Radovich v. Nat. Football League

PETITIONER:Radovich
RESPONDENT:Nat. Football League
LOCATION:Military Stockade

DOCKET NO.: 94
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 352 US 445 (1957)
ARGUED: Jan 17, 1957
DECIDED: Feb 25, 1957

Facts of the case

Question

  • Oral Argument – January 17, 1957 (Part 1)
  • Audio Transcription for Oral Argument – January 17, 1957 (Part 1) in Radovich v. Nat. Football League

    Audio Transcription for Oral Argument – January 17, 1957 (Part 2) in Radovich v. Nat. Football League

    Earl Warren:

    Mr. Keith, you may proceed.

    Maxwell Keith:

    May it please the Court.

    The court below based its decision on asking itself one query, whether or not football is a team sport.

    In the Boxing case, this was not the query that was asked by this Court.

    This Court asked itself five questions.

    The first one was, “Had any court ever held that the business of boxing was outside the scope of the antitrust laws?”

    No court has ever held that football was outside the scope of the antitrust laws.

    The second question that this Court asked was, “Could the stare decisis help the boxing defendants?”

    And in stating that the Hart case show that to all businesses, athletic or otherwise that the question of interstate commerce was decided in the Federal Baseball case and that subsequent developments of facts in the use of interstate television and — and radio transmission had affected and changed that the boxing people had used these interstate communications.

    And therefore, it was at we’re within the scope of the Sherman Acts insofar as there was a question of interstate commerce.

    And likewise the football defendants have used extensively interstate transmission of television and radio.

    Then this Court stated that Federal Baseball did not hold that all professional sports are outside of the antitrust laws so as to preclude boxing in the same statement would be applicable as to football.

    Then the Court asked, “What is the congressional intent involved?”

    And the Court noted that there were three — three bills in the House and one bill in the Senate which would have exempted all professional team sports from the application of the antitrust laws that said that Congress had specifically refused to pass legislation and have said that the boxing defendants were asking of this Court the very thing which Congress had refused to grant.

    And it is submitted that football people are asking the same consideration.

    They are asking this Court to exempt them but Congress specifically would have immunized this action.

    The question of public injury was also raised by the court below and this is of significance in the private antitrust action.

    There was no requirement under the plain wording of Section 4 of the Clayton Act, where a private party who alleged that the public was somehow injured by a violation of the antitrust laws.

    Section 4 of the Clayton Act reads as follows, “That any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any District Court of the United States in the district in which the defendant reside or was found or has an agent without respect for the amount in controversy and to recover threefold the damages by him sustained and the cost of suit concluding a reasonable attorney fees.”

    This Court has never held that there was a — added requirements to state a cause of action under the antitrust laws by a private party that he must allege that the public was adversely affected by the violation of the antitrust laws.

    And I think that this question goes to the very heart and nature of the private action.

    The private action certainly is not a derivative right stemming from under the public.

    And it is more than an ancillary action to aid the Government in prosecution of the antitrust laws.

    It is a direct right granted by Congress to allow personal redress from those who inflict injuries on private parties.

    The congressional concern of this Act was with the redressing of those who were oppressed, who are ruined by the type of combinations and the type of monopoly power that the Acts in general condemn is respectfully submitted that the Court erred in dismissing our complaint as a matter of law and that we should be entitled to prove our allegations of a trial on the merits.

    Thank you.

    Earl Warren:

    Mr. Elman.

    Philip Elman:

    May it please the Court.

    United States is appearing in this case as amicus curiae escorting as according to the petitioner.

    In this case, as in the Boxing case that came before the Court two terms ago, the question is whether the logic of the baseball decisions requires the holding that the Sherman Act also extends the exemption to other businesses involving sports.

    Philip Elman:

    The Court answered that question in the negative in the Boxing case and we think that the decision of this Court in that case is controlling here.

    In our view, there are no legally significant differences between the business of boxing and between the business of football, legally significant, that is, in relation to the application of the Sherman Act, in relation to the coverage of the Sherman Act and in relation to the application of the doctrine of stare decisis.

    In the Boxing case, the Court made it explicit that the baseball decisions dealt with baseball and with nothing else.

    The Court made it clear that as to baseball, there was a unique set of circumstances which existed, which combined in their totality to justify giving baseball a special status under the antitrust laws.

    We think the Court of Appeals in this case very aptly characterized the unique immunity of baseball under the Sherman laws — Sherman law as really in the nature, a historical accident arising from the fact which is — which exists as to baseball but which it does not exist as to any other sport, that there was a decision in this Court relating to baseball.

    That it was on the books for 30 years.

    That it was regarded by baseball as giving it a special status and on the basis that — basis of that understanding, baseball grew and developed.

    And that the Congress had not seen fit during that whole period to intervene.

    Now, that was the unique, exceptional, extraordinary combination of circumstances that — that the Court in the Toolson case found sufficient to justify giving baseball a preferred status.

    Boxing undertook to rely on the logic of the Toolson ruling that it — it argued that there could be no logical differentiation between one sport and another.

    And that so far as the Sherman Act was concerned, that there could not — there could not be an exemption for one business involving a playing of the sport in another business.

    Now, that contention was considered by the Court.

    It was — it was accepted by two members of the Court but was not accepted by the Court.

    It was rejected and we think that decision is the decision which should have been dispositive of this case.

    Now, in the — in the face of the Boxing Club case, the respondents you read — read their briefs, seemed to be abandoning the ground upon which the Ninth Circuit decided this case, namely as Mr. Keith pointed out, the Ninth Circuit thought that football was more like baseball than like boxing and therefore it should be given the exemption that — that baseball enjoys.

    The respondents don’t make that argument, at least not in those terms.

    They say in their brief that it’s inaccurate and confusing to speak of an exemption.

    They concede that football is not exempt form the Sherman Act.

    They formulate their argument in somewhat different terms and it seems to us to reduce itself to this.

    They say that football and baseball resembled one another in that in both sports, it’s necessary to maintain a reasonable level of equality on the playing field that certain restraints on the freedom of players to contract have to be imposed because otherwise the rich clubs would sign up the better players and there would not be real competition on the playing field.

    And they say further that those restraints of trade have been upheld by this Court as to baseball that on the merits those restraints are — are not invalid, not unreasonable.

    And therefore as the matter of stare decisis that it’s valid for the baseball business to use such restraints on its players, certainly valid for the football business to do the same.

    Now as I indicated, that argument does not seem to be presented in the opinion of the Court of Appeals but dealing with it on its own intrinsic merits, we have some difficulties with it.

    First of all, it may very well be as Mr. Keith has argued in his reply brief that football and baseball are not identical with respect to the facts that in football there’s this player draft in which all the names of the college players are put into a hat and the — and the professional football team which happens to pick out your name has the exclusive right to your services and if you don’t sign with them, you can’t sign with anybody.

    And there are other differentiations between football and baseball which can be argued.

    But of course this case arises on the pleadings and none of that is in the record as a matter of surmise and speculations, I won’t — we won’t rest our — we and we can’t properly rest our objections to the argument on — on that ground alone.

    Harold Burton:

    The reasonable reserve clause is not an issue here, is it?

    Philip Elman:

    Well, as I understand the respondent’s argument, they — they seem to be saying that as a matter of law, these restraints are reasonable.

    Now, they find that in the baseball cases, we do not.

    We don’t see how the — how the issue of reasonableness assuming it is in the case can be decided at this level.

    Philip Elman:

    Their — there’s their — their allegations in this complaint Mr. Justice of — of boycotting, of black-listing, of bans, there’s a — the — the central allegation here, the gravamen of this complaint as — as we read it is not the reserve clause.

    The gravamen of this complaint was that these defendants were conspiring to monopolize football.

    They were conspiring to destroy a rival league, the All-American Conference.

    That as a result of this conspiracy, Mr. Radovich was injured.

    Now, the reserve clause is certainly an — an aspect of that conspiracy, but we — we don’t see how one can accept the contention that simply because the complaint alleges a violation of the antitrust laws.

    And one of the means used in carrying out that illegal conspiracy or monopoly is the reserve clause.

    It necessarily follows that the complaint has to be dismissed.

    That’s the —

    Philip Elman:

    And that’s the issue before this Court (Voice Overlap) — whether, the complaint was properly (Voice Overlap) —

    (Voice Overlap) — remain when we got to the merits to the case.

    Philip Elman:

    Yes, sir.

    We — we — we believe that in this case as in the Shubert case and the Boxing case, the complaint stated the cause of action.

    The case should have been permitted to go to trial, the District Court and the Court of Appeals should not have dismissed the complaint solely on the ground that they did, that the football business was governed by the decisions of this Court applicable to baseball and therefore no cause of action can be asserted.

    Now, if — if the — the allegations in this — allegations to this complaint would certainly state the cause of action under the Sherman Act, if — if it did involve football, if it involved any manufacturing or other enterprise and interstate commerce which was alleged had undertaken to monopolize the entire industry and for that purpose had agreed with others that anyone who worked for X manufacturing company which it wished — which it was conspiring to destroy would be black-listed for his life.

    There’d be absolutely no question if that was a — a valid cause of action under the — the Sherman Act.

    Now, we think getting back to the argument that the respondents make is the stare decisis in the baseball cases that their argument is in essence that the Federal Baseball case has — has validated these restraints as to the baseball business.

    And therefore, stare decisis requires that they be validated as to football.

    But the Federal Baseball case didn’t hold anything at all as to the legality or illegality of the means used to effectuate the conspiracy there.

    Indeed Mr. Justice Holmes in his opinion for the Court said that in the view that the Court took to the case, it was unnecessary even to mention the means that were used.

    The Federal Baseball case stands for a rather simple proposition of law not as to the meaning of the words “restraint of trade or commerce” in — in the Sherman Act.

    The Federal Baseball decision is a decision as to the scope or the coverage of the Act.

    What it really — what it construes is the word “commerce among the States.”

    That’s what the Federal Baseball case dealt with.

    It’s a holding as to the scope and the coverage of the Act and not a holding as to what is legal or illegal within the area that the Sherman Act covers.

    Mr. Justice Holmes in his opinion for the Court said that as to baseball, the essential thing was the playing of the game and that the only interstate aspects of baseball as alleged and — and proved at that — that in that case, on that record, were the interstate travel of players.

    And the Court and Federal Baseball said that that travel which was the only thing relied upon to show interstate commerce was merely casual and was — was a mere incident and that the playing was the essential thing.

    So that the Federal Baseball case as a precedence stands for this proposition of law that a business is not engaged in trade or commerce under the Sherman Act where its dominant essential features are local and not commercial in the ordinary sense even though it may have some interstate features that are merely incidental and casual and trivial in relation to the business as a whole.

    But the Court in Federal Baseball recognized that in each case you have to make an ad hoc determination as to whether the interstate features are — are merely incidental as they were found to be in Federal Baseball or whether they rise to a greater magnitude because in the very next term, in the Hart-Keith Vaudeville Exchange case, the Court found that the allegations of interstate commerce there did rise to a greater magnitude.

    So that the Federal Baseball case as a decision merely holds that when interstate commerce is alleged, you have to decide how much interstate commerce is alleged and to decide whether it’s enough to bring into operation the provisions of the Sherman law.

    So that if in this case, if it were merely alleged by the plaintiff that the football that — that he was a football player and that football games were played and that as a part of that game, it was essential for players to travel from one State to another.

    Philip Elman:

    And if the only interstate allegations in the complaint were travel of players so that they can play, we would say that as a precedent, the Federal Baseball decision is certainly a relevant precedent, whether there’s been an — an alteration in the climate of — of construction, of — of the concept of interstate commerce and so on, of course, being another question, but it would certainly be a relevant precedent.

    But in this case, the allegations of interstate commerce are so extensive that under many decisions of this Court leaves me no question at all that interstate commerce is shown.

    So the — the requirement of the Federal Baseball case is satisfied.

    There’s no necessity here to either distinguish or overrule the Federal Baseball case.

    The Toolson case, the other baseball decision was not a decision construing the Sherman Act.

    It was not a decision holding that the — that the reserve clause or anything else about baseball was reasonable or necessary or it was valid.

    The Toolson case was not a decision even as to the scope of the — of the Act.

    It was a decision as to stare decisis.

    It was — it almost had in it the elements of res judicata that there had — that since there had been a decision of the Court as to baseball, baseball had to be recognized as being in a special category.

    So that in its very terms, the Toolson case could deal with baseball and only with baseball because no other sport could bring itself within the first essential requirement of Toolson that there be a decision of this Court applicable as to it.

    So that we — we believe it’s — it’s not necessary to elaborate the arguments here because we think that they’re merely a — a repetition of what was contended very earnestly and very fully in the Boxing case that it’s true that in — the boxing was an individual sport and football is a team sport.

    But the fact that the football — the fact — the fact that — that boxing was a sport of which only individuals engage was certainly not a relevant factor in — in the Boxing Club case.

    It was the basis on which the Court decided the Boxing case was not.

    It was something about the manner in which that the sport was conducted.

    The basis of the Boxing Club case was that an exemption from the Sherman Act is not to be given by the Court, to be given by Congress and that the special, unique status of baseball could not be shared by others — other businesses simply because they happen to involve an athletic exhibition.

    Felix Frankfurter:

    Was baseball an exemption given by Congress?

    Philip Elman:

    Well, it’s — there’s — there’s a question of — of whether one can say it’s given by Congress or given by the Court or whether it was given by both.

    The fact that Congress did not see fit to legislate with respect to baseball was one of the fact this — upon which this Court relied in reaching in the conclusion baseball was exempt.

    So, I don’t know that I can answer that either yes or no.

    Now, —

    Felix Frankfurter:

    You may not have to (Inaudible) you’re allowed to that.

    Philip Elman:

    Well, I think that the — I think that the effect of the Toolson case, that the practical effect of the Toolson case and of the reasoning underlying it is just as if Congress had given — had written into the — the Sherman Act, the commerce among the States except — except the baseball business.

    I think that’s the effect of it.

    Now, that — that isn’t what Congress wrote into the Sherman Act when it was originally enacted.

    It’s the product of the history of — of litigation under the Act and it’s also the product of an application of a — of a basic doctrine of — of the law as to respect for prior of precedence and that —

    Felix Frankfurter:

    That reason was (Inaudible) case to make sure that the usual (Inaudible) to this power upon Congress admissible and in the Court makes — put things into it as to what the (Inaudible) for putting things in or taking things out now instead of statute as to the Congress has (Inaudible)

    Philip Elman:

    Well, I believe — I believe the Court has passed all that.

    I think that issue has been — has been fought out and was decided when — when the Toolson case came before the Court, the — the question was whether the Court should in effect read an exemption into the Act for the baseball business.

    If the Court overcame that hurdle and did read it, then the next question that came — that came up was whether — whether that necessitated simply by the — by reason of logic, a holding that other businesses were to be treated similarly.

    Now, the Court in the Boxing Club case pointed out that the — the crucial question is not whether baseball is like boxing as far as the — as far as the conduct of these boys is concerned.

    Philip Elman:

    That’s not relevant.

    The crucial question is in whether baseball is like boxing or football or any other sport if it were an original de novo question under the Sherman Act because certainly if these cases all arose in 1890, there would be no question that the Court would — would so far as the commerce coverage of the Act is concerned not differentiate them.

    But there is a legally significant differentiation between baseball and between football and boxing and the other sports.

    And that arises from stare decisis.

    Earl Warren:

    In other words, Mr. Elman, if they’re going to attribute to Congress the intention to exclude baseball, you would also have to add to that, would you not, the baseball as it was found to have been organized and played by this Court in — in Federal Baseball?

    Philip Elman:

    Well, that’s — that’s the way we read the Toolson decision.

    Earl Warren:

    I — I say that —

    Philip Elman:

    Yes, sir.

    Earl Warren:

    — you — you would have that, too —

    Philip Elman:

    We read the Toolson case is limited precisely to the holding of the Federal Baseball case —

    Earl Warren:

    Yes.

    Philip Elman:

    — insofar, as et cetera.

    What the Toolson — that the Court in — in the Shubert and Boxing opinions made it plain that it was — that the Court has — wasn’t re-examining any prior decision on the merits.

    It wasn’t reaffirming.

    It wasn’t overruling any prior case.

    It was accepting the decisions for what they did, for what — for the — for the practical consequences upon which men had the right to rely and upon which that — that they acted and the law, of course, takes that into account and it was taken into account in the Toolson case.

    Now, the football business cannot bring itself within the rationale of the Toolson case.

    Felix Frankfurter:

    You mean there was no — there was no baseball-football decisions as to none of the States.

    But as to baseball and truth to (Inaudible) along there was a baseball decision.

    Never mind whether baseball is played the same way or whether they have the same incident there was any baseball game of a dummy concept of a baseball game.

    But the thing of football game until today and therefore, we are — the football — the baseball game is irrelevant.

    That’s what you’re saying.

    Philip Elman:

    Let me put — let me — let me put it this way, sir.

    Suppose — suppose you have a litigation between A and B in which one of the issues is the value of A’s land.

    And the Court finds that in the prior litigation between A and B (Inaudible)

    And the Court says, “We’re not going to take evidence as to whether it’s really worth $10 or not.

    We’re going to — we’re going to bring out to establish that valuation for purposes of this too.”

    The next day, a suit is brought between C and D and C’s land is right next to A which was identical with it in every respect except that this is exactly the same.

    Its next — but it’s very much like it.

    And C says, “Well, I don’t see any difference between my land and A.

    Philip Elman:

    And the Court has already held that A’s land is worth $10 an acre, therefore, I don’t think you ought to consider what the value of the land actually is.”

    Now, I think the proper response of the Court should be that decision because of the peculiar nature of the relationship between A and B where it’s — it’s for the benefit of A and for the benefit of A alone.

    As far as you, C, are concerned, you’ve got to show us how much your land is worth.

    Now, it seems to me that — that to the extent that that analogy applies here, is there’s nothing unfair and nothing improper in giving the baseball business the benefit of the decision which was applicable to it and which was not applicable in its terms to — to any other business.

    Felix Frankfurter:

    I’d suggest in your case is the $10 determination was based on whether or not you take into account the peculiar adaptability of land.

    And the $10 was found was based on the ground that you do not — you can’t say, “We merely decided that’s for A and you decided for B.”

    Philip Elman:

    Well —

    Felix Frankfurter:

    In other words, the valuation on the principle is wonderful.

    The principle is another thing.

    Philip Elman:

    Well, so far — so far as the Toolson case is concerned, it doesn’t hold any principle applicable in construing the Sherman Act.

    All that the Toolson case is — says it through power of Federal Baseball.

    So far as the Federal Baseball case is concerned, the principle it laid down is not a principle which — is which is either unique and — and applicable only to baseball or indeed applicable to any other sport.

    The Federal Baseball decision was not a decision as to baseball and — and it was not based upon any considerations that were peculiar to baseball.

    It was a decision as to what commerce — the interstate commerce says and it was a decision that where — where a suit is brought under the Sherman Act, you’ve got to show restraint on interstate commerce.

    And the mere fact that — that the — you have some interstate elements in your case doesn’t establish that you — your — your — that a — there’s a strength in an interstate business.

    The — the Court in — in the Federal Baseball case was barely applying a more basic, more fundamental proposition that Mr. Justice Holmes frequently articulated that interstate commerce is a practical conception that — that in that field there’s another field that it’s a matter of degree that what may be — what may be incidental in the case of Federal Baseball Club in 1922, may not be merely incidental in the case next year of Hart against Keith Vaudeville Exchange.

    Felix Frankfurter:

    In short —

    Philip Elman:

    Now, —

    Felix Frankfurter:

    — they didn’t think about baseball in the baseball cases, right?

    Philip Elman:

    In short, they were thinking about baseball in relation to commerce, in relation to interstate commerce.

    So that — so that the Federal Baseball case has a decision under the Sherman Act.

    It doesn’t lay down any broad, mechanically applicable rules of law as to what business is or is not covered by.

    It doesn’t say that all businesses involving sports are — are excluded.

    What it says is that the interstate features have to be more than incidental that if you have only — if you have a business where the essential thing is something that’s local and not regarded as commercial, then the mere fact that there’s an incidental transportation of participants doesn’t make it —

    Felix Frankfurter:

    And you think their notion of the conception of what the nature of a baseball game is had no relation to the conclusion that was essentially local and merely incidental and do you think that is necessary which is —

    Philip Elman:

    Well, Mr. Justice —

    Felix Frankfurter:

    I think — I think the argument —

    Philip Elman:

    I don’t —

    Felix Frankfurter:

    — if you look at the arguments —

    Philip Elman:

    There’s no — I don’t think —

    Felix Frankfurter:

    — (Inaudible) to baseball.

    Philip Elman:

    Yes, but, Mr. Justice, no one has ever disputed that the mere playing of a baseball game is local.

    In the Shubert and Boxing cases, the Court recognized that the mere — that the mere performance on the stage is a local affair not covered by the Sherman Act.

    And that the mere — a — a mere presentation of a boxing bout is — is a local affair and so, too, in a baseball case as it was recognized that where nine players meet nine other players on a — on a baseball diamond that’s not interstate commerce in it’s — in and of itself.

    But the question is how much do you have to add to it to bring the Sherman Act into operation?

    Felix Frankfurter:

    And the —

    Philip Elman:

    And —

    Felix Frankfurter:

    — Toolson case, you added a lot to it because it wasn’t sufficient.

    Philip Elman:

    No, the Court didn’t say it wasn’t sufficient as a matter of construing the Sherman Act.

    What the Court said was that since — since there was this decision as to baseball whether it’s right or wrong, we don’t reexamine it.

    Since there was this decision as to baseball, we’ll leave baseball where it is.

    Felix Frankfurter:

    In other words, your Toolson in relation to baseball wasn’t like your A — A and B and the next one, C and D.

    You think that was another A and B case.

    Philip Elman:

    No, no.

    In my — in my hypothetical illustration, I — I intended by — but I intended to analogize it to what — to what the — the net effect of the Federal Baseball and the Toolson case is combined is as to baseball.

    The net effect of it is that the Court has not reexamined the — as if it were an — a question arising de novo.

    William J. Brennan, Jr.:

    Mr. Elman, do I gather that your argument as to inapplicability to baseball decisions would be made if instead of the football league which were dealing with a softball league today?

    Philip Elman:

    Well, you — you raised a question which I’m — I’m not sure I’m equipped to answer this question of classifying softball as baseball and I frankly don’t know it.

    I — I just don’t think I can answer that question.

    Felix Frankfurter:

    What difference should it make if the ball, if the size of it, you just have to decide if it’s —

    Philip Elman:

    It doesn’t make a —

    Felix Frankfurter:

    (Voice Overlap) — to interstate commerce.

    Philip Elman:

    No I’m not — I’m not — let me make myself —

    (Inaudible)

    Philip Elman:

    — clear on the —

    (Inaudible)

    Philip Elman:

    It isn’t a question Mr. Justice, it isn’t a question of the size of the ball and how the game is played.

    It’s a question of whether that business is — is a baseball business.

    William J. Brennan, Jr.:

    Well, I’m assuming that we have everything that we have —

    Philip Elman:

    That they’ve got —

    William J. Brennan, Jr.:

    — before us except that instead of football, we have softball today.

    Philip Elman:

    If — if the softball — if the softball business is in fact the baseball business, I — I suspect that it is not.

    I don’t see how they could qualify for an exemption under the baseball cases.

    William J. Brennan, Jr.:

    And you wouldn’t make this the same light.

    Philip Elman:

    If the question of construing the Toolson case is — is to what’s meant by business of baseball, but whatever difficulties there may be as to softball, it certainly is no difficulties to football, it’s not baseball.

    Earl Warren:

    Mr. Elman, I suppose in this case, if this case had gone to trial and — and the defendants had established that football was like baseball in all respects and that there were no — as that case was determined in Federal Baseball and there are no other factors to distinguish it from it, you would take the position that we would either have to follow Federal Baseball or reverse it, wouldn’t — wouldn’t you?

    Philip Elman:

    If the allegation —

    Earl Warren:

    But —

    Philip Elman:

    — excuse me, sir.

    Earl Warren:

    Yes.

    But the fact is that here, it was decided without any proof as to whether football was essentially like baseball.

    Somebody just said, “Well, football is more like baseball and boxing, so we’ll decide along it the lines of — of baseball rather than boxing.”

    Isn’t that right?

    Philip Elman:

    Yes, sir.(Voice Overlap) —

    Earl Warren:

    So, then they’d have to — and shouldn’t they be obliged to — to prove that at a minimum that their facts come within the Federal Baseball case, the Toolson case?

    Philip Elman:

    I should — I should think that as a minimum, they would have to show that the allegations as to interstate commerce.

    Earl Warren:

    Yes.

    Philip Elman:

    In this case, we’re no —

    Earl Warren:

    Yes.

    Philip Elman:

    — we’re no broader than the allegation to the interstate commerce and Federal Baseball, but I don’t think there’s any question of that the mere — why not just look at the complaint to see if they’re not the same.

    Earl Warren:

    Yes.

    Felix Frankfurter:

    (Inaudible) the complaint in the Toolson showed much more than the complaint in the Federal Baseball case.

    Mr. Justice Whittaker’s opinion pointed out that (Inaudible) the Federal Baseball is concerned.

    Philip Elman:

    But the Toolson case did not establish that those allegations were insufficient or —

    Felix Frankfurter:

    (Voice Overlap)

    Philip Elman:

    — as a matter of —

    Felix Frankfurter:

    (Voice Overlap)

    Philip Elman:

    The Courts —

    Felix Frankfurter:

    (Inaudible) — care —

    Philip Elman:

    Because it’s —

    Felix Frankfurter:

    — baseball.

    Philip Elman:

    Because it’s baseball.

    Felix Frankfurter:

    All right.

    Philip Elman:

    That’s the important thing because it’s baseball.

    Felix Frankfurter:

    (Voice Overlap) football, it must be baseball there?

    Philip Elman:

    Baseball — baseball is different from football —

    Felix Frankfurter:

    I’m thinking (Inaudible) as you well know.

    Philip Elman:

    Mr. Justice, I think that the Toolson case is not a decision as to what interstate — as to what commerce among the States is for the purposes of the Sherman Act.

    The Toolson case doesn’t pass on the sufficiency of the allegations, the restraint of commerce in — in that case at all.

    Felix Frankfurter:

    (Inaudible) — baseball is baseball —

    Philip Elman:

    Precisely —

    Felix Frankfurter:

    — baseball is baseball, the Federal Baseball team, is that right?

    Philip Elman:

    That’s right.

    Now, if one accepts the Toolson case and accepts the — the — that the basis on which it’s decided as we must the Toolson case has no authority that — that can give any comfort to any business other than baseball.

    Felix Frankfurter:

    I agree with you on that.

    Philip Elman:

    If I may spend one minute on —

    Felix Frankfurter:

    I mean —

    Philip Elman:

    — on the other point in the case.

    Felix Frankfurter:

    (Inaudible)

    Philip Elman:

    Well, I — I did draw that inference here.

    If the — there’s another point in this case which goes beyond football, baseball and sports in which it is of importance as to the Government.

    The Court of Appeals in this case has tried it — treble damage action declares that in addition to showing that there’s a violation of the Sherman Act, in addition to showing injury to himself, the plaintiff has the burden of alleging and proving a further element, namely, that there’s been a — an injury to the public.

    Now, this — there’s no basis at all for imposing upon plaintiff’s treble damages who already have a heavy burden.

    This additional burden, the — the statute — the statute certainly doesn’t make any such requirement that as to the Government in its antitrust litigation that it’d show some vague public interest, public injury showing.

    And we don’t — we don’t think there — there’s any justification for making more difficult than it already is.

    They asked if those who were injured by a violation to the antitrust laws, before it’s recognized the importance of maintaining that as an effective supplemental remedy enforcing the antitrust laws.

    And we — and we urge the Court to make it clear that the — that there is no such requirement by the litigation.

    Thank you, sir.

    Earl Warren:

    Mr. Leahy.

    Marshall E. Leahy:

    May it please the Court.

    Marshall E. Leahy:

    Now, I’d say at the outset that as far as football is concerned, this is quite a serious and fundamental case and that we approached it with that thought in line I want to assure the Court.

    I would like to say, at the outset that boil down to its bare essentials, this complaint involves a rather simple proposition.

    A player by the name of Radovich, he was under contract to the Detroit Lions, a team holding a franchise in Detroit and a member of the National Football League under the terms of his contract was required to report for the year 1946.

    He was told to report and instead of that, he admits in his verified complaint or rather in his complaint which is not verified that he negotiated with and concluded a contract with the team called the Los Angeles Dons that was a member of a rival football league and a salary that was approximately twice what he was receiving for the — from the Detroit team.

    He mentions in there that just before concluding his arrangements with the Dons, he contacted the owners of Detroit and said if you will pay me what this rival league will pay me, I will go back to Detroit.

    And they told him that we have a contract with you and we respect — we expect you to respect it.

    So, Radovich ended up with the Los Angeles Dons and played with that team for two seasons.

    Thereafter, for some reason which has not yet been explained in the pleadings or in the comments and that has been considerable comment outside the record, he decided that the All-America Conference was no longer the place for him and he made an effort to come back inside the structure of the National Football League.

    Now, he admitted in his pleading that he was aware of the fact that at all the — during all the time that he was playing for the National Football League, there was a rule that said that if any club has a contract with the player and that player signs a contract in violation of it and goes to another club, he is subject to certain penalties.

    That penalty in this — under these particular circumstances happened to be and was a five-year suspension.

    Now, he claims in his complaint that he was injured because the National Football League with whom he had a contract did not take him back despite the fact that he had, in violation of the contract, go on with another team and played there for a couple years.

    Now, at the outset, I would like to clarify football’s position on the antitrust laws.

    I think we stated it rather clearly in our brief.

    Earl Warren:

    Mr. Leahy, you said you were going to state the issue.

    Is that all there is in this case?

    Marshall E. Leahy:

    As far as we’re concerned, that is the issue.

    The complaint which I was going to get back to in a moment but I will resume just to pursue it to its prayer, in effect, says that because of this rule that was invoked against Radovich because he had decide a uniform player contract that have the rule in it and because the rule has a — a sanction to it that if you violate it, you are going to be suspended.

    He has suffered an injury that those restraints are restraints in violation of the Sherman Antitrust Act and therefore he is entitled to treble damages.

    Now, that is the meat of the complaint.

    Earl Warren:

    Well, isn’t there also the allegation that the — that the television and the radio has become a major portion of this business and that — that, too, is used as a part of a conspiracy to accomlish it in results.

    Marshall E. Leahy:

    There is that allegation, but it’s not very clear to me just what the radio and television has to do with Radovich’s injury.

    Earl Warren:

    But there were no facts taken —

    Marshall E. Leahy:

    There were no facts alleged.

    Earl Warren:

    — in this case.

    So how are we going to know?

    That’s —

    Marshall E. Leahy:

    Well, I —

    Earl Warren:

    — one of the things that’s bothering me.

    Marshall E. Leahy:

    I submit, Your Honor —

    Earl Warren:

    We don’t know whether all these things that are in the complaint are provable or — or not.

    Marshall E. Leahy:

    Well, in that connection I think that we — we are all in agreement that had Radovich alleged in his complaint that something that was done in radio and television injured him, he’d have some type of a cause of action of which he could involve radio and television.

    The only purpose in a complaint of this type in bringing in radio and television is an obvious one.

    It’s an attempt to play football in interstate commerce.

    Now, I would like to get back to that point.

    I’m going to discuss radio and television because they are an important part of this problem.

    Our position as far as the Sherman Act is concerned and the Clayton Act is that we contend that football has no exemption from those Acts.

    We have never made that contention and as a matter of fact we believe that football — that baseball hasn’t such an exemption either, nor any other sport.

    I think that the Federal Baseball case did not say that the Act gave an exemption to baseball.

    It’s inconceivable to me that despite Toolson and despite Federal Baseball that baseball today could not combine with someone, for example, to restrain an interstate business such as radio and television and not be subject to the Act.

    So, it’s almost the same situation as exists in relation to labor unions under the certain circumstances this Court has held and other Courts despite specific language in the Act.

    Labor unions under certain circumstances are subject to the antitrust laws.

    But that is not the same thing as saying that we feel that we should be involved in litigation of this type for a reason that we don’t think that any of the things of which we are accused in this case restrain interstate trade and commerce.

    Now, I’d like to address the Court’s attention to the charging part of the complaint which is found on page 9 of the record, paragraph IV and it is noticed that the paragraph numbered 12 ledges in statutory language that the defendants have violated Section 1 and 2 of the Act without specifying how or in what matter or making any statement other than the act that using the statutory language.

    Now, the pertinent part is found in 13 under the — on the same page in which they — the plaintiff alleges that to — and hopes to set out and does set out, he says at the — the last two lines, the substantial terms of which agreement and the means of the concert of action are as follows.

    In other words, we have an unusual situation.

    In this complaint, the plaintiff sets out the means by which the so-called conspiracy was accomplished and what are the means which are found on the following page.

    They consist of three things.

    The fact that when a player signs a — comes into the National Football League, he’s called in —

    Earl Warren:

    What page is that?

    Marshall E. Leahy:

    That’s page 10, the following page, Your Honor.

    Earl Warren:

    Page 10.

    Marshall E. Leahy:

    He’s required to sign a uniform player’s contract that that contract has what is called the reserve clause which in effect binds him to that particular club and does not permit him to sign with anyone else while that contract was in effect.

    And see that if he does violate it, he will be black-listed.

    Of course, we would find some disagreement with the term black-list but for the purposes of a — of a matter of this type, we have to accept that term as for what it’s worth.

    Now, that is the — those are the only paragraphs if you study this complaint that — of the charging paragraphs.

    Now, our — our position, briefly, is that these elements that are alleged there were the identical elements that were found and were before the Court in considerable detail in Federal Baseball in 1922.

    Now, counsel said that it was his understanding that Federal Baseball simply held that baseball was outside of the Act, without consideration of the — of the inherent nature of the game and the internal operation of the game.

    Now, I wish in that connection, and that’s extremely important, to address the Court’s attention to our brief.

    Starting on page 15, we attempted to layout for the Court, the history of this Federal Baseball case and quoted on page 15, you will notice the comment by the trial judge in Federal Baseball, the District Court judge who held originally in Federal Baseball that they were subject to the Act and that they were a monopoly and so on.

    Then, the matter went to the Circuit Court and we turn to page — to page 16 and we see considerable language extracted from the opinion of the Circuit Court.

    Marshall E. Leahy:

    And in the interest of time I’m not going to read it but I wish the Court would read it because it — it is essential in a consideration of this case to know just what the background of the ultimate decision was.

    I call the Court’s attention to only three or four lines which are found right at the end of the quotation where it says, “It must be obvious that the restrictions thus impose.”

    And I’m speaking of the same restrictions that of which, Radovich complains relate directly to the conservation of the personnel of the clubs and did not directly affect the movement of the appellee and interstate commerce.

    Whatever effect if any they had was incidental and therefore, did not offend against the statute.

    Now, we drop down just below that to one little quotation from what Mr. Justice Holmes said when the matter reached the Supreme Court.

    He says, “The decision of the Court of Appeals went to the root of the case.”

    And if correct, makes it unnecessary to consider other serious difficulties and so on.

    Now, to say that there was not before the Court in the original Federal Baseball case the entire operation of baseball, is not accurate and to go beyond that and to say that the ultimate end of that case in great part did not depend upon a consideration and a finding that baseball in — in the operation of reasonable restraints that relate to the conservation operation of baseball itself, namely, reserve clause, uniform contract and that type of regulation are restraints which are reasonable because they promote rather than restrain competition among the members of the league.

    But isn’t — isn’t it true that the Supreme Court’s decision in Federal Baseball went so in on the ground that the baseball wasn’t commerce and they didn’t reach the question you’re talking about at all.

    Marshall E. Leahy:

    Well, I submit, Your Honor —

    Maybe it’s in the Court of Appeals opinion that when Judge — Justice Holmes talks about — ruled the case —

    Marshall E. Leahy:

    Well, I don’t know.

    I have —

    (Inaudible) does he?

    Marshall E. Leahy:

    I have read that quotation which we have — we put a different interpretation on it for that.

    When he says —

    But it seems to me you’re resting your case awfully thin ground because if I understand your argument, your argument is that you don’t claim any general exemption for the antitrust laws.

    That baseball, even baseball, doesn’t have any general exemption from the antitrust laws and you rely solely on the proposition that the type of contract that you alleged here was adjudicated in Federal Baseball as being not a violation of the antitrust laws and you’re asking us to hold then that complaint should be dismissed even without a hearing on what this contract is.

    Marshall E. Leahy:

    What we are trying to do — what we are —

    Am I wrong in that?

    Marshall E. Leahy:

    Well, I’ll explain it.

    Perhaps, we’re in agreement, I’m not sure.

    Our position is that the features of which Radovich complains in this action are the very features this — this Court have before many years ago in Federal Baseball and held to be restraints, lawful and proper and having a proper and lawful business purpose and not restraints upon interstate commerce.

    There is nothing in the context to the Radovich complaint that was not before the Court in Baseball.

    Now, the significance that we put on that, I’d like to explain, you might say, “Well, what — what does — what does that mean?

    What’s the effect to that?”

    Now, this is our attitude on that matter.

    That decision remained unchallenged for about 30 or 35 years.

    The Toolson or I should say — represent by saying along came Gardella versus Chandler.

    And in the — in that case, there was some doubt cast by the Circuit Court on the question of what this Court might do as far as baseball is concerned if it reached it under more modern circumstances.

    Marshall E. Leahy:

    The case never went any farther.

    It was sent back and disposed off on some basis unknown to me.

    As a result of that case, it’s a matter of record that within a few months we have the Radovich complaint on file, within a few months of the Gardella case and other cases that have since reached this Court, the Baseball followed that position.

    This Court have before it, the Toolson case, directly on the proposition of — point to modern circumstances, radio and television and the other aspects that are now in the game, 30 or 35 years later require this Court to review this matter in the light of baseball in 1955 rather than baseball in 1922.

    And the Court said as — if I can interpret it correctly, that because of certain unusual circumstances, they didn’t feel that the matter called for review that there was a unique set of circumstances involved and what were those circumstances.

    Circumstances were that for 30 or 35 years, baseball had been allowed to develop on the basis that Federal Baseball was the law as far as baseball that they had made certain large expenditures in developing their operation, their farm systems.

    And to — for this Court at this time to now decide that they were wrong 25 or 30 years ago would have a very drastic effect upon baseball.

    Now, if you look at the Toolson complaint and compare it to the Radovich complaint, there isn’t any comparison in respect to the allegations.

    The Toolson complaint has allegations in it that far exceed the charges against the defendants in this case.

    Now, there was another facet that was involved in that decision and that was to the effect that Congress had had certain bills before in which they had conceded the question of whether something shouldn’t be done legislative-wise as a result of this mulltiplicity of litigation that was arising now in baseball and the Federal Baseball case that should we do something about it and all through that report runs this reserve clause.

    The reserve clause this and the reserve clause that and inherited baseball as a reserve clause.

    You could spend an hour reading it and practically every page talks about these facets, the things that are essential and fundamental to baseball.

    Now, in the Shubert case, this Court said —

    Earl Warren:

    Well, Mr. Leahy before we get to Shubert case.

    Isn’t there a difference between the function of the reserve clause and the relationship between the football players and the baseball players so far as their management in concerned?

    Now, as I understand it from reading the newspapers, in baseball, any man who goes in to organize baseball is a free agent.

    He can sign with anybody he wants and organize baseball league.

    It’s one bite that — that organize baseball.

    Then after he gets in there, he’s obliged to live under this reserve clause, but so far as football is concerned and it bears upon the monopoly situation, a man gets no chance.

    They draft him the year before he gets out of college and either he plays with the team he’s drafted to play with or he doesn’t play at all.

    He’s boycotted for life or such length of time as they choose to keep him out.

    Now, isn’t that an essential difference?

    Marshall E. Leahy:

    I don’t think so because I think that’s very pointless before baseball.

    If you look at the record in baseball, they had a draft system.

    They still have a draft system.

    Earl Warren:

    Oh, yes.

    Marshall E. Leahy:

    Under which — let’s take —

    Earl Warren:

    A man is already in baseball by contract.

    But here, you’re taking college boys who had never even said they wanted to be in — in professional football and says professional football to them.

    We determine that you’re going to play 3000 miles away from your home.

    Earl Warren:

    If you live in San Francisco, you must play in New York.

    And if you don’t play with New York, you don’t play with anybody in this country.

    Now, isn’t that different from the baseball situation where they give a man an opportunity to join any club that — that wants him and any club he wants to play with and then confining to this reserve clause?

    Marshall E. Leahy:

    Well, there are number of other rules in baseball.

    I don’t think that baseball to answer your question directly has a draft of that nature in — in a sandlot situation.

    In other words, I think a boy originally can decide with only he’s going to sign.

    Earl Warren:

    That’s right.

    Marshall E. Leahy:

    But there are many more assets and aspects of baseball that is of far more integrated —

    Earl Warren:

    Oh, my.

    Marshall E. Leahy:

    — operation —

    Earl Warren:

    Well —

    Marshall E. Leahy:

    — football ever was.

    For example — for example, most are or at least a substantial part of the football players and, of course, we’re way off of the record now and certainly off in the —

    Earl Warren:

    Yes.

    Marshall E. Leahy:

    — record in this case.

    But a substantial part of the football players today were never drafted.

    They were picked up and signed as free agents.

    Now, I mean you can get down the roster of any of these clubs to determine that.

    Earl Warren:

    Yes.

    Well, Mr. Leahy I don’t want to — I don’t want to say that football is reprehensible in that — in that respect.

    All I say is that it is different and should not the Court’s hear evidence on the effect of such relationship rather than to say, “Well, this is — this is just like baseball and therefore you must treat the same.”

    Marshall E. Leahy:

    Well, may I explain my position on that?

    Earl Warren:

    Yes.

    Marshall E. Leahy:

    I thought I made it clear.

    The first time we had any statement of the word “draft” in this matter which is then before the Court since 1949 was two days ago when we got a reply brief and the word “draft” appeared.

    It is not in the pleadings and as far as I know if it’s mentioned in the briefs, I don’t recall it.It’s — it’s mentioned in an incidental way.

    It’s certainly not in the complaint.

    It’s not an element or something of which Radovich complains and as far as we are concerned and for all we know there’s no showing that Radovich was drafted.

    Now, after all it’s not football’s position as I understand it that the matter of this type to be called upon to defend things, accept the ones of which they’re charged.

    There are — if Radovich has some complaint about the fact that because of the draft, he has suffered some injury.

    Marshall E. Leahy:

    I had to give a thing but he didn’t plead that.

    Earl Warren:

    Well, might not the — the draft contribute to their monopoly and the way they restrain commerce if they have a control, overall the football players of the country to the extent that they can determine while they’re still boys in college that they must play with any team they want or — or forever be barred from football isn’t — isn’t that a factor that should be considered?

    Marshall E. Leahy:

    That would be a factor if it were pleaded in my opinion, but if in that — I say this to you, Your Honor, the complaint in this case pledges competition with the All-America Conference.

    In fact, the competition was so good Radovich ended up over there for twice the same amount of money that he was getting from Detroit.

    So, this question of monopoly, I — I don’t think there is.

    I think even under the pleading, there’s no monopoly, proves he — he submitted the existence of a rival league and — and a — in the same area in which players were playing.

    Earl Warren:

    But he used — he complains that the black-list and the boycott is operating against that other league

    Marshall E. Leahy:

    No, he is not.

    Earl Warren:

    Well, I — I misunderstand.

    Marshall E. Leahy:

    He is not.

    Earl Warren:

    I thought (Voice Overlap) —

    Marshall E. Leahy:

    I — I may had mention that.

    There is no allegation on this —

    Earl Warren:

    Yes.

    Marshall E. Leahy:

    — complaint that this league, this defendants ever did one thing except as it related to the National Football League and it’s subsidiary or affiliate, the Pacific Coast League.

    The All-America Conference was a rival league and remained in existence all during the time that Radovich was involved in this complaint.

    Earl Warren:

    I thought I — I’m undoubtedly mistaken but I thought you said that he wanted to go on this rival clubs and — and they — they boycotted it — boycot him and black-list him and they finally told him that — that because of that black-list he could — they couldn’t employ him, so he lost his employment.

    Now, I was mistaken on that.

    Marshall E. Leahy:

    As far — as far as the Pacific Coast League which was a minor league was concerned which had an arrangement —

    Earl Warren:

    (Inaudible)

    Marshall E. Leahy:

    — with the National Football League like — just to say why the baseball had an arrangement with this class Triple A, Double A and so on.

    Well, I’m speaking there of the major league team, the one in direct competition with the major league professional National Football League.

    There is nothing alleged nor is there any contention that anything was done.

    There’s a general allegation that what was done was done to drive them out of business.

    That’s just the one statement in the complaint, but there’s no showing and if you look at the Circuit Court’s opinion, the circuit judge makes mention of the fact that there is no showing here or whether what was done had any effect at all on the All-American Conference.

    Earl Warren:

    And might not that be evidentiary?

    Marshall E. Leahy:

    Well, I think it’s — I think it’s essential to his complaint.

    Earl Warren:

    If he alleges the legal effect on him wouldn’t — and the rest would be evidentiary and that — that’s — that’s my point without condemning anybody.

    It seems to me that we have to jump a lot of hurdles to say that — that baseball or football and its organization is exactly like baseball and its organization and therefore that it must come under the same case.

    Marshall E. Leahy:

    Well, I say this to Your Honor, if that’s your feeling I – I mean I think you should weigh it in this — in this respect.

    Marshall E. Leahy:

    I didn’t get a chance to develop this point of my argument which is quite important.

    The complaint alleges that football started in 1921, it’s rather unusual.

    It started out at or about the time of the Federal Baseball case.

    And for 30 years, football has been allowed to develop with the same structure as baseball and no one has questioned that.

    Now, the argument might be raised that the Hart case should have put them on warning as was said in one of the decisions.

    But let’s analyze that.

    Here’s a group of football people organizing a football league in the light of a decision by the Supreme Court that a — that another professional sport of the same general nature is outside the purview and that there are reserved clause and a uniform contract and all the things that are involved in that are proper and lawful because they — they developed competition among their members.

    Hugo L. Black:

    You don’t understand that the Toolson case held that the reserve clause was valid or invalid, do you?

    Marshall E. Leahy:

    No, I don’t make that.

    Hugo L. Black:

    It specifically refused pass to on that.

    Marshall E. Leahy:

    No, I understand that, Your Honor.

    I — I say that I’m speaking now of the situation if you will follow me that was the situation before the football people at the same time the Federal Baseball case was decided when the complaint alleges that National Football League commenced its operation.

    I say that they had a right to rely that if they followed the identic pattern as baseball as normal business people if they model themselves as an athletic group, leagues, regular scheduling, players on the contract, uniform contracts, commissioners, rules and regulations all of — all the same layout.

    What — how could anyone honestly say that instead of relying on Federal Baseball, they should have relied on Hart?

    Now, all Hart said was, “Here are a lot things in the — in the theatre business, a lot of restrictions.”

    And they said well, those are all proper because we have a local exhibition.

    They didn’t have — they didn’t when they first went up the first time.

    They didn’t make any effort as I read their complaint to show that those restraints that were involved in the Hart case were lawful and necessary to the operation of that business.

    But football already had the baseball case behind it where these things have been held to be reasonable and proper.

    And then for 30 years, they developed an operation.

    Now, we have a lot of players on the contract and everyone of these players that’s on the contract that has some little court in his background has it — if this matter’s reversed and set back, we’re going to be in exactly the same position that baseball was in.

    Now, I can impress on the Court too much if they — they should give serious consideration to what would businessmen organizing a football league in 1921 which is the language of the complaint and which is not in dispute, what would they have done?

    Here is a football war going on that was well known to everyone.

    It was a fight between the old Federal League and the Major Leagues.

    And in that case, you had a team, Baltimore claiming that they had forced them out of baseball and they ended up with a team and no one to play.

    Those were the facts in the Federal Baseball case.

    So, these people say, “Well, it seems obvious to me as a businessman that if we model ourselves on baseball and confine ourselves to the same operational layout we’re within the thinking and the principle of the Supreme Court.”

    Now —

    Earl Warren:

    Is there any reason why you shouldn’t have to establish that in the hearing before the lower court if you do that and come here then you — then you’ve got the question as to whether — whether you’ll be in the same position as Federal Baseball or Toolson?

    But until you do establish that fact in — in the trial court and we can determine by findings that you are the same then I don’t see how you can raise that to us.

    Marshall E. Leahy:

    Well — well, it was certainly the same insofar as the allegations of which Radovich has complained.

    That’s my point.

    If there are some other measures or rules or something in football that are involved that might make football slightly different from baseball in some internal respect, they’re not involved here.

    Why should we be called upon to make football go back and lay there everything they’ve done even though Radovich doesn’t complain about it?

    Because we have a matter that has been passed upon on the three fundamental points that are involved here.

    He’s only complaining about the things that Federal Baseball had before it and which it repeatedly has been said time and time again the Shubert case said what Baseball held.

    It said it upheld the validity of the reserve clause.

    It’s in the opinion.

    Hugo L. Black:

    That’s not what the Toolson case — where the Toolson case interpreted, was it?

    Toolson case —

    Marshall E. Leahy:

    Toolson case.

    Hugo L. Black:

    — it is holding that the baseball players are not within the scope of the federal antitrust laws.

    Marshall E. Leahy:

    That is correct.

    Now, let’s get around to the Toolson case.

    Could I ask you one question to make sure that I’ve got your argument straight.

    As I understand it, what your saying is that you don’t dispute that football is a sport, is subject to the antitrust laws.

    In that respect you’re in agreement with the Government and in agreement with your opponents.

    And your whole argument is that on that premise, the complaint does not set forth that it’s insufficient to constitute a cause, or to state a cause of action.

    That’s your position.

    Marshall E. Leahy:

    Well, I think we’re out on jurisdictional on grounds also.

    Well, I want to be sure of that because the — the thrust of your argument is quite different from the argument it seems to me that the Government was addressing itself to and as I misconceived you.

    Marshall E. Leahy:

    Well, of course I’ve got thrown off is a rather —

    But you say at the beginning of your argument, that’s what prompts my question.

    You said at the beginning of your argument, you were not contending and that you emphasized and want to make it clear that you were not contending that football was not subject to the antitrust law.

    Marshall E. Leahy:

    Oh, we couldn’t make that contention.

    We never had.

    We just finished a case in Philadelphia which the United States —

    Well, (Voice Overlap) — and that is the reason why —

    Marshall E. Leahy:

    — claim that certain things we did on radio and television were directly against an interstate business namely, radio or television.

    I say baseball could be charged with the same thing if the Government would decide that any — any organization that does something —

    Well —

    Marshall E. Leahy:

    — in direct violation of an interstate operation could fall within the Act.

    I think —

    Well —

    Marshall E. Leahy:

    — this Court has held that.

    But that — that’s not the same in saying that in this case, we find ourselves in the Act.

    I — I say that our jurisdictional position is that being so identic with the situation that this Court held as a principle, as a principle in Federal Baseball and which it upheld later on in Toolson because of reliance and stare decisis.

    Hugo L. Black:

    But did we uphold that principle in Toolson —

    Marshall E. Leahy:

    Well, you certainly —

    Hugo L. Black:

    — I — I didn’t think the opinion said that.

    Marshall E. Leahy:

    You certainly didn’t disturb it.

    Hugo L. Black:

    I — I didn’t think the opinion indicated that at all to me.

    Marshall E. Leahy:

    No, it said without examination of the underlying issues I agree.

    But —

    (Inaudible)

    Marshall E. Leahy:

    — my point was by — whether you did it directly or by indirection in effect baseball finds itself outside of the Sherman Antitrust —

    And the case —

    Marshall E. Leahy:

    –Act.

    — and the case said that it was the intention of the Congress, the Court had held that to be the intention of the Congress.

    Marshall E. Leahy:

    And I — and I say to you that if you consider what we have, I haven’t had the chance, I wanted to give Mr. Nordlinger a chance to say a few things.

    If you consider what we have stated in our brief and it’s been written very carefully and with a great deal of thought in what I’m tried to say today.

    We don’t feel that football is in any different position than baseball.

    Now, the only comment that could be made in that connection is that we should go back and prove that.

    Now, there are findings in this U.S. versus National Football League by Judge Brennan which is a District Court case in which he speaks of the unique features of football, the need for these rules.

    It’s all quoted in our brief.

    So, there is some background on our operation an addition to the complaint.

    It’s set out there.

    But I — but I simply say in going back, what we will be doing?

    We will be simply trying to justify the very things that which have been approved in 1922 in baseball because that’s the only thing of which counsel complained.

    He’s not complaining about the draft.

    Marshall E. Leahy:

    Radovich, maybe his counsel is but Radovich has certainly not alleged in any part of this pleading.

    Could I put my question to you in a different fashion?

    Supposing this complaint had alleged these reserved contracts or these contracts in more detail and has the alleged facts which clearly brought them outside the scope of the titles of contract that was involved in Federal Baseball.

    Would you be here in court now asking us to dismiss the complaint?

    Marshall E. Leahy:

    Did I understand you to say that if this complaint had alleged something that was not involved in Federal Baseball?

    As to — as to the type of contract, yes.

    Marshall E. Leahy:

    Yes.

    In other words, I think if — if there was an allegation here of features that something that football was doing, that this Court had in a long time ago held to be reasonable considering the pattern, the type of operation and the type of business, we couldn’t make this argument.

    Our argument is if this is the identic situation, then why — why should we have to go back?

    You couldn’t make this argument, would you –would you be making an argument that notwithstanding, all of that but the Federal Baseball should result — should result in our holding that football is not under the federal antitrust laws.

    Marshall E. Leahy:

    I think our position is pretty well stated by the dissenting opinion in the Boxing case which there was a statement to the effect —

    It’s like different to me.

    Marshall E. Leahy:

    Well —

    (Voice Overlap)

    Marshall E. Leahy:

    No, I don’t think so.

    I think there’s a statement in there that says that when you’ll find a situation before the Court where the pattern is identic with Federal Baseball, there shouldn’t be any reason for having a different rule for one sport than another.

    Now, I think that’s our position.

    That’s what we’re contending, precisely that.

    I — I would like the Court to tell me what football does as alleged in this complaint that baseball didn’t have involved in its decision in 1922 and — and the thing that the Court refused to review.

    Now, I want to make one comment.

    The argument might be raised that football now has radio and TV and there was not radio and TV in 1922.

    But those aspects were not sufficient for this Court to disturb Toolson.

    In other words, they had radio and TV and baseball in 1953 that they didn’t have in 1922.

    And the Court still said because there was a species of reliance and because of the background of this thing, we will not disturb it.

    Now, you can’t measure football if we’re right in our original premise that Federal Baseball laid down a principle upon which football had a right to rely.

    Then radio and TV in 1953 should have the same effect as it did in the Toolson case for baseball.

    Earl Warren:

    Well, it might not be those, the relationship of TV and radio to football is different from the relationship of — of the same instrumentalities to baseball and then one might use them to accomplish a different purpose than the other and that the use of them might have a different effect upon commerce.

    Marshall E. Leahy:

    Well, I — I think that that difference would be in our favor rather than against us.

    Earl Warren:

    Well, I don’t say it wouldn’t be that —

    Marshall E. Leahy:

    I’ve no —

    Earl Warren:

    — would there be a difference.

    If there was a difference then — then your statement that baseball had radio and television at the time of Toolson wouldn’t be as persuasive to me as if you — it had been otherwise.

    Marshall E. Leahy:

    There’s an allegation in the Toolson complaint that the radio and television aspects of baseball provide 20% of the revenue.

    There is a finding and an exhibit which we have put in our complaint that in the U.S. versus the National Football League, a direct test of the radio and television aspects of football for a period of three years, the relationship of radio and TV revenue, the total revenue was a little over 4%.

    Now, if 20% wasn’t enough to warrant a reexamination of baseball, certainly four point — some odd percent shouldn’t be enough in football.

    Earl Warren:

    I thought the allegation and the complaint wasn’t a major portion of your income — was from television and radio.

    Marshall E. Leahy:

    And the same allegation was in — was in Toolson.

    I– I’m simply saying that I don’t know that that would necessarily bind this Court.

    I understand that.

    But I’d say there was a finding, an exhibit which is part of the record in U.S. versus National League which we have pointed out in our brief.

    To the effect, that within the last year or so when that decision came down in Philadelphia, there was any — a finding by the —

    Earl Warren:

    Yes.

    Marshall E. Leahy:

    — by the Court that the relation of revenue in TV revenue to ordinary revenue was four point odd percent against 20% in Toolson.

    Earl Warren:

    Well, should that deprive them in this case of establishing if they — if they can that it was a major portion of your income instead of 4%?

    That’s another case, isn’t it?

    Marshall E. Leahy:

    Well, it should —

    Earl Warren:

    This man was the — a party to that case, was he?

    Marshall E. Leahy:

    Well, it shouldn’t have deprived — it shouldn’t have deprived Toolson either.

    He should have had the opportunity of showing.

    There are something if they didn’t have the opportunity of doing in 1922.

    Earl Warren:

    That might be.

    Marshall E. Leahy:

    That’s all we’re saying

    Earl Warren:

    Yes.

    Marshall E. Leahy:

    But I’m saying that if you lay down one rule for Toolson, I don’t think it’s proper or equitable or justifiable to say, “Football, you go back and tell us all about your radio and television.”

    But Toolson despite the fact that you’re alleged to have even more than football, you don’t have to go back because of something that happened back in 1922.

    Earl Warren:

    Well, suppose an automobile concerned here was a — have suit such as this against them and it was determined that that particular company had — had not violated the antitrust laws.

    And another one started about the same time and said, “Well, for 30 years now, we follow the same practices and we allege in our defense, in our answers that we have followed the same practices of that company.

    And therefore, the courts foreclosed from — from inquiring into the manner in which we do our business because of this other decision.

    Would that be — would that be appropriate?

    Marshall E. Leahy:

    I think that you might — that you’d have to qualify that by saying that if in the first decision, the first hypothetical case that you quoted, the Court ruled against the plaintiff for certain specified reasons and at the second complaint involved the same reasons.

    Marshall E. Leahy:

    I think you might have a question of stare decisis.

    I don’t think it would be res judicata, but I certainly think any principle that was established in the first case would apply in the second case.

    I’m not saying that the decision in Federal Baseball is res judicata against this plaintiff, sir, but I am saying that the principles under the doctrine of stare decisis.

    If there are any principles in Federal Baseball, we should have the advantage of it and that’s all we claim and we claim they are principles.I’d like to —

    Hugo L. Black:

    Suppose Congress had written into the Antitrust Act the language that the Court used here as interpretation of the Act that this is to be unlawful to engage in monopoly and so forth but it has no intention of including the business of baseball within the scope of this law?

    Would you say that football was exempt?

    Marshall E. Leahy:

    If Congress had stated that?

    Hugo L. Black:

    Yes.

    Marshall E. Leahy:

    No.

    I mean if that was the only basis, that I’d, certainly, wouldn’t feel that we could —

    Hugo L. Black:

    Yes.

    Well, do you understand that the Toolson case went any further than to say the whole and approve the Federal Baseball case any further than to say that as far as that decision determines that Congress has no intention of including the business of baseball within the scope of the federal antitrust laws as we follow it?

    Marshall E. Leahy:

    I think that’s what it said and I think that’s what it meant but I — I’m — I repeat —

    Hugo L. Black:

    You think — you think it was wrong in limiting it to that extent.

    Marshall E. Leahy:

    No, I think that I ought to make my position clear.

    We do not rely to any great extent on Toolson.

    We rely on Toolson only —

    Hugo L. Black:

    (Voice Overlap) —

    Marshall E. Leahy:

    — in — in relation.

    We rely on Federal Baseball for the principle that Federal Baseball lay down.

    We wrote —

    Hugo L. Black:

    But the Toolson decision, the (Inaudible) decision refused to rely on those principles.

    It did not rely on them.

    Marshall E. Leahy:

    Well, I think it said we will not —

    Hugo L. Black:

    (Inaudible)

    Marshall E. Leahy:

    I think it said we will not reexamine.

    And I don’t know —

    Hugo L. Black:

    Specifically limited to holding that — that so far as that decision determines if Congress had no intention of including the business of baseball within the scope of the federal antitrust laws, we left it alone.

    Marshall E. Leahy:

    I understand that.

    I — I —

    Hugo L. Black:

    I’ve done this, hadn’t done anything to it.

    Marshall E. Leahy:

    Well, I haven’t done anything to football.

    And the very —

    Hugo L. Black:

    No.

    Marshall E. Leahy:

    The very, the very —

    Hugo L. Black:

    But the Court hadn’t done anything to football one way or the other.

    Marshall E. Leahy:

    The very, the very —

    Hugo L. Black:

    That — that showed the difference.

    Isn’t it that the Court in the Federal Baseball case held that baseball was out?

    Now, you say that it didn’t on certain principles that came up before the Court long years after this.

    Federal Baseball case was back.

    So it was — was written.

    And this Court trying to upset it, its holding to the extent that it held that Congress did not intend to include baseball playing and if I — as a part of the violation of the Act.

    Marshall E. Leahy:

    All I ask the Court to reexamine Federal Baseball and to show me where there’s anything in that case that says that it’s limited to baseball and baseball alone.

    Hugo L. Black:

    Well, there might be some members of the Court that would bat for the stare decisis and bat for the 25 years.

    It would have agreed with Federal Baseball.

    That was left open, wasn’t it in the Toolson case?

    Marshall E. Leahy:

    Yes.

    But I say the same considerations that the Court had in mind despite their misgivings about what they might have ruled initially.

    The same consideration should be given football.

    That’s what I’m saying.

    Hugo L. Black:

    I understand that.

    Marshall E. Leahy:

    Thank you.

    Earl Warren:

    Mr. Leahy.

    Mr. Nordlinger.

    Bernard I. Nordlinger:

    If it please Your Honors.

    With the permission of the Court, I would like to address myself to another face of the case which the Circuit Court of Appeals deemed to be dispositive of the plaintiff’s claim.

    And that face of the case rises on the basis of the record which we respectfully submit consists at this point of the plaintiff’s complaint only, a far cry from any of the very important — and heretofore discussed subjects on this hearing.

    The plaintiff’s complaint was characterized by the court below in a very simple manner.

    The Court said that he was a football player that tried that — that broke his contract.

    Bernard I. Nordlinger:

    And then the Court said succint paragraph which makes the case and this is really Mr. Radovich’s case.

    Eventually, he wanted reemployment by the Detroit Lions or by other football organizations of the National League.

    But he says up to the filing of — of his complaint, he could find no further employment as a football player with teams affiliated with the National League because when he joined the Los Angeles Dons, he broke his contract with the Detroit Lions.

    So we don’t have a case which involves anything at all except an embittered player who broke a contract or jumped it in plain language and wants to go back to work for the same people that he was working for before.

    The court below says on this face of the case distilled plaintiff’s allegation is really that there was a conspiracy to eliminate football leagues not affiliated with national particularly another league called the All-America Conference.

    The alleged methods would be control of players by the reserve clause and black-lists.

    Now, in this respect, the Court says this and I’ve eliminated several unnecessary words which do not change the sense.

    We doubt that the alleged means is legally sufficient to support a conclusion that these means were calculated to prejudice the public or unreasonably restrain interstate commerce.

    And the Court says we failed to discover again eliding some inconsequential words.

    We failed to discover pleaded that any league was ruined, would be ruined or substantially affected.

    The result cannot be presumed as a matter of law.

    Now, what the Circuit Court of Appeals for the Ninth Circuit said is that the plaintiff Radovich alleged in subparagraphs A, B and C appearing on page 10 of this record that the National Football League just within its own components adopted a rule that says that every player had to sign the same contract and that if he broke his contract without just cause or excuse, they wouldn’t employ him again.

    We must bear in mind that the National League is not like an association of manufacturers and football is the National League.

    The league itself is the entity comprised of teams who compete with other — each other upon the playing field so that each of the teams in effect are partners.

    The plaintiff himself in his complaint alleges that they are taking part in a common venture.So that what the plaintiff’s complaint is actually in plain common sense, an agreement of partners not to reengage an employee who quit his job.

    If —

    Earl Warren:

    If your complaint or just your answer admit or deny the black-list?

    Bernard I. Nordlinger:

    The answer denies the black-list.

    Earl Warren:

    And how is it established by the judge that there was no black-list?

    Bernard I. Nordlinger:

    The judge didn’t attempt to — to establish that —

    Earl Warren:

    Yes.

    Bernard I. Nordlinger:

    — there was no black-list.

    He said assuming that the National League which is the entity, if Your Honor pleases, assuming that the National League adopted such a rule that they had a right to do it.

    That there’s nothing in —

    Earl Warren:

    No matter how they might have operated under it?

    Bernard I. Nordlinger:

    No, Your Honor, but in the light of what the plaintiff says.

    You see, all of these other things that have been debated thus far in this hearing is a magnifying process of a simple, plain, everyday, situation into something which is — which it is not.

    If three people own a manufacturing concern, if counsel, the three of us own a manufacturing concern and we have a secretary who without any reason at all quits her job, if I agree with my three partners who own the plant that we won’t hire her back again, certainly, there is no interstate commerce involved.

    There is no Sherman Act violation.

    There is nothing involved, just a simple, honest, plainly understood everyday event, namely, an agreement of partners who own a business not to reengage somebody who quits without an excuse.

    Bernard I. Nordlinger:

    That’s all there is in this complaint.

    And that’s why the Court of Appeals said that the plaintiff’s complaint indicates no connection between competition with the — of the National Football League with the All-America Conference and that without allegations connecting it, it cannot be presumed.

    Accordingly, the Court said since what is involved in a Sherman Act case is an undue or unreasonable restraint upon competition which is the public injury that our Brother was discussing earlier today.

    The undue or unreasonable restraint upon competition is what — is the public injury that’s involved.

    The Circuit Court of Appeals said in quoting the Feddersen case, that since the mere adoption of a — a group of people who own a business of a rule that they won’t take back their employees who quit without excuse since that’s all that’s involved, there’s no allegation of an undue or unreasonable restraint upon competition and no Sherman Act violation.

    There’s no public injury in the words of the Feddersen case.

    There’s no undue restraint and accordingly in that face of the — of the case in that kind of a discussion, we are not involved with whether baseball is football or football is interstate commerce or anything else.

    It’s a simple everyday occurrence of a disloyal player who broke his contract.

    Now, if Your Honors take that case and for some reason undoubtedly, academically sound or legally appropriate, use that case as a means or in — in a way which will result in a trial with the enormous expense upon these defendants for the proof of what goes on in the football system, for all of the delay, the harassment, the chaos in the Football League, the league utterly may well utterly be destroyed because the impact upon the investments in this business, the possible liabilities of every player with a uniform contract to be involved in a case which is in essence nothing but the claim of a disgruntled, embittered player who alleges nothing in his — in his complaint in any manner related to the enforcement of the Sherman Act, in any other way than if my own secretary quit her job and that my partners agree with me not to take her back again.

    Now, to — to go off on boycotts, bans, black-listing or anything else is to fly in the face of what a football league is because no football game can be presented to the public unless with — it is within a framework of a league.

    The public must be interested in the contest.

    The respective championship and the — the Football League isn’t a combination of manufacturers or cement workers or plasterers or the Football League is an entity and it’s that entity, that single entity without combination with anybody alleged by the plaintiff himself that has adopted a rule that says that he — he can’t come back to work for them when he broke his contract.

    Now, Your Honors have for many years consistently held that the generality and the depth and — and of vagueness of the language of Sections 1 of Sherman Act is comparable to constitutional provisions with the Court — result of duty upon the Courts to interpret it and then interpreting it.

    The courts for — for many years, has said that the mere restraint upon commerce is not enough.

    It must be an unreasonable one.

    And certainly, no person may obtain the benefits of litigating in a federal court unless he does what Your Honors have heretofore held he must do, state or allege or claim an unreasonable restraint upon commerce.

    There is not one word in this complaint on the part of the plaintiff whereby he alleges that the uniform contract is an unreasonable restraint upon commerce.

    Now, it’s true that’s a technical pleading point.

    But nevertheless, before a man may or before a man may — may state a case or have his case heard, he should be required to include within the framework of his complaint, the essential allegations of a claim.

    And if I may say most respectfully to require the defendants to bring on their proof with the delay and the enormous expense involved when the plaintiff hasn’t even done which Your Honors have required in every case that I’ve read that’s come out of this Court, namely, that any restraint upon commerce must be an unreasonable restraint to create a cause of action or to state a claim for relief.

    The plaintiff hasn’t alleged it.

    Hugo L. Black:

    Did the District Court sustain an objection on that ground to the sufficiency of the complaint?

    Bernard I. Nordlinger:

    The motion in the District Court was on two grounds.

    First, that the Court lacked jurisdiction of the subject matter.

    And second that the complaint failed to state a claim for relief.

    The District Court sustained the motion to dismiss without opinion.

    That it appears in the record that at the foot of the order signed by the District Judge, there is without discussion one case cited which was Toolson.

    But the Court of Appeals discussed with some care as I have already pointed out that the claim for relief is not stated, not only —

    Hugo L. Black:

    You’re — you’re asking in effect that for summary judgment on treatment?

    Bernard I. Nordlinger:

    Well, —

    Hugo L. Black:

    And I should think that if there’s any objection to the sufficiency of pleading that’s complained by reason of failing to allege some facts that are not necessary, proper disposition would not be summary judgment but to give him a chance to amend.

    Bernard I. Nordlinger:

    This was a motion to dismiss, Your Honor.

    Hugo L. Black:

    I understand it was a motion to dismiss but the result of what you’re asking would be a dismissal and effect of a summary — summary dismissal on the brief.

    Bernard I. Nordlinger:

    No, sir.

    We’re not asking for that most respectfully.

    Hugo L. Black:

    That’s what it sounds like.

    Bernard I. Nordlinger:

    But the motion to dismiss was in the conventional form and appears in the record in a conventional form.

    Hugo L. Black:

    I understand that but what you say is the complaint is not good by the reason of the fact that there are some allegations that are not made in effect.

    Bernard I. Nordlinger:

    Yes, Your Honor.

    Hugo L. Black:

    And therefore, that since the Court of Appeals for the first time pointed that out, we should affirm the Court of Appeals and deny the plaintiffs a chance to have their case determined on the pleadings as they are now, might be amended.

    Bernard I. Nordlinger:

    I think not, Your Honor.

    The motion to dismiss in the lower court was upon the specific ground that the complaint fails to — to state a claim for relief.

    Hugo L. Black:

    But he — but he cited the Toolson Case and that was a — I –I had supposed up to now that no one thought that it was done on any other ground.

    Bernard I. Nordlinger:

    Well, the Court of Appeals thought it was.

    Hugo L. Black:

    Now, the Court of Appeals found it and discussed the ground but it didn’t say that the District Court had gone to that ground, did it?

    Bernard I. Nordlinger:

    Well, nobody has said what the District Court did.

    The record is bound on the point, Your Honor.

    But it is apparent upon an investigation of this record.

    It is readily apparent that to read the complaint, no lawyer who has ever defended an antitrust action would believe that such a complaint would be permitted to go to trial.

    Hugo L. Black:

    Maybe not but may — there — there’s quite a difference between them that go to trial and inform they are and in giving part of the chance to amend.

    Bernard I. Nordlinger:

    There was no application made to amend, Your Honor.

    Hugo L. Black:

    I understand there wasn’t but this — this argument against the sufficiency of the complaint was first written out by any court in the Court of Appeals.

    And if we would have to adopt what you say, it would be that a — affirm the judgment which dismisses and assuming that you are right in the fact that there might be some additional facts alleged, then if that’s true, I should think it’s proper not to be trying cases, would not be the — to dispose of it in such a summary manner.

    Bernard I. Nordlinger:

    Well, may I respectfully submit that we cannot assume that the plaintiff can say anything else.

    He has never asked for an opportunity to do so either in the Court of Appeals or in the District Court.

    And certainly to ask this Court for leave to amend would be somewhat unusual.

    Hugo L. Black:

    I agree to that.

    Bernard I. Nordlinger:

    But if Your Honor pleases —

    Hugo L. Black:

    Most trial lawyers as you know have somewhat of an objection to letting cases be disposed of, summary proceedings simply on some minor insufficiency in the allegations on the complaint of —

    Bernard I. Nordlinger:

    We submit, if Your Honor, please, this is not a minor insufficiency.

    Bernard I. Nordlinger:

    That the real basis of this complaint is nothing but the action of a disgruntled player who seeks to bring into complete scrutiny with all of the enormous hazards of liabilities and enormous expenses and delays and all the time that it would take of everybody involved when he really hasn’t got a claim at all.

    And for the Court to permit him to do that when he hasn’t sought, leave to state anything more than he started out with in the face of a perfectly reasonable, academically sound decision of a Circuit Court of Appeals would seem to us most respectfully to be not required in any degree or sense of fairness to the defendant.

    We respectfully submit that the opinion of the Circuit Court of Appeals was correct on that face of the case (Inaudible)

    Thank you.

    Maxwell Keith:

    May I state but I doubt if it’s the question of time harassment and expense that will deter or bothers the respondents in having this case put to trial.

    It is a fact that there has been extensive pretrial discovery and we shall prove the three main elements of our cause of action, which may not be limited on a motion to dismiss, to a reserve clause issue.

    We will prove that we have been injured as part of a plan to rule — to ruin the All-America Conference.

    This conference admittedly is not a constituent member of the National Football League but was engaged in a trade war with the respondents.

    We will show that the agreements, the divisional alliances between the Pacific Coast League and the National Football League had nothing to do with the promotion of competition on the playing field but were simply agreements not to compete.

    It was simply agreements to give nationwide sanction to the rules and regulations of the National Football League and were simply the means of (Inaudible) group power to eliminate this league.

    And in the sense, the Toolson case has no application to our cause of action.

    There hasn’t been a trade war in the baseball industry since 1915.

    There was no attempt to state that interstate commerce was affected by the elimination of the competitor in the Toolson case.

    There was no attempt to show that there was a desire for Toolson services which was — you know which was — which was prevented from enforcement by a boycott and we have those practice present in our — in our case.

    As our second element we shall prove that there was a group boycott between divisional affiliates who had no competitive relationship with each other on the playing field.

    Our complaint establishes that the National Football League had no constituent members in San Francisco where the petitioner was requested to play by the Clippers.

    We will show that as to the National Football League there would be no problem of the enforcement of the reserve clause between constituent members that he played for the San Francisco Clippers.

    They never met on the playing field.

    As to the Pacific Coast League, we will show that what for this divisional affiliation, he would have aided and strengthened their league if they really wanted to become a major competitor to the National Football League.

    And we will show that this — that this divisional affiliation as set forth in the answers of the respondents caused the relation of a traitor.

    And I say this supression and discrimination establishes matters which are necessarily under the antitrust law.

    Thank you.