L. Ed. 2d 1092 (1977). Thus summary judgment is an appropriate vehicle for disposing of this matter.
Under the special rules of this match-up if the offensive team does not score, the defendants win.
Defendants first filed their motion for summary judgment in March of 1981. In their initial response and again at oral argument, plaintiffs contended that defendants' motion was premature as plaintiffs had not had the opportunity for adequate discovery.
See Mannington Mills, Inc. v. Congoleum Industries, Inc., 610 F.2d 1059 (3d Cir.1979). Agreeing that defendants were "offsides", I entered a Memorandum Order permitting plaintiffs to pursue their discovery inquiry but limiting the scope solely to matters relating to the NFL's decision not to grant plaintiffs an NFL franchise in Memphis and to the NFL's prior practices and standards concerning the awarding of new franchises since the NFL-AFL merger.
Plaintiffs subsequently received additional material and deposed at length the four members of the expansion committee and Mr. Rozelle.
Defendants renewed their motion for summary judgment in December 1981. Again plaintiffs asserted that still they had not had sufficient discovery. It is well settled that the district court has discretion in controlling the discovery process. Montecatini Edison S.p.A. v. E.I. du Pont de Nemours & Co., 434 F.2d 70 (3d Cir. 1970). Where appropriate, a district court may limit a party's discovery as long as they are able to fully develop their case. Staffin v. Greenberg, 672 F.2d 1196 (3d Cir.1982). See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968) (summary judgment in antitrust suit affirmed despite petitioner's claim it had been unduly restricted in its discovery).
Plaintiffs have had more than sufficient discovery to fully develop their case. All of the outstanding requests to which defendants have refused to respond are not calculated to lead to relevant evidence necessary to resolving this matter. As a result, I find that this case is now ripe for a decision on the merits.
The First Half
I will first address plaintiffs' Section 1 claim.
In the development of antitrust law some cases viewed group boycotts as per se violations. See, e.g., Fashion Originators' Guild of America v. Federal Trade Commission, 312 U.S. 457, 61 S. Ct. 703, 85 L. Ed. 949 (1941); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S. Ct. 705, 3 L. Ed. 2d 741 (1959). However it became apparent that not all group decisions refusing to do business with someone should be measured against the strict per se criteria enunciated in these earlier cases. See Silver v. New York Stock Exchange, 373 U.S. 341, 83 S. Ct. 1246, 10 L. Ed. 2d 389 (1963). See also L. Sullivan, Handbook of the Law of Antitrust § 90 (1977). Per se violations should be found only where the involved agreements are so clearly anticompetitive and lacking in any redeeming quality that they can be conclusively presumed illegal without any further inquiry. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979); National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S. Ct. 1355, 55 L. Ed. 2d 637 (1978). A threshold question here then is whether the decision of a professional sports league to deny an assertedly qualified applicant a franchise is unquestionably anticompetitive.
Almost twenty years ago, Judge Grim of this court was called upon to decide the legality of the television policies of the NFL in United States v. National Football League, 116 F. Supp. 319 (E.D.Pa.1953).
There he pointed out the differences between the production of professional sporting contests and normal business activity:
Professional football is a unique type of business. Like other professional sports which are organized on a league basis it has problems which no other business has. The ordinary business makes every effort to sell as much of its product or services as it can. In the course of doing this it may and often does put many of its competitors out of business. The ordinary businessman is not troubled by the knowledge that he is doing so well that his competitors are being driven out of business.