Toscano v. Professional Golfers Assoc.

• Decision Date: 11 June 2001
• Docket Number: MERCEDES-BENZ,COUNTRY-WIDE,DEFENDANTS-APPELLEES,TRUEGREEN-CHEMLAW,PLAINTIFF-APPELLANT,A,No. 00-15101,00-15101
• Citation: 258 F.3d 978
• Parties: (9th Cir. 2001) HARRY TOSCANO, AN INDIVIDUAL,, v. PROFESSIONAL GOLFERS' ASSOCIATION, A MARYLAND NONPROFIT CORPORATION, DBA SENIOR PGA TOUR; JIM COLBERT, AN INDIVIDUAL; BRUCE DEVLIN, AN INDIVIDUAL; TERRY DILL, AN INDIVIDUAL; DALE DOUGLASS, AN INDIVIDUAL; RAYMOND FLOYD, AN INDIVIDUAL; GIBBY GILBERT, AN INDIVIDUAL; BOB GOALBY, AN INDIVIDUAL; MIKE HILL, AN INDIVIDUAL; KEN STILL, AN INDIVIDUAL; BELL ATLANTIC CORPORATION, A DELAWARE CORPORATION; BOONE VALLEY, A BUSINESS ENTITY; BRICKYARD CROSSING, A BUSINESS ENTITY; BRUNO'S INC., AN ALABAMA CORPORATION; BURNET, A BUSINESS ENTITY; CHRYSLER CORPORATION, A DELAWARE CORPORATION; DINERS CLUB INTERNATIONAL, A BUSINESS ENTITY; EVEREADY BATTERY COMPANY, A CORPORATION; FIRSTOF AMERICA, A BUSINESS ENTITY; FORD MOTOR COMPANY, A DELAWARE CORPORATION; THE GILLETTE COMPANY, A DELAWARE CORPORATION; THE KROGER COMPANY, AN OHIO CORPORATION; LIBERTY MUTUAL GROUP, A BUSINESS ENTITY;OF NORTH AMERICA, INC., A CORPORATION; NYT MAGAZINE GROUP, A BUSINESS ENTITY; QUICKSILVER, A BUSINESS ENTITY; R.J. REYNOLDS TOBACCO, CORPORATION, A BUSINESS ENTITY; TOYOTA MOTOR CORPORATION, A CORPORATION; WENDY'S INTERNATIONAL, INC., AN OHIO CORPORATION; NATIONWIDE INSURANCE, ENTERPRISES, A BUSINESS ENTITY; TOSHIBA CORPORATION, A CORPORATION; PGA TOURS, INC.; DAVE STOCKTON, AN INDIVIDUAL; DEANE R. BEMAN; TIMOTHY W. FINCHEM; OJAI GOLF CHARITIES, A CALIFORNIA NONPROFIT CORPORATION, DEFENDANTS, AND AMERICAN EXPRESS COMPANY, A NEW YORK CORPORATION; AMERITECH CORPORATION, A DELAWARE CORPORATION; BANKBOSTON CORPORATION, A CORPORATION; BANC ONE CORPORATION, AN OHIO CORPORATION; BELLSOUTH CORPORATION, A GEORGIA CORPORATION;CREDIT INDUSTRIES, INC., A DELAWARE CORPORATION; FHP HEALTH CARE, A BUSINESS ENTITY; FRANKLIN QUEST COMPANY, A UTAH CORPORATION; GENERAL MOTORS CORPORATION, A DELAWARE CORPORATION; GTE CORPORATION, A NEW YORK CORPORATION; HYATT CORPORATION, A CORPORATION; LG GROUP, A BUSINESS ENTITY; PAINE WEBBER GROUP, INC., A DELAWARE CORPORATION; RALEY'S, A BUSINES
• Court: U.S. Court of Appeals — Ninth Circuit

Page 978

258 F.3d 978 (9th Cir. 2001)

HARRY TOSCANO, AN INDIVIDUAL, PLAINTIFF-APPELLANT, v. PROFESSIONAL GOLFERS' ASSOCIATION, A MARYLAND NONPROFIT CORPORATION, DBA SENIOR PGA TOUR; JIM COLBERT, AN INDIVIDUAL; BRUCE DEVLIN, AN INDIVIDUAL; TERRY DILL, AN INDIVIDUAL; DALE DOUGLASS, AN INDIVIDUAL; RAYMOND FLOYD, AN INDIVIDUAL; GIBBY GILBERT, AN INDIVIDUAL; BOB GOALBY, AN INDIVIDUAL; MIKE HILL, AN INDIVIDUAL; KEN STILL, AN INDIVIDUAL; BELL ATLANTIC CORPORATION, A DELAWARE CORPORATION; BOONE VALLEY, A BUSINESS ENTITY; BRICKYARD CROSSING, A BUSINESS ENTITY; BRUNO'S INC., AN ALABAMA CORPORATION; BURNET, A BUSINESS ENTITY; CHRYSLER CORPORATION, A DELAWARE CORPORATION; DINERS CLUB INTERNATIONAL, A BUSINESS ENTITY; EVEREADY BATTERY COMPANY, A CORPORATION; FIRSTOF AMERICA, A BUSINESS ENTITY; FORD MOTOR COMPANY, A DELAWARE CORPORATION; THE GILLETTE COMPANY, A DELAWARE CORPORATION; THE KROGER COMPANY, AN OHIO CORPORATION; LIBERTY MUTUAL GROUP, A BUSINESS ENTITY; MERCEDES-BENZ OF NORTH AMERICA, INC., A CORPORATION; NYT MAGAZINE GROUP, A BUSINESS ENTITY; QUICKSILVER, A BUSINESS ENTITY; R.J. REYNOLDS TOBACCO, CORPORATION, A BUSINESS ENTITY; TOYOTA MOTOR CORPORATION, A CORPORATION; WENDY'S INTERNATIONAL, INC., AN OHIO CORPORATION; NATIONWIDE INSURANCE, ENTERPRISES, A BUSINESS ENTITY; TOSHIBA CORPORATION, A CORPORATION; PGA TOURS, INC.; DAVE STOCKTON, AN INDIVIDUAL; DEANE R. BEMAN; TIMOTHY W. FINCHEM; OJAI GOLF CHARITIES, A CALIFORNIA NONPROFIT CORPORATION, DEFENDANTS AND AMERICAN EXPRESS COMPANY, A NEW YORK CORPORATION; AMERITECH CORPORATION, A DELAWARE CORPORATION; BANKBOSTON CORPORATION, A CORPORATION; BANC ONE CORPORATION, AN OHIO CORPORATION; BELLSOUTH CORPORATION, A GEORGIA CORPORATION; COUNTRY-WIDE CREDIT INDUSTRIES, INC., A DELAWARE CORPORATION; FHP HEALTH CARE, A BUSINESS ENTITY; FRANKLIN QUEST COMPANY, A UTAH CORPORATION; GENERAL MOTORS CORPORATION, A DELAWARE CORPORATION; GTE CORPORATION, A NEW YORK CORPORATION; HYATT CORPORATION, A CORPORATION; LG GROUP, A

BUSINESS ENTITY; PAINE WEBBER GROUP, INC., A DELAWARE CORPORATION; RALEY'S, A BUSINESS CORPORATION; RALPH'S GROCERY COMPANY, A CORPORATION; ROYAL CARRIBEAN CRUISE LINE, A BUSINESS ENTITY; SBC COMMUNICATIONS, INC., A DELAWARE CORPORATION; THE SCOTTS COMPANY, AN OHIO CORPORATION; TRANSAMERICAN CORPORATION, A DELAWARE CORPORATION; TRUEGREEN-CHEMLAWN, A BUSINESS ENTITY; GOLD RUSH CLASSICS, A CALIFORNIA NONPROFIT CORPORATION; CENTINELA HOSPITAL MEDICAL CENTER; CLASSIC CHARITIESOF ORANGE COUNTY, A CALIFORNIA NONPROFIT CORPORATION; GRAND SLAM CHARITIES, AN OHIO NONPROFIT CORPORATION, DEFENDANTS-APPELLEES.

No. 00-15101

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 11, 2001--San Francisco, California

Filed August 2, 2001

Counsel Paul Smith, Dallas, Texas, for plaintiff-appellant Toscano.

Andrew D. Hurwitz, Phoenix, Arizona, for defendants-appellees Local Sponsors.

J. Thomas Rosch, San Francisco, California, for Title Sponsor General Motors.

D.C. No. CV-97-01238-DFL Appeal from the United States District Court for the Eastern District of California David F. Levi, District Judge, Presiding

Before: Mary M. Schroeder, Chief Judge, Donald Lay,^* and David R. Thompson, Circuit Judges.

Thompson, Circuit Judge

OPINION

Plaintiff Harry Toscano, a professional golfer, appeals the district court's summary judgment in favor of the sponsors of Senior PGA Tour golf tournaments, on his claim under section 1 of the Sherman Antitrust Act, 15 U.S.C. §§ 1 (1994). Toscano alleges that the defendants entered into a contract, combination, or conspiracy to unreasonably restrain trade in professional golf and among professional golfers by agreeing to sponsor golf tournaments in accordance with PGA Tour rules and regulations.¹

The sponsor defendants sought summary judgment solely on the basis that there was no actionable section 1 agreement among any of the defendants. The district court agreed. It ruled that there was no direct evidence of such an agreement, and Toscano's circumstantial evidence failed to meet the summary judgment requirements of Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). We have jurisdiction under 28 U.S.C. §§ 1291 (1994) and we affirm.

I.

The Senior PGA Tour was organized to showcase senior golfers who had previously been successful on the regular PGA Tour. It adopted player eligibility criteria emphasizing both current performance and prior success. Current eligibility regulations provide that the 78-player field in Senior PGA Tour events will be made up of (a) the top 31 available players from the previous year's Senior PGA Tour Money List, (b) the top 31 available players from the All-Time Career Money List (including money won in PGA Tour and Senior PGA Tour events) who were not in the first list, (c) the top eight players from the yearly Senior PGA Tour National Qualifying Tournament, (d) any other players who won a Senior PGA Tour tournament within the past 12 months, (e) the four low scorers in a qualifying round held on the Monday before play begins in a particular tournament, (f) players (usually four) designated by the local host organization as "sponsor exemptions," and (g) any otherwise non-exempt player who has won an official PGA Tour or Senior PGA Tour tournament.

Toscano is a 58-year old golfer who began participating in Senior PGA Tour events upon turning 50 in 1992. In late 1992, Toscano was one of the top eight finishers in the Senior PGA Tour Qualifying Tournament and, therefore, qualified for all Senior PGA Tour open events in 1993. He participated in 32 of the 36 senior tour open events that year and earned a total of $204,391.00, but he was not among the top 31 money winners as required to maintain his exempt status for the following year.

Toscano failed to qualify (or did not participate for health reasons) in the Senior Tour Qualifying Tournament in each year from 1993 through 1999. Nevertheless, through one form of qualification or another, Toscano was able to compete in 29 of the 36 Senior PGA Tour open events in 1994, 33 of the 38 Senior PGA Tour open events in 1995, 24 of the 38 Senior PGA Tour open events in 1996, and a lesser number of tournaments in later years. In none of those years did Toscano win a tournament or finish sufficiently high on the money list to obtain exempt status for the following year.

A Senior PGA Tour tournament has both a "local sponsor" and a "title sponsor." A local sponsor organizes a tournament and receives a share of the tournament's profits, usually for charitable purposes. Typically, a local sponsor contracts with the PGA Tour to provide facilities, prizes, and other services: the local sponsor obtains the site, arranges volunteer or other assistance for the event, publicizes and promotes the event, arranges for sales of concessions and certain player slots, and provides the bulk of the tournament prize money. The local sponsor's contract defines player eligibility by PGA Tour rules and regulations, prohibits local sponsors from offering appearance incentives, and assigns the sponsor's broadcasting rights to the PGA Tour. The contract also guarantees a local sponsor that its tournament will be the only Senior PGA Tour event on the weekend of that tournament.²

The local sponsors' contracts also provide that they"agree to organize and conduct the tournament in accordance with PGA Rules and Regulations." These rules and regulations, incorporated by reference into the contracts, prohibit players from participating in non-PGA Tour events that conflict with a Senior PGA Tour event without prior PGA Tour approval (the "conflicting event" rule); prohibit players from participating in any televised golf program, regardless of the date, without prior PGA Tour approval (the "television release" rule); and define player eligibility. Toscano states that these restrictions effectively deprive any potential competing tournaments of access to the "marquee" players and give"those players already on the Tour . . . a huge advantage over non-Tour players when it comes to being able to get on and stay on the Senior Tour."

Senior PGA Tour tournaments also have "title sponsors," typically large corporations that contract with local sponsors to provide financial support for tournaments in exchange for the right to have a tournament named after them, as well as for additional promotional benefits. With one exception, the title sponsors in this suit did not contract directly with the PGA Tour.

II.

We review de novo a grant of summary judgment. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Summary judgment is disfavored in complex antitrust litigation where motive and intent are important, proof is largely in the hands of the alleged conspirators, and relevant information is controlled by hostile witnesses. Movie 1 & 2 v. United Artists Communications, Inc., 909 F.2d 1245, 1248 (9th Cir. 1990) (quoting Poller v. Columbia Broad. Sys., Inc. , 368 U.S. 464, 473 (1962)). "Summary judgment is appropriate only in the clear absence of any significant probative evidence tending to support the complaint." Id. at 1249 (citing Theee Movies of Tarzana v. Pacific Theatres, Inc., 828 F.2d 1395, 1398 (9th Cir. 1987)).

III.

Section 1 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, states, "Every contract, combination . . . , or conspiracy, in restraint of trade or commerce . . . is declared to be illegal." Under this section, "concerted action of more than a single entity" is required. The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1152 (9th Cir. 1988). For an agreement to constitute a violation of section 1 of the Sherman Act, a"conscious commitment to a common scheme designed to achieve an unlawful objective" must be established. Monsanto Co. v. Spray-Rite Serv. Corp., ...