UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
THOMAS LAUMANN, ROBERT SILVER,
GARRETT TRAUB, and DAVID DILLON,
representing themselves and all others similarly
situated,
Plaintiffs,
v.
NATIONAL HOCKEY LEAGUE et al.,
Defendants.
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12-cv-1817 (SAS)
FERNANDA GARBER, MARC LERNER,
DEREK RASMUSSEN, ROBERT SILVER,
GARRETT TRAUB, and PETER HERMAN
representing themselves and all others similarly
situated,
Plaintiffs,
v.
OFFICE OF THE COMMISSIONER OF
BASEBALL et al.,
Defendants.
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12-cv-3704 (SAS)
ECF Cases
Electronically Filed
REPLY MEMORANDUM OF LAW IN SUPPORT OF NHL DEFENDANTS’
AND MLB DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT


 

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii 
TABLE OF ABBREVIATIONS ................................................................................................... vi 
PRELIMINARY STATEMENT .....................................................................................................1 
ARGUMENT ...................................................................................................................................3 
I. SUMMARY JUDGMENT FOR THE LEAGUES CAN BE GRANTED
ON A “QUICK LOOK” OR FULL RULE OF REASON ANALYSIS ..................3 
II. PLAINTIFFS FAIL TO RAISE ANY GENUINE ISSUES OF
MATERIAL FACT ..................................................................................................4 
III. THE LEAGUES HAVE THE RIGHT TO PREVENT MEMBERS FROM
COMPETING WITH THE VENTURE PRODUCT ...............................................5 
IV. THERE IS NO GENUINE DISPUTE THAT THE RESTRAINTS ARE
ESSENTIAL TO THE NATIONAL CONTRACTS AND OOM
PACKAGES ............................................................................................................6 
V. THE LEAGUES’ ADDITIONAL PROCOMPETITIVE
JUSTIFICATIONS ALSO ARE UNDISPUTED ....................................................7 
A. The Leagues’ Internal Rules Enable the Leagues and Their Clubs
to License Exclusive Telecast Rights ..........................................................7 
B. Incentivizing and Balancing Local and National Interests ..........................8 
C. Preventing Free-Riding ..............................................................................10 
D. Fostering Competitive Balance ..................................................................10 
VI. PLAINTIFFS OFFER NO EFFECTIVE LESS RESTRICTIVE
ALTERNATIVE ....................................................................................................12 
VII. PLAINTIFFS FAIL TO OFFER ANY EVIDENCE OF ACTUAL HARM .........12 
VIII. THE BASEBALL EXEMPTION BARS ANTITRUST CLAIMS
CONCERNING MLB’S VIDEO RULES AND STRUCTURES .........................15 
CONCLUSION ..............................................................................................................................18 

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ii

TABLE OF AUTHORITIES
Cases Page(s)
American Needle, Inc. v. National Football League,
560 U.S. 183 (2010) ...........................................................................................................11

Association of Independent Television Stations, Inc. v. College Football Association,
637 F. Supp. 1289 (W.D. Okla. 1986) .................................................................................5

Bragdon v. Abbott,
524 U.S. 624 (1998) ...........................................................................................................14

Brooke Group v. Brown & Williamson Tobacco Corp.,
509 U.S. 209 (1993) ...........................................................................................................14

Capital Imaging Associates, P.C. v. Mohawk Valley Medical Associates, Inc.,
996 F.2d 537 (2d Cir. 1993)...............................................................................................12

CDC Technologies, Inc. v. IDEXX Laboratories, Inc.,
186 F.3d 74 (2d Cir. 1999)...................................................................................................3

Charles O. Finley & Co. v. Kuhn,
569 F.2d 527 (7th Cir. 1978) .............................................................................................15

Chicago Professional Sports Ltd. Partnership v. National Basketball Association,
95 F.3d 593 (7th Cir. 1996) ...............................................................................................10

Comcast Corp. v. Behrend,
133 S. Ct. 1426 (2013) .........................................................................................................3

Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) .............................................................................................................4

In re Dewey Ranch Hockey, LLC,
414 B.R. 577 (Bankr. D. Ariz. 2009) ...................................................................................9

Dominguez v. UAL Corp.,
666 F.3d 1359 (D.C. Cir. 2012) .....................................................................................4, 14

Flood v. Kuhn,
407 U.S. 258 (1972) .....................................................................................................16, 17

Henderson Broad. v. Houston Sports Association,
541 F. Supp. 263 (S.D. Tex. 1982) ....................................................................................17


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iii

General Electric Co. v. Joiner,
522 U.S. 136 (1997) .............................................................................................................4

Independent Entertainment Group, Inc. v. National Basketball Association,
853 F. Supp. 333 (C.D. Cal. 1994) ......................................................................................6

K.M.B. Warehouse Distributors, Inc. v. Walker Manufacturing Co.,
61 F.3d 123 (2d Cir. 1995)...................................................................................................3

Laumann v. National Hockey League,
907 F. Supp. 2d 465 (S.D.N.Y. 2012) ............................................................................3, 15

Madison Square Garden v. National Hockey League,
No. 07-cv-8455(LAP), 2007 WL 3254421 (S.D.N.Y. Nov. 2, 2007), aff’d, 270 F.
App’x 56 (2d Cir. 2008).............................................................................................5, 6, 12

Major League Baseball v. Butterworth,
181 F. Supp. 2d 1316, aff’d, Major League Baseball v. Crist, 331 F.3d 1177 (11th
Cir. 2003) ...........................................................................................................................15

Major League Baseball Properties, Inc. v. Salvino, Inc.,
542 F.3d 290 (2d Cir. 2008)...........................................................................4, 5, 10, 11, 12

McCoy v. Major League Baseball,
911 F. Supp. 454 (W.D. Wash. 1995) ..........................................................................15, 17

Meredith Corp. v. SESAC LLC,
No. 09-9177, 2014 WL 812795 (S.D.N.Y. Mar. 3, 2014) .................................................12

Morsani v. Major League Baseball,
79 F. Supp. 2d 1331 (M.D. Fla. 1999) ...............................................................................15

Murray v. National Football League,
1998 WL 205596 (E.D. Pa. 1998) .....................................................................................15

National Basketball Association v. SDC Basketball Club, Inc.,
815 F.2d 562 (9th Cir. 1987) ...............................................................................................9

National Collegiate Athletic Association v. Board of Regents of University of Oklahoma,
468 U.S. 85 (1984) .............................................................................................................11

New Orleans Pelicans Baseball v. Nat’l Ass’n of Prof’l Baseball Leagues,
1994 WL 631144 (E.D. La. 1994) .....................................................................................15

Piazza v. Major League Baseball,
831 F. Supp. 420 (E.D. Pa. 1993) ......................................................................................15
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Polygram Holding, Inc. v. Federal Trade Commission,
416 F.3d 29 (D.C. Cir. 2005) ...............................................................................................6

Race Tires America, Inc., et al. v. Hoosier Racing Tire Corp.,
614 F.3d 57 (3d Cir. 2010)...................................................................................................3

Radovich v. National Football League,
352 U.S. 445 (1957) .......................................................................................................2, 15

Raskin v. Wyatt Co.,
125 F.3d 55(2d Cir. 1997)....................................................................................................5

Rothery Storage & Van Co. v. Atlas Van Lines, Inc.,
792 F.2d 210 (D.C. Cir. 1986) .............................................................................................5

San José v. Office of the Commissioner of Baseball,
2013 WL 5609346 (N.D. Ca. 2013) ............................................................................15, 17

Saybolt v. Schreiber,
407 F.3d 34 (2d Cir. 2005).................................................................................................17

State of New York v. Anheuser-Busch, Inc.,
811 F. Supp. 848 (E.D.N.Y. 1993) ......................................................................................9

Sunbeam Television v. Nielsen Media Research,
711 F.3d 1264 (11th Cir. 2013) .........................................................................................15

Texaco, Inc. v. Dagher,
547 U.S. 1 (2006) .................................................................................................................6

In re Text Messaging Antitrust Litigation,
2014 U.S. LEXIS 68237 (N.D. Ill. 2014) ............................................................................5

Toolson v. New York Yankees, Inc.,
346 U.S. 356 (1953) ...........................................................................................................16

Toolson v. New York Yankees, Inc.,
1953 WL 78316 (1953) ................................................................................................16, 17

Trans Sport, Inc. v. Starter Sportswear, Inc.,
964 F.2d 186 (2d Cir. 1992).................................................................................................9

United States v. Penn-Olin Chemical Co.,
378 U.S. 158 (1964) .............................................................................................................5

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v

United States Football League v. National Football League,
634 F. Supp. 1155 (S.D.N.Y. 1986) ...................................................................................16

Virgin Atlantic Airways Ltd. v. British Airways PLC,
257 F.3d 256 (2d Cir. 2001)...........................................................................................3, 12

Virgin Atlantic Airways Ltd. v. British Airways PLC,
69 F. Supp. 2d 571 (S.D.N.Y. 1999) ..................................................................................14

Wisconsin Interscholastic Athletic Association v. Gannett, Co.,
658 F.3d 614 (7th Cir. 2011) ...............................................................................................8

Statutes

15 U.S.C. § 1294 ............................................................................................................................17

Legislative Materials

Organized Professional Team Sports: Hearings on H.R. 5307, H.R. 5319, H.R. 5383,
H.R. 6876, H.R. 6877, H.R. 8023, and H.R. 8124 before the Antitrust Sub-
Committee of the Senate Judiciary Committee, 85th Congress 101 (1957). .....................17

Organized Professional Team Sports: Hearings on S. 616 and S. 886 before the Sub-
Committee on Antitrust and Monopoly of the Senate Judiciary Committee, 86th
Congress 69 (1959). ...........................................................................................................17

Professional Sports Antitrust Bill-1965: Hearings on S. 950 before the Sub-Committee
on Antitrust and Monopoly of the Senate Judiciary Committee, 89th Congress 160
(1965). ................................................................................................................................17

Other Authorities

Araton, Harvey, Abandon Hope, Almost All Ye Who Enter the NBA Playoffs, N.Y. Times,
May 31, 2014. ....................................................................................................................11

Crawford, Gregory S. and Ali Yurukoglu, The Welfare Effects of Bundling in
Multichannel Television Markets, 102 Am. Econ. Rev. 643 (June 2012) .........................14

Horowitz, Ira, Sports Broadcasting, in Government and the Sports Business 275 (Roger
Noll ed., 1974) ...................................................................................................................16



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vi

TABLE OF ABBREVIATIONS
NHL and MLB Defendants use the following abbreviations herein:
“Bettman ¶__” refers to the Declaration of Commissioner Gary B. Bettman.
“Crumb ¶__” refers to the Declaration of Patrick W. Crumb.
“Feeney ¶__” refers to the Declaration of Reagan E. Feeney.
“Jones ¶__” refers to the Declaration of Lawrence A. Jones.
“Leonsis ¶__” refers to the Declaration of Ted Leonsis.
“Litner ¶__” refers to the Declaration of Jon D. Litner.
“MLB” refers to the Office of the Commissioner of Baseball.
“MLB Br.” refers to the MLB Defendants’ Memorandum of Law in Support of Their
Motion for Summary Judgment.
“MLB SUF” refers to MLB Defendants’ L.R. 56.1 Statement of Undisputed Facts.
“MVPD” refers to Multichannel Video Programming Distributor.
“NHL” refers to the National Hockey League.
“NHL Br.” refers to the NHL Defendants’ Memorandum of Law in Support of Their
Motion for Summary Judgment.
“NHL SUF” refers to the NHL Defendants’ L.R. 56.1 Statement of Undisputed Facts.
“Noll at __” refers to a page or range of pages within the Noll Declaration.
“Opp.” refers to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions
for Summary Judgment.
“Resp. ___ SUF” refers to Plaintiffs’ response to a L.R. 56.1 Statement of Undisputed
Facts.
“RSN” refers to regional sports network.
“Selig ¶__” refers to the Declaration of Commissioner Allan H. “Bud” Selig.
“Tully ¶__” refers to the Declaration of Christopher Tully.
“Wildhack ¶__” refers to the Declaration of John Wildhack.
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PRELIMINARY STATEMENT
The material facts compelling judgment for the NHL and MLB Defendants (the “Leagues”)
are undisputed. Plaintiffs concede most of the pivotal facts and otherwise offer nothing but
inadmissible hearsay, conclusory assertions, and Dr. Noll’s speculation. Lawyers and experts
cannot create factual issues, and Plaintiffs’ failure to adduce facts is fatal to their claims.
Judgment for the Leagues is compelled on multiple, independent grounds.
First, Plaintiffs concede that, as a matter of law, a lawful venture may restrict its members
from competing with the venture product. Plaintiffs do not challenge the legality or benefits of
bundled, League-wide out-of-market (“OOM”) and national network packages; their “but-for”
world depends on such packages continuing. Plaintiffs also admit that games are principally
exhibited by live telecast, every exhibition of a League game necessarily is a joint effort, and,
indeed, that the very same telecasts of League games that RSNs produce and distribute in-market
are pooled as the components of the Leagues’ OOM packages. Thus, whether sold as individual
club packages or as League-wide packages, live telecasts of League games are necessarily
venture products, and the League may lawfully restrict clubs from licensing such telecasts in
competition with the League packages.
Second, Plaintiffs do not dispute, factually, that national broadcasters have required territorial
restraints in their licenses. That makes the restraints “essential” to those venture products and
thus lawful.
Third, Plaintiffs do not genuinely contest the underlying facts of other long-established
business justifications. They concede “same game” broadcast exclusivity is standard and
procompetitive and agree that the Leagues’ telecast territories avoid “overlapping” telecasts of
the “same game”—i.e., preserve exclusivity. Plaintiffs ignore the Second Circuit’s summary
judgment decision in Trans Sport, which upheld territorial restrictions based on many of the
same justifications here, even assuming monopoly power. Plaintiffs also ignore the undisputed
facts and controlling law on preventing free-riding and promoting competitive balance, which
are judicially-established procompetitive rationales for professional sports leagues.
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Each of the foregoing supports summary judgment on a “quick look” basis.
Fourth, even under full rule of reason scrutiny, summary judgment is still required. Plaintiffs
offer no less restrictive alternative, certainly none that meets all of the Leagues’ procompetitive
justifications. This is dispositive under Virgin Atlantic. Plaintiffs also do not dispute they must
prove consumers “market wide” would be better off without the alleged restraints, yet they offer
no evidence to carry that burden. Despite Plaintiffs’ assertions that they are not challenging
same game exclusivity (e.g., a club’s ability to grant an RSN an exclusive license to telecast
games played by that club), Plaintiffs’ entire case rests on the factually unsupported hypothesis
of Dr. Noll that, absent territories, live video exhibitions of every game played by every team
would be sold everywhere by at least two competing sellers—the RSNs (in individual team
packages) and the Leagues (in “bundled” packages of the very same RSN feeds being sold in the
team packages). Dr. Noll’s speculative model eliminates telecast exclusivity for any game and
studiously avoids addressing the testimony from the market participants (Comcast, DirecTV,
FOX, or ESPN) that shows his model flies in the face of market realities. Dr. Noll’s presumption
(that an RSN, which he assumes would distribute nationally, would give its same game
programming to a League to sell as part of a national, League-wide package in direct competition
with that RSN) is absurd and without factual predicate. Indeed, Plaintiffs point to no example in
television entertainment of a network being forced to sell its programming in competition with
itself.
Finally, with respect to the MLB Defendants, Plaintiffs cannot avoid decades of Supreme
Court precedent that exempts “the business of baseball”—including its territorial telecast rules
and structures—from antitrust scrutiny. Nothing in the out-of-context snippets and quotes
Plaintiffs cite alters the legal conclusion that the exemption is an “umbrella over baseball.”
Radovich, 352 U.S. at 450-51 (emphasis added).
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ARGUMENT
I. SUMMARY JUDGMENT FOR THE LEAGUES CAN BE GRANTED ON A
“QUICK LOOK” OR FULL RULE OF REASON ANALYSIS
Plaintiffs misstate the parties’ respective burdens and this Court’s authority to grant summary
judgment, whether under American Needle’s “quick look” paradigm or a full rule of reason
approach. Under a “quick look” analysis, even assuming Plaintiffs have met their initial burden,
Defendants may respond with evidence of procompetitive justifications.
1
If the evidence shows,
without material dispute, the restraints are “essential” to the venture product or otherwise serve
well-recognized procompetitive virtues, the Court may decide as a matter of law that the
restraints are procompetitive. Less restrictive alternatives do not come into play under such an
analysis. Nor does a court “weigh” the undisputed procompetitive virtues.
2
Because Plaintiffs
do not genuinely dispute the facts supporting the procompetitive virtues of the Leagues’ rules,
the Court may grant judgment for the Leagues on just such a “quick look.”
Even when a “quick look” is not applicable, the rule of reason does not automatically require
weighing of harms and benefits, as Plaintiffs suggest (Opp. at 29). Virgin Atlantic held that, in
the face of undisputed facts showing the “procompetitive value” of a restraint, a plaintiff cannot
survive summary judgment unless it proves a less restrictive alternative that meets the same
legitimate objectives of the restraint. Plaintiffs fail to do so here.
Finally, summary judgment must be granted if Plaintiffs have no evidence showing that
consumers have been harmed by the restraints.
3
The Supreme Court confirmed in Comcast
Corp. v. Behrend, 133 S. Ct. 1426, 1433-34 (2013), that a “but-for” analysis is the fundamental

1
Laumann, 907 F. Supp. 2d at 473 n.73; NHL Br. at 8 (“quick look” cases for sports
defendants).
2
E.g., Race Tires of Am., 614 F.3d at 80 (granting summary judgment under “quick look”).
Plaintiffs’ effort to characterize Race Tires as a mere “racing standard” case (Opp. 37) ignores
the relevant holding in that case that a “quick look” does not consider less restrictive alternatives.
3
E.g., Virgin Atlantic, 257 F.3d at 265 (even if plaintiff could meet initial burden of proof based
on market power inferences, it lacked sufficient evidence to carry its “ultimate burden” to prove
“harm to consumers” from alleged conduct; affirming summary judgment); K.M.B. Warehouse
Distrib., at 127; CDC Tech., at 80-81.
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way to define consumer harm allegedly flowing from a restraint. As a matter of law, however,
Plaintiffs cannot simply assume the current structure will continue if one of its underpinnings—
territorially defined exclusive game licensing—is destroyed.
4

Summary judgment for the Leagues is required under these settled standards.
II. PLAINTIFFS FAIL TO RAISE ANY GENUINE ISSUES OF MATERIAL FACT
To avoid summary judgment, “the opposing party must proffer admissible evidence that
‘set[s] forth specific facts’ showing a genuinely disputed factual issue that is material under the
applicable legal principles.” Salvino, 542 F.3d at 310. Plaintiffs do not dispute many of the key
facts put forth by the Leagues.
5
And in the vast majority of instances where Plaintiffs say they
“dispute” a fact, they cite no evidence, argue a proposition not presented, cite inadmissible
hearsay, or throw in patently meritless objections that terms (admitted elsewhere) are suddenly
“vague” or that executives cannot testify to the day-to-day realities of their businesses based on
decades of direct experience.
6
None of this gamesmanship raises any genuine issue of fact.
7

To the extent they cite anything in response to the Leagues’ L.R. 56.1 facts, Plaintiffs rely
almost exclusively on Dr. Noll. Tellingly, however, Dr. Noll does not address any of the moving
declarations and identifies no material fact in dispute, offering only his own speculations.
8
This
raises no genuine issue of fact, as recently found regarding Dr. Noll’s opinions in another

4
Dominguez, 666 F.3d at 1364 (plaintiff could not even show standing, let alone defeat summary
judgment, absent concrete facts showing business model would continue absent restraints).
5
E.g., Resp. MLB SUF 1, 7, 9, 61, 72; Resp. NHL SUF 1, 4.
6
E.g., Resp. MLB SUF 2; Resp. MLB SUF 132 & 174 (citing internet reports on non-party
contracts and video products); Resp. MLB SUF 7 (admitted) and 11 (disputed as “vague”); Resp.
MLB SUF 54 (objecting that Comm. Selig cannot testify to fact of MLB’s efforts “to enhance
competitive balance”). Plaintiffs also fill their brief with hearsay and lawyer assertions
concerning alleged licensing terms of non-party leagues and “aggregators” such as Netflix and
Hulu. E.g., Opp. at nn.18, 23, 25, 27, 30 & 31. There is no testimony or admissible evidence of
any of this, nor the terms and circumstances of the licenses (such as whether networks retain
exclusive “first run” rights on content licensed for later viewing on Hulu or Netflix).
7
Salvino, 542 F. 3d at 314-15 (improper objections and responses raise no “genuine issue”).
8
Though Dr. Noll’s testimony is inadmissible for the reasons set forth herein (among others),
Defendants also reserve the right to raise challenges under Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993), and General Elec. Co. v. Joiner, 522 U.S. 136 (1997).
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antitrust case.
9
As Salvino held, “expert[] opinions that are without factual basis,” “based on
speculation and conjecture,” or “conclusory” are “inappropriate material for consideration on a
motion for summary judgment” and “insufficient to defeat summary judgment.”
10

III. THE LEAGUES HAVE THE RIGHT TO PREVENT MEMBERS FROM
COMPETING WITH THE VENTURE PRODUCT
Plaintiffs do not dispute that the Leagues’ packages are “venture products.” NHL SUF 3.
Nor do they dispute the legitimacy and benefits of League-wide packages. Indeed, Plaintiffs’
sole model of anticompetitive harm necessarily assumes the continuation of League packages of
essentially all games of all teams.
The Leagues are entitled to prevent clubs from licensing the components (the RSN telecasts)
of collective, League venture products in competition with those products. NHL Br. at 10; MLB
Br. at 17-19.
11
Plaintiffs cannot rely on the fiction that game telecasts licensed by clubs are
somehow “separate products” that must be allowed to “compete with the products of [the] joint
venture”—i.e., the League packages. Opp. at 41. Plaintiffs admit no single club can “produce or
exhibit” a single game, much less a “League-wide” product on its own. Resp. MLB SUF 7
(emphasis added); Resp. NHL SUF 4; see also Salvino, 542 F.3d 290, 296. Thus, by Plaintiffs
own admission, clubs are interdependent venturers in the exhibition of games—the opposite of
the competing producers of American Idol, The Voice and the X Factor in Plaintiffs’ example.
Moreover, no game is created or licensed for telecast as an individual game: games are created
and licensed for telecast only in packages as part of a season requiring the participation and
agreement of all clubs and the League interdependently creating a League product.
Plaintiffs also admit the exact same game telecasts produced and distributed in-market by

9
See In re Text Messaging Antitrust Litig., 2014 U.S. LEXIS 68237 (N.D. Ill. 2014) (Dr. Noll’s
opinion could not establish “dispute of material fact based upon the same underlying evidence”).
10
See also Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (“an expert’s report is not a
talisman against summary judgment.”).
11
See, e.g., MSG, 2007 WL 3254421, at *7; Penn-Olin, 378 U.S. at 169; Rothery Storage, 792
F.2d at 214; cf Ass’n of lndep. Television Stations, Inc., 637 F. Supp. at 1306 (“The Supreme
Court has recognized that joint venturers are not required individually to compete with the
product jointly produced.”) (citing Penn-Olin).
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RSNs are pooled by the clubs (royalty-free) to form the Leagues’ OOM packages for out-of-
market distribution. RSN game feeds are thus the components of the Leagues’ cable, satellite
and internet OOM packages. Resp. MLB SUF 7, 147-48. Telecast packages of games played by
any particular club and any bundled package of games among all clubs are, therefore, League
venture products and the Leagues may restrict competition among venture products.
Plaintiffs’ reliance on Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005), is
misplaced. There, the court held that two record companies that formed a joint venture to
produce a “Three Tenors” album could not agree to restrict competition from earlier, non-venture
albums produced by each company individually. Plaintiffs argue that the cases here are like
Polygram. (See Opp. at 42 (“What Defendants may not do here is exclude competition from
other games in order to protect the joint national games, just as the record companies could not
prevent competition from non-venture records by the same artists.”) (emphasis added).)
12
Here,
though, there are no “non-venture” products—i.e., non-League games—restricted by the
challenged restraints. The relevant law here is not Polygram but MSG, IEG, and Dagher. Those
cases recognize the legitimate interests of professional sports leagues in restraining individual
clubs from offering websites in competition with a league platform (MSG, 2007 WL 3254421, at
*6-7, *9) and restraining players from participating even in similar, but non-league, games in
competition with the league (IEG, 853 F. Supp. at 340), as well as the legitimate interests of
venturers in creating mutually exclusive territories in which to sell their venture product and in
setting the prices for that product (Dagher, 547 U.S. at 5). Plaintiffs ignore each of these cases.
IV. THERE IS NO GENUINE DISPUTE THAT THE RESTRAINTS ARE
ESSENTIAL TO THE NATIONAL CONTRACTS AND OOM PACKAGES
American Needle endorsed a “quick look” for antitrust defendants where the restraints at
issue are “essential” to the venture product. Here, there is no genuine dispute that the territorial
structure is essential to, among other things, the national and OOM products that, Plaintiffs
admit, are “venture products.” E.g., Resp. NHL SUF 3. Plaintiffs concede that, since at least the

12
As discussed infra at 11-12, Salvino distinguished the NCAA and BMI cases.
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mid-1980s, national broadcasters have required exclusive national distribution rights in their
contracts and the Leagues formalized local/national territories in response to the requirements of
their buyers. Opp. at 12; Resp. NHL SUF 5; Resp. MLB SUF 130, 131.
13
Dr. Noll’s speculation
that national broadcasters do not “need” national market exclusivity for their telecasts (Opp. at
45-46), is unsupported and beside the point: Plaintiffs do not dispute the procompetitive benefits
of the Leagues’ national and OOM packages. The uncontradicted testimony is that, absent the
restraints, the Leagues’ national and OOM packages either would not exist or would not exist to
their current extent. Jones ¶¶ 11-13, 21; Wildhack ¶¶ 12-20; Crumb ¶¶ 13-15; Litner ¶ 21.
V. THE LEAGUES’ ADDITIONAL PROCOMPETITIVE JUSTIFICATIONS
ALSO ARE UNDISPUTED
A. The Leagues’ Internal Rules Enable the Leagues and Their Clubs to License
Exclusive Telecast Rights
Plaintiffs admit the Leagues’ territorial structures make it possible for multiple licensors—
the home club, the visiting club, and the League—to telecast the “same game” without creating
“overlapping” telecast rights to that game. Resp. MLB SUF 72. The only way the home and
visiting clubs can simultaneously license exclusive telecasts of the “same game” is if each has
rights to license only within largely distinct territories. And the only way to also have a League-
wide package without destroying the “same game” exclusivity for an RSN is if the League-wide
package avoids overlapping distribution of that game with the RSN’s distribution.
14
Since
Plaintiffs concede such exclusive content rights are “typical” in television and “unproblematic
from an antitrust perspective” (Opp. at 4, 45, 49), summary judgment for the Leagues is
appropriate.

13
The testimony in Plaintiffs’ response to MLB SUF 130 discusses RSNs, not national networks,
and therefore raises no genuine issue of fact as to the role of territories in the national contracts.
Moreover, Plaintiffs’ hearsay references to an earlier NHL contract with USA Network are
immaterial; it is what the current networks require that matters.
14
Similarly, if there were no territorial restraints, a game between a Philadelphia club and a St.
Louis club could be licensed for distribution in Chicago by three sellers, namely the two clubs
(in team packages) and the relevant League (in a League-wide package). No telecaster would
have exclusive rights to telecast that game in Chicago.
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Further, Plaintiffs do not dispute the benefits of having both the home and visiting clubs
license telecasts of the same game, or of League-wide packages (which Plaintiffs expressly want
to continue in their “but-for” world).
15
Yet despite their assertions,
16
Plaintiffs are seeking to
eliminate “same game” exclusivity. Indeed, Dr. Noll’s model purports to drive down prices by
expressly assuming multiple licensed sellers of the same game—RSNs (selling packages of
games for individual teams) and the Leagues (selling League-wide packages of all teams). Opp.
at 4.
17
None of this can be squared with “each individual club’s ability to make all of its games
available to only a single, exclusive broadcaster.” Id. Conversely, Dr. Noll offered no model of
competition among only sellers of different, “other games.”
The Leagues’ legitimate interests in fostering multiple, non-overlapping licenses to the “same
game” are undisputed. Summary judgment for the Leagues is therefore compelled under the
well-established law recognizing such exclusive rights incentivize investment and promotion.
18

B. Incentivizing and Balancing Local and National Interests
The Leagues (and the TV Defendants) offered extensive evidence that the Leagues’
challenged rules incentivize local investment and promotion of Major League Baseball and NHL
hockey by the clubs and their local telecasters, as well as by the Leagues’ national telecasters.
19


15
By contrast, in the NFL example Plaintiffs cite (Opp. at 53), there is only one telecast of any
given NFL game and that telecast is licensed by the league, not by the home or visiting club.
16
E.g., Opp. at 22-24, 42, 45, 49; Resp. MLB SUF 118, 123, 137.
17
MLB SUF 72. Plaintiffs similarly obfuscate by repeatedly claiming RSNs are granted
“exclusivity” vis-à-vis “other games” that are telecast. However, no RSN agreement keeps out
“other games.” It is undisputed that “other games” come into the territory licensed to an RSN
through the Leagues’ networks, national telecasts, and OOM packages (under League structures
that allow all of this “other game” distribution without destroying “same game” exclusivity).
18
NHL Br. at 11-14; see also Wis. Interscholastic Athletic Ass’n v. Gannett, Co., 658 F.3d 614,
626 (7th Cir. 2011) (“exclusive contracts are common because they reasonably serve to maintain
or enhance the value of an artistic or intellectual product.”).
19
Bettman ¶¶ 4, 11, 18, 21; Leonsis ¶¶ 3, 5; Weinberg Dep., 61-62 (owners would not make
“substantial investment” in clubs “unless there was some protected territory in which they could
exploit their marks.”); Tortora Dep., 255-56 (“[T]he league created territories from the outset to
allow clubs to exploit a fan base and to cultivate and develop a fan base so that their buildings
are full and people are attending and have an affinity to a team.”); Selig ¶¶ 31-34; see also
Comcast Br. 17-19; DirecTV Br. 17-18.
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In response, Dr. Noll simply hypothesizes that “monopolists” do not need to promote their
products, so there is no reason to grant them an exclusive territory. Noll at 109. Dr. Noll ignores
that, unlike utilities, Leagues do not have a guaranteed body of customers. The Leagues, clubs,
and their telecasters have every right to build and expand their fan base.
Trans Sport, Inc. is directly on point. The Second Circuit held—on summary judgment—
that justifications for exclusive territories applied to an NHL and MLB licensee, even assuming
the licensee had monopoly power and even if “profit-maximizing” was its “ultimate objective.”
20

Further, the Second Circuit held that, even when there is evidence that “[r]estrictions on
intrabrand competition . . . result in higher market prices,” such facts do not establish any
genuine issue of material fact that exclusive territories are anticompetitive.
21
Trans Sport is
consistent with the wide body of case law finding that the mere division of territories by
professional sports leagues without some independent anticompetitive conduct is permissible.
22

Finally, Plaintiffs acknowledge the Leagues’ legitimate interest in balancing fan interest in
their local team with interest in the sport as a whole, but baldly assert without evidence or
authority that they believe “a proper balance” could be achieved without territorial rules. Opp. at
53. Plaintiffs also claim other sports are able to obtain a proper balance without territorial
restraints, but cite no evidence and ignore that many of those sports have broadcast structures

20
964 F. 2d at 188-192 (upholding exclusive territories that eliminated intrabrand competition
because, inter alia, challenged policy incentivized long-term investments in product quality and
image, and prevented free riding) and 189-90 (citing U.S.F.L. v. NFL, 842 F.2d 1335, 1360 (2d
Cir. 1988) for proposition that maximizing rights fees was not anticompetitive).
21
Id.; see also St. of N.Y. v. Anheuser-Busch, Inc., 811 F. Supp. 848, 875 n. 73 (E.D.N.Y. 1993)
(rejecting argument that company with monopoly power may not rely on same procompetitive
justifications for exclusive territories as other businesses; citing Trans Sport for proposition that
“a business possessing monopoly power can validly impose vertical restraints that are intended
primarily to maximize profits”).
22
See, e.g., In re Dewey Ranch Hockey, LLC, 414 B.R. 577, 591 (Bankr. D. Ariz. 2009) (“very
nature of professional sports requires some territorial restrictions” to incentivize and sustain team
ownership); NBA v. SDC Basketball Club, Inc., 815 F.2d 562 (9th Cir. 1987) (mere existence of
league territorial rules does not violate the antitrust laws). For this reason, among others,
Plaintiffs’ Section 2 claims also fail. NHL Br. 22-23; MLB Br. 12, n.22.
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with similar limitations to the Leagues here.
23
Plaintiffs’ failure to develop a record or produce
any evidence on these issues is fatal to their claims. See Salvino, 542 F.3d at 310.
24

C. Preventing Free-Riding
The prevention of free-riding is a well-recognized procompetitive justification for league
restraints on member clubs. NHL Br. at 15-16; MLB Br. at 17-19. Courts recognize that free-
riding occurs within a professional sports league when clubs attempt to profit individually from
the investments and undertakings by the league as a whole. Id. Preventing free-riding is not just
a theoretical justification, but has in fact long been recognized as a rationale for the Leagues’
decisions to grant their national broadcasters exclusivity and for jointly exploiting the national
market on behalf of all clubs through League-wide packages and networks.
25

In response, Plaintiffs neither dispute the facts relied upon by the Leagues nor address the
law on free-riding in the professional sports context.
26
Dr. Noll’s contrary opinions on how he
would define free-riding are irrelevant and cannot create a triable issue of fact.
D. Fostering Competitive Balance
The Supreme Court and the Second Circuit have held that promoting competitive balance

23
Dr. Noll acknowledges the NFL and NBA also have territorial broadcast structures, including
out-of-market packages (NFL Sunday Ticket and NBA League Pass). Noll at 61.
24
Neither MLB nor the NHL has conceded that the restraints at issue here violate the antitrust
laws (Opp. at 8-11, 84), including as interpreted by cases like American Needle, Salvino, and
Trans Sport. The MLB document cited (Opp. at 10) is a memorandum from a non-lawyer giving
his personal view about whether third parties might try to assert antitrust claims. Likewise, a
remark by one MLB club owner concerning the SBA (Opp. at 10 n.10) is irrelevant. Plaintiffs
also argue that a former NHL President interpreted its Constitution as allowing clubs to
broadcast their games OOM. Opp. at 10. But that simply confirms, as the NHL proved in its
opening brief, the restraint at issue flows not from any nefarious conspiracy, but rather from the
territorial limitations national broadcasters bargained for beginning in the mid-1980’s. In any
event, the NHL’s OOM package, which introduces telecasts of other team’s games into each
team’s television territory, is entirely consistent with the President’s interpretation.
25
Bettman Ex. 4, NYI0071046 (1996 NHL decision finding “national cable contract would have
little value if geographically-distant clubs could rob the national broadcaster of exclusivity or
free ride on its efforts.”); Selig ¶ 42 (allowing club to exploit national market “solely for its
individual benefit” is “unfair, harmful” and “incompatible with the venture’s basic compact.”).
26
The Bulls trial decision Plaintiffs cite (Opp. at 39) was reversed. Chicago Prof’l Sports Ltd. v.
NBA, 95 F.3d 593, 599 (7th Cir. 1996).
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also is a valid, procompetitive interest of professional sports leagues.
27
Plaintiffs do not dispute
that the broadcast structures here allow each League to centrally license rights for the equal
benefit of every club, exactly the model Salvino found “precisely tailored” to foster competitive
balance. Plaintiffs offer only Dr. Noll, who thinks competitive balance is not important and that
teams (like restaurants) should just be allowed to fail. Noll at 120. The courts have rejected this
view precisely because professional sports teams (unlike restaurants) are interdependent.
Moreover, team failure is plainly harmful to consumers (fans) of that team and of the game.
28

Plaintiffs suggest revenue sharing can cure competitive imbalance. But Salvino rejected a
similar suggestion (542 F.3d at 333) and Dr. Noll argues, inconsistently, that revenue sharing
“makes competitive balance worse.” Noll at 118. None of this overrides American Needle’s
recognition of the importance of competitive balance, nor the importance of the health, stability,
and fan support of clubs to that balance, which requires more than dollars. Selig ¶¶ 17-24.
Finally, Plaintiffs again cite NCAA and argue that competitive balance was rejected as a
justification in that case. In fact, the Supreme Court held that maintaining a competitive balance
was “legitimate and important,” but found the justification inapplicable in that case where the
NCAA failed to offer “even a colorable basis” for how its plan promoted competitive balance
between schools in different football divisions and some with no football at all. NCAA, 468 U.S.
at 118-19. Here, by contrast, the Leagues’ national and OOM products fall squarely within the
model Salvino found promotes competitive balance. Moreover, as Salvino found: (i) the NCAA
is materially different from the Leagues (because the essence of a professional sports league is
that interdependent members jointly produce a League product whereas colleges have existence
wholly independent of an umbrella organization such as the NCAA) and (ii) the NCAA did not

27
E.g., Am. Needle, 560 U.S. at 204 (“[T]he interest in maintaining a competitive balance . . . is
legitimate and important.”); Salvino, 542 F.3d at 323 (“interdependence and Major League
Baseball’s need for competitive balance among the Clubs distinguish the Clubs from the
individual composers and publishers [in] Broadcast Music”).
28
Outside this case, Dr. Noll apparently agrees competitive balance is important to professional
sports. Araton, Abandon Hope, Almost All Ye Who Enter the NBA Playoffs, N.Y. Times, May
31, 2014, at SP11 (quoting Dr. Noll criticizing NBA for not addressing competitive balance).
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act as a selling agent for any school, but simply used naked restrictions on output to preclude
most games from being broadcast anywhere, including locally.
29
Here, clubs grant local rights to
certain broadcasters and the Leagues license games nationally for the clubs, with virtually all
games telecast everywhere through combined cable, satellite, telco, and Internet distribution.
VI. PLAINTIFFS OFFER NO EFFECTIVE LESS RESTRICTIVE ALTERNATIVE
Plaintiffs’ claims also necessarily fail because they have not offered any less restrictive
alternative that would achieve the Leagues’ legitimate procompetitive justifications. See Virgin
Atlantic, 257 F.3d at 264-65.
30
Other than suggesting that some of the harms of unfettered
competition could be addressed through additional revenue sharing, Plaintiffs do not even
attempt to posit a less restrictive alternative that would address any of the Leagues’ justifications,
much less all of them. Nor do they posit any alternative that would preserve the balance of local
and national interests the Leagues have achieved through the intricate system of rights negotiated
among clubs, with local and national broadcasters, and with the Leagues’ players associations.
VII. PLAINTIFFS FAIL TO OFFER ANY EVIDENCE OF ACTUAL HARM
Plaintiffs’ claim of anticompetitive harm is premised entirely upon Dr. Noll’s opinion “that
the prices the Leagues charge for their [OOM] packages are more than twice what they would be
in a competitive market.” Opp. at 31-32. But that opinion is premised upon the “model”
Dr. Noll constructed based on bald, unsupported assumptions.
First, Dr. Noll assumes RSNs will continue to produce the same number of games in a new
world in which the Leagues will compete with RSNs to sell the exact same telecasts of the exact
same games to the exact same MVPDs. The undisputed testimony is not merely that networks

29
542 F.3d at 325 (distinguishing NCAA and BMI); see also MSG, 2007 WL 3254421, at *7
(distinguishing NCAA); NHL Br. at 19-21.
30
The cases Plaintiffs cite are inapposite. In Capital Imaging, the plaintiff failed to carry its
initial burden; there was no need to consider alternative restraints. 996 F.2d at 547. Similarly,
SESAC did not even reach the issue of procompetitive justifications because the movant there
presented no evidence on those points. 2014 WL 812795 at *34.
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would pay less for non-exclusive rights, but that they may not continue licensing “at all.”
31

Without RSN game telecasts, there is no League OOM package in any format—TV or Internet.
Second, Dr. Noll further assumes that (i) RSNs would continue to provide live game feeds to
the Leagues for inclusion in a League-wide package in a new world in which the League package
is now a competitor to the RSNs, (ii) RSNs would continue to do so for free, and (iii) all teams
would want to participate in such a League package that competes directly with the RSNs. Dr.
Noll offers no factual basis for these assumptions, which defy both logic and the evidence.
32

Third, Dr. Noll assumes MVPDs would carry telecasts of every team’s games everywhere
independent of the League package. The evidence is uncontroverted that, even if some teams
would be able to obtain ubiquitous distribution on their own, other teams would not. Tully ¶ 33;
Feeney ¶ 9; Bettman ¶ 17; Leonsis ¶ 7. Plaintiffs concede RSNs would distribute games only
where there is “sufficient demand” (Opp. at 7), but adduced no data showing “sufficient
demand” for every team everywhere. Put differently, Plaintiffs offer no facts to plausibly show
that, in their “but-for” world, virtually every game of every team would be made available to
fans everywhere in the U.S., as is the case today under the Leagues’ structures.
33

Finally, Dr. Noll’s assumption that the bundled League packages would continue in his

31
Jones ¶ 21 (“If the Fox RSNs were unable to obtain the exclusive rights and protections
described above, it would materially impact the Fox RSNs’ valuation of such rights, or whether
they would continue licensing MLB and NHL game telecasts at all.”); accord Crumb ¶ 15 (DSN
“would have little or no incentive” to pay for and produce almost all games if League package
competed with RSN using RSN’s telecasts) (emphases added); Litner ¶ 21 (competition by
League package with RSN using RSN’s telecasts “would substantially dampen the incentive of
the RSNs to invest in high quality programming” because investment “would be just as likely to
benefit a competitive outlet as it would be to benefit the RSNs.”).
32
Plaintiffs’ response that “the League” can mandate certain conduct ignores that “the League”
is necessarily a creature of agreement. Clubs can vote to alter internal league agreements, and
have done so on telecasting. MLB SUF 87-91. The status quo cannot be presumed or mandated
if a longstanding, core structure such as television territories is eliminated.
33
Dr. Noll also assumes teams would continue to agree to allow every visiting team to license its
own telecast of the same game the home team licenses to its RSN. Noll at 114. But when teams
agree to such reciprocity, they also ensure that the two telecasts will not overlap, and thereby
destroy the same game content exclusivity Plaintiffs concede is standard in the television
industry. Opp. at 4, 45, 49. Dr. Noll, however, assumes all telecasts will overlap everywhere.
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imagined world also is antithetical to the very economic model on which his pricing analysis
purports to be based. While the published model assumes that the economic incentive to offer a
bundled package would disappear in a “but-for” world of unbundled distribution, Dr. Noll’s
model conveniently assumes the exact opposite.
34

Significantly, it is Plaintiffs’ burden to prove up the “model” of their “but-for” world, which
cannot be presumed to simply carry the current licensing structure forward.
35
Dr. Noll’s counter-
factual, unsupported, and implausible “model” cannot and does not satisfy either Plaintiffs’
initial burden to prove an actual, “market-wide,” anticompetitive effect, or Plaintiffs’ ultimate
burden to prove consumer harm flowing from the challenged restraint.
36

The lack of factual support for Plaintiffs’ “but-for” world also compels judgment for failure
to prove any injury-in-fact to these Plaintiffs. MLB Br. at 21. Plaintiffs’ reference to “non-
controversial options that a free market would be expected to offer” (Opp. at 78) is unavailing.
Plaintiffs are challenging a fundamental aspect of a complex television distribution model. A
court cannot presume that the remaining elements of the business model will continue if one
aspect is eliminated. Dominguez, 666 F.3d at 1364. Even if single club packages could be

34
Noll at 101 (“published model assumes that an a la carte package of unbundled channels fully
replaces the bundle.” “I assume that MLB and the NHL continue to offer the bundled package”).
Dr. Noll provides no factual basis for his assumption that the “bundled package” would continue
to be offered if individual club packages of the same game telecasts that comprise the bundle
were offered in competition with the bundle. Dr. Noll offers no analysis of a but-for world that,
like the published model, has no bundled product competing with the a la carte offerings.
Notably, the published model concluded consumers could be worse off in an a la carte world.
Crawford and Yurukoglu, The Welfare Effects of Bundling in Multichannel Television Markets,
102 Am. Econ. Rev. 643, 645-46, 681 (June 2012) (increase in total costs for licensing,
implementation, and marketing in a la carte model, along with prices).
35
Dominguez, 666 F.3d at 1364; MLB Br., 21-23; Bragdon v. Abbott, 524 U.S. 624, 653 (1998)
(opinion based on “absence of contrary evidence, not positive data” raised no triable issue).
36
Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242 (1993) (“[w]hen
an expert opinion is not supported by sufficient facts to validate it in the eyes of the law, or when
indisputable record facts contradict or otherwise render the opinion unreasonable, it cannot
support a jury’s verdict”); Virgin Atl. Airways Ltd. v. British Airways PLC, 69 F. Supp. 2d 571,
578 (S.D.N.Y. 1999) (expert created no triable issue of fact where he cited “no supporting [] data
to convert his theorizing about the harmful aspects of [] bundling into a factually-grounded
opinion”).
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licensed nationally, the availability of such packages would depend on, inter alia, the actions of
particular clubs, RSNs, and MVPDs or other distributors. Plaintiffs ignore Dominguez and the
cases requiring proof that parties are “willing and able” to take assumed action in a “but-for”
world.
37

38

VIII. THE BASEBALL EXEMPTION BARS ANTITRUST CLAIMS CONCERNING
MLB’S VIDEO RULES AND STRUCTURES
Decades of precedent confirms that “the business of baseball,” including its telecast
structures and rules, is exempt from antitrust scrutiny. MLB Br. at 9-12. The territorial structure
for live video exhibition of MLB games Plaintiffs attack lies at the heart of “the business of
baseball.”
Contrary to Plaintiffs’ assertion, the exemption is not limited to labor and employment
issues. Opp. at 80 and n.81.
39
The Supreme Court has said the exemption is “an umbrella over
baseball” that exists as a matter of stare decisis and “positive inaction” by Congress, thereby
protecting the “[v]ast efforts [that] had gone into the development and organization of baseball
since [the Federal Baseball] decision and enormous capital [that] had been invested in reliance
on its permanence.”
40
As the Seventh Circuit put it, “the Supreme Court intended to exempt the
business of baseball, not any particular facet of that business, from the federal antitrust laws.”
41

Plaintiffs’ position also is squarely refuted by the Supreme Court’s decision in Toolson,
which affirmed application of the exemption to dismiss a complaint that alleged injury arising

37
E.g., Sunbeam Television, 71 F.3d at 1273; Murray, 1998 WL 205596, at *8.
38
Plaintiffs also suggest they are claiming harm from monthly cable service fees. Opp. at 78
n.80. The attenuated causation that led to dismissal of the claims of the general television
plaintiffs at the outset of this case (Laumann, 907 F. Supp. 2d at 484) applies with even greater
force to the Out-of-Market Television Plaintiffs now: they have adduced no evidence that
eliminating the territorial video rules for MLB and the NHL would result in lower cable,
satellite, or telco service fees for these Plaintiffs, let alone market-wide.
39
Plaintiffs cite only one non-controlling case, Piazza v. MLB, 831 F. Supp. 420 (E.D. Pa. 1993),
which has been rejected consistently across the country. San José, 2013 WL 5609346, *9-10;
Butterworth, 181 F. Supp. 2d at 1324 n.4; McCoy v. MLB, 911 F. Supp. 454, 457 (W.D. Wash.
1995); New Orleans Pelicans, 1994 WL 631144, *9; Morsani, 79 F. Supp. 2d at 1335 n.12.
40
Radovich, 352 U.S. at 450-51; Flood, 407 U.S. at 283-84.
41
Charles O. Finley & Co., 569 F.2d at 541.
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from, inter alia, territorial broadcast rules nearly identical to those challenged here. MLB Br.
at 11. Plaintiffs wrongly assert that Toolson’s claims were somehow narrowed by the repeal of
certain MLB television rules prior to his appeal. Opp. at 84. None of those changes impacted
Toolson’s claims, which were for past damages. Indeed, Toolson petitioned the Supreme Court
to reverse dismissal of his entire complaint, including his claims concerning MLB’s telecast
restraints.
42
Toolson’s single paragraph, per curiam affirmance confirms that the exemption
applies to “the business of baseball” and does not depend on the particular area at issue.
43

Plaintiffs similarly misread Flood as limiting the exemption to “unique” aspects of baseball.
Opp. at 80. Flood referenced “baseball’s unique characteristics and needs” in that only baseball
(and not football, boxing, or live theater) had developed free from antitrust laws, with
congressional approval. 407 U.S. at 282. Flood did not suggest the exemption is limited to
“unique” aspects of baseball. “The business of baseball” is “unique” because it is exempt.
Plaintiffs’ citation to snippets from MLB’s lobbying of and statements to Congress in the
1950s and ’60s is irrelevant distraction. Plaintiffs ignore that Toolson expressly invited Congress
to take action if it wanted the antitrust laws to apply to “the business of baseball.” 346 U.S. at
356-57. MLB’s decision to lobby Congress post-Toolson to ensure that its exemption was not
revoked and to codify as broad an exemption as possible makes perfect sense and does not reflect
any conclusion that MLB’s broadcast rules were not already exempt under Toolson.
44

In the years between Toolson and Flood, MLB also faced pressure from the Justice
Department and private litigants. Given the threat of litigation, MLB adopted a “safe” approach
and “conducted itself on the question of television and radio broadcasting just as if [it] were

42
After describing his complaint (1953 WL 78316, *9), Toolson sought review on one
comprehensive question: “Are the activities and organization of professional baseball, as set
forth in petitioners complaint, subject to the Federal Anti-Trust Laws?” 1953 WL 78319, *1.
43
One commentator Plaintiffs cite observed that, in the wake of the clearance provided by
Toolson, the major leagues reinstated certain territorial broadcasting rules. Ira Horowitz, Sports
Broadcasting, at 280 (1974).
44
In any event, the Noerr-Pennington doctrine precludes use of MLB’s statements to Congress
to support an antitrust claim. U.S.F.L. v. NFL, 634 F. Supp. 1155, 1179-81 (S.D.N.Y. 1986).
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17

under the antitrust laws.”
45
Plaintiffs’ claim that MLB conceded during this era that the
exemption did not apply to MLB’s television territories (Opp. at 84-85) blatantly misrepresents
the record. For example, in testimony to Congress (selectively quoted by Plaintiffs),
Commissioner Frick explained that, in the wake of Toolson, there was a debate between MLB’s
lawyers, who argued Toolson exempts baseball’s television rules, and the lawyers “of the people
who haul us into court all the time,” who took the opposite view.
46
Such statements only reflect
MLB’s cautious approach during a time of threatened litigation and congressional action.
Similarly, MLB’s involvement in, and the passage of, the Sports Broadcasting Act (“SBA”) does
not negate MLB’s judicial exemption, as Plaintiffs argue. Opp. at 83, 88-89. The SBA states
that it did not affect the “nonapplicability of the antitrust laws” to baseball. 15 U.S.C. § 1294.
47

Finally, there is no basis for Plaintiffs’ claim of judicial estoppel (Opp. at 89) because MLB’s
arguments in Toolson and Flood were not inconsistent with its position here.
48
Plaintiffs’
citation to MLB’s arguments in Flood concerning whether broadcasting rendered “the business

45
Organized Professional Team Sports, 85th Cong. 101, 139 (1957).
46
Organized Professional Team Sports, 86th Cong. 69 (1959). A memorandum Plaintiffs cite
from MLB counsel (Opp. at 85) did not address MLB’s television rules. Counsel only
acknowledged the risk—pre-Flood—of further litigation concerning the exemption and advised
that, if there were antitrust litigation concerning a potential acquisition of a club by CBS, MLB
would ask the parties not to invoke the exemption. Hearings on S. 950, 89th Cong. 160 (1965).
47
Unlike Henderson, this case at its core challenges MLB’s internal broadcasting rules, not a
team’s dealings with third parties. Thus, Henderson was not only wrongly decided (MLB Br. at
12), but is inapposite. The exemption clearly applies to MLB’s internal rules, even if they
impact third parties. See, e.g., San José, 2013 WL 5609346, *5, *10-11 (exemption applied to
internal relocation rules notwithstanding purported impact on city); McCoy, 911 F. Supp. 454
(exemption applied to internal labor practices notwithstanding purported impact on fans and
businesses).
48
Saybolt v. Schreiber, 407 F.3d 34, 45 (2d Cir. 2005). The arguments Plaintiffs cite in Toolson
concerned the impact of broadcasting on the interstate nature of professional baseball. Before
Flood confirmed that the enhanced role of interstate “radio and television” in baseball was
irrelevant to the exemption (407 U.S. at 283), MLB repeatedly had to explain that the
broadcasting aspects of the business of baseball did not “change or affect the inherent character
of a baseball game as a local activity and as a sport.” 1953 WL 78334, at *21-24. In Flood,
MLB argued the exemption applies to MLB’s “evolving internal structure and rules” and urged
the Court to reaffirm Toolson, which it did. MLB’s position in Flood was thus fully consistent
with its position here. MLB mentioned broadcasting in Flood only to refute the plaintiff’s
argument that the SBA limited the exemption. Br., 1972 WL 125826, at *36.
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18

of baseball” interstate in nature is perplexing. In holding the exemption applied, Flood
confirmed both that the business of baseball is interstate and that the question was irrelevant.
49

None of Plaintiffs’ efforts to avoid or narrow the exemption have any basis in law or fact.
Plaintiffs’ claims attacking MLB’s territorial telecast structure and rules are barred by the
antitrust exemption recognized more than 90 years ago and repeatedly reaffirmed since.
CONCLUSION
For the reasons stated above and in their moving papers, the NHL Defendants and MLB
Defendants respectfully request summary judgment dismissing Plaintiffs’ claims with prejudice.
Dated: June 24, 2014 Respectfully submitted,
/s/ Shepard Goldfein
Shepard Goldfein
James A. Keyte
Paul M. Eckles
Matthew M. Martino
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
Four Times Square
New York, New York 10036-6522
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
shepard.goldfein@skadden.com
james.keyte@skadden.com
paul.eckles@skadden.com
matthew.martino@skadden.com
Attorneys for Defendants National Hockey League,
NHL Enterprises, L.P., NHL Interactive
Cyberenterprises, LLC, Chicago Blackhawk Hockey
Team, Inc., Comcast-Spectacor, L.P., Hockey
Western New York LLC, Lemieux Group, L.P.,
Lincoln Hockey LLC, New Jersey Devils LLC, New
York Islanders Hockey Club, L.P. and San Jose
Sharks, LLC


49
Contrary to Plaintiffs’ claim (Opp. at 2), MLB asserted the exemption in its Answer ¶ 25.
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/s/ Bradley I. Ruskin___
Bradley I. Ruskin
Jennifer R. Scullion
Jordan B. Leader
Jill Streja
Jane Wu
Stephen Ahron
Joelle Milov
PROSKAUER ROSE LLP
Eleven Times Square
New York, New York 10036-8299
Telephone: (212) 969-3000
Facsimile: (212) 969-2900
bruskin@proskauer.com
jscullion@proskauer.com
jleader@proskauer.com
jstreja@proskauer.com
jwu@proskauer.com
sahron@proskauer.com
jmilov@proskauer.com


Thomas J. Ostertag
Senior Vice President and General Counsel
Office of the Commissioner of Baseball
245 Park Avenue
New York, New York 10167
Telephone: (212) 931-7855
Facsimile: (212) 949-5653
tom.ostertag@mlb.com

Attorneys for Defendants Office of the
Commissioner of Baseball, Major League Baseball
Enterprises Inc., MLB Advanced Media L.P., MLB
Advanced Media, Inc., Athletics Investment Group,
LLC, The Baseball Club of Seattle, L.L.P., Chicago
Cubs Baseball Club, LLC, Chicago White Sox, Ltd.,
Colorado Rockies Baseball Club, Ltd., The Phillies,
Pittsburgh Baseball, Inc., and San Francisco
Baseball Associates, L.P.


Case 1:12-cv-03704-SAS-MHD Document 311 Filed 06/24/14 Page 26 of 26

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