy was at stake, and
therefore, that their names were properly excludable under Fed. R.
Evid. 403. The court also refused players' request to instruct the
jury to ignore the testimony.
Players claim the district court infringed their right to
cross-examine Farnsworth and to test the truth of his assertions.
To be sure, the court has the authority to "protect witnesses
against cross-examination that does little to impair their
credibility but that may damage their reputation, invade their
-33-
privacy, and assault their personality. Rule 403 would permit the
protection of even total strangers to the action." 22 Wright &
Graham, Federal Practice and Procedure § 5215 (1978) (citation
omitted); see Fed. R. Evid. 611(a). But this power is limited to
situations in which the probative value of the evidence is
"substantially outweighed" by the danger of unfair prejudice. Fed.
R. Evid. 403.
Although much discretion resides in the trial judge in
striking this balance, Gasperini v. Ctr. for Humanities, Inc., 149
F.3d 137, 143 (2d Cir. 1998), the denial of the names certainly
limited plaintiffs' ability to cross-examine Farnsworth and it is
unclear to us just what substantial privacy interest was at stake:
if anything, the players would want to shield their names from MLS,
but the league knew whom it was courting from Farnsworth's team and
the possible defector presumably would in due course use
Farnsworth's overtures in bargaining with MLS.
Nonetheless, even without the names, players were able to
test Farnsworth's testimony,14 and other witnesses--including
current and former players and soccer officials--testified to
player movement between leagues. For example, Ivan Gazidas, MLS's
vice president of operations and player relations, testified at
length concerning the competition MLS faced to attract the talents
of several named players from other leagues. Farnsworth's
14
For example, on cross-examination Farnsworth admitted that
he could not be certain whether his player had actually ever
received an offer from MLS. Similarly, he admitted he could not
be sure whether the MLS player he was recruiting actually had an
offer to play in MLS the following season.
-34-
anecdotal testimony, while somewhat helpful to MLS, was by no means
the most powerful evidence adduced at trial to demonstrate inter-
league competition. Accordingly, we find the error was harmless.
Finally, players claim the court erred in admitting in
evidence a chart summarizing the testimony of two defense witnesses
and later permitting the jury to take the chart with them into the
jury room for deliberations. The summary chart listed 67
professional soccer leagues of different divisions from 46
countries; at trial, the two witnesses testified that MLS players
had experience in each of the leagues and marked the chart
accordingly. Both sides used demonstratives at trial which were
admitted into evidence; while players complain generally about the
use of the demonstratives, this summary chart is the only item they
single out on appeal.
In admitting the summaries, the district court reasoned
that the demonstratives would "help the jury to think about a
complex case." At the same time, it recognized the risks involved,
see Air Safety v. Roman Catholic Archbishop, 94 F.3d 1, 7 n.14 (1st
Cir. 1996), and emphasized in its instructions to the jury that
summaries do not "present any independent evidence." It further
cautioned them that the summaries are "admitted for your
convenience and not to substitute for the full testimony of the
witnesses."
It is hard to imagine an issue on which a trial judge
enjoys more discretion than as to whether summary exhibits will be
helpful. Nothing precludes their use with respect to oral
-35-
testimony.15 Here the issues involved in the case and the testimony
were complicated and the jury was properly cautioned as to the
limited role of summaries. Although the court admitted the charts
as "evidence," its instruction made clear that they were merely
aids and that the testimony controlled. We find no abuse of
discretion and need not concern ourselves with whether, as MLS
claims, the objection was somehow waived.
Conspiracy to monopolize. In their third and final
section 2 claim, players allege that MLS conspired with the USSF
"to prevent any other entity from being sanctioned as a Division I
professional soccer league in the United States or otherwise
competing against MLS." The court decided that players were
required to prove the existence of their relevant market on the
conspiracy to monopolize claim; it directed the jury to end its
inquiry on all section 2 claims if it found players had failed to
prove the existence of their market.
At trial and now on appeal, players say claims of
combination or conspiracy to monopolize do not require proof of a
relevant market. For these purposes plaintiffs are not
distinguishing between the concept of a relevant market and the
concepts of monopoly or market power: they are arguing that the
prospect that the alleged conspiracy if successful would achieve
monopsony power in a real economic market was irrelevant to their
claim. Instead, they say they were required to prove only the
15
United States v. Scales, 594 F.2d 558, 563 (6th Cir.), cert.
denied, 441 U.S. 946 (1979); Fed. R. Evid. 611(a); see also 6
Weinstein's Federal Evidence § 1006.08[4] (2001).
-36-
existence of the conspiracy; an overt act in furtherance of it; and
specific intent to monopolize. E.g., Salco Co. v. Gen. Motors Co.,
517 F.2d 567, 576 (10th Cir. 1975).
Conspiracy to monopolize claims are not often the subject
of much attention, since almost any such claim could be proved more
easily under section 1's ban on conspiracies in restraint of trade.
IIIA Areeda & Hovenkamp, Antitrust Law ¶ 809 (1996). However, a
majority of courts that have touched the issue have said, in
general terms and often without analysis, that proof of a relevant
market, and hence, market power, is not required in a conspiracy to
monopolize claim. E.g., Salco, 517 F.2d at 576; see IIIA Areeda &
Hovenkamp, supra, at ¶ 809 & n.2 (collecting cases); ABA Sample
Jury Instructions in Civil Antitrust Cases, supra, at C-100 n.3.
On the other side, there are also a number of decisions
that say that a relevant market is necessary.16 That is also the
view of the more persuasive commentary, including the most
respected of the antitrust treatises. IIIA Areeda & Hovenkamp,
supra, at ¶ 809; accord Comment, The Relevant Market Concept in
Conspiracy to Monopolize Cases under Section 2 of the Sherman Act,
44 U. Chi. L. Rev. 805 (1977). Although we lean toward this view
as a general matter, a black or white rule is not inevitable:
there may in principle be some cases in which one could argue that
16
E.g., Doctor's Hosp. of Jefferson, Inc. v. S.E. Med.
Alliance, Inc., 123 F.3d 301, 311 (5th Cir. 1997); Bill Beasley
Farms, Inc. v. Hubbard Farms, 695 F.2d 1341, 1343 (11th Cir. 1983);
Alexander v. Nat'l Farmers Org., 687 F.2d 1173, 1182 (8th Cir.
1982); Joe Westbrook, Inc. v. Chrysler Corp., 419 F. Supp. 824, 845
(N.D. Ga. 1976).
-37-
a conspiracy claim should be provable without a showing that the
alleged market is a real economic market. This case is not among
them.
Here the "conspiratorial agreement" is a garden variety
exclusive dealing arrangement limited to three years. Such
agreements are not inherently unlawful; they are judged primarily
by considering, in addition to competitive or efficiency
justifications, any actual or threatened adverse effects on
competition. Tampa Elec. Co., 365 U.S. at 327; U.S. Healthcare,
Inc. v. Healthsource, Inc., 986 F.2d 589, 594 (1st Cir. 1993).
Predicted effects turn, obviously, on the establishment of a market
in which the exclusive dealing arrangement may affect prices or
competitors. Absent threatened effects, there is normally no basis
for condemning an exclusive dealing arrangement.
All implemented exclusive dealing contracts involve both
a nominal conspiracy (the agreement) and acts in furtherance
(whatever dealings take place). To tell a jury that it may condemn
such contracts--without proof of any threatened effect on the
market--would create not only confusion for the jury but invite an
end run around the threatened effects required by the case law for
exclusive dealing under both section 1 and the attempt and
monopolization requirements of section 2. IIIA Areeda & Hovenkamp,
supra, at ¶ 809.
The point is summed up neatly in the Areeda-Hovenkamp
treatise:
Where the agreements involved would also be
held to offend §1 without the necessity of
-38-
proving power, the failure to require it for
the §2 conspiracy offense is understandable.
However, in those instances where [market]
power is a prerequisite to holding an
agreement to be an unreasonable restraint of
trade--a joint venture, for example--it would
make no sense to hold the same agreement
offensive to §2 without proof of power. To
require power under §1 before condemning a
particular agreement is necessarily to say
that the arrangement is socially desirable, or
at least not harmful, in the absence of power.
That policy conclusion cannot sensibly be
avoided or negated by the simple trick of
calling the agreement a conspiracy to
monopolize.
IIIA Areeda & Hovenkamp, supra, at ¶ 809 (emphasis added).
Where parties agree to achieve an admittedly unlawful
result, such as a murder or burglary, there is case law to the
effect that the prosecutor need not show that the plan was feasible
and that impossibility (at least in some situations) is not a
defense. 2 LaFave & Scott, Substantive Criminal Law § 6.5(b)
(1986); Developments in the Law--Criminal Conspiracy, 72 Harv. L.
Rev. 922, 944-45 (1959). This is presumably the source of the
antitrust case law relied on by plaintiffs. But the rationale of
this classic view is that the conspiracy should be punished because
the demonstrated intent to break the law shows that the
conspirators are dangerous even if this particular venture was
impractical. 2 LaFave & Scott, supra, at § 6.5(b).
Perhaps this view is equally justified in antitrust cases
where the evidence shows that the conspirators were aiming at a
demonstrably illegal result, say, a world wide monopoly of gold
production or a naked horizontal allocation of markets. In our
case, there is no dispute that defendants aimed at being the only
-39-
Division I soccer league in the United States at least for three
years and that they enlisted the USSF to achieve this end. But the
illegality of such an arrangement is far from clear. To ignore the
question whether this is a relevant market in the economic sense is
to assume that the end aimed at is illegal. Here, the jury found
that control of U.S./Division I soccer would not comprise a
monopoly.
In sum, there may be contexts in which the existence vel
non of a relevant market is beside the point in a conspiracy to
monopolize case, but this case is not one of them. The exclusivity
agreement sought by MLS might be unlawful if it threatened adverse
competitive effects but not otherwise; and this in turn required
proof that someone who was the only purchaser of Division I soccer
player services in the United States would control prices in an
economic market.
IV. CLAYTON ACT SECTION 7
In their final argument, players say that the district
court erred in dismissing their claim that the formation of MLS
violated section 7 of the Clayton Act. Count IV of the complaint
alleged that, "[i]f not for this combination of assets and purchase
of stock, MLS Member Teams would compete with each other for
players, like teams in all other major professional sports leagues
in the United States." Section 7 prohibits, with certain commerce-
related conditions, stock or asset acquisitions whose effect "may
be substantially to lessen competition, or to tend to create a
monopoly." 15 U.S.C. § 18.
-40-
The district court granted summary judgment to the
defendants on the ground that "[t]here can be no § 7 liability
because the formation of MLS did not involve the acquisition or
merger of existing business enterprises, but rather the formation
of an entirely new entity which itself represented the creation of
an entirely new market." Fraser, 97 F. Supp. 2d at 140. According
to the district court:
The relevant test under § 7 looks to whether
competition in existing markets has been
reduced. . . . Where there is no existing
market, there can be no reduction in the level
of competition. There are no negative numbers
in this math; there is nothing lower than
zero. Competition that does not exist cannot
be decreased. The creation of MLS did not
reduce competition in an existing market
because when the company was formed there was
no active market for Division I professional
soccer in the United States.
Id. at 140-41 (citing SCM Corp. v. Xerox Corp., 645 F.2d 1195 (2d
Cir. 1981)).
Both sides make much of the district court's reference to
a "new market." Players say that this contradicts the jury's
finding that United States/Division I soccer is not a separate
market and, anyway, there is no implied immunity from section 7 for
combinations that lessen competition in a new market. Defendants
say that the district court merely held the players to the market
they themselves alleged and was entitled to do so on summary
judgment.
The district court was saying no more than that, after
the failure of the NASL and prior to the formation of MLS, there
was no enterprise engaged in providing Division I soccer in the
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United States and thus that a combination that added Division I
soccer in this country could hardly reduce competition where none
before existed. This is plainly correct insofar as the creation of
MLS added a new entrant without subtracting any existing
competitors. To this extent, the most common threat addressed by
section 7--the merger of two or more entities currently competing
with one another, e.g., United States v. Philadelphia Nat'l Bank,
374 U.S. 321 (1963); Brown Shoe Co. v. United States, 370 U.S. 294
(1962)--is not present in this case.
The Supreme Court has recognized that section 7 also
reaches mergers that combine an existing competitor with a
potential competitor commonly perceived to be a strong potential
entrant where the number of such entrants is limited. United
States v. Marine Bancorp., Inc., 418 U.S. 602, 624-25 (1974);
United States v. Falstaff Brewing Corp., 410 U.S. 526, 531-32
(1973). In such cases, the notion is that the gobbling up of the
"perceived potential entrant" removes an existing constraint on
competition and thus reduces present competitive pressure that may
currently be constraining price. Falstaff, 410 U.S. at 532.
The players make no attempt to show that this form of
existing competitive constraint was eliminated by the formation of
MLS. Rather, their explicit theory is that, if MLS were held
unlawful under section 7, its operator/investors would enter the
market independently, thus increasing the amount of competition
over and above the level provided by MLS itself.
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At the outset, the question arises whether section 7 can
be used to prevent a merger that itself increases competition where
it can be confidently predicted that prevention will or probably
will increase competition even more. The classic hypothetical is
the merger of an existing competitor with a non-competing company
whose interest in entry is unknown and so exerts no current
pressure on the market as a perceived potential entrant. Yet when
its private files are examined incident to a court suit, plans are
discovered for independent entry if the merger is disallowed.
The Supreme Court has expressly reserved the question
whether section 7 can be read to reach such a case. Marine
Bancorp., 418 U.S. at 639; Falstaff, 410 U.S. at 537. To our
knowledge only one circuit has expressly applied section 7 so
broadly, Yamaha Motor Co. v. FTC, 657 F.2d 971, 978-80 (8th Cir.
1981), cert. denied sub nom. Brunswick Corp. v. FTC, 456 U.S. 915
(1982), and the district court apparently rejected this view,
Fraser, 97 F. Supp. 2d at 141.
It is uncertain how the Supreme Court will ultimately
resolve the issue. Plaintiffs' view bumps up against the most
straightforward reading of the phrase "may . . . lessen
competition" in which "competition" is understood to refer to the
existing level of competition prior to the merger in question.
Further, it is often hard enough to determine whether a merger will
reduce competition in relation to a known baseline, namely,
existing market conditions. If a new combination will, as here,
initially enhance competition, one might hesitate at a further and
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even more difficult conjecture that prohibiting the transaction
would lead to even more competition further down the line.
On the other hand, the antitrust statutes are not always
read literally, as Copperweld itself demonstrates, see also Standard
Oil Co. v. United States, 221 U.S. 1 (1911) (rule of reason read
into restraint of trade). The Antitrust Division, often a
significant influence on the development of antitrust case law,
seemingly supports a generous reading of Section 7 to embrace so
called "actual potential competition." Dep't of Justice Non-
Horizontal Merger Guidelines § 4.112, 49 Fed. Reg. 26,824, 26,834
(1984); accord V Areeda & Turner, Antitrust Law ¶ 1118 (1980). And
there might be cases where the facts might compel the conclusion
that turning down a pro-competitive merger (compared to the status
quo) would produce an even more competitive realignment.
That is not this case. Here, there is no possible way to
predict just what would happen if the current version of MLS were
precluded. Players assert that, had the operator/investors not
formed MLS, they would have entered the market as a traditionally
structured league. But as the district court noted, it is "not
inevitable that the league would be formed and would operate the
same way as previous sports leagues." Fraser, 97 F. Supp. 2d at
142. More importantly, it is quite possible these investors would
have found the alternative structures unattractive and simply
abandoned their effort altogether--hardly a pro-competitive outcome.
Even the alternative result suggested by players--that
another, more traditionally structured league like the APSL would
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have received the Division I sanction instead--appears on the
surface no more pro-competitive. The evidence indicates that the
APSL was not as well financed or well managed as MLS (hence the
USSF's decision to certify MLS and not the APSL), thus increasing
the risk that the new Division I league would fail in the long run.
In addition, elevating the APSL to Division I status would not
necessarily increase competition significantly, since the APSL, an
existing minor league, may have already been in the relevant market.
It might be argued that these objections present issues
that a jury ought to consider; but there is one final objection that
the jury did effectively consider. Even advocates of a broader
reading of section 7 concede that striking down a combination that
does not threaten present competition could be justified, in the
hope of obtaining more competition in the future, only in already
concentrated markets. "In the absence of significant market power
in the hands of existing firms, . . . the loss through merger of a
potential entrant would not affect present or future competition."
V Areeda & Turner, supra, ¶ 1119a.
Thus, even on the broader reading of section 7 and
allowing room for conjectures about future effects, it would have
been necessary for players to prove that MLS operates within a
relevant economic market that is presently concentrated. In their
section 7 count, the players alleged the same relevant United
States/Division I market as in their section 1 and section 2 counts.
For reasons already discussed in connection with the section 1
claim, the jury's rejection of this relevant market would also have
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doomed the section 7 claim based on enhancing future competition if
it too had been presented.
Affirmed.
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