The opinion of the court was delivered by: Milton Pollack, Senior District Judge.
The plaintiffs in this case are Victor K. Kiam II, VKK
Corporation and VKK Patriots, Inc. The plaintiffs owned a
controlling interest in the New England Patriots, a football team
located in Foxboro, Massachusetts, from October 1988 until May
The defendants in this case are certain member clubs of the
National Football League including Jacksonville Jaguars,
Ltd.,*fn1 and a non-member entity, viz., Touchdown Jacksonville
Inc. ("TDJ Inc.") which was added by amendment of the complaint
filed and served in 1998. The NFL and the defendant member clubs
shall be referred to collectively as the "NFL."
On May 8, 1992, Kiam executed and delivered to the NFL a broad
General Release of any claims plaintiffs might have against the
NFL. This General Release specifically provided that plaintiffs
released the NFL from any and all antitrust claims.
More than thirty months after he signed the general release,
Kiam filed the instant lawsuit, in which the original complaint
alleges that the NFL defendants including the defendant
Jacksonville Jaguars, Ltd. illegally conspired to block
plaintiffs from relocating the Patriots to an area outside New
The instant suit was predicated on the claim that the Release
was invalid as having been obtained while Kiam was under economic
duress caused by the NFL. Extensive discovery was undertaken
involving over thirty witnesses examined commencing on dates in
1995 and continuing from dates in 1998 and 1999 until as late as
May 24, 1999. A motion by defendants for summary judgment was
denied. The issue on the Release was then severed for a separate
preliminary jury trial.
After a full trial, a jury rejected Kiam's economic duress
claim. The jury found that the plaintiffs were not under economic
duress caused by the NFL and its member clubs when plaintiffs
executed and delivered the General Release. On April 16, 1999,
this Court directed entry of a final judgment against the
plaintiffs on the economic duress claim.
After identifying and briefing of those motions and affording
plaintiffs a final opportunity for further depositions of persons
not theretofore deposed, the Court scheduled a hearing,*fn2
pursuant to Federal Rule of Civil Procedure 43(e), "to assay the
alleged probative evidence of the plaintiffs . . ., to narrow the
[remaining] controverted issues[, if any,] to triable matters and
to dispose of matters unsupported by admissible evidence." Argus
Inc. v. Eastman Kodak Co., 612 F. Supp. 904, 908 (S.D.N.Y. 1985),
aff'd, 801 F.2d 38 (2d Cir. 1986), cert. denied,
479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). Plaintiffs' counsel
were informed in advance of the hearing that they would be
expected to call live witnesses and to offer specific admissible
evidence in support of their position that they were entitled to
a trial on the remaining issues assertedly raised by plaintiffs'
claims. The Court set aside two days for the evidentiary
On May 27, 1999, the first day set aside for the hearing,
plaintiffs' counsel appeared but offered no live witnesses. They
did not call to the stand any witness who allegedly had knowledge
and specific admissible testimony regarding the issues that
plaintiffs claimed to be in dispute. They did not call Kiam; they
did not call any NFL or club executives who were within subpoena
range; they did not call any third party witnesses to whom they
had previously attributed knowledge of the alleged conspiracy or
of plaintiffs' alleged injury; nor did plaintiffs call their
alleged economic expert, who had submitted an affidavit
purporting to support one of their opposition papers. Instead,
plaintiffs' counsel merely identified prior deposition and
testimonial excerpts and made a brief argumentative statement on
the legal issues and asserted a request which the Court deemed
dilatory for new discovery pursuant to Rule 56(f).
Despite the opportunity afforded by the extensive discovery
previously undertaken in this case over years, and the full jury
trial on the duress issue, the plaintiffs failed to provide
specific admissible facts to show that there is a genuine issue
remaining for trial.
The Court finds that the plaintiffs' reference to excerpts of
prior inconclusive deposition testimony has failed to set forth
the required specific probative facts showing that there is a
genuine issue for trial, and the plaintiffs' failure to produce
witnesses with specific probative evidence at the Rule 43(e)
proceeding as well as the informative state of the record in the
jury trial on the Release, preclude the claims asserted herein.
Accordingly, the NFL motions for summary judgment based on the
scope of the Release and on the part and parcel theory and on all
the plaintiffs' claims asserted in the first amended complaint as
well as the motion based on the statute of limitations addressed
to the new party added to the case in 1998 will be granted. Costs
to the NFL to be separately determined and entered at the foot of
the judgment hereon. The counterclaims are reserved herefrom.
EVIDENCE AS TO WHICH THERE IS NO GENUINE MATERIAL ISSUE TO BE
Kiam's Business Experience and Advisers
1. Kiam was an experienced businessman who was advised throughout
the relevant period by sophisticated and experienced lawyers,
accountants, and other business advisers. See Amended Joint
Pretrial Order, Statement of Undisputed Facts ¶ 26.
2. When Kiam acquired the Patriots in October 1988, he was
Chairman, Chief Executive Officer, and owner of all of the voting
stock of Remington Products, Inc., the world's second largest
manufacturer of electric razors. He also owned other businesses.
See Amended Joint Pretrial Order, Statement of Undisputed Facts
3. The NFL consists of 30 independently owned member clubs who
co-produce the entertainment product "NFL football." Tr. at
839-843*fn4 (Paul Tagliabue), 358-359 (Norman Braman).
4. The NFL member clubs jointly produce an annual season of NFL
games leading to a series of playoff games that culminate each
year in the determination of a Super Bowl champion. Tr. at 840
5. It is the Commissioner's responsibility, inter alia, to
oversee the business operations of the League, to represent the
League and the clubs in dealings with third parties, and to
ensure the integrity of the games and of the competition on the
football field itself. Tr. at 843-844 (Tagliabue).
6. The NFL Constitution and Bylaws is the basic agreement among
the member clubs, which along with all resolutions passed by the
members, and policies and procedures implemented by the
Commissioner, set forth the structure and organization of the
League, as well as some of the "ground rules" the clubs will
follow in conducting their joint business. Tr. at 841-843
7. As early as May 1989, League procedures provided that approval
of a sale "may be conditioned on such additional terms as the
Commissioner, the Finance Committee, or the membership deems
appropriate." NFL Document Entitled "Procedures for Prospective
Sellers. . . ." Dated May 24, 1989 (Exhibit 4 in Defendants'
 Motion for Summary Judgment on Plaintiffs' Claims).
8. NFL member clubs share approximately 90% of the total revenues
earned by the League and its teams. Tr. at 845 (Tagliabue).
9. The NFL negotiates with each network broadcasting NFL games
national television contracts on behalf of all NFL clubs. Tr. at
10. The national television revenues are shared equally among
each of the member clubs, regardless of whether they are located
in a metropolitan area such as New York, or in a smaller
community such as Green Bay, Wisconsin. Tr. at 262 (Kiam),
11. Between fifty and sixty percent of the revenues earned by the
NFL member clubs and shared equally among them are derived from
the NFL's contracts with its national television broadcasters.
Tr. at 845 (Tagliabue).
12. The location of NFL clubs is a factor that affects the
success of all of the clubs collectively because location affects
attendance and television viewership. Tr. at 847-88 (Tagliabue).
14. NFL football is a successful product because, inter alia,
the quality of the competition on the field is very close, and
because it involves teams that represent their communities in a
way that arouses competition and rivalry against the other teams.
Tr. at 840 (Tagliabue).
15. The Super Bowl is commonly the number one rated program on
television. Tr. at 840-841 (Tagliabue).
16. Article 4.3 of the NFL Constitution and By-laws prohibits any
club from "transfer[ring] its franchise or playing site to a
different city" without first obtaining League approval. 1988 NFL
Constitution and By-laws, Art. 4.3; Tr. at 847 (Tagliabue).
17. The rules and procedures by which the NFL controls the
location, and relocation, of the member clubs promote fan
interest in NFL football by inter alia, preserving and
enhancing the relationship between NFL clubs and their
communities and by fostering fan loyalty to individual teams. Tr.
at 861-863 (Tagliabue), 357-359 (Braman).
18. The League relocation rules further ensure that problems for
which an individual club owner is responsible cannot be a
justification for a franchise relocation. Without such
protection, the League would (and in the past has) faced severe
criticism for allowing a club to move. Tr. at 869-870
19. The location of NFL clubs is one of the most important
factors that affects the success of all of the clubs
collectively. This is because the choice of markets in which the
clubs will operate and how they relate to each other is a very
big factor in terms of television, in terms of attendance, and in
terms of coverage of the entire United States. Tr. at 847-88
20. It is important for the NFL to have clubs in the larger
metropolitan cities, because the clubs depend upon the television
and ticket revenues earned from the larger markets. A move of a
team from a large city to a small city hurts the entire League.
Tr. at 358 (Braman).
21. The NFL has a policy of requesting releases from departing
owners, and this policy has been applied to selling owners who
had no interest in relocating. Tr. at 900-01 (Tagliabue), 1089
22. This policy was adopted in response to litigation initiated
by former NFL club owners. Tr. at 900 (Tagliabue), 1089 (Moyer).
23. The NFL has an interest in enhancing the relationship between
NFL clubs and their communities and fostering fan loyalty to
individual teams. Tr. at 861-863 (Tagliabue), 357-359 (Braman).
Kiam's Purchase of the Patriots
24. In October 1988, Kiam purchased a 51% interest in the New
England Patriots for approximately $85 million. Tr. at 56 (Kiam);
856-857 (Paul Tagliabue).
25. When Kiam purchased his interest in the Patriots, he signed a
written agreement promising to comply with "all NFL rules and
policies as now in effect or as hereafter amended," and further
promising to "obtain advance approval by the NFL of any transfer"
or sale of a franchise ownership interest. September 13, 1988
Letter Agreement (Defendants' Exhibit 16 to Materials In Support
of Defendants' Motion for Summary Judgment on the Merits of
Plaintiffs' Antitrust Claims).*fn5
26. At the time Kiam purchased the Patriots, he was aware of the
• The Patriots were committed to a lease which
provided that they would play football in Foxboro,
Massachusetts through the 2001 football season. Tr.
at 243 (Kiam).
• The lease that was in place was disadvantageous to
the Patriots because it allocated a major portion
of the stadium revenues to the stadium lessor, not
to the team. Tr. at 48-49, 241-242 (Kiam).
• The company that owned the stadium was in
bankruptcy. Tr. at 59, 246 (Kiam).
• Kiam would have to agree to go forward with Fran
Murray as his partner and to grant Murray the right
to force Kiam later to purchase his 49% interest in
the club. Tr. at 56, 81, 255, 258 (Kiam).
• The Patriots had a long history of losses and were
"completely out of money." Tr. at 45 (Kiam). The
team was having financial difficulties. Tr. 235-236
• Kiam's financial advisors forecasted that the
Patriots would continue to have operating losses
for at least a few years after his purchase of the
club. Tr. at 408 (Robert Romano).
• Foxboro Stadium was old and in an undesirable
location. Tr. at 45-48, 243-244 (Kiam).
• 16 prior persons had considered buying the team and
decided not to do so. Tr. at 49 (Kiam).
27. The NFL did not force Mr. Kiam to purchase the Patriots. Mr.
Kiam himself made that ...