Garber v. MLB - Writ of Mandamus

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page1 of 96
14-
United States Court of Appeals

for the
Second Circuit
In re: OFFICE OF THE COMMISSIONER OF BASEBALL,
MAJOR LEAGUE BASEBALL ENTERPRISES, INC., MLB ADVANCED MEDIA, L.P.,
MLB ADVANCED MEDIA, INC., ATHLETICS INVESTMENT GROUP LLC, THE
BASEBALL CLUB OF SEATTLE, LLLP, CHICAGO CUBS BASEBALL CLUB, LLC,
CHICAGO WHITE SOX, LTD., COLORADO ROCKIES BASEBALL CLUB, LTD., NEW
YORK YANKEES PARTNERSHIP, THE PHILLIES, PITTSBURGH BASEBALL
HOLDINGS, INC. and SAN FRANCISCO BASEBALL ASSOCIATES LLC
PETITION FOR A WRIT OF MANDAMUS RELATING TO DECISION OF

THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK, CASE NO. 12-CV-3704, HONORABLE SHIRA A. SCHEINDLIN
PETITION FOR A WRIT OF MANDAMUS
BRADLEY I. RUSKIN
JENNIFER R. SCULLION
JORDAN B. LEADER
SHAWN S. LEDINGHAM, JR.
PROSKAUER ROSE LLP
Attorneys for Petitioners Office of the
Commissioner of Baseball, Major League
Baseball Enterprises, Inc., MLB Advanced
Media, L.P., MLB Advanced Media, Inc.,
Athletics Investment Group LLC, The Baseball
Club of Seattle, LLLP, Chicago Cubs Baseball
Club, LLC, Chicago White Sox, Ltd., Colorado
Rockies Baseball Club, Ltd., The Phillies,
Pittsburgh Baseball Holdings, Inc. and San
Francisco Baseball Associates LLC
Eleven Times Square
New York, New York 10036
(212) 969-3000
JONATHAN D. SCHILLER
ALAN B. VICKERY
CHRISTOPHER E. DUFFY
BOIES, SCHILLER & FLEXNER LLP
Attorneys for Petitioner New York
Yankees Partnership
575 Lexington Avenue
(212) 446-2300
CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure,
Petitioners the Office of the Commissioner of Baseball; Major League Baseball
Enterprises, Inc.; MLB Advanced Media, L.P.; MLB Advanced Media, Inc.;
Athletics Investment Group LLC; The Baseball Club of Seattle, LLLP; Chicago
Cubs Baseball Club, LLC; Chicago White Sox, Ltd.; Colorado Rockies Baseball
Club, Ltd.; New York Yankees Partnership; The Phillies; Pittsburgh Baseball
Holdings, Inc.; and San Francisco Baseball Associates LLC make the following
disclosures:
The Office of the Commissioner of Baseball d/b/a Major League
Baseball is an unincorporated association and, as such, has no
corporate parent. There is no publicly held corporation that owns
10% or more of the Office of the Commissioner of Baseball.
Major League Baseball Enterprises, Inc. (MLBE) is a New York
corporation. It has no corporate parent and there is no publicly held
corporation that owns 10% or more of MLBE.
MLB Advanced Media, L.P. (MLBAM) is a limited partnership
organized under the laws of the State of Delaware. It has no corporate
parent and there is no publicly held corporation that owns 10% or
more of MLBAM.
i
MLB Advanced Media, Inc. is a Delaware corporation. It has no

corporate parent and there is no publicly held corporation that owns
10% or more of MLB Advanced Media, Inc.
Athletics Investment Group LLC d/b/a Oakland Athletics Baseball
Club is a California limited liability company. Athletics Investment
Group LLC is wholly owned by Athletics Holdings LLC, which is a
Delaware limited liability company.
There is no publicly held
corporation that owns 10% or more of Athletics Investment Group

LLC or Athletics Holdings LLC.
The Baseball Club of Seattle, LLLP is a limited liability limited
partnership organized under the laws of the State of Washington. The
Baseball Club of Seattle, LLLPs corporate parent is Nintendo of
America, Inc.
Nintendo of America, Inc. is a wholly owned
subsidiary of publicly held Nintendo Co. Ltd.

Chicago Cubs Baseball Club, LLC is a Delaware limited liability
company. It is wholly owned by Chicago Baseball Holdings, LLC
(CBH), which is a Delaware limited liability company. There is no
publicly held corporation that owns 10% or more of Chicago Cubs
Baseball Club, LLC or CBH.
ii
Chicago White Sox, Ltd. is an Illinois limited partnership. It has no

corporate parent and there is no publicly held corporation that owns
10% or more of Chicago White Sox, Ltd.
Colorado Rockies Baseball Club, Ltd. is a Colorado limited
partnership. It has no corporate parent and there is no publicly held
corporation that owns 10% or more of Colorado Rockies Baseball
Club, Ltd.
New York Yankees Partnership is a limited partnership formed under
the laws of Ohio. It has a parent entity named YGE Holdings, LLC, a
Delaware limited liability company that is not publicly held. No
publicly held corporation owns 10% or more of the membership
interests in New York Yankees Partnership.
The Phillies is a limited partnership organized under the laws of the
Commonwealth of Pennsylvania. It has no corporate parent and there
is no publicly held corporation that owns 10% or more of The Phillies.
Pittsburgh Baseball Holdings, Inc. is a Pennsylvania corporation. It
has no corporate parent and there is no publicly held corporation that
owns 10% or more of Pittsburgh Baseball Holdings Inc.
iii
San Francisco Baseball Associates, LLC is a Delaware limited

liability company. There is no publicly held corporation that owns
10% or more of San Francisco Baseball Associates LLC.
Dated: November 12, 2014
PROSKAUER ROSE LLP

By:
s/ Bradley I. Ruskin
Bradley I. Ruskin
Jennifer R. Scullion
Jordan B. Leader
Shawn S. Ledingham, Jr.

Athletics Investment Group LLC, The Baseball
Club of Seattle, LLLP, Chicago Cubs Baseball
Club, LLC, Chicago White Sox, Ltd., Colorado
Rockies Baseball Club, Ltd., The Phillies,
Pittsburgh Baseball Holdings, Inc., and San
Francisco Baseball Associates LLC
By:
s/ Jonathan D. Schiller
Jonathan D. Schiller
Alan B. Vickery
Christopher E. Duffy
Attorneys for Petitioner New York Yankees

Partnership
iv
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF CONTENTS ...........................................................................................v
TABLE OF AUTHORITIES .................................................................................. vii
INTRODUCTION .....................................................................................................1
RELIEF SOUGHT .....................................................................................................6
ISSUES PRESENTED...............................................................................................7
BACKGROUND .......................................................................................................7
I.
THE PROFESSIONAL BASEBALL ANTITRUST EXEMPTION .............. 7
II.
NATURE OF THE ACTION AND PROCEEDINGS BELOW .................... 9
STANDARD FOR ISSUING THE WRIT ..............................................................11

REASONS FOR GRANTING THE PETITION .....................................................12
I.
NO MEANS OTHER THAN A WRIT IS ADEQUATE TO ENSURE

THE MLB DEFENDANTS ARE SPARED THE BURDENS OF
LITIGATION AND TRIAL, AS THE SUPREME COURT INTENDED .. 12
II.
THE DISTRICT COURTS ABUSE OF DISCRETION AND

USURPATION OF POWER EACH INDEPENDENTLY PROVIDE
THE MLB DEFENDANTS WITH A RIGHT TO MANDAMUS............... 15
A.
The District Court Erred in Refusing to Apply the Exemption to

the Business of Baseball ......................................................................16
B.
Even if the Exemption Applied Only to Certain Aspects of the

Business of Baseball, MLBs Territorial Broadcast Structure Is
Included ...............................................................................................18
1.
League Territorial Rules and Structure Are Exempt ................ 18
2.
The Supreme Court Exempted Territorial Broadcast Rules in

Toolson and the District Court Erred in Holding Otherwise .... 19
v
3.
C.
III.
The District Court Erred in Relying on the Sports

Broadcasting Act and Henderson .............................................23
a.
The Sports Broadcasting Act of 1961 Provides No

Basis for Limiting the Exemption ..................................23
b.
Henderson Actually Supports Application of the

Exemption in this Case ...................................................26
The District Courts Opinion Amounted to a Judicial Usurpation of

Power ...................................................................................................28
A WRIT IS APPROPRIATE TO RELIEVE THE MLB DEFENDANTS

FROM THE DISTRICT COURTS REFUSAL TO APPLY WELLSETTLED LAW ............................................................................................28
CONCLUSION ........................................................................................................30
vi
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Abelesz v. OTP Bank,
692 F.3d 638 (7th Cir. 2012) ..............................................................................30
Balintulo v. Daimler AG,
727 F.3d 174 (2d Cir. 2013) ...............................................................................13
Charles O. Finley & Co. v. Kuhn,
569 F.2d 527 (7th Cir. 1978) ....................................................................7, 16, 17
Cheney v. United States,
542 U.S. 367 (2004) ......................................................................................11, 30
City of San Jos v. Office of the Commr of Baseball,
No. 13-cv-02787, 2013 U.S. Dist. LEXIS 147543
(N.D. Cal. Oct. 11, 2013)..........................................................................3, 19, 21
Fed. Baseball Club of Balt., Inc. v. Natl League
of Profl Baseball Clubs,
259 U.S. 200 (1922) ..............................................................................................7
Flood v. Kuhn,
407 U.S. 258 (1972) .....................................................................................passim
Garber v. Office of the Commr of Baseball,
No. 12-cv-3704, 2014 U.S. Dist. LEXIS 133743
(S.D.N.Y. Sept. 22, 2014) ...............................................................................5, 11
Gardella v. Chandler,
172 F.2d 402 (2d Cir. 1949) ...........................................................................4, 17
Hale v. Brooklyn Baseball Club,
No. 1294 (N.D. Tex. 1958) .................................................................................27
Henderson Broad. Corp. v. Houston Sports Assn,
541 F. Supp. 263 (S.D. Tex. 1982) ...............................................................26, 27
vii
In re Armsted Indus.,
No. 369, 1993 U.S. App. LEXIS 13784 (Fed. Cir. May 14, 1993) ....................13
In re City of New York,
607 F.3d 923 (2d Cir. 2010) ...................................................................15, 28, 30
In re Roman Catholic Diocese of Albany, N.Y.,
745 F.3d 30 (2d Cir. 2014) .................................................................................15
Laumann v. Natl Hockey League,
No. 12-cv-1817 (S.D.N.Y.), 2014 U.S. Dist. LEXIS 109951
(S.D.N.Y. Aug. 4, 2014) ..............................................................................passim
Major League Baseball v. Butterworth,
181 F. Supp. 2d 1316 (N.D. Fla. 2002) ........................................................19, 29
Major League Baseball v. Crist,
331 F.3d 1177 (11th Cir. 2003) ...................................................................passim
McCoy v. Major League Baseball,
911 F. Supp. 454 (W.D. Wash. 1995) ................................................................19
Miss. Chem. Corp. v. Swift Agric. Chems. Corp.,
717 F.2d 1374 (Fed. Cir. 1983) ....................................................................13, 14
Morsani v. Major League Baseball,
79 F. Supp. 2d 1331 (M.D. Fla. 1999)................................................................19
New Orleans Pelicans Baseball, Inc. v. Natl Assn
of Profl Baseball Leagues, Inc.,
No. 93-253, 1994 U.S. Dist. LEXIS 21468
(E.D. La. Feb. 26, 1994) .................................................................................3, 19
Piazza v. Major League Baseball,
831 F. Supp. 420 (E.D. Pa. 1993) .......................................................................19
Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc.,
282 F.2d 680 (9th Cir. 1960) ..............................................................................16
Portland Baseball Club, Inc. v. Kuhn,
491 F.2d 1101 (9th Cir. 1974) ........................................................................3, 16
viii
Profl Baseball Schools & Clubs, Inc. v. Kuhn,

693 F.2d 1085 (11th Cir. 1982) ................................................................3, 18, 29
Radovich v. Natl Football League,
352 U.S. 445 (1957) .....................................................................................passim
Salerno v. Am. League of Profl Baseball Clubs,
310 F. Supp. 729 (S.D.N.Y. 1969) .....................................................................29
Salerno v. Am. League of Profl Baseball Clubs,
429 F.2d 1003 (2d Cir. 1970) ......................................................................passim
Toolson v. New York Yankees, Inc.,
101 F. Supp. 93 (S.D. Cal. 1951)..................................................................21, 29
200 F.2d 198 (9th Cir. 1952) ........................................................................22, 29
346 U.S. 356 (1953) .....................................................................................passim
Triple-A Baseball Club Assocs. v. Ne. Baseball, Inc.,
832 F.2d 214 (1st Cir. 1987) ...........................................................................3, 16
United States v. Intl Boxing Club of N.Y., Inc.,
348 U.S. 236 (1955) ..........................................................................................6, 8
United States v. Shubert,
348 U.S. 222 (1955) ..............................................................................6, 8, 16, 22
STATE CASES
Minn. Twins Pship. v. Minnesota,
592 N.W.2d 847 (Minn. 1999) ...........................................................................13
FEDERAL STATUTES
15 U.S.C. 26b(b)(3).................................................................................................9
15 U.S.C. 1291 et seq......................................................................................25, 27
15 U.S.C. 1294 ......................................................................................................25
28 U.S.C. 1292(b) .............................................................................................5, 12
ix
28 U.S.C. 1651(a) .................................................................................................11

OTHER AUTHORITIES
16 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure, 3935.7 (3d ed. 2014)......................................................................14
Petitioners Brief,
346 U.S. 356, 1953 WL 78316 (1953) ...............................................................20
Respondents Brief,
346 U.S. 356, 1953 WL 78318 (1953) ...............................................................20
Petitioners Reply Brief,
346 U.S. 356, 1953 WL 78319 (1953) ...............................................................20
Request for Consideration of Supplemental Authority,
City of San Jos v. Office of the Commr of Baseball,
No. 14-15139 (9th Cir. Aug. 11, 2014), ECF No. 40 ........................................... 6
INTRODUCTION
This Petition arises from a pending antitrust case challenging the internal
rules of Major League Baseball (MLB) about where and how live baseball
games can be shown via telecast. Plaintiffs seek to have rules fundamental to
MLBs structurespecifically the longstanding existence of home television
territoriesdeclared illegal and to hold MLB (and the other Petitioners (together,
the MLB Defendants)) liable for treble damages. Their attack violates the nearly
century-old rule that the business of baseball is immune from the antitrust laws, an
exemption the Supreme Court has reaffirmed six times.
So too, the Second
Circuit, like every other Circuit to opine on the exemption, has recognized that
professional baseball is not subject to the antitrust laws. Salerno v. Am. League
of Profl Baseball Clubs, 429 F.2d 1003, 1005 (2d Cir. 1970).
In declaring the business of baseball exempt from antitrust liability, the
Supreme Court also expressly shielded MLB from the burden of defending its
business in antitrust lawsuits just like this one and trials like the one the MLB
Defendants face here. The Supreme Court aptly characterized the exemption as an
umbrella over baseball. Radovich v. Natl Football League, 352 U.S. 445, 450
51 (1957). The refusal of the district court (Scheindlin, J.) to adhere to well-settled
precedent threatens to eviscerate that protective umbrella, forcing the MLB
Defendants to stand trial in order to justify the league structure. An appeal from an
adverse final judgmentafter the burdens of litigation and trial have been borne
would be too late to protect the MLB Defendants rights to be free from these
burdens. Only a writ from this Court will suffice.
In the face of controlling Supreme Court and Second Circuit law, the district
court should have applied the exemption and entered summary judgment in favor
of Petitioners.
In declining to do so, it reached the astonishing conclusion,
contrary to fact and established precedent, that live broadcasts of baseball games
games Americans have watched on television for decadesare a subject that is
not central to the business of baseball. Laumann v. Natl Hockey League, 1 No.
12-cv-1817, 2014 U.S. Dist. LEXIS 109951, at *37 (S.D.N.Y. Aug. 4, 2014)
(Addendum, Exhibit A).
The district court rested its decision upon several clearly erroneous
interpretations of law and resulting abuses of discretion.
First, the district court ignored the holdings in the Supreme Courts opinions
on the exemption and this Courts holding in Salerno that the business of baseball
is exempt from the antitrust laws. The district courts decision instead to restrict
the exemption to only certain very limited aspects of the business of baseball
1
The court below coordinated the challenge against MLB in Garber v. Office of
the Commissioner of Baseball, No. 12-cv-3704 (S.D.N.Y.) with a related (but not
consolidated) lawsuit against the NHL and others entitled Laumann v. National
Hockey League. The district court issued a joint opinion denying summary
judgment in both cases, but captioned the order with Laumann listed first.
2
namely, those that were considered intrastate commerce in the 1950sis flatly at
odds with well-settled law. Neither the Supreme Court nor any Circuit Court of
Appeals has limited the scope of the exemption to any particular facet of the
business of baseball. The district court committed plain error and abused its
discretion in ruling otherwise, because its decision falls outside the range of
permissible decisions on this issue.
Second, the district court disregardedwithout explanationthe consistent
case law from across the country holding that the rules governing MLBs territorial
structure in particular are exempt from antitrust scrutiny. 2 MLBs territorial
structure, which governs where clubs can exhibit baseball gamesin person or by
live telecastis central to the business of baseball and has repeatedly been held to
be exempt from antitrust laws. The rules challenged in this case are part of that
territorial structure, which is designed to promote local fan loyalty for the home
team, connect those fans to the team, and promote in-person game attendance, all
of which are essential to the continuing vitality of MLB and its clubs. The district
courts refusal to so hold here is plain error and an abuse of discretion.
2
Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003); Triple-A
Baseball Club Assocs. v. Ne. Baseball, Inc., 832 F.2d 214 (1st Cir. 1987); Profl
Baseball Schools & Clubs, Inc. v. Kuhn, 693 F.2d 1085 (11th Cir. 1982); Portland
Baseball Club, Inc. v. Kuhn, 491 F.2d 1101 (9th Cir. 1974); City of San Jos v.
Office of the Commr of Baseball, No. 13-cv-02787, 2013 U.S. Dist. LEXIS
147543 (N.D. Cal. Oct. 11, 2013) (appeal pending); New Orleans Pelicans
Baseball, Inc. v. Natl Assn of Profl Baseball Leagues, Inc., No. 93-253, 1994
U.S. Dist. LEXIS 21468 (E.D. La. Feb. 26, 1994).
3
Third, the district court concluded that MLBs broadcasting rules are not
subject to the exemption, despite the Supreme Courts decision in Toolson v. New
York Yankees, Inc., which applied the exemption to shield those very same types of
rules from challenge, and despite this Circuits longtime recognition that live
broadcasting is part of the business of baseball. 346 U.S. 356 (1953); Gardella v.
Chandler, 172 F.2d 402, 40708 (2d Cir. 1949) (Hand, J., concurring). Ignoring
this precedent, the district court reached its decision based on (1) its
misunderstanding that Toolson was a case turning on intrastate commerce, an
interpretation directly at odds with the Supreme Courts later descriptions of
Toolson and with this Courts description of the case in Salerno; (2) a statute (the
Sports Broadcasting Act) that expressly has no impact on the nonapplicability of
the antitrust laws to the challenged baseball rules; and (3) a district court opinion
not from this Circuit that, even while being critical of the exemption, recognized
that the exemption protects league structure. No authority justifies the district
courts failure to apply the binding precedent of Toolson, Gardella, and many
other decisions.
Reinforcing its error on summary judgment, the district court also refused to
consider the overwhelming authority supporting Petitioners dismissal when it
denied their motion for certification of the order for interlocutory appeal. The
district courtwithout any explanation or analysisopined: I do not believe my
ruling is contrary to existing law. Garber v. Office of the Commr of Baseball,

No. 12-cv-3704, 2014 U.S. Dist. LEXIS 133743, *6 (S.D.N.Y. Sept. 22, 2014)
(emphasis in original) (Addendum, Exhibit B).
Moreover, the district court
ignored MLBs argument that it was entitled to an umbrella to protect it from the
irreparable harm it will suffer if this litigation goes forward. Nor did the district
court acknowledge this Courts opinions in Salerno and Gardella, much less
substantively address those issues and whether they warranted certification under
28 U.S.C. 1292. Instead, the district court simply stated that the exemption
issue ha[d] already been decided and decline[d] to reopen it in considering
certification. Id.
The district courts legal error is not a harmless error that can be mended on
appeal.
For the exemption to serve as an umbrella over baseballas the
Supreme Court expressly intendedit must be able to protect the business of

baseball from the harassment that would ensue if antitrust litigation and trials
were permitted. Radovich, 352 U.S. at 45051. If MLB is required to expend vast
amounts of time and resources involved in a trial of this case, it will have been
deprived of the benefit of this umbrella protection, which no post-judgment
appeal can correct. Further, MLB may be subjected to the burdens and costs of
litigating other cases that may be filed based on the district courts order. 3 For
these reasons, the Supreme Court has repeatedly held that only Congress may
constrict the scope of the exemption and this issue is settled as far as the Supreme
Court is concerned. 4
Furthermore, the district courts order amounts to a
usurpation of Congressional power. Only a writ of mandamus will provide MLB

with the protection from the burdens of this and other litigation that the district
courts order may encourageburdens from which the Supreme Court has held it
must be protected.
RELIEF SOUGHT
Petitioners respectfully request this Court immediately issue a writ of
mandamus directing the United States District Court for the Southern District of
New York to grant summary judgment in Petitioners favor and dismiss them
entirely from the underlying action, based on the exemption from the antitrust laws
that exists for the business of professional baseball as raised in this case.
For example, only a week after the district court issued its Order, the Order had
already been cited by an appellant in another case challenging internal league rules
and structure. Req. for Consideration of Suppl Authority, City of San Jos v.
Office of the Commr of Baseball, No. 14-15139 (9th Cir. Aug. 11, 2014), ECF No.
40 (arguing that Judge Scheindlins opinion in this action supported the reversal of
the Northern District of Californias dismissal of claims challenging territorial
rules on the grounds that they were barred by the baseball exemption).
4
See Flood, 407 U.S. at 283, 285; Radovich, 352 U.S. at 451; United States v. Intl
Boxing Club of N.Y., Inc., 348 U.S. 236, 244 (1955); United States v. Shubert, 348
U.S. 222, 22930 (1955); Toolson, 346 U.S. at 357.
6
ISSUES PRESENTED
Did the district court commit legal error when it ruled that the professional
baseball exemption from the antitrust laws did not bar Plaintiffs antitrust
challenge to MLBs territorial broadcast rules and structure and allowed the action
to continue?
BACKGROUND
I.
THE PROFESSIONAL BASEBALL ANTITRUST EXEMPTION

In 1922, the Supreme Court held that the Clayton and Sherman Acts do not
apply to the business of baseball. Fed. Baseball Club of Balt., Inc. v. Natl League
of Profl Baseball Clubs, 259 U.S. 200 (1922). Justice Oliver Wendell Holmes,
writing for a unanimous Court, concluded baseball was not interstate commerce
and therefore was not regulated by the Sherman Act. Id. at 20809. While the
Supreme Courts Commerce Clause analysis has changed over the last 92 years,
the scope of the antitrust exemption has not. The Supreme Court has consistently
reaffirmed that the business of baseball, including as raised in this case, is
beyond the scope of antitrust regulation. As the Seventh Circuit correctly noted,
the Supreme Court has held three times that the business of baseball is exempt
from the federal antitrust laws. 5 Charles O. Finley & Co. v. Kuhn, 569 F.2d 527,
Moreover, in three additional decisions the Supreme Court has reaffirmed the
vitality and benefits of the baseball exemption while declining to extend it to other
7
541 (7th Cir. 1978). And each time, it is clear, the Supreme Court intended to
exempt the business of baseball, not any particular facet of that business, from the
federal antitrust laws. Id. The increasing importance of live game broadcasts to
the business of baseball over the decades has not affected the Supreme Courts
view of the exemption. See Flood v. Kuhn, 407 U.S. 258, 283 (1972) (The advent
of radio and television, with their consequent increased coverage and additional
revenues, has not occasioned an overruling of Federal Baseball and Toolson.).
The current basis for the exemption is equally clear. The Supreme Court has
repeatedly reaffirmed baseballs antitrust exemption based on stare decisis,
baseballs reliance interests, and the Courts express direction to Congress on this
subject. See Flood, 407 U.S. at 285; Toolson, 346 U.S. at 357; see also supra note
5. It has not rested on the distinction between interstate and intrastate commerce
since the Supreme Courts 1953 Toolson decision, in which the High Court held
Congress had no intention to bring baseball within the anti-trust laws. Salerno,
429 F.2d at 1005 (citing Toolson, 346 U.S. 356).
During this time, the Supreme Court also has consistently held that the
matter is resolved as far as the courts are concerned, and concluded that, if the
exemption is to be altered or curtailed, it must be addressed by Congress and not
the courts.
See supra note 4.
In 1972, the Supreme Court recognized that
industries. See Radovich, 352 U.S. at 45152; Intl Boxing, 348 U.S. at 24142;
Shubert, 348 U.S. at 230.
8
Congresss deliberate decision not to repeal the exemption amounted to

something other than mere congressional silence and passivity, and instead
constituted positive inaction, reflecting that Congress had no intention of
including the business of baseball within the scope of the federal antitrust laws.
Flood, 407 U.S. at 283 (quoting Toolson, 346 U.S. at 357). Congresss only action
on the exemption since receiving this charge from the Supreme Court was to enact
the Curt Flood Act in 1998 (the Flood Act).
The Flood Act repealed the
exemption only for disputes relating to employment of Major League Baseball

players, while making clear that the statute does not apply the antitrust laws to
any other aspect of the business of baseball, including most notably for present
purposes, the marketing or sales of the entertainment product of organized
professional baseball and the licensing of intellectual property rights. 15 U.S.C.
26b(b)(3). Thus, Congress intended to leave the exemption intact for the precise
conduct challenged in this litigation.
II.
NATURE OF THE ACTION AND PROCEEDINGS BELOW

The core business of professional baseball is exhibiting baseball games to
fans across the country. The most common way baseball fans see games is through
live video distribution. Pursuant to its longstanding territorial broadcast rules,
MLB collectively makes games available in the national market, while its clubs
can license games locally in their respective home television territories. MLB
distributes games nationally through multiple over-the-air and cable networks and
its own recently-created national network (MLB Network). In addition, MLB has
created two national out-of-market pay packages for avid fans and those who
reside outside of the home television territories of their chosen clubthe Extra
Innings package (which is available through cable, satellite, and telco distributors)
and the MLB.TV package (which is available via the Internet), through which fans
can purchase a package of all games outside of their market. As a result, today
virtually every one of the nearly 2,500 MLB games played each year is made
available live to virtually every consumer across America.
In this case, putative consumer classes consisting of certain present or past
purchasers of the out-of-market packages have brought an antitrust action against
MLB and certain affiliated entities and baseball clubs, as well as certain of the
regional networks that telecast MLB games and certain cable and satellite services
that distribute those networks and the Extra Innings package.6 Plaintiffs challenge
MLBs territorial broadcast rules and seek to eliminate its home television
territories. In their place, Plaintiffs wish to impose a dramatically new league
structure on MLB in which each club competes with the joint venture that is Major
6
Petitioners are the Office of the Commissioner of Baseball (doing business as

Major League Baseball), Major League Baseball Enterprises, Inc., MLB Advanced
Media, L.P., MLB Advanced Media, Inc. and the nine MLB clubs sued in this
case. MLB is an unincorporated association of 30 clubs, which collectively enact
certain rules governing baseball at the Major League level.
10
League Baseball and with each of its fellow member clubs throughout the country
in the sale of live game telecast rights.
On May 19, 2014, the MLB Defendants moved for summary judgment on
multiple grounds, including that Plaintiffs claims were barred as a matter of law
by the professional baseball exemption. After declining to grant the defendants
request for oral argument, the district court denied the MLB Defendants motion
for summary judgment on August 4, 2014 (the Order) and subsequently declined
to certify its ruling with respect to the exemption for interlocutory appeal.
Laumann, 2014 U.S. Dist. LEXIS 109951 (denying summary judgment); Garber,
2014 U.S. Dist. LEXIS 133743 (denying certification). This Petition followed.
STANDARD FOR ISSUING THE WRIT
Under the All Writs Act, Circuit Courts may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law. 28 U.S.C. 1651(a). The Supreme Court has set forth three
requirements for the issuance of a writ of mandamus: (1) the petitioner must have
no other adequate means to attain the relief sought; (2) the petitioner must have a
clear and indisputable right to issuance of the writ; and (3) the Circuit Court
must be satisfied that the writ is appropriate under the circumstances. Cheney v.
United States, 542 U.S. 367, 38081 (2004).
satisfied here.
11
Each of these requirements is
REASONS FOR GRANTING THE PETITION

I.
NO MEANS OTHER THAN A WRIT IS ADEQUATE TO ENSURE

THE MLB DEFENDANTS ARE SPARED THE BURDENS OF
LITIGATION AND TRIAL, AS THE SUPREME COURT INTENDED
A writ of mandamus is appropriate in this instance because no other
mechanism is available to protect the MLB Defendants from the burdens of

litigation and trial that would result from the district courts refusal to apply the
well-settled baseball antitrust exemption. The business of baseball has evolved
based on the rule exempting it from such litigation, and undercutting the exemption
now would undermine years of business decisions central to the sport. While the
Courts power under the All Writs Act is to be used sparingly, this matter involves
an extraordinary situation, in which the district court misinterpreted binding
precedent in a manner that is patently at odds with both Supreme Court and Circuit
precedent, subjecting the MLB Defendants here to the burdens of complex class
litigation, trial, and possible adverse outcome, which the Supreme Court has held
baseball should not bear.
Appeal of an adverse final judgment would be
insufficient to prevent the MLB Defendants from bearing those burdens, including
a trial at which they would be required to justify their conduct and possible posttrial remedies issued by the trial court.
The MLB Defendants moved for
certification of the issue pursuant to 28 U.S.C. 1292(b), but the district court
refused to certify the issue. Thus, only mandamus will suffice to protect the MLB
12
Defendants here. See Balintulo v. Daimler AG, 727 F.3d 174, 186 (2d Cir. 2013)
(If a district court refuses certification, or certification is not otherwise available,
however, then a party may petition for a writ of mandamus . . . .).
As noted above, the Supreme Court has held that the baseball exemption is
designed not only to shield the industry from antitrust liability, but also to protect
the industry from the harassment of litigation attacking the business of baseball.
Radovich, 352 U.S. at 45051. Indeed, the Supreme Court expressly referenced
the flood of litigation that would follow its repudiation as a basis to sustain the
unequivocal line of authority applying the antitrust exemption to baseball. Id. In
analogous situations where state officials have sought to investigate MLB or its
clubs, courts have pointedly recognized that a right to be free from antitrust
investigation is inherent in professional baseballs right to be free from antitrust
liability. 7 Where a party has a right not to have to engage in further proceedings,
mandamus may be the only way to protect that right. In re Armsted Indus., No.
369, 1993 U.S. App. LEXIS 13784, *4 (Fed. Cir. May 14, 1993) (quoting Miss.
Chem. Corp. v. Swift Agric. Chems. Corp., 717 F.2d 1374, 1380 (Fed. Cir. 1983)).
In Mississippi Chemical, the district court refused to apply binding Supreme Court
precedent that prohibited lawsuits from going forward against alleged patent
7
See Crist, 331 F.3d at 1189 (holding state Attorney General could not conduct
antitrust investigation into baseball because exemption precluded antitrust
liability); Minn. Twins Pship. v. Minnesota, 592 N.W.2d 847, 856 (Minn. 1999)
(same).
13
infringers when the patent at issue had been found invalid in another proceeding.
Miss. Chem., 717 F.2d at 137677.
The Federal Circuit granted mandamus,
ordering the district judge to grant the alleged infringers motion for summary
judgment. 8 Id. at 1380. In doing so, the Circuit Court recognized that the Supreme
Court had granted alleged infringers the right . . . not to relitigate the validity of a
patent. Id. Such a right, the Federal Circuit held, is entitled to extraordinary
protection. Id. (quoting Lummus Co. v. Commonwealth Oil Ref. Co., 297 F.2d 80
(2d Cir. 1961). Mandamus was appropriate because it was the only way to
protect that right. Miss. Chem., 717 F.2d at 1380.
Here too, the district court refused to recognize the MLB Defendants right
to be free from the burdens of litigation. As in Mississippi Chemical, [i]f this case
went to trial before the district court . . . there is no adequate means by which
[Petitioners] could correct the district judges error of failing to apply [the
applicable Supreme Court precedent].
Id.
The MLB Defendants will have
already incurred the burdens of trial. Therefore, mandamus is the only available
8
Although mandamus is disfavored as a mechanism to challenge summary

judgment orders that find that a triable question of fact exists, Mississippi
Chemicallike this caseinvolved a pure question of law. Mandamus was
therefore appropriate to reverse the district judges legal error in that case and is
likewise appropriate here. See 16 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure, 3935.7 (3d ed. 2014) (Summary-judgment orders . . .
may turn on issues of law that warrant review by mandamus.). Here, the decision
on the MLB Defendants summary judgment motion makes plain that the district
court has decided the exemption issue as a matter of law.
14
means to protect the MLB Defendants rightrecognized by the Supreme Court

to be free from those burdens.
II.
THE DISTRICT COURTS ABUSE OF DISCRETION AND

USURPATION OF POWER EACH INDEPENDENTLY PROVIDE
THE MLB DEFENDANTS WITH A RIGHT TO MANDAMUS
The MLB Defendants have a clear and indisputable right to a writ of
mandamus both because the district court plainly abused its discretion in holding
as a matter of law that MLBs rules governing live televised broadcasts of baseball
games are not exempt from the antitrust laws, and because it transferred to the
courts a decision that the Supreme Court held rests with Congress. See In re City
of New York, 607 F.3d 923, 929 (2d Cir. 2010) (right to mandamus is clear and
indisputable when there is a judicial usurpation of power or a clear abuse of
discretion).
For purposes of mandamus, a district court abuses its discretion if it (1)
bases its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence or (2) renders a decision that cannot be located within
the range of permissible decisions. In re Roman Catholic Diocese of Albany,
N.Y., 745 F.3d 30, 37 (2d Cir. 2014). In this case, the district court based its Order
on an erroneous view of the legal basis of the exemption and rendered a decision
that is contrary to the established body of law on the exemption.
The district court improperly failed to apply the exemption to the business of
15
baseball at issue here. Here, its error is magnified because this case involves an
aspect of the business of baseball that repeatedly has been found to fall within the
exemptionnamely, MLBs internal rules governing territory and its structure. As
shown below, the Supreme Court itselfat least implicitlyheld the exemption
covered the very type of rules challenged here in dismissing the complaint in
Toolson.
Additionally, the Supreme Court has made it abundantly clear its decisions
are settled and only Congress may narrow the exemption, if it is to be narrowed at
all. See, e.g., Shubert, 348 U.S. at 230. The district courts attempt to limit the
exemption here amounts to a judicial usurpation of power, further evidencing the
MLB Defendants clear and indisputable right to mandamus.
A.
The District Court Erred in Refusing to Apply the Exemption to

the Business of Baseball
The Supreme Court and all Circuit Court cases have consistently held that
the exemption covers the business of baseball. 9 This Court has followed suit,
succinctly stating in Salerno that professional baseball is not subject to the
antitrust laws. 429 F.2d at 1005. The Seventh Circuit has stated broadly, the
Supreme Court intended to exempt the business of baseball, not any particular
9
See, e.g., Flood, 407 U.S. at 28485; Radovich, 352 U.S. at 452; Toolson, 346
U.S. at 357; Crist, 331 F.3d at 1181 n.10; Triple-A Baseball, 832 F.2d at 216 n.1;
Charles O. Finley & Co., 569 F.2d at 541; Portland Baseball Club, 491 F.2d at
1103; Salerno, 429 F.2d at 1005; Portland Baseball Club, Inc. v. Baltimore
Baseball Club, Inc., 282 F.2d 680, 680 (9th Cir. 1960).
16
facet of that business, from the federal antitrust laws. Charles O. Finley & Co.,
569 F.2d at 541. To grant this Petition, this Court need not explore or determine
the outer limits of the exemption; it need only recognize the continued viability of
existing precedent holding that the specific claims at issue in this case indisputably
are limited to mattersterritories and live game telecaststhat are squarely part of
the business of baseball and covered by the baseball exemption to the antitrust
laws.
The district court erroneously held that MLBs territorial broadcast rules
that is, the rules that govern where and how live baseball games are provided to the
viewing publicwere not central enough to baseballs business to fall within the
exemption. Laumann, 2014 U.S. Dist. LEXIS 109951 at *37. And it did so
without even referencinglet alone distinguishingJudge Learned Hands
recognition, even as early as 1949, that the broadcasting of games of MLB clubs
was part of the business [of baseball] itself. 10 Gardella, 172 F.2d at 40708
(Hand, J., concurring). Because the live broadcasts of baseball games at issue here
10
In Gardella, this Court considered whether the increasingly central role interstate
broadcasting of games played in the business of baseball undermined the
exemption, becauseat that time, pre-Toolsonthe exemption was premised on
an understanding that baseball was not interstate commerce. 172 F.2d at 40708
(Hand, J., concurring). The key observation in Gardella that remains true after
Toolson reaffirmed the exemption on grounds other than baseballs intrastate
natureand, indeed, has only become more valid in the 65 years since Judge Hand
recognized itis that the broadcasting of MLB games is not merely incident[al]
to the business of baseball, but is a part of the business itself. Id.
17
are clearly a part of the business of baseballas they have been for decadesthe
district courts refusal to apply the exemption to the rules governing game
broadcasts was clearly in error, warranting mandamus.
B.
Even if the Exemption Applied Only to Certain Aspects of the

Business of Baseball, MLBs Territorial Broadcast Structure Is
Included
Whatever analytical construct a court may apply to the issue of the

exemption, it is beyond dispute that MLBs territorial broadcast structure and rules
are part of the core business of baseball and thus are exempt from the antitrust
laws.
1.
League Territorial Rules and Structure Are Exempt
The Supreme Court and lower federal courts have already spoken to the
precise issue presented by this case. League territorial rules adopted by MLB and
the clubsand specifically league broadcast territoriesare exempt. 11 MLBs
territorial structurewhich, among other things, fosters fan loyalty for the home
team by governing where games are played and broadcastis central to the
business of baseball. See Profl Baseball Schools & Clubs, Inc. v. Kuhn, 693 F.2d
1085, 108586 (11th Cir. 1982) (rules governing club location are an integral part
of the business of baseball and exempt from antitrust laws). Almost every court
to review whether the exemption applies to league rules governing league
11
See supra note 2.

18
territorial structure has recognized that those rules are exempt. As one district
court observed:
The defendants are in the business of baseball. Their business
is a legally sanctioned monopoly. One of the central features of
that monopoly is the power to decide who can play where.
New Orleans Pelicans, 1994 U.S. Dist. LEXIS 21468 at *27. The district courts
decision is one of only two post-Toolson federal decisions to decline to apply the
exemption to MLB rules, territory, or structure. 12 It is simply bad law and must be
reversed.
2.
The Supreme Court Exempted Territorial Broadcast Rules

in Toolson and the District Court Erred in Holding
Otherwise
The district courts refusal to apply the exemption to MLBs broadcasting

territories is clear error because the territorial rules challenged here are the
equivalent of the rules challenged by the plaintiffand ultimately exempted by the
Supreme Courtin Toolson.
George Toolson framed his appeal with one
comprehensive question to the Supreme Court:

12
Are the activities and
The only other such case is the Eastern District of Pennsylvanias decision in
Piazza v. Major League Baseball, 831 F. Supp. 420 (E.D. Pa. 1993). That decision
predated the Flood Act, and indeed it (and a few Florida state court cases relying
on it) have been widely criticized by every other federal court to address it. See,
e.g., Crist, 331 F.3d at 1181 n.10; San Jos, 2013 U.S. Dist. LEXIS 147543 at
*3334 (appeal pending); Major League Baseball v. Butterworth, 181 F. Supp. 2d
1316, 132331 (N.D. Fla. 2002); Morsani v. Major League Baseball, 79 F. Supp.
2d 1331, 1335 n.12 (M.D. Fla. 1999); McCoy v. Major League Baseball, 911 F.
Supp. 454, 457 (W.D. Wash. 1995); New Orleans Pelicans, 1994 U.S. Dist. LEXIS
21468 at *25.
19
organization of professional baseball, as set forth in petitioner[]s complaint,

subject to the Federal Anti-Trust Laws? Pet. Reply Br., Toolson v. New York
Yankees, Inc., 346 U.S. 356, 1953 WL 78319, *1 (Oct. 13, 1953). Chief among the
challenged activities and organization were the league territorial broadcast rules,
which Mr. Toolson described as integral to his antitrust challenge. Id. at *23.
Mr. Toolson complained to the Supreme Court:
Defendants have further agreed that each Major League Club
may broadcast or telecast its games from a station in its home
territory; that no Major League club shall authorize a broadcast
or telecast of any of its games from a station outside its home
territory and within the home territory of any other baseball
club, without the consent of such other clubs
Pet. Br., Toolson v. New York Yankees, Inc., 346 U.S. 356, 1953 WL 78316, *6, 8
9 (Sept. 16, 1953); see also Resp. Br., Toolson v. New York Yankees, Inc., 346 U.S.
356, 1953 WL 78318, *45 (Oct. 2, 1953).
Although the Supreme Courts opinion in Toolson is short, it necessarily
concluded that all of the alleged antitrust violations in that caseincluding those
relating to television broadcasting and exclusive broadcast territorieswere
subject to the exemption. 346 U.S. at 357. In affirming the dismissal of the entire
case, the Supreme Court stated that Congress had no intention of including the
business of baseball within the scope of the federal antitrust laws. Although the
Supreme Court did not mention any particular aspect of the business of baseball in
affirming the exemption, the context above makes clear it necessarily dismissed
20
Toolsons challenge to all of the specific activities of the business of baseball

alleged in his complaint and set forth in his petition to the Supreme Court, which
expressly attacked baseballs exclusive broadcast territories. Cf. City of San Jos
v. Office of the Commr of Baseball, 2013 U.S. Dist. LEXIS 147543, *19 n.10, *24
n.12, *33 (N.D. Cal. Oct. 11, 2013) (applying exemption to the rules governing
club relocation in part because of the Supreme Courts application of the
exemption to territorial broadcasting rules in Toolson) (appeal pending). There is
no dispute that, after the Supreme Court ruled in Toolson, nothing remained for
trialnot even the allegations of anticompetitive broadcast territories.
Nonetheless, the district court improperly refused to apply Toolson here
because it read that case as turning on whether baseball was intrastate in nature and
simply disregarded the specific activities challenged by Toolson that were held by
the Supreme Court to be covered by the exemption. 13 Laumann, 2014 U.S. Dist.
13
The district court also discounted Toolsons holding because none of the
published opinions in the Toolson casesat the district, circuit, or Supreme Court
levelseven mentioned the territorial broadcasting allegations. Laumann, 2014
U.S. Dist. LEXIS 109951 at *31. Although the district court in Toolson clearly
recognized that the complaint challenged the structure of Organized Baseball,
the regulations which govern that structure, and the central role that baseball
broadcasting plays in the business of baseball, it is true that it did not recite all of
the complaints allegations in the opinions brief recitation of the facts. Toolson v.
New York Yankees, Inc., 101 F. Supp. 93, 9394 (S.D. Cal. 1951). Of course, the
district courts brevity in describing the allegations has no impact on the result of
that casedismissal of the entire action for lack of subject matter jurisdiction. Id.
at 95. Nor does the fact that neither the Supreme Court nor the Ninth Circuit
mentioned in its brief one-paragraph opinion any of the allegations in the
21
LEXIS 109951 at *31. Because television broadcasting is an interstate industry

by nature, the district court reasoned, it could not fall within the holding of
Toolson. Id. This reading of Toolson is not only wrong from the face of the
Supreme Courts opinion and the facts of that case, it also contradicts this Courts
and the Supreme Courts subsequent interpretations of Toolson.
In reaffirming Federal Baseball, the Supreme Court in Toolson did not
double down on the intrastate commerce rationale for the exemption, but rather
held that Congress had no intention of including the business of baseball within
the scope of the federal antitrust laws. Toolson, 346 U.S. at 357. In following
years, the Supreme Court reiterated this shift in basis for the exemption, observing
that Toolson was premised on Congressional intent, stare decisis, the burdens of
litigation, and reliancenot on the intrastate nature of baseball. Radovich, 522
U.S. at 45052.14 Circuit Courts of Appeals, including this Court, have explicitly
rejected the intrastate reading of Toolson adopted by the district court here,
observing that the ground upon which Toolson rested was that Congress had no
intention to bring baseball within the anti-trust laws, not that baseballs activities
complaint undermine the ultimate result in Toolsonaffirmance of the cases

dismissal because the business of baseball is exempt. Toolson, 346 U.S. at 356
57; Toolson v. New York Yankees, Inc., 200 F.2d 198, 199 (9th Cir. 1952).
14
See also Shubert, 348 U.S. at 230 (observing that Supreme Court in Toolson did
not reaffirm exemption on basis of all that was said in Federal Baseball, but
rather on bases of Congressional intent and stare decisis).
22
did not sufficiently affect interstate commerce. Salerno, 429 F.2d at 1005; see
also Crist, 331 F.3d at 1188 n.25 (In [Toolson], the Court retreated from its
cramped view of interstate commerce and instead rested its decision on what it
perceived as congressional intent.). The district court plainly erred in relying on
its interstate commerce interpretation of Toolson as a basis for rejecting both the
actual holding of that case (the business of baseball is exempt) and the effect of
that case (dismissal of allegations challenging MLBs territorial broadcast rules).
3.
The District Court Erred in Relying on the Sports

Broadcasting Act and Henderson
Rejecting Toolson and this Circuits interpretation of Toolson, as well as the

body of cases applying the exemption to league territory and structure, the district
court based its conclusion on a 1961 statute and a 1982 opinion by a Texas district
judge. Neither of these authorities justifies ignoring binding Supreme Court and
Circuit Court precedent. And both are also completely inapplicable.
a.
The Sports Broadcasting Act of 1961 Provides No

Basis for Limiting the Exemption
The district court abused its discretion when it held that Congress intended
the Sports Broadcasting Act of 1961 (the SBA) to limit the baseball exemption.
Misconstruing the relevance of Congressional intent as a basis for the exemption,
the district court turned to a narrow statutory antitrust exemption for several sports
industriesthe SBAto construe the scope of the judicially created baseball
23
exemption. Because it believed the statutory exemption does not exempt the
broadcast rules at issue in this case, the district court concluded Congress intended
those rules to be subject to the antitrust laws. Laumann, 2014 U.S. Dist. LEXIS
109951 at *32.
The Supreme Court has repeatedly asked only one question in evaluating
Congresss intent vis--vis the exemption: Has Congress repealed the exemption?
In Toolson, the Supreme Court recognized that Congress has had the [Federal
Baseball] ruling under consideration but has not seen fit to bring such business
under [the antitrust] laws. Toolson, 346 U.S. at 357. It therefore concluded that
Congress did not intend baseball to be subject to antitrust laws.
Id.
In
subsequently reaffirming the exemption in Radovich and Flood, the Supreme Court
made the same observationbecause Congress had not repealed the exemption,
the exemption remained in full force. 15 Floods statement that Congress, by its
positive inaction, has allowed [Federal Baseball and Toolson] to stand for so long
and, far beyond mere inference and implication, has clearly evinced a desire not to
disapprove them legislatively, is particularly instructive because Flood was
decided over a decade after enactment of the SBA. 407 U.S. at 28384. This
Supreme Court precedent conclusively demonstrates that the district court was
15
See Radovich, 352 U.S. at 451 (affirming the Supreme Courts intent to adhere
to Federal Baseball and Toolson, so long as the Congress continues to
acquiesce).
24
wrong to conclude that the SBA narrowed the exemption.

Moreover, the SBA would be relevant only if it somehow repealed the
baseball exemption. The statute did nothing of the sort. To the contrary, the SBA
expressly took a hands-off approach to the baseball exemption by stating that the
statute did not affect the applicability or nonapplicability of the antitrust laws in
any way other than to provide a narrow statutory exemption. 16 15 U.S.C. 1291,
1294 (emphasis added).
The SBA merely codified a portion of baseballs
exemption while simultaneously providing that narrow exemption to other sports.

As the Supreme Court observed in Flood, the SBA was expansive rather than
restrictive as to antitrust exemption. 407 U.S. at 28182. Because the SBA did
not repeal or otherwise limit the exemption, it has no bearing on the exemptions
application. 17
16
It appears the Supreme Court in Flood recognized this implicit approval of the
exemption by the legislators who drafted the SBA. In quoting the SBA and
describing its expansive effect, the Court emphasized its deference to the
nonapplicability of antitrust laws by italicizing that word when it quoted the
statute. Flood, 407 U.S. at 282 n.18.
17
The district court also gave undue emphasis to the SBA because it believed the
SBA represented Congresss sports antitrust policy at the time that Flood replaced
Federal Baseballs and Toolsons holdings based on interstate commerce with a
limited holding based only on stare decisis and inferred congressional intent.
Laumann, 2014 U.S. Dist. LEXIS 109951 at *32. However, as discussed above, it
was in Toolsonnot in Floodthat the Supreme Court first premised the
exemption on Congressional intent. Thus, when Congress enacted the SBA, the
scope of the exemption had already been established and Congress left that scope
intact in the statute. See 15 U.S.C. 1294.
25
b.
Henderson Actually Supports Application of the

Exemption in this Case
The district courts only other basis for refusing to apply the exemption to
MLBs territorial broadcast rules is a 1982 opinion in which the Southern District
of Texas declined to apply the exemption to an antitrust challenge arising out of
the Houston Astros decision to broadcast on one Houston radio station instead of
another. Henderson Broad. Corp. v. Houston Sports Assn, 541 F. Supp. 263, 264,
265 (S.D. Tex. 1982). Regardless of whether Henderson was wrongly decided, the
opinion is inapposite, because it did not involve any challenge to league rules or
structure regarding territorial restrictions on telecasts. Id. at 264, 270. Indeed, the
decision not to apply the exemption underscored its understanding that league
structure [was] obviously not implicated in [that] case. Id. at 270. Although the
Southern District of Texas did not hide its disapproval of the exemption, it
recognized that rules governing league structure are exempt. Id. at 269.
Unlike in Henderson, league structure is clearly at the core of Plaintiffs
lawsuit. Plaintiffs challenge longstanding league-wide rules governing broadcast
territories. As Henderson itself observed, without league broadcast rules, weaker
teams may be denied television income and game coverage, putting the league in
danger that the structure of the league would become impaired and its continued
26
operations imperiled. Id. at 26970 (quoting S. Rep. No. 87-1087 (1961)). 18 The
district courts reliance on Henderson to allow an antitrust challenge to league
structure of broadcast territories is clearly unwarranted. 19
The district court refused to apply the binding precedent of this Court and
the Supreme Courtas well as the extremely persuasive opinions of every other
Circuit Court to opine on the exemptionin refusing to apply the exemption to the
business of baseball, generally, or the territorial broadcast structure of baseball,
specifically. It did so based on a misreading of an inapplicable statute and an outof-Circuit district court opinion that actually supports the use of the exemption
18
To be sure, the Senate Report quoted in Henderson refers to the statutory

exemption created by the SBA, not the broader judicially created baseball
exemption. See 15 U.S.C. 1291 et seq. However, the court in Henderson applied
the logic behind these remarks equally to the baseball exemption, as both it and the
SBA protect the league structure from the harm that would result from unfettered
broadcasting of baseball games. Henderson, 541 F. Supp. at 26970.
19
Moreover, the district court ignored the only case to explicitly discuss in detail
and apply the exemption to MLBs broadcasting rules on the basis that the opinion
was unpublished and pre-dated the SBA. See Hale v. Brooklyn Baseball Club, Tr.
of Mtn. to Dismiss Hrg, No. 1294 (N.D. Tex. 1958) (Addendum, Exhibit C).
Given the utter irrelevance of the SBA, the district court erred in ignoring the case
on this basis. In Hale, a minor league baseball club challenged the allegedly
monopolistic restraint of radio broadcasting and telecasting of baseball games.
Id. at *23. In language fully applicable here, the court in Hale held that baseballs
broadcasting rules were exempt both because the broadcasting of baseball games is
integral to the business of baseball, as much a part of the game-day experience as
in-person fan attendance, and because the sale of radio and television
broadcasting rights of baseball games was certainly within the mind and thinking
of every member of the [Supreme] Court when Toolson affirmed the exemption.
Id.
27
here. Mandamus is appropriate to reverse that error.

C.
The District Courts Opinion Amounted to a Judicial Usurpation

of Power
The MLB Defendants also have a clear and indisputable right to a writ of
mandamus because the district court usurped Congresss exclusive power to limit
the scope of the exemption. As detailed above, pages 8 to 9, the Supreme Court
has clearly indicated that if the exemption is to be narrowed in any way, only
Congress may do so. The district court nonetheless took upon itself authority that
even the Supreme Court has eschewed. Mandamus is appropriate to curb this
usurpation of Congressional prerogative. See City of New York, 607 F.3d at 929.
III.
A WRIT IS APPROPRIATE TO RELIEVE THE MLB DEFENDANTS

FROM THE DISTRICT COURTS REFUSAL TO APPLY WELLSETTLED LAW
Where a district court flagrantly misapplies a well-settled principle of law,
mandamus is appropriate under the circumstances. See City of New York, 607 F.3d
at 940 n.17. There are few principles of law as long settled as the exemption of the
business of baseball from the antitrust laws. The Supreme Court has observed that
the exemption may be an aberration from traditional antitrust law, but:
the aberration is an established one, and one that has been recognized
not only in Federal Baseball and Toolson, but in Shubert,
International Boxing, and Radovich, as well, a total of five
consecutive cases in this Court. It is an aberration that has been with
us now for half a century, one heretofore deemed fully entitled to the
benefit of stare decisis, and one that has survived the Court's
expanding concept of interstate commerce.
28
Flood, 407 U.S. at 282. Nevertheless, as detailed above, the district court entirely
missed the mark by ignoring binding Supreme Court and Circuit precedent and
relying on irrelevant authority. Mandamus is appropriate to remedy the district
courts misapplication of the now nearly century-old principle that the business of
baseball is exempt from the antitrust laws.
Moreover, mandamus is particularly appropriate here, where the exemption
not only serves as a defense to liability, but also may deprive the courts of subject
matter jurisdiction to try antitrust challenges to the business of baseball. Several
courts, including this one, have either dismissed antitrust challenges to the business
of baseball or affirmed dismissal of such challenges because the antitrust
exemption of the business of baseball [is] so well established that the complaint
was insufficient even to sustain federal jurisdiction. Major League Baseball v.
Butterworth, 181 F. Supp. 2d 1316, 133132 (N.D. Fla. 2002), affd sub nom.
Crist, 331 F.3d 1177; see, e.g., Salerno v. Am. League of Profl Baseball Clubs,
310 F. Supp. 729, 731 (S.D.N.Y. 1969) ([H]aving found that organized baseball
does not fall within the scope of the federal anti-trust laws, this Court lacks
jurisdiction of the subject matter . . . .), affd 429 F.2d 1003 (2d Cir. 1970). 20
20
See also Profl Baseball Schools & Clubs, 693 F.2d at 1086 (holding district
court properly dismissed the antitrust claims for want of subject matter
jurisdiction); Toolson, 101 F. Supp. 93, 95 (S.D. Cal. 1951) (dismissing action
for want of jurisdiction of the subject matter), affd 200 F.2d 198 (9th Cir. 1952)
and 346 U.S. 356 (1953).
29
Courts have given the word jurisdiction in the All Writs Act a generous reading,
and this Court need not conclude that the Order raises a jurisdictional issue in the
traditional sense to find mandamus appropriate. See Cheney, 542 U.S. at 380
(courts have not confined themselves to an arbitrary and technical definition of
jurisdiction in applying the All Writs Act).
Nevertheless, mandamus is
particularly appropriate here because [i]ssuance of a writ in this case does what
the writ was intended to doconfine the district court to a lawful exercise of its
prescribed jurisdiction. Abelesz v. OTP Bank, 692 F.3d 638, 653 (7th Cir. 2012).
CONCLUSION
Mandamus serve[s] as a useful safety valve for promptly correcting serious
errors . . . . City of New York, 607 F.3d at 939. For the foregoing reasons,
Petitioners respectfully request the Court issue a writ of mandamus, directing the
district court to grant summary judgment in Petitioners favor and to dismiss them
entirely from the underlying action.
Dated: November 12, 2014
PROSKAUER ROSE LLP

By:
s/ Bradley I. Ruskin
Bradley I. Ruskin
Jennifer R. Scullion
Jordan B. Leader
Shawn S. Ledingham, Jr.

30
Athletics Investment Group, LLC, The

Baseball Club of Seattle, LLLP, Chicago Cubs
Baseball Club, LLC, Chicago White Sox, Ltd.,
Colorado Rockies Baseball Club, Ltd., The
Phillies, Pittsburgh Baseball Holdings, Inc.,
and San Francisco Baseball Associates LLC
By:
s/ Jonathan D. Schiller
Jonathan D. Schiller
Alan B. Vickery
Christopher E. Duffy
Attorneys for Petitioner New York Yankees

Partnership
31
ADDENDUM
INDEX
Exhibit A. Order Denying Motion for Summary Judgment,
Laumann v. Natl Hockey League, No. 12-cv-1817, 2014
U.S. Dist. LEXIS 109951 (S.D.N.Y. Aug. 4, 2014)
Exhibit B. Order Denying Motion to Certify Order for Immediate
Appeal Pursuant to 28 U.S.C. 1292(b),
Garber v. Office of the Commissioner of Baseball, No.
12-cv-3704, 2014 U.S. Dist. LEXIS 133743 (S.D.N.Y.
Sept. 22, 2014)
Exhibit C. Excerpt from Addendum to Memorandum of Law in
Support of Motion for Summary Judgment,
Garber v. Office of the Commissioner of Baseball, No.
12-cv-3704, (S.D.N.Y. May 27, 2014) (copy of
Transcript of Motion to Dismiss Hearing, Hale v.
Brooklyn Baseball Club, No. 1294 (N.D. Tex. Sept. 19,
1958))
EXHIBIT A
Page 1
THOMAS LAUMANN, ROBERT SILVER, GARRETT TRAUB, and

DAVID DILLON, representing themselves and all other similarly situated, Plaintiffs, - against - NATIONAL HOCKEY LEAGUE, et al.,
Defendants. MARC LERNER, DEREK RASMUSSEN, and GARRETT TRAUB, representing themselves and all other similarly situated, Plaintiffs, - against - OFFICE OF THE COMMISSIONER OF
BASEBALL, et al., Defendants.
12-cv-1817 (SAS),12-cv-3704 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK
2014 U.S. Dist. LEXIS 109951; 2014-2 Trade Cas. (CCH) P78,868
August 4, 2014, Decided

August 8, 2014, Filed
PRIOR HISTORY: Laumann v. NHL, 989 F.
Supp. 2d 329, 2013 U.S. Dist. LEXIS 167420
(S.D.N.Y., 2013)
COUNSEL: [*1] For Plaintiffs: Edward A.
Diver, Esq., Howard I. Langer, Esq., Peter E.
Leckman, Esq., Langer Grogan & Diver, P.C.,
Philadelphia, Pennsylvania; Kevin M. Costello,
Esq., Gary E. Klein, Esq., Klein Kavanagh
Costello, LLP, Boston, Massachusetts; Michael
Morris Buchman, Esq., John A. Ioannou, Esq.,
Pomerantz Haudek Block Grossman & Gross
LLP, New York, New York; Alex Schmidt,
Esq., Mary Jane Fait, Esq., Wolf Haldenstein
Adler Freeman & Herz LLP, New York, New
York; Robert LaRocca, Esq., Kohn, Swift &
Graf, P.C., Philadelphia, Pennsylvania; J.
Douglas Richards, Esq., Jeffrey Dubner, Esq.,
Cohen, Milstein, Sellers & Toll, PLLC, New
York, New York.
For Office of the Commissioner of Baseball,

Major League Baseball Enterprises Inc., MLB
Advanced Media L.P., MLB Advanced Media,
Inc., Athletics Investment Group, LLC, The
Baseball Club of Seattle, L.L.P., Chicago
White Sox, Ltd., Colorado Rockies Baseball
Club, Ltd., The Phillies, Pittsburgh Baseball,
Inc., and San Francisco Baseball Associates,
L.P., Defendants: Bradley I. Ruskin, Esq., Carl
Clyde Forbes, Esq., Helene Debra Jaffe, Esq.,
Jennifer R. Scullion, Esq., Robert Davis
Forbes, Esq., Proskauer Rose LLP, New York,
New York; Thomas J. Ostertag, [*2] Esq.,
Senior Vice President and General Counsel,
Office of the Commissioner of Baseball, New
York, New York.
For National Hockey League, NHL Enterprises,
L.P., NHL Interactive Cyberenterprises, LLC,
Chicago Blackhawk Hockey Team, Inc., Comcast-Spectacor, L.P., Hockey Western New
Page 2
2014 U.S. Dist. LEXIS 109951, *; 2014-2 Trade Cas. (CCH) P78,868
York LLC, Lemieux Group, L.P., Lincoln

Hockey LLC, New Jersey Devils LLC, New
York Islanders Hockey Club, L.P. and San Jose
Sharks, LLC, Defendants: Shepard Goldfein,
Esq., James A. Keyte, Esq., Paul M. Eckles,
Esq., Matthew M. Martino, Esq., Skadden,
Arps, Slate, Meagher & Flom LLP, New York,
New York.
For DIRECTV, LLC, DIRECTV Sports Networks, LLC, DIRECTV Sports Net Pittsburgh,
LLC a/k/a Root Sports Pittsburgh, DIRECTV
Sports Net Rocky Mountain, LLC a/k/a Root
Sports Rocky Mountain, and DIRECTV Sports
Net Northwest, LLC a/k/a Root Sports Northwest, Defendants: Andrew E. Paris, Esq., Joann
M. Wakana, Esq., Louis A. Karasik, Esq., Alston & Bird LLP, Los Angeles, California.
For Comcast Corporation, Comcast SportsNet
Philadelphia,
L.P.,
Comcast
SportsNet
Mid-Atlantic L.P., Comcast SportsNet California, LLC, and Comcast SportsNet Chicago,
LLC, Defendants: Arthur J. Burke, Esq., James
W. Haldin, Esq., Davis Polk [*3] & Wardwell, New York, New York.
For Yankees Entertainment and Sports Networks, LLC and New York Yankees Partnership: Jonathan D. Schiller, Esq., Alan Vickery,
Esq., Christopher Duffy, Esq., Boies, Schiller
& Flexner LLP, New York, New York.
For The Madison Square Garden Company and
New York Rangers Hockey Club, Defendants:
Stephen R. Neuwirth, Esq., Richard I. Werder,
Jr., Esq., Ben M. Harrington, Esq., Quinn
Emanuel Urquhart Oliver and Sullivan LLP,
New York, New York.
JUDGES: Shira A. Scheindlin, United States
District Judge.
OPINION BY: Shira A. Scheindlin
OPINION
OPINION AND ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
Plaintiffs bring these putative class actions
against the National Hockey League ("NHL")
and various individual clubs in the league (the
"NHL Defendants"); Major League Baseball
("MLB") and various individual clubs in the
league (the "MLB Defendants") (together the
"League Defendants"); multiple regional sports
networks ("RSNs") that produce and distribute
professional baseball and hockey programming;1 two multichannel video programming
distributors ("MVPDs" or "distributors"),
Comcast and DIRECTV (together with the
RSNs, the "Television Defendants" or "broadcasters"); Madison Square Garden [*4] Company and the New York Rangers Hockey Club
(the "MSG Defendants"); and New York Yankees Partnership and Yankees Entertainment &
Sports Network, LLC ("YES") (together the
"Yankee Defendants"). Plaintiffs allege violations under Sections 1 and 2 of the Sherman
Antitrust Act (the "Sherman Act").
1 Several defendant RSNs are owned
and controlled by defendant Comcast,
several are owned and controlled by defendant DIRECTV, and two are independent of the MVPDs but share ownership with an individual club.
On July 27, 2012, the defendants jointly
moved to dismiss the Complaints in both actions, Garber v. Office of the Commissioner of
Baseball ("Garber") and Laumann v. National
Hockey League ("Laumann"). In an Opinion
and Order dated December 5, 2012, I granted
the motion in part and denied it in part.2 Plaintiffs Fernanda Garber and Peter Herman were
dismissed from both cases, and plaintiff Robert
Silver was dismissed from the Garber case, for
lack of antitrust standing. Additionally, I dismissed plaintiffs' claims under Section 2 of the
Page 3
Sherman Act against the Television Defendants.3

2
See Laumann v. National Hockey
League, 907 F. Supp. 2d 465 (S.D.N.Y.
2012).
3 See id. at 492.
On August 19, 2013, [*5] Comcast and its
affiliated RSNs (the "Comcast Defendants")
filed a motion to compel arbitration against
Garrett Traub, Silver, Vincent Birbiglia,
Thomas Laumann, and Derek Rasmussen, and
to stay the claims of David Dillon and Marc
Lerner pending resolution of the arbitration.
Comcast's motion was granted as to Traub,
Laumann, and Rasmussen, but denied as to
Silver, Birbiglia, Dillon, and Lerner. The same
day, DIRECTV and its affiliated RSNs (the
"DIRECTV Defendants") filed a motion to
compel arbitration against Lerner. DIRECTV's
motion was denied in full.4
4 See Garber, 989 F. Supp. 2d 329,
Dkt. No. 222; Laumann, 989 F. Supp. 2d
329, Dkt. No. 167.
The Comcast Defendants, the DIRECTV
Defendants, the NHL Defendants, and the
MLB Defendants now move for summary
judgment on the remaining claims.5 For the
reasons that follow, all four motions are DENIED in full.
5
The Yankee Defendants and the
MSG Defendants have joined in the other
defendants' motions. See Garber, No. 12
Civ. 3704, Dkt. No. 280 (indicating that
the New York Yankees "refer[] the Court
to the memorandum of law and statement
of material facts filed today by the other
Major League Baseball club defendants
in this action," and that "YES, [*6]
which is a regional sports network
("RSN"), respectfully refers the Court to
the memoranda of law and statements of
material facts filed today by the other
RSN defendants in this action"). See also

Laumann, No. 12 Civ. 1817, Dkt. No.
217 (indicating the MSG Defendants'
joinder in the NHL Defendants' revised
motion for summary judgment).
II. BACKGROUND
NHL is an unincorporated association of
thirty major league professional ice hockey
clubs, nine of which are named as defendants in
Laumann.6 MLB is an unincorporated association of thirty professional baseball clubs, nine
of which are named as defendants in Garber.7
The clubs within each League are competitors
-- both on the field and in the contest to broaden their fan bases. However, the clubs must also coordinate in various ways in order to produce live sporting events, including agreeing
upon the game rules and setting a schedule of
games for the season.8 Both leagues divide their
member teams into geographic territories and
assign each team a home television territory
("HTT") for broadcasting purposes.9 Neither the
Comcast Defendants nor the DIRECTV Defendants played a role in the initial creation of
the Leagues' HTTs.10
6 See NHL Defendants' [*7] Motion
for Summary Judgment ("NHL Mem.")
at 3.
7 See Memorandum of Law in Support
of the MLB Defendants' Motion for
Summary Judgment ("MLB Mem.") at 4.
8
See MLB Defendants' Rule 56.1
Statement of Undisputed Material Facts
("MLB 56.1") 4-5. See also NHL
Mem. at 3.
9 See Comcast's Statement of Undisputed Material Facts Pursuant to Local
Rule 56.1 ("Comcast 56.1") 2; NHL
Mem. at 4-5; MLB 56.1 68.
10
See Comcast 56.1 4; The DIRECTV Defendants' Rule 56.1 Statement
of Undisputed Facts ("DIRECTV 56.1")
4.
Page 4
The structure of the territorial broadcasting

system is largely uncontested. By League
agreement, each club agrees to license its
games for telecast only within its designated
HTT.11 The clubs then contract with RSNs
through Rights Agreements.12 The Rights
Agreements generally provide each RSN the
exclusive right to produce a club's games and
telecast them in the HTT.13 The Agreements do
not permit the RSNs to license telecasts for
broadcast outside the HTTs.14 The Rights
Agreements also require the RSNs to provide
their telecasts to the Leagues without charge for
use in the out-of-market packages ("OOM
packages").15 The clubs keep the revenue from
their respective Rights Agreements.
[*8]
There are significant differences in the economic value of the various HTTs.16
11 See MLB 56.1 68; NHL Mem. at
5.
12 See NHL Mem. at 5; Comcast 56.1
2.
13 MLB 56.1 93; Comcast 56.1 6,
14; DIRECTV 56.1 6; NHL Mem. at 5.
Plaintiffs do not challenge the clubs' right
to grant production and distribution
rights for their own games to only one
RSN (hereinafter "content exclusivity").
Such exclusivity is to be distinguished
from the exclusivity established by the
territorial rules, which prevent each RSN
from televising its programming outside
the HTT and protect it from competing
with the programming of other teams'
games within the HTT (hereinafter "territorial exclusivity").
14 See Comcast 56.1 22.
15 See MLB 56.1 68, 150; Comcast
56.1 18; NHL Mem. at 6.
4.
In order to produce the telecasts of live
games, the RSNs invest in equipment, production facilities, and a large staff.17 They also
produce "shoulder" programming such as
pre-game and post-game shows.18 The RSNs

then sell their programming to MVPDs like
Comcast and DIRECTV through Affiliation
Agreements, and the MVPDs televise the programming through standard packages sold to
consumers within [*9] the HTT.19 Even when
an MVPD agrees to carry a RSN, it does not
always distribute that RSN throughout its entire
territory.20 The MVPDs acquire the rights to
broadcast the games subject to the territorial
restrictions in the RSNs' agreements with the
Leagues.21 The MVPDs black out games in unauthorized territories in accordance with those
restrictions.
17 See MLB 56.1 103; Comcast 56.1
14.
18 See MLB 56.1 104; DIRECTV
56.1 17, 19; Comcast 56.1 19.
19 See Comcast 56.1 12; NHL Mem.
at 5.
20 See MLB 56.1 112; DIRECTV
56.1 22.
21 See Comcast 56.1 22; DIRECTV
56.1 21.
Fans can watch out-of-market games in one
of two ways. First, some games are televised
nationally through contracts between the
Leagues and national broadcasters like ESPN
and Fox.22 The clubs have agreed to allow the
Leagues to negotiate national contracts on their
behalf. The Leagues' agreements with national
broadcasters contain provisions requiring the
Leagues to preserve the HTTs.23 The revenues
from national broadcasts are shared equally
among the clubs.24
22 See MLB 56.1 124-125; NHL
Mem. at 4.
2.
24 See MLB 56.1 1; NHL 56.1 14.
Second, the Leagues produce OOM packages in [*10] both television and Internet
format. The television packages -- NHL Center
Page 5
Ice and MLB Extra Innings -- are available for

purchase through MVPDs, including Comcast
and DIRECTV.25 The Internet packages -- NHL
GameCenter Live and MLB.tv -- are available
for purchase directly from the Leagues.26 The
OOM packages are comprised of local RSN
programming from each of the clubs.27 As with
the national broadcasts, revenues from the
OOM packages are shared equally among the
clubs.28
25 See Comcast 56.1 30; Memorandum of Law in Support of the DIRECTV
Defendants' Motion for Summary Judgment ("DIRECTV Mem.") at 7.
26 See Comcast 56.1 31; DIRECTV
Mem. at 4.
27 See MLB 56.1 68, 150; Comcast
56.1 18; NHL Mem. at 6.
28 See MLB 56.1 153; NHL 56.1
14.
Each of the OOM packages requires the
purchase of the full slate of out-of-market
games, even if a consumer is only interested in
viewing the games of one team. The OOMs
exclude in-market games to "avoid diverting
viewers from local RSNs that produce the live
game feeds that form the OOM packages."29
29 MLB 56.1 47. Accord Comcast
56.1 33.
In sum, each RSN is the sole producer of its
club's games30 and the sole distributor of those
games within the HTT [*11] aside from limited nationally broadcasted games. The OOM
packages do not show in-market games to
avoid competition with the local RSN. Additionally, the territorial broadcast restrictions
allow each RSN to largely avoid competing
with out-of-market games produced by other
RSNs.
30 One exception is that the teams in
each League have agreed to permit the
visiting team to produce a separate telecast of away games.

Internet streaming rights are owned by the
Leagues and/or the clubs.31 The RSNs have no
right to license their programming for Internet
streaming directly. The Internet OOM packages
are the primary way for fans to view games on
the Internet. Additionally, some MVPDs have
negotiated with the Leagues to provide Internet
streaming of out-of-market games to subscribers of the OOM television packages.32 Internet
streaming of in-market games remains largely
unavailable to consumers.33
31 See MLB 157; DIRECTV 56.1
29; Plaintiffs' Response to DIRECTV
Defendants' Local Rule 56.1 Statement
of Undisputed Material Facts 29.
32
See DIRECTV 56.1 34. Fans
must authenticate their OOM television
subscription in order to access the games
online.
33 See MLB 56.1 171 (revealing that
only three [*12] baseball clubs have
reached agreements with MLB to permit
in-market streaming of their games);
DIRECTV 56.1 32, 36, 38 (noting that
no NHL team has conducted in-market
streaming and only two baseball clubs
have done so in the past, and also stating
that DIRECTV has unsuccessfully tried
to negotiate for in-market streaming with
the Leagues).
III. STANDARD OF REVIEW
Summary judgment is appropriate "only
where, construing all the evidence in the light
most favorable to the non-movant and drawing
all reasonable inferences in that party's favor,
there is 'no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a
matter of law.'"34 "A fact is material if it might
affect the outcome of the suit under the governing law, and an issue of fact is genuine if the
Page 6
evidence is such that a reasonable jury could

return a verdict for the nonmoving party."35
34 Rivera v. Rochester Genesee Reg'l
Transp. Auth., 743 F.3d 11, 19 (2d Cir.
2014) (quoting Fed. R. Civ. P. 56(c))
(some quotation marks omitted).
35 Windsor v. United States, 699 F.3d
169, 192 (2d Cir. 2012), aff'd, 133 S. Ct.
2675, 186 L. Ed. 2d 808 (2013) (quotations and alterations omitted).
"[T]he moving party has the burden of
showing [*13] that no genuine issue of material fact exists and that the undisputed facts entitle him to judgment as a matter of law."36 To
defeat a motion for summary judgment, the
non-moving party must "do more than simply
show that there is some metaphysical doubt as
to the material facts,"37 and "may not rely on
conclusory allegations or unsubstantiated speculation."38
36 Coollick v. Hughes, 699 F.3d 211,
219 (2d Cir. 2012) (citations omitted).
37 Brown v. Eli Lilly & Co., 654 F.3d
347, 358 (2d Cir. 2011) (quotation marks
and citations omitted).
38 Id. (quotation marks and citations
omitted).
In deciding a motion for summary judgment, "[t]he role of the court is not to resolve
disputed issues of fact but to assess whether
there are any factual issues to be tried."39
"'Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences'" are jury functions, not those of a
judge.40
39 Brod v. Omya, Inc., 653 F.3d 156,
164 (2d Cir. 2011) (quotation marks and
citations omitted).
40
Barrows v. Seneca Foods Corp.,
512 Fed. App'x 115, 117 (2d Cir. 2013)
(quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)).
IV. APPLICABLE LAW

A. Section 1 of the Sherman Act
Section 1 [*14] of the Sherman Act prohibits "[e]very contract, combination in the
form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States."41 "The crucial question in a Section
1 case is [] whether the challenged conduct
stems from independent decision or from an
agreement, tacit or express."42 "In order to prove
a conspiracy, the antitrust plaintiff should present direct or circumstantial evidence that reasonably tends to prove that the [defendant] and
others had a conscious commitment to a common scheme designed to achieve an unlawful
objective."43 A business decision may be lawful
when made unilaterally but unlawful when
made pursuant to an agreement.44
41 15 U.S.C.A. 1 (West 2014).
42 Mayor & Council of Baltimore v.
Citigroup, Inc., 709 F.3d 129 (2d Cir.
2013) (quotation marks and citations
omitted).
43 Anderson News, LLC v. American
Media, Inc., 680 F.3d 162, 184 (2d Cir.
omitted).
44 See Interstate Circuit, Inc. v. United
States, 306 U.S. 208, 229-30, 59 S. Ct.
467, 83 L. Ed. 610 (1939) (finding that
"[t]he fact that the restrictions may have
been of a kind which a distributor could
voluntarily have imposed, but did not,
does not alter the character [*15] of the
contract as a calculated restraint" in violation of the Sherman Act); In re Publication Paper Antitrust Litig., 690 F.3d
51, 68 (2d Cir. 2012) ("[T]he mere fact
that following price increases announced
by competitors may have been consistent
with [defendant's] overall pricing strategy does not immunize [defendant] from
liability if it had an illegal agreement
Page 7
with [a competitor] to adhere to that

strategy."); Levitch v. Columbia Broad.
Sys., Inc., 495 F. Supp. 649, 672
(S.D.N.Y. 1980), aff'd, 697 F.2d 495 (2d
Cir. 1983) ("So long as the refusal to deal
is the product of an independent determination, rather than an unlawful understanding, tacit or expressed, the decision
does not run afoul of the antitrust laws.").
"Parallel conduct can be probative evidence
bearing on the issue of whether there is an antitrust conspiracy. However, parallel conduct
alone will not suffice as evidence of such a
conspiracy, even if the defendants 'knew the
other defendant companies were doing likewise. . . .'"45 Parallel conduct must be accompanied by "plus factors," such as "a common motive to conspire, evidence that shows that the
parallel acts were against the apparent individual economic self-interest [*16] of the alleged
conspirators, and evidence of a high level of
interfirm communications."46 If the "parties to
vertical agreements [] have knowledge that
other market participants are bound by identical
agreements, and their participation is contingent upon that knowledge, they may be considered participants in a horizontal agreement in
restraint of trade."47
45 Apex Oil Co. v. DiMauro, 822 F.2d
246, 253 (2d Cir. 1987) (quoting Modern
Home Inst., Inc. v. Hartford Accident &
Indemnity Co., 513 F.2d 102, 110 (2d
Cir. 1975)). Accord Publication Paper,
690 F.3d at 62 ("Conscious parallelism
alone, however, does not establish an antitrust violation. Such behavior is consistent with both unlawful conspiracy and
lawful independent conduct.").
46 Mayor & Council of Baltimore, 709
F.3d at 136.
47
Laumann, 907 F. Supp. 2d at
486-87. Accord Modern Home, 513 F.2d
at 110 ("noting that "decisions [that are]
interdependent . . . raise the inference of
a tacit agreement"); Levitch, 495 F. Supp.
at 674 ("It must be demonstrated that the

parallel decisions were interdependent in
order to raise the inference of a tacit
agreement.").
The Supreme Court has clarified that Section 1 "outlaw[s] only unreasonable restraints."48 [*17] To establish a Section 1 violation, a plaintiff must demonstrate "concerted
action between at least two legally distinct
economic entities" that "constitute[s] an unreasonable restraint of trade either per se or under
the rule of reason."49
48 Texaco Inc. v. Dagher, 547 U.S. 1,
5, 126 S. Ct. 1276, 164 L. Ed. 2d 1
(2006) (quotation marks and citations
omitted).
49 Primetime 24 Joint Venture v. National Broad., Co., 219 F.3d 92, 103 (2d
Cir. 2000) (quotation marks and citations
omitted). Accord E & L Consulting, Ltd.
v. Doman Indus. Ltd., 472 F.3d 23, 29
(2d Cir. 2006) ("A violation of Section 1
generally requires a combination or other
form of concerted action between two
legally distinct entities resulting in an
unreasonable restraint on trade.").
Certain agreements that have "manifestly
anti-competitive effects and lack . . . any redeeming virtue" are deemed per se violations
of the Sherman Act.50 Outside this category of
"necessarily illegal" restraints, "[t]he rule of
reason is the accepted standard for testing
whether a practice restrains trade in violation of
1."51 "The rule [of reason] distinguishes between restraints with anticompetitive effect that
are harmful to the consumer and restraints
stimulating competition [*18] that are in the
consumer's best interest."52 In applying the rule
of reason, courts "weigh all of the circumstances surrounding the challenged acts to determine whether the alleged restraint is unreasonable," taking into account "specific information about the relevant business, the restraint's history, nature, and effect, and
Page 8
[w]hether the businesses involved have market

power."53 Certain challenged practices warrant
an "abbreviated or quick-look rule of reason
analysis"54 where "the great likelihood of anticompetitive effects can be easily ascertained."55
50
Leegin Creative Leather Prods.,
Inc. v. PSKS, Inc., 551 U.S. 877, 887,
127 S. Ct. 2705, 168 L. Ed. 2d 623
(2007) (internal quotations and citations
omitted). Categorizing a restraint as per
se illegal "eliminates the need to study
the reasonableness of an individual restraint in light of the real market forces at
work." Id. at 886.
51 Id. at 885-86.
52 Id. at 886.
53 Gatt Commc'ns, Inc. v. PMC Assoc., L.L.C., 711 F.3d 68, 75 n.8 (2d Cir.
omitted).
54 Major League Baseball Props., Inc.
v. Salvino, Inc., 542 F.3d 290, 317 (2d
Cir. 2008) (quotation marks and citations
omitted).
55 Id. The Supreme Court found an
abbreviated analysis appropriate [*19]
where a league agreement expressly limited the number of college football games
that could be televised and fixed minimum prices for those games. See National Collegiate Athletic Ass'n v. Board of
Regents of the Univ. of Oklahoma, 468
U.S. 85, 109-10, 104 S. Ct. 2948, 82 L.
Ed. 2d 70 (1984) ("NCAA") ("[W]hen
there is an agreement not to compete in
terms of price or output, no elaborate industry analysis is required to demonstrate
the anticompetitive character of such an
agreement.").
In applying the rule of reason, the Second
Circuit employs a burden-shifting framework:
[P]laintiffs bear an initial burden to demonstrate the defendants'
challenged behavior had an actual
adverse effect on competition as a

whole in the relevant market . . . .
If the plaintiffs satisfy their initial
burden, the burden shifts to the
defendants to offer evidence of the
pro-competitive effects of their
agreement. . . . Assuming defendants can provide such proof, the
burden shifts back to the plaintiffs
to prove that any legitimate competitive benefits offered by defendants could have been achieved
through less restrictive means. . . .
Ultimately, the factfinder must
engage in a careful weighing of the
competitive effects of the agreement -- [*20] both pro and con -to determine if the effects of the
challenged restraint tend to promote or destroy competition.56
Plaintiffs can meet their initial burden by

showing that defendants had market power and
that their actions had an adverse effect on price,
output, or quality.57
56 Salvino, 542 F.3d at 317 (internal
quotation omitted).
57 See United States v. Visa U.S.A.,
Inc., 344 F.3d 229, 238 (2d Cir. 2003).
B. Section 2 of the Sherman Act
Section 2 of the Sherman Act states that
"[e]very person who shall monopolize, or attempt to monopolize, or combine or conspire
with any other person or persons, to monopolize any part of the trade or commerce among
the several States, or with foreign nations, shall
be deemed guilty of a felony . . . ."58 In order to
state a claim for monopolization under Section
2, plaintiffs must establish "'(1) the possession
of monopoly power in the relevant market and
(2) the willful acquisition or maintenance of
that power as distinguished from growth or development as a consequence of a superior
Page 9
product, business acumen, or historic accident.'"59 Specifically, plaintiffs must establish

that the defendant "(1) engaged in predatory or
anticompetitive conduct with [*21] (2) a specific intent to monopolize and (3) a dangerous
probability of achieving monopoly power."60
58 15 U.S.C.A. 2 (West 2014).
59 In re DDAVP Direct Purchaser Antitrust Litig., 585 F.3d 677, 687 (2d Cir.
2009) (quoting PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.
2002)).
60
Affinity LLC v. GfK Mediamark
Research & Intelligence, LLC, 547 Fed.
App'x 54, 57 (2d Cir. 2013). Accord
PepsiCo, 315 F.3d at 105.
C. The Baseball Exemption
In 1922, in Federal Baseball Club of Baltimore v. National League of Professional
Baseball Clubs, the Supreme Court held that
"the business [of] giving exhibitions of baseball" was not subject to the Sherman Act.61 The
plaintiff baseball club alleged that the defendants had destroyed the Federal League, a former competitor of the American and National
Leagues, by poaching its constituent clubs.62
The Court affirmed dismissal and held that
"exhibitions of base ball [] [were] purely state
affairs" that did not constitute interstate commerce subject to the antitrust laws.63
61 259 U.S. 200, 208, 42 S. Ct. 465,
66 L. Ed. 898, 20 Ohio L. Rep. 211
(1922).
62 See id. at 207.
63 Id. at 208.
In 1953, the Court again addressed the
so-called "baseball exemption" in Toolson v.
New York Yankees, Inc.64 In Toolson, a [*22]
professional baseball player sued multiple
baseball clubs and leagues for antitrust violations stemming from major league baseball's
ineligibility rules, which permitted teams to
transfer players without their consent. Any

player who refused to comply with an involuntary transfer was branded "ineligible" and
banned from playing for any other team.65 The
plaintiff also argued in his written submissions
that the defendants' territorial broadcasting restrictions constituted an illegal restraint of trade
in violation of the Sherman Act.66
64 346 U.S. 356, 74 S. Ct. 78, 98 L.
Ed. 64 (1953). The Supreme Court in
Toolson affirmed the decisions in three
different cases on appeal from the Sixth
and Ninth Circuits. See Corbett v. Chandler, 202 F.2d 428 (6th Cir. 1953); Kowalski v. Chandler, 202 F.2d 413 (6th Cir.
1953); Toolson v. New York Yankees,
200 F.2d 198 (9th Cir. 1952).
65 See Toolson v. New York Yankees,
101 F. Supp. 93, 93 (S.D. Cal. 1951)
("Toolson I"), aff'd, 200 F.2d 198 (9th
Cir. 1952) ("Toolson II"), aff'd, 346 U.S.
356, 74 S. Ct. 78, 98 L. Ed. 64 (1953)
("Toolson III").
66
In his submissions to the Ninth
Circuit, the plaintiff argued that defendants had agreed amongst themselves that
"no Major League club shall authorize a
broadcast or [*23] telecast of any of its
games from a station outside its home
territory and within the home territory of
any other baseball club, without the consent of such other clubs." Petitioner's
Opening Brief on Writ of Certiorari to
the United States Court of Appeals for
the Ninth Circuit, Toolson II (No.
13228), 1953 WL 78316, at *6. As a result, plaintiff argued, the defendants had
"greatly lessened and eliminated all
competition in the exhibition of baseball
games by means of broadcasting and
televising among the several states." Id.
at *9.
The district court addressed solely the
plaintiff's allegations involving the ineligibility
rules67 and dismissed the case based on the Su-
Page 10
preme Court's determination in Federal Baseball that the business of baseball did not constitute interstate commerce.68 The court discussed television broadcasting only in the context of evaluating the degree of baseball's interstate nexus.69 The Ninth Circuit affirmed the
decision without comment.70
decision [*25] determine[d] that Congress had

no intention of including the business of baseball within the scope of the federal antitrust
laws."74
67 The district court's summary of the

plaintiff's claims omits any mention of
the broadcasting allegations. See Toolson
I, 101 F. Supp. at 93.
68 See id. at 94-95.
69 See id. at 94.
70 See Toolson II.
In 1961, Congress enacted the Sports

Broadcasting Act ("SBA"), which created an
antitrust exemption for certain types of professional sports broadcasting agreements, particularly league-wide contracts for over-the-air
broadcasts.75 Aside from that limited exception,
the SBA did not change the applicability of the
antitrust laws to professional sports.76 The Act
expressly did not apply to any agreement that
"prohibits . . . [the] televising [of] any games
within any [geographic] area, except within the
home territory of a member club of the league
on a day when such club is playing at home."77
The Supreme Court noted that the SBA:
In Toolson III's two companion [*24]

cases, Kowalski v. Chandler and Corbett v.
Chandler, the Sixth Circuit affirmed dismissal
of antitrust claims against the League on interstate commerce grounds. As in Toolson, television broadcasting was mentioned only in the
context of deciding whether baseball had a sufficient interstate nexus.71
71
See Kowalski, 202 F.2d at 414;
Corbett, 202 F.2d at 428. In Corbett, the
Sixth Circuit affirmed the district court
without comment except to reference its
decision in Kowalski, which was issued
the same day.
The Supreme Court affirmed all three decisions in one paragraph, reiterating Federal
Baseball's holding that "the business of
providing public baseball games for profit between clubs of professional baseball players
[is] not within the scope of the federal antitrust
laws."72 The Court noted that the business of
baseball had developed for thirty years in reliance on Federal Baseball, and that "if there are
evils in this field which now warrant application to it of the antitrust laws it should be by
legislation."73 Thus, the Court affirmed the
judgments below "on the authority of Federal
Baseball Club of Baltimore v. National League
of Professional Baseball Clubs, [] so far as that
72
73
74
Toolson III, 346 U.S. at 357.

Id.
Id.
demonstrates Congress' recognition that agreements among

league members to sell television
rights in a cooperative fashion
could run afoul of the Sherman
Act, and in particular reflects its
awareness of the decision in United States v. National Football
League, 116 F.Supp. 319 (E.D. Pa.
1953), which held that an agreement among the teams of the National Football League [not to telecast games [*26] in certain geographic areas at certain times] violated 1 of the Sherman Act.78
75
See 15 U.S.C.A. 1291 (West
2014) ("The antitrust laws . . . shall not
apply to any joint agreement by or
among persons engaging in or conduct-
Page 11
ing the organized professional team

sports of football, baseball, basketball, or
hockey, by which any league of clubs
participating in professional football,
baseball, basketball, or hockey contests
sells or otherwise transfers all or any part
of the rights of such league's member
clubs in the sponsored telecasting of the
games of football, baseball, basketball, or
hockey, as the case may be, engaged in
or conducted by such clubs."). See also
NCAA, 468 U.S. at 104 n.28 (stating that
the SBA "grant[ed] professional sports
an exemption from the antitrust laws for
joint marketing of television rights").
76
See 15 U.S.C.A. 1294 (West
2014) ("Nothing contained in this chapter
shall be deemed to change, determine, or
otherwise affect the applicability or nonapplicability of the antitrust laws to any
act, contract, agreement, rule, course of
conduct, or other activity by, between, or
among persons engaging in, conducting,
or participating in the organized professional [*27] team sports of football,
baseball, basketball, or hockey, except
the agreements to which section 1291 of
this title shall apply.").
77 Id. 1292.
78 NCAA, 468 U.S. at 104 n.28.
In 1972, the Supreme Court again addressed the baseball exemption in Flood v.
Kuhn.79 The plaintiff, a professional baseball
player, challenged the "reserve system," which
allowed teams to transfer players without their
consent and precluded players from independently signing with new teams. The Court
expressly held that baseball was "a business []
engaged in interstate commerce," undercutting
the entire legal basis for the antitrust exemption
as articulated in Federal Baseball and Toolson.80 Nonetheless, the Court preserved the
exemption as "an aberration that has been with
us now for half a century, one heretofore
deemed fully entitled to the benefit of stare decisis . . . ."81 Because the exemption had been
allowed to develop without any congressional

interference despite "full and continuing congressional awareness,"82 the Court held that "the
remedy, if any is indicated, is for congressional, and not judicial, action."83 The Court specifically addressed the reserve clause in its discussion and holding, concluding [*28] that the
"reserve system enjoy[s] exemption from the
federal antitrust laws," and "Congress as yet
has had no intention to subject baseball's reserve system to the reach of the antitrust statutes."84
79 See 407 U.S. 258, 92 S. Ct. 2099,
32 L. Ed. 2d 728 (1972).
80 Id. at 282.
81 Id.
82 Id. at 283.
83 Id. at 285.
84 Id. at 282-83 (emphasis added).
Since Flood, the Court has expressly questioned the logic of the baseball exemption,
calling it "at best of dubious validity" and refusing to extend it to other professional sports.85
The Court noted that, "were [it] considering the
question of baseball for the first time upon a
clean slate," it would not adopt an antitrust
exemption.86
85
Radovich v. National Football
League, 352 U.S. 445, 450, 77 S. Ct.
390, 1 L. Ed. 2d 456 (1957).
86 Id. at 452.
In 1998, Congress passed the Curt Flood
Act, which provided that "conduct, acts, practices, or agreements of persons in the business
of organized professional major league baseball
directly relating to or affecting employment of
major league baseball players" are "subject to
the antitrust laws to the same extent" as other
sports.87 In other words, the Act removed employment-related agreements from the common
law baseball exemption. The Act did not alter
the applicability of the [*29] antitrust laws to
"any conduct, acts, practices, or agreements
Page 12
other than . . . employment of major league

baseball players."88
87
88
15 U.S.C.A. 26b(a) (West 2014).

Id. 26b(b).
D. Antitrust Standing Under Illinois Brick

The Supreme Court's decision in Illinois
Brick Co. v. Illinois established that
"[g]enerally, only direct purchasers have
standing to bring civil antitrust claims."89 The
rule serves to avoid the difficulties of "apportion[ing] the recovery among all potential
plaintiffs . . . from direct purchasers to middlemen to ultimate consumers," eliminates the
possibility of duplicative recovery, and promotes enforcement by purchasers who have
been most directly injured by the alleged violation.90 "[W]here intermediate purchasers in the
chain of distribution . . . [are] participants in the
conspiracy, the first purchasers who are not
part of the conspiracy 'are entitled to collect
damages from both the manufacturers and their
intermediaries if conspiracy and overcharges
can be established.'"91
89 Simon v. KeySpan Corp., 694 F.3d
196, 201 (2d Cir. 2012) (citing Illinois
Brick Co. v. Illinois, 431 U.S. 720, 97 S.
Ct. 2061, 52 L. Ed. 2d 707 (1977)).
90 Illinois Brick, 431 U.S. at 728-33,
741-47. Accord Kansas v. UtiliCorp
United, Inc., 497 U.S. 199, 216, 110 S.
Ct. 2807, 111 L. Ed. 2d 169 (1990)
[*30] (affirming Illinois Brick and cautioning that "the possibility of allowing
an exception [to the direct purchaser requirement], even in rather meritorious
circumstances, would undermine the
rule").
91 Laumann, 907 F. Supp. 2d at 482
(quoting Paper Sys. Inc. v. Nippon Paper
Indus. Co., 281 F.3d 629, 632 (7th Cir.
2002)).
V. DISCUSSION
A. The Baseball Exemption Does Not Apply

to Territorial Broadcasting Restrictions
The continued viability and scope of the
baseball exemption are far from clear. The
MLB Defendants argue that the territorial
broadcasting restrictions at issue here fall under
the exemption and preclude their liability. They
base their argument principally on the holding
in Toolson and the language of the Curt Flood
Act.92 Specifically, the MLB Defendants argue
that the Supreme Court in Toolson affirmed
dismissal of all of the plaintiff's claims, including the factual allegations related to territorial broadcasting restrictions. Therefore, the
Court must have found those restrictions to be
covered by the exemption.
92 See [*31] MLB Mem. at 10 (arguing that the Curt Flood Act and the official Senate Report indicate that Congress did not intend the antitrust laws to
apply to broadcasting).
However, none of the published opinions in
the Toolson cases -- at the district, circuit, or
Supreme Court levels -- even mentioned the
territorial broadcasting allegations. Additionally, the Supreme Court expressly limited its
holding in Toolson to the contours of its decision in Federal Baseball, which rested entirely
on interstate commerce grounds and did not
involve broadcasting-related allegations. Indeed, because television broadcasting is an interstate industry by nature, it cannot fall within
the exemption defined by Federal Baseball. It
would be strange to read Toolson to expand
Federal Baseball's holding to territorial broadcasting restrictions sub silentio.
Moreover, the language and structure of the
SBA suggest that, as of 1961, Congress understood sports broadcasting agreements to fall
outside the baseball exemption. The provision
of the SBA granting limited immunity to a
narrow category of broadcasting agreements
would be meaningless if all baseball broad-
Page 13
casting agreements were already covered by the

common law [*32] exemption.93 Moreover,
the SBA expressly excluded from its safe harbor most agreements involving geographic
broadcasting territories, suggesting that Congress intended such agreements to be subject to
the antitrust laws.94
93 The SBA expressly applies to professional football, baseball, basketball,
and hockey. See 15 U.S.C.A. 1291.
94 See id. 1292 ("Section 1291 of
this title shall not apply to any joint
agreement described in the first sentence
in such section which prohibits any person to whom such rights are sold or
transferred from televising any games
within any area, except within the home
territory of a member club of the league
on a day when such club is playing a
game at home.").
Congressional understanding is relevant
because Flood replaced Federal Baseball's and
Toolson's holdings based on interstate commerce with a limited holding based only on
stare decisis and inferred congressional intent.
Therefore, Congress's understanding of the
scope of the baseball exemption before Flood is
highly persuasive.
Moreover, in rejecting the holdings in Federal Baseball and Toolson, the Flood Court
made specific reference to the reserve system
throughout its analysis, permitting a narrower
[*33] reading of the exemption.95 One district
court concluded that "the antitrust exemption
created by Federal Baseball is limited to baseball's reserve system."96 Other courts have interpreted Flood to preserve a broader exemption for professional baseball.97 However, defendants cite no case that applied the exemption
to broadcasting restrictions except one judge's
comments from the bench in granting a motion
to dismiss several years before the SBA was
enacted.98 The only published federal court
opinion to address the question after the SBA,
Henderson Broadcasting Corp. v. Houston

Sports Association, found the exemption inapplicable to a baseball club's radio broadcasting
agreements.99 Henderson reasoned as follows:
[The Supreme Court] has implied that broadcasting is not central enough to baseball to be encompassed in the baseball exemption . . . Congressional action does
not support an extension of the
exemption to radio broadcasting . .
. [and] lower federal courts have
declined to apply the baseball exemption in suits involving business
enterprises which, like broadcasting, are related to but separate and
distinct from baseball.100
All of these arguments apply with equal force

here.
95 See [*34] 407 U.S. at 282 ("With
its reserve system enjoying exemption
from the federal antitrust laws, baseball
is, in a very distinct sense, an exception
and an anomaly."); id. at 283 ("Congress
as yet has had no intention to subject
baseball's reserve system to the reach of
the antitrust statutes.").
96 Piazza v. Major League Baseball,
831 F. Supp. 420, 438 (E.D. Pa. 1993).
97
See, e.g., Charles O. Finley v.
Kuhn, 569 F.2d 527, 541 (7th Cir. 1978)
(concluding that the Supreme Court in
Flood "intended to exempt the business
of baseball, not any particular facet of
that business, from the federal antitrust
laws"); City of San Jos v. Office of
Comm'r of Baseball, No. C-13-02787,
2013 U.S. Dist. LEXIS 147543, 2013
WL 5609346 (N.D. Cal. Oct. 11, 2013)
(finding exemption applicable to club
relocation); Major League Baseball v.
Butterworth, 181 F. Supp. 2d 1316, 1332
Page 14
(N.D. Fla. 2001), aff'd on other grounds

sub nom. Major League Baseball v.
Crist, 331 F.3d 1177 (11th Cir. 2003) ("It
is difficult to conceive of a decision more
integral to the business of major league
baseball than the number of clubs that
will be allowed to compete.").
98
See Hale v. Brooklyn Baseball
Club, Inc., No. 1294 (N.D. Tex. 1958),
Ex. 1 to MLB Mem.
99 See 541 F. Supp. 263 (S.D. Tex.
1982).
100 Id. at 265. [*35] As Henderson
noted, a line of cases has found the exemption inapplicable to club or player
contracts with third parties. See Crist,
331 F.3d at 1183 (noting that "the antitrust exemption has not been held to immunize the dealings between professional baseball clubs and third parties");
Postema v. National League of Prof'l
Baseball Clubs, 799 F. Supp. 1475, 1489
(S.D.N.Y. 1992), rev'd on other grounds,
998 F.2d 60 (2d Cir. 1993) (finding
baseball exemption inapplicable to
League and club employment relations
with umpires). In another case involving
player contracts with third parties, the
court did not discuss the baseball exemption at all. See Fleer Corp. v. Topps
Chewing Gum, Inc., 658 F.2d 139 (3rd
Cir. 1981) (addressing baseball card licensing agreements between players' union and third party retailer).
Defendants argue that the Curt Flood Act
reveals a congressional consensus that sports
broadcasting agreements are covered by the
baseball exemption. They point to language
from a Congressional Budget Office ("CBO")
cost estimate suggesting that the Act would retain the antitrust exemption for a variety of
topics, including "league expansion, franchise
location, the amateur draft, [*36] and broadcast rights."101 However, a CBO cost estimate is
not persuasive evidence of congressional intent.
The statutory language expressly does not
change "the application of the antitrust laws"

with respect to any topic other than "employment of major league baseball players," including but not limited to "the marketing or
sales of the entertainment product of organized
professional baseball and the licensing of intellectual property rights owned or held by organized professional baseball teams individually
or collectively."102 It is a tenuous inference that
Congress considered broadcasting exempt
simply because "sales of the entertainment
product of organized professional baseball" and
"licensing of intellectual property rights" were
included in a long list of topics that would remain unchanged by the Act.103 The Curt Flood
Act adds little to the analysis of whether territorial broadcasting restrictions fall under the
common law baseball exemption.
101 MLB Mem. at 10 (quoting S. Rep.
No. 105-118, at 6 (1997)).
102 15 U.S.C.A. 26b(b)(1)-(3) (West
2014).
103 Id.
Exceptions to the antitrust laws are to be
construed narrowly.104 Moreover, the Supreme
Court has expressly questioned the validity
[*37] and logic of the baseball exemption and
declined to extend it to other sports.105 I therefore decline to apply the exemption to a subject
that is not central to the business of baseball,
and that Congress did not intend to exempt -namely baseball's contracts for television
broadcasting rights.
104
See Square D Co. v. Niagara
Frontier Tariff Bureau, Inc., 476 U.S.
409, 421, 106 S. Ct. 1922, 90 L. Ed. 2d
413 (1986) ("[E]xemptions from the antitrust laws are strictly construed and
strongly disfavored. . . ."). See also
F.T.C. v. Phoebe Putney Health Sys.,
Inc., 133 S. Ct. 1003, 1010, 185 L. Ed.
2d 43 (2013) ("But given the fundamental national values of free enterprise and
economic competition that are embodied
Page 15
in the federal antitrust laws, state-action

immunity is disfavored, much as are repeals by implication.") (quotation marks
and citations omitted).
105 See Radovich, 352 U.S. at 451-52
(football); United States v. International
Boxing, 348 U.S. 236, 242-43, 75 S. Ct.
259, 99 L. Ed. 290 (1955) (boxing).
B. The League Defendants Are Not Entitled
to Summary Judgment
While territorial divisions of a market are
normally per se violations,106 the Supreme Court
has held that a per se approach is inappropriate
in the context of sports broadcasting restrictions due to the necessary [*38] interdependence of the teams within a League.107 On
the other hand, the procompetitive benefit of
the challenged scheme here is not so obvious
that the case can be resolved in favor of defendants in the "'twinkling of an eye.'"108 Therefore the rule of reason is the appropriate standard in this case.109
106
See Salvino, 542 F.3d at 315
("Among the practices that have been
held to be per se illegal are geographic
division of markets. . . .") (citing United
States v. Topco Assoc., Inc., 405 U.S.
596, 92 S. Ct. 1126, 31 L. Ed. 2d 515
(1972)).
107 See NCAA, 468 U.S. at 117 ("Our
decision not to apply a per se rule to this
case rests in large part on our recognition
that a certain degree of cooperation is
necessary if the type of competition that
petitioner and its member institutions
seek to market is to be preserved.").
108 American Needle, Inc. v. National
Football League, 560 U.S. 183, 203, 130
S. Ct. 2201, 176 L. Ed. 2d 947 (2010)
(quoting NCAA, 468 U.S. at 109 n.39).
Accord Salvino, 542 F.3d at 316 ("Per se
treatment is not appropriate . . . where the
economic and competitive effects of the
challenged practice are unclear.").
109 The facts of this case could conceivably be amenable to a "quick look"
in favor of the plaintiffs. However, it is
unnecessary to [*39] consider this alternative given that the defendants' motions fail under the rule of reason.
Plaintiffs have carried their initial burden of
showing an actual impact on competition. The
clubs in each League have entered an express
agreement to limit competition between the
clubs -- and their broadcaster affiliates -- based
on geographic territories. There is also evidence of a negative impact on the output, price,
and perhaps even quality of sports programming. Plaintiffs' expert, Dr. Roger G. Noll, attests that consumers pay higher prices for live
game telecasts, and have less choice among the
telecasts available to them, than they would in
the absence of the territorial restrictions.110 Similarly, Dr. Noll estimates that the price of OOM
packages would decrease by about fifty percent
in a world without the restrictions.111 Finally,
defendants have not argued in these motions
that the Leagues lack market power.112
110 See Declaration of Roger G. Noll
("Noll Decl.") at 6-8.
111 See id. at 104.
112 See MLB Mem. at 12 n.22 (preserving the MLB Defendants' right to
challenge plaintiffs' definition of relevant
market and market power although "not
addressed in this motion"); NHL Mem. at
3 n.3 ("While [*40] the NHL Defendants vigorously contest Plaintiffs' proposed market definition and the assertion
that NHL Defendants possess market
power in any cognizable market, they are
not moving for summary judgment on
these issues in this motion.").
Defendants respond by identifying various
procompetitive effects of the territorial broadcast restrictions. They claim that the rules: 1)
prevent free riding, 2) preclude competition
with joint venture products, 3) incentivize in-
Page 16
vestment in higher quality telecasts, 4) maintain

competitive balance, 5) preserve a balance between local loyalty and interest in the sport as a
whole, and 6) increase the overall number of
games that are telecast. Plaintiffs deny that the
territorial rules serve the above interests and
also challenge the validity of the interests in
light of the territorial rules' overall economic
impact on competition.
First, defendants argue that the territorial
rules prevent free riding. Although avoiding
free riding can be a legitimate procompetitive
goal in certain contexts, it is not clear how free
riding would pose a threat in this case. Defendants argue that the clubs would "free ride"
on the popularity and publicity of the Leagues
[*41] if they were permitted to license their
games nationally.113 However, the same argument could be made for any revenue-producing
activity that an individual team undertakes, including local ticket sales. Defendants also
claim that the clubs would "free ride" off the
OOM packages by nationally licensing individual club broadcasts, but it is the clubs and
RSNs who create the programming in the first
place. If anything, the OOM packages benefit
from the labor and investment of the clubs and
RSNs, not the other way around. Defendants'
theory of free riding is unclear and unpersuasive.
113 See MLB Mem. at 18; NHL Mem.
at 15-16.
Second, defendants argue that the Leagues
have an unassailable right to prevent the clubs
from competing with the "joint venture."
However, no case cited by defendants stands
for the proposition that a joint venture may always prevent its members from competing with
the venture product regardless of anticompetitive consequences. Rather, in each case, the
court concluded based on the facts presented
that the restraint in question caused no actual
harm to competition.114 "If the fact that potential
competitors shared in profits or losses from a
venture meant that the venture [*42] was immune from 1, then any cartel could evade the
antitrust law simply by creating a joint venture
to serve as the exclusive seller of their competing products."115
114
See United States v. Penn-Olin
Chem. Co., 378 U.S. 158, 169, 84 S. Ct.
1710, 12 L. Ed. 2d 775 (1964) (observing
that "[i]f the parent companies are in
competition, or might compete absent the
joint venture, it may be assumed that
neither will compete with the progeny in
its line of commerce," but specifically
noting that this aspect of a joint venture
"often creates anticompetitive dangers");
Rothery Storage & Van Co. v. Atlas Van
Lines, Inc., 792 F.2d 210, 214, 253 U.S.
App. D.C. 142 (D.C. Cir. 1986) (holding
that defendant's "market share [was] far
too small for the restraint to threaten
competition or to have been intended to
do so"); Madison Square Garden, L.P. v.
National Hockey League, No. 07 Civ.
8455, 2007 U.S. Dist. LEXIS 81446,
2007 WL 3254421, at *7 (S.D.N.Y. Nov.
2, 2007), aff'd, 270 Fed. App'x 56 (2d
Cir. 2008) (noting in dicta that some
courts have "[upheld] agreements among
parents of a joint venture not to compete
in the market in which the joint venture
operates" without suggesting that all such
agreements are lawful).
115 American Needle, 560 U.S. at 201
(quotation marks and citations [*43]
omitted).
Third, defendants argue that territorial exclusivity encourages the RSNs to invest in
higher-quality
telecasts,
including
high-definition cameras, announcers, audio-visual effects, and related pre-game and
post-game programming. However, the incentive for added investment is inflated profit
stemming from limited competition. "[T]he
Rule of Reason does not support a defense
based on the assumption that competition itself
Page 17
is unreasonable."116 To the extent that the

Leagues defend content exclusivity rather than
territorial exclusivity, Dr. Noll predicts that increased competition would overall improve
output and consumer satisfaction, an argument
that applies with equal force to the quality of
telecasts.117
116 National Soc'y of Prof'l Eng'rs v.
United States, 435 U.S. 679, 695-96, 98
S. Ct. 1355, 55 L. Ed. 2d 637 (1978)
("The Sherman Act reflects a legislative
judgment that ultimately competition will
produce not only lower prices, but also
better goods and services."). Cf. FTC v.
Superior Ct. Trial Lawyers Ass'n, 493
U.S. 411, 423, 110 S. Ct. 768, 107 L. Ed.
2d 851 (1990) (rejecting argument that
otherwise unlawful boycott to increase
lawyer fees is justifiable by improved
quality of representation).
117 See Noll Decl. at 107, 109.
Fourth, defendants [*44] argue that the
territorial restrictions foster competitive balance between the teams and prevent excessive
disparities in team quality. Maintaining competitive balance is a legitimate and important
goal for professional sports leagues.118 However, it is unclear whether the territorial restrictions at issue here really serve that purpose.
On the one hand, the restrictions protect less
popular clubs from competition with more
popular teams in their own HTTs. On the other
hand, the system requires small market teams
to refrain from broadcasting in larger, more
populous markets, while big market teams
forego only smaller, less populous markets.119 It
is not immediately clear whether the restrictions help or harm competitive balance
overall.120
118 See American Needle, 560 U.S. at
204 (noting that "'the interest in maintaining a competitive balance' among
'athletic teams is legitimate and important'") (quoting NCAA, 468 U.S. at
117). See also Salvino, 542 F.3d at 331

(stating that "the need for competitive
balance among the Clubs is essential to
the well-being of [professional sports]
Leagues").
119 See Noll Decl. at 117.
120 See id. ("Economic research provides no reason to believe that restrictions [*45] in competition for television rights contribute to competitive
balance, no matter how balance is defined, and some reason to believe that
these restrictions actually make balance
worse.").
Defendants also claim that the revenue
sharing aspects of the OOM packages and national broadcasts foster competitive balance.
However, there is support in the economic
community for the theory that revenue sharing
in fact exacerbates competitive imbalance.121
Even accepting the premise that revenue sharing is beneficial, defendants have not explained
why broadcasting contracts are a better mechanism than more direct, limited forms of revenue
sharing.122
121 See id. at 118-19.
122 See id. at 119-20 ("Both leagues
already share revenues. . . . If the leagues
wish to share revenue more equally,
simply increasing the share of total revenue that is shared is a much simpler
mechanism for achieving this goal. . . .").
Fifth, defendants claim that they have a legitimate pro-competitive interest in maintaining
"a balance between the promotion of [hockey
and baseball] as [] national game[s] and the
need to incentivize Clubs to build their local
fan bases."123 Aside from the fact that these two
goals appear to conflict, [*46] defendants
have not explained what the ideal balance
would be, or how they might quantify it. There
is no objective measure the Leagues could aspire to attain. Therefore defendants cannot establish that this particular balance between lo-
Page 18
cal and national interests is better for consumers, or for demand, than the balance that would
prevail in a free market. Moreover, the Leagues
purport to bolster regional interest and team
loyalty by consciously depriving consumers of
out-of-market games they would prefer, which
is generally not a permissible aim under the
antitrust laws.124
123
NHL Mem. at 2. Accord MLB
Mem. at 15-16.
124 See NCAA, 468 U.S. at 107 n.34
("Perhaps the most pernicious aspect is
that under the controls, the market is not
responsive to viewer preference. . . .
Many games for which there is a large
viewer demand are kept from the viewers, and many games for which there is
little if any demand are nonetheless televised.") (quotation marks and citations
omitted).
Finally, defendants argue that the number
of telecasts created and broadcast is greater
under the territorial restrictions than it would be
in the plaintiffs' "but-for" world. According to
defendants, while almost every [*47] game is
currently available to consumers in one format
or another (national broadcast, local RSN, or
OOM package), a system dependent on consumer demand could not guarantee that every
game would be available everywhere because
less popular teams would struggle to get their
games produced or televised on their own.125
Destroying the HTTs would also destroy content exclusivity because OOMs and both competing teams would be able to sell the same
game in the same areas.126 As a result, RSNs
would be loathe to give their telecasts to the
Leagues to create OOM packages, depriving
consumers of the ability to access any and all
out-of-market games as they do now.127 Similarly, national broadcasters would refuse to enter into national contracts without the assurance
of exclusivity.128 Because plaintiffs do not challenge the legality of the OOM packages or national broadcasts, defendants argue, the territo-
rial system is also immune from challenge as a

matter of law.
125
See MLB Mem. at 14, 19-20;
NHL Mem. at 13 n.6, 21-22. See also
MLB Mem. at 19 (arguing that "certain
currently less popular or less successful
clubs inevitably will be inherently unable
to compete fully effectively on their own
[*48] in the national market for the sale
of live game video rights" (quotations
omitted)).
126 See MLB Mem. at 13.
127 See id. at 14 n.28.
128 See NHL Mem. at 11, 14 n.7.
These arguments are far from compelling.
Just because plaintiffs do not directly challenge
the legality of the OOM packages and national
broadcasts does not mean that preserving them
is sufficient justification for the territorial
rules.129 Even the complete disappearance of
OOM packages would not necessarily cause
consumer harm if the same content could be
distributed in another form (such as by RSNs
nationwide). The OOMs are simply one form
of delivering the content to consumers -- a form
made necessary by the territorial rules themselves. Moreover, it is certainly conceivable
that the OOMs would continue to exist absent
the territorial restrictions, given the low added
cost of creating the packages and the convenience of bundling to many consumers.130
129
The same argument applies to
content exclusivity, which, although not
directly offending the antitrust laws, may
nonetheless fail to justify a range of other
anticompetitive effects.
130 See Noll Decl. at 114 ("Because
the profit margin of the league package is
so large, the league [*49] could lose a
very large share of the customers for its
league package and still profit from continuing to offer it. Likewise . . . [t]he
continued existence of national telecasts
of games in college sports demonstrates
Page 19
that such national packages are financially viable even when the broadcaster
does not enjoy exclusive rights to broadcast a particular sport in a particular time
period.").
Defendants' assumption that market demand would be insufficient to ensure access to
the same number of games is questionable.131
Indeed, the Television Defendants insist that
the sports rights are so valuable that they would
compete for those rights vigorously even in the
absence of the territorial rules.132 Moreover, "[a]
restraint that has the effect of reducing the importance of consumer preference in setting
price and output is not consistent with th[e]
fundamental goal of antitrust law."133 While defendants have identified some conceivable
procompetitive effects from the territorial rules,
plaintiffs have produced equally plausible (if
not more plausible) arguments in opposition. It
certainly cannot be said that defendants have
established procompetitive benefits to the
economy as a matter of [*50] law.
131 See id. at 95-97, 110.
132
See Comcast Mem. at 7; DIRECTV Mem. at 13-14.
133 NCAA, 468 U.S. at 107.
Defendants cite Virgin Atlantic Airways
Ltd. v. British Airways PLC for the proposition
that plaintiffs must identify a less restrictive
alternative for any procompetitive effect defendants can identify, even if the overall effect
on the economy is overwhelmingly anticompetitive.134 Such an interpretation, however, is
inconsistent with the Supreme Court's mandate
that "the essential inquiry [under the rule of
reason] . . . [is] whether or not the challenged
restraint enhances competition."135 Indeed, in
United States v. Visa U.S.A., Inc., the Second
Circuit balanced the alleged procompetitive and
anticompetitive effects of the exclusivity rules
before requiring the Government to propose
any less restrictive alternatives.136
134 See 257 F.3d 256, 264 (2d Cir.

2001).
135 NCAA, 468 U.S. at 104. Accord
Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877, 886, 127 S. Ct.
2705, 168 L. Ed. 2d 623 (2007) ("The
rule of reason is designed and used to
ascertain whether transactions are anticompetitive or procompetitive.").
136 See 344 F.3d 229, 243 (2d Cir.
2003) (affirming district court's finding
of Section 1 liability
[*51] after
non-jury trial because "the defendants
have failed to show that the anticompetitive effects of their exclusionary rules are
outweighed by procompetitive benefits").
Most
of
defendants'
claimed
pro-competitive effects are disputable, and the
overall effect on the economy is even less conclusive, especially in light of Dr. Noll's testimony that abolishing the territorial restrictions
would decrease the cost of sports programming
without diminishing output.137 Far from being
implausible, plaintiffs' "but-for" world is at
least as likely as defendants' prognostications.
Plaintiffs have raised a genuine issue of material fact regarding the overall competitive impact
of the territorial rules, foreclosing the possibility of summary judgment for the Leagues under
the rule of reason.
137
See Noll Decl. at 104, 109-10.
C. The Television Defendants Are Not Entitled to Summary Judgment

1. Liability for the Vertical Agreements
The Television Defendants argue that
downstream distributors who simply implement
the restrictions of an upstream conspiracy
through vertical agreements, without further
involvement, cannot be deemed participants in
the conspiracy as a matter of law.138 They argue
that the [*52] RSNs and MVPDs played no
role in creating the territorial restrictions, which
Page 20
were presented to them on a non-negotiable

basis, and have never sought to enforce the restrictions against other horizontal participants.
Therefore, they have not engaged in any "concerted action" and cannot be held liable for the
territorial limits in the Rights Agreements even
if those limits violate the Sherman Act.
138
See Comcast Mem. at 1; DIRECTV Mem. at 10-12, 18.
The Television Defendants cite Bowen v.
New York News, Inc.,139 Fuchs Sugars & Syrups, Inc. v. Amstar Corp.,140 Levitch v. Columbia Broadcasting System, Inc.,141 and Virgin Atlantic142 for the proposition that a downstream
entity must either request the restraint or attempt to enforce the restraint in order to be liable. However, none of these cases support the
Television Defendants' assertions. The courts in
Fuchs, Virgin Atlantic, and Levitch found insufficient evidence of any agreement between
the downstream and upstream entities. In all
three cases, the upstream entity implemented a
unilateral policy change that did not require
assent, participation, or forbearance of any kind
by the alleged conspirators.143 Here, contracts
with the downstream [*53] entities explicitly
incorporate the challenged restrictions. The
Leagues require the assent and assistance of the
RSNs to implement the restrictions, and the
RSNs require the same level of participation
from the MVPDs.
139 522 F.2d 1242 (2d Cir. 1975).
140 602 F.2d 1025 (2d Cir. 1979).
141 495 F. Supp. at 649.
142 257 F.3d at 256.
143 See id. at 263 (airline's unilateral
decision to offer discounts and incentives
to corporate partners and travel agents
did not constitute concerted action with
the partners and agents); Fuchs, 602 F.2d
at 1031 (finding that sugar manufacturer
made unilateral decision to change its
policy in a manner that benefitted the
defendant brokers, but without any in-
volvement by the brokers); Levitch, 495

F. Supp. at 673 (finding no agreement
between broadcast networks and affiliate
television stations where networks made
unilateral decision to use only documentaries produced in-house, and "nothing
contained in any of the affiliation agreements, or any of the other contractual
agreements executed by the network defendants and their affiliates, [] preclude[d] the affiliates from purchasing
independently produced documentary or
news programs").
The Television Defendants also [*54] cite
Bowen, in which a newspaper publisher
switched to a system of exclusive franchise
dealers instead of the many competing independent dealers it had previously employed.
The newspaper limited each franchise dealer to
a specified exclusive territory, and attempted to
cut off supply to the independent dealers to
prevent competition. The court mused in dicta
that "unilateral establishment and enforcement
[by an upstream entity] of exclusive territories
and customer limitations . . . might conceivably
be upheld."144 However, the court refrained from
deciding the question given that the newspaper
and the franchise dealers had agreed to cut off
supply to the independent dealers, which the
court found to be a violation of the Sherman
Act. Although the court noted that the dealers
had asked the newspaper to cut off supply to
the independents, it did not necessarily rely on
that fact in reaching its conclusion. Instead, it
emphasized that the newspaper's conduct was
"undertaken pursuant to an agreement with the
franchise dealers and for the purpose of restricting" competition.145
144
145
Bowen, 522 F.2d at 1256.

Id.
None of the decisions relied on by the Television Defendants held that a downstream
[*55] entity must request or enforce a restraint
in order to be liable for adopting it through
Page 21
agreement.146 Nor did they indicate that each

party to an allegedly unlawful agreement must
have equal or even substantial negotiating
power in adopting the agreement's terms.147
Moreover, a downstream entity need not participate in the initial creation of the restraints in
order to be liable for adopting them later. "It is
elementary that an unlawful conspiracy may be
and often is formed without simultaneous action or agreement on the part of the conspirators."148
146
The Television Defendants cite
dicta from Fuchs for the proposition that
both parties to an unlawful agreement in
restraint of trade must have "knowing
and active participation . . . in a scheme
to coerce compliance with anticompetitive activity." Fuchs, 602 F.2d at 1032.
The Television Defendants argue that
"mere acceptance of vertical distribution
rights" is insufficient to meet that standard. Reply Memorandum of Law in
Support of Television Defendants' Motions for Summary Judgment at 2. However, Fuchs based its holding on the fact
that the alleged co-conspirators were not
independent entities, and that the challenged action was [*56] unilateral rather than the product of agreement. It did
not hold that "mere acceptance" of contractual terms was insufficient participation to establish concerted action.
Additionally, a fact finder could reasonably conclude that the Television Defendants actively participated in a
"scheme to coerce compliance" by signing the Rights Agreements knowing their
competitors would be subject to the same
terms, even if they did not personally attempt to enforce the restrictions. Moreover, there is evidence that the RSNs and
MVPDs have on some occasions tried to
protect and preserve the territorial structure. See infra Part V.C.2.
147
The Television Defendants also
cite Toscano v. Professional Golfers'
Ass'n, 258 F.3d 978 (9th Cir. 2001), in
which the Ninth Circuit found no concerted action between a sports league and
its sponsors because the league independently imposed certain contractual
restrictions and the sponsors merely accepted them. See id. at 985 ("The [sponsor] defendants played no role in the creation or enforcement of those rules and
regulations. . . ."). However, Toscano is
not binding law in the Second Circuit.
Moreover, there was no evidence in
Toscano that the "sponsors [had] [*57]
an economic interest in the eligibility and
participation rules challenged." Toscano
v. PGA Tour, Inc., 70 F. Supp. 2d 1109,
1117 n.10 (E.D. Cal. 1999), aff'd sub
nom. Toscano v. Professional Golfers
Ass'n, 258 F.3d 978 (9th Cir. 2001). In
fact, the district court noted that the rules
might actually contravene the sponsors'
economic interests. See id. at 1117.
148 Interstate, 306 U.S. at 227 (finding that "each distributor early became
aware that the others had joined, [and]
[w]ith that knowledge [] renewed the arrangement and carried it into effect for
the two successive years"). Accord United States v. Masonite Corp., 316 U.S.
265, 275, 62 S. Ct. 1070, 86 L. Ed. 1461,
1942 Dec. Comm'r Pat. 777 (1942) (Even
if it were "not clear at what precise point
of time each [defendant] became aware
of the fact that its contract was not an
isolated transaction but part of a larger
arrangement . . . it is clear that as the arrangement continued each became familiar with its purpose and scope."); Ross
v. American Exp. Co., No. 04 Civ. 5723,
2014 U.S. Dist. LEXIS 50550, 2014 WL
1396492, at *26 (S.D.N.Y. Apr. 10,
2014) ("Indeed, interdependent parallel
conduct may be simultaneous or sequential.").
Page 22
Indeed, it would defy common sense to require proof that the Television Defendants enforced [*58] the territorial restrictions when
they knew that the structure would be secured
through a series of parallel contracts effectively
policed by the Leagues. Nevertheless, plaintiffs
have produced some evidence that the Television Defendants have defended the territorial
structure on the rare occasions that it has been
threatened. In 2008, MLB attempted to adjust
the territorial lines to serve customers who
could not watch local games, which would
have required clubs and RSNs to cede some
territory to the OOM packages. The Comcast
RSNs vehemently opposed the proposal and
sent the following letter to MLB:
If MLB were to adopt any new
MLB rule permitting MLB Extra
Innings and/or MLB.TV to be distributed in unserved or underserved portions of a club's exclusive home television territory, the
scope of the exclusivity purchased
by the RSN would be unilaterally
changed and the financial impact
on the prospects and performance
of the Comcast RSNs (and, by implication, on the clubs whose rights
they hold) would likely be immediate and significant. Accordingly,
the Comcast RSNs are unlikely to
consider favorably the release of
any portion of a home television
territory as to which an RSN currently [*59] has exclusive rights.
In providing distribution information herewith, the Comcast
RSNs specifically reserve all of
their respective rights and remedies with respect to any change in
MLB's current rules and practices
that negatively impacts the clubs'
respective home television territories and the breadth of the exclusive rights heretofore granted to
their
corresponding
149
RSNs.
Comcast
Moreover, the MVPDs' 2007 contracts with

MLB for the television OOM package have
clauses that read in part: "[t]he Home Television Territory of any Club shall not be materially expanded by [MLB] except in connection
with and directly related to any increase or decrease in the number of franchises . . . or in
connection with any club relocation."150 While
the clause does not permit the MVPDs to enforce the territorial restrictions against competitors, it applies pressure on the Leagues to retain the current territorial restrictions or face
monetary repercussions. Similarly, former
MLB President Robert DuPuy testified that the
RSNs "insist" on "changed circumstances"
clauses in the Rights Agreements that permit
the RSNs to pay less if their exclusivity is
abridged.151 The above examples indicate that
the [*60] Television Defendants are more
than passive participants in a unilaterally imposed restriction.
149
Re: Request for Information -MLB Extra Innings and MLB.TV, Ex. 24
to 5/24/14 Declaration of Edward A.
Diver, plaintiffs' counsel ("Diver Decl."),
at 2. Defendants argue that Comcast was
simply preserving its exclusive right to
broadcast local games through its entire
in-market territory, rather than protecting
itself
from
the
broadcasts
of
out-of-market games. Nonetheless, the
letter reveals one mechanism by which
the Television Defendants can "enforce"
the various forms of exclusivity they
have purchased from the League Defendants.
150 MLB Contract with DIRECTV for
Extra Innings, Ex. 11 to Diver Decl., at
22-23; MLB Contract with iN Demand
for Extra Innings, Ex. 12 to Diver Decl,
at 16. According to plaintiffs, iN de-
Page 23
mand's majority owner is Comcast, and

Comcast CEO Brian Roberts played a
central role in determining iN demand's
carriage of Extra Innings. See Pl. Mem.
at 70.
151 10/23/13 DuPuy Dep., Ex. 42 to
Diver Decl., at 74:24-75:5.
2. The Existence of a Horizontal Agreement
The Television Defendants argue that there
are no plus factors that might signal interdependent action among the RSNs [*61] and
MVPDs as opposed to merely parallel conduct.
They point out that the Rights Agreements with
the various RSNs are staggered and often have
terms of several years, making coordinated action difficult.152 They further argue that plaintiffs have produced no evidence of a high volume of interfirm communications among the
Television Defendants.153 Finally, they argue
that it is in the economic interest of an RSN to
enter into a Rights Agreement regardless of
what the other RSNs do.154 In the absence of
plus factors, parallel conduct is insufficient to
survive summary judgment on a theory of horizontal conspiracy.
152 See DIRECTV Mem. at 2.
153 Plaintiffs have produced one email
exchange indicating that in 2010, Comcast asked DIRECTV's Pittsburgh RSN
to lift its blackout of Flyers games in
Penguin territory in exchange for increased distribution of a DIRECTV RSN
on Comcast systems in Pennsylvania.
DIRECTV apparently declined the offer.
See Pl. Mem. at 62; 7/9/10-7/14/10 Email
Exchange, Ex. 13 to Diver Decl.
154
See Comcast Mem. at 7; DIRECTV Mem. at 1-2.
However, the potential for significantly increased profits from the restraint is a "strong
motive for concerted action."155 "This plus factor [*62] speaks to whether [the Television
Defendants] also had a 'rational economic mo-
tive' to adopt those clauses jointly, as opposed

to going it alone."156 The Television Defendants
argue that the plaintiffs' alleged conspiracy
makes no economic sense because it would inflate the sports rights fees paid by the Television Defendants to the Leagues, and no entity
would "conspire[] to pay more than they would
otherwise pay."157 This argument ignores the
fact that the Television Defendants pay higher
rights fees because their revenues from consumers are correspondingly greater.158
155 Interstate, 306 U.S. at 222.
156
Ross, 2014 U.S. Dist. LEXIS
50550, 2014 WL 1396492, at *28 (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 596, 106
S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).
157 Comcast Mem. at 1.
158 See Noll Decl. at 84, 104-105.
Indeed, plaintiffs have presented ample evidence that the territorial restrictions are valuable to the Television Defendants. Boston Red
Sox owner John Henry stated that the "primary
benefit" of the territorial restrictions is "not to
have to compete with other clubs or with []
baseball itself in your home television territory."159 According to Henry, such exclusivity is
"very valuable to broadcasters" and therefore
[*63] "important to all clubs."160 Similarly, John
Tortora, former NHL Director of Team Television, testified that RSNs would be harmed by
"bringing another club's games into another
team's sphere of influence" because "the benefit
of [the RSNs'] bargaining with [the clubs] [is]
exclusivity in the marketplace."161 In fact, the
League Defendants claim that the territorial
restrictions are so central to the profitability of
broadcasting that the RSNs would stop producing many telecasts without them.162 The potential for higher revenues stemming from collective action constitutes a strong motive to
collude.163
159
1/12/14 Henry Dep., Ex. 43 to
Diver Decl., at 63:19-64:1.
Page 24
160
Id. at 63:18, 64:10. Henry also
testified that he was not aware of any
other purpose for the territorial restrictions aside from protecting the clubs
from competition in their home territories.
161 10/8/13 Tortora Dep., Ex. 45 to
Diver Decl., at 253:1-10.
162
See MLB Mem. at 13-14, 19;
NHL Mem. at 13 n.6, 21-22.
163 While plaintiffs have produced little direct evidence at this stage that the
MVPDs profit from the territorial restrictions, it is a plausible inference that
each entity in the chain of distribution
negotiates for some [*64] share of the
revenue generated through limited competition and increased prices. At this
stage all reasonable inferences must be
drawn in favor of the non-moving party.
See Rivera, 743 F.3d at 19.
Additionally, plaintiffs plausibly argue that
the terms of the Rights Agreements and Affiliation Agreements would contravene the individual economic interests of the Television
Defendants in the absence of the territorial restrictions. Although the Television Defendants
would likely continue to purchase broadcasting
rights without the restrictions, plaintiffs have
adduced evidence that they would not do so at
the same price. In that sense their behavior is
contingent on the knowledge that other RSNs
and MVPDs are bound by the same contractual
limits. Given the clear existence of parallel
conduct and several plausible plus factors, a
fact-finder could permissibly conclude that the
RSNs' and MVPDs' decisions to enter the contracts -- at the prices negotiated -- were interdependent rather than unilateral.
Defendants cite PepsiCo, Inc. v. Coca-Cola
Co. to argue that a series of parallel vertical
restrictions, even coupled with knowledge that
the restrictions will be uniformly enforced, is
insufficient [*65] to establish the existence of
a horizontal agreement. In PepsiCo, Coca-Cola
prohibited its distributors from distributing

Pepsi products.164 Although Coca-Cola assured
the distributors that it would enforce the same
restriction against the other distributors and
encouraged them to report violations, the court
found insufficient evidence of a horizontal
agreement.165 However, in PepsiCo there was no
evidence that the distributors benefitted from
the restriction or paid higher prices to Coca-Cola to obtain it. Here, by contrast, the
combination of parallel conduct, knowledge of
assured enforcement, strong motive to conspire,
attempts to protect the restrictions, and evidence that the Television Defendants would not
have entered the contracts at the prices prescribed but for the territorial restrictions, is sufficient evidence from which a fact finder could
infer a tacit horizontal agreement among the
RSNs and MVPDs.
164
See 315 F.3d at 104 (affirming
district court's grant of summary judgment in favor of Coca-Cola).
165 See id. at 110.
Whether plaintiffs have presented sufficient
evidence to demonstrate concerted action between the Television Defendants and the
League Defendants, or a tacit [*66] agreement
among the Television Defendants, is difficult to
discern at this stage. Consequently, these questions are not suitable for disposition as a matter
of law and are properly reserved for the fact
finder in light of the totality of the evidence
presented at trial. It is an unfortunate trend that
judges increasingly
resolve trial-worthy disputed
fact issues or characterize cases as
implausible, thereby disposing of
them on motion rather than allowing them to proceed to trial. . . .
[A] motion designed simply for
identifying trial-worthy issues has
become, on occasion, a vehicle for
resolving trial-worthy issues. . . .
The effect is to compromise the
Page 25
due process underpinnings of the

day-in-court principle and the constitutional jury trial right without
any empirical basis for believing
that systemic benefits are realized
that offset these consequences.166
Because plaintiffs have presented sufficient

evidence to raise a genuine dispute of material
fact, the Television Defendants' motion for
summary judgment is denied.
166
Arthur R. Miller, Simplified
Pleading, Meaningful Days in Court, and
Trials on the Merits: Reflections on the
Deformation of Federal Procedure, 88
N.Y.U. L. Rev. 286, 312 (2013) [*67]
(discussing the increasing use of summary judgment and other trends in federal civil procedure). Accord S.E.C. v. EagleEye Asset Mgmt., 975 F. Supp. 2d
151, 159 (D. Mass. 2013) ("Too often,
judges substitute their own judgment for
that of the jury. . . . This cognitive illiberalism has been rightly condemned as a
form of judicial arrogance. . . . Juries
have not only the duty, but also the right
to decide cases. Encroaching upon the
province of juries to decide questions of
fact, such as the determination of a defendant's state of mind, violates not only
the constitutional rights of the parties in a
suit, but also the constitutional rights of
the jurors themselves.").
D. Illinois Brick Does Not Bar the Television
Plaintiffs' Suit
I previously held that the first
non-conspirator in the chain of distribution is
entitled to collect damages from all of the
co-conspirators.167 The television plaintiffs purchased the relevant sports programming from
the MVPDs. Therefore, their standing to sue
the other defendants is contingent on the
MVPDs' role in the conspiracy. As discussed
previously, the television plaintiffs have produced sufficient evidence that a reasonable
fact-finder could find the [*68] MVPDs complicit in the alleged conspiracy. Therefore, the
television plaintiffs' claims are not barred at
this stage.
167 See Laumann, 907 F. Supp. 2d at
481-83.
E. The Section 2 Claim
The League Defendants do not address the
merits of plaintiffs' monopolization claim under
Section 2 of the Sherman Act. The MLB Defendants do not address the Section 2 claim at
all, and the NHL Defendants argue only that
the Section 2 claim must be dismissed because
the Section 1 claim fails.168 Because the League
Defendants' motion for summary judgment on
the Section 1 claim is denied, their sole argument for dismissal of the Section 2 claim has
no merit.
168 See NHL Mem. at 22 ("Plaintiffs'
Section 2 claim fails for the same reasons
as their Section 1 claim. . . . [C]onduct
that fails to give rise to a claim under
Section 1 cannot be the basis of a monopolization scheme under Section 2.")
(quotation marks and citations omitted).
VI. CONCLUSION
For the foregoing reasons, all four motions
for summary judgment are DENIED in full.
The Clerk of the Court is directed to close these
motions [Dkt. Nos. 180, 183, 212, 216, 224 in
Laumann, 12 Civ. 1817, and Dkt. Nos. 239,
240, 241, 261, 271, 275, 280 in Garber, 12 Civ.
[*69] 3704]. A conference is scheduled for
August 20, 2014 at 4:30 pm.
SO ORDERED:
/s/ Shira A. Scheindlin
Shira A. Scheindlin
Page 26
U.S.D.J.
Dated: August 4, 2014
New York, New York
EXHIBIT B
Page 1
FERNANDA GARBER, MARC LERNER, DEREK RASMUSSEN,

and GARRETT TRAUB, representing themselves and all other similarly situated, Plaintiffs, - against - OFFICE OF THE COMMISSIONER OF BASEBALL, et al., Defendants.
12 Civ. 3704 (SAS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK
2014 U.S. Dist. LEXIS 133743; 2014-2 Trade Cas. (CCH) P78,907
September 22, 2014, Decided

September 22, 2014, Filed
PRIOR HISTORY: Laumann v. NHL, 2014
U.S. Dist. LEXIS 109951 (S.D.N.Y., Aug. 4,
2014)
COUNSEL: [*1] For Plaintiffs: Edward A.
Diver, Esq., Howard I. Langer, Esq., Peter E.
Leckman, Esq., Langer Grogan & Diver, P.C.,
Philadelphia, Pennsylvania; Kevin M. Costello,
Esq., Gary E. Klein, Esq., Klein Kavanagh
Costello, LLP, Boston, Massachusetts; Michael
Morris Buchman, Esq., John A. Ioannou, Esq.,
Pomerantz Haudek Block Grossman & Gross
LLP, New York, New York; Alex Schmidt,
Esq., Mary Jane Fait, Esq., Wolf Haldenstein
Adler Freeman & Herz LLP, New York, New
York; Robert LaRocca, Esq., Kohn, Swift &
Graf, P.C., Philadelphia, Pennsylvania; J.
Douglas Richards, Esq., Jeffrey Dubner, Esq.,
Cohen, Milstein, Sellers & Toll, PLLC, New
York, New York.
For Office of the Commissioner of Baseball,
Major League Baseball Enterprises Inc., MLB
Advanced Media L.P., MLB Advanced Media,
Inc., Athletics Investment Group, LLC, The

Baseball Club of Seattle, L.L.P., Chicago
White Sox, Ltd., Colorado Rockies Baseball
Club, Ltd., The Phillies, Pittsburgh Baseball,
Inc., and San Francisco Baseball Associates,
L.P., Defendants: Bradley I. Ruskin, Esq., Carl
Clyde Forbes, Esq., Helene Debra Jaffe, Esq.,
Jennifer R. Scullion, Esq., Robert Davis
Forbes, Esq., Proskauer Rose LLP, New York,
New York; Thomas J. Ostertag, [*2] Esq.,
Senior Vice President and General Counsel,
Office of the Commissioner of Baseball, New
York, New York.
For Comcast Corporation, Comcast SportsNet
Philadelphia,
L.P.,
Comcast
SportsNet
Mid-Atlantic L.P., Comcast SportsNet California, LLC, and Comcast SportsNet Chicago,
LLC, Defendants: Arthur J. Burke, Esq., James
W. Haldin, Esq., Davis Polk & Wardwell, New
York, New York.
JUDGES: Shira A. Scheindlin, United States
District Judge.
Page 2
OPINION BY: Shira A. Scheindlin

OPINION
OPINION AND ORDER
12 Civ. 3704 (SAS)
SHIRA A. SCHEINDLIN, U.S.D.J.:
I. BACKGROUND
On August 8, 2014, I denied defendants'
joint motion for summary judgment in Laumann v. National Hockey League and Garber v.
Major League Baseball.1 I ruled that the Office
of the Commissioner of Major League Baseball
and other entities related to Major League
Baseball ("MLB Defendants") were not
shielded from antitrust liability by the
well-established "baseball exemption." On
August 27, 2014, the MLB Defendants moved
to certify an interlocutory appeal on that ruling.
On September 8, 2014, Comcast filed a letter
on behalf of all television defendants involved
in the Garber case ("Television Defendants"),
joining the MLB Defendants' motion.2 For the
reasons set forth [*3] below, the motion is
DENIED.
1
See Laumann v. National Hockey
League, et al., No. 12 Civ. 817, 2014
U.S. Dist. LEXIS 109951 and No. 12
Civ. 3704, 2014 WL 3900566 (S.D.N.Y.
Aug. 8, 2014). For the purposes of this
Opinion, familiarity with the underlying
facts is assumed.
2 See Television Defendants' Letter of
September 8, 2014 ("TV Def. Let.").
Federal Baseball Club of Baltimore v. National

League of Professional Baseball Clubs, the
Supreme Court held that "the business [of]
giving exhibitions of baseball" was not subject
to the Sherman Act.4 Since then, the exemption
has been upheld by the Supreme Court numerous times, most recently in Flood v. Kuhn,
where it explained that the exemption, despite
being "an aberration,"5 should be modified by
"congressional, and not judicial, action."6 In
1998, Congress passed the Curt Flood Act,
which effectively removed employment-related
agreements from the baseball exemption. The
Act did not alter the applicability of the antitrust laws to "any conduct, acts, practices, or
agreements other than . . . employment of major league baseball players."7
3 See Laumann, 2014 WL 3900566, at
*5-*6.
4 259 U.S. 200, 208, 42 S. Ct. 465, 66
L. Ed. 898, 20 Ohio L. Rep. 211(1922).
5 407 U.S. 258, 282, 92 S. Ct. 2099,
32 L. Ed. 2d 728 (1972)
6 Id. at 285.
7 15 U.S.C. 26b(b).
B. Interlocutory Appeals [*4]
Interlocutory appeals of district court decisions are governed by 28 U.S.C. 1292(b). For
an interlocutory appeal to be appropriate, the
underlying order must "(1) involve a controlling question of law (2) over which there is
substantial ground for difference of opinion,"
and the moving party must also show that "(3)
an immediate appeal would materially advance
the ultimate termination of the litigation."8
8
II. APPLICABLE LAW

A. The Baseball Exemption
Because my August 8, 2014 opinion discusses the baseball exemption at length,3 I
summarize it only briefly here. In 1922, in
28 U.S.C. 1292(b).
Interlocutory appeals are presumptively

disfavored. Leave to appeal is warranted only
when the moving party can point to "exceptional circumstances"9 sufficient to "justify a
departure from the basic policy of postponing
appellate review until after the entry of a final
Page 3
judgment."10 Interlocutory appeal "is not intended . . . to provide early review of difficult
rulings in hard cases."11 Rather, it is appropriate
only in "extraordinary cases where appellate
review might avoid protracted and expensive
litigation," and where it poses no threat of
"piecemeal litigation."12 Whether an interlocutory appeal is warranted lies squarely within the
discretion of the district court.13 Indeed, even
when the elements of section 1292(b) are satisfied, the district court retains "unfettered discretion" to deny certification.14
9 Williston v. Eggleston, 410 F. Supp.
2d 274, 276 (S.D.N.Y. 2006).
10
In re Madoff, No. 08 Civ. 1789,
2010 U.S. Dist. LEXIS 81492, 2010 WL
3260074 (S.D.N.Y. Aug. 6, 2010) (citing
In re Flor, 79 F.3d 281, 284 (2d Cir.
1996) (quotation [*5] marks and citations omitted)).
11
In re Levine, No. 03 Civ. 7146,
2004 U.S. Dist. LEXIS 6025, 2004 WL
764709, at *2 (S.D.N.Y. Apr. 9, 2004).
12
In re AroChem Corp., 176 F.3d
610, 619 (2d Cir. 1999). Accord Ted
Lapidus, S.A. v. Vann, 112 F.3d 91, 95
(2d Cir. 1997).
13 See, e.g., Swint v. Chambers Cnty.
Comm'n, 514 U.S. 35, 47, 115 S. Ct.
1203, 131 L. Ed. 2d 60 (1995)
("[D]istrict courts [have] first line discretion to allow interlocutory appeals."); In
re Kassover, 343 F.3d 91, 94 (2d Cir.
2003); DM Rothman Co. v. Cohen Mktg.
Int'l, Inc., No. 98 Civ. 7905, 2006 U.S.
Dist. LEXIS 52073, 2006 WL 2128064,
at *1 (S.D.N.Y. July 27, 2006).
14
National Asbestos Workers Med.
Fund v. Philip Morris, Inc., 71 F. Supp.
2d 139, 162-63 (E.D.N.Y. 1999) (assuming the statutory criteria were met
but nonetheless denying certification).
IV. DISCUSSION
Because the applicability of the baseball

exemption is indisputably a "controlling question of law,"15 I move directly to the second and
third elements of section 1292(b).
15
Neither side disputes that a successful interlocutory appeal on the baseball exemption issue would "terminate[]
the action as to [the MLB Defendants]."
Defendants' Memorandum in Support of
Certification ("Def. Mem.") at 8.
A. There Is No "Substantial Ground for
Difference of Opinion" Regarding the Baseball Exemption
For an issue to create "substantial ground
for difference of opinion,"16 more than simple
disagreement is required. Rather, the element is
satisfied when "(1) there is conflicting authority
on the issue, or (2) the issue is particularly difficult and of first impression for the Second
Circuit."17
16 28 U.S.C. 1292(b).
17 Florio v. New York, No. 06 Civ.
6473, 2008 U.S. Dist. LEXIS 59022,
2008 WL 3068247 (S.D.N.Y. Aug.
5,2008), at *1.
Neither condition is met here. First, the
MLB Defendants argue that, contrary to my
August 8, 2014 ruling, "the Supreme Court and
all Circuit Courts cases consistently hold that
the exemption applies broadly to [*6] the
'business of baseball,' not just . . . to certain aspects of that business."18 Accordingly, the MLB
Defendants conclude that substantial ground for
difference of opinion exists because "a trial
court" -- that is, this Court -- "[has] rule[d] in a
manner which appears contrary to the rulings of
all Courts of Appeals which have reached the
issue."19 But for the reasons set forth in my
August 8, 2014 opinion, I do not believe my
ruling is contrary to existing law.20 That issue
has already been decided, and I decline to reopen it here.
Page 4
18 Def. Mem. at 9-10.

19 Id. at 10 (internal citations omitted).
20 See Laumann, 2014 WL 3900566,
at *7-*8.
Second, the MLB Defendants suggest that
"substantial ground for difference of opinion
'may arise where an issue is difficult and of
first impression.'"21 In other words, even if my
August 8, 2014 ruling does not clash with other
case law, if it implicates a question on which
"the Second Circuit has not spoken,"22 interlocutory appeal could still be warranted. But the
silence of an appellate court is not enough to
satisfy section 1292(b). If it were, interlocutory
appeals would be the norm, not the exception.
Rather, the "difficult and of first impression"
language refers to situations in which Second
Circuit input could help resolve [*7] disagreements among other Courts of Appeals.
Because that is not the case here, the MLB Defendants' argument is misplaced.
21 Def. Mem. at 12 (quoting Skylon
Corp. v. Guilford Mills, 901 F. Supp.
711, 718 (S.D.N.Y. 1995)).
22
Dinsmore v. Squadron, Ellenoff
Plesent, Sheinfeld & Sorkin, 945 F. Supp.
84, 87 (S.D.N.Y. 1996).
B. Interlocutory Appeal Will Not "Materially Advance the Ultimate Termination of
the Litigation"
Additionally, I am not persuaded that an
interlocutory appeal would "materially advance
the ultimate termination of the litigation."23 The
MLB Defendants argue that "reversal by the
Second Circuit may obviate the need for a
costly and intensely time-consuming trial and,
depending on the speed of the appeal, the incurrence of certain pre-trial expenses."24 While
this is of course possible, the operative phrase
is "depending on the speed of the appeal." It is
also possible that an interlocutory appeal would
delay the onset of trial, which is reason enough

to deny certification.25
23 28 U.S.C. 1292(b).
24 Def. Mem. at 13.
25 See In re Oxford Health Plans, 182
F.R.D. 51, 53 (S.D.N.Y. 1998) ("An immediate appeal is considered to advance
the ultimate termination of the litigation
if that 'appeal promises to advance the
time for trial or to shorten the time required for trial.'") (quoting 16 Charles
Alan Wright, et al., Federal Practice and
Procedure 3930 (1996)).
But even if the MLB Defendants are correct
-- that an interlocutory appeal would more [*8]
efficiently dispose of the claims against them -the same is not necessarily true of the claims
against other defendants. The relationship between the MLB Defendants' liability and Television Defendants' liability is a complicated
and disputed issue. According to the Television
Defendants, allowing claims to proceed against
them, when those same claims were barred
against the MLB Defendants would "effectively defeat [the MLB Defendants'] immunity."26
The Television Defendants therefore argue that
if the claims against the MLB Defendants were
dismissed, the corresponding claims against the
Television Defendants would also have to be
dismissed.
26
TV Def. Let. at 1.
The Television Defendants' novel theory of

intertwined liability might eventually prevail.
But the theory is currently untested,27 and that
by itself counsels against certification. Under
antitrust law, it is simply not clear if the fate of
the Television Defendants overlaps entirely
with that of the MLB Defendants. What is clear
is that resolving this question -- which has not
even been fleshed out in an exchange of premotion letters, much less fully briefed -- will
require expending significant judicial resources. If those resources [*9] are expended
Page 5
by the Second Circuit during the course of an

interlocutory appeal, the result will be "piecemeal" adjudication.28 If the resources are instead
expended by this Court on remand, the result
will be further delay of trial. Neither outcome
comports with section 1292(b).
27
Both sets of defendants admit as
much. The MLB Defendants admit it explicitly when they note that the "reversal
of the [baseball exemption holding] with
respect to the baseball exemption may
result in dismissal of the [Television]
Defendants as well," but that it
"[d]epend[s] [] on the specifics of any
ruling by the Second Circuit." Def. Mem.
at 8 (emphasis added). And the Television Defendants admit it implicitly by
highlighting two "analogous cases" -drawn from very different factual settings
-- that they believe bolster their theory.
TV Def. Let. at 1. See Name.Space, Inc.
v. Network Solutions, Inc., 202 F.3d 573,
576-84 (2d Cir. 2000); Automated Salvage Transp. v. Wheelabrator Envtl. Sys.,
155 F.3d 59 (2d Cir. 1998). If anything,
these analogies underscore the complexity of the legal question.
28 AroChem, 176 F.3d at 619.
C. The Scope of the Baseball Exemption Is
Not A "Jurisdictional" Question
Finally, the MLB Defendants argue that interlocutory appeal is "especially advisable" because the baseball exemption implicates subject
matter jurisdiction.29 The premise of this argument is misplaced. The scope of the baseball
[*10] exemption is not a jurisdictional issue.
It is a threshold merits issue.
29
Def. Mem. at 3.
Although they point to numerous opinions

that use the word "jurisdiction" in connection
with the baseball exemption, the MLB Defendants fail to explain in what sense the ques-
tion is jurisdictional. The closest they come is a

sparse citation to Salerno v. American League
of Professional Baseball Clubs, where, according to the MLB Defendants, the court reasoned
that '" [it] lack[ed] jurisdiction of the subject
matter' because 'organized baseball does not
fall within the scope of the federal antitrust
laws."'30
30 Id. at 6 (quoting Salerno v. American League of Prof'l Baseball Clubs, 310
F. Supp. 729, 731 (S.D.N.Y. 1969), aff'd,
429 F.2d 1003 (2d Cir. 1970)). This
parsing of Salerno's logic is questionable.
The court in Salerno actually said:
Since baseball is exempt
from the federal antitrust
laws by decision of the
United
States
Supreme
Court, this complaint fails to
state a claim against defendant upon which relief
can be granted. Having
found that no diversity of
citizenship exists under 28
U.S.C. sec. 1332 and having
found that organized baseball does not fall within the
scope of the federal antitrust
laws, this Court lacks jurisdiction of the subject matter.
Salerno, 310 F. Supp. at 731 (emphasis

added). In fact, then, Salerno is ambiguous in its characterization of the baseball
[*11] exemption. It first describes the
exemption as a merits issue, and then, in
the next sentence, it re-characterizes the
issue as jurisdictional. Whatever the Salerno court had in mind, this is hardly the
controlling authority that the MLB Defendants make it out to be.
But a court's subject matter jurisdiction
does not evaporate every time a federal statute
Page 6
is held not to apply to a particular defendant or

class of defendants. A statute like the Sherman
Act grants subject matter jurisdiction to federal
courts, and from there, federal courts -- in the
exercise of their jurisdiction -- must decide to
whom the statute applies. In practice, federal
courts often decide (for any number of reasons)
that a named defendant is not liable under the
relevant statute. It would be illogical, however,
to conclude that this decision deprives a federal
court of authority to hear the case. Rather, it is
because the federal court does have authority to
hear the case that it may decide to whom the
statute applies. As the Supreme Court has explained, subject matter jurisdiction "'in federal-question cases is sometimes erroneously
conflated with a plaintiffs need and ability to
prove the defendant bound by the [*12] federal law asserted as the predicate for relief--a
merits-related determination.'"31 That is exactly
what has occurred here.32
31 Arbaugh v. Y & H Corp., 546 U.S.
500, 511, 126 S. Ct. 1235, 163 L. Ed. 2d
1097 (2006) (quoting 2 J. Moore et al.,
Moore's Federal Practice 12.30[1] (3d
ed. 2005)). Accord Da Silva v. Kinsho
Intern. Corp., 229 F.3d 358, 361 (2d Cir.
2000) (noting that courts "often obscure
the issue by stating that the court is dismissing 'for lack of jurisdiction' when
some threshold fact has not been established, without explicitly considering
whether the dismissal should be for lack
of subject matter jurisdiction or for failure to state a claim"). This logic also
finds support in the distinction drawn by
Rule 12 of the Federal Rules of Civil
Procedure between (1) dismissal for lack
of subject matter jurisdiction and (2)
dismissal for failure to state a claim upon
which relief can be granted. See Fed. R.
Civ. P. 12.
32
The MLB Defendants' delay in
raising the jurisdictional argument only
reinforces the point. This case has been

ongoing for two years, and has already
involved extensive fact discovery. Yet it
is only now, after losing on summary
judgment, that the MLB Defendants decided to bring these supposed jurisdictional issues to the Court's attention.
When asked at a September 5, 2014 conference why they did not raise the baseball exemption earlier, the MLB Defendants explained that they "thought it
best, given the plaintiffs [*13] complaint, to be able to present [the baseball
exemption argument]" in connection with
"the best set of facts," including "plaintiffs expert report." 9/5/14 Transcript of
Premotion Conference, at 14-15. This
analysis strongly suggests that the baseball exemption presents a merits issue.
The application of the exemption is undoubtedly a question of law. But it is a
question of law that -- as the MLB Defendants acknowledge -- depends on
facts. The same is not true of subject
matter jurisdiction, which concerns the
Court's power over the type of controversy in general, not on the specific facts
of the case.
V. CONCLUSION
For the foregoing reasons, the MLB Defendants' motion to certify for immediate appeal is DENIED. The Clerk of the Court is directed to close this motion (Dkt. No. 327).
SO ORDERED:
/s/ Shira A. Scheindlin
Shira A. Scheindlin
U.S.D.J
Dated: September 22, 2014
New York, New York
EXHIBIT C
Case 1:12-cv-03704-SAS-AJP Document 282-1 Filed 05/27/14 Page 2 of 32
IN THE DISTRICT CDURT OF THE UNITED STATES

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
JOE HALE, Independently, and d/b/a

WICHI'l1A FALLS BASEBALL CLUB ..
Plaintiffs,
vs.
CIVIL ACTION NO. 1294
BROOKLYN BASEBALl, CLUB, INC. 1 et
al,
Defendants
COURT 1 S COMMENTS IN SUSTAINING
DEFENDANTS' MOTIONS TO DISMISS
THE COURT:
Well, of course, the beginning point in coming
to a decision about these moti0ns to dismiss is found in the

bas.eball case decided by the Supreme Court of the United States
in 1922.
And, as I have already indicated, lt seems inept, to
me, to say that the court granted an exemption to baseball, since

that term I would take to mean a dispensation, so to speak, from
some J.iability or obligation that would otherwise be upon the
person exempted.
And, instead, I think the import of the decision
in the case was simply to hold that organized baseball of that day,
at least, was not trade or commerce and that the business consequently simply was not subject to the antitrust law, not that it
was exempted from it but that it just didn 1 t fall in its nature
within the bounds of the statute.
Then the next step is to reach the Toolson group of cases
which came along 30 years later and by that time, of course, the
world of racU.o broadcasting and telecasting dawned on the world and

had uecome a factor in the conduct of the baseball business.
My
recollection is that in the dissenting opinion flled by two of the

justices in that case it was pointed out that when the year 1950
had come around on the calendar, that the revenue from radio and
television of baseball games had grown to the point where H aggregated some 10 1/2 percent of the total receipts from the baseball
business and that was one of the prlncipal points urged by those
two dissenting justices in explaining why they could not consent
t o the ruling that was be:lng made by the majority .
And , so, there can be no shadow of a doubt that the spotligh t was put right squarely on this source of revenue -- the income from the sale of radio and telev:Lsion broadcasting r:l.ghts of
ba~1ebal1
games.
That was certainly within the mind and th:lnking
of every member of the Court .
'Two of them reacted one way and the
other seven another way.

But the slgniftcance of it to me is that there is not c:tny
true novelty, as I see it, such as argued by plaintiffs 1 counsel,
to the effect that this is the first case to present the matter
squarely from the standpoint of monopolistic restraint of radio
broadcasting and telecasting of baseball games.
'l'rue enough, the
rna tter was not cast in that particular line of dlscussion ln the
dissenting opinion but that opinion did point out how the popularity
of these med:l.a of broadcasting had risen and that the revenue from
it had grown at a remarkably mounting rate.
And anyone could tell
without having to read any crystal ball that the picture in 1950
was certainly only a beginning, so to speakj that this thing
~as
3
going to f10l.lrish and grow by leaps and bounds, as it has, and so
much so that the plaintiff alleges in his pleading in this case
that that particular source of revenue has now come to be, anyway, 25 percent of the gross income and receipts of organized baseball.
There could hardly have been any question in anyone's mind
that this was the destined turn of events and that said great
market was going to be enjoyed by organized baseball.
And if such
deyelopment would be a manifestation of a violation of the antitrust Act, the Supreme Court cou ld not have missed the implication
of things at the time of the Toolson decision.
It seems further to me that plaintiffs' argument tr1.es to
set aside in a somewhat detached way the enterprise of broa.dcaat.l.ng a nd telecasting from the traditional aspect of' baseball when
it was played before spectators present.
But I think that it is
certainly clear beyond any sort of question that what the the plaintiff was talking about is that he claims to have been stymi.ed in
his desires and aspirations to participate in interstate telecast ing and broadcasting of baseball games.
The telecasting s imply lifts the horizon, so to speak, and
brings in another set of vlewers of the same identical game that
those present in the grandstand are seeing at the same time, ordinarily, and I believe it's straining realities to suggest that
this television business has become a new facet of activity that
you can look at apart from the ordinary business of baseballj and
I can't fo llow that because there couldn't be such broadcasting
except ror the old-fashioned baseball game being played somewhere
4
the very gist and eosence of the baseball business.
Now, in this Toolson case the Supreme Court, acting through
the seven-justice majority of the Court 1 did not uphold the dismissal of the suits on the part of those three complainants (inc l uding the owner of the team at El Paso) because the Court
thought that the original baseball decision v1ewed in the context
of 30 years l ater was right buli, rather, because they thought it
would be wrong to open the door to the injustice and the many impacts that would result retroactively if the Court at that time ,
acting within the limits of the judicial authority, shou l d cast
aside the original baseball decision .
And, accordingly, with that
made perfectly clear, the Court took the course of saying in effect that they would still accept that original ruling which had
the accumulation of time behind it and the ma.ny investments and
commit;ments oi' one klnd and another f?.ade on the faith of the rul 1ng and that the remedy was not in the courts and, instead, that
those hav:Lng such lnteL'.Cf:.lts should seek recourse in Congress wher e
proper legislation might oe initiated and committee hearings held
and the question thoroughly canvassed from every direction to see
what should be done in'justice to all concerned .
And , of course, any remedial statute would be prospective
in nature 1 contrary to what it would have to be in any litigated
case which would relate to something already passed .
And to up-
root an anchor of this sort in a field of organized enterprise

retrospectively would not be as seemly and reasonable as for the
problem to be dealt with in the 1egislative branch of' the government .
5
If I read these decisions right, that is the position of
the Supreme Court on this somewhat vexing question .
In reading the Radovich case, I get that impression reinforced.
And not only that, but from the standpoint of what
I should do, it seems to me that the'Supreme Court of this

country in the Radovich case has committed that Court explicitly
and defJ.nltely to the proposition that the remedy is in the
Congress and that the Supreme Court intends to let this decision
rest, the o:riginal dec.Lsion rest, as far as it is concerned,
l:tmJ.ted at the same time to the very narrow .focus of the basebaJ.l business.
But to that extent lt will stay until and if' it
ls changed by specific legislation .

.Looking at the whoJ.e hts t ory of this thing, I think that
my course i s clear and that these motions to dismiss so far as
the antitrust aspect of the plalntlffs' case is concerned should
be sustained.
The plaintiff of course has his right of appeal and no one
can find fault if an appeal is taken .
My own conclusion, however, is that these motions are well
taken.
All right.
Now, I think that renders most of the other
motions moot but there may be some of them that still call for
attention.
If the record isn't already clear that the two indi-
vidual plaintiffs (defendants) are out of the caseJ they will be

dismissed.
MR.CARRRINGTON:
May I interrupt there, t f the Court please?
Though there has been reference in the record to two indi v1duals J
6
the complaint is against Mr. Frick, who is one individual, and
the other complaint is against an unincorporated association,
an individual for it having made an affidavit.
And there \Oms
only one individual complained of as an individual and the other

is an unincorporated association) I believe.
THE COURT:
be dismissed.
Yea, the unincorporated association will also
The very evolution of the pleadings in the case
may have taken care of all of that .
I am just saying that if
it does seem desirable that they should be dismissed expressly

at this time, that order will be made.
So .far as the Macon Club is conccrned 1 I would not be inclined to dismiss that defendant.
MR. CARRINGTON:
A.ll right, may I be heard a moment on
that or not?
THE COURT:
Yes.
MR . CARRINGTON:
been dissolved.
It was a Georgia corporation that has
The dissolution was several months before the
institution of this suit.
The only service on it on this cause
of action 1 not the antitrust, but on an alleged breach of contract, conunon l aw cause of' action, was on a man who never was an
officer of that corporation but had been its attorney; that as
a dissolved corporation perhaps could be sued; I have no doubt
that it could be sued (although I do not know the details of
Georgia law) in accordance with the terms of Georgia law in
Georgia.
But it is not a corporation that at the time of this
suit is or could be in this district.
It was not any entity
that existed at that time and was in this district at that time.
7
It would have to be sued on
fi.
corrunon law cause or action, there
being no alleged cl1versity nor allegations to make it proper,

anything other than the antitrust -THE COURT:
Well, let me interrupt there.
It's not tied
1.n at all, now that you refresh my memory, in the antitrust part
of this lawsuit.
MR. CARRINGTON:
Yes.
It was one of the chief defendants.
The only contract that Mr, Hale had, as a working agreement under
which he could get from other professional teams his players,
was a working agreement with the Macon Dodgers, which is now dissolved.
It was a defendant in the antitrust litigation.
Now, the Macon Dodgers contract is attached to the complaint.
The complaint on a breach of contract, however, is not
on that cont.ract.
It is a contract as of a different date.
ls not stated whether it is in writing.
It
The Macon Dodgers con-
tract became effective at the beginning of the baseball season

of
19~6
(I am
telling you what the pleading shows) and the alleged
contract, breach of whlch is now left in this case, is alleged

to have been entered into by Mr. Hale in June 1956.
The original
complaint says that that contract was entered in to by all of the

defendants except Mr. Frick.
The defendants at that time were
the National League (that unincorporated association), the Brooklyn

Dodgers (the Los Angeles Club, which are one in the same) and the
Macon Dodgers.
The second amended complaint says that the contract was
with Los Angeles and it alone.
last one.
Now that's the one that is the
8
THE COURT :
Well, that's the one that is last.
I recall a
brief that you presented previously contending that this Macon

Club corporation wa s now dead by dissolution and couldn' t be sued
for antitrust violation.
MR. CARRINGTON:
No, my argument on the Macon Dodgers mo-
tion is that a suit against them could not be maintained because

of course, it was not doing business or transacting business in
Texas at the time this suit was filed.
we have here for it.
on May 19.
'rhats the memorandum that
And it's a separate memorandum and was filed
But that is an immaterial. thing on the question of
venue as to the antitrust because all the antitrust is out of the

case.
Now we have this common law cause of action which under the
second amended complaint is said to be based on a contract dated
in June of 1956, entered into between Mr . Hale and the Los Angeles
Dodgers and lt is said, without saying who 1 that the defendants
breached tho. t contract.
Now the Macon Dodgers are not named as a defendant in that
second amended complaint .
For that reason , for the reason that
this is a common law cause of action with a foreign corporation

without anybody here to serve
THE COURT :
complaint
Well, if :1.t's not named in the second amended
it seems to me that they go out by implied dismissal.
MR. CARRINGTON:
what I thought.
That's what I thought.
That 1 s exactly
So that will dispose of that.
All right, that dJ.sposes of the Macon Dodgers?

MR. CASTLEDINE:
(Nods head up and down).
MR. CARRINGTON:
I thought that would be agreed.
Shall I speak as to the other defendants?

THE COURT:
Now, I do not have in mind now to make any
ruling on this question of venue.
The way I see it is, if the
plaintiff appeals this case and the outcome is a holding by the

appellate court that he states a proper cause of action in his
pleading and that it should be tried on the merits, then I think
you should be entitled to pick up on t he venue question where
we leave off today.
MR . CARRINGTON:
plete accord.
As to the antitrust action, I am in com-
Of course, thats the proper approach.
We have
left a cause of action, not for the million dollars, or so, but
for $12,000 for breach of a contract that is alleged, dated in
June, 1956 1 between Mr. Hale and the Los Angeles Dodgers.
THE COURT:
Well, I don 1 t know how they could get extra-
territorial service.
MR . CARRINGTON:
That's exactly the point.
Ana le.ck of
Jurisdict i on of the person on a common law cause of action as to

all of these defendants entitles them to dismissal of that common law action.
THE COURT :
Do you know of any theory on which you could
get extraterritorial service?
r1.R .
CASTLEDINE:
THE COURT:
No, si.r .
On that claim?
MR . CAS'I'LEDINE :
No, sir, other than this:
I was proceed-
ing on this ldea that where there l.s more than one cause of
action, that
yo~
can bring in -- that. you can serve -- in other
10
words, to give complete relief and there is more than one cause
of action, that you are permi tted to bring in under that theory .
That's where I was proceeding under, Your Honor, the theory of
lega l service .
'I'HE COUR'l':
to the contrary.
They have cited some cases which they said are

Now I didn ' t read them.
that you couldn't do it.

MR. CASTLEDINE:
THE COURT:
It Just seemed to me
Dld you read those cases?
No, sir.
Well, do they def'J.nitely hold what you claim?
MR. CARRINGTON:
Yes, slr, undebatably, and there is no
case to the contrary.

'r!-IE COUR'r:
It seems sound to me .
-
Well, then the d.i sm:Lssal w:Lll ine.lude t;ha.t breach of contract branch of the plalntif.fs' compl aint also , on the ground
that no personal jurisdlction has been obtained on the defendant
or defendants.
Now, is there anythJ.ng more now?
MR. CARRINGTON:
As I understand it, that completely dis-
poses of the case and a final decree can be entered with the
separate determinations of each of the cause of actions the Court
has announced .
Mr . Sloman has mentioned two situations to me.
what I have said is correct .
Court if I may a minute .
And I think
I better think out loud with the
The Yankees> of the 16 clubs , are the
only one that's a partnership.
There is no jurisd:l.ction over the
. person of that partnership by extra terri toriaJ. process and, thereforeJ the order that the Court is di'sposed to make on the commox;
law cause of action as to it. as well as to that partnership, as
11
well as the corporation, is correct and, therefore, they need not

have any special treatment, although there is a different ground
with the same result , as to the Yankees .
antitrust.
And they are out in the
All of them are out on the antitrust .
THE COURT :
Could you sustai.n extraterritorial service
against the partners any more than you could against the corporation?
MR. CARRINGTON:
That's exactly right.
And it's just a
different reason for the same result .

Now I have the last one, and I think what we have said i s
exactly right.
The Milwaukee club has never been named as a de-
fendant, as it sees it .
It has filed a motion stating that .
the process upon it cloes not purport to show
~-
And
the process of
the Marshal who served it up in Milwaukee does not purport to show

service upon the defendant that is purported to be named in this
complaint.
r.rhere is no process over the person
there is no
,jur:Lsdlction over the person of that additional pa r ty that hns

appeared here.
The 16th owner of one of the major league teams,
since it has not been named in the complaint, is not a party to

the complaint but was served and it has filed a motion that there
is no jurisdiction over the person and the same disposition that
has been made as to all of the others is proper as to it and I
didn't think it was necessary to mention the different reason
for the same result as to Milwaukee , as well as t he Yankees .
THE COURT:
~et
me see now; so far as the jur isdiction of
the ... court is concerned, I seem to recall that there was a point
made to the effect that this defendant or this company you are
12
talking about has got ''Milwaukee 11 on the end of the name -- is that
the one you are talking about?
MR. CARRING'I'ON:
Is that the only difference?
may be some other difference in the name.
I think there
But it is a question of
name, yes, sir' .

THE COURT:
Well> that's the only difference, isn't it?
MR. CARRINGTON:
a corporation.
Yes, but the defendant> at any rate, is
No jurisdiction of it has been had, even if' that
motion isn't any good, because :l t' s a fo reign corpora tion on which
a good process could not be had on it, anymore than any of these
other
corpor~ce
THE COUR'I' :
defendants on the common law cause of action.

Yes, that would be true.
I did want to make it
clear that I wasn't very strongly interested, so far as the misnomer angle was concerned.
I didn't want to be straining any
such point .
MR. CARRINGTON:
At any rate, it has filed a motion.
good for a different reason than the misnomer .

urge f'or it, too, the
~Jame
It :Ls
And therefore, I
order be had so we may have a final
judgment.
THE COURT:
You mean as to the common law cause of action?
MR. CARRINGTON:
cause of action.
Yes, sir> talking about the conwon law
Now, it ls dismissed also -- everybody is dis-
missed as to the antitrust.

THE COURT:
Yes.
MR. CARRINGTON:
THE COURT:
That's right.
Let me say before we part company that there
was such a deluge of motions in this case that t here
rna~
still be
13
some loose ends hanging out that have eluded the recollection of
all of us; and if so, of course there will be no impediment to
getting things of that sort worked out in settling finally the
orders to be entered in the suit.
* -)( *
CERTIFICATE
I, Vincent G. Meyer> official court reporter of said court,

certify that the above and foregoing 14 pages constitute a full)
true and correct transcript of the Court's comments and colloquy
contained herein, had in the captioned numbered cause, at Amarillo
Texas, on F'riday, September 19, 1958.
Vincent G.
Me~er
----::::-0-;::"FF""'r"""c..-:;.,InA""'L COURT REPOR'l'ER
STATE OF NEW YORK

COUNTY OF NEW YORK
)
)
)
ss.:
AFFIDAVIT OF SERVICE
BY MAIL
Elias Melend&z
3020 Surf Ave. BE
I, b ru okIyr., N.Y. , ~lng 261-y sworn, deposes and says that deponent is not a
party to the action, is over 18 years of age and resides at the address shown above or at
On November 12,2014
deponent served the within: Petition for a Writ of Mandamus
upon:
SEE ATTACHED SERVICE LIST
the service parties mailing addresses have been designated by Proskauer Rose LLP for the purposes
of depositing 2 true copy(ies) of same, in a postpaid properly addressed wrapper in a Post Office
Mail Depository, under the exclusive custody and care of the United States Postal Service,
within the State of New York.
Sworn to before me on November 12, 2014

~
~~
MARIA MAISONE'_f
Notary Public State ofNew York
No. 01MA6204360
Qualified in Queens County
Commission Expires Apr. 20, 2017
Service List:
HON. SHIRA A. SCHEINDLIN
United States District Court,
Southern District ofNew York
500 Pearl Street
Edward A. Diver
Howard I. Langer
Peter E. Leckman
LANGER GROGAN & DIVER, P.C.
Three Logan Square, Suite 4130
1717 Arch Street
Philadelphia, Pennsylvania 19103
(215) 320-5663
Attorneys for Plaintiffs-Respondents
Michael Morris Buchman
John Andrew Ioannou
MOTLEY RICE, LLC
600 Third Avenue, 21st Floor
(212) 577-0050
Kevin M. Costello
Gary E. Klein
KLEIN KAVANAGH COSTELLO, LLP
85 Merrimac St., 4th Floor
Boston, Massachusetts 02114
(617) 357-5034
J. Douglas Richards
COHEN MILSTEIN SELLERS & TOLL, PLLC
88 Pine Street, 14th Floor
(2I2) 838-7797
Jeffrey Benjamin Dubner
COHEN MILSTEIN SELLERS & TOLL, PLLC
II 00 New York Ave., Nw, Ste. 500
Washington, DC 20005
(202) 408-4600
Craig W Hillwig
Robert J. Larocca
Steven M. Steingard
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, Pennsylvania 19107
(215) 238-1700
Marc Ian Gross
Adam G. Kurtz
John Douglas Richards
POMERANTZ LLP
600 Third A venue, 20th Floor
(212) 661-1100
Attorneys for P laintif.fs-Respondents
Michael J. Boni
Joshua D. Snyder
BONI & ZACK LLC
15 St. Asaphs Road
BaJa Cynwyd, Pennsylvania 19004
(61 0) 822-0200
Attorneys for P laintif.fs-Respondents
Brian D. Boone
Stephanie A. Jones
Louis A. Karasik
Andrew E. Paris
Joann M. Wakana
ALSTON & BIRD LLP
Bank of America Plaza
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280
(704) 444-1000
Attorneys for Defendants-Respondents Directv LLC; Directv Sports Networks LLC, Root Sports Northwest,
Root Sports Pittburgh; and Root Sports Rocky Mountain
Samantha P. Bateman
Beth A. Wilkinson
PAUL, WEISS,RIFKIND, WHARTON & GARRISON,LLP
2001 K Street, N.W., 5th Floor
Washington, DC 20006
(202) 223-7300
Attorneys for Defendant-Respondent Yankees Entertainment and Sports Networks, LLC
Arthur J. Burke
James William Haldin
Christopher Philip Lynch
Andrew N. DeLaney
DAVIS POLK & WARDWELL
450 Lexington Avenue
(212) 450-4000
Attorney for Defendants-Respondents Comcast Corporation; Comcast SportsNet Philadelphia, L.P.;
Comcast SportsNet Mid-Atlantic L.P.; Comcast SportsNet California, LLC; and Comcast SportsNet
Chicago, LLC

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Garber v. MLB - Writ of Mandamus

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Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page1 of 96

United States Court of Appeals

PETITION FOR A WRIT OF MANDAMUS RELATING TO DECISION OF

PETITION FOR A WRIT OF MANDAMUS

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page2 of 96

CORPORATE DISCLOSURE STATEMENT

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page3 of 96

MLB Advanced Media, Inc. is a Delaware corporation. It has no

There is no publicly held

corporation that owns 10% or more of Athletics Investment Group

Nintendo of America, Inc. is a wholly owned

subsidiary of publicly held Nintendo Co. Ltd.

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page4 of 96

Chicago White Sox, Ltd. is an Illinois limited partnership. It has no

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page5 of 96

San Francisco Baseball Associates, LLC is a Delaware limited

Dated: November 12, 2014

PROSKAUER ROSE LLP

Attorneys for Petitioners Office of the

Attorneys for Petitioner New York Yankees

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page6 of 96

THE PROFESSIONAL BASEBALL ANTITRUST EXEMPTION .............. 7

NATURE OF THE ACTION AND PROCEEDINGS BELOW .................... 9

STANDARD FOR ISSUING THE WRIT ..............................................................11

NO MEANS OTHER THAN A WRIT IS ADEQUATE TO ENSURE

THE DISTRICT COURTS ABUSE OF DISCRETION AND

The District Court Erred in Refusing to Apply the Exemption to

Even if the Exemption Applied Only to Certain Aspects of the

League Territorial Rules and Structure Are Exempt ................ 18

The Supreme Court Exempted Territorial Broadcast Rules in

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page7 of 96

The District Court Erred in Relying on the Sports

The Sports Broadcasting Act of 1961 Provides No

Henderson Actually Supports Application of the

The District Courts Opinion Amounted to a Judicial Usurpation of

A WRIT IS APPROPRIATE TO RELIEVE THE MLB DEFENDANTS

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page8 of 96

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page9 of 96

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page10 of 96

Profl Baseball Schools & Clubs, Inc. v. Kuhn,

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page11 of 96

28 U.S.C. 1651(a) .................................................................................................11

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page12 of 96

So too, the Second

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page13 of 96

In declining to do so, it reached the astonishing conclusion,

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page14 of 96

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page15 of 96

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page16 of 96

ruling is contrary to existing law. Garber v. Office of the Commr of Baseball,

Moreover, the district court

For the exemption to serve as an umbrella over baseballas the

Supreme Court expressly intendedit must be able to protect the business of

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page17 of 96

Furthermore, the district courts order amounts to a

usurpation of Congressional power. Only a writ of mandamus will provide MLB

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page18 of 96

THE PROFESSIONAL BASEBALL ANTITRUST EXEMPTION

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page19 of 96

See supra note 4.

In 1972, the Supreme Court recognized that

Case 14-4233, Document 1-2, 11/12/2014, 1368465, Page20 of 96

Congresss deliberate decision not to repeal the exemption amounted to

The Flood Act repealed the