Fraser v. Major League Soccer, L.L.C.

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

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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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