OPINION

ROBERT L. CARTER, District Judge.

I. History of the Litigation

A. Nature of the Action

This action was instituted in 1970 pursuant to Sections 4 and 16 of the Clayton Act, 15 U.S.C. § 15 and 26, to recover treble damages, costs and injunctive relief for violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1 and 2. Defendants are the National Basketball Association (NBA) and the American Basketball Association (ABA). All the named plaintiffs, William Bradley, Joseph Caldwell, Archibald Clark, Melvin Counts, John Havlicek, Donald Kojis, Jon McGlocklin, McCoy McLemore, Thomas Meschery, Jeffrey Mullins, Oscar Robertson, Westley Unseld, Richard Van Arsdale and Chester Walker were active players with, and the elected player representative of, one of the then 14 clubs of the NBA. Plaintiffs sue on behalf of themselves, all presently active players, those who were active at the time the action was originally commenced, and future players of the NBA. Jurisdiction is asserted under 28 U.S.C. § 1331 and 1337.

B. Background Facts

This litigation began after reports in the spring of 1970 of a proposed merger between the NBA and the ABA. Plaintiffs' amended complaints charges defendants with conspiring to restrain competition for the services and skills of professional basketball players through such devices as the college draft, the reserve clause in the Uniform Player Contract (the Uniform Contract), the compensation plan attached to the reserve clause, and various boycott and blacklisting techniques. The complaint further alleges that the NBA and the ABA seek to effectuate a non-competition agreement, merger or consolidation.

In May, 1970, this court (Tenney, J.) preliminarily enjoined the defendants from entering into "any merger, consolidation, or acquisition or combination by any means," except that defendants were permitted to negotiate a proposed merger for the sole purpose of petitioning Congress for antitrust exemption legislation. The Senate Judiciary Committee's recommendation that an exemption conditioned on substantial elimination of the various intra-league restraints be granted was not acceptable to the defendants, and no legislation on the matter has been promulgated.

In August, 1973, Judge Tenney's earlier order was modified by allowing the two leagues to negotiate a merger or consolidation on the condition that any merger or consolidation agreement "deal specifically with and indicate the disposition of uniform player contracts, the common draft, and the reserve clause . . .," and that the negotiations relating to those matters be conducted in the presence of plaintiffs' counsel or the general counsel of the National Basketball Players Association (Players Association). No agreement among the parties has yet been reached.

II The Immediate Controversy

A. Plaintiffs' Claims

1. Count One

Count One of the complaint alleges that at least since its inception in 1946, the NBA has engaged in a concerted plan, combination or conspiracy to monopolize and restrain trade and commerce in major league professional basketball by: (1) controlling, regulating and dictating the terms upon which professional major league basketball is played in the United States; (2) allocating and dividing the market of professional player talent; and (3) enforcing its monopoly and restraint of trade through boycotts, blacklists and concerted refusals to deal. NBA's purported objective is the elimination of all competition in the acquisition, allocation and employment of the services of professional basketball players — all in violation of Sections 1 and 2 of the Sherman Act.

The following practices are cited as among the means used by the NBA to effectuate and advance the underlying objectives of the conspiracy:

(1) The College Draft is allegedly designed to prevent competition among member NBA clubs for what is virtually the exclusive source of basketball talent in the country. The system operates so that each NBA club is given the exclusive right to choose specific college players with whom it desires to negotiate. If the college player does not wish to negotiate or play for the NBA club which "owns" his rights, the player may not negotiate with or for any other NBA club;

(2) The Uniform Contract, entitled the "National Basketball Association-Uniform Contract" must be signed by every college player who agrees to play with one of the NBA clubs after he is "drafted," and by every veteran player each year. The contract provides that the player shall play basketball for his club or its assignees exclusively until "sold" or "traded"; that the club has the absolute right to sell, exchange, assign or transfer the Uniform Contract on the same terms to another club; and that if the player refuses to play, the club may either terminate the Uniform Contract or seek an injunction to prevent the player from playing basketball for anyone else;

(3) The Reserve Clause is a part of the Uniform Contract which, if a player refuses to sign the Uniform Contract for the next playing season, empowers the club unilaterally to renew and extend the Uniform Contract for one year on the same terms and conditions including salary. Any "traded" or "sold" player is bound to his new club by the reserve clause. Plaintiffs contend that the reserve clause gives the NBA clubs the express and unilateral right to keep renewing the Uniform Contract each year so long as the player refuses to execute the Uniform Contract, thus binding the player to one club for his entire playing career.

(4) Boycotts, Blacklisting and Refusals to Deal are allegedly utilized as well. Plaintiffs contend that no NBA club will negotiate with a player to play for another club who has signed or refused to sign the Uniform Contract, and is thus under "reserve". Nor will any NBA club negotiate for the services of a player who is voluntarily retired from another club, under suspension, in military service, disabled or injured. Any NBA club which contracts or negotiates with such a player is similarly boycotted, blacklisted or otherwise penalized;

(5) The New League is off-limits to NBA players. Plaintiffs assert that the NBA has used the practices summarized in (1) through (4) above to prevent the players not only from negotiating freely with member clubs of the NBA, but also from negotiating with or playing for clubs in any rival league.

In sum, Count One sets forth the acts and practices of the NBA which are purportedly designed "to prevent in perpetuity any player from playing professional basketball for anyone other than the NBA club to which the exclusive rights to his services have been granted by defendants for his lifetime."

2. Count Two

The circumstances which give rise to Count One also underlie Count Two. Plaintiffs contend that even if the reserve clause is not deemed to be a perpetual right of renewal, and instead is interpreted and enforced as a one-year option after the Uniform Contract term expires, nonetheless, the contract is still in violation of Sections 1 and 2 of the Sherman Act. The same combination and conspiracy alleged and described in Count One prevent any other NBA club from negotiating with or hiring a player during this one-year option period. After the expiration of the one-year period, the player who would try to negotiate with another NBA club, or the club which agreed to negotiate with the player, would be subjected to boycott, blacklisting, refusals to deal, or other penalties which the defendants allegedly impose to enforce their combination to monopolize and restrain trade.

This count additionally attacks what is designated "predatory" tactics waged by the NBA on the ABA. After the expiration of the one-year option provided under the Uniform Contract, the existence of a rival league is said to provide an "escape route" from the anti-competitive structure of the NBA since a player could attempt to negotiate with clubs of that league. Since 1967, however, the complaint states that the NBA has unlawfully combined or conspired to preserve its monopoly position and further its illegal restraints by employing certain devices to destroy the ABA. Those attempts have failed, according to the plaintiffs, and the rival league now flourishes to the decided and obvious financial advantage of present and future NBA players.

This failure to destroy the ABA has allegedly led to a new combination or conspiracy by the NBA to suppress competition by an attempted merger or consolidation of the two leagues which will lead to the demise of the ABA as a competitive force. Among the means employed by the NBA, even prior to actual merger, is the enactment of a non-competition agreement between the leagues and their clubs, and secret negotiations with the ABA to effectuate the merger of the two leagues.

3. Count Three

Count Three joins the ABA as a defendant and is based on the aforesaid merger plans and non-competition agreement. Essentially it charges both the NBA and the ABA with violations of Sections 1 and 2 of the Sherman Act. Consummation of the merger, it is alleged, would eliminate all actual and potential competition between the defendants; and the effectuation of the non-competition agreement would have this effect prior to a formal merger. The unlawful practices described in Counts One and Two would continue either in the surviving league, or if no merger occurs, would remain in effect in the NBA.

4. The Remaining Counts

Count Four embraces an asserted violation by the NBA defendants of New York's antitrust law.

Count Five is similarly brought against the NBA for common law violations in each state in which it exhibits professional basketball games, and jurisdiction is asserted on both Counts Four and Five on pendent jurisdiction.

Plaintiffs seek declaratory and injunctive relief, against both intra- (reserve clause, player draft, compensation plan, boycotts and blacklisting) and inter- (merger or non-competition agreement) league restraints and treble damages, costs and attorneys' fees.

B. The Instant Motions

Plaintiffs move for a class action determination which NBA opposes. NBA, on its part, moves for summary judgment, pursuant to Rule 56, F.R.Civ.P., in respect of Count One, part of Count Two, and Counts Four and Five. NBA has also moved, pursuant to Rules 12 and 19, F.R.Civ.P., to dismiss the complaint for failure to join an indispensable party. ABA moves for summary judgment in respect of Count Three and seeks dissolution of the preliminary injunction in effect since 1970. Both defendants claim jurisdiction is lacking since primary jurisdiction rests with the National Labor Relations Board.

III Does Primary Jurisdiction Lie with the NLRB?

"[w]hether a claimed violation of the Sherman Antitrust Act which falls within the regulatory scope of the National Labor Relations Act is within the exclusive primary jurisdiction of the National Labor Relations Board." 381 U.S. at 684 n. 3, 85 S.Ct. at 1599.

Justice White, without dissent, rejected the primary jurisdiction contention and refused to stay the case to await a NLRB determination as to whether the uniform closing hours was a "term or condition of employment." The Court based its conclusion on three grounds. First, "courts are themselves not without experience in classifying bargaining subjects as terms or conditions of employment." Second, "the doctrine of primary jurisdiction is not a doctrine of futility." It does not require the expense and delay of an administrative proceeding when "the case must eventually be decided on a controlling legal issue wholly unrelated" to that which was referred for administrative determination. Third, there may be lacking an available procedure for obtaining a NLRB determination. The Board "does not classify bargaining subjects in the abstract but only in connection with unfair labor practice charges of refusal to bargain." 381 U.S. at 686-87, 85 S.Ct. at 1600.

Additionally, the defendants' contentions are unsupported by the decisional law in this Circuit. This court in Inter-continental Container Transport Corp. v. New York Shipping Association, 312 F. Supp. 562 (S.D.N.Y.) (Mansfield, J.), rev'd on other grounds, 426 F.2d 884 (2d Cir. 1970), rejected the argument that jurisdiction was lacking since the plaintiff had raised the same issues as unfair labor practices before the NLRB. The court said:

"We are faced not with potential conflict between state regulation and national labor policy, but with the intersecting provisions of two federal statutes. That certain activities may arguably constitute an unfair labor practice . . . does not oust a federal court of jurisdiction over a Sherman Act claim arising out of the same activities as part of a combination with employers to restrain competition against the latter, and this is true whether or not the Sherman Act plaintiff has invoked the jurisdiction of the Board over his unfair labor practice claims." 312 F. Supp. at 571.

The Second Circuit affirmed this holding, and, citing Jewel Tea, stated that an independent claim of preemption was erroneous. 426 F.2d at 887.

In any event, the antitrust issues involved here are not within the "special competence" of the NLRB, and therefore the doctrine of primary jurisdiction is inapplicable, see United States v. Western Pac. R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Denver Union Stockyard Co. v. Denver Livestock Commission Co., 404 F.2d 1055, 1059 (10th Cir. 1968), cert. denied, 394 U.S. 1014, 89 S.Ct. 1631, 23 L.Ed.2d 40 (1969); Fischer v. Kletz, 249 F. Supp. 539, 544 (S.D.N.Y. 1966), and the factual disputes to be resolved concerning the history of collective bargaining between the players and the NBA are unquestionably proper subjects for determination by the court. See Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc., 351 F. Supp. 462, 481-86, 506-507 (E.D.Pa. 1972) (hereafter Philadelphia Hockey); Boston Professional Hockey Association, Inc. v. Cheevers, 348 F. Supp. 261, 267-68 (D. Mass.), remanded, 472 F.2d 127 (1st Cir. 1972),. The two cases relied upon by defendants, International Association of Heat and Frost Insulators and Asbestos Workers v. United Contractors Association, Inc., 483 F.2d 384, 402-403 (3d Cir. 1973), and Carpenters District Council v. United Contractors Association of Ohio, Inc., 484 F.2d 119, 122-23 (6th Cir. 1973), are inapposite. They involved situations in which the Board, in contrast to the instant situation, had particular expertise. Accordingly, defendants' contentions are rejected.

IV The Motion to Dismiss

NBA has moved under Rule 19, F.R. Civ.P., to dismiss the complaint because of failure to name the Players Association as a party. In the alternative, the NBA contends that the Players Association should be joined as a party in this action. I find that the Association is neither an indispensable party under Rule 19(b) nor one that ought to be joined pursuant to Rule 19(a).

The purpose of Rule 19(a) has been defined as a requirement "to bring before the court all persons whose joinder would be desirable for a just adjudication of the action. . . ." Wright Miller, Federal Practice and Procedure: Civil § 1604, at 32 (1972). Rule 19(a) is applicable when (1) failure to join an absentee would prevent complete relief or (2) where an absentee "claims an interest relating to the subject of the action and is so situated" that its absence will impair its ability to protect that interest or will leave any of the parties subject to multiple or inconsistent obligations, and the risk of the latter is substantial. See, e. g., Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 598 n. 6 (7th Cir. 1972); FTC v. Manager Retail Credit Co., 357 F. Supp. 347, 354 (D.D.C. 1973); but see Window Glass Cutters League of America, AFL-CIO v. American St. Gobain Corp., 47 F.R.D. 255, 258 (W.D.Pa. 1969), aff'd, 428 F.2d 353 (3d Cir. 1970).

The practical, and not the theoretical, controls. See Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 106-107, 110, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The Association has claimed no interest relating to this action. The possibility of harm to the Association, see Zwack v. Kraus Bros. Co., 93 F. Supp. 963 (S.D.N.Y. 1950), or the risk of multiple obligations has not been demonstrated. The mere fact that a decision in this case could conceivably affect the Association does not automatically require its joinder. See, e. g., Provident Tradesmens Bank, supra, 390 U.S. at 110, 88 S.Ct. 733; ACLU v. Board of Public Works, 357 F. Supp. 877, 884 (D.Md. 1972); Hoots v. Commonwealth of Pennsylvania, 359 F. Supp. 807, 822 (W.D.Pa. 1973), appeal dismissed, 495 F.2d 1095 (3d Cir. 1974). If it later appears that joinder is desirable or necessary, it can then be effectuated. See Advisory Committee's Note to Rule 19, reprinted in 39 F.R.D. 89, 93 (1966); ACLU v. Board of Public Works, supra, 357 F. Supp. at 885.

Cases holding that a union which has negotiated a collective bargaining agreement with an employer is an indispensable party in a suit by an employee against the employer, are cited by the NBA to support its contention that joinder of the Association is required under Rule 19(b). It is conceded that a union should be joined when the suit will directly affect the union's interest in the operation of a bargaining agreement. See Lynch v. Sperry Rand Corp., 62 F. R.D. 78 (S.D.N.Y. 1973); Neal v. System Board of Adjustment, 348 F.2d 722 (8th Cir. 1965); Hodgson v. School Board, New Kensington-Arnold School District, 56 F.R.D. 393 (W.D.Pa. 1972); Reyes v. Missouri-Kansas-Texas R.R., 53 F.R.D. 293 (D.Kan. 1971); Morris v. Steele, 253 F. Supp. 769 (D.Mass. 1966). Those cases, however, have no application here where it is yet uncertain that the restraints involve the operation of a collective bargaining agreement. The statement of Judge Bryan in Lynch, supra, 62 F.R.D. at 86, that "[h]aving negotiated with . . . [the employer] over the contents of the collective bargaining agreements, the absent unions clearly have an interest in litigation which seeks to rewrite portions of those agreements" is inapplicable.

Moreover, most of the cases relied upon by defendants concerned claims by employees whose interests conflicted with other groups of employees in the same bargaining unit, or with the union itself. Neal, supra; Lynch, supra; Hodgson, supra; Steele, supra; Reyes, supra; and English v. Seaboard Coastline Ry., 465 F.2d 43 (5th Cir. 1972). It is undisputed for purposes of the motion for summary judgment that all the members of the Association have a common interest in the success of this action. Finally, determination of whether a party should or must be joined can only be arrived at in the context of the particular litigation; a flexible case by case approach must be employed consonant with what the equities and facts require. Provident Tradesmens Bank, supra, 390 U.S. at 118, 88 S.Ct. 733; Wright Miller, supra, Civil § 1612, at 122.

There is no need to join the Players Association at this time, especially where the interest of the Association appears to be adequately represented by the plaintiffs. See Gilbert v. General Electric Co., 59 F.R.D. 273 (E.D. Va. 1973). Accordingly, the motion to dismiss is denied.

V The Motion to Dissolve the Preliminary Injunction

ABA seeks dissolution of the preliminary injunction to prevent the merger or agreement of non-competition between the two leagues. That injunction was issued more than four years ago. The argument, that Section 1 of the Norris-LaGuardia Act, 29 U.S.C. § 101, mandates its dissolution is patently meritless. The Norris-LaGuardia Act does not apply in an antitrust case, even one which arguably involves a labor dispute. Allen Bradley Co. v. Local 3, IBEW, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945); Los Angeles Meat Provision Drivers Union v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed.2d 150 (1962); International Container Transport Corp., supra; Anderson-Friberg, Inc. v. Justin R. Clary Son, 98 F. Supp. 75 (S.D.N.Y. 1951). The contention that the injunction consented to by the ABA when issued initially in 1970 and in continuous effect since, should be lifted now is obviously makeweight; made, apparently, in the hope that the court might be caught nodding and in a state of somnambulism sign the order lifting the ban. The motion is denied.

VI The Motions for Summary Judgment

A. The State Law Counts

NBA argues that summary judgment should be entered in its favor in respect of Counts Four and Five because the interstate nature of professional basketball precludes state antitrust regulation. I agree.

In Flood v. Kuhn, 316 F. Supp. 271 (S.D.N.Y. 1970), aff'd, 443 F.2d 264 (2d Cir. 1971), aff'd, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972), the petitioner raised state statutory and common law challenges to baseball's reserve system, which encompassed many of the practices in dispute in this litigation.

Judge Cooper denied both state claims on the ground that baseball's unique exemption from federal antitrust law, see Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), compelled similar exemption from state antitrust regulation. 316 F. Supp. at 279-80; see State v. Milwaukee Braves, Inc., 31 Wis.2d 699, 144 N.W.2d 1, 16-18, cert. denied, 385 U.S. 990, 87 S.Ct. 598, 17 L.Ed.2d 451 (1966). The Court of Appeals affirmed, but on the ground that state antitrust regulation would be an impermissible burden on interstate commerce. 443 F.2d at 268. The United States Supreme Court held that "[a]s applied to organized baseball . . . [the statements of the District Court and the Court of Appeals] adequately dispose of the state law claims," 407 U.S. at 284-85, 92 S.Ct. at 2113.

Though somewhat ambiguous, I read the statement in Justice Blackmun's opinion as approving both bases for the lower courts' rejection of Flood's state law claims. Judge Cooper's decision would not be controlling here, since professional basketball is subject to federal antitrust regulation. See Haywood v. National Basketball Association, 401 U.S. 1204, 1205, 91 S.Ct. 672, 28 L.Ed.2d 206 (1971), and as a result no danger exists of diversity of treatment if state law were also to apply. But the opinion of the Court of Appeals is unquestionably applicable and controlling.

When Flood was decided, baseball had 24 teams operating in 24 "home" cities with the teams divided into two leagues. NBA has 18 teams operating in 18 "home" cities, and those teams are divided into two conferences. Baseball and basketball are in the same business, which is the staging of sports contests for public view, and there is no dispute that "professional basketball involves substantial volumes of interstate trade and commerce." Complaint at ¶ 17. The motion for summary judgment in respect of Counts Four and Five is granted.

B. The Labor Issues

Taken together, the ABA and NBA motions for summary judgment effectively challenge plaintiffs' claims in their entirety. Both defendant Associations assert that plaintiffs are precluded from seeking through antitrust litigation the right to negotiate freely with any team of their choice and a bar to any merger or combination between the two leagues.

The two leagues claim that the complaint has tried to cast in antitrust terms a series of demands and issues which naturally and lawfully belong on the bargaining table. The intent of the suit is to increase plaintiffs' individual bargaining power. This, it is argued, conflicts with the policy announced in the National Labor Relations Act, 29 U.S.C. § 151. The defendants' more fundamental contention, however, is that they are protected against the impact of the antitrust laws by a labor exemption.

1. Plaintiffs' Standing to Sue Under the Antitrust Laws

It is undoubtedly true that the intent of Congress was and is to encourage collective bargaining as the means of settling labor disputes. See, e. g., Section 2 of the Norris-LaGuardia Act, 29 U.S.C. § 102; the National Labor Relations Act, 29 U.S.C. § 151; Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 211, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). Surely, this policy constitutes a federal commitment to a bargaining system which "of necessity subordinates the interests of an individual employee to the collective interests of all employees," Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912, 17 L.Ed.2d 842 (1967); see also NLRB v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). In fact, Section 9(a) of the National Labor Relations Act provides that the representative of the bargaining unit shall be the exclusive agent for bargaining relating to wages, hours and other conditions of employment. 29 U.S.C. § 159(a); see generally NLRB v. Allis-Chalmers, supra; J. I. Case v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944); Western Addition Community Organization v. NLRB, 158 U.S. App.D.C. 138, 485 F.2d 917, 924 (1973).

Section 4 of the Clayton Act, 15 U.S.C. § 15, grants standing for antitrust suits to any "person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws." Courts have consistently allowed plaintiffs to sue their employers for alleged antitrust violations of the nature here asserted. In Anderson v. Shipowners' Association, 272 U.S. 359, 47 S.Ct. 125, 71 L.Ed. 298 (1926), a seaman sued for himself and for all other members of the Seaman's Union against the Association, challenging the use of an employment registry. The Supreme Court reversed a dismissal of the complaint, sustaining, inter alia, the right of the plaintiff to assert his claim. That Anderson was a union member, or that a bargaining agreement may or may not have been in effect, did not appear to be determinative.

In Nichols v. Spencer International Press, Inc., 371 F.2d 332 (7th Cir. 1967), an ex-encyclopedia salesman sued his former employer and another publisher who had refused to hire him. The action attacked on antitrust grounds a "no-switching" agreement whereby each defendant promised not to hire any former employees of the other for six months after termination of the former employment. The court reversed the grant of summary judgment and the entry of an order with respect to antitrust issues in favor of defendants, relying in part on a Second Circuit decision which ten years earlier had declared a similar agreement to constitute an unreasonable restraint of trade. The Seventh Circuit said:

"one who has been damaged by loss of employment as a result of a violation of the antitrust laws is `injured in his business or property' and thus entitled to recovery under 15 U.S.C.A. § 15. . . . [T]he interest invaded by a wrongful act resulting in loss of employment is so closely akin to the interest invaded by impairment of one's business as to be indistinguishable in this context." 371 F.2d at 334.

More recently this court (Mansfield, J.) in Cordova v. Bache Co., 321 F. Supp. 600 (S.D.N.Y. 1970), dealt with the issue. There, the president of the American Association of Securities Representatives sued various brokerage firms which had unilaterally agreed to reduce the commissions paid to securities representatives. It was claimed that the agreement would have the effect of eliminating wage competition by the establishment of an inviolate "going rate." Judge Mansfield ruled that neither the president nor the Association itself had standing to bring the claim; the president lacked standing because he was not an employee of any of the defendant firms and the Association lacked standing because it could not, under the antitrust laws, assert the rights of its members. The court permitted the substitution of several employees as plaintiffs, and the standing requirements were met.

In the sports area, the standing of players to assert antitrust violations similar to those alleged here has generally not been questioned. In the Philadelphia Hockey case, Judge Higginbotham specifically held that players threatened with injury through the enforcement of the reserve clause could sue their employers:

"Conduct by the NHL which tends to eliminate competition between actual and/or potential competitors is actionable by players who have been or who are likely to be injured thereby." 351 F. Supp. at 518.

Standing has been found to exist for hockey players challenging the reserve system, Boston Professional Hockey Association, supra; for a basketball player challenging the college draft system, Denver Rockets v. All-Pro Management, Inc., 325 F. Supp. 1049 (C.D.Cal. 1971); for a golfer challenging a group boycott, Blalock v. Ladies Professional Golf Association, 359 F. Supp. 1260 (N.D.Ga. 1973); for a football player challenging (a) blacklisting following a violation of the reserve clause, Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), and (b) the reserve clause and other intra-league restraints, Kapp v. National Football League, 390 F. Supp. 73 (N.D.Cal. 1974).

Cases cited by the ABA are inapposite. Union members here are not trying to negotiate their own contracts while a collective bargaining agreement is in force, NLRB v. Allis-Chalmers, supra, 388 U.S. at 180, 87 S.Ct. 2001; NLRB v. U.S. Sonics Corp., 312 F.2d 610, 615 (1st Cir. 1963); nor are plaintiffs negotiating as a splinter group, Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). This litigation does not present a situation where only the "superstars" will benefit, Jacobs and Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L.J. 1, 7-10 (1971); Philadelphia Hockey, 351 F. Supp. at 515; and an individual union member is not here suing his union or employer for a breach of a collective bargaining agreement, Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965).

Similarly, the NBA's attempt to distinguish a line of cases generally supportive of plaintiffs' right to sue on antitrust grounds is unpersuasive. These authorities are characterized by NBA as cases where "strangers" to a collective bargaining process have sued or, alternatively, cases where employees have been allowed to sue due to the absence of a collective bargaining relationship. But cases in the first category never involved suits by employees; they all were brought by employers. And in the latter group courts made no mention of the lack of bargaining as decisive or even significant in their decisions allowing employees to sue. Plaintiffs have standing to bring this suit.

2. Labor Exemption from Antitrust Laws

There is no operative labor exemption barring or protecting the defendants from being sued for antitrust violations. The statutory bases for labor's exemption from the application of the antitrust laws are found in Sections 6 and 20 of the Clayton Act, 15 U.S.C. § 17, 29 U.S.C. § 52. A simple and concise answer to defendants' contention is that the exemption extends only to labor or union activities, and not to the activities of employers.

In Allen Bradley, supra, the Court reviewed the history of federal labor laws and antitrust legislation and held that the purpose behind the passage of the Clayton Act was to clarify the then-existing confusion regarding the vulnerability of labor. unions to the prohibitions of the Sherman Act. It found that the Clayton Act had a twofold purpose: to make clear that (1) certain trade practices among businessmen were illegal; and that (2) the same or similar practices among or by labor unions were lawful. The Court stated that Congress had intended by enactment of the Clayton Act to reverse earlier decisions applying antitrust principles to concerted union activities; the exemption was enacted to protect union activity against the wrongful application of the Sherman Act, 325 U.S. at 803-804, 65 S.Ct. 1533, and that judicial reluctance to apply the Clayton Act by its own terms, see, e. g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349 (1921), had led to the passage of the Norris-LaGuardia Act, 29 U.S.C. § 101, which

"protect[ed] the rights of employees to organize into unions and engage in `concerted activities for the purpose of collective bargaining or other mutual aid or protection.'" 325 U.S. at 805, 65 S.Ct. at 1538 (Emphasis added).

Earlier, in United States v. Hutcheson, 312 U.S. 219, 61 S.Ct. 463, 85 L.Ed. 788 (1941), the Court had declared that all three acts — Sherman, Clayton and Norris-LaGuardia — must be read in conjunction with each other to determine whether concerted activities of unions are prohibited under the antitrust laws. Discussing the labor exemption, it had held that:

"So long as a union acts in its self-interest and does not combine with non-labor groups, the licit and the illicit under § 20 are not to be distinguished by any judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular unioh activities are the means." 312 U.S. at 232, 61 S.Ct. at 466 (footnote omitted).

The Court concluded in Allen Bradley, as a result of its review of the statutory and decisional law, that unions would lose their exemptions once they aided "non-labor groups to create business monopolies and to control the marketing of goods and services." 325 U.S. at 808, 65 S.Ct. at 1539.Allen Bradley made clear that the "labor exemption" was created for the benefit of unions. While later cases revealed the possibility of a circumscribed exemption for employers, which might arise derivatively, and become effective when employers are sued by third parties for the activities of unions, the protection of the exemption is afforded only to employers who have acted jointly with the labor organization in connection with or in preparation for collective bargaining negotiations. See, e. g., Cordova v. Bache Co., supra, 321 F. Supp. at 607.

Judge Higgenbotham, in the Philadelphia Hockey case, in rejecting the NHL's attempt to employ the exemption, stated:

"The labor exemption which could be defensively utilized by the union and employer as a shield against Sherman Act proceedings when there was bona fide collective bargaining, could not be seized upon by either party and destructively wielded as a sword by engaging in monopolistic or other anticompetitive conduct. The shield cannot be transmuted into a sword and still permit the beneficiary to invoke the narrowly carved out labor exemption from the antitrust laws." 351 F. Supp. at 499-500.

In the Cordova case, Judge Mansfield refused to dismiss the securities representatives' antitrust suit on the ground that the labor exemption protected the employers:

"[T]he sole purpose and effect of the section is to exempt activities and agreements on the part of labor . . . organizations with respect to their furnishing labor in the market place.

. . . . . .

"It is readily apparent that Congress . . . was concerned with the right of labor and similar organizations to continue engaging in such activities, including the right to strike, not with the right of employers to band together for joint action in fixing the wages to be paid by each employer." 321 F. Supp. at 605, 606.

Nonetheless, defendants rely on a twofold "test" which purports to determine when the exemption is available to employers. They argue that the appropriate test is as follows:

"The test for applicability of the labor exemption which emerges from Jewel Tea and Pennington, is twofold: 1) Are the challenged practices directed against non-parties to the relationship; if they are not, then 2) are they mandatory subjects of collective bargaining? If the answer to No. 1 is no, and to No. 2 yes, the practices are immune. . . ." NBA Memorandum at 28.

Support for this "test" is allegedly found in United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), and Jewel Tea, supra, which presented the Court with the opportunity to re-examine its holdings in Hutcheson and Allen Bradley, supra.

In Pennington, a small coal company cross-claimed against the UMW, challenging on antitrust grounds the terms of a multi-employer collective bargaining agreement between the union and other, larger, coal operators. The Court, relying on Allen Bradley, found that the union had lost its exemption when it combined with non-labor groups to eliminate competition from the market. Justice White stated, at 665-66, 85 S.Ct. at 1591, that:

"[W]e think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units. One group of employers may not conspire to eliminate competitors from the industry and the union is liable with the employers if it becomes a party to the conspiracy (emphasis added).

There is no statement or suggestion in Pennington that an employer has an exemption from an antitrust suit by its employees, or by any other party. It was assumed that the large coal operators would have been liable regardless of the union's liability.

In Jewel Tea, several unions had entered into identical collective bargaining agreements with all retail employers in the meat industry; the clause in dispute provided for uniform closing hours in all the meat departments. One employer attacked that clause arguing that he had only signed the agreement under threat of strike. As in Pennington, the fundamental question was whether the antitrust laws applied to the unions: could the agreement, obtained by the unions for their own benefit, be attacked, or was it exempt? No mention was made of labor exemption for employers. This issue, as framed by Justice White, was:

"whether the marketing-hours restriction, like wages, and unlike prices, is so intimately related to wages, hours and working conditions that the unions' successful attempt to obtain that provision through bona fide, arm's-length bargaining in pursuit of their own labor union policies, and not at the behest of or in combination with non-labor groups, falls within the protection of the national labor policy and is therefore exempt from the Sherman Act." 381 U.S. at 689-90, 85 S.Ct. at 1602 (emphasis added).

The exemption was held applicable.

Justice Goldberg, joined by Justices Harlan and Stewart, took a broader view, and it can be argued that his language does support to a limited degree the second half of the test proffered by defendants. According to Justice Goldberg, the balancing of labor and antitrust policies, as advocated by Justice White, was unnecessary, for "collective bargaining activity concerning mandatory subjects of bargaining under the Labor Act is not subject to the antitrust laws." 381 U.S. at 710, 85 S.Ct. at 1614.

Whatever support may be found in the Jewel Tea concurring opinion for defendants' test is completely undermined by the Court's explicit statement in Pennington that:

"[t]his is not to say that an agreement resulting from union-employer negotiations is automatically exempt from Sherman Act scrutiny simply because the negotiations involve a compulsory subject of bargaining, regardless of the subject or the form and content of the agreement. . . . [T]here are limits to what a union or an employer may offer or extract in the name of wages, and because they must bargain does not mean that the agreement reached may disregard other laws." 381 U.S. at 664-65, 85 S.Ct. at 1590 (emphasis added).

Nor does the "test" which supposedly "flows" from Pennington and Jewel Tea find support in later decisions. In this respect, defendants' principal reliance on Carroll v. American Federation of Musicians of the United States and Canada, 372 F.2d 155 (2d Cir. 1967), aff'd in part and rev'd in part, 391 U.S. 99, 88 S.Ct. 1562, 20 L.Ed.2d 460 (1968), is misplaced. In Carroll, union-expelled orchestra leaders alleged that certain union regulations, particularly that establishing price floors, were violative of the antitrust laws. The Second Circuit held that the price floor regulation was a per se violation of Sections 1 and 2 of the Sherman Act. The Supreme Court reversed, holding that the union's labor exemption from the Act extended to the price floor regulation. Neither court, however, based its decision on defendants' proposed twofold "test".

The Second Circuit's first inquiry was whether there was, as in Pennington, a conspiracy between the union and the orchestra leaders to eliminate competition, fix prices or further any other commercial restraint. As the regulations were unilaterally imposed by the union, and merely acquiesced in by the leaders, it was held that no conspiracy existed to preclude exemption. The court concluded that the price floor regulation was "not a subject of such direct and overriding interest to the unions . . . that it is a mandatory subject of collective bargaining." 372 F.2d at 165. In reversing, the Supreme Court stated that the basic question was "whether the price floors in actuality operate to protect the wages of [other union members]." 391 U.S. at 108, 88 S.Ct. at 1568. Finding that the floors were intimately related to wages, the Court ruled that the regulations came within the exemption.

The more recent Second Circuit decision in Intercontinental Container Transport Corp., supra, clearly sets out what I think is the guiding test which emerges from the decisional law in the labor exemption area. In Inter-continental, plaintiff was a warehouse company which attacked a General Cargo Agreement entered into by the Longshoremen's Union and the Shipping Association. The agreement provided that, in return for a shift to containerization, the Association would enter into certain work preservation practices, in effect preventing plaintiff and others from competing with the Association. The Court of Appeals reversed a preliminary injunction issued in favor of the plaintiff, holding that the agreement was protected by the exemption pursuant to the following yardstick:

"The test of whether labor union action is or is not within the prohibitions of the Sherman Act is (1) whether the action is in the union's self-interest in an area which is a proper subject of union concern and (2) whether the union is acting in combination with a group of employers." 426 F.2d at 887.

Judge Hays found that the containerization agreement was well within the union's self-interest:

"The provisions of the collective agreement have as their object the preservation of work traditionally performed by longshoremen covered by the agreement." Ibid.

After finding that the provisions were within the area of proper union concern, Judge Hays turned to the second part of the Second Circuit test and found that "far from aiding and abetting a violation of the Sherman Act by a group of business men, the union here, acting solely in its own self-interest, forced reluctant employers to yield to certain of its demands." Id. at 888.

The application of defendants' proposed "test" would result in an anomaly. The first question — whether the practices are addressed to third parties to the relationship — would be answered "yes". The second question — whether it was a mandatory subject of collective bargaining — is an irrelevance and was never asked. The basic inquiry must focus on determining whether the controverted practices or regulations were in the union's own interest. The test proposed by NBA has no validity.

Mandatory Subjects of Collective Bargaining

The practices here under attack are not mandatory subjects of bargaining. Reliance is placed on Judge Cooper's. statement in Flood, supra, 316 F. Supp. at 283, that "[b]oth management and the Players' Association recognize the reserve system to be a mandatory subject of collective bargaining." However, Judge Cooper doubted that the reserve clause was a mandatory subject of collective bargaining, Id. at 278, and neither the Second Circuit nor the Supreme Court found it necessary to pass on this issue. 443 F.2d at 268; 407 U.S. at 285, 92 S.Ct. 2099.

The other decisions cited by defendants are also inapplicable. The statement in NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), that a clause which regulates relations between employer and employee comes within the scope of Section 8(d) of the National Labor Relations Act is not a yardstick to determine whether a provision is a mandatory subject of bargaining. The Court in Borg-Warner was merely comparing the clause in dispute with one admittedly within the contours of Section 8(d). Moreover, the provision involved was held to be "lawful," Id. at 349, 78 S.Ct. 718, while here the issue of "lawfulness" spawns the controversy. Similarly, Allied Chemical Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), did not hold that a practice or provision which vitally affects the terms and conditions of employment is necessarily a mandatory subject of bargaining. There, the bargaining unit for current employees sought to negotiate certain insurance benefits for retired workers. The Court simply held that former employees' benefits are not "terms and conditions" of present workers' employment.

Two other cases involving third parties are likewise inapposite. Local 24, Teamsters Union v. Oliver, 358 U.S. 283, 293-95, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959), concerned an agreement which established a minimum rental that carriers had to pay to truck owners who drove in place of union employees; it was held that the objective of the rental agreement was to protect the negotiated wage scale from evasion by payments to the owner-drivers of rentals which did not cover operating costs. Fibreboard, supra, held only that "contracting out" — the replacement of employees in the bargaining unit with those of an independent contractor — was a mandatory subject of bargaining.

Defendants argue that "contracting out" is somewhat analogous to some of the practices challenged here because "contracting out" also determines which employer will hire employees for a particular job. However, Fibreboard warned that its conclusions did "not encompass other forms of `contracting out' or `subcontracting' which arise daily in our complex society." 379 U.S. at 215, 85 S.Ct. at 405. "Terms and conditions of employment" was not meant to reach every issue that might interest unions or employers. See, e. g., Fibreboard, supra, Id. at 220-21, 223-24, 85 S.Ct. 398, (Stewart, J., concurring); Westinghouse Electric Corp. v. NLRB, 387 F.2d 542, 545-48. (4th Cir. 1967).

I conclude at least tentatively since the record is not yet complete, that the reserve clause, the player draft, and the merger or non-competition agreement are not mandatory subjects of collective bargaining, Defendants' argument that the above cited cases and others require a contrary holding is wholly unpersuasive.

C. Determination of The Validity of the Inter- and Intra-League Restraints on Motions for Summary Judgment

There apparently is no genuine issue regarding the existence of the challenged NBA practices; aside from the compensation plan, they are set out and regulated by various documents annexed as exhibits, including the NBA Constitution and By-Laws, and the Uniform Contract. Nor is there any dispute over the fact of the contemplated merger or agreement of non-competition.

On the basis of the documentary evidence submitted in support of the NBA motion for summary judgment, practically all of the intra- and inter-league restraints appear to be per se violative of the Sherman Act. When a player signs the present Uniform Contract, he agrees to play ball "only for the Club and its assignees" (Uniform Contract ¶ 5), the club is given the right to assign the contract ( Id. ¶ 10), and the player agrees to report to his new club within a specified period of time ( Id. ¶ 12). In addition, the reserve or option clause ( Id. ¶ 22) binds the player to negotiate and deal only with the club which contracted with the player. After the contract's termination, the club may unilaterally renew the player's obligation to play for that team for an additional year.

Plaintiffs claim that the NBA's reserve clause grants each club a perpetual right of renewal. NBA defendants, on the other hand, assert that as the clause is presently interpreted, a player becomes a "free agent" once his club has exercised its option. After the player plays for the club for the one-year period, and assuming he does not sign a new contract, he becomes a free agent. Defendants' Memorandum at 9. This interpretation, however, must be read in the light of the adoption by the defendants of a compensation plan similar in purpose and effect, presumably, to the "Rozelle Rule," recently struck down as a violation of the Sherman Act in Kapp v. National Football League, supra. See generally Contractual Rights and Duties of the Professional Athlete — Playing the Game in a Bidding War, 77 Dickinson L.Rev. 352, 353, 387-93 (1973) (hereafter Playing the Game in a Bidding War).

The free agent can sign with another team, but it then "becomes the obligation of the player's new team to compensate his old team for loss of the player." Affidavit of J. Walter Kennedy, Commissioner of the NBA, ¶ 16 (hereafter Kennedy Affidavit). The Rozelle Rule contemplates that compensation include awarding to the past club one or more players of the acquiring club; even future draft choices are vulnerable in the compensation scheme. The effect of the compensation system resulted in few NFL players playing out their options, and the system was expressly condemned by the Senate Judiciary Committee in its report on the proposed NBA-ABA merger.

The record does not reveal either the language or operation of the compensation plan, it not being set out in the NBA Constitution, By-Laws or Uniform Contract. Defendants expressly state that the NBA plan is dissimilar in some respects from the Rozelle Rule. Kennedy Affidavit ¶ 17. It is uncertain whether a perpetual reserve was ever employed by the NBA, and, if it was, when it was superseded by the one-year reserve-compensation system.

The NBA's annual "college draft" allocates the rights to negotiate with eligible college players among the teams; those with the worst won-lost records choose first. A NBA club which has drafted a college player holds the exclusive right to negotiate with and sign the player. Whereas the reserve clause prevents teams from competing for veteran players, the draft prevents bidding for rookies. The net effect of the two mechanisms is to force a player to deal only with the NBA club which "owns" the rights to him. If the player refuses to go along with the system, he will not play ball in the NBA; blacklisting or boycotting to punish the recalcitrant player or the renegade club completes the control devices used.

The merger and/or agreement of non-competition between the two leagues is another mechanism whose effect would be a restraint of trade. Either would result in the total elimination of competition between the two leagues for the services of college players, free agents, or those intending to break their contracts and jump leagues. The end of the bidding war between the NBA and the ABA would mean the loss of negotiating power which NBA players obtained in 1967.

Some degree of economic cooperation which is inherently anti-competitive may well be essential for the survival of ostensibly competitive professional sports leagues. See Flood, supra, 316 F. Supp. at 275-76. Without these mechanisms unrestrained price wars for the service of the most proficient players will ensue, or so runs the argument, with the wealthiest teams capturing the top talent and the poorer teams facing demise due to the loss of fans and profit. See The Super-Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv.L.Rev. 418, 421 (1967) (hereafter Sports and the Antitrust Laws). Because survival necessitates some restraints, however, does not mean that insulation from the reach of the antitrust laws must follow. Less drastic protective measures may be the solution. See, e. g., S.Rep. No. 92-1151, 92d Cong., 2d Sess. (1972);Flood, supra, 316 F. Supp. at 275-76 n. 12; Sports and the Antitrust Laws, supra, at 424-25.

In Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911) and Chicago Board of Trade v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918), the Supreme Court formulated a "rule of reason" test. Under this approach courts were required to examine the agreement or practice in relationship to the history and economics of the industry in which it was employed. If supported by clear economic necessity, and its dominant purpose was not restraint of trade, the practice would be declared reasonable and lawful. Certain practices were found to be so anti-competitive, however, that they have been declared illegal per se, which leaves a court free to avoid the complicated task which follows the utilization of the rule of reason test.Compare Kapp v. National Football League, supra.

Among the practices which have been declared per se violations of the Sherman Act are horizontal price-fixing at the same level of competition, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); territorial division of markets, Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); and secondary or group boycotts, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). The player draft and perpetual reserve system are readily susceptible to condemnation as group boycotts based on the NBA's concerted refusal to deal with the players save through these uniform restrictive practices. See Klor's, Inc., supra; Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Fashion Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 465, 61 S.Ct. 703, 85 L.Ed. 949 (1941). The two control mechanisms are also analogous to price-fixing devices condemned as per se violative of the Sherman Act, for the draft and a perpetual reserve system allow competing teams to eliminate competition in the hiring of players and invariably lower the cost of doing business, United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967); United States v. Socony-Vacuum Oil Co., supra; see also Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 241-42, 68 S.Ct. 996, 92 L.Ed. 1328 (1948); American Tobacco v. United States, 328 U.S. 781, 801-803, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). In addition the player draft and a perpetual reserve system can be viewed as devices creating illegal horizontal territorial allocations and product market divisions. See Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967); United States v. Sealy, Inc., supra.

The player draft had its only substantial test to date in Denver Rockets v. All-Pro Management, Inc., supra. In that case Spencer Haywood, then playing with the Rockets of the ABA, contracted to play for the Seattle team in the NBA. Haywood sought a preliminary injunction barring the enforcement of a NBA By-Law which prohibited qualified players from negotiating with any NBA club until four years after high school graduation. The court said

"There is substantial probability in light of all the evidence presented to this Court that the so-called `college draft system' . . . constitutes a violation of the antitrust laws. . . ." 325 F. Supp. at 1056,

and declared the four-year rule to be a "group boycott" in violation of the antitrust laws.

A perpetual reserve clause in effect in the National Hockey League (NHL) has been held in three cases to violate the Sherman Act. In Boston Professional Hockey Association, supra, the court refused to enforce the reserve clause to prevent a player from jumping to the World Hockey League because the Boston Bruins had "not shown a probability that these Standard Player's Contracts will be found to be legally valid and enforceable in the face of the serious threat to their legality posed by the provisions of the Sherman Act." 348 F. Supp. at 268.

In Nassau Sports v. Hampson, 355 F. Supp. 733 (D.Minn. 1972), the court ruled that the reserve clause:

"seems, plausibly, one aspect of a contractual scheme constituting a violation of sections 1 and 2 of the Sherman Antitrust Act." 355 F. Supp. at 735.

In the third case, Philadelphia Hockey, supra, Judge Higgenbotham concluded that, as a matter of law, either a perpetual reserve system or one limited to three years' duration violates Section 2 of the Sherman Act as an unlawful monopolization. The court hesitated to declare that the NHL reserve clause was per se violative of Section 1, due in part to its reservation that a competitive balance among teams could be maintained in the absence of any restraints.

The consummation of the merger or non-competition agreement would result in the total elimination of competition in the major league market. Such complete monopolization is per se violative of Sections 1 and/or 2 of the Sherman Act. See, e. g., United States v. First National Bank Trust Co., 376 U.S. 665, 669-70, 84 S.Ct. 1033, 12 L.Ed.2d 1 (1964); United States v. Grinnell Corp., 384 U.S. 563, 570-71, 576, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); United States v. Manufacturers Hanover Trust Co., 240 F. Supp. 867, 955 (S.D.N.Y. 1965). Absent special Congressional approval, mergers of rival leagues would be an antitrust violation: in 1966, the NFL and the American Football League sought to end their price war by going to Congress and getting a special exemption, 15 U.S.C. § 1291. This approach remains available, of course, to defendants.

A motion for summary judgment is not a substitute for a trial of disputed facts; yet partial summary judgment may be entered in an antitrust case as to those matters where evidentiary data and affidavits show no genuine issue of material fact exists. See Rule 56(d), F.R.Civ.P.; White Motor Co. v. United States, 372 U.S. 253, 259, 83 S.Ct. 696, 700, 9 L.Ed.2d 738 (1963) ("some of the law in this area is so well developed that where, as here, the gist of the case turns on documentary evidence, the rule at times can be divined without a trial"); see also First National Bank v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Blalock v. Ladies Professional Golf Association, supra; Denver Rockets v. All-Pro Management, Inc., supra; Yale Transport Corp. v. Yellow Truck Coach Manufacturing Co., 3 F.R.D. 440 (S.D.N Y 1944).

While the plaintiffs have not sought summary judgment in their favor on any of the disputed issues but have merely opposed defendants' motions on the ground that genuine issues of fact render summary judgment inappropriate, the weight of authority is that a court may, sua sponte, render summary judgment in favor of the opposing party despite the absence of a cross-motion. See Wright Miller, supra, Civil § 2720, at 467-71. A barrier to taking definitive action on these issues at this time, however, is the sharp controversy between the plaintiffs and the NBA defendants as to whether the controversial restraints came into being in the context of arm's-length union-employer negotiations, or were imposed unilaterally by the NBA.

There is a total divergence of views between plaintiffs and defendants in addressing themselves to this question. There is disagreement as to when the Players Association was recognized as the exclusive bargaining agent for the players; whether the reserve clause and the assignment of contract provisions were ever the subject of collective bargaining; whether the draft, assignment and trading provisions of the Uniform Contract, and the compensation plan are regulated by collective bargaining agreements entered into between the NBA and the players; whether the reserve clause, draft, assignment and trading provisions of the Uniform Contract, and the compensation plan have been unilaterally adopted by the NBA and imposed on the players. Whether the restraints were ever the subject of serious bargaining, or whether they were acquiesced in in return for other benefits, or whether they were baldly imposed by the NBA cannot be determined except at trial.

Resolution of this conflict may be the most critical issue in this litigation. Conceivably, if the restrictions were part of the union policy deemed by the Players Association to be in the players' best interest, they could be exempt from the reach of the antitrust laws. See Jewel Tea, supra, 381 U.S. at 690, 85 S.Ct. 1596; International Container Transport Corp., supra, 426 F.2d at 887; National Dairy Products Corp. v. Milk Drivers and Dairy Employees Union Local 680, 308 F. Supp. 982, 986 (S.D.N.Y. 1970). The proper inquiry in respect of this controversy is whether the challenged restraints were ever the "subject of serious, intensive, arm's-length collective bargaining." Philadelphia Hockey, supra, 351 F. Supp. at 499; see Flood, supra, 407 U.S. at 293-96, 92 S.Ct. 2099 (Marshall, J., dissenting); Boston Professional Hockey Association, supra, 348 F. Supp. at 267-68.

I must confess that it is difficult for me to conceive of any theory or set of circumstances pursuant to which the college draft, blacklisting, boycotts and refusals to deal could be saved from Sherman Act condemnation, even if defendants were able to prove at trial their highly dubious contention that these restraints were adopted at the behest of the Players Association. Plaintiffs, on their part, have vigorously asserted that no collective bargaining ever took place as to any of these restraints, and that certainly they are not the kind of matter which a union would consider, seek or obtain as being in its own best interest and that of its members. The life of these restrictions, therefore, appears to be all but over, although their formal interment must await further developments in this case. Any merger or non-competition agreement between the NBA and ABA without Congressional approval similarly would be clearly unlawful, and defendants are presently under injunctive restrictions in that regard.

While a perpetual reserve system would also appear to be a per se violation of the Act, whether such a system exists, and how it operates and came into being are unclear. Moreover, I must accept defendants' contention at this stage of the proceedings that the reserve system presently operative is limited to a one-year renewal, coupled with a compensation plan and that the system does not duplicate the Rozelle plan. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Sterling National Bank Trust Co. v. Fidelity Mortgage Investors, 510 F.2d 870, (2d Cir. 1975). Therefore, no tentative conclusion as to the reserve system's legality will be projected prior to trial on the merits. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 472-73, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); White Motor Co. v. United States, supra. Accordingly, defendants' motions for summary judgment are denied.

VII Motion for Class Action Determination

Plaintiffs move, pursuant to Rule 23(c)(1), F.R.Civ.P., for a determination that this action may be maintained as a class action, either under 23(b)(1) and/or (2) and alternatively under 23(b)(3). The proposed class is comprised of all active players in the NBA from the date of the commencement of this action in April of 1970 through the present, and all future players in the NBA prior to the date of final judgment. Eleven plaintiffs are currently active players and three no longer play in the NBA.

Essentially, plaintiffs claim that defendants' illegal activities affect each plaintiff and proposed class member in a "substantially identical" manner. They maintain that they and the class they seek to represent are a homogeneous group which is and has been the target of the NBA's conspiracies. NBA primarily raises the four following arguments against the proposed class determination: (1) the inclusion of future players makes the class indefinable; (2) potential conflicts of interest among the class members preclude adequate representation by the named plaintiffs; (3) the class action is an inferior method for handling this controversy; and (4) the proposed class action falls without any of the Rule 23(b) categories.

A. Is the Proposed Class Sufficiently Defined?

It is apparent that the named plaintiffs are members of the proposed class; that common questions of law and fact are present and that the class meets the numerosity requirement. NBA contends that the class lacks sufficient definition, that the plaintiffs' claims are not typical of the proposed class, and that the plaintiffs will not fairly and adequately represent the interests of the members.

The NBA's claim that the proposed class lacks definition is premised on an erroneous assumption. Defendants misread a portion of the plaintiffs' moving affidavit in asserting that the inclusion of future active players up to the date of judgment raises the spectre of a class hundreds of thousands strong. In the affidavit, Laurence Fleisher merely said that out of hundreds of thousands of high school and college ballplayers, fewer than fifty generally are good enough to join the ranks of the NBA each year. The "monster" class cases cites by the NBA, see, e. g., Eisen v. Carlisle Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (all odd lot purchasers or sellers in a four year period); Boshes v. General Motors Corp., 59 F.R.D. 589 (N.D.Ill. 1973) (all purchasers of General Motors automobiles); United Egg Producers v. Bauer International Corp., 312 F. Supp. 319 (S.D.N.Y. 1970) (all consumers of eggs), are therefore not in point.

The class is neither amorphous, nor imprecise; at the present time there are three hundred and sixty-five class members. The fact that fifty to a hundred more members may be joining the class does not make it unmanageable. See Price v. Skolnick, 54 F.R.D. 261, 263 (S.D.N.Y. 1971). Moreover, it has been held that the "[f]ailure to state the exact number or to identify individually every member of the class does not militate against the maintenance of a class action." Herbst v. Able, 47 F.R.D. 11, 21 (S.D.N.Y. 1969); see also Dolgow v. Anderson, 43 F.R.D. 472, 492 (E.D.N.Y. 1968); Fischer v. Kletz, 41 F.R.D. 377, 384 (S.D.N.Y. 1966); Wright Miller, supra, Civil § 1760, at 580. This court can determine at any time whether a particular individual is a member of the class, see Eisman v. Pan American World Airlines, 336 F. Supp. 543, 547 (E.D.Pa. 1971), for it will always be composed of "a well-defined, discrete and limited number of NBA basketball players all of whom are well known and will be readily identifiable by exact name at all stages of this action." This factor makes this case distinguishable from Eisman, supra (all past and future purchasers of tickets from Pan American) and from Coniglio v. Highwood Services, Inc., 60 F.R.D. 359, 363 (W.D.N.Y. 1972) (all past, present and future ticketholders of the Buffalo Bills).

Courts have approved classes which included future members. See, e. g., Taylor v. Safeway Stores, Inc., 333 F. Supp. 83, 84 (D.Colo. 1971); Manning v. General Motors Corp., 14 F.R.Serv.2d 1083, 1085 (N.D.Ohio 1971), aff'd, 466 F.2d 812 (6th Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1366, 35 L.Ed.2d 613 (1973); Rios v. Steamfitters Local 638, 54 F.R.D. 234, 237 (S.D.N.Y. 1971); cf. Air Line Stewards Stewardesses Association Local 550 v. American Airlines, Inc., 490 F.2d 636, 638 (7th Cir. 1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 773 (1974) ("class consisted of all present and former American stewardesses . . . who had been, desired to be, or would in the future desire to be, pregnant"); Arey v. Providence Hospital, 55 F.R.D. 62, 64 (D.D.C. 1972) ("class action brought on behalf of all black and female employees who have sought, might have sought, seek or might seek, employment and promotion by the defendant"). In view of the size of the class and that plaintiffs have agreed to give notice of the proceedings to all present and future members, the notice requirement does not raise a serious issue.

B. Typicality and Fair and Adequate Representation

Rule 23(a)(3) requires that the representatives' claims be typical of the proposed class; 23(a)(4) requires that the representatives fairly and adequately protect the interests of the members. Plaintiffs and defendants agree that the requirements of these two subsections are virtually the same, see Eisen v. Carlisle Jacquelin, 391 F.2d 555, 562-63 (2d Cir. 1968); duPont v. Perot, 59 F. R.D. 404, 409-10 (S.D.N Y 1973), to wit, the interests of the named plaintiffs must be co-extensive with the interests of the proposed class members, and the plaintiffs' interests may not be antagonistic or adverse to interests of the class.

Plaintiffs assert not merely coextensive interests, but interests identical "in every material respect" to those of members of the proposed class. It appears that the NBA conspiracy to monopolize professional basketball through intra- and inter-league restraints previously discussed has affected, affects, or will affect each member of the class in a similar way, and it appears that every NBA player has the same interest in ending these restraints. While this conclusion is tentative, and may be altered as the case progresses to trial, it is fully supported on the record.

NBA vigorously contests this harmonious family portrait, and instead paints a seascape of stormy differences among the proposed class members. Potential conflicts between past and present players, among present players, and among past players are alleged. The conflicts are of such magnitude, it is argued, that the class should not be maintained; at the very least the NBA urges the formation of a multitude of subclasses.

The first conflict purportedly arises between the active players who primarily seek injunctive, as opposed to monetary, relief and the past players who only seek treble damages. The supposed disinterest of the latter group as to the future of the NBA puts them at odds with the present (and future) members, who seek a financially secure league in which to display their talents. A finding of intra-class conflict here would have some support in recent cases. See Free World Foreign Cars, Inc. v. Alfa Romeo, 55 F.R.D. 26, 29 (S.D.N Y 1972); Van Allen v. Circle K Corp., 58 F.R.D. 562, 564 (C.D.Cal. 1972); Matarazzo v. Friendly Ice Cream Corp., 62 F.R.D. 65 (E.D.N.Y. 1974); Gaines v. Budget Rent-A-Car of America, 16 F.R.Serv.2d 60, 64-65 (N.D.Ill. 1972); Seligson v. Plum Tree, Inc., 61 F.R.D. 343 (E.D.Pa. 1973); but see McMackin v. Schwinn Bicycle Co., 1972 CCH Trade Cas. ¶ 74,220 (N.D.Ill. 1972); Jacobi v. Bache Co., Inc., 16 F.R.Serv.2d 71 (S.D.N Y 1972); Gardner v. Awards Marketing Corp., 55 F.R.D. 460, 464 (D. Utah 1972). In opposition, plaintiffs retort that the supposed conflict is speculative and without foundation; that there were no "past" players in the class when the suit was originally commenced; that eleven affidavits filed in response to this past-present antagonism refute the claimed conflict; that all players, past and present, seek damages for the same acts, and also seek to eliminate those acts; that three of the named plaintiffs are past players who would insure that the interests of past players are represented; that no evidence has been introduced showing that the league would be injured, let alone destroyed, by a final adjudication either awarding damages or injunctive relief against the defendants; and finally, that former players do care what happens to the NBA.

NBA next contends that "new" present players "may well believe" that this action will destroy the NBA. It is also alleged that those present players who have acquired limited approval rights over trades, and the four players with "no-cut" provisions, do not have the same interests which other present players possess in challenging the restraints. Plaintiffs answer that first, the purported conflict between "new" and "old" present players is unsupported; rather, they claim that the "new" present players have interests identical to the "old" present players. Second, the contract provisions negotiated by several players have nothing to do with the restraints that bottom the complaint.

NBA also claims that the past players who are now part of management in either the NBA or ABA "could hardly be expected to share the interests of other retired NBA players," and raises the possibility that past players who are now playing in the ABA may favor a merger with the NBA. Plaintiffs respond with six affidavits from the "management" past players which directly contravene the assertion of antagonism. The claim that ABA past players seek a merger cannot be credited since Zelmo Beaty, former NBA player and then-president of the ABA Players Association, is on record in opposing the merger, and in the present status of professional basketball, players in both leagues view prospects of merger with misgivings as adversely affecting their interests.

Class action determination will not be denied, nor will the formulation of subclasses be required in the absence of a showing that the alleged potential conflicts are real probabilities and not mere imaginative speculation. See Green v. Wolf Corp., 406 F.2d 291, 299 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); Price v. Skolnick, supra; Feder v. Harrington, 52 F.R.D. 178, 182 (S.D.N.Y. 1970); Jacobi v. Bache Co., Inc., supra, 16 F.R.Serv.2d at 74; cf. Leisner v. New York Telephone Co., 358 F. Supp. 359, 372 (S.D.N.Y. 1973). I find the interests of the plaintiffs are not adverse to those of the class.

Obviously the decision that the requirements of Rules 23(a)(3) and (4) for class action determination are met here is not embedded in stone. All such determinations are merely tentative, Green v. Wolf, supra, 406 F.2d at 298 n. 10, and may be revoked or amended at a later time. Wright Miller, supra, Civil § 1785, at 137-38, and cases cited therein; General Motors Corp. v. City of New York, 501 F.2d 639, 646-47 (2d Cir. 1974); City of Philadelphia v. Emhart Corp., 50 F.R.D. 232, 235-46 (E.D.Pa. 1970).

The four-year history of this litigation is sufficient indication that the named plaintiffs and their counsel will fairly and adequately protect the interests of the class.

C. The Suit May Properly Proceed under Rule 23(b)(1)

Having found that the prerequisites of Rule 23(a) are met, the next inquiry is whether the suit falls under any of the three 23(b) categories. It is clear that 23(b)(2) is not applicable.

Under Rule 23(b)(2), a class action is appropriate when "the party opposing the class has acted or refused to act on grounds generally applicable to the class," and the named plaintiffs are seeking "final injunctive relief or corresponding declaratory relief."

The first yardstick has clearly been met, for the NBA has acted, through the intra-league restraints, and threatens to act, through the inter-league restraints, in a consistent manner toward all the class members. But 23(b)(2) certification is inappropriate when substantial damages are claimed in addition to permanent injunctive relief.

All players, past and present, who constitute this class seek treble damages for Sherman Act violations; moreover, there is a distinct possibility that evidence will be adduced at trial showing that the former NBA players who initially approved this suit are only interested in monetary relief. Class actions are generally not maintainable under this provision when money damages comprise a significant, it not enormous, portion of the total relief requested. The Advisory Committee has stated that 23(b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages."See Eisen, supra, 391 F.2d at 564. Nonetheless, some courts have allowed a 23(b)(2) class action where the requested damages were ancillary to the injunctive relief. It cannot realistically be contended that treble damages sought here by over 365 persons are ancillary or appurtenant to injunctive relief.

Our inquiry is, therefore, limited to 23(b)(1) and 23(b)(3). Rule 23(b)(1) authorizes the maintenance of a class action where "necessary to prevent possible adverse effects, either on the parties opposing the class or on absent class members, that might result if separate actions had to be brought." Wright Miller, supra, Civil § 1772, at 4. Rule 23(b)(1)(A) allows a class action when individual suits would create the possibility of inconsistent or varying adjudications that would "establish incompatible standards of conduct for the party opposing the class"; 23(b)(1)(B) seeks to avoid the risk that separate adjudications might impair the interests of other class members. The circumstances of this case, and in particular the nature of much of the relief sought, suggests that both clauses are applicable. I have already indicated that the college draft, a perpetual reserve clause, boycotts, and a proposed merger, absent Congressional approval, or a non-competition agreement are illegal. Any later decision in this case which might grant permanent injunctive relief against these or other intra-league restraints, or, as to the merger, which may convert the preliminary injunction into a final one, necessarily obviates the danger which the prosecution of separate suits engenders. Zachary v. Chase Manhattan Bank, 52 F.R.D. 532 (S.D.N.Y. 1971).

That separate actions could establish incompatible standards of conduct for the NBA is well within the realm of possibility. For example, if this action were allowed to continue only for the benefit of the named plaintiffs, it is conceivable that other members of the proposed class would file similar complaints in other courts. The court might grant injunctive relief, another court might refuse, and a third may give relief which differs in material respects from the first. Differing results in the individual actions would impair the NBA's ability to "pursue a uniform continuing course of conduct" where pragmatic considerations require that the defendants act in the same manner to all members of the class. Wright Miller, supra, Civil § 1773, at 10-11. The decision of any court could also, "as a practical matter," affect the rights of the class members not before that particular court.

Ample authority supports the maintenance here of a class action under Rule 23(b)(1), see Zachary v. Chase Manhattan Bank, supra; Jacobi v. Bache Co., Inc., 16 F.R.Serv.2d 70, 71 (S.D.N.Y. 1971); Mungin v. Florida East Coast Ry., 318 F. Supp. 720 (M.D.Fla. 1970), aff'd per curiam, 441 F.2d 728 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 203, 30 L.Ed.2d 175 (1971); Dale Electronics, Inc. v. R. C. L. Electronics, Inc., 53 F.R.D. 531 (D.N.H. 1971); Van Gemert v. Boeing Co., 259 F. Supp. 125, 130-31 (S.D.N.Y. 1966); Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., 285 F. Supp. 714 (N.D.Ill. 1968); Sultan v. Bessemer-Birmingham Motel Associates, 322 F. Supp. 86 (S.D.N.Y. 1970), though other cases suggest a different result, see Free World Foreign Cars, Inc. v. Alfa Romeo, supra, 55 F.R. D. at 29 n. 9 (franchise); Van Allen v. Circle K Corp., supra, 58 F.R.D. at 565 (franchise); Goldman v. First National Bank, 56 F.R.D. 587, 590-91 (N.D.Ill. 1972) (Truth in Lending Act); Kenney v. Landis Financial Group, Inc., 349 F. Supp. 939, 951 (N.D.Iowa 1972) (same); Rodriguez v. Family Publications Service, Inc., 57 F.R.D. 189, 192-93 (C.D.Cal. 1972) (same); Alsup v. Montgomery Ward Co., 57 F.R.D. 89, 91-92 (N.D.Cal. 1972) (same); Bogosian v. Gulf Oil Corp., 62 F.R.D. 124, 131-32 (E.D.Pa. 1973) (dealership). In line with the philosophy enunciated in the Second Circuit's opinions in Eisen and Green v. Wolf, supra, that Rule 23 be given a liberal construction with error, if any, on the side of certification, I hold that this action is maintainable under 23(b)(1).

Alternatively, this suit could be maintained pursuant to Rule 23(b)(3). That subsection states that a class action is maintainable when

"the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

Defendants do not seriously dispute the plaintiffs' contentions that common questions exist, and predominate here. It has become almost axiomatic that allegations of conspiracy in violation of the Sherman Act satisfy the "predominance" requirement of this subsection. The only argument the NBA makes in objection to certification under 23(b)(3) is that a class action would not be a "superior method" to resolve the issues raised by the complaint. The better procedure, they argue, is for the disputes to be aired through the collective bargaining process. It has been indicated tentatively, however, that these issues are not mandatory subjects of collective bargaining. Moreover, an examination of the four factors which a court must consider in a (b)(3) determination persuades me that a class action would be both economical and proper. The first factor provides that a court must take account of the interest that individual class members may have in controlling the prosecution of this action in separate suits. Aside from the speculative musings of intra-class conflict, no claim has been made that individual members have such an interest. Indeed, every then-active player authorized the commencement of this suit in 1970; widespread player opposition to the proposed merger was also revealed in the hearings before the Senate Subcommittee on Antitrust and Monopoly. The second factor calls the court's attention to the "extent and nature of any litigation concerning the controversy already commenced by or against members of the class." To my knowledge no similar litigation is currently pending before any other court, and the one case which considered an antitrust challenge to an aspect of the player draft was commenced after this complaint was filed and has since been settled. Thus no threat of multiplicitous or inconsistent adjudications looms before me.

The third factor, "the desirability or undesirability of concentrating the litigation of the claims in the particular forum," is very likely to be satisfied, too. This district is an appropriate place to focus the litigation, as more defendants have their principal places of business here than in any other district. See Siegel v. Chicken Delight, Inc., 271 F. Supp. 722, 725 (N.D.Cal. 1967); Advisory Committee's Note to Rule 23, 39 F R.D. 98, 102-104 (1966). The last consideration calls for an analysis of the "difficulties likely to be encountered in the management of a class action." Here, the size of the class is not large enough to make administration of the suit difficult, the claims of class members are substantially the same, and the members are both identifiable and subject to notice.

There is no need, however, to determine that this class is maintainable under Rule 23(b)(3). When a choice exists between (b)(1) and (b)(3) certification, the court should order that the action proceed under (b)(1) exclusively, so that the opt-out privilege is unavailable. See Zachary v. Chase Manhattan Bank, supra, 52 F.R.D. at 534; Van Gemert v. Boeing Co., supra, 259 F. Supp. at 130; Mungin v. Florida East Coast Ry., supra, 318 F. Supp. at 730; Research Corp. v. Pfister Associated Growers, Inc., 301 F. Supp. 497, 500 (N.D.Ill. 1969). Accordingly, it is ordered, pursuant to Rule 23(c)(1), that this suit be maintained as a class action under Rule 23(b)(1). The class will be comprised of the approximately 365 players who are or were active players for member clubs of the NBA from the date of the commencement of this suit to the present and those who become active players prior to the date of final judgment. Costs of notice to all class members will be borne by plaintiffs.

Summary of Determination

The motion to dismiss the complaint is denied. The motion to dismiss Counts Four and Five of the complaint is granted. The motion for class action determination is granted. The motion to dissolve the preliminary injunction is denied. The motions for summary judgment are denied.

It is so ordered.