Saunders v. National Basketball Association

• Decision Date: 26 September 1972
• Docket Number: No. 69 C 2477.,69 C 2477.
• Parties: Alphra SAUNDERS, Plaintiff, v. The NATIONAL BASKETBALL ASSOCIATION et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

348 F. Supp. 649

Alphra SAUNDERS, Plaintiff, v. The NATIONAL BASKETBALL ASSOCIATION et al., Defendants.

No. 69 C 2477.

United States District Court, N. D. Illinois, E. D.

September 26, 1972.

Allan A. Ackerman, of Witt & Festoso, Chicago, Ill., for plaintiff.

Monheimer, Schermer, Van Fredenberg & Smith, Seattle, Wash., Earl E. Pollock, of Sonnenschein, Levinson, Carlin, Nath & Rosenthal, Chicago, Ill., George G. Gallants, New York City, William G. Vance, Atlanta, Ga., Simpson, Thacher & Bartlett, New York City, for defendants.

MEMORANDUM OPINION AND ORDER

BAUER, District Judge.

This cause comes on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This is an action under the Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2, and the Clayton Act, 15 U.S.C. §§ 15 and 26. The plaintiff, Alphra Saunders, filed his complaint on December 2, 1969, naming as defendants the National Basketball Association ("NBA"), its member teams, and its Commissioner. The plaintiff alleges that since 1961 he has been denied an opportunity to prove his eligibility for membership in the NBA. He further alleges that this denial has been made by defendants arbitrarily pursuant to a conspiracy. The plaintiff seeks injunctive relief plus money damages or, alternatively, money damages alone.

The instant motion is based on a claim that the action is barred both by the applicable Statute of Limitations and also by plaintiff's admitted failure to request or apply for the employment which he alleges was denied him. The defendants aver that based on the Stipulations of the parties, there is no genuine issue as to any material fact and that as a matter of law, judgment should be rendered in their favor.

Plaintiff contends that defendant's motion for summary judgment should be denied for the following reasons:

I. There are genuine issues of material fact concerning plaintiff's compliance with the applicable Statute of Limitations.

II. Plaintiff's claim is not barred by his failure to request or apply for employment.

III. The motion for summary judgment should be denied for the following additional reasons:

A. The nature of summary procedure.

B. Prior rulings in this case.

C. Plaintiff's right of trial by jury.

The following facts, inter alia, were stipulated to by the parties on June 23 and July 1, 1971. First, that the National Basketball Association ("NBA") is a league of professional basketball teams which each year conducts a "college draft" in which college players are selected by NBA teams for possible employment. Second, that plaintiff played basketball at Bradley University between 1957 and 1961. Third, that during his senior year plaintiff was not a regular starting player at Bradley; that he was not named to either the first or second Missouri Valley All-Conference Teams, and that he was expelled from Bradley because he failed to report his receipt of money from men who tried to induce him to shave points in Bradley University games. Fourth, that plaintiff has never applied to play in the NBA, that he never requested a try-out with any NBA team (although none of the defendants ever told him that he was ineligible for such a try-out), and that during the period from the completion of his college basketball career in 1961 until he filed suit in 1969, he never communicated with any of the defendants to show any interest in becoming an NBA player. Fifth, that of the 24 players in plaintiff's Conference who finished ahead of him in individual scoring during his last year of varsity basketball at Bradley, only 13 were drafted by the NBA and of these, seven did not play in the NBA for even one full year. Sixth, that over two-thirds of those individuals drafted by the NBA College Draft system in the years between 1960 and 1967 did not see one full year of active service in the NBA for various reasons (i. e. cut by the teams, not offered a contract, did not accept a contract, etc.¹).

Because the stipulations of uncontested facts show conclusively that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law, it is this Court's opinion that the defendant's motion for summary judgment should be granted.

I. THE ACTION IS BARRED BY THE STATUTE OF LIMITATIONS

The applicable Statute of Limitations provides:

"Any action to enforce any cause of action under sections 15 or 15a of this title shall be forever barred unless commenced within four years after the cause of action accrued. . . ." Clayton Act § 4B, 15 U.S. C. § 15b.

The complaint charges a conspiracy to refuse to employ plaintiff "beginning in or about March 1961 and continuing from day to day up to the date of this complaint (December 2, 1969)". It is the Court's opinion that plaintiff has failed to allege a cause of action accruing within the four year period immediately preceding December 2, 1969.

The Supreme Court, in discussing the four-year limitation period for civil anti-trust actions, recently stated:

"Generally a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff's business. . . . This much is plain from the treble-damage statute itself. 15 U.S.C. § 15. In the context of a continuing conspiracy to violate the anti-trust laws, such as the conspiracy in the instant case, this has usually been understood to mean that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. . . ." Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 338, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971). Emphasis added.

This established principle has been consistently adhered to in numerous lower federal court decisions.

It is clear that where a continuing conspiracy is involved, the statute of limitations begins to run from the date of the last overt act in furtherance of that conspiracy which causes damage to plaintiff. See Garelick v. Goerlich's Inc., 323 F.2d 854 (6th Cir. 1963); Manok v. Southeast District Bowling Association, 306 F.Supp. 1215 (C.D.Cal. 1969); Molinas v. National Basketball Association, 190 F.Supp. 241 (S.D.N.Y. 1960). In Braun v. Berenson, 432 F.2d 538, 542 (5th Cir. 1970), the court stated:

"It is well established that an action for civil conspiracy under Section 15 accrues when an overt act violative of the antitrust laws is committed pursuant to the conspiracy which gives rise to new and independent damages to the person against whom the overt act is directed. Hanover Shoe, Inc. v. United Shoe Machinery Corp., M.D. Pa., 1965, 245 F.Supp. 258, aff'd in part, rev'd in part, 3 Cir., 1967, 377 F.2d 766, aff'd in part, rev'd in part, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed. 2d 1231 (1968); Peto v. Madison Square Garden Corp., 2 Cir., 1967, 384 F.2d 682, cert. den. 390 U.S. 989, 88 S.Ct. 1185, 19 L.Ed.2d 1293; Sherman v. Goerlich's, Inc., E.D.Mich., 1963, 238 F.Supp. 728, 730, aff'd 6 Cir., 1965, 341 F.2d 988, cert. den. 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74; Garelick v. Goerlich's, Inc., 6 Cir. 1963, 323 F.2d 854; Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir., 1950, 185 F.2d 196; Northern Kentucky Tel. Co. v. Southern Bell T. & T. Co., 6 Cir., 1934, 73 F.2d 333, 97 A.L. R. 133, cert. den. 294 U.S. 719, 55 S. Ct. 546, 79 L.Ed. 1251."

It is also well settled that the act complained of must cause damage to plaintiff.²

Where a plaintiff alleges a continuing conspiracy causing continuing damage, the Statute of Limitations runs from the time "the blow which caused the damage was struck". Any injury occurring after the "blow is struck" is not relevant to the issue of when the Statute of Limitations commences to run, but rather affects only the problem of how much should be allowed in damages. Baldwin v. Loew's Inc., 312 F.2d 387 (7th Cir. 1963); Steiner v. 20th Century Fox Film Corp., 232 F.2d 190, 194-195 (9th Cir. 1956). It is clear, therefore, that the period of limitation is not extended merely because damages from the injury may be continuing.

Accordingly the Statute of Limitations begins to run each time plaintiff's interest is invaded to his detriment. In order for the plaintiff to be within the statutory limitation period, illegal "overt acts" of defendants must have occurred within the four year period immediately preceding December 2, 1969 and must have caused damage to plaintiff. See Peto v. Madison Square Garden Corp., supra.

The basic overt act alleged by plaintiff in his complaint is the failure of the NBA to draft him in 1961. It is clear that any cause of action arising from this event in 1961 is barred by 15 U.S.C. § 15b. Any continuing damage sustained by plaintiff because of this failure to draft him, assuming arguendo that an anti-trust violation does exist, would be irrelevant to bring this occurrence within the statutory period.

Plaintiff makes numerous allegations as to a continuing boycott directed toward him by the NBA, a professional negotiations list, and an arbitrary and capricious exclusion of plaintiff from NBA teams. The cases cited by plaintiff in his brief with regard to continuing boycotts deal with the substantive issue of the illegality of such boycotts, rather than the procedural issue of when the Statute of Limitations runs in such situations. It is clear to this Court, however, that the present case is more analogous to the "refusal to deal" cases, the crux of which is the rejection by defendant of a relation between the parties. As previously noted, the cause of action in such a case is deemed to accrue when the "blow which caused the damage was struck". Baldwin, supra; Zenith Radio Corp., supra. Plaintiff has alleged no overt acts on the part of defendant in support of these allegations other than the NBA's failure to draft plaintiff in 1961. As plaintiff has stipulated, he never applied to play in...