Amateur Softball Ass'n of America v. United States
Decision Date | 03 October 1972 |
Docket Number | No. 72-1041.,72-1041. |
Citation | 467 F.2d 312 |
Parties | AMATEUR SOFTBALL ASSOCIATION OF AMERICA, a nonprofit corporation, Petitioner-Appellant, v. The UNITED STATES of America, et al., Respondents-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Hines, Klaus & Wilsey, and Lester A. Klaus, Oklahoma City, Okl., for petitioner-appellant.
Walker B. Comegys, Acting Asst. Atty. Gen., Carl D. Lawson, Stephen Rubin, Attys., Dept. of Justice, Washington, D. C., for respondents-appellees.
Before LEWIS, BARNES* and HILL, Circuit Judges.
This is an appeal from an order of the district court requiring the production of certain documents allegedly relating to and kept by the appellant, Amateur Softball Association of America, a non-profit corporation (herein "Association"), pursuant to a Civil Investigative Demand (herein CID) made by Appellee, United States of America (through its Department of Justice employees) upon said Association, 15 U.S.C. §§ 1311 to 1314.1 At the same time, appellant's "Petition to Set Aside and Modify Civil Investigative Demand" was denied by the District Court.
The Antitrust Division of the Department of Justice asserted the CID was required by reason of an enquiry instituted by it for the purpose of ascertaining whether there is, or has been a violation by the appellant Association of the Sherman Antitrust Act, 15 U.S.C. § 1.2
This appeal raises several issues which the parties describe differently. Appellant suggests error was committed by the district court in ordering compliance with the CID because:
Despite the appellant's suggestion that its appeal presents questions "that have never been decided" by the courts, it makes and urges us to make several assumptions—such as one: that softball is entitled to the same antitrust exemption as that granted organized professional baseball by the well known cases of Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898 (1922); Toolson v. New York Yankees, 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953); and Flood v. Kuhn, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972); or two: that amateur sports and/or nonprofit corporations cannot conceivably be held to have engaged in the "trade or commerce" essential to a violation of the Sherman Act.
The recent Flood case points out the unique character of organized professional baseball's exemption—as opposed to the specifically expressed lack of exemption of other somewhat similar activities, such as theatre attractions (United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955)); boxing "exhibitions", United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955), professional football, Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), and professional basketball, Haywood v. National Basketball Ass'n., 401 U.S. 1204, 91 S.Ct. 672, 28 L.Ed.2d 206 (1971).
Professional baseball's exemption from antitrust laws, said Mr. Justice Blackmun, in Flood, supra, is:
"an exception and an anomaly. . . an abberation confined to baseball." (407 U.S. at 282, 92 S.Ct. at 2112).
The Supreme Court itself has described this exemption as "`unrealistic', `inconsistent' and `illogical'". Cf.: Salerno v. American League, 429 F.2d 1003, 1005 (2d Cir. 1970); cert. denied 400 U.S. 1001, 91 S.Ct. 462, 27 L.Ed.2d 452 (1970). Mr. Justice Douglas (who was part of the unanimous court in Toolson), refers in his Flood dissent to the result in Federal Baseball Club as "a derelict in the stream of law that we, its creator, should remove." (407 U.S. at 286, 92 S.Ct. at 2114).
We can only conclude that amateur softball is not presently entitled to rely on the same unique exemption that organized professional baseball has claimed and achieved for so many years.
As to an exemption granted to amateur athletics, if any, we conclude that many activities not within the mind of those legislators who drafted the Sherman Act in 1890, or those who passed the Clayton Act in 1914, have more recently been held violative of the very broad and general language of Section 1 of 15 U. S. Code, and the peculiar language of certain sections of the Clayton Act (15 U.S.C. § 18).
While it is true Judge Steckler had some trouble in finding jurisdiction under the antitrust laws (idem, p. 151), he did finally conclude he did have jurisdiction. (Upon trial, however, he concluded there has been no violation thereof). But his ultimate finding is of small precedential value to us at this state of this case.
Any exemption claimed for amateur sports is, in short, one of the issues "wholly inappropriate for this Court's determination in the present posture of this proceeding." (Gov. Br., p. 15). We cannot conclude, in the present status of this appeal, that amateur softball is or is not engaged in commerce.
We hold that issues 1, 2(a) and 2(b) outlined above are matters that cannot be determined on the record before us on this appeal.
With respect to issue 2(c) above, the Association's brief again characterizes the government's investigation as one into the "internal structure, rules and regulations of Amateur Softball." On the other hand, the CID itself states the Justice Department's investigation is to determine whether the activities and agreements of the Association, its members, and certain softball manufacturers have restrained trade or commerce in softballs and softball equipment.
A simple self-serving assertion expressed in the form of a conclusion by the recipient of a CID that it is not in "business" that is within the "trade or commerce" defined in the Sherman Act, does not and cannot isolate contracts, agreements, or conspiracies which restrain trade or commerce in commercially sold articles (or the groups or individuals involved therein and the parties thereto) from the thrust and operation of the antitrust laws. American Medical Assn. v. United States, 317 U.S. 519, 528-529, 63 S.Ct. 326, 87 L.Ed. 434 (1942); Northern California Pharmaceutical Assn. v. United States, 306 F.2d 379, 384 (9th Cir. 1962), cert. denied, 371 U.S. 862, 83 S.Ct. 119, 9 L.Ed.2d 99 (1962).3
requires a further investigation and inquiry into the issues raised. In Bridge Corporation of America v. American Contract Bridge League, Inc., 428 F.2d 1365, 1370 (9th Cir. 1970), cert. denied, 401 U.S. 940, 91 S.Ct. 940, 28 L.Ed.2d 220 (1971), the court of appeals noted:
Nor will the alleged failure of the government "to investigate, regulate or apply the antitrust laws to other professional and amateur sports" justify a...
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