EDWARD R. BECKER, District Judge:
I. Preliminary Statement
We begin with a Philadelphia Eagles-New York Giants football game on Sunday, November 2, 1969, in which the plaintiff, then an Eagles lineman, seriously injured his left shoulder while executing a downfield block. This injury led rapidly to the end of his professional athletic career. At the time of the injury plaintiff was receiving an annual salary of $30,000. Claiming that he had a three year contract with the Eagles covering the 1969, 1970 and 1971 seasons, guaranteeing him full salary for the term of the contract in case he were injured in the performance of his duties thereunder, plaintiff filed this suit to recover an alleged unpaid balance of $60,000. The Eagles deny that any sums are unpaid or due, contending that plaintiff had a one year contract only. Another count of the complaint asserts that the Eagles defamed him when Eagles general manager Palmer ("Pete") Retzlaff falsely told the press that the plaintiff was suffering from a rare and fatal blood disease.
The Eagles also deny this charge.
The contractual and defamation claims will be adjudicated at trial and are not addressed in this opinion, which concerns the motion of defendants for summary judgment on the remaining count of the complaint. That count, founded upon the antitrust laws,
alleges that the Eagles and the defendant National Football League ("NFL") participated in a combination or conspiracy: (1) to restrain trade through the imposition of a "Standard Player Contract" containing inflexible and inadequate terms of compensation in the event of serious, work-related injury; and (2) to monopolize commerce in the business of professional football through strict adherence to a "player draft"
and other means.
The defendants moved for summary judgment after some three years of pretrial discovery, and the pretrial record with respect to plaintiff's antitrust claim must now be considered fully developed. Counsel have taken the depositions of plaintiff Chuy, Eagles trainer Garnett Ebert "Moose" Detty, NFL Commissioner Alvin Ray "Pete" Rozelle, and Eagles physician Dr. James E. Nixon. Both sides have propounded and answered interrogatories. The defendants' motion for summary judgment is accompanied by affidavits of Rozelle, Eagles general manager Retzlaff, Eagles business manager Leo Carlin, and Theodore W. Kheel, Esquire, representative of the NFL in their collective bargaining with the Players Association. The plaintiff submitted no affidavits in opposition to the motion.
In addition to denying the material facts averred in the complaint, the defendants raise two additional, affirmative defenses. They argue, and the plaintiff essentially concedes, that any recovery premised directly on the 1962 player draft through which the plaintiff first entered professional football is barred by the four year antitrust statute of limitations, 15 U.S.C. § 15b (1970).
See Saunders v. National Basketball Ass'n, 348 F. Supp. 649, 652-54 (N.D. Ill. 1972); cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Continental Wirt Electronics Corp. v. Lancaster Glass Corp., 459 F.2d 768 (3d Cir. 1972); Stewart Aviation Co. v. Piper Aircraft Corp., 372 F. Supp. 876 (M.D. Pa. 1974). The defendants also raise the spectre of the so-called "labor exemption" to the antitrust laws. See Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975); Flood v. Kuhn, 407 U.S. 258, 293-96, 32 L. Ed. 2d 728, 92 S. Ct. 2099 (1972) (Marshall, J., dissenting); Local 189, Amalgamated Meatcutters v. Jewel Tea Co., 381 U.S. 676, 85 S. Ct. 1596, 14 L. Ed. 2d 640 (1965); Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 65 S. Ct. 1533, 89 L. Ed. 1939 (1945); Mackey v. NFL, No. 4-72-Civ.-277 (D. Minn., Dec. 29, 1975); Robertson v. National Basketball Ass'n, 389 F. Supp. 867, 876-78 (S.D.N.Y. 1975); Kapp v. NFL, 390 F. Supp. 73, 83-86 (N.D. Cal. 1974); Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F. Supp. 462, 496-500 (E.D. Pa. 1972); Jacob & Winter, Antitrust Principles and Collective Bargaining by Athletes, 81 Yale L.J. 1 (1971); cf. 15 U.S.C. § 17 (1970); 29 U.S.C. § 52 (1970); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 847 n. 14 (3d Cir. 1974); International Ass'n of Heat & Frost Insulators v. United Contractors Ass'n, 483 F.2d 384, 388-89 (3d Cir. 1973).
In the context of this case, however, we do not have to address or resolve the difficult issues inherent in either of these affirmative defenses, for the plaintiff's antitrust claim founders hopelessly on the most elementary and fundamental shoal of summary judgment law -- he has failed to establish the existence of a single, genuine issue of material fact (as opposed to legal arguments, of which he has advanced many) justifying a trial, and the undisputed facts of record require judgment for the defendants on the antitrust claim.
II. Summary Judgment in Antitrust Cases
We are mindful of Justice Clark's admonition that "summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962); accord, Norfolk Monument Co. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704, 22 L. Ed. 2d 658, 89 S. Ct. 1391 (1969); cf. Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1145-47 (3d Cir. 1972). Nevertheless, summary judgment is far from precluded in appropriate antitrust cases. First National Bank v. Cities Service Co., 391 U.S. 253, 289-90, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). See Kaiser v. General Motors Corp. (Pontiac Motor Div.), 396 F. Supp. 33, 37-39 (E.D. Pa. 1975). As the Third Circuit, sitting en banc, has said: "Even in an antitrust case a party must . . . come forward with affidavits setting forth specific facts showing that there is a genuine issue for trial." Tripoli Co. v. Wella Corp., 425 F.2d 932, 935 (3d Cir.), cert. denied, 400 U.S. 831, 27 L. Ed. 2d 62, 91 S. Ct. 62 (1970). He "cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him." First National Bank, supra, 391 U.S. at 289.
Plaintiff's brief opposing summary judgment asserts that further cross-examination of deponents Rozelle and Retzlaff may show that the plaintiff was prohibited from seeking contract modifications. He promises that "the plaintiff will be able to present his own evidence to the effect that he did seek modifications and was unable to obtain them." He adds that a trial is necessary to make "a complete examination of the market situation obtaining in professional athletics." These claims simply miss the point of a motion for summary judgment. The non-movant "cannot withhold his evidence until the date of trial but must show by some admissible evidence that there is a genuine issue as to a material fact. Plaintiff cannot rest on an ignorance of the facts . . ." Berry Bros. Buick, Inc. v. General Motors Corp. (Buick Motor Div.), 257 F. Supp. 542, 545 (E.D. Pa. 1966). "Moreover, if the [non-movant] was concerned about cross-examination of the affiants whose affidavits were filed by the [movant], he had ample opportunity to exercise this right in depositions and he chose not to do so." H. Daroff & Sons, Inc. v. Strickland Transportation Co., 284 F. Supp. 510, 513 (E.D. Pa. 1968).
Here the antitrust issue is not complex, and the proof of what the plaintiff sought in the contract negotiations is equally, if not chiefly, in his own hands. During three years of discovery he has had ample opportunity to cross-examine hostile witnesses. But, as will be seen, he has turned nothing up.
We first set forth the basic (undisputed) background facts of record. We then discuss the reasons for the defendants' entitlement to summary judgment on the antitrust claim, elucidating the (remaining) undisputed facts material to resolution of the summary judgment motion in the course of that discussion.
III. The Basic Background Facts
Plaintiff capped an exceptional record as star of the Nutley, N.J., high school team by winning a football scholarship to Clemson University in South Carolina. At Clemson, he was Most Valuable Player in the Atlantic Coast League and won an Honorable Mention on the 1962 All America squad. He played on the College All Star team which defeated the professional champion Green Bay Packers in 1962 and was voted outstanding lineman of that game. On the fifth round of their respective 1963 player drafts, the AFL Houston Oilers and NFL Los Angeles Rams won the opportunity to solicit the plaintiff as a prospective employee. After visiting both Texas and California, the plaintiff signed a one year, $15,000 contract with the Rams.
He worked for Los Angeles until 1969, when the Rams "traded" him (assigned his contract), at his request, to the defendant Eagles. Prior to the commencement of the 1969 season, plaintiff renegotiated his newly assigned contract and ultimately signed at that time three forms of contract, covering the 1969, 1970 and 1971 seasons, at $30,000 per year. (Whether as a matter of law these three forms constituted one or three "contracts" within the meaning of paragraph 14 thereof is a question we defer until trial of the contractual issue.)
In November 1969, plaintiff suffered the injury to his shoulder mentioned above. Under the medical and paramedical supervision of Dr. Nixon and trainer Detty plaintiff played several more games, but after four weeks decided he could not or should not continue. He left Philadelphia for Los Angeles, where he still resides, in late January of 1970.
During the years involved in this case, the member clubs of the NFL, including the Eagles, used a Standard Player Contract for their employment of athletes. Each contract the plaintiff signed was in the standard form. With respect to compensation in case of work-related injury, those contracts provided:
14. In the event that Player is injured in the performance of his services under this contract, and if Player gives written notice to the Club Physician of such injury within thirty-six (36) hours of its occurrence, the Club will: (1) provide, during the term of this contract, such medical or hospital care as, in the opinion of the Club Physician, may be necessary; and (2) continue, during the term of this contract, to pay Player his salary as provided in para. 3 or para. 10 hereof, whichever is applicable if and so long as it is the opinion of the Club Physician that Player, because of such injury, is unable to perform the services required of him by this contract. Player, may, within seventy-two (72) hours after his examination by the Club Physician, submit at his own expense to an examination by a physician of his choice. If the opinion of such physician with respect to Player's physical ability to render the services required of him by this contract is contrary to that of the Club Physician, the dispute shall be submitted to a disinterested physician to be selected by the Club Physician and Player's physician or, if they are unable to agree, by the Commissioner, and the opinion of such disinterested physician shall be conclusive and binding upon the Players and the Club. Except as provided in this paragraph, Player's failure for any reason whatsoever to perform this contract or the services required of him by this contract . . . shall entitle the Club, at its option, to terminate such contract . . . or shall entitle the Club at its option to terminate Player's salary under this contract. The Player's death shall automatically terminate this contract. . . .