Issues in Antitrust Private Litigation: Sports Cases

A. Introduction
The Clayton Act authorizes private damages actions and private
actions for injunctive relief under the antitrust laws.
This section
addresses issues that arise regularly in private antitrust actions. Part B
addresses a variety of issues concerning standing in the antitrust and
sports context, including the subjects of antitrust injury and the
application of Associated General Contractor s.
Part C discusses the
requirements for a case to proceed as a class action. Part D discusses the
use of experts. Part E considers when an antitrust sports litigant has
suffered an injury that is sufficient to support a damages award or
injunctive relief.
B. The Antitrust Standing Requirement
1. Standing to Pursue a Damages Claim
All private antitrust plaintiffs must have antitrust standing. Antitrust
standing is generally determined by reference to five factors: (1)
whether plaintiffs injury is an antitrust injury; (2) the directness of the
injury; (3) the speculative measure of the harm; (4) the risk of duplicative
recovery; and (5) the complexity in apportioning damages.
Some courts
add other factors, including the specific intent of the alleged wrongdoer
. 15 U.S.C. §§ 15, 26.
. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 537-44 (1983).
. Id.; see a lso Toscano v. PGA Tour, Inc., 201 F. Supp. 2d 1106, 1116
(E.D. Cal. 2002) ( holding that a golfer did not have standing to challenge
the media rules and conflicting eve nts rules of the senior PGA tour
because his injuries were remote and his damages were speculative);
Kingray, Inc. v. Nat’l Basketball Ass’n, 188 F. Supp. 2d 1177 (S.D. Cal.
. Hairston v. Pac-10 Conference, 8 93 F. Supp. 1485, 1491 (W.D. Wash.
1994), aff’d, 101 F.3d 1315 (9th Cir. 1996); Sullivan v. Tagliabue, 25
F.3d 43, 46 (1st Cir. 1994).
88 Sports and Antitrust Law
and whether there is another group of available plaintiffs better suited to
seek redress.
Courts generally balance these factors, although the
absence of antitrust injury is dispositive as a matter of law.
a. Antitrust Injury and Causation
Antitrust injury is an injury to a plaintiffs business or property that
is of the type the antitrust laws were meant to prevent and that flows
from that which makes the challenged conduct unlawful.
injury is a necessary but not sufficient element of antitrust standing: [I]f
there is no showing of injury, or if the injury alleged or proven is not
antitrust injury, the plaintiff does not have a claim cognizable under the
antitrust laws.
Some courts have found that the enforcement of league or
association rules to exclude participants in the sport or industry can cause
antitrust injury. Thus, in Radovich v. National Football League, the
Supreme Court held that a professional athlete should have the
opportunity to show that the National Football League (NFL)s
blacklisting caused him antitrust injury.
In Cla rett v. National Football
League, the district court held that a college football star who sought to
enter the NFL draft after his freshman year of college suffered antitrust
injury when the NFL eligibility rules prevented his entry into the draft.
In Piazza v. Major League Baseball,
the court rejected Major League
Baseball (MLB)s argument that plaintiffs who alleged that they were
stopped from buying a team, in part due to their Italian descent, could not
. Volvo N. Am. Corp. v. Mens Intl Profl Tennis Council, 857 F.2d 55,
66 (2d Cir. 1988).
. Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 83-84
(3d Cir. 2010); Sullivan, 25 F.3d at 47 (The existence of antitrust injury
is a central factor i n the standing calc ulus.); Toscano, 201 F. Supp. 2d at
1116 ([A]bsence of antitrust injury is fatal.).
. Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 349, 351 (1990)
(citing Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489
(1977)); Los Angeles Meml Coliseum Commn v. Nat’l Football
League, 791 F.2d 1356, 1363 (9th Cir. 1986) (Raider s II).
. Midwest Commcns v. Minnesota Twins, Inc., 779 F.2d 444, 450 (8th
Cir. 1985).
. 352 U.S. 445 (1957).
. Clarett v. Nat’l Football League, 306 F. Supp. 2d 379 (S.D.N.Y), revd on
other gro unds, 369 F.3d 124 (2d Cir. 2004).
. 831 F. Supp. 420 (E.D. Pa. 1993).
Issues in Antitrust Pr ivate Litigation: Sports Cases 89
show antitrust injury.
The court found that plaintiffs were alleging
exclusion from a relevant market, an injury Congress sought to redress
in the antitrust laws.
In Volvo North America Corp. v. Mens Internationa l Pr ofessional
Tennis Council,
Volvo sued the Mens International Professional
Tennis Council (MIPTC). After years of sponsoring MIPTC events and
broadcasts, Volvo claimed that MIPTC had conspired to monopolize and
restrain trade in the market for mens tennis by eliminating Volvos
ability to produce mens tennis events in the manner it saw fit, by
reducing the number of such events through a noncompete agreement
with a rival tennis promoter, and by requiring players who wanted to
compete in major tournaments to sign contracts that included restrictive
MIPTC argued that Volvo had not sustained an injury that
the antitrust laws were meant to prevent because it had benefitted from
the alleged cartel.
The court reasoned that alleged participation was not
determinative: [T]o the extent that a cartel member credibly asserts that
it would be better off if it were free to competesuch that the members
interest coincides with the public interest in vigorous competitionwe
believe that the individual cartel member satisfies the antitrust injury
The National Collegiate Athletic Association (NCAA) has also faced
lawsuits related to NCAA bylaws which require college athletes to
remain amateurs and therefore prevent college athletes from use of
their likeness in the media. In OBannon v. National Collegiate Athletic
former UCLA basketball star Ed OBannon claimed that he was
excluded from participating in the collegiate licensing market by the
NCAAs alleged rule requiring college athletes to assign their publicity
rights to the association.
He specifically complained that the NCAA
sold videos on its website of UCLAs championship win from when he
was a student, but he claimed that his image was being offered without
his consent and without compensation. He alleged that the restraints at
. Id. at 432.
. Id.; but see infra note 41 and accompanying text (disc ussing Mid-South
Grizzlies v. Nat’l Football League).
. 857 F.2d 55 (2d Cir. 1988).
. Id. at 60-61.
. Id. at 66-67.
. Id.
. Nos. C 09-1967 CW, C 09-3329, C 09-4882 CW, 2010 WL 445190
(N.D. Cal. Feb. 8, 2010).
. Id.

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