The opinion of the court was delivered by: SWEET
Plaintiff Ashley Meadows Farm, Inc. ("Ashley") has moved for summary judgment pursuant to Fed.R.Civ.P. 56 upon its claim for a permanent injunction under Section 1 of the Sherman Act and Section 16 of the Clayton Act, 15 U.S.C. §§ 1 and 26. Defendant American Horse Shows Association, Inc. ("AHSA") has moved to amend its answer to include a seventh defense based upon the Amateur Sports Act of 1978, 36 U.S.C. § 317 et seq. AHSA's motion was granted at oral argument, and Ashley's motion is denied.
Ashley and Ashley's president, Dolores Swann ("Swann"), brought this action against AHSA and Ira Finkelstein ("Finkelstein"), counsel to AHSA, alleging conspiracies to violate and actual violations of the antitrust laws. In an opinion of September 28, 1983 I granted Finkelstein's motion to dismiss but denied AHSA's similar motion. In an opinion of September 20, 1984 I granted AHSA's subsequent motion for summary judgment with respect Swann. Ashley has now moved for partial summary judgment, alleging that the mileage and protected date rules violate 15 U.S.C. §§ 1 and 26.
The facts as alleged with respect to AHSA's structure and role in the horse showing community, Ashley, and the operation of AHSA's "mileage" and "protected" date rules are set forth with sufficient specificity in the September 28, 1983 and September 20, 1984 opinions. familiarity with these opinions is assumed.
The parties agree that NCAA v. Board of Regents, 468 U.S. 85, 52 L.W. 4928, 82 L. Ed. 2d 70, 104 S. Ct. 2948 (1984) ("NCAA") is dispositive of this case. Two issues must be resolved in light of the Supreme Court's reasoning in NCAA: should the per se rule be applied to AHSA's mileage and protected date rules, and, if not, are there material questions of fact which prevent granting summary judgment under a rule of reason analysis.
In NCAA the Supreme Court evaluated a scheme pursuant to which the television committee of the NCAA was granted sole authority to negotiate all rights to televise member college's football games. The scheme limited both the total quantity of televised intercollegiate football (football) and the number of games that nay one team could televise. Member schools were permitted to televise games only in accordance with the approved scheme, and when certain member schools began to negotiate additional sales of television rights, the NCAA threatened disciplinary action.
After a full trial, the district court found the scheme and its enforcement to constitute a "classic carte," and it found the plan to be both per se price fixing and a per se group boycott in violation of Section One of the Sherman Act. Board of Regents v. NCAA, 546 F. Supp. 1276, 1300-1313)W.D.Okl. 1982). The Ninth Circuit affirmed on the ground that the plan constituted per se price fixing. Bd. of Reg. of U. of Okl. v. NCAA, 707 F.2d 1147 (10th Cir. 1983).
The Supreme Court rejected the lower court's application of the per se rule, invoking, in its stead, the rule of reason:
There can be no doubt that the challenged practices of the NCAA constitute a "restraint of trade" in the sense that they limit members' freedom to negotiate and ...