1Complications from an automobile accident have prevented Judge Gibson from

reviewing this opinion prior to its being filed. The opinion is consistent with Judge

Gibson's vote at conference. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1657

___________

Gail Brookins, doing business as Ernie *

Glide Transmissions; Ernie Brookins, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

International Motor Contest Association; *

Kathy Root; Billy Joe Bushore, doing *

business as Bushore Racing Enterprises, *

*

Defendants - Appellees. *

___________

Submitted: January 12, 2000

Filed: August 3, 2000 

___________

Before BOWMAN, FLOYD R. GIBSON,1 and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Gail and Ernie Brookins commenced this action against the International Motor

Contest Association (“IMCA”); its president, Kathy Root; and Billy Joe Bushore, a
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competitor of the Brookins. The dispute arose when IMCA amended its rules

governing IMCA-sanctioned “modified class” auto races in a way that, at least for a

time, barred the use in those races of two transmissions manufactured by the Brookins.

The Brookins appeal the grant of summary judgment dismissing their antitrust

conspiracy claim for failure to prove either market power in a relevant market or actual

detrimental effect on competition. We affirm. 

I.

Organized in 1915, IMCA is the oldest auto racing sanctioning body in the

United States. IMCA franchises over 225 independent racing tracks in twenty-nine

States and offers a variety of advertising and merchandising programs to companies

that sponsor auto sport events. IMCA operates five racing divisions: modified, late

model, sprint car, stock car, and hobby stock car. IMCA created the modified car class

in 1979 to provide amateur auto racers an affordable but exciting racing opportunity.

The concept proved extremely popular, and in 1997 nearly 4,000 drivers participated

in IMCA-sanctioned modified races. For each racing class, IMCA promulgates

uniform nationwide rules to provide, in the words of an IMCA brochure, “consistency

and exciting competition from region to region.” Specific car rules for each racing

class are established by the IMCA executive committee. 

In 1993, the Brookins introduced the “Ernie Glide” automatic transmission. It

gained increasing use in IMCA modified races, and a car using an Ernie Glide

transmission won the 1994 national championship race. Because of its novel design,

many drivers and at least two competing transmission manufacturers (including

defendant Bushore) questioned whether the Ernie Glide complied with IMCA’s rule

governing modified car transmissions. Prior to the 1995 racing season, IMCA officials

concluded that the Ernie Glide met the letter but not the intent of the existing rule.

IMCA’s executive committee then revised the rule to require that all automatic

transmissions have a functioning pump, a change that immediately affected only the
2The HONORABLE MICHAEL J. MELLOY, United States District Judge for

the Northern District of Iowa.

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Ernie Glide. In 1995 and 1996, the Brookins modified the Ernie Glide to include a

functioning pump and developed a new “Ernie Slide” standard transmission. After

IMCA’s Director of Competition informally assured the Brookins that their

transmissions complied with the amended modified car rule, and after the Brookins

marketed the transmissions in reliance on those assurances, IMCA’s executive

committee responded with further transmission rule changes and interpretations rather

obviously aimed at barring the use of Ernie Glide and Ernie Slide transmissions at

IMCA-sanctioned modified car races. 

The Brookins commenced this action in mid-1996 when IMCA issued an

adverse last-minute pre-season interpretation of its latest transmission rule. The

Brookins alleged that defendants violated Section 1 of the Sherman Act, 15 U.S.C. §

1, when IMCA changed its rules in response to pressure from rival transmission

manufacturers who were also IMCA sponsors. The district court2 granted a preliminary

injunction allowing drivers to continue using Ernie Slide transmissions for a reasonable

period. Following substantial discovery, the district court granted summary judgment

dismissing the Brookins’ antitrust claim, but denied summary judgment on their state

law claim of intentional interference with prospective business advantage. That tort

claim went to trial against defendant IMCA. The jury awarded the Brookins $109,000

in compensatory damages, finding that IMCA had improperly interfered with the

Brookins’ relationships with potential transmission buyers by creating and unfairly

interpreting rules with the intent of harming the Brookins’ business. IMCA does not

appeal that verdict, but the Brookins appeal the dismissal of their antitrust claim. We

review the grant of summary judgment de novo, viewing the record in the light most

favorable to the Brookins. See Minnesota Ass’n of Nurse Anesthetists v. Unity Hosp.,

208 F.3d 655, 659 (8th Cir. 2000).
3The Brookins do not contend that defendants’ conduct amounted to a per se

unlawful group boycott, and properly so. “[P]recedent limits the per se rule in the

boycott context to cases involving horizontal agreements among direct competitors.”

NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998). The Brookins offered

evidence that two competing transmission manufacturers, defendant Bushore Racing

Enterprises and non-defendant TCI, each complained to IMCA that the Ernie Glide and

the Ernie Slide transmissions did not comply with IMCA’s modified car rules. But

there is no evidence that Bushore and TCI colluded with each other. 

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II.

The Brookins contend that IMCA’s adverse rule changes were the product of

concerted action by IMCA and competing transmission manufacturers that

unreasonably restrained trade in modified car transmissions.3 To prevail on this Section

1 claim, the Brookins must prove that defendants’ concerted action injured competition.

Injury to competition requires proof either of market power in a relevant market, or of

an actual adverse effect on competition. See FTC v. Indiana Fed’n of Dentists, 476

U.S. 447, 460-61 (1986). The district court concluded the Brookins failed to make the

required threshold showing of injury to competition. Noting undisputed evidence that

there are many racing classes and many competing auto racing sanctioning bodies, such

as NASCAR, CART, and USAC, the court concluded that the Brookins had failed to

offer evidence showing that IMCA has market power in the relevant racing market,

defined in defendants’ motion for summary judgment as the “oval track racing

transmission market.” The court also concluded there was no evidence that excluding

the Ernie Glide and Ernie Slide transmissions from modified car races has had an actual

adverse effect on competition in that market.

On appeal, the Brookins challenge both those conclusions. Their primary

contention is that no proof of market power is needed under the “unique” antitrust

analysis that applies when a private organization sets product standards that exclude

certain producers or deprive consumers of a desired product. Citing cases such as
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Indiana Federation of Dentists and Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988), the Brookins argue that exclusion of the Ernie Glide and Ernie

Slide transmissions from modified car races governed by the IMCA rules had an actual

adverse effect on competition by depriving modified race car drivers of less expensive,

safer, better-performing products. Alternatively, attempting to redefine the relevant

market on appeal, the Brookins argue they presented sufficient evidence that IMCA has

market power in the market for “IMCA-approved transmissions for modified racing.”

The Brookins’ analysis is flawed because IMCA is not a typical standard-setting

organization. Its rules do not tell transmission manufacturers or drivers what types of

products or services they may sell or use in an open market. Rather, the IMCA

modified car rules help define a game or sport in which the end product is a form of

competition among race car drivers. If the game as defined is exciting for participants

and spectators, it will prosper in relation to other games with which it competes in the

broad recreational marketplace. As the Supreme Court said in describing college

football in NCAA v. Board of Regents, 468 U.S. 85, 101-02 (1984):

What the NCAA and its member institutions market in this case is

competition itself -- contests between competing institutions. Of course,

this would be completely ineffective if there were no rules on which the

competitors agreed to create and define the competition to be marketed.

A myriad of rules affecting such matters as the size of the field, the

number of players on a team, and the extent to which physical violence is

to be encouraged or proscribed, all must be agreed upon, and all restrain

the manner in which institutions compete. . . . Thus, the NCAA plays a

vital role in enabling college football to preserve its character, and as a

result enables a product to be marketed which might otherwise be

unavailable.

Without question, the way IMCA defines the rules for modified car racing will

exclude some types of equipment. But the exclusion is an incidental and inevitable byproduct of defining the game. A rule making body’s impact on equipment
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manufacturers will vary depending on the popularity of the game, and the extent to

which its rules are followed by the game’s players -- in other words, the extent to

which they are seen as the rules of the game itself, rather than the rules of that body’s

league of game-players. For example, major league baseball’s decision not to approve

the use of metal bats has probably had only a modest exclusionary impact, because

metal bats have become extraordinarily popular with millions of amateur baseball

players who are not bound by major-league rules. On the other hand, when the United

States Golf Association refuses to sanction a “revolutionary” golf ball guaranteed to fly

20% farther, the exclusionary impact is probably severe, because most amateur golfers

want to play the game under uniform nationally-sanctioned rules. 

For these reasons, the few courts to consider antitrust challenges to rules defining

a sports activity have given the rule-makers considerable discretion to achieve their

sporting objectives, “[a]t least, in the absence of any demonstrated significant market

foreclosure.” M & H Tire Co. v. Hoosier Racing Tire Corp., 733 F.3d 973, 987 (1st

Cir. 1984) (upholding rule prescribing use of particular supplier’s racing tire for

modified car races); see Gunter Harz Sports, Inc. v. United States Tennis Ass’n, Inc.,

511 F. Supp. 1103 (D. Neb.), aff’d per curiam, 665 F.2d 222 (8th Cir. 1981)

(upholding ban on use of double-strung tennis rackets). The Brookins argue they need

not undertake this market analysis because they presented proof of an actual adverse

effect on competition -- precluding race car drivers from using a cheaper, safer, easierto-maintain transmission. But unless the rule-maker’s decision was tainted by supplier

coercion, an issue we will address in a moment, the exclusion was the incidental result

of defining the rules of a particular game, IMCA modified car racing. IMCA did not

attempt to tell race car drivers not to use the Ernie Glide or the Ernie Slide in other

types of racing. And if modified car drivers become convinced that the Brookins’

transmissions are cheaper, safer, and easier to maintain, IMCA will need to reinterpret

or change its modified car rules to allow use of the Ernie Glide and the Ernie Slide, or

the drivers will gravitate to the races of other modified car sanctioning bodies, or to

other classes of racing. In these circumstances, IMCA rules are not the kind of “naked
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restraint” on competition that justify foregoing the market analysis normally required

in Section 1 rule-of-reason cases. See generally California Dental Ass’n v. FTC, 526

U.S. 756 (1999). 

Absent proof of an actual adverse effect on competition, the district court

properly required the Brookins to define the relevant market and offer proof that IMCA

has market power in that market. In the district court, the Brookins accepted the broad

relevant product market defined by defendants -- transmissions for all oval track racing

-- but offered no evidence as to what share of that market consists of modified car races

governed by the IMCA modified car rules. On appeal, the Brookins urge a narrower

product market -- transmissions used in modified car racing sanctioned by IMCA. In

other words, the Brookins now argue that IMCA-sanctioned modified car racing is, by

itself, a relevant market. But that assertion requires proof there is no cross-elasticity

of demand between this game and other games that modified car racers might choose

to play. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962). Given

the evidence of many other classes of auto racing, and many other auto racing

sanctioning bodies, on this record no reasonable jury could find that races governed by

the IMCA modified car rules are a separate relevant market for antitrust purposes.

Finally, we turn to a distinct antitrust issue, the Brookins’ allegations that IMCA

colluded with rival transmission manufacturers, Bushore and TCI. So long as IMCA

made game-defining rules decisions based upon its purposes as a sports organization,

an antitrust court need not be concerned with the rationality or fairness of those

decisions. Irrational decisions and unfair treatment of suppliers will result in an

unpopular game, and players and spectators will take their entertainment dollars

elsewhere. But if the rules decisions are corrupted by coercion from competitors of the

disadvantaged supplier, we have a different antitrust setting, one very similar to

American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556

(1982), in which the Supreme Court upheld a jury verdict for a competitor injured by

a product standard tainted in this fashion. 
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In this case, the purpose of the IMCA’s modified car rules was summarized by

the organization’s President, Kathy Root, in her deposition testimony:

Racing has a history of developing a class of race cars; technology takes

over; the cars become obsolete because there’s only a selected few people

that can afford to have that car anymore.

When Keith [her predecessor] started the IMCA Modified

Division, his goal was to keep it as close to the 1979 rules as possible and

to keep technology out of racing. Okay? So if a new, supposedly, quote,

better part came along . . . the biggest concern is something to come along

to make the other parts obsolete, forcing 4,000 race drivers to throw away

the equipment that they had and buy more. And that has been our

constant concern is to keep the technology out of racing. That’s why we

are concerned with people who try to circumvent the rules and introduce

this new technology.

The Brookins simply failed to present probative evidence that Bushore or TCI coerced

the IMCA rulings in question, or that IMCA’s decisions were made for reasons other

than those explained by Ms. Root. To be sure, Bushore and TCI -- as well as many

drivers -- raised with IMCA the question whether the novel Ernie Glide and Ernie Slide

transmissions were consistent with IMCA’s modified car rules. But it is to be expected

that contestants and competing suppliers will complain, or at least question, whether

a new technology complies with “the rules of the game.” This type of complaint is not

proof that IMCA’s rulings were the product of collusive rather than independent action.

See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 762-64 (1984). It is also

unsurprising that IMCA, when faced with a new transmission technology, consulted

other transmission manufacturers, as well as the Brookins, in investigating the rule

compliance issue. There is no evidence that IMCA had a financial incentive to accede

to the wishes of the Brookins’ transmission competitors -- sponsors of IMCAsanctioned events pay only modest fees to IMCA and spend most of their money on

advertising and driver prizes. There is no evidence that IMCA’s rulings were made for
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reasons other than its overall purpose to define a set of rules for a popular game. Thus,

the Brookins failed to present sufficient evidence of concerted action in restraint of

trade. See Corner Pocket of Sioux Falls, Inc. v. Video Lottery Techs., Inc., 123 F.3d

1107, 111-12 (8th Cir. 1997), cert. denied, 522 U.S. 1117 (1998).

On this record, the district court’s summary judgment rulings correctly perceived

the difference between conduct that injures competition generally, which is the concern

of the antitrust laws, and conduct that may violate other state laws which “provide

remedies for various competitive practices thought to be offensive to proper standards

of business morality.” NYNEX, 525 U.S. at 137 (quotation omitted). The Brookins

failed to present evidence of injury to competition, and their antitrust claim was

therefore dismissed. The jury found and remedied a violation of state law arising out

of the unfair manner in which IMCA amended and implemented its modified car

transmission rule. The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.