concurring.
*545Jurisdiction, both of the Finley claim that the actions of the Commissioner were not authorized by the Major League Agreement and of the Commissioner’s counterclaim based on the waiver of recourse to the courts provision is predicated on diversity of citizenship. To the extent that this is a diversity action, the choice of law rules of the State of Illinois are controlling. Under Illinois choice of law decisions, the law of the place of formation governs where the contract is to be performed in more than one state. Because the contract was made in Illinois and performance is nationwide, Illinois law governs the contract issues: whether the actions of the Commissioner are authorized by the Agreement, and whether the waiver of recourse provision is valid.
With respect to whether the actions of the Commissioner were authorized by the Major League Agreement, the first question is whether the Agreement gives the Commissioner the power to void player assignments when no rules have been violated. This question, like the analogous question of determining when a grievance is arbitrable, requires a judicial interpretation of the contract. Two contractual bases exist for the Commissioner’s action. Major League Rule 12(a) provides that no assignment of a player contract is valid until “approved by the Commissioner.” More generally, Art. I, Sec. 2 of the Agreement states that the Commissioner shall have the power to investigate any act “suspected to be not in the best interests of baseball” and to take whatever “preventative, remedial or punitive action is appropriate . . .” Neither of these provisions in any way expressly limits the power of the Commissioner to situations involving rules violations. In my view, Finley has simply failed to establish that these provisions bestowing broad discretionary powers upon the Commissioner were intended by the parties only to apply in cases of rules violations.1 Certainly the history carefully summarized in Judge Sprecher’s opinion does not demonstrate that such a limitation was intended.
Once it is established that the Commissioner has the power under the contract to invalidate player assignments absent rules violations, the next problem is determining the standard of review applicable to the Commissioner’s actions. Under Illinois law, this standard of review is extremely limited. In Illinois, courts will not as a general rule review the decisions of the governing body of a private association, e. g., American Federation of Technical Engineers v. La Jeunesse, 63 Ill.2d 263, 347 N.E;2d 712, 715 (1976); Van Daele v. Vinci, 51 Ill.2d 389, 282 N.E.2d 728, 731 (1972); Engel v. Walsh, 258 Ill. 98, 101 N.E. 222, 223 (1913). This is particularly true where, as here, the parties have voluntarily given the Commissioner such broad authority. The waiver of recourse to the courts provision strongly emphasizes the limited scope of judicial review intended by the parties of the Commissioner’s actions. I agree with the suggestion in Judge Sprecher’s opinion that the inclusion of the clause merely emphasizes the limited scope of review which would obtain in any event.
I would not, however, proceed with the majority to the more sweeping holding that the waiver of recourse to the courts provision, unless narrow exceptions exist, is “valid and binding on the parties and the courts” [presumably where Illinois law is found to control]. While the Illinois case law is sparse, the latest judicial pronouncement on the subject strongly suggests that *546waiver of recourse to courts provisions are unenforceable and void in Illinois.2
While the scope of review of the Commissioner’s decision is extremely narrow, I believe it could be overturned if Finley could establish that he was denied a fair hearing because the Commissioner was biased or motivated by malice. Van Daele v. Vinci, supra, 282 N.E.2d at 732. La Jeunesse, supra, 347 N.E.2d at 715, Engel v. Walsh, supra, 101 N.E. at 2. The district court, however, made express findings that Finley received a fair hearing and the Commissioner was not motivated by malice. The finding does not seem to me to be clearly erroneous. Such problems as there are with the finding arise out of comments by the court implying that malice of the Commissioner would be irrelevant, and the court’s sustaining of objections to some of the questions concerning possible ill will. Notwithstanding the comments, the court did make the finding, and did hear some of the evidence. In the absence of an offer of proof it is hard to believe that the sustaining of the objections was prejudicial. Moreover, appellant had made no objection to the proceeding before the Commissioner on the ground of bias.
I concur in Part IV of the majority opinion holding that baseball’s exemption from the antitrust laws is not limited to the reserve clause. I only add that Federal Baseball Club of Baltimore v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922), the case establishing the exemption, did not involve the reserve clause. See discussion. State v. Milwaukee Braves, Inc., 31 Wis.2d 699, 722-725, 144 N.W.2d 1 (1966), cert. denied sub nom. Wisconsin v. Milwaukee Braves, Inc., 385 U.S. 990, 87 S.Ct. 598, 17 L.Ed.2d 451.
. I do not agree with the majority, however, that it was not error for the district court to admit testimony of twenty-one of the parties to the Major League Agreement regarding their understanding concerning the authority of the Commissioner. The uncommunicated intentions and understandings of parties to a contract are inadmissible to establish their earlier intent at the time of contract formation. E. g., Union Bank v. Winnebago Industries, Inc., 528 F.2d 95, 99 (9th Cir. 1975). 1 do not believe Finley was prejudiced by this error, however, in light of the unambiguous contractual language, the fact that the trial was held without a jury, and the judge’s statement that he would give minimal weight to the testimony.
. In In re Streck's Estate, 35 Ill.App. 473, 183 N.E.2d 31 (1962), the court stated:
Agreements whose object is to oust the jurisdiction of the courts are contrary to public policy and void.
The one Illinois case cited by the majority in support of its upholding the waiver of recourse to the courts provision, School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 215 N.E.2d 25 (1966), involved a contract for arbitration. Public policy in that area had been pronounced by the legislature in the Uniform Arbitration Act. The Act does not completely foreclose recourse to the courts, since fraud and the grounds for vacating an award are recognized.