Appeal from a judgment for defendants entered in the U.S. District Court, Western District of New York, John O. Henderson, Judge, upon motions for summary judgment, dismissing plaintiff's complaint charging violations of the Sherman Act predicated on an alleged tying arrangement. Affirmed.
Kaufman, Chief Judge, and Smith and Anderson, Circuit Judges.
Whatever else might be said about professional football in the United States, it does seem to breed a hardy group of fans who do not fear litigation combat. No fewer than five lawsuits have been instituted by football aficionados from Dallas to New England, each claiming that the respective defendant National Football League (NFL) team had violated the Sherman Act by requiring an individual who wishes to purchase a season ticket for all regular season games to buy, in addition, tickets for one or more exhibition or preseason games. In each case, including the instant one, the response of the district court has been the same: To dismiss the complaint upon the defendant's motion for summary judgment.*fn1 Without passing upon the wisdom or desirability of this ticket sale modus operandi, we find the practice to be outside the ambit of even the broad reach of the Sherman Act. Accordingly, we affirm.
Angelo F. Coniglio is a resident of Amherst, New York, a suburb of Buffalo. An employee of the New York State Power Authority, Coniglio's vocation is hydraulic engineering; his avocation -- avid football fan and ardent rooter for the Buffalo Bills football team (Bills).
The Bills, owned and operated by Highwood Service, Inc. (Highwood), was a charter member of the American Football League (AFL), playing its inaugural season in 1960. From its inception, the Bills has been the only professional football team in Buffalo, indeed, filling a void of more than one decade's duration since the demise of the All American Conference in 1949.
Although Coniglio regularly attended the Bills' home games from 1960 onward, he did not become a season ticket holder until 1964. With this new status, he gained a number of advantages over those who purchased tickets on an individual game basis, such as, preferential seat selection, preferential call on post-season playoff tickets, and preferential seat selection for the following season. Coniglio repeated his season ticket purchase in 1965.
The year 1966 produced two events of some significance to Bills fans. First, the American Football League and its arch rival, the older National Football League, tentatively agreed to merge into one league, provided Congressional approval, obviating a possible antitrust violation, could be obtained. Second, the Bills altered its season ticket sale policy by requiring the purchaser of a season ticket to also buy a ticket for one exhibition game.
In 1968, the Bills increased the number of exhibition games included in the season ticket package to two. And, two years later, in 1970, the season ticket holders were required to purchase tickets for three exhibition games. Whether because of this or perhaps because of the congressionally sanctioned*fn2 merger between the AFL and the NFL,*fn3 which was also consummated in 1970, the Bills that year saw the end of Coniglio as a season ticket purchaser. The record does reflect, however, that in 1971 Coniglio attended five of the seven regular season home games played by the Bills at Buffalo's War Memorial Stadium, by purchasing individual tickets for each game, and that Coniglio, in fact, had chosen not to attend the two remaining home games that year.
Disenchanted with the Bills' season ticket sale practice, Coniglio commenced an antitrust action against Highwood, the NFL, and its Commissioner, Pete Rozelle, by filing a complaint in the Western District of New York on September 9, 1970. He claimed that for the period, 1966-1970, Highwood's policy of conditioning the purchase of season tickets to a requirement to buy exhibition game tickets, constituted an unlawful tying arrangement in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Moreover, he charged, it also constituted an abuse of the Bills' monopoly power over professional football in the Buffalo area, in breach of Section 2 of the Sherman Act, 15 U.S.C. § 2. In addition, Coniglio alleged that the unlawful tie between season tickets and exhibition game tickets was the product of a conspiracy between Highwood, the NFL, and Rozelle, and that such conspiracy was a further violation of Section 1 of the Sherman Act.
Coniglio initially sought to maintain this suit as a class action,*fn4 on behalf of approximately 750,000 season ticket holders of the Bills as well as a number of other NFL clubs, against a defendant class represented by Highwood. In this latter class Coniglio included all NFL clubs with season ticket policies mandating the purchase of exhibition game tickets. Following more than two years of pretrial discovery during which a substantial number of documents were produced by Commissioner Rozelle, the late Judge Henderson, on September 18, 1972, entered an order upon motion of the defendants limiting the plaintiff class to some 23,000 Bills season ticket holders,*fn5 and denying Coniglio's motion to establish a defendant class.*fn6
On March 21, 1973, after additional discovery of documentary evidence and the completion of Coniglio's deposition -- the only oral deposition taken by either side -- the defendants moved for summary judgment. On August 1, 1973, Judge Henderson, in a brief opinion reported only in 1973-2 CCH TRADE CASES ...