* Honorable Miriam Goldman Cedarbaum, of the United States District Court for the

Southern District of New York, sitting by designation.

06-1867-cv

MLB Properties v. Salvino

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2006

5 (Argued: January 23, 2007 Decided: September 12,2008)

6 Docket No. 06-1867-cv

7 _________________________________________________________

8 MAJOR LEAGUE BASEBALL PROPERTIES, INC.,

9 Plaintiff-Counterclaim-Defendant10 Appellee,

11 - v. -

12 SALVINO, INC.,

13 Defendant-Counterclaimant-Appellant.

14 _________________________________________________________

15 Before: KEARSE and SOTOMAYOR, Circuit Judges, and CEDARBAUM,

16 District Judge .

*

17 Appeal by defendant from so much of a judgment of the 

18 United States District Court for the Southern District of New 

19 York, Richard Conway Casey, Judge, as dismissed its counterclaim

20 alleging that the organization and activities of plaintiff as the

21 exclusive licensing agent for Major League Baseball intellectual

22 property constitute a per se or "quick-look" violation of the

23 Sherman Act, 15 U.S.C. § 1. See 420 F.Supp.2d 212 (2005).

24 Affirmed.
- 2 -

1 Judge Sotomayor concurs, in a separate opinion.

2 JAMES T. McKEOWN, Milwaukee, Wisconsin (G.

3 Michael Halfenger, Foley & Lardner,

4 Milwaukee, Wisconsin, Gary A. Adler,

5 Bingham McCutchen, New York,New York,

6 on the brief), for Plaintiff7 Counterclaim-Defendant-Appellee.

8 MAXWELL M. BLECHER, Los Angeles,California

9 (John E. Andrews, Blecher & Collins,

10 Los Angeles, California, on the

11 brief),for Defendant-Counterclaimant12 Appellant.

13 KEARSE, Circuit Judge:

14 Defendant Salvino, Inc. ("Salvino"), appeals from so much

15 of a final judgment of the United States District Court for the

16 Southern District of New York, Richard Conway Casey, Judge, as

17 dismissed its counterclaims alleging that the organization and

18 activities of plaintiff Major League Baseball Properties, Inc.

19 ("MLBP"), as the exclusive licensing agent for Major League 

20 Baseball (or "MLB") clubs' intellectual property, violate § 1 of the

21 Sherman Act, 15 U.S.C. § 1, and asserting "related state law 

22 claims" (Salvino brief on appeal at 2). The district court 

23 granted MLBP's motion for summary judgment dismissing those claims

24 on the grounds that MLBP's operations should be analyzed under the

25 rule of reason, and Salvino (a) failed to adduce evidence to show

26 that the challenged organization and activities have an actual

27 adverse effect on competition or that MLBP has sufficient market

28 power to inhibit competition market-wide, and (b) failed to offer
- 3 -

1 any evidence to support its state-law claims. On appeal, Salvino

2 challenges the dismissal of its § 1 antitrust claim, contending 

3 that the court should not have required evidence with regard to

4 market power or actual adverse effect on competition but should

5 instead have held MLBP's activities either illegal per se or 

6 illegal under a "quick-look" analysis. With regard to Salvino's

7 state-law claims, its brief on appeal contains no argument as to 

8 why the district court's dismissal was incorrect, and we therefore

9 regard any challenge to the dismissal of those claims as 

10 abandoned, see generally Hobbs v. County of Westchester, 397 F.3d

11 133, 147 (2d Cir.), cert. denied, 546 U.S. 815 (2005); Day v.

12 Morgenthau, 909 F.2d 75, 76 (2d Cir. 1990); Fed. R. App. P.

13 28(a)(9). For the reasons that follow, we reject Salvino's

14 contentions and affirm the dismissal of its antitrust claim.

15 I. BACKGROUND

16 Viewed in the light most favorable to Salvino, as the

17 party against which summary judgment was granted on the claim at

18 issue on this appeal, the following facts are not in dispute.

19 A. The Parties and the Licensing Dispute

20 MLBP is a wholly-owned subsidiary of Major League Baseball

21 Enterprises, Inc. ("MLBE"), an entity in which each of the 30
- 4 -

1 current MLB clubs (the "Clubs") owns an equal interest. MLBP is,

2 with limited exceptions, the exclusive worldwide agent for 

3 licensing the use of all names, logos, trademarks, service marks,

4 trade dress, and other intellectual property owned or controlled 

5 by the MLB Clubs, MLB's Office of the Commissioner ("BOC"), and 

6 MLBP (collectively "MLB Intellectual Property"), on retail 

7 products. MLBP also acts as agent for the Clubs with respect to,

8 inter alia, trademark protection, quality control, design 

9 services, royalty accounting, and auditing.

10 Salvino is a California corporation that produces, sells,

11 and distributes sports collectibles, including stuffed plush 

12 animals that are usually identified with sports celebrities.

13 Between 1989 and 2001, Salvino obtained licenses from MLBP to use

14 Club marks and other MLB marks on figurines of baseball players in

15 uniform. In the license agreements, Salvino promised not to use 

16 the marks in any manner other than as licensed.

17 In the spring of 1998, Salvino developed a line of plush,

18 bean-filled bears that it called "Bammers." Salvino obtained

19 licenses for sports-personality Bammers from, inter alia, National

20 Football League ("NFL") Properties, Inc., National Basketball

21 Association ("NBA") Properties, Inc., National Hockey League 

22 ("NHL") Enterprises, L.P., the NHL Players' Association, and

23 companies representing several professional figure skaters, as well

24 as from various individual NBA players, retired NFL players, 
- 5 -

1 current and retired MLB players, and drivers in the National

2 Association for Stock Car Auto Racing ("NASCAR").

3 Salvino produced baseball Bammers without Club logos for

4 sale to commercial outlets such as hobby shops, Hallmark stores, 

5 and other retail chains. In 1998 and/or 1999, it sold Bammers in

6 uniforms bearing Club logos to at least seven MLB Clubs, and sold

7 Bammers with Club logos only on the sales tags to two MLB Clubs, 

8 for retail sale in their stadia or for free stadium giveaways.

9 Salvino obtained licenses to use baseball player names and 

10 numbers from the Major League Baseball Players' Association, Inc.

11 ("MLB Players' Association"). However, despite discussing a

12 possible license from MLBP for the use of MLB Club logos on 

13 Bammers in early 1999, the only license for a Bammer that Salvino

14 obtained from MLBP was an April 1999 license for a Hank Aaron 

15 Bammer commemorating the 25th anniversary of Aaron's breaking Babe

16 Ruth's home run record.

17 In October 1999, MLBP learned that Salvino had sold

18 Bammers to the Arizona Diamondbacks baseball club with the

19 Diamondbacks logo on them; Salvino had not obtained an MLBP 

20 license to use that logo. MLBP sent Salvino a cease-and-desist

21 letter stating that Salvino was in violation of its existing 

22 license agreement with MLBP, in which "Salvino[ had] represent[ed]

23 and warrant[ed] that it would not, during the license period or 

24 any license period thereafter, use the Logos except as licensed
- 6 -

1 under the [license a]greement" (Letter from MLBP to Salvino dated

2 November 3, 1999, at 1). The letter stated that

3 [i]n addition, the unauthorized use of the

4 trademark constitutes trademark infringement. The

5 Arizona Diamondbacks have informed [MLBP] that,

6 although they reviewed artwork demonstrating the

7 appearance of the proposed product, they never gave

8 express consent to use the Arizona Diamondbacks'logo

9 featured thereon, nor are they being compensated by

10 Salvino (in the form of a royalty or otherwise) for

11 the use of the Logo.

12 (Id. at 1-2.)

13 Salvino responded by commencing an action against MLBP and

14 MLBE in federal court in California (the "California action"),

15 alleging that MLBP's activities violated §§ 1 and 2 of the Sherman

16 Act, 15 U.S.C. §§ 1 and 2, as well as § 7 of the Clayton Act,

17 15 U.S.C. § 18, and various state laws. As it related to the § 1

18 claim, Salvino's complaint in that action alleged principally that

19 [b]ecause [MLBP] distributes the income from its

20 exploitation of trademarks equally to each member

21 club--even though a relatively small number of clubs

22 generate[s] the bulk of the revenue--the incentive

23 of many major league clubs to invest in and promote

24 and compete through its [sic] trademark has been

25 diminished and suppressed. As a result, the

26 [agreement between MLBP and the Clubs] . . . has

27 reduced output, diminished the quality of product

28 offered to the public, diminished the choice of

29 product offered to the public, reduced and

30 suppressed price competition leading to higher

31 prices to the public and reduced market efficiency

32 to the detriment of the public.

33 (Salvino's California action complaint ¶ 13.)

34 In April 2000, MLBP commenced the present action against

35 Salvino, asserting claims under federal and state law for, inter
- 7 -

1 alia, trademark and trade dress infringement arising out of

2 Salvino's unauthorized use of MLB marks. Salvino's California

3 action was transferred to the Southern District of New York, where

4 it was consolidated with the present action, with Salvino's

5 California action claims becoming counterclaims in the present

6 action.

7 B. MLBP's Motion To Dismiss Salvino's § 1 Counterclaim

8 Eventually, all of the parties' respective claims, except

9 Salvino's counterclaims against MLBP for alleged violation of § 1 of

10 the Sherman Act and for alleged unfair competition and tortious

11 interference with contract under California and New York law,

12 respectively, were either abandoned or settled. In the meantime, 

13 to the extent pertinent to this appeal from the district court's

14 dismissal of Salvino's § 1 counterclaim, MLBP moved, following 

15 some three years of discovery, for summary judgment dismissing 

16 that claim.

17 In support of its summary judgment motion, MLBP submitted,

18 pursuant to Rule 56.1 of the Local Rules for the Southern 

19 District of New York ("Rule 56.1" or "Local Rule 56.1"), a 

20 statement of facts that it contended were undisputed ("MLBP Rule

21 56.1 Statement"). MLBP contended that the undisputed facts,

22 analyzed under the rule of reason, revealed that its conduct did 

23 not violate the Sherman Act. In support of its factual 
- 8 -

1 assertions, MLBP generally cited documents (filed under seal, and

2 hereby deemed unsealed to the extent described in this opinion), 

3 and submitted deposition testimony or sworn declarations to show 

4 the admissibility of the cited documents.

5 Salvino, in its response pursuant to Rule 56.1 ("Salvino

6 Response"), principally took the position that many of the facts 

7 set out by MLBP, while expressly "undisputed," were "not 

8 material," apparently on the theory that rule-of-reason analysis 

9 was inappropriate. (Salvino also contended that some of the

10 documents cited by MLBP were objectionable on grounds of hearsay 

11 and lack of foundation, objections that are unmeritorious (see 

12 Part II.A.3. below).) The following facts, in addition to those

13 described in Part I.A. above, are among those that are undisputed.

14 1. Major League Baseball

15 The Major League Baseball teams together produce an

16 entertainment product--the "MLB Entertainment Product"--that

17 consists of approximately 2,400 interrelated, professional 

18 baseball games per year played by the 30 MLB Clubs, leading to

19 separate playoff games for the American and National Leagues and

20 culminating each season with the World Series between the 

21 champion Clubs from the two Leagues. This entertainment product 

22 can be produced only by the Clubs operating together in the form of
- 9 -

1 a league; it cannot be produced by any one individual Club, or 

2 even a few Clubs. While squads of players from a single Club 

3 could play each other, the organization of the Clubs into a

4 nationwide league with geographic diversity and a common

5 championship goal, pursued in a structured manner employing 

6 uniform rules of play, has created a vastly different and more

7 marketable product than is created by scrimmages between squads of

8 players from a single Club or even by ad hoc "barnstorming" games

9 between Clubs outside of a large league structure. (See Salvino

10 Responses to MLBP Rule 56.1 Statement ¶¶ 41, 42.)

11 The MLB Entertainment Product, for which cooperation among

12 the Clubs is essential, affects the value of MLB Intellectual

13 Property. For example, during the baseball players' strike in 

14 1994 and 1995, revenues generated by sales of MLBP-licensed 

15 products decreased; after the strike ended and MLB games resumed,

16 those revenues increased. (See Salvino Responses to MLBP Rule 

17 56.1 Statement ¶¶ 44, 45.)

18 2. MLBP's Licensing and Policing Activities

19 MLBP was incorporated in 1966 by the then-existing MLB

20 Clubs (under the name Major League Baseball Promotion Corporation)

21 as a wholly-owned subsidiary of MLBE. Each of the current MLB 

22 Clubs owns an equal interest in MLBE and shares equally in its

23 profits. Prior to the formation of MLBP in 1966, there had been no
- 10 -

1 centralized source for the licensing of MLB Intellectual Property,

2 a fact that was cited to MLBP by potential licensees as the reason

3 for baseball's exclusion from certain marketing programs. (See

4 Salvino Response to MLBP Rule 56.1 Statement ¶ 20.) For example, at

5 a December 1966 meeting of the executive committee of MLBP's board

6 of directors, representatives of the Coca-Cola Company described a

7 football-related under-the-cap promotion that Coca-Cola had begun

8 three years earlier with the NFL. The representatives stated that

9 Coca-Cola had been unwilling to consider such a promotion using

10 baseball team logos because MLB's structure, on a nationwide basis,

11 was "'entirely too cumbersome.'" (Id. ¶ 22.) According to the

12 minutes of that meeting, the representatives stated that Coca-Cola

13 became willing to consider an under-the-cap promotion using MLB

14 Intellectual Property once the company learned that the Clubs were

15 creating an entity that could negotiate an agreement on behalf of

16 all of the Clubs.

17 When created in 1966, MLBP was given (a) the exclusive

18 right to market and promote the official name and logo of Major

19 League Baseball, (b) a non-exclusive right to license the names and

20 logos of the National and American Leagues, and (c) the right to

21 submit licensing proposals for Club marks to the Clubs for their

22 approval. (See Salvino Response to MLBP Rule 56.1 Statement ¶ 16.)

23 Since 1984, MLBP's operations and the relationships between MLBP and

24 the Clubs have been governed by a series of three-to-five-year
- 11 -

1 agency agreements, collectively called the "Agency Agreement." In

2 1984, the Agency Agreement increased MLBP's authority by giving it

3 the exclusive right--subject to limited exceptions--to license Club

4 names and logos for use on retail products for national and

5 international (i.e., not merely local) distribution. (See id.

6 ¶ 17.) In 1987, the Agency Agreement further expanded MLBP's

7 authority, granting it the exclusive right (again with limited

8 exceptions) to license Club names and logos for use on products to

9 be sold at retail within the Clubs' respective local markets. (See

10 id. ¶ 18.) Thus, since 1987, the retail sale of any products

11 bearing an MLB Club's name or logos must be licensed by MLBP, even

12 if the products are sold at a concession stand inside the Club's

13 stadium. (See id. ¶ 11.)

14 From 1966 until 1987, MLBP had relied on the Licensing

15 Corporation of America ("LCA") as its subagent to license MLB

16 Intellectual Property. LCA, however, also marketed the intellectual

17 property of a number of other groups, including the NHL and NHL

18 teams. And, in addition, as a division of Warner Communications,

19 LCA licensed intellectual property relating to numerous cartoon and

20 comic book characters. (See Salvino Responses to MLBP Rule 56.1

21 Statement ¶¶ 23, 24.) In 1987, when MLBP's exclusive right to grant

22 licenses for use of the Clubs' intellectual property on retail

23 products was expanded to encompass the Clubs' respective local

24 markets, MLBP ceased to grant licenses through LCA and began
- 12 -

1 licensing MLB Intellectual Property directly. (See id. ¶ 25.) In

2 that year, total revenues from the licensing of MLBP Intellectual

3 Property more than doubled; and between January 1, 1987, and October

4 24, 1988, MLBP increased the number of its licensees from 100 to

5 250. (See id. ¶¶ 26, 28.) By August 2003, when it filed its Rule

6 56.1 Statement, MLBP had outstanding more than 300 licenses for the

7 production of some 4,000 different products for retail sale in the

8 United States bearing or reflecting MLB Intellectual Property (see

9 id. ¶ 35), and had issued licenses to some 170 licensees for such

10 products to be sold outside of the United States (see id. ¶ 36).

11 The Agency Agreement and the Operating Guidelines that are

12 incorporated in it leave the Clubs free to grant licenses with

13 respect to their own intellectual property to a limited extent. For

14 example, a Club is allowed to issue licenses for the use of its

15 intellectual property on products that it gives away at a home game;

16 intellectual property of the visiting Club in such a game may also

17 be used on the "giveaway" product with the approval of the visiting

18 Club and MLBP. (See Salvino Responses to MLBP Rule 56.1 Statement

19 ¶¶ 12, 14.) No other MLBP license or approval is required for such

20 giveaways so long as they do not include the marks of another MLB

21 Club, MLBP, or the BOC. (See id.)

22 In addition, a Club may use its own marks or license

23 others to use its marks to create home video products about the

24 individual Club, to be sold or given away within the Club's home
- 13 -

1 broadcasting territory (as defined for each Club in the Operating

2 Guidelines). MLBP licenses the use of BOC and MLBP marks for use in

3 such home videos at the request of the Club. The Operating

4 Guidelines also provide that a Club may license the use of its marks

5 on hot dogs and similar items distributed or sold within its home

6 broadcasting territory; MLBP has no authority to grant licenses for

7 such items without obtaining the Club's prior approval. A Club also

8 has the right, within its home broadcasting territory, to use and

9 license others to use its marks to advertise and promote the Club's

10 cruises and fantasy, educational, or summer camps.

11 Under the Agency Agreement, MLBP is also responsible for,

12 inter alia, protecting and licensing logos and trademarks owned by

13 the MLB Clubs, such as the "SF" logo of the San Francisco Giants,

14 and protecting and licensing logos and trademarks owned by the BOC

15 and MLBP itself, such as the "Major League Baseball" word mark, the

16 World Series logos, and the famous silhouetted batter logo. (See

17 Salvino Response to MLBP Rule 56.1 Statement ¶ 3.) The Agency

18 Agreement provides that, as the exclusive licensor of the Clubs'

19 intellectual property for use on products to be sold at retail, MLBP

20 guarantees to the Clubs that all licenses will impose quality

21 controls and will enhance the image of MLB, and that MLBP will

22 protect and preserve the intellectual property of the Clubs and the

23 goodwill that that property represents.

24 Infringing parties often use the trademarks of multiple
- 14 -

1 Clubs, with the result that more than one Club's intellectual

2 property rights are infringed simultaneously. (See Salvino Response

3 to MLBP Rule 56.1 Statement ¶ 66.) As a centralized licensing

4 agent, MLBP is able to identify from its own records whether a

5 particular product bearing MLB Intellectual Property is licensed and

6 thus to determine efficiently whether or not it infringes on MLB

7 Intellectual Property. (See id. ¶ 71.) In order to protect that

8 property, MLBP sends or causes to be sent more than 100 cease-and9 desist letters every year. (See id. ¶ 67.)

10 3. The Market in Which MLBP Licenses Compete

11 MLBP asserted the view, which Salvino criticized as "a

12 self-serving view," that other sports leagues such as the NBA, the

13 NFL, the NHL, and the Women's National Basketball Association, as

14 well as non-sports entertainment purveyors such as Nickelodeon and

15 Disney, are among MLBP's competitors in the licensing of

16 intellectual property for use on retail products. (See Salvino

17 Responses to MLBP Rule 56.1 Statement ¶¶ 50, 52.) For example, Team

18 Beans, a competitor of Salvino that obtained licenses for MLB

19 Intellectual Property from MLBP for use on plush toys, also held

20 licenses to use trademarks from a variety of other licensors,

21 including the Olympics, the NFL, the NHL, the MLB Players'

22 Association, and NASCAR. (See id. ¶ 57.)

23 A market research study conducted for MLBP, whose goals
- 15 -

1 included increasing game attendance, media audiences, and sales of

2 MLB Intellectual Property, found that baseball does not compete with

3 just one sport, or even only with sports. It found that the

4 competitive arena for baseball is "'a wide range of leisure and

5 entertainment options that vary with target group and lifestyle.'"

6 (Salvino Response to MLBP Rule 56.1 Statement ¶ 55.) Thus, the MLBP

7 1996 Business Plans' list of MLBP's major competitors for

8 intellectual property licensing included the following: branded

9 apparel manufacturers such as Nike, Reebok, Russell, Champion, Big

10 Dog, and No Fear; other sports entities such as the NBA, the NFL,

11 the NHL, NASCAR, collegiate groups, and the 1996 Summer Olympics;

12 and entities, such as Warner Brothers and Disney, that offered

13 licenses to use intellectual property relating to, e.g., Looney

14 Tunes, Power Rangers, Peanuts, Nickelodeon, Batman, SpaceJam, and

15 Goosebumps. (See id. ¶ 56.)

16 In 1998, Salvino itself sold Bammers that were licensed

17 by, among others, the MLB Players' Association, NFL Properties, Inc.

18 ("NFL Properties"), and the NHL Players' Association. (See Salvino

19 Response to MLBP Rule 56.1 Statement ¶ 101.) Salvino, which had had

20 total sales of less than $1 million in 1997, developed the Bammer in

21 the spring of 1998 and had revenues of $17 million from the sale of

22 Bammers in 1998; in 1999, Salvino had revenues of $30 million. (See

23 id. ¶¶ 100, 101, 102.)

24 In a September 1999 marketing plan that Salvino submitted
- 16 -

1 to MLBP, Salvino stated that it had sold Bammers licensed by the

2 above sports organizations, as well as "Muhammad Ali" Bammers, Ice

3 Bammers, and Basketball Bammers, and various other individually

4 licensed Bammers. Seeking an MLBP license for MLB Intellectual

5 Property for use on a photo ball and photo bat, Salvino stated that

6 it proposed to sell those items in the same target market in which

7 it sold Bammers. (See Salvino Response to MLBP Rule 56.1 Statement

8 ¶ 107.) Salvino described its target market as retailers that have

9 the potential to carry "sports licensed products." (Id.) Salvino

10 stated that its primary targets included stadium concessionaires and

11 sporting goods retailers and that its secondary targets were

12 "retailers of licensed sport products who have the capacity to

13 purchase in volume"; it stated that "'our most important competition

14 comes from companies that currently distribute sports licensed

15 products. These products compete directly for limited shelf space

16 devoted to this product category.'" (Id.)

17 Thus, in addition to selling its Bammers to MLB Clubs and

18 stadium concessionaires (see Salvino Response to MLBP Rule 56.1

19 Statement ¶ 112), Salvino sold Bammers to "hobby shops, sports

20 collectible shops, Hallmark stores and retail chains" (id. ¶ 111).

21 Rick Salvino, Salvino's president since 1988, testified that the

22 Bammers competed with everything in the store for shelf space (see

23 id. ¶¶ 93, 113): "'Everybody is a competitor. Anybody in a gift

24 store that sells a product is a competitor of mine, because we're
- 17 -

1 all fighting for shelf space, for any store for that matter

2 . . . .'" (Id. ¶ 114.) Wayne Salvino, Salvino's vice president

3 from at least early 1989 until December 2001, testified that Salvino

4 competed with numerous other producers of plush items, as well as

5 "'anybody who produces sports licensed products; anybody who

6 produces, you know, signed products, collectibles, memorabilia;

7 anybody who produces licensed key chains, zipper pulls, non-licensed

8 key chains, zipper pulls.'" (Id. ¶¶ 94, 116.) Similarly, in its

9 sales presentations to the MLB Players' Association, NFL Properties,

10 and NBA Properties, Inc. ("NBA Properties"), Salvino stated that the

11 market for Bammers licensed by those sports organizations would be

12 the "'sports collectibles hobby'" market. (Id. ¶¶ 117, 118, 119.)

13 In its proposal to the MLB Players' Association, for example, it

14 stated that "'[a]n additional market which would be targeted for

15 distribution would be the general collectibles market. This market

16 is represented by thousands of gift stores, specialty stores, major

17 department stores, catalogs, and other forms of direct marketing

18 through the mass media that currently market this category of

19 product.'" (Id. ¶ 117.) The business plan that Salvino submitted

20 to NFL Properties described Salvino's Bammers as falling within the

21 "'novelty and memorabilia market.'" (Id. ¶ 118.) And in the plan

22 it submitted to NBA Properties, Salvino stated that its products,

23 including Bammers, were in both the "'sports collectibles hobby'"

24 market and the "'general retail market.'" (Id. ¶ 119.) Salvino's
- 18 -

1 Bammers brochure declared Bammers to be "'America's Number 1 Sports

2 Collectible'" with respect to its entire product line of Bammers,

3 e.g., baseball, football, boxing, basketball, ice skating, hockey,

4 and NASCAR. (Id. ¶ 120.)

5 MLBP also asserted, without meaningful disagreement from

6 Salvino, that other professional sports groups, like MLB, employ

7 centralized marketing entities. For example, Salvino did not

8 dispute that the MLB Players' Association, the union that represents

9 MLB players, states that it is the exclusive holder of all right,

10 title, and interest in the group licensing of names, nicknames,

11 likenesses, and signatures of any group of three or more active MLB

12 players. (See Salvino Response to MLBP Rule 56.1 Statement ¶ 4.)

13 Nor did Salvino dispute that, according to their respective standard

14 licenses, (a) NFL Properties has the exclusive right to license for

15 commercial purposes the trademarks of the NFL and its member teams;

16 (b) NBA Properties has the exclusive right to license for commercial

17 purposes the use of certain names, logos, symbols, emblems, designs,

18 and uniforms, etc., of the NBA, along with the names, nicknames,

19 photographs, likenesses, signatures, and other identifiable features

20 of current NBA players; and (c) NHL Enterprises, L.P. ("NHL

21 Enterprises"), has the exclusive right to license for commercial

22 purposes the names, nicknames, logos, colors, and uniform designs,

23 etc., of the member teams of the NHL, the numbers appearing on NHL

24 players' uniforms, the name, initials, insignia, and other indicia
- 19 -

1 of the NHL itself, and the name and likeness of the Stanley Cup.

2 (See id. ¶¶ 5, 6, 7.)

3 Wayne Salvino testified at his deposition that one

4 advantage to Salvino of the NFL's centralized licensing structure

5 was that NFL Properties offered a package of certain players and all

6 team logos, allowing that entity to serve as a "'one-stop shop.'"

7 (Salvino Response to MLBP Rule 56.1 Statement ¶ 49.)

8 4. The Views of the Parties' Respective Economists

9 Toward the end of the discovery period, MLBP had taken the

10 deposition of Salvino's expert economist, Louis A. Guth, who had

11 prepared a report in which he opined that MLBP functions as an

12 "economic cartel" (Expert Report of Louis A. Guth dated February 27,

13 2003 ("Guth Report"), ¶ 6; see, e.g., id. ¶¶ 17-19). The Guth

14 Report stated that "MLBP quite likely exercises sufficient control

15 over pricing licenses for use of club marks for plush toys and

16 similar products so that these constitute a relevant market." (Id.

17 ¶ 23.) In his deposition testimony, discussed in greater detail in

18 Part II.C.4.c. below, Guth stated that MLBP limits output and sets

19 prices (see generally Deposition of Louis A. Guth, March 26, 2003

20 ("Guth Dep."), at 140), and he opined that efficient licensing of

21 MLB Intellectual Property could be accomplished through the use of

22 less restrictive alternatives (see id. at 78-79). He testified that

23 the relevant market could be determined by conducting a "discrete
- 20 -

1 choice survey" of consumers to determine whether changes in the

2 prices of various products would affect the consumers' product

3 preferences (id. at 25-27); however, Guth had conducted no empirical

4 studies of any kind (see id. at 23-24, 34-36, 46, 50, 137-38).

5 MLBP, in support of its motion for summary judgment,

6 presented the April 11, 2003 report of its expert economist,

7 Professor Franklin M. Fisher ("Fisher Report"), analyzing MLBP's

8 functions and the product market within which MLBP operates, and

9 disputing the views of Guth. Fisher opined, inter alia, that MLBP

10 is not a cartel and should instead be viewed as a joint venture;

11 that the relevant product market consists at the very least of

12 licenses for all sports and entertainment intellectual property,

13 rather than just for MLB Intellectual Property; and that the

14 centralization of MLB Intellectual Property licensing and other

15 functions in MLBP produces procompetitive efficiencies.

16 Fisher pointed out that "[t]he customers [for] MLB

17 Intellectual Property are prospective licensees that use MLB

18 Intellectual Property to sell products." (Fisher Report ¶ 8.)

19 Although Guth had suggested that the relevant market could be

20 determined by conducting a survey to ascertain whether the product

21 preferences of consumers were responsive to retail price variations,

22 Fisher stated that "it is important to be clear that the relevant

23 customers for MLB Intellectual Property are the prospective

24 licensees of intellectual property and it is their demand and the
- 21 -

1 alternatives that they face that determine the boundaries of the

2 relevant market" (id. ¶ 18 (emphases in original)). "The demand of

3 ultimate consumers for goods such as plush toys . . . that use

4 intellectual property . . . is relevant only because such demand

5 influences the derived demand of direct customers, the licensees."

6 (Id.)

7 Fisher stated that "[a]vailable to these customers [i.e.,

8 potential licensees] is a wide array of intellectual property

9 licensors, ranging from the different sports leagues, to

10 entertainment companies like Warner Brothers and Disney, to clothing

11 designers like Calvin Klein and Tommy Hilfiger, to name a few."

12 (Fisher Report ¶ 8.) He opined that MLB competes with numerous

13 other entertainment entities, including the NFL, the NHL, the NBA,

14 and NASCAR, as well as Major League Soccer, the Professional Golfers

15 Association, the Ladies Professional Golf Association, the

16 Association of Tennis Professionals, the Olympics, motion pictures,

17 television and radio programming, and a host of other sports and

18 entertainment producers with respect to the licensing of

19 intellectual property for retail products. (See id. ¶ 15.) He

20 stated that "[t]he relevant antitrust market in which MLBP competes

21 is the worldwide market for the licensing of intellectual property

22 for use in the production of consumer goods and services"; but even

23 if the market were defined "as only the licensing of the

24 intellectual property related to sports and certain entertainment
- 22 -

1 products," MLBP lacks power in this relevant market. (Id. ¶ 10.)

2 Within the relevant market, Fisher opined that the

3 interdependence of the MLB Clubs and the way in which MLBP operates

4 reveal that MLBP functions as a joint venture, not a cartel:

5 Despite Mr. Guth's assertion to the contrary, MLBP

6 is not a cartel. Rather, it functions as a joint

7 venture. Mr. Guth bases his conclusion that MLBP is

8 a cartel on the observation that a cartel would seek

9 authority over many of the same activities over

10 which MLBP has authority. However, as Mr. Guth

11 acknowledged at his deposition, this observation (or

12 his characterization of MLBP as a "cartel") is an

13 insufficient basis for concluding that MLBP is

14 acting anticompetitively. This is because

15 legitimate joint ventures need to have control over

16 the very activities identified by Mr. Guth. Here,

17 such control is necessary in order for the Clubs and

18 the league as a whole to compete adequately against

19 other sports and entertainment products. The MLB

20 Clubs jointly produce their product and jointly

21 create and enhance the value of MLB Intellectual

22 Property. It is entirely natural and, indeed,

23 procompetitive that they should exploit that value

24 together . . . .

25 22. Mr. Guth states in his report that

26 otherwise independent firms become "members of a

27 cartel [and choose to] forego individual benefits

28 [or their independence] in order to reduce

29 competition among the members." By contrast, a

30 joint venture consists of a group of interdependent

31 firms that could not otherwise function as

32 productively. Indeed, an important difference

33 between a legitimate joint venture comprised [sic]

34 of constituent parts and a cartel among competitors

35 stems, in part, from the degree of integration among

36 the constituent parts of the organization. Where

37 the constituent parts of an organization are highly

38 integrated and interdependent, it is appropriate to

39 view the organization as a joint venture. Only

40 where the constituent members of an organization are

41 not highly integrated, but are independent sources

42 of economic power with respect to the business of

43 the entity, could it be appropriate to view the
- 23 -

1 organization as a cartel.

2 (Fisher Report ¶¶ 21, 22 (footnotes omitted) (emphases added).)

3 Here, the Clubs are interdependent, even in relation to MLB

4 Intellectual Property:

5 [T]he value of MLB Intellectual Property is derived

6 in large part from the value of the MLB

7 Entertainment Product created jointly by Major

8 League Baseball. As a result, the popularity, and

9 hence any economic power, of a particular Club stems

10 from, and is dependent on, the Club's membership in

11 MLB and the marketing efforts of MLB. For example,

12 no matter how successful the Yankees have been, the

13 Yankees marks would have little value over time if

14 the Yankees no longer competed with other Clubs in

15 Major League Baseball. Indeed, the drop in

16 popularity of former Club names, such as the

17 Washington Senators, the Houston Colt 45s, and the

18 St. Louis Browns, demonstrates this fact. The

19 individual trademarks, trade dress, service marks,

20 and other intellectual property that make up MLB

21 Intellectual Property would have little or no value

22 in the absence of their association with the MLB

23 Entertainment Product. Thus, unlike a collection of

24 otherwise independent firms that join together to

25 form an anticompetitive cartel, MLB Clubs are highly

26 interdependent.

27 (Id. ¶ 24.)

28 Fisher noted further that a cartel would seek to maximize

29 its profits by charging high prices to some licensees and low prices

30 to others, depending on the ease with which a particular licensee

31 could substitute another product for that offered by the cartel. He

32 pointed out that MLBP, in contrast, sets a standard royalty

33 percentage for a product using a given type of any Club's

34 intellectual property, irrespective of variations in the Clubs'

35 popularity as reflected by their respective fan bases. (See Fisher
- 24 -

1 Report ¶ 29.)

2 In this context, it is important to note that Major

3 League Baseball fans are separable based on their

4 loyalty to a particular Club. In this situation, a

5 monopoly or cartel would surely set separate royalty

6 rates to maximize profits. Contrary to the

7 assertions of Mr. Guth, the very fact that MLBP does

8 not do this indicates that it faces competition from

9 other entertainment products and is not a cartel.

10 (Id. ¶ 30 (emphasis added).) In addition, while "a cartel serves to

11 decrease output," MLBP had instead increased, not decreased, the

12 retail sales of MLB-licensed consumer products. (Id. ¶ 27.) Fisher

13 noted that MLBP business records showed that "[p]rior to the

14 creation of MLBP, MLB had only limited commercial development and

15 protection of its intellectual property." (Id.)

16 Fisher opined that the Clubs' use of MLBP "achieve[s]

17 numerous efficiencies and procompetitive benefits that would not

18 exist if each Club managed and licensed its intellectual property

19 independently." (Fisher Report ¶ 31.) For example, benefiting the

20 Clubs, MLBP negotiates and signs licenses on their behalf and

21 manages the day-to-day relationships with the licensees. (See id.

22 ¶¶ 33, 52.) Among the efficiencies benefiting licensees is the

23 availability of "one-stop shopping," for no individual Club could

24 grant a license to use the intellectual property of another Club or

25 of MLBP or the BOC; in contrast, MLBP can grant a license for any

26 one, or any combination, or all of those entities' intellectual

27 property. (Id. ¶ 32.) Fisher stated that

28 [i]n the absence of one-stop shopping, licensees
- 25 -

1 would incur substantial additional transaction

2 costs; for some, these additional costs would be

3 sufficiently large so as to prevent the licensees

4 from producing some or all of the MLB-related

5 products that they currently produce. Clubs would

6 also incur greater expenses in the form of

7 additional personnel costs to handle the added

8 licensing functions for which they currently rely on

9 MLBP and its centralized administration. Thus, the

10 absence of one-stop shopping may well reduce output

11 in the markets in which those licensees compete.

12 (Id. ¶ 34 (footnote omitted) (emphasis added).) In consequence, he

13 concluded,

14 one-stop shopping helps broaden the product

15 offerings of MLB Intellectual Property, both to

16 include products that require the use of

17 intellectual property of all 30 MLB Clubs as well as

18 to include product lines that Clubs would normally

19 not spend the money to develop or license. Because

20 it has centralized control over all consumer product

21 licenses, MLBP can ensure that MLB Intellectual

22 Property is licensed for use on a broad array of

23 consumer products. Over the years, this has meant

24 that MLBP has licensed MLB Intellectual Property for

25 use in products such as video games, women's

26 apparel, and household goods. Given the

27 difficulties associated with product licensing and

28 administration, absent MLBP, it is unlikely that the

29 Clubs would ensure such a broad product offering.

30 (Id. ¶ 37.)

31 Fisher also opined that centralization of MLB Intellectual

32 Property licensing tasks in MLBP also creates efficiencies in

33 quality control and in the effective protection of the Clubs'

34 trademarks. For example,

35 [s]tate, federal and international laws require

36 trademark owners to police and enforce their marks

37 in order to retain them. The centralization of MLB

38 Intellectual Property licensing enables MLBP to

39 undertake extensive enforcement activities that the
- 26 -

1 individual Clubs would not have the capacity to

2 undertake if left to protect their intellectual

3 property o[]n their own. If the Clubs could not

4 protect all of their intellectual property, they

5 would risk losing some, if not a great deal, of

6 those rights. Moreover, if those rights were not

7 protected, the licenses for those rights would have

8 much less value, if any value at all.

9 (Fisher Report ¶ 38; see also id. ¶ 39 (protection of MLB

10 Intellectual Property against infringers also benefits MLBP's

11 licensees, who would otherwise fear that their promotional efforts

12 would be eroded by unfair competition from products that were

13 unlicensed or counterfeit).) Having MLBP carry out the enforcement

14 function avoids a multiplicity of overlapping efforts by the 30

15 Clubs to, for example, register all of their trademarks in each

16 country in which such intellectual property might be used, and

17 enforce their respective intellectual property rights throughout the

18 United States and around the world. (See id. ¶¶ 41, 43.)

19 Fisher took issue with Guth's less-restrictive20 alternatives hypothesis--referred to as a "but-for" world--in which

21 Guth proposed that each of the 30 Clubs would negotiate its own

22 licensing agreements, set its own royalty rates, and perform its own

23 quality control, and MLBP would be responsible only for enforcement,

24 maintaining a centralized database of royalty rates and payments,

25 and acting essentially as a referral service for prospective

26 licensees. (See Fisher Report ¶ 76.) Fisher stated that

27 centralized licensing

28 simplifies the task of determining whether a
- 27 -

1 potentially infringing product is in fact licensed

2 by MLBP or the Clubs. Responsible for retail

3 product licensing, MLBP knows from its own records

4 and history whether or not a particular product is

5 licensed. In the apparent "but-for" world

6 envisioned by Mr. Guth, where MLBP would retain only

7 certain of its functions, MLBP would either need to

8 track all licenses entered into by any Club or to

9 contact every Club in order to determine whether

10 products bearing Club marks are licensed or

11 counterfeit. This significantly adds to the cost of

12 enforcement. In addition, Mr. Guth's scenario

13 ignores that time is often of the essence when

14 dealing with enforcement activities, in that there

15 is often a need to respond immediately to a call or

16 complaint about counterfeit goods.

17 (Id. ¶ 42.)

18 Further, as to quality control, Fisher maintains that

19 centralization of licensing in MLBP benefits the licensees of MLB

20 Intellectual Property because they are, inter alia, able to obtain

21 the necessary quality approvals from a single source, rather than

22 having to obtain approvals from myriad separate control centers,

23 including from some Clubs that may take lengthy periods of time to

24 respond. (See Fisher Report ¶ 49.) In addition, licensees can be

25 confident that all MLBP licensees will be held to the same standard,

26 thereby eliminating the possibility that competitors who are less

27 quality-oriented will free-ride on the efforts and investments of

28 licensees who are conscientious. (See id.) Centralized quality

29 monitoring also benefits the Clubs and MLB because it assures a

30 uniform standard of excellence that will reflect appropriately on

31 the image of Major League Baseball and each of the MLB Clubs. (See

32 id. ¶ 46.)
- 28 -

1 According to Fisher, use of MLBP for centralized licensing

2 also provides other efficiencies, administrative and creative. For

3 example, having developed substantial expertise as to how well

4 various product lines are likely to succeed in the marketplace, MLBP

5 spends substantial time working with its licensees to help them

6 develop new products and determine how best to market their existing

7 products. (See Fisher Report ¶ 52.) Centralization in MLBP avoids

8 the necessity for each of the 30 individual Clubs to spend the time

9 and money that would be needed to develop its own sales and

10 marketing expertise in order to provide sales and marketing support

11 to licensees of Club intellectual property. (See id. ¶ 58.) The

12 use of a central repository where licensees report sales and pay

13 royalties also avoids the need for each Club to develop and maintain

14 its own collection system, as well as the need for licensees to

15 learn varied reporting requirements that would likely be entailed by

16 different royalty rates for each Club and to keep track of the

17 multiple royalties required for products that use more than one

18 mark. (See id. ¶ 60.)

19 Fisher opines that all of the efficiencies gained by the

20 centralization in MLBP of the licensing, enforcement, monitoring,

21 and administrative functions with respect to MLB Intellectual

22 Property 

23 translate directly into cost savings that can be

24 passed on to licensees and, in turn, consumers of

25 MLBP licensed merchandise. If Clubs were to handle

26 these functions separately, their costs would
- 29 -

1 increase and, consequently, so too would the royalty

2 rates needed to recoup these costs. Indeed, higher

3 costs would force Clubs to either raise their

4 royalty rates or simply decide not to license

5 certain products out of concern for covering costs.

6 (Fisher Report ¶ 31; see also id. ¶¶ 41, 50.)

7 Finally, Fisher also opined that because the value of MLB

8 Intellectual Property is dependent on the popularity of the MLB

9 Entertainment Product, and the popularity of the MLB Entertainment

10 Product depends in turn on the integrated efforts of the Clubs, the

11 absence of centralized licensing could lead to various occurrences

12 of what economists refer to as the "free-rider" problem, i.e., one

13 entity's cashing in on the efforts of another. For example, if the

14 Clubs granted licenses directly, a Club that was popular because of

15 its on-field success could cash in on its popularity even though its

16 victories obviously could not have been achieved without the

17 participation of other Clubs. Or if a Club granted a license to one

18 entity to use its logo on a certain product and MLBP granted such a

19 license to a competing entity for the same product, and only one of

20 the licensees invested in the promotion of that product, the non21 promoting licensee would gain sales based on the conscientious

22 licensee's efforts. (See Fisher Report ¶¶ 67-70.)

23 Fisher concluded that Guth's view that individual Clubs

24 should set their own royalty rates, thereby allowing the more

25 popular Clubs to set higher rates than the less popular Clubs,

26 ignored the interdependence of the Clubs in providing the MLB
- 30 -

1 Entertainment Product and the need for

2 competitive balance, which reflects the expected

3 equality of opportunity to compete and prevail on

4 the field. Competitive balance also relates to the

5 fans' expectations that each team is a potential

6 champion--i.e. that each Club has a reasonable

7 opportunity to win each game and also to compete for

8 a championship.

9 (Fisher Report ¶ 14.) "Mr. Guth's preferred distribution of

10 licensing royalties would foster a competitive imbalance by over11 compensating the popular team for the joint efforts of all Clubs."

12 (Id. ¶ 81.) The resulting imbalance would "ultimately harm all

13 Clubs by leading to a less interesting MLB Entertainment Product,

14 which would make it difficult for MLB to compete against other

15 sports and entertainment products." (Id.)

16 Salvino, in opposition to MLBP's summary judgment motion,

17 submitted a rebuttal report and declaration by Guth in response to

18 the Fisher Report (see Expert Rebuttal Report of Louis A. Guth dated

19 May 8, 2003 ("Guth Rebuttal Report"); Declaration of Louis A. Guth

20 dated September 22, 2003 ("Guth Decl.")), reiterating views set out

21 in the initial Guth Report (see, e.g., Guth Decl. ¶¶ 2, 6). Guth

22 argued that the efficiencies and procompetitive effects that the

23 Fisher Report opined resulted from centralization of MLB

24 Intellectual Property licensing in MLBP could be achieved by less

25 restrictive means. (See, e.g., id. ¶¶ 8-18.)

26 Salvino presented no factual evidence to refute the

27 evidence cited in MLBP's summary judgment motion. For example,
- 31 -

1 while Salvino posited that any increased licensing by MLBP was

2 caused simply by a boom in consumer demand (see, e.g., Salvino

3 Responses to MLBP Rule 56.1 Statement ¶¶ 34-36), citing paragraph 4

4 of the Guth Declaration, the Declaration cited no facts, did not

5 opine as to causation, and was equivocal as to whether there had

6 even been such an increase in demand. That paragraph stated only

7 that the increases in the number of licenses granted by MLBP over

8 the years "would appear to be more consistent with a general

9 increase in consumer interest in licensed retail merchandise of all

10 sorts" (Guth Decl. ¶ 4 (emphasis added)), and then stated that

11 MLBP's increase in revenues "may well not reflect higher demand,"

12 but might instead reflect higher prices resulting from "an overall

13 shift out in demand for such merchandise" (id. (first emphasis in

14 original; second emphasis ours)).

15 Instead of attempting to show that there were genuine

16 disputes of material fact, Salvino took the position that MLBP's

17 factual evidence, submitted in support of rule-of-reason analysis,

18 was largely irrelevant. It urged the court, instead of applying the

19 rule of reason, to apply the per se or "quick-look" standard of

20 liability.

21 C. The Decision of the District Court

22 In an Opinion and Order dated November 16, 2005, reported

23 at 420 F.Supp.2d 212, the district court granted MLBP's motion for
- 32 -

1 summary judgment dismissing Salvino's § 1 counterclaim. The court

2 noted that on a motion for summary judgment, once the moving party

3 has proffered facts to show that there is no genuine issue as to any

4 material fact and that that party is entitled to judgment as a

5 matter of law, "the opposing party must present 'specific facts

6 showing [that] there is a genuine issue for trial.'" 420 F.Supp.2d

7 at 218 (quoting Fed. R. Civ. P. 56(e)). "[T]he non-moving party

8 'may not rely on conclusory allegations or unsubstantiated

9 speculation.'" 420 F.Supp.2d at 218 (quoting Scotto v. Almenas, 143

10 F.3d 105, 114 (2d Cir. 1998)).

11 As a matter of substance, the court began by rejecting

12 Salvino's contentions that the operations of MLBP as centralized

13 licensor should be ruled illegal per se. It noted that "[f]or

14 conduct to be illegal per se, it must fall within the narrow range

15 of behavior that is considered so plainly anti-competitive and so

16 lacking in redeeming pro-competitive value that it is presumed

17 illegal without further examination." 420 F.Supp.2d at 219

18 (internal quotation marks omitted). "Restraints such as price

19 fixing, market divisions, tying arrangements, and group boycotts

20 have all been found to be unreasonable in and of themselves." Id.

21 (internal quotation marks omitted). The district court noted that

22 the Supreme Court in Broadcast Music, Inc. v. Columbia Broadcasting

23 System, Inc., 441 U.S. 1 (1979) ("Broadcast Music"), had "found that

24 the [defendants'] blanket licensing arrangement was not per se
- 33 -

1 unlawful because it was 'not a naked [restraint] o[f] trade with no

2 purpose except stifling of competition, but rather accompanies the

3 integration of sales, monitoring, and enforcement against

4 unauthorized copyright use.'" 420 F.Supp.2d at 219 (quoting

5 Broadcast Music, 441 U.S. at 20) (other internal quotation marks

6 omitted). The district court stated,

7 [s]imilarly, this Court finds that MLBP's role in

8 licensing MLB intellectual property is not a naked

9 restraint on trade. Like the license agreement in

10 Broadcast Music, it also facilitates the efficient

11 protection and quality control of MLB intellectual

12 property.

13 420 F.Supp.2d at 219. The district court noted in addition that

14 courts have refused to apply the per se rule of liability to sports

15 leagues because cooperation among teams, in addition to any

16 anticompetitive effects, can have legitimate purposes, such as

17 enabling and coordinating the contests. See id.

18 The district court also rejected Salvino's contention that

19 the centralization of licensing in MLBP should be held illegal on a

20 quick-look analysis. Under quick-look analysis, a practice may be

21 held illegal

22 "[if] an observer with even a rudimentary

23 understanding of economics could conclude that the

24 arrangements in question would have an

25 anticompetitive effect on customers and

26 markets." . . . The "quick-look analysis carries

27 the day when the great likelihood of anticompetitive

28 effects can easily be ascertained." . . . It is

29 not appropriate, however, where the anticompetitive

30 effects of an agreement are not obvious or [the

31 agreement] may "have a net procompetitive effect, or

32 possibly no effect at all on competition."
- 34 -

1 Id. at 220 (quoting California Dental Ass'n v. FTC, 526 U.S. 756,

2 770, 771 (1999)). The court found quick-look analysis inappropriate

3 in the present case.

4 MLBP's expert identifies several procompetitive

5 justifications for MLBP's arrangement, including the

6 benefits of one-stop shopping for MLB intellectual

7 property . . . and the efficiencies of enforcement,

8 quality control, and coordinated promotion, design,

9 sales, and marketing support . . . . While

10 Salvino's expert conclusorily disagrees with MLBP's

11 expert's opinion . . . , MLBP's proffer demonstrates

12 that the quick look doctrine is inappropriate here

13 since the casual observer could not summarily

14 conclude that MLBP's arrangement has an

15 anticompetitive effect on customers.

16 420 F.Supp.2d at 220.

17 Rather, the court concluded that MLBP should be evaluated

18 "[u]nder a rule of reason analysis, which is applied 'where[] the

19 economic impact of certain practices is not immediately obvious.'"

20 Id. at 219 (quoting FTC v. Indiana Federation of Dentists, 476 U.S.

21 447, 459 (1986)). Under this analysis, "conduct will be deemed

22 illegal only if it unreasonably restrains competition." 420

23 F.Supp.2d at 219 (internal quotation marks omitted).

24 The district court noted that when a challenged practice

25 is subject to rule-of-reason analysis, the antitrust claimant bears

26 the initial burden of showing an actual adverse effect on

27 competition in the relevant market. See id. If the plaintiff meets

28 that burden--which cannot be met merely by a showing that the

29 plaintiff has been harmed as an individual competitor--the burden

30 shifts to the defendant to offer evidence of the procompetitive
- 35 -

1 effects of its agreement; if the defendant offers such evidence, the

2 burden then shifts back to the plaintiff to prove that any

3 legitimate competitive benefits provided by the defendant could have

4 been achieved through less restrictive means. See id. at 220.

5 "'Ultimately, the factfinder must engage in a careful weighing of

6 the competitive effects of the agreement--both pro and con--to

7 determine if the effects of the challenged restraint tend to promote

8 or destroy competition.'" Id. (quoting Geneva Pharmaceuticals

9 Technology Corp. v. Barr Laboratories Inc., 386 F.3d 485, 507 (2d

10 Cir. 2004)).

11 The court found that Salvino had not met its initial

12 burden under rule-of-reason analysis, noting first that Salvino had

13 pointed to no evidence to indicate that MLBP's licensing authority

14 had an adverse effect on competition:

15 The mere fact that Salvino did not receive an MLBP

16 license for its Bammers is not sufficient. [K.M.B.

17 Warehouse Distributors, Inc. v. Walker Manufacturing

18 Co., 61 F.3d 123, 127 (2d Cir. 1995)] (explaining

19 "the plaintiff must show more than just that he was

20 harmed by defendants' conduct"). Salvino has not

21 offered any evidence of an adverse effect on

22 competition resulting from MLBP's licensing

23 authority. Indeed, Salvino did not respond to

24 MLBP's arguments regarding the rule of reason

25 analysis and instead urged the Court to analyze its

26 claims under the per se rule or quick look doctrine,

27 neither of which would require Salvino to make a

28 showing of adverse effect on the market. Further,

29 Salvino does not dispute MLBP's stated increase in

30 MLBP-licensed products since MLBP took over

31 licensing authority for MLB intellectual property.

32 (MLBP 56.1 Stmt. ¶¶ 26-36.) Salvino only takes

33 issue with MLBP's proffered reasons for the

34 increase, i.e., it claims the increase is a product
- 36 -

1 of the "licensing boom" and not a result of MLBP's

2 centralized process. (Salvino Resp. to MLBP 56.1

3 Stmt. ¶ 29.)

4 420 F.Supp.2d at 220-21 (emphases added).

5 The court observed that "'[w]here the plaintiff is unable

6 to demonstrate such actual effects . . . it must at least establish

7 that defendants possess the requisite market power and thus the

8 capacity to inhibit competition market-wide.'" Id. at 221 (quoting

9 K.M.B. Warehouse Distributors, Inc. v. Walker Manufacturing Co., 61

10 F.3d at 129) (other internal quotation marks omitted). However, the

11 court found that Salvino had also failed to adduce any evidence as

12 to MLBP's market power or the relevant market, and it rejected

13 Salvino's contention that such evidence was not required:

14 Salvino argues that a showing of market power is

15 unnecessary . . . and dismisses as immaterial MLBP's

16 attempts to define the relevant market . . . .

17 Salvino cannot escape its burden of demonstrating

18 MLBP's market power in light of its inability to

19 demonstrate an actual adverse effect on

20 competition. . . . The Court finds that Salvino has

21 failed to offer any evidence of MLBP's actual

22 adverse effect on the market or its sufficient

23 market power. Accordingly, Salvino cannot

24 demonstrate under the rule of reason that MLBP

25 places unreasonable restraints on trade. MLBP's

26 motion for summary judgment on Salvino's § 1 Sherman

27 Act claim is granted.

28 420 F.Supp.2d at 221 (emphasis added).

29 A consent judgment was entered in March 2006, reflecting,

30 inter alia, the dismissal of all of Salvino's claims and Salvino's

31 reservation of the right to appeal the entry of summary judgment

32 dismissing its antitrust counterclaim under § 1 of the Sherman Act.
- 37 -

1 II. DISCUSSION

2 On appeal, Salvino contends that the district court erred

3 in ruling that the centralization in MLBP of the licensing of MLB

4 Intellectual Property for use on retail products is to be analyzed

5 under the rule of reason. Salvino principally adheres to the

6 contention on which it relied in the district court, i.e., that

7 MLBP's operations should be evaluated only under a stricter

8 standard--either the per se standard or the "quick-look"

9 standard--and that under those stricter standards, summary judgment

10 was inappropriate. In support of this contention, it characterizes

11 the Clubs' agreement to make MLBP their exclusive licensor as "naked

12 horizontal price and output restrictions [that] traditionally fall[]

13 within the per se proscriptions." (Salvino brief on appeal at 20.)

14 Given that what Salvino refers to as "price" fixing is in

15 fact profit sharing by interdependent entities (see Part II.C.2.

16 below), and that Salvino adduced no evidence of any reduction of or

17 agreement to reduce "output" (see Part II.C.1. below), we conclude,

18 for the reasons that follow, that the district court properly

19 applied the rule-of-reason standard and that under that standard

20 Salvino failed to show any genuine issues to be tried.

21 A. Summary Judgment Principles

22 Summary judgment is appropriate when the pleadings and
- 38 -

1 admissible evidence proffered to the district court show that there

2 is "no genuine issue as to any material fact and that the moving

3 party is entitled to a judgment as a matter of law," Fed. R. Civ. P.

4 56(c). In ruling on a motion for summary judgment, the district

5 court may rely on "'any material that would be admissible or usable

6 at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d

7 Cir. 1994) (quoting 10A C. Wright & A. Miller, Federal Practice and

8 Procedure: Civil § 2721 at 40 (2d ed. 1983)); see, e.g., Raskin v.

9 Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997). In determining whether

10 the moving party is entitled to judgment as a matter of law, the

11 court must resolve all ambiguities and draw all justifiable factual

12 inferences in favor of the party against whom summary judgment is

13 sought. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

14 255 (1986).

15 We review a district court's summary judgment decision de

16 novo "to ensure," in an antitrust case, "that the substantive

17 antitrust law was correctly applied." Tops Markets, Inc. v. Quality

18 Markets, Inc., 142 F.3d 90, 95 (2d Cir. 1998). Summary judgment is

19 of particular importance in the area of antitrust law, because it

20 helps to "avoid[] wasteful trials and prevent[] lengthy litigation

21 that may have a chilling effect on pro-competitive market forces."

22 Id.; see also Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1966

23 (2007) (reversing denial of motion to dismiss antitrust complaint

24 pursuant to Fed. R. Civ. P. 12(b)(6) and stating that "when the
- 39 -

1 allegations in a complaint, however true, could not raise a claim of

2 entitlement to relief, this basic deficiency should . . . be exposed

3 at the point of minimum expenditure of time and money by the parties

4 and the court" (internal quotation marks omitted)).

5 1. Facts, Personal Knowledge, and Expert Opinions

6 Where a summary judgment motion is supported or opposed by

7 affidavits, those "affidavits shall be made on personal knowledge,

8 shall set forth such facts as would be admissible in evidence, and

9 shall show affirmatively that the affiant is competent to testify to

10 the matters stated therein." Fed. R. Civ. P. 56(e). "'[H]earsay

11 testimony . . . that would not be admissible if testified to at the

12 trial may not properly be set forth in [the Rule 56(e)] affidavit.'"

13 Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986) (quoting 6

14 Moore's Federal Practice ¶ 56.22[1], at 56-1312 to 56-1316 (2d ed.

15 1985)); see, e.g., Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,

16 183 F.3d 155, 160 (2d Cir. 1999); Contemporary Mission, Inc. v.

17 United States Postal Service, 648 F.2d 97, 105 n.11 (2d Cir. 1981).

18 In order to defeat a properly supported summary judgment

19 motion, the opposing party must proffer admissible evidence that

20 "set[s] forth specific facts" showing a genuinely disputed factual

21 issue that is material under the applicable legal principles. Fed.

22 R. Civ. P. 56(e); see, e.g., Patterson v. County of Oneida, 375 F.3d

23 206, 219 (2d Cir. 2004); Meiri v. Dacon, 759 F.2d 989, 998 (2d
- 40 -

1 Cir.), cert. denied, 474 U.S. 829 (1985); 10B C. Wright, A. Miller

2 & M. Kane, Federal Practice and Procedure § 2738, at 346-56 (3d ed.

3 2006). A party opposing summary judgment does not show the

4 existence of a genuine issue of fact to be tried merely by making

5 assertions that are conclusory, see, e.g., Kulak v. City of New

6 York, 88 F.3d 63, 71 (2d Cir. 1996), or based on speculation, see,

7 e.g., id. ("Though we must accept as true the allegations of the

8 party defending against the summary judgment motion, drawing all

9 reasonable inferences in his favor, . . . conclusory statements,

10 conjecture, or speculation by the party resisting the motion will

11 not defeat summary judgment."); ITC Ltd. v. Punchgini, Inc., 482

12 F.3d 135, 151 (2d Cir.) ("conclusory statements, conjecture, and

13 inadmissible evidence are insufficient to defeat summary judgment"),

14 cert. denied, 128 S. Ct. 288 (2007); McPherson v. New York City

15 Department of Education, 457 F.3d 211, 215 n.4 (2d Cir. 2006)

16 ("speculation alone is insufficient to defeat a motion for summary

17 judgment"); Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d

18 Cir. 1999) ("Statements that are devoid of any specifics, but

19 replete with conclusions, are insufficient to defeat a properly

20 supported motion for summary judgment."), cert. denied, 530 U.S.

21 1242 (2000).

22 Under Fed. R. Evid. 702, an expert witness, unlike a lay

23 witness, is "permitted wide latitude to offer opinions, including

24 those that are not based on firsthand knowledge or observation."
- 41 -

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592

2 (1993). "Faced with a proffer of expert scientific testimony,

3 . . . [a] trial judge must determine at the outset . . . whether the

4 expert is proposing to testify to (1) scientific knowledge that (2)

5 will assist the trier of fact to understand or determine a fact in

6 issue." Id. (footnote omitted). "The subject of an expert's

7 testimony must be 'scientific . . . knowledge.' The adjective

8 'scientific' implies a grounding in the methods and procedures of

9 science." Id. at 589-90 (quoting Fed. R. Evid. 702) (footnote

10 omitted). The Daubert principles apply not only to testimony based

11 on "'scientific' knowledge, but also to testimony based on

12 'technical' and 'other specialized' knowledge. See Fed. Rule Evid.

13 702." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

14 Under Daubert, "the district court functions as the

15 gatekeeper for expert testimony," Raskin v. Wyatt Co., 125 F.3d at

16 66, whether proffered at trial or in connection with a motion for

17 summary judgment, see, e.g., Boucher v. U.S. Suzuki Motor Corp., 73

18 F.3d 18, 22 (2d Cir. 1996). At trial, proffered "expert testimony

19 should be excluded if it is speculative or conjectural," id. at 21;

20 the "[a]dmission of expert testimony based on speculative

21 assumptions is an abuse of discretion," id. at 22. An expert's

22 opinions that are without factual basis and are based on speculation

23 or conjecture are similarly inappropriate material for consideration

24 on a motion for summary judgment. See, e.g., Raskin v. Wyatt Co.,
- 42 -

1 125 F.3d at 66 ("[A]n expert's report is not a talisman against

2 summary judgment."). An expert's conclusory opinions are similarly

3 inappropriate. See, e.g., Bridgeway Corp. v. Citibank, 201 F.3d

4 134, 142 (2d Cir. 2000) (where the issue was the fairness of

5 Liberian proceedings leading to a judgment, an expert's statement

6 that "'Liberia's judicial system was and is structured and

7 administered to afford party-litigants therein impartial justice'"

8 was "purely conclusory" and hence insufficient to defeat summary

9 judgment).

10 In the present case, Salvino contends that summary

11 judgment should not have been granted because "there is a triable

12 factual dispute as evidenced by the conflicting conclusions of the

13 two economists"--i.e., MLBP's Fisher and Salvino's Guth--with

14 respect to whether the agreement to use MLBP as the exclusive

15 licensor of the Clubs' intellectual property "produced

16 procompetitive efficiencies." (Salvino brief on appeal at 24

17 (internal quotation marks omitted).) Salvino offers no citation,

18 however, to any statement by Guth indicating that centralization of

19 licensing in MLBP does not provide procompetitive efficiencies, and

20 we see only the following Guth statement on this question: "I

21 conclude that the transaction cost efficiency argument advanced by

22 MLBP is unsupported by the facts as I understand them and ought to

23 be dismissed." (Guth Report ¶ 8.) This statement, which is

24 entirely conclusory, was neither accompanied by any evidentiary
- 43 -

1 citation nor followed by any elaboration as to the procompetitive

2 efficiencies described in the Fisher Report. Indeed, Guth testified

3 that he had performed no empirical studies relating to "the possible

4 extent of economic benefits." (Guth Dep. at 23-24.)

5 Instead, the Guth Report proceeded to hypothesize solely

6 about direct licensing. And even as to direct licensing by the

7 Clubs, which the Report opined would not "be overly burdensome"

8 (Guth Report ¶ 8), Guth did not cite either (a) any evidence

9 indicating that a prospective licensee could nearly as easily deal

10 with 30 Clubs as with one centralized agency, a proposition that not

11 only is counterintuitive but also ignores the testimony of Salvino

12 itself that it is an advantage to be able to obtain sports

13 intellectual property licenses for different team logos from a "one14 stop shop" (Salvino Response to MLBP Rule 56.1 Statement ¶ 49

15 (internal quotation marks omitted)); or (b) any evidence that each

16 MLB Club could, without incurring significantly greater expense,

17 develop the staff and expertise necessary to negotiate with and

18 monitor the performances of the hundreds of licensees now dealt with

19 by MLBP.

20 The Fisher Report, which described at length several

21 procompetitive efficiencies resulting from the centralization of

22 licensing in MLBP (see Part I.B.4. above), was annotated with

23 citations to documents and interviews of MLBP Clubs' personnel who

24 had firsthand knowledge. The district court found in Guth's
- 44 -

1 assertions no basis for denying summary judgment, stating that Guth

2 "conclusorily disagree[d] with" Fisher, 420 F.Supp.2d at 220. The

3 district court did not err in this assessment.

4 2. Local Rule 56.1

5 In aid of the district court's determination as to whether

6 there exist any genuine disputes as to facts that are material, Rule

7 56.1 requires the party moving for summary judgment to submit a

8 statement of the material facts that it contends are not genuinely

9 in dispute, see Local Rule 56.1(a), and requires that the opposing

10 party submit a statement showing which of the moving party's factual

11 assertions it disputes, see Local Rule 56.1(b). Subsection (c) of

12 Rule 56.1 provides that

13 [e]ach numbered paragraph in the statement of

14 material facts set forth in the statement required

15 to be served by the moving party will be deemed to

16 be admitted for purposes of the motion unless

17 specifically controverted by a correspondingly

18 numbered paragraph in the statement required to be

19 served by the opposing party.

20 Local Rule 56.1(c).

21 Under Rule 56, it is the court's responsibility to

22 determine whether the opposing party's response to the assertion of

23 a material fact presents a dispute that is genuine. See generally

24 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure

25 § 2725, at 423 (3d ed. 2006). In the present case, Salvino's

26 responses to the MLBP Rule 56.1 Statement require attention to
- 45 -

1 questions of admissibility of evidence and genuineness of dispute.

2 3. Salvino's Objections to Admissibility

3 Many of Salvino's responses to the MLBP Rule 56.1

4 Statement, while admitting that the facts asserted by MLBP were

5 "undisputed," suggested that the evidence cited to support those

6 facts was inadmissible, stating that MLBP's assertions were "not

7 material" and that those assertions (or the documents cited to

8 support them) were hearsay, speculative, or lacked foundation. Its

9 objections were implicitly overruled by the district court. We see

10 no error.

11 Most of the documents cited by MLBP in support of its Rule

12 56.1 assertions are MLBP business records. Contemporaneous business

13 records made "by, or from information transmitted by, a person with

14 knowledge," and "kept in the course of a regularly conducted

15 business activity" by a business whose "regular practice" it was to

16 make and keep such records, Fed. R. Evid. 803(6), are admissible as

17 an exception to the hearsay rule, see id. The foundation for the

18 admission of the MLBP business records was laid in several sworn

19 declarations submitted by MLBP with its summary judgment motion.

20 For example, MLBP, citing the minutes of a meeting of MLB

21 Club owners and an MLBP financial record, stated that in 1987, i.e.,

22 the year in which MLBP ceased to rely on LCA as a subagent for

23 purposes of licensing MLB Intellectual Property, MLBP's total
- 46 -

1 licensing revenue from sales of products bearing MLB Intellectual

2 Property more than doubled. Salvino responded, "UNDISPUTED that the

3 memos and minutes so state. The cited evidence is hearsay and lacks

4 foundation." (Salvino Response to MLBP Rule 56.1 Statement ¶ 26.)

5 However, MLBP's summary judgment motion was accompanied by, inter

6 alia, the sworn declaration of its Senior Vice President and General

7 Counsel Ethan G. Orlinsky ("Orlinsky Declaration"), stating, "of

8 [his] own personal knowledge," that those documents were "true and

9 correct copies of documents that were maintained as records at MLBP.

10 These documents were created and/or received in the ordinary course

11 of MLBP's business, and were retained as part of MLBP's standard

12 business practice" (Orlinsky Declaration dated August 22, 2003,

13 ¶¶ 1, 21). Hence, Salvino's objections lacked merit. 

14 The Orlinsky Declaration likewise identified as such a

15 business record an October 24, 1988 memorandum from an MLBP vice

16 president to MLB Commissioner-elect Bart Giamatti, attaching a

17 status summary ("October 24, 1988 Status Summary" or "Status

18 Summary") with respect to MLBP licensing and the progress achieved

19 since "[r]etail [p]roduct [l]icensing was brought 'in-house' in

20 January 1987" after "17 years [of licensing through] Licensing

21 Company of America (Division of Warner Communications)." (October

22 24, 1988 Status Summary at 2.) The Status Summary stated, inter

23 alia, that since January 1, 1987, MLBP's licensees had increased

24 from 100 to 250 and that the number of licensee audits had increased
- 47 -

1 from 4 to 36 per year. (See id.) In response to an assertion in

2 the MLBP Rule 56.1 Statement, citing the Status Summary, that

3 "[b]etween January 1, 1987 and October 24, 1988, MLBP increased the

4 number of its licensees from 100 to 250," Salvino stated as follows:

5 UNDISPUTED that the documents so state, but not

6 material. Any increase was caused in large part by

7 the logo licensing boom that was prevalent at the

8 time, not by the pooling arrangement, and MLBP does

9 not point to any evidence that increases came at the

10 expense of competitive rivals in a relevant market.

11 See Guth Decl. ¶ 4. Moreover, even if it is

12 economical to streamline some functions, it does not

13 justify an agreement by MLB teams to forego their

14 own output and to divide profits rather than

15 compete. (Id. ¶¶ 8-11.)[] The cited evidence is

16 hearsay, speculation and lacks foundation.

17 (Salvino Response to MLBP Rule 56.1 Statement ¶ 28.) These

18 objections fail in light of the Orlinsky Declaration and the nature

19 of the document.

20 Similarly, in response to MLBP's quotation from a 1984

21 MLBP memorandum describing the early licensing experiences of MLBP

22 and its predecessor, stating that prior to centralization of

23 licensing, Club marks were largely unprotected and had little

24 commercial value, Salvino stated that it was "UNDISPUTED that the

25 memo so states. The memo, however, is hearsay and lacks

26 foundation." (Salvino Response to MLBP Rule 56.1 Statement ¶ 19.)

27 However, MLBP's summary judgment motion was accompanied by the sworn

28 declaration of Joseph L. Podesta, who had been an employee of MLBP

29 from November 1972 until October 1985, serving as its president from

30 1975 to October 1985. (See Declaration of Joseph L. Podesta dated
- 48 -

1 August 21, 2003, ¶ 2.) In his declaration, Podesta stated that as

2 MLBP's president, he had helped to prepare the memorandum "in the

3 ordinary course of MLBP's business" for the purpose of helping to

4 "educate Mr. Peter Ueberroth, the incoming Commissioner of Baseball,

5 about the operations and history of MLBP"; Podesta had "signed the

6 report . . . and kept a copy in [his] files at MLBP." (Id. ¶ 7.) 

7 The Orlinsky Declaration also provided the foundation for

8 the admission of other MLBP business records, including the minutes

9 of the 1966 MLBP executive committee meeting at which

10 representatives of the Coca-Cola Company stated that that company's

11 earlier under-the-cap promotion with the NFL had excluded baseball

12 because MLB lacked centralized licensing capability (see Part I.B.2.

13 above). Although Salvino objected on hearsay and foundation grounds

14 to these minutes (see Salvino Response to MLBP Rule 56.1 Statement

15 ¶ 22), the minutes themselves plainly are admissible as a business

16 record under Rule 803(6). Further, considering the minutes'

17 description of the Coca-Cola representatives' statements solely as

18 proof of what the MLBP executive committee was told, we note that

19 those statements do not fall within the definition of hearsay, see

20 Fed. R. Evid. 801(c).

21 Finally, we note that Salvino's responses to nearly all of

22 MLBP's Rule 56.1 assertions were accompanied by the statement that

23 the fact asserted was "not material," a characterization reflecting

24 Salvino's contention that the challenged practice should not be the
- 49 -

1 subject of rule-of-reason analysis. Because we conclude, for the

2 reasons discussed in Part II.C. below, that the rule of reason

3 provided the appropriate analytical framework, Salvino's materiality

4 objection also lacks merit.

5 4. Genuineness of Dispute

6 While a district court, in considering a motion for

7 summary judgment, is not to resolve factual issues, the court must

8 determine whether a Rule 56.1 response does in actuality present a

9 dispute that is genuine. An objection to the admissibility of a

10 document is not the equivalent of a contention that the document's

11 contents are untrue. Thus, as to the "undisputed" MLBP assertions

12 to which Salvino made objections, which as noted in the previous

13 section were properly rejected, Salvino's responses were clearly

14 insufficient to show a genuine issue to be tried as to the matters

15 described in the documents.

16 In addition, the district court found that Salvino's

17 responses to several other MLBP assertions, although commencing with

18 the word "disputed," did not evince a dispute that was genuine.

19 Those responses often were followed by statements that in effect

20 admitted all or most of the MLBP assertion. For example, MLBP

21 asserted that

22 [i]n the late 1970's, MLBP began the process of

23 clearing the rights to the MLB Club logos and other

24 trademarks in various countries so that they could

25 be licensed for use on retail products sold in those
- 50 -

1 countries.

2 (MLBP Rule 56.1 Statement ¶ 32.) Salvino's response--in addition to

3 objecting on grounds that the document cited by MLBP for that

4 proposition was hearsay, speculative, and lacked foundation--was as

5 follows:

6 DISPUTED and not material. While the cited

7 declarations so state, even if the cited economies

8 can be achieved by collectivizing certain

9 activities, it does not justify an agreement by MLB

10 teams to forego their own output and to divide

11 profits rather than compete. (See Guth Decl.

12 ¶ 8-11.)

13 (Salvino Response to MLBP Rule 56.1 Statement ¶ 32.) Similarly, as

14 to MLBP's assertion that "[w]ithin a few years after 1986, MLBP

15 caused the amount of revenues generated by MLB-licensed product to

16 triple" (MLBP Rule 56.1 Statement ¶ 29), Salvino's response, in

17 addition to making hearsay and foundation objections, stated:

18 DISPUTED and not material. Any increase was

19 caused in large part by the logo licensing boom that

20 was prevalent at the time, not by the pooling

21 arrangement, and MLBP does not point to any evidence

22 that increases came at the expense of competitive

23 rivals in a relevant market. See Guth Decl. ¶ 4.

24 Moreover, even if it is economical to streamline

25 some functions, it does not justify an agreement by

26 MLB teams to forego their own output and to divide

27 profits rather than compete. (Id. ¶¶ 8-11.)

28 (See Salvino Response to MLBP Rule 56.1 Statement ¶ 29.)

29 The district court considered these responses, as well as

30 certain other similar responses relating to the substantial increase

31 in the number of licenses granted for MLB Intellectual Property, not

32 to present a factual dispute that was genuine. The court stated

33 that
- 51 -

1 Salvino does not dispute MLBP's stated increase in

2 MLBP-licensed products since MLBP took over

3 licensing authority for MLB intellectual property.

4 (MLBP 56.1 Stmt. ¶¶ 26-36.) Salvino only takes

5 issue with MLBP's proffered reasons for the

6 increase, i.e., it claims the increase is a product

7 of the "licensing boom" and not a result of MLBP's

8 centralized process. (Salvino Resp. to MLBP 56.1

9 Stmt. ¶ 29.)

10 420 F.Supp.2d at 220-21. The district court's view that Salvino did

11 not genuinely dispute the assertion that there was an increase in

12 MLBP-licensed products after MLBP became the Clubs' exclusive

13 licensing agent for MLB Intellectual Property to be used on all

14 retail products was a reasonable interpretation of Salvino's

15 responses. In any event, Salvino does not challenge that ruling in

16 its briefs on appeal.

17 B. Modes of Analysis Under the Sherman Act

18 By its terms, § 1 of the Sherman Act prohibits "[e]very

19 contract, combination in the form of trust or otherwise, or

20 conspiracy, in restraint of trade or commerce among the several

21 States." 15 U.S.C. § 1. The Supreme "Court has not taken a literal

22 approach to this language, however," but instead "has long

23 recognized that Congress intended to outlaw only unreasonable

24 restraints." Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006) ("Dagher")

25 (internal quotation marks omitted) (emphasis in Dagher). Thus,

26 "th[e] Court presumptively applies rule of reason analysis, under

27 which antitrust plaintiffs must demonstrate that a particular
- 52 -

1 contract or combination is in fact unreasonable and anticompetitive

2 before it will be found unlawful." Id.

3 There are, however, "certain agreements or practices which

4 because of their pernicious effect on competition and lack of any

5 redeeming virtue are conclusively presumed to be unreasonable and

6 therefore illegal without elaborate inquiry as to the precise harm

7 they have caused or the business excuse for their use." Northern

8 Pacific Ry. Co. v. United States, 356 U.S. 1, 5 (1958); see, e.g.,

9 State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) ("Some types of

10 restraints . . . have such predictable and pernicious

11 anticompetitive effect, and such limited potential for

12 procompetitive benefit, that they are deemed unlawful per se.").

13 Among the practices that have been held to be per se illegal are

14 geographic division of markets, see, e.g., United States v. Topco

15 Associates, Inc., 405 U.S. 596 (1972), and horizontal price fixing,

16 see, e.g., Arizona v. Maricopa County Medical Society, 457 U.S. 332

17 (1982) ("Maricopa County Medical Society"); see also Leegin Creative

18 Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2717-18, 2725

19 (2007) (vertical agreements setting minimum resale prices are to be

20 analyzed under the rule of reason), overruling Dr. Miles Medical Co.

21 v. John D. Park & Sons Co., 220 U.S. 373 (1911). Such "[p]er se

22 treatment is appropriate '[o]nce experience with a particular kind

23 of restraint enables the Court to predict with confidence that the

24 rule of reason will condemn it.'" State Oil Co., 522 U.S. at 10

25 (quoting Maricopa County Medical Society, 457 U.S. at 344).
- 53 -

1 Per se treatment is not appropriate, however, where the

2 economic and competitive effects of the challenged practice are

3 unclear. "To justify a per se prohibition a restraint must have

4 manifestly anticompetitive effects, . . . and lack . . . any

5 redeeming virtue . . . ." Leegin Creative Leather Products, Inc.,

6 127 S. Ct. at 2713 (internal quotation marks omitted). Accordingly,

7 the Supreme Court has repeatedly "'expressed reluctance to adopt per

8 se rules . . . "where the economic impact of certain practices is

9 not immediately obvious."'" Dagher, 547 U.S. at 5 (quoting State

10 Oil Co., 522 U.S. at 10 (quoting FTC v. Indiana Federation of

11 Dentists, 476 U.S. 447, 458-59 (1986) ("Indiana Federation of

12 Dentists"))). "[A] departure from the rule-of-reason standard must

13 be based upon demonstrable economic effect rather than . . . upon

14 formalistic line drawing." Leegin Creative Leather Products, Inc.,

15 127 S. Ct. at 2713 (internal quotation marks omitted) (emphasis

16 added). Thus, "[p]er se liability is reserved for only those

17 agreements that are 'so plainly anticompetitive that no elaborate

18 study of the industry is needed to establish their illegality.'"

19 Dagher, 547 U.S. at 5 (quoting National Society of Professional

20 Engineers v. United States, 435 U.S. 679, 692 (1978)); see, e.g.,

21 Broadcast Music, 441 U.S. at 9 ("[i]t is only after considerable

22 experience with certain business relationships that courts classify

23 them as per se violations" (internal quotation marks omitted)).

24 [C]ombinations[] such as . . . joint ventures . . .

25 hold the promise of increasing a firm's efficiency

26 and enabling it to compete more effectively.
- 54 -

1 Accordingly, such combinations are judged under a

2 rule of reason, an inquiry into market power and

3 market structure designed to assess the

4 combination's actual effect.

5 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768

6 (1984).

7 Under rule-of-reason analysis, as described originally in

8 Chicago Board of Trade v. United States, 246 U.S. 231 (1918), and

9 reiterated by the Supreme Court many times since, see, e.g.,

10 Maricopa County Medical Society, 457 U.S. at 343 n.13,

11 [t]he true test of legality is whether the restraint

12 imposed is such as merely regulates and perhaps

13 thereby promotes competition or whether it is such

14 as may suppress or even destroy competition. To

15 determine that question the court must ordinarily

16 consider the facts peculiar to the business to which

17 the restraint is applied; its condition before and

18 after the restraint was imposed; the nature of the

19 restraint and its effect, actual or probable. The

20 history of the restraint, the evil believed to

21 exist, the reason for adopting the particular

22 remedy, the purpose or end sought to be attained,

23 are all relevant facts. This is not because a good

24 intention will save an otherwise objectionable

25 regulation or the reverse; but because knowledge of

26 intent may help the court to interpret facts and to

27 predict consequences.

28 Chicago Board of Trade, 246 U.S. at 238. Thus, "[a]s its name

29 suggests, the rule of reason requires the factfinder to decide

30 whether under all the circumstances of the case the restrictive

31 practice imposes an unreasonable restraint on competition," Maricopa

32 County Medical Society, 457 U.S. at 343, i.e., "whether the

33 challenged agreement is one that promotes competition or one that

34 suppresses competition," National Society of Professional Engineers,
- 55 -

1 435 U.S. at 691; see, e.g., Continental T.V., Inc. v. GTE Sylvania

2 Inc., 433 U.S. 36, 49 (1977) ("Under this rule, the factfinder

3 weighs all of the circumstances of a case . . . .").

4 Under the rule of reason, the plaintiffs bear

5 an initial burden to demonstrate the defendants'

6 challenged behavior had an actual adverse effect on

7 competition as a whole in the relevant market. . . .

8 Because the antitrust laws protect competition as a

9 whole, evidence that plaintiffs have been harmed as

10 individual competitors will not suffice. . . . If

11 the plaintiffs satisfy their initial burden, the

12 burden shifts to the defendants to offer evidence of

13 the pro-competitive effects of their

14 agreement. . . . Assuming defendants can provide

15 such proof, the burden shifts back to the plaintiffs

16 to prove that any legitimate competitive benefits

17 offered by defendants could have been achieved

18 through less restrictive means. . . . Ultimately,

19 the factfinder must engage in a careful weighing of

20 the competitive effects of the agreement--both pro

21 and con--to determine if the effects of the

22 challenged restraint tend to promote or destroy

23 competition.

24 Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc.,

25 386 F.3d 485, 506-07 (2d Cir. 2004) (internal quotation marks

26 omitted) (emphasis in original).

27 In a few cases, the Supreme Court has ruled that the

28 challenged practice should neither be held a per se violation of the

29 Sherman Act nor be subjected to full-blown rule-of-reason analysis,

30 but rather should be held illegal on the basis of an "abbreviated or

31 'quick-look' [rule-of-reason] analysis" because "the great

32 likelihood of anticompetitive effects can easily be ascertained."

33 California Dental Ass'n v. FTC, 526 U.S. 756, 770 (1999)

34 ("California Dental"). Thus, in National Society of Professional
- 56 -

1 Engineers, the Court, faced with the society's absolute ban on

2 competitive bidding, ruled that "no elaborate industry analysis

3 [wa]s required to demonstrate the anticompetitive character of such

4 an agreement." 435 U.S. at 692. The Court reached the same

5 conclusion with respect to a plan that expressly limited the number

6 of college football games that could be televised and fixed a

7 minimum price for those games, see National Collegiate Athletic

8 Ass'n v. Board of Regents of the University of Oklahoma, 468 U.S.

9 85, 109-10 (1984) ("NCAA"), and with respect to a horizontal

10 agreement among dentists to "withhold from their customers a

11 particular service that they desire[d]," Indiana Federation of

12 Dentists, 476 U.S. at 459. The California Dental Court noted that

13 [i]n each of these cases, which have formed the

14 basis for what has come to be called abbreviated or

15 "quick-look" analysis under the rule of reason, an

16 observer with even a rudimentary understanding of

17 economics could conclude that the arrangements in

18 question would have an anticompetitive effect on

19 customers and markets.

20 California Dental, 526 U.S. at 770. 

21 The Court has applied quick-look analysis only "to

22 business activities that are so plainly anticompetitive that courts

23 need undertake only a cursory examination before imposing antitrust

24 liability." Dagher, 547 U.S. at 7 n.3. The fact that a practice

25 may have a tangential relationship to the price of the commodity in

26 question does not mean that a court should dispense with a full

27 rule-of-reason analysis. In California Dental itself, the Court

28 considered an association rule that required member dentists to make
- 57 -

1 certain disclosures in any advertising of discount prices, and it

2 found that quick-look analysis was inappropriate. While accepting

3 the propositions "that price advertising is fundamental to price

4 competition" and that "[r]estrictions on the ability to advertise

5 prices normally make it more difficult for consumers to find a lower

6 price and for dentists to compete on the basis of price," 526 U.S.

7 at 773 (internal quotation marks omitted), the Court found that "any

8 anticompetitive effects of [these] restraints are far from

9 intuitively obvious," and, therefore, "the rule of reason demands a

10 more thorough enquiry into the consequences of those restraints,"

11 id. at 759. If an arrangement "might plausibly be thought to have

12 a net procompetitive effect, or possibly no effect at all on

13 competition," more than a "quick look" is required. Id. at 771.

14 C. The Record in the Present Case

15 In the present case, the district court, as described in

16 Part I.C. above, viewed the centralization in MLBP of MLB

17 Intellectual Property licensing as similar to the practice of

18 blanket licensing the rights to perform copyrighted music, which the

19 Supreme Court in Broadcast Music ruled was not per se unlawful but

20 was to be subjected to rule-of-reason analysis. Salvino contends

21 that the district court should instead have used NCAA as its

22 analytical guide (see Salvino brief on appeal at 19-28), arguing

23 that "[t]he conduct at issue here [constitutes] naked horizontal

24 price and output restrictions [that] traditionally fall[] within the
- 58 -

1 per se proscriptions" (id. at 20).

2 We reject all of Salvino's contentions. We discuss the

3 comparisons with Broadcast Music and NCAA in sections 3 and 4 below,

4 but we begin by examining the nature of Salvino's contentions as to

5 "output" and "price."

6 1. Salvino's "naked output . . . restrictions" Contention

7 By "output," Salvino refers to licenses for the use of the

8 MLB Clubs' intellectual property. (See, e.g., Salvino Response to

9 MLBP Rule 56.1 Statement ¶ 46 (in making MLBP their exclusive

10 licensor, the Clubs "forego their own output"); id. ¶¶ 27-43, 47-50,

11 52-53 (same).) But while Salvino calls the Clubs' exclusivity

12 agreement a "naked output . . . restriction[]" (Salvino brief on

13 appeal at 6)--asserting that there is an "express agreement to

14 reduce output" (id. at 12 (emphasis added)) and that the agreement

15 "restricts output by its terms" (id. at 11 (emphasis added))--and

16 repeatedly characterizes the Clubs' agreement as one to reduce the

17 number of licenses (see, e.g., id. at 6, 8-9, 20, 28), Salvino has

18 pointed to no evidence to support its characterizations. It has not

19 cited to any term of the Agency Agreement or to any other agreement.

20 Nor is a reduction in output implicit in the Agency Agreement. The

21 Clubs' agreement to make MLBP their exclusive licensor does not by

22 its express terms restrict or necessarily reduce the number of

23 licenses to be issued; it merely alters the identity of the

24 licenses' issuer.
- 59 -

1 There is an assertion that Salvino itself was denied an

2 MLBP license in 1999. (See Salvino Response to MLBP Rule 56.1

3 Statement ¶ 127.) But even assuming that Salvino completed the

4 application for that license (a matter as to which there is

5 dispute), a mere refusal to grant a license to Salvino would not

6 suffice to support a claim of antitrust violation. "The antitrust

7 laws were enacted for 'the protection of competition, not

8 competitors.'" Atlantic Richfield Co. v. USA Petroleum Co., 495

9 U.S. 328, 338 (1990) (quoting Brown Shoe Co. v. United States, 370

10 U.S. 294, 320 (1962) (emphases in Brown Shoe)); see, e.g., Brunswick

11 Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977).

12 Moreover, as set out in Part I.B.2. above, the record in

13 this case does not show any reduction in the licensing of the Clubs'

14 intellectual property; rather MLBP presented evidence that there

15 were sizeable increases. According to this evidence, when MLBP

16 became the Clubs' exclusive licensor in 1987, there were

17 approximately 100 licensees; in the first year thereafter, the

18 number of licensees more than doubled. And in the years since, the

19 number has continued to grow, with MLBP having, at the time of its

20 summary judgment motion in this case, more than 300 licenses

21 outstanding for some 4,000 products in the United States, along with

22 licenses to some 170 licensees for sales of products outside of the

23 United States. As discussed in Part II.A.4. above, the district

24 court permissibly found that, while Salvino took issue with the

25 reasons for the increase in the number of licenses for MLB
- 60 -

1 Intellectual Property, Salvino did not genuinely dispute that these

2 increases had actually occurred.

3 Further, Salvino's disputation as to the reason for the

4 increases in MLB Intellectual Property licenses--it posits that

5 there was simply a boom in consumer demand--is unsupported. The

6 only citation offered by Salvino for its contention was paragraph 4

7 of the Guth Declaration. That paragraph, however, did not state

8 that an increase in demand was the cause of MLBP's increased

9 revenues, or indeed that there was in fact an increase in demand.

10 Rather, Guth stated that MLBP's "evidence of substantial increases

11 in output of number of license arrangements and in MLBP revenues

12 over a period of years . . . . would appear to be more consistent

13 with a general increase in consumer interest in licensed retail

14 merchandise of all sorts." (Guth Decl. ¶ 4 (emphasis added).) This

15 statement is vague and conclusory. And even if "more consistent

16 with" an increase in consumer interest is interpreted as "more

17 likely caused by" such an increase in demand, Salvino failed to

18 adduce any evidence to support such a hypothesis as to causation.

19 Indeed, Guth also suggested, alternatively, that MLBP's increase in

20 revenues "may well not reflect higher demand," but may instead

21 reflect higher prices resulting from "an overall shift out in demand

22 for such merchandise" (id. (first emphasis in original; second

23 emphasis ours)). Guth's Declaration was necessarily equivocal

24 because he had not performed any analyses or empirical studies (see,

25 e.g., Guth Dep. at 23-24, 34-36, 46, 50, 137-38). Guth stated in
- 61 -

1 his deposition that he thought it would be "appropriate" to conduct

2 an empirical study of "the possible extent of economic benefits" of

3 the MLBP arrangement (id. at 23) and that "empirical analysis of the

4 relevan[t] market would at some point be a crucial element in

5 reaching economic opinions about the ultimate cost and benefits of

6 the arrangements at issue in this proceeding" (id. at 24). But

7 because no such studies or analyses were ever performed, Guth's

8 opinions were not supported by evidence and were conjectural.

9 Conclusory statements, conjecture, and speculation are insufficient

10 to create a genuine factual dispute. See, e.g., Bridgeway Corp. v.

11 Citibank, 201 F.3d at 142.

12 In sum, Salvino has pointed to no evidence in the record

13 to support its contention that there has been a horizontal agreement

14 to limit "output," and the only evidence of record--which Salvino

15 has not genuinely disputed--is that output has greatly increased.

16 We turn now to Salvino's contention that there has been a horizontal

17 agreement on "price."

18 2. The Nature of the "Price" Agreement Challenged By Salvino

19 While Salvino contends that its challenge concerns "naked

20 . . . price restrictions" (Salvino brief on appeal at 6; see, e.g.,

21 id. at 8-9, 20, 28), it is important to focus on precisely what

22 conduct Salvino characterizes as "price" restrictions. Although

23 price usually refers to the amount of money a seller charges a buyer

24 for the product, Salvino has made no assertions that there is an
- 62 -

1 agreement as to the fees that the licensees of the MLB Intellectual

2 Property are required to pay MLBP. Instead, throughout this

3 litigation, the conduct that Salvino has contended is per se illegal

4 price fixing is the Clubs' agreement to share equally in the profits

5 from MLBP's licensing of the Clubs' intellectual property.

6 Thus, Salvino's complaint in the California action, which

7 became its counterclaims in the present action, alleged that the

8 Agency Agreement "reduced and suppressed price competition"

9 [b]ecause [MLBP] distributes the income from its

10 exploitation of trademarks equally to each member

11 club--even though a relatively small number of clubs

12 generate the bulk of the revenue . . . .

13 (Salvino's California action complaint ¶ 13 (emphasis added).)

14 Similarly, Salvino's responses to MLBP's Rule 56.1 Statement

15 contended that most of MLBP's factual assertions (as to, e.g.,

16 MLBP's operations, competition in the market for licensing of

17 intellectual property, and the need for Major League Baseball to

18 have a centralized licensing agent) were "not material" because the

19 Clubs had entered into an agreement for the equal "sharing [of] all

20 revenues." (Salvino Responses to MLBP Rule 56.1 Statement ¶¶ 55,

21 64, 65, 70-81, 87-91; see also id. ¶¶ 27-43, 50, 52, 53 ("an

22 agreement . . . to divide profits"); id. ¶¶ 20-22 (an agreement "for

23 an equal fixed share of revenues generated").)

24 And in this Court, Salvino's briefs likewise challenge the

25 Clubs' agreement to receive the proceeds of MLBP's licensing in

26 equal shares:
- 63 -

1 [T]he Agency Agreement among the MLB teams and

2 MLBP[] is a horizontal agreement to restrict output

3 of MLB teams and fix the compensation they

4 receive. . . . Presumptively, this raises the issue

5 of per se liability, for "[h]orizontal agreements

6 among competing sellers to fix prices or restrict

7 output are, absent more, per se violations of

8 Section 1 of the Sherman Act."

9 (Salvino reply brief on appeal at 6 (quoting Freedom Holdings Inc.

10 v. Spitzer, 357 F.3d 205, 225 (2d Cir. 2004)) (emphasis ours); see

11 also Salvino brief on appeal at 25 ("MLBP, like the NCAA . . . .

12 'has fixed the minimum, maximum and actual price which will be paid

13 to [its member teams]'" (quoting NCAA, 468 U.S. at 106 n.30)

14 (brackets in Salvino brief)); Salvino brief on appeal at 25-26 (the

15 Clubs have agreed to make MLBP their exclusive licensor "in exchange

16 for a uniform fixed price--an equal share of the revenues generated

17 by MLBP, regardless of contribution" (emphasis added)).)

18 Thus, it is clear that what Salvino means by "a uniform

19 fixed price" is in actuality "an equal share of the [licensing]

20 revenues" (id.). As there is no claim by Salvino of an agreement

21 with respect to the prices to be charged to licensees, the so-called

22 "price" restriction is not in fact an agreement on "price" but

23 rather an agreement for the sharing of profits.

24 With the recognition that what Salvino calls a "price"

25 restriction is in actuality an agreement for profit sharing, and

26 bearing in mind that, as discussed in the preceding section, there

27 is no genuine dispute that "output" since MLBP became the Clubs'

28 exclusive licensing agent with respect to all retail products
- 64 -

1 bearing Club intellectual property has increased rather than

2 decreased, we turn to Salvino's contention that the district court

3 erred in finding this case similar to Broadcast Music, instead of

4 finding the present arrangement per se illegal, or illegal after a

5 quick look, based on NCAA.

6 3. The Broadcast Music Comparison

7 In Broadcast Music, the Supreme Court considered antitrust

8 claims by Columbia Broadcasting System, Inc. ("CBS"), against

9 Broadcast Music, Inc., and the American Society of Composers,

10 Authors and Publishers (collectively the "organizations"), with

11 respect to the organizations' respective issuance of blanket

12 performance licenses to the CBS television network, i.e., licenses

13 to perform any, some, or all of the copyrighted musical compositions

14 owned by that organization's members or affiliates. CBS asserted

15 that the issuance of blanket licenses in exchange for fees

16 negotiated by the respective organizations was price fixing, and

17 hence per se illegal. The district court, following a trial on

18 issues of liability, ruled that blanket licensing did not fall

19 within the per se rule; the court of appeals reversed, holding that

20 blanket licensing was a form of price fixing and thus was per se

21 illegal. The Supreme Court reversed the court of appeals, holding

22 that blanket licensing is not per se illegal, but rather "should be

23 subjected to a more discriminating examination under the rule of

24 reason," 441 U.S. at 24, because it cannot be said that "the
- 65 -

1 practice facially appears to be one that would always or almost

2 always tend to restrict competition and decrease output," rather

3 than "one designed to increase economic efficiency and render

4 markets more, rather than less, competitive," id. at 19-20 (internal

5 quotation marks omitted). The Supreme Court stated:

6 The blanket license, as we see it, is not a

7 "naked restrain[t] of trade with no purpose except

8 stifling of competition," . . . but rather

9 accompanies the integration of sales, monitoring,

10 and enforcement against unauthorized copyright

11 use. . . . [The organizations] and the blanket

12 license developed together out of the practical

13 situation in the marketplace: thousands of users,

14 thousands of copyright owners, and millions of

15 compositions. Most users want unplanned, rapid, and

16 indemnified access to any and all of the repertory

17 of compositions, and the owners want a reliable

18 method of collecting for the use of their

19 copyrights. Individual sales transactions in this

20 industry are quite expensive, as would be individual

21 monitoring and enforcement, especially in light of

22 the resources of single composers. Indeed, as both

23 the Court of Appeals and CBS recognize, the costs

24 are prohibitive for licenses with individual radio

25 stations, nightclubs, and restaurants, . . . and it

26 was in that milieu that the blanket license arose.

27 A middleman with a blanket license was an

28 obvious necessity if the thousands of individual

29 negotiations, a virtual impossibility, were to be

30 avoided. Also, individual fees for the use of

31 individual compositions would presuppose an

32 intricate schedule of fees and uses, as well as a

33 difficult and expensive reporting problem for the

34 user and policing task for the copyright owner.

35 441 U.S. at 20 (quoting White Motor Co. v. United States, 372 U.S.

36 253, 263 (1963)).

37 Although individual copyright owners remained free to

38 grant direct licenses for the performance of their works, the
- 66 -

1 organizations

2 reduce[d] costs absolutely by creating a blanket

3 license that is sold only a few, instead of

4 thousands, of times, and that obviates the need for

5 closely monitoring the networks to see that they do

6 not use more than they pay for. [The organizations]

7 also provide[d] the necessary resources for blanket

8 sales and enforcement, resources unavailable to the

9 vast majority of composers and publishing houses.

10 441 U.S. at 21 (footnotes omitted). The Court stated that

11 [t]his substantial lowering of costs, which is

12 of course potentially beneficial to both sellers and

13 buyers, differentiates the blanket license from

14 individual use licenses. The blanket license is

15 composed of the individual compositions plus the

16 aggregating service. Here, the whole is truly

17 greater than the sum of its parts; it is, to some

18 extent, a different product.

19 Id. at 21-22. The Court concluded,

20 we have some doubt--enough to counsel against

21 application of the per se rule--about the extent to

22 which this practice threatens the "central nervous

23 system of the economy," . . . that is, competitive

24 pricing as the free market's means of allocating

25 resources. Not all arrangements among actual or

26 potential competitors that have an impact on price

27 are per se violations of the Sherman Act or even

28 unreasonable restraints. Mergers among competitors

29 eliminate competition, including price competition,

30 but they are not per se illegal, and many of them

31 withstand attack under any existing antitrust

32 standard. Joint ventures and other cooperative

33 arrangements are also not usually unlawful, at least

34 not as price-fixing schemes, where the agreement on

35 price is necessary to market the product at all.

36 Id. at 23 (quoting United States v. Socony-Vacuum Oil Co., 310 U.S.

37 150, 226 n.59 (1940)) (emphases added).

38 Salvino seeks to distinguish Broadcast Music on the basis

39 that (1) the individual copyright owners granted the organizations
- 67 -

1 only nonexclusive rights to license the performance of their works

2 and remained free to grant performing rights licenses directly to

3 users; (2) the blanket license granted by the organizations was a

4 package product that no individual copyright owner could offer; and

5 (3) in Broadcast Music, "[i]t was found that the arrangement

6 actually increased output and facilitated competition" (Salvino

7 brief on appeal at 18). Only the first of these factors provides a

8 distinction, but it is a distinction that loses significance in the

9 context of the differences between the music and sports industries.

10 Taking the three factors in reverse order, we note first

11 that Salvino's statement that the Broadcast Music Court found that

12 blanket licensing "increased output and facilitated competition"

13 finds little support in the Supreme Court's opinion. If by

14 "increased output," Salvino means that there were in fact more music

15 performance licenses, the opinion squarely contradicts Salvino's

16 statement. Although "there [we]re no practical impediments

17 preventing direct dealing by the television networks if they so

18 desire[d, h]istorically they ha[d] not done so." Broadcast Music,

19 441 U.S. at 12. Indeed, until the Broadcast Music lawsuit, CBS had

20 never sought any kind of performance license other than blanket

21 licenses from the organizations. Accordingly, there was no

22 "increased output" in the sense of the number of licenses granted.

23 The Court itself used the term "output" in the music industry to

24 refer to the creation of musical compositions and merely noted that

25 blanket licensing was unlikely to cause composers to cease producing
- 68 -

1 compositions. See id. at 22 n.40.

2 Further, in the present case, as discussed in Part II.C.1.

3 above, there has been no evidence of any reduction in output.

4 Instead, since MLBP became the Clubs' exclusive licensing agent for

5 all retail products bearing Club intellectual property, the number

6 of licenses granted has multiplied.

7 Nor do we see either (a) support for Salvino's suggestion

8 that the Broadcast Music Court held blanket licensing to have

9 "facilitated competition" (Salvino brief on appeal at 18) or (b) a

10 meaningful distinction between Broadcast Music and the present case

11 with respect to what in fact was "facilitated." The availability of

12 blanket licenses had not led to direct licensing by individual

13 copyright owners; indeed, the Broadcast Music Court stated that to

14 the extent that the blanket license is a different product, the

15 organizations had created "a market in which individual composers

16 are inherently unable to compete fully effectively," 441 U.S. at 23.

17 What the blanket license was held to have facilitated was "dealings

18 between copyright owners and those who desire[d] to use their

19 music," id. at 10--much in the same way that MLBP's licensing

20 activities facilitate the use of the Clubs' intellectual property by

21 those who desire to use it on products they wish to market. 

22 The second distinction urged by Salvino is the fact that

23 the blanket license at issue in Broadcast Music was a product that

24 no single copyright owner could offer. But this fact reveals not a

25 difference but a similarity. MLBP can offer a license that covers
- 69 -

1 all of the intellectual property of all of the MLB Clubs; no one

2 Club could offer such a license, for no Club has the right to

3 license the intellectual property of any other. Accordingly, even

4 if direct licensing for retail products were available from each

5 Club, any purveyor of memorabilia who wanted to offer products

6 bearing the intellectual property of more than one Club could not

7 obtain the necessary authorization from a single Club. Only MLBP

8 can offer licenses to use the intellectual property of more than one

9 Club, and it can grant a license to use any, some, or all of the

10 Clubs' intellectual property. Accordingly, MLBP offers a large

11 number of products that the individual intellectual property owners

12 cannot match.

13 Finally, as discussed in Part I.B.2. above, the Clubs

14 retain only limited rights to grant licenses directly, e.g., with

15 respect to product giveaways in their home stadia and activities

16 such as cruises and fantasy camps; they have given up the right to

17 license products using their intellectual property for retail sales,

18 making MLBP their exclusive licensing agent with respect to those

19 products. Thus, it is true, as Salvino argues, that the rights of

20 the individual MLB Clubs to license their own respective

21 intellectual property are more limited than the unfettered direct

22 licensing rights of the copyright owners in Broadcast Music. We

23 conclude that this distinction is insignificant, however, in light

24 of the fact that the MLB Clubs exist as members of a sports league,

25 and their interests are interdependent. That interdependence and
- 70 -

1 Major League Baseball's need for competitive balance among the Clubs

2 distinguish the Clubs from the individual composers and publishers

3 of music who were the subject of Broadcast Music; those factors are

4 not characteristic of the music industry. And those factors, among

5 others, discussed in Part II.C.5. below, plainly foreclose the

6 imposition of per se or quick-look liability.

7 4. The NCAA Comparison

8 Salvino contends that "NCAA . . . is . . . the yardstick

9 that should have been used by the court to evaluate the arrangement

10 at issue" in the present case. (Salvino brief on appeal at 19.) We

11 disagree, as we find the circumstances in NCAA to be different from

12 those here in every meaningful respect.

13 In NCAA, the Supreme Court considered rules of the

14 National Collegiate Athletic Association ("NCAA") with respect to

15 the televising of college football games. The NCAA had entered into

16 contracts with American Broadcasting Companies ("ABC") and CBS,

17 permitting those networks to broadcast such games, and had entered

18 into a contract with Turner Broadcasting System, Inc. ("TBS"), for

19 the cablecasting of such games. The NCAA did not license any other

20 network, and the NCAA plan forbade its member colleges to enter into

21 agreements for the televising of their games on any other network or

22 any local station. See NCAA, 468 U.S. at 91-93, 105 n.29.

23 The NCAA plan set an absolute maximum on the number of

24 games that could be broadcast. It also contained "appearance
- 71 -

1 limitations" with respect to each two-year period covered by the

2 network contracts. The number of times that a given college could

3 have its football games televised was limited to six, of which no

4 more than four could be televised nationally. Thus, the NCAA plan

5 limited both the total amount of televised intercollegiate football

6 and the number of games that could be televised for any one team.

7 See generally id. at 92-94.

8 The per-telecast prices paid by the networks to the NCAA

9 were fixed. For example, the ABC television network paid fees of

10 $600,000 for each of the 12 national games it telecast during the

11 1981 regular fall season, and $426,779 for each of the 46 regional

12 telecasts in 1980. Id. at 93 n.10. Except for the price

13 differences between national and regional telecasts, the colleges

14 whose games were televised received equal payments for those

15 telecasts.

16 The district court, after a full trial, found that the

17 NCAA plan violated § 1 of the Sherman Act by, inter alia, fixing the

18 prices for particular telecasts and placing artificial limits on the

19 televising of college football. It found that but for the NCAA

20 plan, more college football games would be televised. The court of

21 appeals affirmed, ruling that the NCAA plan constituted price fixing

22 and hence was per se illegal.

23 The Supreme Court affirmed, but it ruled that the plan

24 should not have been held illegal per se; it should have been

25 analyzed under the rule of reason. The Court stated that
- 72 -

1 [t]here can be no doubt that the challenged

2 practices of the NCAA constitute a "restraint of

3 trade" in the sense that they limit members' freedom

4 to negotiate and enter into their own television

5 contracts. In that sense, however, every contract

6 is a restraint of trade, and as we have repeatedly

7 recognized, the Sherman Act was intended to prohibit

8 only unreasonable restraints of trade.

9 NCAA, 468 U.S. at 98. Noting that Continental T.V., Inc., 433 U.S.

10 at 51-57, indicated that "a restraint in a limited aspect of a

11 market may actually enhance marketwide competition," and that

12 "Broadcast Music squarely holds that a joint selling arrangement may

13 be so efficient that it will increase sellers' aggregate output and

14 thus be procompetitive," the NCAA Court stated that

15 [t]hus, despite the fact that this case involves

16 restraints on the ability of member institutions to

17 compete in terms of price and output, a fair

18 evaluation of their competitive character requires

19 consideration of the NCAA's justifications for the

20 restraints.

21 NCAA, 468 U.S. at 103.

22 Accordingly, the Supreme Court proceeded to analyze the

23 NCAA plan under the rule of reason. In so doing, it concluded that

24 the plan unreasonably restrained competition; however, few of the

25 factors relied on by the Court to reach that conclusion are present

26 with respect to Salvino's claim against MLBP.

27 The Supreme Court found that the NCAA plan was

28 anticompetitive under rule-of-reason analysis because, inter alia,

29 that plan deprived the individual colleges of their freedom to

30 compete for television appearances. Rejecting the NCAA's contention

31 that its plan produced procompetitive efficiencies (see Part
- 73 -

1 II.C.4.c. below), the Court noted that "[t]he NCAA does not . . .

2 act as a selling agent for any school or for any conference of

3 schools"; rather, 

4 [t]he essential contribution made by the NCAA's

5 arrangement is to define the number of games that

6 may be televised, to establish the price for each

7 exposure, and to define the basic terms of each

8 contract between the network and a home team.

9 Id. at 113; see id. at 99 (The NCAA plan "places a ceiling on the

10 number of games member institutions may televise," thereby

11 "plac[ing] an artificial limit on the quantity of televised football

12 that is available to broadcasters and consumers."). As a

13 consequence, the Court concluded, "[p]rice is higher and output

14 lower than they would otherwise be, and both are unresponsive to

15 consumer preference." Id. at 107.

16 Except for the fact of revenue sharing, none of the

17 factors emphasized by the Supreme Court in NCAA finds even a

18 superficial parallel in the present case.

19 a. Agency and Output

20 Whereas the Supreme Court noted that the NCAA did not act

21 as a selling agent for those whose product was being sold, precisely

22 the opposite is true of MLBP. A college that wished to have more

23 than six of its games televised within a two-year period was

24 forbidden, rather than helped, to do so by the NCAA. MLBP, in

25 contrast, is the licensing agent for the MLB Clubs; it assists the

26 Clubs in the licensing of their intellectual property.
- 74 -

1 Further, whereas the NCAA plan "create[d] a limitation

2 on output" by limiting the total number of televised games and the

3 number of times any one college's games could be televised, NCAA,

4 468 U.S. at 99, Salvino has not adduced any evidence of a limitation

5 on the number of Club intellectual property licenses available here.

6 MLBP does not limit the number of products that may be licensed

7 (although it would doubtless refuse to license a product that it

8 believed would reflect badly on Major League Baseball); indeed, MLBP

9 presented evidence that it works with existing and prospective

10 licensees to attempt to develop new products that would use MLB

11 Intellectual Property. Salvino has not adduced any evidence that

12 there is any agreement to limit the number of products that can be

13 licensed or the number of entities to which licenses may be granted.

14 Nor has Salvino pointed to any evidence from which it

15 could reasonably be inferred that any limitation on the number of

16 licenses, licensees, or products bearing MLB Intellectual Property

17 is intended. Rather, as discussed in Parts I.B.2. and II.C.1.

18 above, the business records presented by MLBP show precisely the

19 opposite, the desire to increase the business of licensing MLB

20 Intellectual Property.

21 The NCAA Court also noted that output was reduced by the

22 NCAA plan because "only those broadcasters able to bid on television

23 rights covering the entire NCAA can compete." NCAA, 468 U.S. at

24 108. In effect, the NCAA offered only bulk licenses. That fact has

25 no analogy here. Here, a prospective licensee can request and
- 75 -

1 obtain from MLBP a license to use the intellectual property of some

2 or all of the Clubs, or of any single Club.

3 b. Prices and Preferences

4 In finding the NCAA's restrictive television plan

5 anticompetitive because of its restraints on price, the Supreme

6 Court stated that the

7 NCAA has commandeered the rights of its members and

8 sold those rights for a sum certain. In so doing,

9 it has fixed the minimum, maximum and actual price

10 which will be paid to the schools appearing on ABC,

11 CBS and TBS. NCAA has created the mechanism which

12 produces a uniform price for each national telecast,

13 and a uniform price for each regional telecast.

14 Because of the NCAA controls, the price which is

15 paid for the right to televise any particular game

16 is responsive neither to the relative quality of the

17 teams playing the game nor to viewer preference.

18 NCAA, 468 U.S. at 106 n.30 (internal quotation marks omitted)

19 (emphases added). The NCAA Court stated that the fact that, under

20 the conditions imposed by the NCAA, "the market is not responsive to

21 viewer preference," with the result that "[m]any games for which

22 there is a large viewer demand are kept from the viewers, and many

23 games for which there is little if any demand are nonetheless

24 televised," was "[p]erhaps the most pernicious aspect" of the NCAA

25 plan. Id. at 107 n.34 (internal quotation marks omitted).

26 The NCAA price controls and lack of responsiveness to

27 demand find no parallels in the present record. First, a license to

28 use MLB Intellectual Property is not sold "for a sum certain"; the

29 licensing agreements call for licensees to pay MLBP a percentage of
- 76 -

1 the moneys they receive from the sale of their products bearing MLB

2 Intellectual Property. Thus, although the royalty percentages for

3 various types of products may be standardized, the dollar amounts to

4 be paid to MLBP by the licensees are not uniform but instead vary

5 with the licensees' sales.

6 Second, Salvino has presented no evidence to suggest that

7 the licensing of MLB Intellectual Property is not entirely

8 responsive to demand. MLBP does not issue licenses that are not

9 requested; there is no evidence that an entity that wishes to obtain

10 a license for particular intellectual property is required to accept

11 or pay for a license that encompasses other intellectual property as

12 well.

13 Moreover, it may be presumed that a prospective licensee,

14 acting in its own economic self-interest, requests licenses only

15 with respect to products that it believes will be purchased. Thus,

16 MLBP grants licenses that are responsive to the licensees'

17 anticipation of consumer demand.

18 Further, a licensee's actual sales of products bearing MLB

19 Intellectual Property are, by definition, responsive to consumer

20 demand. Assuming that the licensees assess consumer demand

21 correctly, they will sell more products bearing logos of a Club that

22 is more popular--more popular either because of its success on the

23 playing field or because of a dedicated fan base--than products

24 bearing logos of a less popular Club. Accordingly, because the

25 license requires the licensee to pay a percentage of its sales
- 77 -

1 prices, the licensee will pay MLBP higher dollar amounts with

2 respect to the intellectual property of the more popular Clubs.

3 Thus, the dollar amounts of the license fees received by MLBP with

4 respect to the intellectual property of the various Clubs are not

5 uniform from Club to Club, but instead are plainly responsive both

6 to the relative quality of the various Major League Baseball teams

7 and to the preferences of the buyers. Indeed, the fact that MLBP

8 receives proportionately higher revenues with respect to some Clubs

9 than others is the cornerstone of what Salvino complains of as

10 "price" restrictions, i.e., the Clubs' agreement to share the

11 profits equally.

12 Finally, MLBP-licensed products that are not desired by

13 the consumer are not purchased. And because the licenses granted by

14 MLBP require payments of percentages of the licensee's sales,

15 products left behind by the consumer do not result in payments to

16 MLBP or to the Clubs.

17 In sum, unlike the "sum[s] certain" payable in NCAA, the

18 dollar sums payable for licenses to use the Clubs' intellectual

19 property are not uniform and are entirely responsive to the

20 preferences of licensees and retail product consumers.

21 c. Procompetitive Efficiencies

22 The NCAA Court rejected the NCAA's contention that its

23 restrictive television plan produced procompetitive efficiencies.

24 The Court stated several reasons, none of which has been shown to
- 78 -

1 have any applicability here.

2 As a general matter, the Court found that the NCAA's

3 procompetitive-efficiencies contention was not supported by the

4 record because production was restricted, not enhanced, by the plan.

5 "If the NCAA's television plan produced procompetitive efficiencies,

6 the plan would increase output and reduce the price of televised

7 games." NCAA, 468 U.S. at 114.

8 In the present case, as described in Parts I.B.2.,

9 II.C.1., and II.C.3. above, the record shows that, similarly to the

10 blanket licensing at issue in Broadcast Music, centralization of the

11 licensing and protection of MLB Intellectual Property has produced

12 many cost-savings and efficiencies. And, in contrast to the effect

13 of the NCAA plan, as discussed in Parts I.B.2. and II.C.1. above,

14 since the Clubs made MLBP their exclusive licensing agent for all

15 retail products bearing MLB Intellectual Property, the number of

16 licenses and licensees has multiplied.

17 Moreover, unlike the record in NCAA, the present record

18 contains no facts to support Salvino's hypothesis that if MLBP were

19 not the Clubs' exclusive licensor with respect to retail products,

20 even more licenses would be granted. When Salvino's economist,

21 Guth, was asked at his deposition whether in his opinion there would

22 be more licenses if the Clubs were allowed to license directly (see

23 Guth Dep. at 136-37), he stated, "I can't give you a straight yes or

24 no answer," because "that's a question that needs to be explored

25 with some empirical analysis" (id. at 137). Guth, however, had
- 79 -

1 conducted no empirical analyses. (See id. at 137-38.)

2 The NCAA Court also rejected, for two reasons, the NCAA's

3 procompetitive-efficiencies contention that rested on the

4 proposition that the NCAA had a legitimate and important interest in

5 "maintaining a competitive balance among amateur athletic teams."

6 NCAA, 468 U.S. at 117. First, the Court noted that there was no

7 real interdependence among the college teams, nor indeed "any

8 readily identifiable group of competitors," id. at 118, such as to

9 require steps to maintain a competitive balance.

10 The NCAA does not claim that its television

11 plan has equalized or is intended to equalize

12 competition within any one league. The plan is

13 nationwide in scope and there is no single league or

14 tournament in which all college football teams

15 compete.

16 Id. at 117-18 (footnote omitted). Second, the Court noted that even

17 if the NCAA had an interest in maintaining competitive balance among

18 the college football teams, "[t]he television plan is not even

19 arguably tailored to serve such an interest," id. at 119, given that

20 but for the NCAA plan, more college football games would be

21 televised, see id. at 108, 118 n.62. The Court stated that

22 [t]he hypothesis that legitimates the maintenance of

23 competitive balance as a procompetitive

24 justification under the Rule of Reason is that equal

25 competition will maximize consumer demand for the

26 product. The finding that consumption will

27 materially increase if the controls are removed is a

28 compelling demonstration that they do not in fact

29 serve any such legitimate purpose.

30 Id. at 119-20 (footnote omitted).

31 In the present case, in contrast, Major League Baseball is
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1 a highly integrated professional sports entity comprising two

2 Leagues, in which all of the Clubs compete. Each season constitutes

3 a single tournament, leading to playoffs among the League leaders,

4 and ultimately to the World Series. As discussed in Part II.C.5.

5 below, there is no dispute that competitive balance is a necessary

6 ingredient in the continuing popularity of the MLB Entertainment

7 Product. And unlike the NCAA restrictions on televising games,

8 which were "not even arguably tailored to serve" an interest in

9 competitive balance, 468 U.S. at 119, the Clubs' agreement that

10 MLBP's profits from licensing MLB Intellectual Property will be

11 distributed equally among the 30 Clubs is a precisely tailored

12 attempt to achieve, or at least increase, competitive balance.

13 Finally, the NCAA contended that its television plan was

14 procompetitive because it was necessary to permit college football

15 games to compete in the market for sports programming, a market in

16 which the NCAA claimed to lack power. The Supreme Court rejected

17 this contention as well. See NCAA, 468 U.S. at 111-15. The Court

18 stated that "[i]f the NCAA faced 'interbrand' competition from

19 available substitutes, then certain forms of collective action might

20 be appropriate in order to enhance its ability to compete," id. at

21 115 n.55; but college football is "unique," id. at 115. The Court

22 found it "evident" that the NCAA in fact "does possess market power"

23 because intercollegiate college football telecasts are uniquely

24 attractive to fans, "football telecasts generate an audience

25 uniquely attractive to advertisers[,] and . . . competitors are
- 81 -

1 unable to offer programming that can attract a similar audience."

2 Id. at 111. Because college football telecasts are unique, they

3 constitute "a separate market"; and it follows "inexorably . . .

4 that the NCAA possesses market power with respect to those

5 broadcasts. 'When a product is controlled by one interest, without

6 substitutes available in the market, there is monopoly power.'" Id.

7 at 112 (quoting United States v. E.I. du Pont de Nemours & Co., 351

8 U.S. 377, 394 (1956)).

9 In the present case, the only evidence of record shows

10 that product uniqueness is absent. Although Salvino suggests that

11 "the bundle of . . . rights licensed by MLBP is . . . highly

12 differentiated from other bundles with which MLBP apparently

13 believes it competes" (Guth Decl. ¶ 6; see Salvino brief on appeal

14 at 12 n.5 (contending that Guth Decl. ¶¶ 5-6 "define[s] a relevant

15 market")), no factual support was offered for the suggestion that

16 there are no available substitutes for MLB Intellectual Property

17 because Guth had not conducted any factual studies (see, e.g., Guth

18 Dep. at 23-24). Thus, after Guth, in his deposition, reiterated an

19 opinion given in his initial Report that "'MLBP quite likely

20 exercises sufficient control over pricing licenses for use of club

21 marks for plush toys and similar products so that these constitute

22 a relevant market'" (id. at 33 (quoting Guth Report ¶ 23)), the

23 ensuing questioning revealed that that opinion was based not on

24 factual evidence but on "guess[es]":

25 Q. So that's a market for club marks or market
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1 for plush toys and similar products?

2 A. It's a market for club marks used in

3 conjunction with plush toys and similar products.

4 Q. Do you have any understanding of what Team

5 Beans is?

6 A. Not specifically. My recollection is Major

7 League Baseball had or has licenses for one, maybe

8 several entities for similar kind[s] of plush toys.

9 Q. What is your understanding as to whether or

10 not Team Beans product is within or outside the

11 relevant market [in] your opinion?

12 A. Sitting here today, I would think it's

13 probably within the relevant market.

14 Q. Why?

15 A. It's my guess that those products defined

16 in the framework of the discrete choice survey would

17 likely show up as having price sensitivity vis-a-vis

18 the Salvino products. I don't know that, but

19 that's, you know, sitting here today, that would be

20 my guess.

21 Q. Are you aware that Salvino made some

22 Bammers that did not have a club mark, but had a

23 player name and number only on it?

24 A. That's my recollection, yes.

25 Q. Do you consider those products to be inside

26 or outside of the relevant product market?

27 A. Again, that's an empirical question.

28 Sitting here today, I'd be[] less confident opining

29 one way or the other, but it's entirely possible

30 that they could be in the relevant part [sic;

31 market?].

32 Q. Are you familiar with Salvino Bammers that

33 carried NFL team logos?

34 A. Not specifically.

35 Q. Let's assume for the moment that Salvino
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1 made some Bammers.

2 A. Sure.

3 Q. The same size plush bear that carried a NFL

4 team logo, New York Giants. For example, would you

5 consider those to be in or outside the relevant

6 market?

7 A. I think that that's what a[n] empirical

8 analysis really let[s] you focus on. I mean, that's

9 where you're getting to the meaningful empirical

10 questions, in my opinion. Whether you know

11 baseball, given its seasonality and given its--the

12 way in which its products are made available to

13 public competes with club marks license for a

14 similar product or indeed other products that are

15 sports or non-sports and made in different seasons

16 or the same season. Those are the issues that an

17 empirical analysis ought to address. 

18 Q. Sitting here today, do you have any opinion

19 as to whether Bammers with NFL marks would be within

20 or outside the market?

21 A. No. Frankly, I really don't. I mean,

22 you're asking me whether an increase in the price

23 on, you know, an NFL Bammer would lead people to buy

24 a Major League Baseball Bammer instead of the NFL

25 Bammer, and just listening to those words, I'm not

26 sure I see a basis for concluding that it would, but

27 I'm going to leave that to an empirical analysis.

28 Q. But you haven't undertaken that empirical

29 analysis yet either?

30 A. That's correct.

31 (Guth Dep. at 33-36 (emphases added); see also id. at 60 (Guth

32 stating that to identify the relevant market, empirical studies

33 would be needed not only with respect to the NFL, but also with

34 respect to the "NHL, NBA, Major Soccer League, et cetera," as well

35 as popular cartoon items).) (We think Guth's views could also

36 benefit from an empirical study that included regard for fan
- 84 -

1 preferences. He indicated that "[f]or purposes of [his deposition]

2 testimony without having done empirical analysis," he supposed that

3 a consumer who is unable to purchase an MLBP New York Yankee Bammer

4 would eschew an NFL Jets Bammer and would substitute instead an MLBP

5 Bammer representing the Boston Red Sox. (Id. at 50, 58.).)

6 While Guth had not conducted the empirical studies that he

7 testified were needed before he could do more than make guesses as

8 to what might be substitutable for MLB Intellectual Property

9 licenses, there was ample evidence in the record that prospective

10 licensees of MLB Intellectual Property displayed interest in using

11 intellectual property of, inter alia, other sports entities and

12 leagues. For example, as set out in Part I.B.2. above,

13 representatives of Coca-Cola told the MLBP executive committee in

14 1966 that, a few years earlier, Coca-Cola had chosen to use NFL

15 intellectual property for a nationwide promotional campaign, rather

16 than MLB Intellectual Property, because of ease of licensing.

17 Further, as set out in greater detail in Part I.B.3. above, when

18 Salvino sought an MLBP license in 1999, Salvino stated that it had

19 sold Bammers bearing the intellectual property of the MLB Players'

20 Association, the NFL, the NBA, the NHL, "Muhammad Ali," and other

21 individuals. Indeed, a Salvino brochure declared that Bammers were

22 "'America's Number 1 Sports Collectible'" in baseball, football,

23 boxing, basketball, ice skating, hockey, and NASCAR. (See Salvino

24 Response to MLBP Rule 56.1 Statement ¶ 120.) In addition, Salvino's

25 vice president testified, inter alia, that Salvino competed with
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1 "'anybody who produces sports licensed products; anybody who

2 produces, you know, signed products, collectibles, memorabilia;

3 anybody who produces licensed key chains, zipper pulls, non-licensed

4 key chains, zipper pulls.'" (Salvino Response to MLBP Rule 56.1

5 Statement ¶ 116.)

6 Plainly, then, the only evidence presented to the district

7 court indicates that, unlike the NCAA's unique product, college

8 football, there are available substitutes for MLB Intellectual

9 Property. Based in part on the above facts, Fisher opined that MLBP

10 lacked power in the relevant market, which he defined as no narrower

11 than the market for the licensing of intellectual property related

12 to sports and certain entertainment products.

13 Finally, there seems to be no genuine dispute that the

14 market level that is at issue in this case is the licensing level,

15 with demand at that level being influenced by demand at the consumer

16 level (see, e.g., Fisher Report ¶ 18; Guth Report ¶ 23), and that

17 other professional sports entities have centralized licensing

18 operations, e.g., NFL Properties, NBA Properties, and NHL

19 Enterprises (see Part I.A.3. above). Although Salvino purported to

20 contest the assertion that MLBP competes with these other entities,

21 Salvino's challenge does not present a genuine dispute, given the

22 evidence (a) that Salvino has not disputed that the standard license

23 issued by each of these other sports entities states that the entity

24 has the exclusive right to license the names, initials, emblems,

25 uniforms, and other intellectual property of each team within that
- 86 -

1 professional sports league; (b) that Salvino obtained licenses for

2 its Bammers using intellectual property of baseball, football,

3 boxing, basketball, ice skating, hockey, and NASCAR; (c) that

4 Salvino itself stated that being able to deal with NFL Properties

5 provided the advantage of "one-stop shop[ping]"; and (d) that MLBP

6 was informed by the Coca-Cola representatives that the NFL had a

7 competitive advantage over MLB in the mid-1960s because the NFL had

8 a centralized licensing entity and MLB did not.

9 Further, when Guth was asked whether the fact that such

10 sports leagues as the NFL, NBA, and NHL use centralized licensing

11 entities would affect his analysis as to whether or not MLB needed

12 a centralized licensing organization, Guth stated that although he

13 did not think it would, he "wouldn't dismiss [that factor] out of

14 hand." (Guth Dep. at 115.) We consider this a telling response in

15 the face of Salvino's contention that centralization of licensing in

16 MLBP should be declared illegal per se or on a quick look--treatment

17 that is inappropriate unless the anticompetitive nature of the

18 practice is intuitively obvious.

19 d. Revenue Sharing

20 The only aspect of the Supreme Court's criticisms of the

21 NCAA plan that is even superficially similar to the present case is

22 the Court's observation that the NCAA plan was

23 "a price restraint that tends to provide the same

24 economic rewards to all practitioners regardless of

25 their skill, their experience, their training, or
- 87 -

1 their willingness to employ innovative and difficult

2 procedures."

3 NCAA, 468 U.S. at 107 n.33 (quoting Maricopa County Medical Society,

4 457 U.S. at 348). However, the circumstances of both NCAA and

5 Maricopa County Medical Society differ significantly from those

6 here.

7 In Maricopa County Medical Society, the Court was

8 concerned with a plan that involved the fixing of maximum prices

9 that physicians could charge for health services to policyholders

10 under specified insurance plans. The physicians were "independent

11 competing entrepreneurs." 457 U.S. at 357. In the present case, in

12 contrast, the Clubs are professional baseball teams that are

13 interdependent members of the Major Leagues. Further, as discussed

14 in Part II.C.5. below, the need for competitive balance among the

15 Clubs is essential to the well-being of the Leagues.

16 NCAA, which, like the present case, involved sports teams,

17 is significantly different from the present case because it involved

18 a sport at the college level. Colleges exist primarily to provide

19 an education for their students; indeed, some colleges have no

20 football program at all. In contrast, the present case involves a

21 sport at the professional level. Providing baseball entertainment

22 in their respective Leagues is the Clubs' raison d'être; if a Club

23 cannot compete sufficiently to attract fans, it ceases to exist

24 (i.e., moves to another geographic location and becomes a different

25 Club). The professional baseball entertainment product is enhanced
- 88 -

1 and protected by fostering competitive balance among the Clubs.

2 Colleges with sports teams that are competitively weak nonetheless

3 continue to exist and pursue their primary goal, education.

4 In sum, unlike Maricopa County Medical Society and NCAA,

5 this case involves an integrated professional sports league in which

6 the competitors are not independent but interdependent, competitive

7 balance among the teams is essential to both the viability of the

8 Clubs and public interest in the sport, and profit sharing is a

9 legitimate means--approved by both of the economists in this case,

10 see Part II.C.5. below--of maintaining some measure of competitive

11 balance.

12 5. Professional Sports Ventures

13 In the present case, the district court observed that

14 antitrust challenges to the operations of sports leagues have

15 generally been analyzed by the courts under the rule of reason,

16 rather than being held illegal per se, because competition among the

17 teams in their fields of play is to an extent dependent upon the

18 teams' cooperation with each other in various other respects.

19 Salvino contends that this was error, arguing that the licensing of

20 intellectual property is only "collaterally related to professional

21 sports" and that "[t]he conduct at issue here, naked horizontal

22 price and output restrictions, traditionally falls within the per se

23 proscriptions." (Salvino brief on appeal at 20 (emphasis added).)
- 89 -

1 Given that the record shows only increases, not decreases, in output

2 (see Parts I.B.2. and II.C.1. above), and that the so-called "price"

3 restriction challenged by Salvino is simply the Clubs' equal sharing

4 of MLB Intellectual Property licensing profits (see Part II.C.2.

5 above), Salvino's contention that the district court erred in not

6 applying per se or quick-look analysis is meritless.

7 As discussed in Part I.B.1. above, the MLB Entertainment

8 Product comprises some 2,400 interrelated regular-season Major

9 League Baseball games played each year, followed by playoff games

10 for the American and National League championships, and culminating

11 in the World Series. The production of this entertainment requires

12 the joint efforts of the 30 Clubs; it cannot be produced by any one

13 Club individually or even by a few Clubs. In creating the MLB

14 Entertainment Product, the Clubs plainly do not operate separately

15 or independently but rather are interdependent entities in an

16 organization that is highly integrated.

17 It is undisputed that the production and value of the MLB

18 Entertainment Product affect the value of MLB Intellectual Property.

19 For example, when the Major League Baseball players were on strike

20 in 1994 and 1995, sales of products bearing MLB Intellectual

21 Property decreased; when the strike ended, sales of those products

22 increased. Further, the value of the intellectual property of a

23 particular Club is dependent in part on that Club's membership in

24 MLB (for example, Fisher pointed to the decline in value of the

25 intellectual property of such former Clubs as the Houston Colt 45s
- 90 -

1 and the St. Louis Browns), and in part on the Club's popularity.

2 Although every Club no doubt has a core of die-hard fans, a Club's

3 popularity is affected principally by its success on the baseball

4 field and by how the play of each game relates to the season as a

5 whole.

6 Moreover, it cannot be disputed that the performance

7 aspect of a Club's popularity is related to the Clubs'

8 interdependence. Obviously, a team cannot win games or

9 championships unless it has opponents. Thus, even Clubs that fail

10 to achieve winning records, and that have only small steadfast fan

11 bases, contribute to the popularity of the more successful Clubs.

12 Direct licensing by the Clubs, as recommended by Salvino and Guth,

13 would result in the more popular Clubs granting more licenses and

14 receiving more income for their intellectual property than the less

15 popular Clubs would grant and receive. (See, e.g., Salvino brief on

16 appeal at 30 ("If an organization is successful in . . .

17 competition, then it should be entitled to reap the fruits of its

18 acumen."); Guth Report ¶ 32 (describing "an alternative role for

19 MLBP" in which Clubs' "ability to generate revenues from their

20 licensing would be dependent on the value of their mark[s]").) This

21 inequality in licensing income, however, would "over-compensat[e]

22 the popular team for the joint efforts of all Clubs." (Fisher

23 Report ¶ 81.)

24 Further, the disproportionate distribution of licensing

25 income would foster a competitive imbalance among the Clubs. The
- 91 -

1 concept of "competitive balance"

2 reflects the expected equality of opportunity to

3 compete and prevail on the field. Competitive

4 balance also relates to the fans' expectations that

5 each team is a potential champion--i.e. that each

6 Club has a reasonable opportunity to win each game

7 and also to compete for a championship.

8 (Id. ¶ 14.)

9 There is no genuine dispute here that maintaining the

10 value of the MLB Entertainment Product requires competitive balance

11 among the Clubs. Fisher calls "competitive balance . . . critical

12 to the success of MLB." (Id. ¶ 68.) And Salvino acknowledges that

13 MLB teams, like all teams in sports leagues, need to

14 cooperate in terms of scheduling, rulemaking, league

15 format, competitive balance and both the live

16 performance and televising of games, in order to

17 create and market the product, which is baseball

18 games.

19 (Salvino brief on appeal at 27 (emphases added); see also Salvino's

20 California action complaint ¶ 14 (citing "on-field competitive

21 balance" as a "legitimate or procompetitive goal").)

22 Accordingly, Fisher opined that "all the Clubs must be

23 rewarded in order to ensure continued league-wide efforts as well as

24 to foster competitive balance." (Fisher Report ¶ 68 (emphasis in

25 original).) And while Salvino argues that MLBP's equal distribution

26 of licensing income to the Clubs is illegal per se or upon quick27 look analysis, it is telling that precisely such a distribution was

28 ultimately approved by Salvino's own expert. In his initial Report,

29 Guth stated that the goal of equalizing the Clubs' competitiveness

30 could be achieved by "sharing ticket revenues and broadcast
- 92 -

1 revenues" and the imposition of "team salary cap rules." (Guth

2 Report ¶ 10.) We find it difficult, as a logical matter, to fathom

3 why the sharing of revenues from the licensing of intellectual

4 property should be any less valid than the Guth-recommended sharing

5 of revenues from other sources. And in fact, Guth himself

6 ultimately suggested that the free-rider problems, which could occur

7 if Clubs licensed directly, should be solved by "the revenue sharing

8 aspect of the MLBP," i.e., the equal distributions of the licensing

9 profits to the Clubs:

10 [T]he solution to these problems as analyzed in the

11 economics literature has to do with modifying the

12 pay-offs to the Clubs individually so that their

13 incentives are consistent with capturing prevailing

14 externalities. . . . Thus, for example, MLBP

15 currently sets pay-offs to the clubs based on a one16 thirtieth proportionate share to each club.

17 Moreover, Major League Baseball generally has a

18 variety of tools available to it to deal with "too

19 large a slice" of overall revenue going to one Club

20 or another. These include sharing ticket revenues,

21 national TV contract revenues, MLB intellectual

22 property licensing, and excessive payroll

23 adjustments. In this case, the revenue sharing

24 aspect of the MLBP, or something similar, is likely

25 sufficient to solve an externality problem, if such

26 a problem actually exists.

27 (Guth Decl. ¶ 17 (footnote omitted) (emphases added).) Indeed,

28 Guth's view is that equal distributions of profits--which is the

29 only conduct that Salvino challenges as "price restrictions"--would

30 in fact be procompetitive: "Revenue sharing in which teams' payoffs

31 are based on the total figure would encourage teams to maximize

32 total revenues in order to maximize their own, even if this would

33 otherwise be inconsistent with their individual interests." (Guth
- 93 -

1 Decl. ¶ 17 (emphases added).)

2 In sum, given Salvino's own view that "MLB teams, like all

3 teams in sports leagues, need to cooperate in terms of . . .

4 competitive balance" (Salvino brief on appeal at 27), and Salvino's

5 expert's view that "[r]evenue sharing . . . encourage[s] teams to

6 maximize" output and revenues (Guth Decl. ¶ 17), it would defy

7 reason for this Court to accept Salvino's contention that any

8 anticompetitive aspects of the Clubs' agreement on the equal

9 division of MLBP's licensing profit are at all apparent, much less

10 so obvious that that agreement should have been held illegal per se

11 or upon a quick look.

12 D. Rule of Reason

13 Finally, given the present record, we see no error in the

14 district court's analysis of Salvino's claim under the rule of

15 reason. The court noted that Salvino had proffered no evidence that

16 the centralization of licensing in MLBP caused any actual injury to

17 competition or any evidence that MLBP possessed power in the

18 relevant market. The court stated that, "[i]ndeed, Salvino did not

19 respond to MLBP's arguments regarding the rule of reason analysis

20 and instead urged the Court to analyze its claims under the per se

21 rule or quick look doctrine, neither of which would require Salvino

22 to make a showing of adverse effect on the market." 420 F.Supp.2d

23 at 220.

24 On this appeal, Salvino has again argued solely that the
- 94 -

1 court should have applied the per se or quick-look rule and has

2 presented no basis for a ruling that, if rule-of-reason analysis was

3 applicable, the district court erred in the conduct of that

4 analysis. Our own examination persuades us that, on this record,

5 the district court's analysis was correct. We express no view as to

6 what the outcome would be of a case in which a plaintiff challenging

7 the Clubs' centralization of licensing functions in MLBP as their

8 exclusive licensing agent adduced admissible evidence as to the

9 reasonableness of that practice.

10 CONCLUSION

11 We have considered all of Salvino's arguments on this

12 appeal and have found them to be without merit. The judgment of the

13 district court is affirmed.
 It is unclear how much weight the majority places on the lack of any explicit price or output 1

restrictions, see Maj. Op. at 55-61 (Parts II.C.1-2), or whether it ultimately relies on the

distinctions it draws between this case and Broadcast Music, Inc. v. Columbia Broadcasting

System, Inc., 441 U.S. 1 (1979), and NCAA v. Board of Regents, 468 U.S. 85 (1984), see Maj.

Op. at 61-85 (Parts II.C.3-4), in reaching its conclusion that the rule of reason should apply. 

 As noted by the majority, there are a few limited exceptions to the exclusivity agreement, 2

including, for example, allowing Clubs to license their own trademarks on hot dogs and similar

items sold within their home broadcasting territory. See Maj. Op. at 11-12. Notwithstanding

these narrow exceptions, nearly all retail products containing the intellectual property of Major

League Baseball or the Clubs must be licensed through MLBP. 

- 95 -

SOTOMAYOR, Circuit Judge, concurring in the judgment:

I concur fully in the judgment. I write separately because I believe the majority endorses an

overly formalistic view of price fixing and in so doing avoids addressing directly the central

contention of appellant Salvino, Inc. (“Salvino”) that the exclusive arrangement between the Major

League Baseball clubs (the “Clubs”) and Major League Baseball Properties, Inc. (“MLBP”) removes

all price competition between the Clubs on the licensing of intellectual property in violation of the

Sherman Act, 15 U.S.C. § 1. Further, while I agree with the ultimate outcome of this appeal, I reach

my conclusion using a different framework than the majority, applying the doctrine of ancillary

restraints, which I believe more efficiently addresses the issues presented here.

Before applying this framework, however, I address the majority’s flawed view that the Clubs

have made no agreement on price. It is undisputed that theClubs have agreed through the exclusivity 1

and profit-sharing clauses in the MLBP agreement not to compete with each other on the sale of

trademark licenses. Instead, they have agreed to give MLBP the sole authority to set prices for all

Major League Baseball licenses and to share equally in the proceeds from those licensing sales.2

While the MLBP agreement does not specify a price to be charged, the effect of the agreement clearly
- 96 -

eliminates price competition between the Clubs for trademark licenses. An agreement to eliminate

price competition from the market is the essence of price fixing. See, e.g., United States v. Container

Corp. of Am., 393 U.S. 333, 337 (1969). 

Nevertheless, the majority contends that this “so-called ‘price’ restriction is not in fact an

agreement on ‘price’ but rather an agreement for the sharing of profits.” Maj. Op. at 60; see also id.

at 58-61 (Part II.C.2). Were the majority correct, competing companies could evade the antitrust laws

simply by creating a “joint venture” to serve as the exclusive seller of their competing products. So

long as no agreement explicitly listed the prices to be charged, the companies could act as monopolists

through the “joint venture,” setting prices together for their competing products, because the majority

would categorize these actions formalistically as only an agreement to share profits. The antitrust laws

are not so rigid as to permit such easy evasion. 

Explicit price agreements have long been unnecessary for a price restraint to be per se

unlawful. See, e.g., United States v. Gen. Motors Corp., 384 U.S. 127, 142-43 (1966); Am. Tobacco

Co. v. United States, 328 U.S. 781, 809-10 (1946). Indeed, the mere agreement among competitors

to exchange price information is a per se price-fixing violation. See Container Corp., 393 U.S. at 334-

38; see also, e.g., Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 650 (1980) (per curiam) (holding

agreement among wholesale beer sellers to make retailers pay in cash was per se illegal); Nat’l Soc’y

of Prof’l Eng’rs v. United States, 435 U.S. 679, 692-93 (1978) (holding agreement among engineers

to refuse to discuss prices with potential customers until after the initial selection of an engineer was

per se illegal); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 222-24 (1940) (holding

agreement among competitors to buy surplus gasoline was per se illegal). The majority’s analysis is

at odds with this precedent because the majority appears to require an agreement explicitly indicating
 The majority also implies that MLBP’s choice to set a royalty rate rather than a uniform 3

price or “sum certain” is somehow less problematic for antitrust purposes, believing that MLBP’s

licensing fees are “entirely responsive to the preferences of licensees and retail product

consumers.” Maj. Op. at 72-74. Such a distinction between royalty rates and uniform prices is

meaningless. First, for purposes of the Sherman Act, prices “are fixed because they are agreed

upon,” whether it be in the form of a uniform price or a price set by formula. Socony-Vacuum

Oil Co., 310 U.S. at 222. Competitors who agree to fix royalty rates, no less than competitors

who agree to fix a single uniform price, violate the Sherman Act. MLBP’s expert does not even

contest that it has fixed a single price in this case. See Fisher Report ¶ 29-30 (“MLBP has chosen

to set a single price (or royalty rate) irrespective of the popularity of a Club . . . .”). Second,

whether or not an agreed upon price is responsive to consumer demand is irrelevant. See

Socony-Vacuum Oil Co., 310 U.S. at 222-23 (“[T]he fact that, as here, [prices] are fixed at the

fair going market price is immaterial. For purchases at or under the market are one species of

price-fixing.”). The antitrust laws seek to ensure that the determination of price is by free

competition alone; the reasonableness of an agreed upon price is not a defense. See id. at 223;

Catalano, Inc., 446 U.S. at 647.

Furthermore, the majority incorrectly believes that the licensing fees are “entirely

responsive” to demand. A simple example displays the majority’s fallacy. Take Club C, a Club

that has two fans A and B. A is willing to pay $15 for a Club C hat while B is willing to pay $12

for the same hat. Assume that Producer P will sell Club C hats at its marginal cost to produce

them of $10 and assume that MLBP charges a 20% license fee. Under this scenario, the price for

a licensed hat would be $12.50 (price = $10 /(1 – 0.20)), and only A would be willing to buy a

Club C hat. However, if Club C was pricing its own licenses, it could drop the license fee to

15%, in which case both A and B would be willing to buy Club C hats for $11.76, and licensing

revenue for Club C would increase from $2.50 to $3.52. As this example shows, the licensing

fees here are not totally responsive to consumer demand. Basic principles of economics teach us

that as royalty rates increase, the price for licensed goods will increase, and output will decline as

fewer consumers are willing to purchase licensed goods at higher prices. This is Salvino’s

central contention—that if the Clubs were forced to compete with each other for licensing fees,

they would offer licenses at lower rates, thereby resulting in lower prices (and increased output)

for licensed goods. 

- 97 -

a price before that agreement may be considered a per se illegal price restraint. No such rigid 3

requirement is necessary.

The law remains that any “combination formed for the purpose and with the effect of raising,

depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce

is illegal per se.” Socony-Vacuum Oil Co., 310 U.S. at 223. Thus, the antitrust laws prohibit two

companies A and B, producers of X, from agreeing to set the price of X. Likewise, A and B cannot
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simply get around this rule by agreeing to set the price of X through a third-party intermediary or

“joint venture” if the purpose and effect of that agreement is to raise, depress, fix, peg, or stabilize the

price of X. See Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598 (1951) (“Nor do we

find any support in reason or authority for the proposition that agreements between legally separate

persons and companies to suppress competition among themselves and others can be justified by

labeling the project a ‘joint venture.’”), overruled on other grounds by Copperweld Corp. v.

Independence Tube Corp., 469 U.S. 752 (1984); see also Federal Trade Comm’n & U.S. Dep’t of

Justice, Antitrust Guidelines for Collaborations Among Competitors 9 (2000) (“[L]abeling an

arrangement a ‘joint venture’ will not protect what is merely a device to raise price or restrict output

. . . .”). In other words, an agreement between competitors to “share profits” or to make a third party

the exclusive seller of their competing products that has the purpose and effect of fixing, stabilizing,

or raising prices may be a per se violation of the Sherman Act, even if no explicit price is referenced

in the agreement. 

The present dispute is significantly more complex than two competitors creating a “joint

venture” for the sole purpose of fixing prices. Here, the MLBP joint venture offers substantial

efficiency-enhancing benefits that the individual Clubs could not offer on their own, including

decreased transaction costs on the sale of licenses, lower enforcement and monitoring costs, and the

ability to one-stop shop (i.e., to purchases licenses from more than one Club in a central location).

These procompetitive benefits, MLBP maintains, could not exist without the exclusivity and profitsharing agreements, the two provisions challenged by Salvino as price fixing. In other words, MLBP

argues that even if the effect of the exclusivity and profit-sharing agreements is to eliminate price

competition between the Clubs, the purpose of these agreements is to achieve other significant
 MLBP further argues that eliminating price competition between the Clubs causes no harm 4

to the market because the Clubs must compete with a wide array of entertainment entities,

including other sports leagues and entertainment companies, in the licensing of intellectual

property, and therefore lack the market power necessary to affect prices.

 For a detailed explanation of the per se, quick look, and rule of reason methods of analysis 5

under the Sherman Act, see Part II.B of the majority opinion. See Maj. Op. at 48-54.

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procompetitive benefits, which outweigh any harm from the price restraint. We must decide then 4

whether the Clubs’ agreement not to compete with each other on price, which is price fixing in a literal

sense, should nevertheless be reviewed under a rule of reason in light of MLBP’s other efficiencyenhancing benefits. See Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006); Broad. Music, Inc. v. Columbia

Broad. Sys., Inc., 441 U.S. 1, 8-9 (1979) (rejecting application of the per se rule to every situation

where there is literal price fixing because “[l]iteralness is overly simplistic and often overbroad” and

explaining that “‘price fixing’is a shorthand wayof describing certain categories of business behavior

to which the per se rule has been held applicable”). For the reasons described below, I join with the

majority in concluding that neither a per se nor a quick-look approach is appropriate here, but I apply

a substantially different framework than the majority in reaching my conclusion.5

Recognizing that joint ventures “hold the promise of increasing a firm’s efficiency and

enabling it to compete more effectively,” the Supreme Court has concluded that joint ventures should

normally be analyzed under a rule of reason, requiring an inquiry into market power and structure and

the actual effects of any restraints on trade. Copperweld Corp., 467 U.S. at 768; see also Nw.

Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 295-98 (1985) (same).

“While joint ventures have no immunity from the antitrust laws . . . , a joint selling arrangement may

‘mak[e] possible a new product by reaping otherwise unattainable efficiencies.’” NCAA v. Bd. of

Regents, 468 U.S. 85, 113 (1984). Accordingly, competitors engaged in joint ventures may be
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permitted to engage in a variety of activities that would normally be illegal under a per se rule when

such activities are necessary to achieve the significant efficiency-enhancing purposes of the venture.

For example, price fixing between competitors—generally a per se illegal restraint—may be justifiable

in certain circumstances when done as part of a joint venture. See Broad. Music, 441 U.S. at 23. In

short, to protect the efficiency-enhancing potential of joint ventures and cooperatives, the rule of

reason is the favored method of analysis for these ventures, preventing courts from intervening before

a full market analysis is completed. 

Nevertheless, a per se or quick-look approach may apply to joint ventures in at least two

situations: (1) where a joint venture is essentially a sham, offering no reasonable prospect of any

efficiency-enhancing benefit to society, see Addamax Corp. v. Open Software Found., Inc., 152 F.3d

48, 52 (1st Cir. 1998); and (2) where a particular challenged restraint is not reasonably necessary to

achieve any of the efficiency-enhancing benefits of a joint venture and serves only as naked restraint

against competition, see Polk Bros., Inc. v. Forest City Enters., Inc., 776 F.2d 185, 188-89 (7th Cir.

1985). In such cases, a court may conclude that a joint venture or a challenged restraint is per se

illegal where it has “manifestly anticompetitive effects.” See Leegin Creative Leather Prods., Inc. v.

PSKS, Inc., 127 S. Ct. 2705, 2713 (2007) (internal quotation marks omitted). 

Because MLBP offers significant procompetitive benefits, Salvino does not seriously contend

that MLBP as a whole is so manifestly anticompetitive that it should be considered a sham cartel. Cf.

Palmer v. BRG of Ga., Inc., 498 U.S. 46 (1990) (per curiam) (holding an agreement between bar

review course providers dividing market territories and sharing revenue was a per se violation).

Rather, Salvino argues for a per se or quick-look approach under the second scenario, maintaining that

the exclusivity and profit-sharing provisions ofthe MLBP agreement are not necessary to achieve any

of MLBP’s procompetitive advantages and serve no purpose but to stifle competition. As Salvino
 The doctrine of ancillary restraints has its roots in an 1898 opinion by then-Judge Taft. See 6

United States v. Addyston Pipe & Steel Co., 85 F. 271, 280-83 (6th Cir. 1898), aff’d, 172 U.S.

211 (1899). The principle has been adapted over the last few decades to the context of joint

ventures, as noted in the cases cited above.

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explains, “Without the exclusivity requirement, potential licensees would have the freedom to either

seek out each team for individualized arrangements or deal with all teams through the centralized

agency of MLBP.” Accordingly, Salvino asks us to separate these two provisions from the rest of the

joint venture and to conclude that they are so plainly anticompetitive as to be per se illegal. Because

the provisions are reasonably necessary to achieve MLBP’s efficiency-enhancing objectives, I

conclude that they should be analyzed as part of the joint venture using a rule-of-reason analysis.

Joint ventures are typically evaluated as a whole under the rule of reason because the

competitive effects of an individual restraint are intertwined with the effects of the remainder of the

venture. However, under the doctrine of ancillary restraints, when a challenged restraint is not

reasonably necessary to achieve any of the efficiency-enhancing purposes of a joint venture, it will be

evaluated apart from the rest of the venture. See, e.g., Freeman v. San Diego Ass’n of Realtors, 322

F.3d 1133, 1151 (9th Cir. 2003); SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 970 (10th Cir. 1994);

Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 224 (D.C. Cir. 1986); Polk Bros.,

776 F.2d at 189; In re Polygram Holding, Inc., Docket No. 9298, 2003 WL 21770765 (F.T.C. 2003).

See generally Federal Trade Comm’n & U.S. Dep’t of Justice, Antitrust Guidelines for Collaborations

Among Competitors (2000); Gregory J. Werden, Antitrust Analysis of Joint Ventures: An Overview,

66 Antitrust L.J. 701 (1998). This doctrine seeks to distinguish between those restraints that are

intended to promote the efficiencies of a joint venture and those that are simply unrelated. As the 6

Seventh Circuit explained:

A court must distinguish between “naked” restraints, those in which the restriction on
 However, a non-ancillary restraint is not necessarily unlawful or evaluated under a per se 7

rule; rather, it is simply evaluated independent of the joint venture because its competitive effects

are irrelevant to the joint venture and vice versa. Conversely, an ancillary restraint is not

necessarily lawful. Its competitive benefits and harms must still be weighed, as part of the joint

venture, under a rule-of-reason analysis. See Sullivan v. Nat’l Football League, 34 F.3d 1091,

1102 (1st Cir. 1994). 

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competition is unaccompanied by new production or products, and “ancillary” restraints, those

that are part of a larger endeavor whose success they promote. If two people meet one day and

decide not to compete, the restraint is “naked”; it does nothing but suppress competition. If

A hires B as a salesman and passes customer lists to B, then B’s reciprocal covenant not to

compete with A is “ancillary.” At the time A and B strike their bargain, the enterprise (viewed

as a whole) expands output and competition by putting B to work. The covenant not to

compete meansthat A may trust B with broader responsibilities, the better to compete against

third parties. Covenants of this type are evaluated under the Rule of Reason as ancillary

restraints, and unless they bring a large market share under a single firm’s control they are

lawful.

Polk Bros., 776 F.2d at 188-89 (internal citation omitted). The doctrine recognizes that a restraint that

is unnecessary to achieve a joint venture’s efficiency-enhancing benefits may not be justified based

on those benefits. Accordingly, a challenged restraint must have a reasonable procompetitive

justification, related to the efficiency-enhancing purposes of the joint venture, before that restraint will

be analyzed as part of the venture. If none exists, the challenged restraint must be evaluated on its

own and may be per se illegal even if the remainder of the joint venture is entirely lawful. Cf. 7

Blackburn v. Sweeney, 53 F.3d 825, 828-29 (7th Cir. 1995) (applying the per se rule to a provision in

a law partnership dissolution agreement that restrained the territories where former partners could

advertise after finding the provision to be non-ancillary to the rest of the agreement). In contrast,

where a restraint is reasonably necessary to achieve a joint venture’s efficiency-enhancing purposes

(i.e., ancillary), it will be analyzed under the rule of reason as part of the joint venture because the

effects of that restraint are not so plainly anticompetitive as to make a per se or quick-look approach
 Several courts and commentators have—I believe correctly—viewed Broadcast Music and 8

NCAA, the two cases primarily relied upon by the majority, as implicit applications of the

ancillary restraints analysis. See, e.g., Sullivan, 34 F.3d at 1102; Polk Bros., 776 F.2d at 189; see

also XI Herbert Hovenkamp, Antitrust Law ¶¶ 1908b, 1908d, 1908e, at 253-58, 261-65 (2d ed.

2005). In Broadcast Music, the need to reach some pricing agreement was necessary in order to

sell a blanket license; otherwise, the product would not have been possible at all. See 441 U.S. at

20-23. Consequently, the Court examined the venture as a whole, implicitly viewing the pricing

restraint as ancillary. In contrast, the Court reviewed the television agreement in NCAA as a nonancillary naked restraint, apart from the rest of the joint venture, because the Court could not find

any reason for the agreement that would be reasonably necessary to achieve any of the efficiencyenhancing objectives of the NCAA. See 468 U.S. at 113-15; see also Texaco Inc., 547 U.S. at 7

(citing NCAA as an application of the ancillary restraints doctrine). 

 Salvino argues that “there are better ways to address” the externalities than these two 9

challenged provisions. Whether the externalities could be eliminated in a substantially less

restrictive manner is an inquiry that should generally be part of a rule-of-reason analysis rather

than part of a per se or quick-look approach. See, e.g., Care Heating & Cooling, Inc. v. Am.

Standard, Inc., 427 F.3d 1008, 1012 (6th Cir. 2005). 

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appropriate.8

In this case, the exclusivity and profit-sharing provisions of the MLBP agreement are

reasonably necessary to achieve MLBP’s efficiency-enhancing purposes because they eliminate

several potential externalities that may otherwise distort the incentives of individual Clubs and limit

the potential efficiency gains of MLBP. See Fisher Report at 31-37. Most notable of these

externalities is the so-called free-rider problem. Because of the interdependence of the Clubs within

the setting of a sports league, free riding would occur if one of the Clubs is able to benefit

disproportionately from the actions of Major League Baseball or other Clubs in the licensing of

products. Id. at 32-35. This may lead to inefficiencies because the Clubs’ incentive to invest in the

promotion and development of their intellectual property and other licensed products may be distorted.

Id. Both MLBP and Salvino recognize that without the exclusivity and profit-sharing provisions, these

externalities could diminish MLBP’s efficiency gains. Indeed, Salvino’s own expert, Louis Guth, 9

admitted in his deposition, when asked whether there would be more or less licenses without the
 Empirical analysis could ultimately show that the anticompetitive harms from the 10

challenged provisions outweigh any procompetitive benefits. The point is simply that Salvino’s

expert recognized that empirical analysis is necessary to determine whether these provisions have

a positive or negative competitive effect. When empirical analysis is required to determine a

challenged restraint’s net competitive effect, neither a per se nor a quick-look approach is

appropriate because those methods of analysis are reserved for practices that “facially appear[] to

be one[s] that would always or almost always tend to restrict competition and decrease output.”

Broad. Music, 441 U.S. at 19-20; see also Texaco Inc., 547 U.S. at 7 n.3 (explaining that a quicklook analysis applies only where “business activities are so plainly anticompetitive that courts

need undertake only a cursory examination before imposing antitrust liability”).

 Salvino argues that the exclusivity and profit-sharing provisions are not essential to the 11

success of MLBP. Even if true—one certainly could imagine MLBP prospering without these

provisions—the analysis here is not altered. Under the ancillary restraints doctrine, a challenged

restraint need not be essential, but rather only “reasonably ancillary to the legitimate cooperative

aspects of the venture.” Freeman, 322 F.3d at 1151; see also Polk Bros., 776 F.2d at 189

(explaining that a restraint is ancillary if it may promote the success of the more extensive

cooperation and will then be scrutinized under the rule of reason). 

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centralized control of MLBP, that he could not give a straight yes or no answer without empirical

analysis because of these potential externalities. See Guth Dep. at 135-37. In other words, Guth

conceded that the challenged provisions could have a procompetitive impact related to the efficiencyenhancing purposes of MLBP. Undersuch circumstances, the challenged restraints must be viewed 10

as ancillary to the joint venture and reviewed under the rule of reason in the context of the joint

venture as a whole. See Rothery Storage, 792 F.2d at 228 (“[E]limination of the free ride is an 11

efficiency justification available to horizontal restraints that are ancillary to a contract integration.”).

The majority spends considerable time analyzing the similarities and differences between this

case and Broadcast Music and NCAA, some of which I agree with and some of which I do not.

However, I believe the ancillary restraints framework is a superior method for analyzing the

challenged restraints here because it effectively isolates when an exclusive arrangement should be

reviewed under the rule of reason, as a reasonably necessary part of a joint venture, and when it should

be reviewed as a naked restraint. Neither Broadcast Music nor NCAA offer much direct insight into
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the treatment of exclusivity agreements, except to emphasize the anticompetitive dangers of exclusive

arrangements. See Broad. Music, 441 U.S. at 23-24 (emphasizing that “individual composers and

authors have neither agreed not to sell individually in any other market nor use the blanket license to

mask price fixing in such other markets”); NCAA, 468 U.S. at 114 n.54 (“Ensuring that individual

members of a joint venture are free to increase output has been viewed as central in evaluating the

competitive character of joint ventures.”). In my view, the exclusivity provision is the single most

important distinguishing factor between this case and Broadcast Music, yet the majority offers little

analysis of this distinction and no explanation as to how such an arrangement should be analyzed.

Accordingly, while I ultimately agree with the majority that the rule of reason applies here, I reach my

conclusion through a different path.

Having concluded that the rule of reason is appropriate in this case, I concur fully with the

majority’srule-of-reason analysis and agree that summary judgment was properly awarded to MLBP.

See Maj. Op. at 89-90. On the present record, Salvino has adduced no evidence of an “actual adverse

effect on competition as a whole in the relevant market,” Geneva Pharms. Tech. Corp. v. Barr Labs.

Inc., 386 F.3d 485, 506-07 (2d Cir. 2004) (internal quotation marks omitted). As such, its Sherman

Act claims must fail. As noted by the majority, we need not and do not decide whether a successful

Sherman Act claim could have been brought against MLBP with a properly supported record,

including whether the procompetitive justifications for the two challenged provisions could be

achieved in a substantially less restrictive manner.