Fleer Corp. v. Topps Chewing Gum, Inc.

• Citation: 658 F.2d 139
• Decision Date: 22 October 1981
• Docket Number: Nos. 80-,No. 80-2539,No. 80-2538,81-1104 and A,M,Nos. 80-2537,s. 80-2537,s. 80-,80-2538,80-2539
• Parties: 1981-2 Trade Cases 64,249 FLEER CORPORATION, Appellant inppellee in2538, 80-2539, v. TOPPS CHEWING GUM, INC., et al., Major League Baseball Players Association, Topps Chewing Gum, Inc., Appellee inppellant inajor League Baseball Players Association, Appellee inppellant into 80-2539 and 81-1104.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 139

658 F.2d 139

1981-2 Trade Cases 64,249

FLEER CORPORATION, Appellant in Nos. 80-2537, 81-1104 and Appellee in Nos. 80- 2538, 80-2539, v. TOPPS CHEWING GUM, INC., et al., Major League Baseball Players Association Topps Chewing Gum, Inc., Appellee in Nos. 80-2537, 81-1104 and Appellant in No. 80-2538 Major League Baseball Players Association, Appellee in Nos 80-2537, 81-1104 and Appellant in No. 80-2539.

Nos. 80-2537 to 80-2539 and 81-1104.

United States Court of Appeals Third Circuit.

Argued May 18, 1981.

Decided Aug. 25, 1981.

Rehearing and Rehearing En Banc Denied Oct. 22, 1981.

Bernard G. Segal (argued), James D. Crawford, Arlene Fickler, David G. Battis, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Sidney Harris, New York City, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for Topps Chewing Gum, Inc.

Harold F. McGuire, Jr. (argued), Walter Barthold, Barthold & McGuire, New York City, Norman M. Berger, Galfand, Berger, Senesky, Lurie & March, Philadelphia, Pa., Donald M. Fehr, New York City, for Major League Baseball Players Ass'n.

Matthew M. Strickler (argued), Linda S. Martin, Frederick L. Ballard, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for Fleer Corp.

Before GIBBONS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case involves the production and sale of major league baseball trading cards in alleged violation of sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1 & 2 (1976). Appellee, Fleer, commenced suit in 1975 against appellants, Topps, and the Major League Baseball Players Association (MLBPA), claiming that appellants excluded effective competition in the sale of baseball trading cards through a series of interlocking exclusive licensing contracts. The contracts at issue were Topps' individual licensing agreements with each player in the major and minor leagues; the commercial authorization contract between the MLBPA and the individual major league players; and a 1968 agreement between Topps and the MLBPA which constituted a renegotiation of players' earlier contracts with Topps. The district court found these interlocking agreements to foreclose competition in all but a small portion of the relevant market. Nominal damages were awarded against Topps, but the district court granted injunctive relief that required Topps to assign its exclusive publicity rights to the MLBPA. In turn, the Association was to grant at least one non-exclusive license for the production of baseball cards before January 1, 1981. Because we hold that the three agreements in question were neither unreasonable restraints of trade under section 1 of the Sherman Act, nor monopolization of the relevant market under section 2, we will reverse the judgment of the district court.

I. FACTS

A. The Parties

Appellee, Fleer Corporation, manufactures and sells bubble gum and other confections. In the late 1950's and early 1960's Fleer sold baseball trading cards in combination with gum as well as other non-sport (editorial) trading cards. ¹ Prior to 1966, Fleer had individual licensing agreements with several major league baseball players that authorized the production and sale of baseball trading cards. Fleer sold all of these contract rights to Topps in 1966.

Appellant, Topps Corporation, also manufactures and sells bubble gum, candy, and novelties. ² In 1956, Topps acquired the exclusive license to a large number of baseball players' photographs and statistics through an agreement with Bowman Gum Company. Topps is presently the only seller of baseball cards sold in combination with bubble gum in the United States.

The MLBPA is a labor organization whose primary responsibilities are to negotiate, administer, and enforce collective bargaining agreements between the players and the team owners. The Association is also the players' exclusive marketing agent for publicity rights when these rights are sold as part of a group series.

B. Background

The products at issue are baseball trading cards: the familiar 2 1/2 by 3 1/2 cards with the name and picture of one player, in team uniform, on the front, and his career statistics and personal information on the back. ³ Baseball trading cards were first sold in conjunction with chewing tobacco and cigarettes at the end of the nineteenth century and were included later as a treat with chewing gum and other confections. Since first introduced, baseball trading cards have developed quite a following among baseball fans. As the district court noted:

For decades, they (baseball cards) have been an important and distinctive part of many childhoods ... Cardboard, wallet-size pictures of active major league players have existed for generations. Even if the product was merely a casual idea of a long-forgotten promoter in the 1880's, and even if there are hundreds of variations and substitutes which logically might exist, the concept is now so embedded that baseball cards literally define themselves.

Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485, 497 (E.D.Pa.1980).

Topps began to market baseball cards with bubble gum in 1949. At that time Bowman Gum Corporation had a predominate position in the baseball card market by virtue of its numerous publicity contracts with major league players. ⁴ These contracts gave Bowman the exclusive right to use a player's photograph in connection with the sale of gum. In 1953, when Topps introduced trading cards depicting players under exclusive contract to Bowman, the latter, through its parent corporation, commenced suit for infringement. The Second Circuit, in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.), cert. denied, 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343 (1953), held that Topps' publication both infringed on Bowman's contractual rights and violated the players' exclusive right to control their own publicity. Topps was forced to withdraw the infringing cards.

Three years after this decision Topps purchased all of Bowman's player contract rights, and Bowman left the trading card market altogether. In addition, during this period, Topps began a vigorous program of signing individual standard form contracts with thousands of both major and minor league baseball players. Under these agreements, each player granted Topps an exclusive right to publish his name, picture, signature and biographical sketch "to be sold either alone or in combination with chewing gum, candy and confection or any of them." As consideration, Topps guaranteed the player a lump-sum payment of $125 for each season in which either his picture was used or the player was an active member of a major league club. These contracts ran until Topps had made five years of payments to the individual player.

In 1965, the Federal Trade Commission filed an administrative complaint against Topps claiming that its aggregation of individual exclusive contracts violated section 5 of the FTC Act. 15 U.S.C. § 45 (1976); Topps Chewing Gum, Inc., 67 FTC 744 (1965). After a hearing, an examiner ruled against Topps, but on appeal the Commission reversed. It held that Topps' exclusive license to publish players' photographs and statistics on trading cards was limited in scope and hence lawful. The Commission stressed that Topps' limited exclusive licenses did not prohibit the sale of trading cards with other low cost products such as marbles, cookies, or powdered softdrinks. Therefore, competition for baseball trading cards existed when the cards were sold in conjunction with products other than gum. Id. at 859.

Until the FTC's decision, Fleer competed with Topps by obtaining a similar aggregation of player publicity licensing agreements. Indeed, in the early 1960's Fleer sold two sets of trading cards known as "Baseball Greats." After the FTC's 1965 ruling, however, Fleer abandoned the baseball market and focused on other sports and editorial cards. In 1966, it sold all its player publicity licenses to Topps for $395,000.

Since 1966, Topps has accumulated the vast majority of exclusive licensing agreements with the players. By virtue of these contracts, Topps is the sole manufacturer of baseball trading cards sold in conjunction with bubble gum. Since 1966, however, baseball trading cards have accompanied a variety of other non-confectionary products. This was due, in large measure, to the development of the MLBPA.

C. Development of the MLBPA and Group Licenses

When the MLBPA hired its first executive director, Marvin Miller, in 1966, the Association suffered from an acute lack of funds. In order to raise operating capital, Miller developed the idea of a group licensing program whereby all of the players would authorize the Association to market their pictures and signatures when they were distributed as part of a group series. The first such group license was granted to Coca-Cola. It called for a series of 500 player pictures to be placed on the underside of bottlecaps. The royalties from this project funded the operating expenses of the Association and solved the immediate fiscal crisis. Although Miller planned to terminate the program, the players liked the extra income and persuaded Miller to retain the system even after the Coca-Cola agreement had expired.

Under this group licensing program, which became known as the commercial authorization contract, each player remained free to market the personal rights to his name, likeness, and signature when used individually, but only the MLBPA could contract for the players as a group. The players were not required to sign the commercial authorization contract, but most did. ⁵ From 1966 to 1975, the MLBPA entered into group licensing contracts with Kellogg, Sports Promotions, Milk Duds, and ITT Continental Baking among others. The number of players included in the licensing agreement has varied. Some contracts (Coca-Cola and Kellogg) covered all major league players; others extended to "not less than 72, and...