Driskill v. Dallas Cowboys Football Club, Inc., 73-2659.
| Decision Date | 09 August 1974 |
| Docket Number | No. 73-2659.,73-2659. |
| Citation | 498 F.2d 321 |
| Parties | Richard E. DRISKILL, Plaintiff-Appellant, v. DALLAS COWBOYS FOOTBALL CLUB, INC., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William E. Skye, Alexandria, La., Carl J. Schmolder, Dallas, Tex., for plaintiff-appellant.
Marshall Simmons, William D. Sims, Jr., Dallas, Tex., for Dallas Cowboys, Leage & Rozell.
Don Rorschach, City Atty., Irving, Tex., Robert W. Smith, Dallas, Tex., for City of Irving, Tex.
Rayford Price, Dallas, Tex., for defendants-appellees.
Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
Driskill brought this action under § 1 of the Sherman Anti-Trust Act, 15 U.S. C.A. § 1, alleging that the Cowboys and the City of Irving have established an illegal "tying" arrangement, requiring the purchase of undesirable items—preseason tickets and low-interest stadium bonds—as a condition for the purchase of the desirable item—the season ticket package, with its attendant preferential seating location, parking privileges, and right to reserve a season ticket and a particular seat for the following season. The district court granted summary judgment in favor of defendants, holding as follows: (1) since single game tickets have been available for every home game in the past, Driskill has not been coerced to buy preseason tickets in order to gain admission to the regular season games; (2) the granting of preferred parking to season ticket holders is a reasonable business practice with no anticompetitive effect; (3) since individual home game tickets have always been available, Driskill has not been coerced to buy a stadium bond in order to gain admission to regular season games; and (4) forcing the purchase of a stadium bond or bonds as a prerequisite to the purchase of a season ticket package has no anticompetitive effect. We affirm on the ground that Driskill has not pleaded that the tying of season tickets to preseason tickets and stadium bonds has an anticompetitive effect, nor has he alleged with particularity any material facts in issue that would support a finding of anticompetitive effects or coercion to purchase the bonds so as to avoid an adverse summary judgment.
There has been a spate of cases alleging Sherman Act violations in the tying of preseason tickets to season tickets by various National Football League teams. These cases have all resulted in summary judgments for the defendant teams. See Pfeiffer v. New England Patriots Football Club, Inc., D.Mass.1972, 1973 Trade Cas. ¶ 74,267, appeal dismissed, 1 Cir., Nov. 1, 1972, No. 72-1306; Laing v. Minnesota Vikings Football Club, Inc., D.Minn.1973, 372 F.Supp. 59, aff'd 8 Cir. 1974, 492 F.2d 1381, petition for cert. filed, 42 U.S.L.W. 3693, U.S., May 16, 1974; Coniglio v. Highwood Services, Inc. Buffalo Bills, W.D.N.Y., 1973, 60 F.R.D. 359, aff'd, 2 Cir. 1974, 495 F.2d 1286; Grossman Development Co. v. Detroit Lions, Inc., E.D.Mich. 1973, 1973-2 Trade Cas. ¶ 74,790, appeal docketed, 6 Cir. 1974, No. 74-1093; Rubin v. Miami Dolphins, Ltd., S.D.Fla., May 22, 1974, No. 74-129-Civ-CA. Summary judgments have been granted or upheld on appeal on three different theories: (1) that fans are not in fact coerced into buying tickets to preseason games (as part of a season ticket package) in order to gain admission to regular season games; (2) that no tying of one product to another is possible, since there do not exist two different products —preseason and regular season games —but rather only one indivisible product —professional football games; and (3) that the tying of preseason to regular season tickets has no anticompetitive effect in the tied market. We agree with the conclusion reached by the Second Circuit after a very careful analysis in Coniglio, that, although neither of the first two theories is sufficient to sustain the summary judgment here, the last provides a basis of affirmance. See also Grossman Development Co. v. Detroit Lions, Inc., supra.
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