Sitting by Designation, concurring in part, dissenting in part.
INTRODUCTION:
I respectfully dissent from the majority’s opinion, insofar as it affirms the district judge’s directed verdict that the N.F.L. was not a single entity as a matter of law.
The dispositive issue before this Court is whether the N.F.L.’s invocation of Rule 4.3 to block the Raiders’ move to Los Angeles violates the letter and spirit of § 1 of the Sherman Act, 15 U.S.C. § 1. I conclude that the N.F.L. is, as a matter of law, a single entity insofar as this aspect of its operations is concerned, and not subject to the strictures of Sherman Act § 1.
These appeals arise from the controversial relocation of the Raiders National Football League franchise (“Raiders”) from Oakland, California to Los Angeles, California. Although many subsidiary procedural issues are posed on appeal, the case stands or falls on whether the trial judge properly concluded that the N.F.L. was not a “single entity”, thereby exposing it to liability for Rule 4.3 under the Sherman Act, § 1.
FACTS:
Our consideration of the issue whether or not Rule 4.3 of Article IV of the N.F.L. Constitution violates federal antitrust laws must turn on the relationship of Rule 4.3 to the structure of the league. For this reason, it is appropriate to briefly examine the history and nature of the N.F.L. as a business association, before addressing the issues raised on this appeal.
A. The Relevant History of the N.F.L.
The N.F.L. was established early in this century as an unincorporated business association, the members of which were member franchise clubs dispersed throughout the United States. All but one of its members are privately owned and operated, and although members of the N.F.L. compete on the playing field, they act jointly in many aspects of their enterprise, as the term “league" implies.
The N.F.L.’s Constitution and By-Laws wield almost plenary control over member clubs’ activities; the N.F.L. acts as the legislative entity which sets rules for, and schedules contests between member clubs, and regulates many other aspects of the *1402operation of the professional football industry, (e.g., an annual draft of eligible college athletes), including the territorial restriction on franchise relocation found in Rule 4.3.
Of particular importance to our analysis is the fact that the N.F.L. Constitution provides for coordination of business activities and revenue sharing to an overwhelming degree. For example, the money derived from lucrative national broadcasting contracts is shared among league members according to agreed upon formulae, and this revenue makes up a large part of the revenue of each team. As to gate receipts for regularly scheduled contests between member clubs, there is a prearranged equation splitting gate admissions between the “home” and “visiting” clubs. Thus, each team relies,- to a significant degree, on revenue jointly generated.1 It is not surprising that, concomitant with this virtual “partnership” arrangement, of which the above-mentioned revenue sharing is most significant, other operating decisions which would normally be made by the owners .of a single franchise are subordinated to specified consent of the other clubs. For example, establishment of a new franchise is submitted for approval to all N.F.L. owners before any expansion is permitted. Agreements among owners regarding who shall have the right to employ certain athletes occur every year at an annual “draft” of available players.
At issue here is one aspect of the relationship among the member clubs of the N.F.L. as to when a member franchise club may be relocated to a city other than its original home. It is quite relevant to disposition of this instant suit that those challenging the legality of Rule 4.3 are the Raiders, presently a member club, and the L.A. Coliseum, a stadium seeking an N.F.L. tenant.
B. The History of the Present Action.
I agree in large part with the majority’s review of the facts leading up to the two trials below. However, I would emphasize the troubling effect that the stipulation on the presentation of evidence in the second trial had upon the sufficiency of the evidence on relevant markets that was actually placed before the jury.2
C. The Various Appeals Pending before this Court.
In addition to the appeal to which the majority and I turn our primary attention, several other motions are pending before this Court. It is these items, and the questions that these cross-appeals raise, that I now address.
Once in this Court, the parties have continued to file multiple, and somewhat conflicting, appeals. The motions that have not been resolved by the majority are largely different procedural means to accomplish the same ends; I discuss the more significant below.
First, the N.F.L. has moved this Court for permission to supplement the record on the question of the effect of the stipulation entered into by the parties concerning the evidence introduced at the second trial on the relevant market. I find the majority’s treatment of this matter interesting, inasmuch as it suggests that the issue of relevant market is no longer one for the jury; we admit to similar surprise that the very evidence that the parties thought at a minimum should have been placed before the jury was, in fact, never so placed in the second trial. Regardless of how the majority wishes to restate the manner in which relevant market is to be proven in this Circuit, its approach is to recharacterize the case as was tried, and suggest by inference that the plaintiff may discharge its burden of establishing the relevant product and geographic markets by a theoretical argu*1403ment to the court, rather than by presenting evidence to a jury; this lynchpin of its “rule of reasonableness” cannot pass as innocuously by long-standing precedent as the majority would have it. Since I feel that it was error to submit Rule 4.3 to the jury in this context, I would not so strain the case as was tried the second time around to conform it to some new, and as yet undefined, rule of law.
Second, the Raiders cross-appeal from the district judge’s rulings: (1) determining, on summary judgment, that N.F.L. Rule 4.3 was effectively amended on October 5, 1978; (2) that, as a matter of law, no contract was created between the Raiders and the N.F.L., on October 5,1978; and, (3) that a directed verdict on behalf of Rozelle, Frontiere and Klein was appropriate, would presumably be withdrawn, under the majority’s disposition; I would affirm the trial court’s handling of all three matters.
Finally, as for the N.F.L.’s motion for remand of the injunctive judgment entered on June 14, 1982, with instructions to the court for a new trial, I find the matters raised by the motion in the alternative to the N.F.L.’s notice of appeal, especially the allegations surrounding the plaintiffs’ suppression of a key document, the “Hardy notes,” distressing. I note that the majority’s opinion does not deal with this issue.
DISCUSSION:
The district court found there were no disputed issues of material fact on the question of whether the N.F.L. was a single entity under the Sherman Act § 1, insofar as its enforcement of Rule 4.3 was concerned, and directed a verdict for appellees concluding that it was- not. Upon this finding, Rule 4.3 was submitted to the jury’s scrutiny under the Rule of Reason analysis of the Sherman Act, § 1.
Under established Ninth Circuit law, resolution of whether the N.F.L. had the capacity to violate Section 1 of the Sherman Act by conspiring inter se must be committed to the jury, if there exists “sufficient evidence in the record to permit a jury to find” that the N.F.L. was not a single entity, but “not ... sufficient (evidence) to preclude the jury from finding otherwise.” Murray v. Toyota Motor Distributors, Inc., 664 F.2d 1377, 1379 (9th Cir.1982) (per cu-riam).
In Murray v. Toyota Motor Distributors, Inc., supra, the Ninth Circuit held that the “single entity” question must not be taken from the jury where the evidence would permit a finding that the defendants are part of a single economic unit. As the majority in this case states: “(i)t would be reversible error, then, to take the issue from the jury if reasonable minds could differ as to its resolution”. Id. I read the majority’s opinion to find such an opportunity for “reasonable minds” to differ, even if the evidence that whether “the N.F.L. has attributes of a partnership or joint venture (wa)s not “compelling”, since it should have been submitted to the jury once there was simply “persuasive” evidence on either side. C.f., Majority Opinion at 1387.
I agree however with the district court that there were no material issues of disputed fact as to whether the N.F.L. was a single entity, and that the matter was ripe for disposition as a matter of law by the court. I also apply the settled rule of appellate review, that such decisions by the trial court are subject to de novo review by this Court. C.f, General Business Systems v. North American Phillips Corp., 699 F.2d 965, 980-81 (9th Cir.1983). But, the majority and I differ substantially in the conclusions to be drawn from such undisputed evidence.
The only realistic manner in which to define what constitutes a single entity for antitrust review is to focus upon the purpose the definition is to serve. “Single entity” taken in a functional sense begins and ends with an analysis of formal organizational and operational aspects of an enterprise, reconciled with the realities of the economic competition in the marketplace. If the aim of the Sherman Act § 1 is consumer-dictated supply, unfettered by conspiracy between competing producers,— and, I submit, that it is — extreme caution is warranted in defining precisely what competitive units exist in the marketplace. It *1404is equally as important to permit collaboration and concerted action among branches of a single economic entity in the marketplace with impunity from the Sherman Act § 1, as it is to police conspiracies between economic competitive entities. Nonetheless, all economic units remain susceptible to challenge under the antitrust laws from those external entities injured by acts viola-tive of § 1, or competitive entities injured as result of monopoly, or attempted monopoly, in an industry under Sherman Act § 2 tenets.
Resolving whether the N.F.L. is a single entity requires consideration of many factors, including formalistic aspects of operations such as ownership, overlapping directorates, joint marketing or manufacturing, legal identity, corporate law autonomy, and substantive aspects such as de facto autonomy of member clubs, chains of command over policy decisions, public perception and economic interdependency rendering otherwise independent member clubs subordinate to the integrated whole. When the entities in question are to be evaluated under the antitrust laws, the crucial criterion is whether the formally distinct member clubs compete in any economically meaningful sense in the marketplace. See General Business Systems, supra at 980-81.
The majority’s attempt to reconcile its decision with that of General Business Systems, supra, is misleading and inaccurate. The text of the majority’s opinion iniplies that corporate policies must be unitary for a business organization to be found a single entity. In General Business Systems, supra, at 980-81, the Circuit concluded that in any case in which the relationship between the two or more formal entities did “not fall clearly at either of these extremes”; i.e., “where corporate policies are set by one individual or a parent corporation” or where “jointly owned corporations that compete in the marketplace, hold themselves out to the public as competing organizations, and set policy independently ...” (id. at 980), the case must be sent to the jury. This admonition was disregarded in this case — a paradigm case testing the functional “single entity” concept.
The district court placed an unwarranted emphasis upon the formalistic aspects of the relationship of the N.F.L. and the member clubs, ignoring the subtle, but yet more significant interdependency of the member clubs and the indivisibility of the clubs with the N.F.L. 519 F.Supp. 581, 582-83. For example, the district court makes much of two such formal organizational characteristics: separate incorporation and management. Id. But', when viewed from the mundane perspective of daily operations, emphasis upon these legal formalisms obscures the reality of life in the N.F.L. Only the athletic strategems are autonomous— albeit tightly constrained by league guidelines on eligibility, medical and physical condition and exploitation of player talent. The N.F.L. cannot truly be separated from its member clubs, which are simultaneously franchisees and franchisors. The Raiders did not, and do not now, seek to compete with the other clubs in any sense other than in their win/loss standings; they do not challenge the plethora of other ancillary regulations attendant to the league structure, including the draft, regulation and scheduling of meetings between teams, and the system of pooled and shared revenues among the clubs because they wish to remain within its beneficial ambit.
As the majority opinion correctly points out:
this lawsuit requires us to engage in the difficult task of analyzing the negative and positive effects of a business practice in an industry which does not readily fit into the antitrust context. Section 1 of the Sherman Act was designed to prevent agreements among competitors which eliminate or reduce competition and thereby harm consumers. Yet, ..., the N.F.L. teams are not true competitors, nor can they be.
Majority opinion, at 1391, emphasis added. Yet, the majority’s analysis falters in a similar manner. It is the commonality of, or necessary cooperation in, the means of production, not the formal structure of the ownership of the N.F.L. infrastructure *1405which should be determinative of the classification of this enterprise.
The profound interdependency of the N.F.L. and member clubs in the daily operation and strategic marketing of professional football belies the district court’s conclusion that each member club is an individual and economically meaningful competitor. The dispositive factor in determining whether the member clubs are capable of conspiring to restrain competition — the sine qua non of the Sherman Act § 1 — by reason of Rule. 4.3, is the extent, if any, of their competition in an economic sense. Virtually every court to consider this question has concluded that N.F.L. member clubs do not compete with each other in the economic sense. See North American Soccer League v. N.F.L., 670 F.2d 1249, 1251 (2d Cir.1982); Smith v. Pro Football, Inc., 593 F.2d 1173, 1179 (D.C.Cir.1978); Mackey v. N.F.L., 543 F.2d 606, 619 (8th Cir.1976); Mid-South Grizzlies v. N.F.L., 550 F.Supp. 558, 562 (E.D.Pa.1982); U.S. v. N.F.L., 116 F.Supp. 319, 323-324 (E.D.Pa.1953).
As the district court in Mid-South Grizzlies acknowledged, although
(a)ll but one team are privately owned and operated ... and ‘compete’ with one another on the playing field and for the top players, they act jointly in many aspects of their enterprise as the term, league necessarily implies.
Mid-South Grizzlies, supra at 562. In adopting this view to reject a potential entrant’s challenge to his exclusion from N.F.L. participation, the court in Mid-South Grizzlies recognized that the creation of many joint products, only the most tangible of which is the professional football season, as byproducts of the intangible “goodwill” are directly attributable to the present league/member club structure. Id. at 568. I agree with the other courts which, when presented with similar questions arising in professional hockey and basketball, realized that it is nonsensical to emphasize intrinsic worth of a franchise in a vacuum, when the value of the franchises are part and parcel of the quality and conformity insured by league regulation of the placement, ownership, and coordination of all on and off the field interaction of member clubs. See San Francisco Seals, Ltd. v. National Hockey League, 379 F.Supp. 966, 969-971 (C.D.Cal. 1974) (the N.H.L., although subject to full scope of the antitrust laws, is “one single business enterprise, competing against other similarly organized professional leagues”); Levin v. National Basketball Association, 385 F.Supp. 149, 150, 152 (S.D.N.Y.1974) (“While it is true that the antitrust laws apply to a professional athletic league, and that joint action by members of a league can have antitrust implications this is not such a ease.”).
The majority’s holding places the Ninth Circuit’s ruling in conflict with every other circuit to consider this issue. As the majority points out, but misapplies, the Second Circuit found the N.F.L. to be an “unincorporated joint venture”. N.A.S.L. v. N.F.L., supra at 1257, (2d Cir.), cert, denied, - U.S. -, 103 S.Ct. 499, 74 L.Ed.2d 639 (1982). The Fifth Circuit, in an obscure but quite scholarly opinion, analyzed the North American Soccer League to be like the N.F.L.; i.e., a “joint employer” for labor relations purposes, upon an examination of its “N.F.L.-like” characteristics. N.A.S.L. v. N.L.R.B., 613 F.2d 1379, 1382 (5th Cir. 1980). The Third Circuit, after reviewing the substantial history of “single entity” litigation in the professional sports leagues, endorsed the D.C. Circuit’s conclusion that the N.F.L. was a “single entity” for purposes of Sherman Act § 1, and thus not subject to “invocation of a per se rule” against “group boycotts”, because: (1) “the N.F.L. clubs that had combined were not competitors in any economic sense” and “no team was ‘interested in driving another team out of business’; and, (2) the N.F.L. clubs had not combined ‘to exclude competitors or potential competitors from their level of the market.’ Larry V. Muko, Inc. v. Southwestern P.A., etc., 670 F.2d 421, 429, n. 11 (3d Cir.1982), citing Smith v. Pro Football, Inc., 593 F.2d 1173, 1178 (D.C.Cir., 1978). (emphasis in original). (Other citations omitted).
*1406What these courts have all recognized, and what ultimately persuades me, is that functionally distinct units that cannot produce separate, individual goods or services absent coordination are inextricably bound in an economic sense, and must adopt certain intra-league instrumentalities to regulate the whole’s “downstream output”. In the case of the member clubs, this “downstream output” is professional football, and the organ of regulation is the unincorporated, not-for-profit, association commonly known as the N.F.L. There is virtually no practical distinction between the League, administered by the appointed Commissioner, per se and the member clubs; the N.F.L. represents to all clubs, including the Raiders, the least-costly and most efficient manner of reaching day-to-day decisions regarding the production of their main, and collectively produced product.
Although the N.F.L. determines matters of scheduling, resolving player disciplinary matters and inter-club disputes, supervising officials and public relations, as well as other routine matters, critical league decisions, such as the matter of franchise location, are submitted to an Executive Committee comprised of a representative of each club. There can be no instance of the Executive Committee acting in other than the collective interests of the member clubs, since by definition, that body’s decisions are the consensus of N.F.L. members. There is no distinct interest of the N.F.L., since it exists solely to coordinate the members’ participation in the joint production of professional football.
By riveting its attention upon the “single entity” issue, as a sort of talismanic affirmative defense to the appellees’ charges here, the district court overlooked the dispositive inquiry of whether Rule 4.3, as an instrument of the N.F.L. member clubs, violated the Sherman Act § 1, by restricting any economically independent entities from supplying goods or services related to professional football to the individual clubs. I use “upstream flow” as shorthand for products and services like players and coaches, television services, potential investors and the myriad of other integrated industries; member clubs do have independent and economically significant identities apart from the collective N.F.L. for the limited purposes of their extra-league dealings with those upstream suppliers. See Weistart & Lowell, Law of Sports, § 5.11 (1978), 687, 692 esp. n. 86. Thus, § 1 can and should protect the competitive aspects of player drafts, disallow cross-ownership bans and exclusive television and equipment contracts, by insuring that any one club’s interaction outside the confines of intra-league regulation of production of the sport is unfettered by the working of any intraleague rule.
This is the critical distinction between cases which invalidate various intraleague rules, and those which uphold them. That member clubs compete for investors and the services of talented players is underscored by the fact that, although aggregate revenues are shared among all member clubs, there is no intra-league regulation upon the form of investment by a member club’s financial backers, the dividend policy, or operating expenses and expenditures of any member for player services. League regulations comport with economic reality in this sense; courts have merely applied a similar philosophy to other aspects of the professional leagues’ operations, including, inter alia, club-player relationships. See, e.g., Smith, supra (N.F.L. player draft held to violate § 1, even though N.F.L. teams not “economic” competitors, because it “forces each seller of football services to deal with one, and only one buyer, robbing the seller, as in any monopsonistic market, of any real bargaining power.”); Mackey, supra, (only relevant market in which to evaluate “Rozelle Rule” was that “for players’ services”); Denver Rockets v. All-Pro Management, Inc., 325 F.Supp. 1049, 1061 (C.D.Cal.1971) (harm resulting from restriction on non-collegiate players’ recruiting was these players’ exclusion from market in which they sought to compete by reason of the monopoly power exerted by the N.B. A.); accord, Linseman v. World Hockey Association, 439 F.Supp. 1315, 1322 (D.Conn. 1977); Kapp v. National Football League, *1407390 F.Supp. 73, 81-82 (N.D.Cal.1974), appeal vacated, 586 F.2d 644 (9th Cir.1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979) (“(a) conceivable effect of th(e “ransom” or “Rozelle” rule) would be to perpetually restrain a player from pursuing his occupation among the clubs of a league that holds a virtual monopoly of professional football employment in the United States”, which “goes far beyond any possible need for fair protection ... and imposes upon the player-employers or the purposes of the N.F.L. such undue hardship as to be an unreasonable restraint .... ”); cf., North American Soccer League, et al. v. N.F.L., et al., supra, (N.F.L. ban on cross-ownership of professional football and soccer league clubs violative of Sherman Act § 1).
The paradox to which I return, as the root of why the N.F.L., as well as other sports leagues, must be regarded as a “single entity” is that the keener the on-field competition becomes, the more successful their off-the-field, and ultimately legally relevant, collaboration. The formal entities, including the member clubs — including the Raiders — which the district court ruled to be competitors cannot compete, because the only product or service which is in their separate interests to produce can only result as a fruit of their joint efforts. This systemic cooperation trickles down to all members of the league, regardless of their on-the-field record, at least to the extent of the shared revenues. As at least one district court has previously recognized, despite some limited independently earned profit from “team paraphernalia” and “local broadcast revenues”,
(a) franchise’s popularity is inextricably bound up with the quality of its competition on the playing field and the resulting excitement and sense of team loyalty.
Mid-South Grizzlies, supra, at 568. The ability to accrue separately accounted and disbursed profit, of which the district court made much, “is an indirect benefit of being a member of the league”. Id.
A ruling that the N.F.L. cannot enforce Rule 4.3 is effectively ruling that it may not enforce any collective decision of its member clubs over the dissent of a club member, although this is precisely what each owner has contractually bargained for in joining the enterprise. Without power to reach collective decisions, the N.F.L. structure becomes superfluous, and professional sports, without a cost-effective policing mechanism such as the league, will dissolve in the face of uncontrollable free-riding and loss of economies of scale. Broadcast Music, Inc. v. Columbia Broadcast System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979).
Not only did the district court underrate the business scenario in which the member teams cooperate far more than they compete in the legally irrelevant on-field sense, but its directed verdict on the single entity issue ignored two significant aspects of the N.F.L.’s organization. First, the N.F.L. member clubs pool their revenues to a degree unique even among sporting leagues. By focusing upon the separate calculation of profits and loss by members, the district court elevated form over substance. Profit, as currently understood in the accounting profession, is a term of art, and as such is inherently subjective, often manipulated by equity interests to serve legally irrelevant business motives. The relevant consideration, as the N.F.L. has recognized by implementation of its shared revenue concept, is total infusion of consumer dollars into the sport, and some predictable and centrally administered allocation of those jointly earned revenues among member clubs. After that purpose, the members adopt the only workable model for earning and distributing the revenues from sale of a non-severable and indistinct product — professional football. See generally, Quirk, An Economic Analysis of Team Movements in Professional Sports, 38 Law & Contemporary Problems 42 (1973).
The product distributed by the member clubs is not analogous to ball bearings (Timken Roller Bearing Co. v. U.S., 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951)), mattresses (U.S. v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967)), or groceries (U.S. v. Topco Associates, 405 U.S. *1408596, 598, 92 S.Ct. 1126,1128, 31 L.Ed.2d 515 (1972)), because stripped of the N.F.L. rules, participation in a regulated draft, orderly schedules and league standings, professional football is indistinguishable from sand lot follies. This inescapable fact of interdependence distinguishes the N.F.L. franchisees and professional football from other industries comprised of “separate business entities whose products have independent value” (519 F.Supp. at 584) banded together in de facto cartels. C.f., Broadcast Music Inc., supra; Associated Press et al. v. United States, 326 U.S. 1,18, 65 S.Ct. 1416,1423, 89 L.Ed. 2013 (1945) (Douglas, J., in concurring, notes that it is unclear whether the AP system would violate Sherman Act § 1).
There was no evidence before the district court establishing that a member club of the N.F.L. could, or would seek to, defect to the U.S.F.L., thereby transferring its assets in quest of greater exploitation. Only such a showing, or an alternative theory, supported by evidence in the record could illustrate that any particular member club had an intrinsic value shorn of its affiliation with the N.F.L., and thus could support the district court’s result. We find no such evidence in the record. C.f. Associated Press, supra (newspapers which sought to affiliate did not share revenues, and each produced separate and distinct products with intrinsic value). There is no evidence that any of the member clubs’ investors would have committed time or capital investment without the existing league structure. Without the league, professional football becomes a pursuit no more substantial than a group of finely-tuned athletes traveling haphazardly about, in search of playing competition. Accord, Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968).
Not only is it legally irrelevant that a second professional league has sprung up, since the U.S.F.L. did not exist at the time of trial, but since the two leagues’ schedules do not overlap, one should not hypothesize as to any competitive relationship between the two, or the effect such inter-league competition would portend for the validity of intra-league regulation. Thus, while I find issues of supposed competitive relations between the N.F.L. and U.S.F.L., or between existing and any new franchisees, intellectually interesting, I also dismiss any legal conclusions based upon these entities as speculative.
Holding that the N.F.L. is not a single entity, but rather an aggregation of economic competitors, is tantamount to ruling that the N.F.L. structure is itself per se invalid under the Sherman Act § 1; this will spell the end of sporting leagues as are currently used in football, hockey, golf, soccer, basketball and countless other associations in industries with similar endemic characteristics. See Board of Regents of the University of Oklahoma v. N.C.A.A., 707 F.2d 1147 (10th Cir.1983) cert, granted, - U.S. —, 104 S.Ct. 272, 78 L.Ed.2d 253 (1983).
To elevate formal corporate characteristics of ongoing economic entities above the substance of what purpose and function the structure serves, and what product(s) emerge from the process would not only destroy the N.F.L., professional sports leagues, and the goodwill that results from continuity in national allocation of the sport throughout the country, but would create a rule of law casting all franchise/wholesale distribution relationships into inescapable doubt.
Rather than avoid creating an “exemption” from the Sherman Act for professional sporting leagues, failing to account for the substantial and unique characteristics extant in professional sports by refusing the N.F.L. review as a' single entity creates turmoil and dissolves the analytic framework within which courts scrutinize agreements under Sherman Act § 1. It is unrealistic and inaccurate to lump intra-N. F.L. rules in with agreements binding separate economic entities, which produce independent products and accrue independent revenues. See Mid-South Grizzlies, supra; Levin, supra. Rule 4.3 is no more a restraint on trade in professional football for Sherman Act § 1 purposes, than is an intra-*1409corporate directive regulating the location or operation of its headquarters, franchise, or branch of a multi-outlet business. See, e.g., Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977).
No “antitrust exemption” for the N.F.L. would be created by holding that it is a single economic entity for purposes of regulating franchise location. Section 2 of the Sherman Act, prohibiting monopolies and attempts to monopolize, remains fully applicable to all N.F.L. intra-league rules and activities. See Mid-South Grizzlies, supra; c.f., Bowman v. N.F.L., 402 F.Supp. 754 (D.Minn.1975) (challenge brought by former W.F.L. players to N.F.L. teams as an illegal boycott and unjustified exercise of monopoly power); Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F.Supp. 462 (E.D.Pa.1972) (Sherman Act § 2 applied to bar hockey reserve clause).
Many present N.F.L. practices, including Rule 4.3, are highly suspect under the Sherman Act § 2 prohibitions, because notwithstanding the form or substance of the N.F. L.’s style of organization and operation, some practices appear calculated to create barriers to entry for would-be rival leagues in profitable geographical markets. In short, Sherman Act § 2 is the proper curb upon the N.F.L.’s successful exploitation of its intra-firm economies of scale and competitive advantages. Radovich v. N.F.L., 352 U.S. 445, 453-54, 77 S.Ct. 390, 394-95,1 L.Ed.2d 456 (1957) and particularly American Football League v. N.F.L., 323 F.2d 124, 131 (4th Cir.1963) suggest the possibility of true economic competitors challenging the effect of intra-league rules upon nascent competition under § 2 of the Sherman Act.
The Raiders do not have standing to challenge Rule 4.3 under § 2; as part and parcel of the entity they knowingly joined in 1967, they may have a cause of action in contract against the rest of the N.F.L. for failure of their expectations arising from their membership, but cannot challenge in-tra-league regulations, as could would-be “upstream” suppliers or hopeful candidates for franchises like the Mid-South Grizzlies or the San Francisco Seals. See San Francisco Seals v. National Hockey League, 379 F.Supp. 966, 971-72 (C.D.Cal.1974). The Coliseum may be able to mount a successful challenge to Rule 4.3 upon a § 2 theory, but that issue is not presently before this Court.
As always, § 1 remains a viable theory under which those “upstream” aspects of member clubs’ operations — those activities which the N.F.L. and previous courts acknowledge the individual members as economically distinct entities — could be challenged. An oft-tried, and frequently successful example of this theory has been the player draft litigation; the distinction between instances in which the N.F.L. acts as a collective monitor of intra-league affairs, and those in which it intercedes at the behest of a member club for anti-competitive advantage over “upstream” bargaining entities outside the N.F.L.
The purposes for which the N.F.L.. should be viewed as a single entity, impervious to § 1 attack, must be functionally defined as those instances in which member clubs must coordinate intra-league policy and practice if the joint product is to result. See, Broadcast Music Inc., supra; GTE Sylvania, supra. Prohibiting the N.F.L. from attempting to exploit a monopolistic position in the industry, or from cloaking concerted anti-competitive pressure upon extrinsic “upstream” suppliers in the guise of “league” restrictions, does not require that we strike ancillary terms of the franchise agreements between member clubs as anti-competitive. A principled approach requires that we distinguish one situation from the other, and protect both competitive markets for football players and television coverage, as well as the integrity of terms A1 Davis agreed to as salient aspects of his arms’ length negotiations with the other member clubs. Davis has received no more or less than he has bargained for, as a franchisee of the N.F.L.
To hold the N.F.L. a single entity for purposes of intra-league regulation of relocation of existing franchises, thereby cutting off Sherman Act § 1 liability in this instance, is fully consistent with the prior *1410cases that address the validity of league regulation of member clubs. In such cases, the leagues’ power has consistently been upheld. See, e.g., A.F.L. v. N.F.L., supra; Mid-South Grizzlies, supra; San Francisco Seals, supra; and Levin, supra.
I concur in the majority’s opinion, insofar as it affirms the trial judge’s denial of the appellants’ motion for a change in venue. However, I would note the inappropriateness of applying the substantial body of case law dealing with racial bias in criminal venire to an instance where the strongest objections to the venue revolved around a highly attentuated financial or civic interest bestowed upon the jury by its deliberations concluding in favor of the L.A. Coliseum and Raiders. I would commend the trial judge for his extraordinary care in screening out prospective jurors who showed even a hint of bias, in maintaining an orderly proceeding despite'the high degree of press coverage and histrionic advocacy by the parties, and in assuring deliberations in an informed and unemotive manner. As a result of his painstaking care, I find that the appellants received the verdict of six fair and untainted jurors.
CONCLUSION:
Because the district court incorrectly determined that the N.F.L. member clubs are not engaged in a single enterprise for purposes of determining the location and marketing of professional football games between members, the jury verdict on the lawfulness of Rule 4.3 must not stand. Rule 4.3 cannot, as a matter of law, violate § 1 of the Sherman Act. The judgment of the district court should be reversed and judgment entered for the N.F.L. and its codefendants.
. Indeed, no team could generate any revenue without drawing down upon the goodwill and reputation of the N.F.L. in the largest sense, or upon the status of any one scheduled opponent in an immediate sense, so that, in effect, all team revenue is jointly produced.
. See Majority Opinion at 1392-1394, and my discussion infra of the inconsistency left unanswered by the majority’s treatment.