Opinion
Civ. A. No. 81-2473.
February 28, 1983.
Margot Polivy, Washington, D.C., for plaintiff.
Eben G. Crawford, Cleveland, Ohio, Squire, Sanders Dempsey, Washington, D.C., for defendant.
DECISION AND ORDER
Plaintiff Association for Intercollegiate Athletics for Women ("AIAW") is a non-profit District of Columbia corporation which, for the 12 years of its existence, has done for women's intercollegiate athletic competition what defendant National Collegiate Athletic Association ("NCAA"), a voluntary unincorporated non-profit Kansas-based association, has done for 77 years for the men's. Both organizations are in the business, if it can be so described, of the governance and promotion of inter-institutional sports competition between four-year colleges and universities throughout the United States. AIAW has at all times concerned itself exclusively with all-female sports, and until recently the NCAA has limited its interest to all-male competition. In January, 1981, however, the NCAA membership voted at its annual convention to extend itself into women's athletics in a series of actions — long anticipated and vehemently opposed by AIAW — the effect of which, plaintiff alleges, has been to inflict such injury upon its business that within 18 months it determined to suspend operations altogether pending a decision in this action, filed October 9, 1981, charging the defendant with violations of the Sherman Act, Sections 1-3, 15 U.S.C. § 1-3. Upon the facts found as hereinafter set forth in accordance with Fed.R.Civ.P. 52(a) following trial without jury, and the conclusions of law drawn therefrom, for the reasons stated the Court will enter judgment for defendant.
I.
The NCAA
The NCAA was organized in 1906 and has ever since provided governance, regulation and championship tournaments for men's amateur intercollegiate athletics. It sponsored its first men's collegiate championship event in 1921, and by 1941 its championship program had grown to ten sports, all offered in a single competitive division. In the early 1950's, the NCAA acquired its first football television contract for slightly over $1 million and secured control over the sports telecasts of its member institutions. The member institutions also gave the NCAA power to impose disciplinary sanctions upon institutional transgressors and to require members to curtail the eligibility of individual athletes who violated its rules.
In 1957, the NCAA established two competitive divisions: the "university" division for larger institutions with major programs and the "college" division for smaller institutions. Initially, it offered two national championships in its "college" division and permitted institutions to select either division on a sport-by-sport basis. Sport-by-sport election was eliminated in 1968, and members were thereafter required to designate their participation in either the college or university division on a total program basis. This divisional trend was further refined in 1973 with the establishment of three NCAA national championship competitive divisions: Division I, with championships in 17 sports; Division II, with championships in 12 sports; and Division III, with championships in 10 sports. Members were required to declare their entire men's intercollegiate athletic programs in one of the competitive divisions, with a single deviating sport (other than basketball or football) being permitted. At the same time, the NCAA adopted legislation to enable each division to enact its own by-laws on certain matters other than associational membership, divisional membership (exclusive of criteria), associational committees and bylaw amendment procedure. The 1973 competitive/legislative structure remains essentially unchanged today.
In 1980-81 NCAA's active members were approximately 736 four-year colleges and universities, located in all 50 states and the District of Columbia, and 73 allied athletic conferences. By 1981-82 it had 753 active member institutions and 81 allied conferences. Of the current active member institutions approximately 276 are in Division I, 191 in Division II, and 286 in Division III. The allied conferences are dispersed 45, 19, and 17 in Divisions I, II, and III, respectively.
In 1979-80 and 1980-81 NCAA had total revenues of $20.2 million and $23.3 million of which over 75% in both years was derived from its Division I men's national championship events and the sale of television rights thereto. In addition, NCAA received eight per cent of its members' in-season football television proceeds, amounting to over $2 million each year. Division II national championships and related television rights fees accounted for $855,000 (4.4%) of NCAA's total revenue in 1979-80 and $836,000 (3.6%) in 1980-81. Division III championships and related television rights fees were $257,000 (1.3%) in 1979-80 and $316,000 (1.4%) in 1980-81. Membership dues income was $201,000 in 1979-80 and $206,000 in 1980-81.
The AIAW
In 1966, an organization known as the Division for Girls and Women in Sport ("DGWS") of the American Alliance for Health, Physical Education and Recreation, approached the NCAA to ascertain whether NCAA planned to offer a women's program and, if not, to seek the NCAA's views on its doing so. Told that the NCAA's "jurisdiction and authority" under its organic documents were "limit[ed] to male student-athletes"; that women were prohibited from participating in NCAA events; that a women's national governance organization would "[c]onsequently . . . not be in conflict"; and that NCAA stood ready to offer advisory assistance "in this important endeavor. . .", the DGWS formed the Commission on Intercollegiate Athletics for Women ("CIAW"), the predecessor of AIAW, which commenced operation in September, 1967. In 1971 CIAW was transformed into AIAW.
In its charter year, 1971-72, AIAW had a program of seven national championships for its 278 initial members, and it formalized CIAW's regional organizations into the nine AIAW regions through which qualifying tournaments for AIAW national championships would be conducted. (To select the competitors for its national championships, AIAW sponsors, through affiliates, over 450 state and regional qualifying tournaments annually).
During 1980-81 AIAW had an active membership of 961 colleges and universities (which dropped, however, to 759 in 1981-82), of whom more than 60 per cent were also members of the NCAA. As in the NCAA, AIAW's membership is divided into three divisions in the same descending order of competitive intensity. AIAW members, however, are permitted to select a different competitive division for each sport.
AIAW's operating revenues derive from two primary sources, membership annual dues payments and promotion of its national championship program to spectators, sponsors and television exhibitors. In 1979-80 those sources yielded 82% of AIAW's total revenues, and in 1980-81 slightly over 80% of total revenues of $824,000. Dues, which have historically been AIAW's largest source of income, amounted to $442,000 in 1981-82. Its final financial statement for that year shows expenses of $765,000 and income of $684,000.
The NAIA
The National Association of Intercollegiate Athletics ("NAIA") is yet another intercollegiate athletics governance organization comprised of four-year (predominantly private) institutions, but the athletic programs of most NAIA schools would be classed as Division II or III in the AIAW or the NCAA. NAIA was formed in 1940 as the National Association of Intercollegiate Basketball. In 1952 it changed its name and expanded into other sports. By 1981-82, NAIA had 518 member institutions and offered a program of 12 national championships in a single competitive division and one national championship (football) in two competitive divisions. The preceding year its revenues amounted to about $1.1 million, of which $201,000 came from membership dues.
In addition to the AIAW, the NCAA and the NAIA, two other organizations — The National Little College Athletic Association ("NLCAA") and The National Christian College Athletic Association ("NCCAA") — offer national intercollegiate athletic governance and championships for four-year colleges and universities for both sexes. The NLCAA has approximately 50 members and membership in that organization is open to institutions with enrollments of fewer than 500 male undergraduate students. The NCCAA has approximately 100 members and membership in that organization is open only to four-year Christian institutions willing to subscribe to a "Statement of Faith." The National Junior College Athletic Association governs both men's and women's junior college athletics. The United States Olympic Committee ("USOC") establishes national goals for, and coordinates, both men's and women's non-collegiate athletics.
The Evolution of Women's Governance
During the 1970s there was a dramatic blossoming and growth of women's athletics. In recent years this growth has been accompanied by an equally dramatic shift in the way women's intercollegiate athletics is administered at the institutional level, with more and more colleges and universities transferring women's athletics from their physical education departments into the athletic departments to be placed under the administrative control of a single director of athletics for both sexes. In 1972, only six per cent of the collegiate athletic programs were administered by merged departments. Today, approximately 80% are, and this trend toward integrated, unitary administration of men's and women's athletics at the institutional level is apparently consistent with the prevailing pattern at all levels of amateur athletics in the United States. From the high school and junior college level to the United States Olympic Committee, governance organizations now typically serve both men and women.
From 1972 to 1980, however, the AIAW was the only major national intercollegiate athletic governance organization for women's sports. In 1980-81, the NAIA commenced a women's program, sponsoring nine non-divisional women's national championships, all nine in sports in which AIAW also sponsored championships. In initiating its women's program NAIA required that institutions specifically select divisional membership for each sex. Its women's division now consists almost entirely of schools having formerly competed in the AIAW at the Division II or III level.
The NCAA's Entry Into Women's Governance
The NCAA membership meets in convention in January of each year. Commencing with the January, 1978 Convention, various member institutions began offering measures to enable the NCAA to accommodate women's championships, motivated, in part, by the apprehensions of some that a failure to do so might be regarded as illegal discrimination. A proposal to initiate women's championships in Division II was defeated in January, 1978, however, and in February a canvass of the general membership as to whether NCAA should undertake women's championship programs at all produced an essentially negative response. The following January a similar proposal for women's championships in Division III was rejected.
In October, 1979, the NCAA's governing board, the Council, authorized the appointment of a Special Committee on NCAA Governance, Organization and Services (the "Governance Committee"), directing it to "examine and make recommendations" with respect to the "accommodation" of women's interests within the NCAA. Before the Governance Committee had fairly begun, however, at the 1980 Convention the members of both Divisions II and III reconsidered and approved proposals sponsored by various individual institutions to establish NCAA championships for women in five sports in each division beginning in 1981-82.
In late January and again in June, 1980, the Governance Committee sent the membership reports of its progress and preliminary conclusions, and solicited comment. Then in July, 1980, it held two regional meetings, one in Pittsburgh, another in Denver, to review its work to date. Altogether some 484 institutional representatives attended the meetings, among them AIAW leaders who were outspoken in opposition to the committee's tentative governance proposals for women's programs. In September the NCAA sponsored a meeting attended by 27 chief executive officers of Division I member institutions to discuss the Governance Committee's work.
In the meantime officers of the AIAW were drafting their own legislative proposals to be presented at the 1981 NCAA Convention to rescind, or at least delay, the Division II and Division III women's championships approved the year before, and the AIAW distributed position papers and otherwise lobbied NCAA member institutions to urge enactment of its own proposals and the defeat of other proposals which might be put forth from any quarter to offer additional NCAA championships for women.
Approximately 90% of the NCAA member institutions which would be represented at the 1981 NCAA Convention were also members of the AIAW.
When the Convention opened in Miami on January 12th AIAW partisans were present in force to address the Convention in opposition to the whole concept of NCAA championships for women. Despite an intense AIAW effort, the NCAA membership rejected the proposals to rescind or delay the Division II and III NCAA women's championships. Then, considering separately various member-sponsored proposals, Division I voted to establish Division I championships for women in nine sports; Divisions II and III approved four and three additional women's championships in their respective divisions; and the membership-at-large voted to establish three open women's championships, all to commence in 1981-82.
The Convention also adopted the legislation put forward by the Governance Committee to implement an overall governance plan for women's athletics. These proposals, unrelated to the member-sponsored proposals for divisional championships, had been distributed to the membership in advance of the Convention and, among other things, provided for a specified minimum representation of women on the NCAA Council, the Executive Committee and certain other committees; a championship travel reimbursement plan for the women comparable to the men's; and a four-year transition period during which an institution's women's program could be conducted in accordance with either NCAA rules or any other rules it had previously followed while common rules for male and female athletes were being devised.
The governance plan did not require NCAA member institutions to participate in its women's championships. They remained free to maintain membership in, and to participate in the championships of, the AIAW or any other governance organization for women, but an NCAA institution must keep its men's program in the NCAA in order to retain eligibility for its women's programs, and all-female colleges are neither permitted to belong to the NCAA nor to participate in its women's championships.
The Effect of Competition on AIAW
In 1980-81 62 former members of AIAW, virtually all Division II and III schools, did not renew membership, and 28 of them became members of NAIA's women's division. However, AIAW gained 52 new institutional members that year; defections en masse did not begin until the following year when AIAW assayed its membership attrition as follows:
To To To NCAA/ NCAA NAIA NAIA NEITHER ---- ---- ---- -------
Division I 35 2 2 0 Division II 31 50 11 2 Division III 34 33 6 5 Undesignated 0 1 1 0 -- -- -- -- Total 100(47%) 86(40%) 20(9%) 7(3%)
AIAW's loss of membership dues of non-renewing members totaled $124,000 in 1981-82, of which 49% was attributable to schools taking their women's programs to the NCAA; 38% to NAIA women's division participants; 9% to NCAA men's/NAIA women's program participants and 4% to schools affiliating with neither organization. The most damaging adverse impact fell on AIAW's Division I program which had generated about 50% of AIAW's income from 1980 to 1982, including most of its television revenues.
Changes also occurred in the pattern of participation in women's national collegiate championships in 1981-82. In 1981-82, AIAW offered 41 championships in 19 sports, NAIA offered nine championships in as many sports, and the NCAA offered 29 championships in 12 sports. Many of AIAW's Division I schools — even those retaining membership — chose to participate in the NCAA Division I women's championships in lieu of AIAW's in the same sports. Its championship participation losses in Divisions II and III were about evenly split between NCAA and NAIA.
Prior to AIAW's first national championship television contract in 1975, no women's collegiate event had ever received national exposure. In 1975-76 and 1976-77, AIAW sold the television rights to all its national championships for $25,000. In 1977-78, the NBC television network purchased the television rights to the AIAW's Division I basketball and gymnastics championships, and in 1979-80 it acquired the rights to all AIAW Division I and open national championships, and ESPN, a sports cable network, carried selected Division II and III championships. At its pinnacle in 1980-81, AIAW received $223,000 altogether from the sale of championship television rights, and 12 of its national championships received national television exposure (10 by NBC and 2 by ESPN). In 1981-82, however, none of AIAW's national championship received any television exposure, primarily because NBC and ESPN concluded that participation in the AIAW championships, in terms of both numbers and quality had deteriorated to the point at which they were disinterested. AIAW's 1981-82 television income of $55,000 represented in its entirety deferred payments for 1980-81 events.
AIAW had joined with two commercial firms to co-sponsor major awards recognizing superior achievement by female student-athletes which in the process provided valuable positive public visibility for the AIAW itself. One award was co-sponsored with the Broderick Company ("Broderick") and the other with the Eastman Kodak Company ("Kodak"). The Broderick program was an all-sport recognition award which culminated each year in the presentation of the Broderick Cup to the single outstanding female collegiate athlete in the nation. Broderick paid the costs of the program and also made an annual cash contribution to AIAW. Citing the participation losses AIAW sustained in 1981-82, however, especially in Division I competition, Broderick sought to withdraw from its multi-year agreement with AIAW and, although it relented and went forward with the award, the quality of the 1981-82 AIAW/Broderick program reflected the deterioration in relations between the sponsors.
In July, 1981, representatives of Kodak informed AIAW that it, too, desired to terminate its support of the AIAW/Kodak Women's All-America Basketball Team, giving as reasons AIAW's anticipated loss of Division I basketball participants, conflicting dates of the AIAW and NCAA Division I women's basketball championship, and Kodak's concern at becoming embroiled in the AIAW/NCAA controversy. Kodak advised AIAW that it would honor its existing commitment to AIAW if it insisted, but it declared its intention not to renew the agreement, and although Kodak retained the All-America basketball program under AIAW's auspices in 1981-82, AIAW perceived its performance to be as desultory as Broderick's.
AIAW's efforts to license its logo to commercial entities came to a halt after January, 1981, when prospective licensees expressed pessimism as to AIAW's stature, if not its existence, and the value of the logo vanished as a marketable commodity.
In 1980 AIAW had been asked by the Peoples Republic of China to sponsor a U.S. tour of its national women's basketball team, and AIAW undertook the commitment in anticipation of attracting substantial public attention as well as money. But by the time the tour commenced in November, 1981, several important U.S. teams had withdrawn, and the schedule had to be cut from 8 to 6 games. AIAW was unable to secure any television coverage of the event at all, overestimated revenue projections by approximately $16,000, and had ultimately lost almost $6,000 when the tour ended.
In 1981-82 AIAW experienced other less tangible but nonetheless real negative effects from its loss of members and championship participants: difficulties in securing and holding national championship sites; significant losses of volunteers to staff both its elective and appointive positions; diversions of staff and officer time in efforts to cope with the adjustments necessitated by losses; and the curtailment of championship size and membership services. A majority of AIAW's national championship events, for the first time since 1976-77, failed to produce net revenue, including the Division I basketball and gymnastics championships (normally the most lucrative of AIAW's championships) which failed to generate sufficient receipts to cover expenses.
The AIAW 1981-82 budget, initially approved in May, 1981, with projected expenses of $912,923 against income of $910,250, was subsequently revised to reflect expenses of $764,699 and income of $684,246. Then, foreseeing the erosion of its position as accelerating rather than arresting in 1982-83, particularly at the Division I level, the AIAW leadership directed that membership renewal applications not be distributed for 1982-83. As of June 30, 1982, AIAW ceased business.
II.
Eleemosynary organizations such as the NCAA and the AIAW are not engaged in the sort of trade or commerce the Sherman Act originally contemplated. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 492-93, n. 15, 60 S.Ct. 982, 992, n. 15, 84 L.Ed. 1311 (1940); Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213, n. 7, 79 S.Ct. 705, 710, n. 7, 3 L.Ed.2d 741 (1959); Goldfarb v. Virginia State Bar, 421 U.S. 773, 788-89, n. 17, 95 S.Ct. 2004, 2013-14, n. 17, 44 L.Ed.2d 572 (1975). They exist primarily to enhance the contribution made by amateur athletic competition to the process of higher education as distinguished from realizing maximum return on it as an entertainment commodity. Nevertheless their activities cost money and make money (and enable others to make still more), and it is clear that they are quite capable of imposing considerable restraint upon avowedly commercial enterprise whether or not they are engaged in it. Hennessey v. NCAA, 564 F.2d 1136 (5th Cir. 1977); Board of Regents of the University of Oklahoma v. NCAA, 546 F. Supp. 1276 (W.D.Okla. 1982); Cf. Jones v. NCAA, 392 F. Supp. 295 (D.Mass. 1975). Their benefit of altruism, so to speak, is not exemption from the antitrust laws altogether but, rather, dispensation from the rules requiring a finding of liability from conduct alone without regard to motive. Thus, Section 1 claims are judged under the Rule of Reason even when restraints are patent, National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978), and there must be proof of specific intent as a predicate to a finding of an abuse of monopoly power under Section 2. See Marjorie Webster Junior College, Inc. v. Middle States Association of Colleges and Secondary Schools, Inc., 432 F.2d 650, 654-55 (D.C. Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970).
The Relevant Market
The initial inquiry must be to ascertain the market in which plaintiff and defendant compete. Defendant contends that the attribute of intercollegiate athletic competition that gives it monetary value is its capacity to entertain, a spectacle which audiences will pay to watch, networks to telecast, and advertisers to sponsor. As such, the NCAA argues, intercollegiate athletics compete with all species of spectator events for the public's attention and, viewed thus, obviously command only a miniscule fraction of the entertainment "market." Utilizing data obtained from the well-studied television industry alone (disregarding live attendance statistics), NCAA shows that of the more than $3 billion paid by the three networks for programming in 1981, only a third was spent for sports programming, and that the average American household spent only 10 per cent of its television viewing time watching sports, devoting less than 15 per cent of that to the two most popular intercollegiate sports, football and basketball. All told, therefore, college sports-watching accounted for only about 1 1/2 per cent of television viewers' attention — hardly a significant share of even the TV entertainment market.
Notwithstanding, the NCAA's principal commercial activity in terms of revenues generated is the sale of rights to televise the NCAA's Division I men's basketball championship series and its sale of the in-season football package for its members. In 1981 the NCAA negotiated a three-year contract with CBS for the rights to the NCAA Division I men's basketball championship for a total of about $48 million. And last fall the NCAA, on behalf of its members, sold in-season football television rights to ABC and CBS for $263.5 million payable over the three-year term of the contract.
But, as previously noted, the NCAA and the AIAW are not in show business. As stated by Walter Byers, the NCAA's executive director, when asked what the NCAA does:
"The NCAA was established . . . to initiate, stimulate and improve intercollegiate athletic programs for student-athletes and to provide and develop educational leadership, physical fitness, sports participation as a recreational pursuit and athletic excellence."
Among its myriad activities, he continued, the NCAA formulates, publishes and enforces rules governing play, amateurism, institutional control, academic standards, financial aid, recruiting, and ethical conduct. It sponsors and administers championships in various sports; maintains athletic records and compiles and disseminates statistics; and represents its membership in legislative and regulatory matters affecting intercollegiate athletics at the state and federal levels. It also represents the interests of intercollegiate athletics in other national amateur athletic organizations such as the United States Olympic Committee. It provides financial and administrative support to a number of worthy organizations dedicated to helping children and adolescents. And it provides research grants to scholars in fields such as sports medicine.
And so, exactly, to a lesser extent, does the AIAW for the institutions and female athletes under its jurisdiction. Indeed, the parties have stipulated that each
". . . is an intercollegiate athletic governing organization constituted by four-year colleges and universities to govern, regulate, coordinate, market and promote interinstitutional activities related to intercollegiate athletics and athletic competition among its member institutions. . . ."
and have, thus, defined the business in which they are engaged.
Until recently, the NCAA and the AIAW have not had opportunity to compete as such, for prior to the 1970s, men's and women's athletics generally were administered on a sex-separate basis. At the college level, women's athletics were part of the physical education department (not the intercollegiate athletics department), and the wisdom of the times discouraged intercollegiate sports competition between women.
The intra-institutional mergers of men's and women's athletics programs for administrative purposes in the 1970s did not initially result in integration of inter-institutional governance systems, however, because the nature and quality of male and female athletic endeavor is, and remains, fundamentally different. As Donna Lopiano, the AIAW's immediate past president expressed it:
"Sport is basically a strength, speed and reaction time activity involving propelling a mass through space or overcoming the resistance of a mass. Physiologically and anatomically you cannot compare highly skilled male and female athletes on these parameters because of the inherent biological differences between the sexes. Men are stronger, faster, have better reaction time and more muscle tissue per unit of body mass. That is why athletic teams and competition are sex separate. Women compete against women and men compete against men. Women excel in balance, accuracy and fine motor skill activities while men excel in strength, speed and gross motor skills. Even the same sports are different for men and women. Women's gymnastics has the balance beam and uneven parallel bars which require demonstration of balance, grace and flexibility. The rings, parallel bars, pommel horse and high bar in men's gymnastics are not women's events and require demonstration of upper body strength skills.
"If a spectator's interest in sport is measured by valuing strength, speed, etc., there is no comparison between men's and women's athletics. Although our society's sex sterotypical values are changing, there is little question that the average spectator and the commercial interests catering to his or her desires, still view strength, aggression and competition as unbecoming to the fairer sex or at the very least, not something to go out of one's way to observe on a regular basis.
"Moreover, while those subjective preferences are largely or wholly the cause, it remains a fact that female athletes have not yet developed their sport skills close to their maximum limits. Female athletes are still knocking minutes and feet off national and world records while their male counterparts break records by tenths of seconds and inches. The pool of exceptional female athletes is not even large enough for collegiate teams to guarantee their spectators that every game will provide exciting competition. There is simply no comparison with regard to the men's and women's athletic product. Men's athletics is fully developed and very appealing in a commercial sense. Women's athletics is unrefined, unfinished and in the dark ages by comparison.
"The basic difference between men's and women's athletics created very different development needs at both the institutional and national collegiate athletics organization levels."
It was these basic gender-related differences (coupled, perhaps, with what one of AIAW's former male officials termed the NCAA's "historic disinterest and chauvinism" with respect to women's athletics) which led directly to the formation of the AIAW as a single-sex sports governance organization dedicated exclusively to promoting, regulating and conducting intercollegiate athletic programs for women. It has never governed nor offered programs for male student-athletes and has consistently advocated, and sought to implement, separate-but-equal as the guiding principle upon which the regulatory structure of men's and women's intercollegiate athletics must be determined.
As physiology has divided the sexes on the playing fields, it appears that spectatorship has similarly been divided by the differences in men's and women's sports. The evidence indicates that there is little apparent "true economic rivalry" between them, based upon factors of interchangeability, price sensitivity, and cross-elasticity of demand. See Smithkline Corporation v. Eli Lilly Co., 575 F.2d 1056, 1065 (3rd Cir.), cert. denied 439 U.S. 838, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978). Drawing primarily once again upon information pertinent to the television industry from which empirical data seems to be most readily available, the size and value of the markets for men's and women's intercollegiate athletics in recent years differ substantially — by ratios of approximately 60:1 in earnings and 4:1 in ratings (both favoring the men), in, for example, basketball which is the only common sport broadcast. Moreover, the evidence offered by both parties suggests (without, however, much quantification) that if the behavior of advertisers is an indicator, the demographics of the viewer audience varies in similar kind and degree. Men, and more of them, tend to watch men's intercollegiate sports; women, but fewer of them, watch the women when they watch intercollegiate sports at all.
The Court concludes that, for present purposes at least, the AIAW and the NCAA must be considered to be vertically integrated sellers of governance and promotional services for athletic competition between four-year institutions of higher learning in the United States, and that the relevant sub-markets are the men's and women's intercollegiate sports programs in which their member institutions participate.
The NCAA's Market Power
The NCAA and the AIAW are not the only organizations offering governance and promotion services for intercollegiate athletics. There is also, of course, the National Association of Intercollegiate Athletics.
The average enrollment of NAIA member institutions in 1979-80 was 1,721 students and median enrollment was 1,050. NAIA's 516 1979-80 members included 237 schools (46%) with enrollments of under 1,000, 267 schools (52%) with enrollments of 1,000-10,000, and only 8 schools (1%) with enrollments in excess of 10,000 students. NAIA members are predominantly private colleges (66% in 1979-80), rather than public universities, and its non-divisional (except football) structure serves members whose programs would mostly be classified as Division II or III in the AIAW or the NCAA.
Whether or not the NAIA represents a competitor of more than marginal significance in the women's market, however, the NCAA has taken no serious issue with the testimony of Christine Grant, another former AIAW president and, since 1973, the women's athletic director at the University of Iowa, insofar as the men's market is concerned:
"It is only from NCAA that necessary services and benefits for conduct of a Division I men's intercollegiate athletic program are available to institutions. The only other organization offering men's intercollegiate governance, as opposed to open amateur governance, is the NAIA. NAIA is not a realistic option: it offers neither Division I calibre program nor the direct and indirect financial rewards of NCAA membership. It has no network television contracts and its member schools do not run spectator oriented programs. They are generally smaller schools which share many of the attributes of Division II and III NCAA schools. "At the Division I level, NCAA membership for men's programs is not voluntary — it is a competitive and economic necessity. The University of Iowa typifies this truism. Iowa is a member of the Big Ten Conference, an allied member of the NCAA. The Big Ten Conference pools post-season monies. As an allied member of the NCAA meeting certain qualifications, the Big Ten has an automatic berth in the NCAA Division I men's basketball championship."
* * * * * *
"Were Iowa not a member of the NCAA, it could not be a member of the Big Ten because the NCAA requires that all members of an allied conference be members of the NCAA. Were the Big Ten not an allied member of the NCAA, there would be no automatic berth in the basketball tournament and the members of the Big Ten could not be assured of an annual post-season basketball payday."
"Even for in-season competition, NCAA membership is unavoidable: we could not belong to the Big Ten Conference if we were not NCAA members. That would mean our in-season basketball and football schedules would disappear. Iowa would be precluded from appearing in the Rose Bowl (an NCAA sanctioned bowl game), as it did in 1982; in-season football and basketball television coverage would be non-existent and it is unlikely we could fill our 60,000 seat football stadium. Even were Iowa not a Big Ten institution, if it were not an NCAA member, there would be a real scheduling problem, because the institutions which do belong to the NCAA must play the vast majority of their season's competition against NCAA member schools if they want to be considered for post-season competition. . . .
"The absence of any available alternative to NCAA membership and the substantial economic consequences of non-NCAA membership, combine to give NCAA enormous power over its members."
The Court concludes that Dr. Grant's testimony reflects the reality of the NCAA's position in the universe of intercollegiate athletics for men. For purposes of the Sherman Act, the NCAA must be deemed to possess "sufficient economic power . . . to appreciably restrain free competition in the market" with respect to their governance and promotion, Northern Pacific Railway Co. v. United States, 356 U.S. 1, 6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), and a "not insubstantial" amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 396, 68 S.Ct. 12, 15, 92 L.Ed. 20 (1947). See United States v. Loew's, Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 102, 9 L.Ed.2d 11 (1962); Fortner Enterprises v. U.S. Steel Corporation, 394 U.S. 495, 503, 89 S.Ct. 1252, 1258, 22 L.Ed.2d 495 (1969).
The Section 1 Claim
Although the NCAA is the sole named defendant, plaintiff alleges that it has "conspired" with various of its own officials to anti-competitive ends, and that it is, therefore, in violation of Section 1 of the Sherman Act.
Plaintiff has also alleged a similar violation of Section 3 which prohibits conspiracies in restraint of trade or commerce within or between U.S. Territories and the District of Columbia.
It is, of course, true that all co-conspirators need not be joined to permit any one or more to be held liable for an unlawful conspiracy, Hennessey v. NCAA, 564 F.2d 1136, 1147 (5th Cir. 1977), but it is also true that an entity cannot conspire with itself, and subordinates of an enterprise are generally not regarded as separate entities to establish the concerted action necessary to a Section 1 claim. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 893-94 (3rd Cir. 1981). AIAW cites Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963), and Hennessey, supra, as examples of intra-organizational conspiracies, but in those cases, as well as others, the conspiratorial element is found in the collective action of the members of a cartel — albeit in the collective name — to exclude an outsider from shared advantage or to curb their own competitive impulses in the interest of an ostensible greater common good, the purpose or effect of which is to inhibit competition.
Here, save for one claim, it is the NCAA itself which the AIAW charges with excessively aggressive competitive conduct, so aggressive, in fact, that it is said to have been intended to drive plaintiff from the market altogether. Competition to excess is prohibited by Section 2.
The NCAA's only extra-organizational liaison alleged to be an unreasonable restraint of trade is the contract between NCAA and CBS for the latter's purchase of the rights to televise the NCAA's Division I men's basketball championships beginning in 1982, to which, plaintiff contends, the NCAA "tied" the television rights to its newly-instituted women's championship in the same sport.
Although the precise amount the NCAA realized exclusively from network telecasts of its Division I men's basketball championships in years past is not disclosed by the evidence, the parties agree that television exhibition rights to the NCAA men's Division I basketball championship are among the more valuable television rights to sports events. In 1980-81 NCAA was negotiating a new contract, and all three major U.S. television networks expressed interest. The NCAA narrowed its consideration to two, CBS and NBC, and in March, 1981, entered into a new three-year contract with CBS which will pay NCAA $48 million, approximately $16 million per year, for its men's Division I basketball championships which had been previously carried by NBC. As part of the agreement CBS will also carry five other NCAA Division I championships per year for a rights fee of $65,000 each and will telecast the NCAA's Division I women's basketball championship game each year for an "additional fee" of $125,000 per year.
The evidence shows that the NCAA's formal inquiry of the networks as to their interest in bidding on a multi-year contract for the rights to the men's championships went out in December, 1980. It made no mention whatsoever of women's championships although giving information about a number of details of the "tournament package," including dates and sites, television commercial format, sponsor acceptability, and the like, which were, by implication at least, fixed and non-negotiable. By mid-February, 1981, CBS and NBC had evinced sufficient interest to be given identical lists of some 23 "conditions" to which they were asked to respond in writing. Most of the "conditions" sought each network's position on NCAA specifications for the coverage should it be awarded the contract, such as pretournament specials, announcing crews, equipment-sharing, self-promotion, tapes, delayed broadcasts, cablecasts by others, blackouts, and closed circuit rights to games not broadcast. Two "conditions," however, asked the networks to state the "rights fee" they would be willing to pay for other NCAA events: championships in other men's and women's sports in which they might be interested, and the NCAA Division I women's basketball championship game, i.e., the women's final round.
Both NBC and CBS acknowledged that they felt obliged to respond to all of the NCAA's "conditions" and, consequently, did assign a "rights fee" for the women's championship. But neither was ever expressly told that coverage of the single women's event was a sine qua non of a contract for the men's, and neither regarded its bid for the women's championship as a particularly important aspect of the overall negotiations. The NCAA, of course, insists that they were entirely unrelated.
NBC offered $525,000 total for the women's championship games over a three-year period, while CBS' initial offer was some $300,000 less (later increased at NCAA's insistence to reduce the disparity by half). But the magnitude of the difference between the CBS and NBC offers for the men's championships over the same period ($48 million vs. $45 million), and the many discrepancies between their responses to the multiple other "conditions" proposed by NCAA, suggests strongly that it was the relative attractiveness of CBS' total offer, rather than its willingness to telecast the women's championship games, which induced the NCAA to accept it.
Moreover, NCAA had never before conducted Division I women's championships in any sports, and neither it nor the networks could predict at the time with any certainty which schools would enter its women's basketball competition over the next several years, much less reach the championship game. In the commercial idiom NCAA women's basketball was an untried product, and its market value unknown.
Although a "tying" agreement is unlawful whether its restraint upon commerce operates to depress the price of the tied product to the injury of competitors or inflates its price to the detriment of consumers, see Fortner Enterprises v. U.S. Steel Corporation, 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958), the products must, nevertheless, be in fact tied, at least in the minds of the buyer and seller of the tying product. AIAW concedes that none of its witnesses have personal knowledge that NCAA intended to condition the purchase of the television rights to its men's Division I basketball championships upon its sale of the women's counterpart. The NCAA's executive director, who was its principal negotiator with the networks, expressly denies it. And the circumstances of the negotiations, in context, leads the Court to conclude that the sale of the women's championship was merely collateral to a much larger transaction which would have gone forward with or without the women's event. The evidence may demonstrate, as the AIAW has always contended, that the NCAA is preoccupied with its men's programs and insensitive to the needs of the women, but it does not prove an illegal Section 1 tying agreement.
NBC, as the unsuccessful bidder for the NCAA's product, might have been expected to buy AIAW's alternative but apparently had no interest in it at any price.
The Section 2 Claims
The principal thrust of this action is directed at the NCAA as a unitary monopolist, able, without connivance, by reason of its dominant position as a purveyor of men's intercollegiate athletics to project that power into the women's market to stifle competition there. See Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 845 (9th Cir. 1980). Section 2 declares both monopolies and attempts to monopolize unlawful, and neither Sections 4 nor 16 of the Clayton Act, 15 U.S.C. § 15 and 26, entitling a monopolist's victims to damages and an injunction, respectively, makes distinction between the completed offense and an attempt insofar as the right to relief is concerned.
A monopoly is illegal per se only if it is willfully acquired or maintained, as distinguished from grown or developed as a consequence of a "superior product, business acumen, or historic accident." United States v. Grinnell Corporation, 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966). Otherwise the competitive advantages accruing to a monopoly innocently acquired may be legitimately employed to compete in another market so long as the monopolist refrains from "conduct directed at smothering competition." Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 275 (2nd Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). When a monopolist crosses its own market's boundary to enter another it may not use its leverage in the former to obtain unfair advantage in the latter, Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 611, 73 S.Ct. 872, 881, 97 L.Ed. 1277 (1953), but if the nature of its conduct is ambiguous, then its intent will determine the quality of the conduct as lawful or not. United States v. United States Gypsum Co., 438 U.S. 422, 438-46, 98 S.Ct. 2864, 2874-78, 57 L.Ed.2d 854 (1978).
When the offense charged is an attempt rather than a completed monopoly, the fact of injurious conduct must also be accompanied by proof that it was specifically intended to be so, Times-Picayune Publishing Co. v. United States, supra, 345 U.S. at 626, 73 S.Ct. at 890, and that there exists a "dangerous probability" that the attempt will succeed and a monopoly ensue. Swift Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905); Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc., 601 F.2d 48, 54 (2nd Cir. 1979).
Finally, a competitor who claims to have been the victim of a monopolist's anticompetitive conduct must prove his injury to have resulted from that conduct, and not from the fact of competition alone, Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977), for the purpose of the antitrust laws is and has always been the protection of competition, not competitors. Brown Shoe Co., Inc. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962).
It is undisputed that through the 1979-80 academic year AIAW had the women's intercollegiate athletic market to itself. NAIA's women's program commenced in 1980-81, and the NCAA's in 1981-82. AIAW suspended operations in June, 1982. Thus, the three principal competitors confronted one another in the women's market for only a single year, making a determination of their relative market positions somewhat difficult to ascertain. Nevertheless, certain common statistics relating to at least two of the criteria the parties agree are relevant are available for 1981-82: (1) the AIAW had 960 institutional members, the NCAA 753, and the NAIA 518; and (2) the AIAW offered 41 championships for women in 19 different sports, the NCAA 29 in 12 sports, and the NAIA 9 championships in as many sports. Thus, assuming without deciding that the NCAA could be characterized as a monopolist in the men's market, it clearly did not hold a similar position in the women's. The Court concludes, therefore, that it must treat plaintiff's Section 2 claim as one for attempted monopoly.
The Probability of Success
Although it may not yet possess complete dominion in the women's market, the NCAA is apparently headed that way. AIAW has lost 100 of its institutional members to the NCAA and 86 to the NAIA, but in Division I the losses were 35 and 2, respectively, and Division I has in the past accounted for approximately 50 percent of AIAW's income, and almost all of its television revenues. The participants in AIAW's 1980-81 Division II and III championships who defected the following year were divided about evenly between the NCAA and the NAIA, but in Division I the defectors went mostly to the NCAA even if they retained membership in AIAW. NBC, which had an option to telecast as many of AIAW's Division I championships as it desired through 1982 and had, in fact, paid it more than $190,000 for rights to 10 championships in 1980-81, declined to take any in 1981-82, because it expected the NCAA to draw the best talent. Of the 228 participants in AIAW's 1980-81 Division I basketball championships, only 131 returned in 1981-82. In gymnastics (the other women's sport having the most spectator appeal), only 54 of the 88 1980-81 Division I participants returned the following year. Similar attrition was apparent in every sport in which the NCAA offered a competing championship. Although it cannot be shown that the AIAW's losses are entirely the NCAA's gains, the Court concludes that the evidence demonstrates a likelihood, if present trends continue, that the NCAA will in the foreseeable future exert an influence in the women's market comparable to that it presently possesses in the men's, and that the AIAW has proved the probability of NCAA's success as a monopolist, whether it can be said to be dangerous or not.
The Injurious Conduct
Plaintiff contends that the manner of the NCAA's entry into the women's market was accompanied by predatory economic practices made available to it by its commanding position in the men's, and that NCAA's leverage, and not the comparative merit of its women's programs, explains its immediate and dramatic success.
First, plaintiff asserts that, by offering its women's programs to its institutional members at no increase in dues for those who chose to avail themselves of them, while simultaneously withdrawing per diem payments to the participants in its men's championships and undertaking to reimburse travel expenses for both the male and female championship participants (with a substantial net loss attributable to the women's programs projected as the result), the NCAA was guilty of predatory pricing. Second, plaintiff argues that the optional rules structure implemented by the NCAA for its women's programs, under which participants were to be permitted to adhere to either NCAA rules or the rules of the governance organization under whose auspices they had previously competed for an interim of four years, was intended to and did, in fact, produce chaotic disorder from which only the NCAA could benefit. Third, plaintiff contends that the NCAA's scheduling of some 17 of its 29 women's championships (including 6 of 9 in Division I) in conflict with the dates previously selected by AIAW for its own championships in the same sports was done deliberately to force the participants to choose between events rather than competing in both. Finally, plaintiff accuses the NCAA of tampering with its commercially valuable relationships with the two corporate sponsors of awards to AIAW athletes in years past, Kodak and the Broderick Company.
1. Failure to Raise Dues. When the 1981 NCAA Convention voted to begin its women's programs it was projected that the 1981-82 women's championship program would operate at a substantial deficit, but the governance proposal did not contemplate a dues increase nor did the membership suggest one. However, for a number of years the NCAA had guaranteed both transportation and per diem expenses for participants in its men's championships, most of which also lose money. Historically, the NCAA has used its general funds (derived primarily from profits generated by its Divisions I men's basketball championship and its share of football television revenues) to make up the deficits incurred by its unprofitable men's championships. Dues actually comprise a very small percentage of the NCAA's total income — in recent years less than 1% — and the total income from dues falls far short of the sum needed to finance championships.
The NCAA did vote to increase membership dues at its 1982 Convention, but the increase was unrelated to the cost of the NCAA championship program in general, or the women's program in particular. In fact, the legislation enacted specifically allocates dues income to pay for the direct costs of NCAA publications, convention operations, the establishment of playing rules, and the compilation of statistics.
A NCAA member institution has always been charged a single annual dues payment, the amount of which is determined by its competitive division. (AIAW also charges a flat rate which varies as the division in which it concentrates most of its competition). NCAA members who do not participate in women's championships pay the same dues as members who do; in other words, institutions sponsoring only athletic programs for men pay the same dues as members now sponsoring both. In 1980-81 of the NCAA's total revenue of over $23 million, only $206,000 came from membership dues. By contrast, of the AIAW's income during the same year of $824,000, more than half came from dues.
For 1981-82 the NCAA changed its men's championship proceeds distribution formula to eliminate the universal payment of per diem allowances and permit their payment only when an event generates proceeds in excess of expenses. If anything still remains after payment of per diems, then the transportation reimbursement is expected to be repaid to the NCAA. And if the championship proceeds exceed both — which they seldom do — a 50/50 division of profits is made between the NCAA and the participating teams.
The NCAA says that when the NCAA membership voted to offer women's championships, it decided that as a matter of fairness, if not legal obligation, the transportation expenses of both male and female participants should be guaranteed on an equal basis. The NCAA had ample revenues from other sources to make up the deficits anticipated from its women's championships as it had always done for its unprofitable men's championships. According to the NCAA, the decision not to ask for an increase in dues in 1981-82 was not motivated by a commercial or anti-competitive purpose and was certainly not a controlling factor in the decision of any member to participate in the NCAA women's program in lieu of the AIAW's.
2. Optional Rules Structure. A most fundamental purpose of national intercollegiate athletic governance organizations is, of course, the establishment of a uniform rules structure to ensure that institutions compete on an equal footing, and the NCAA rules have heretofore provided such a common code of conduct. However, the women's program approved at the 1981 Convention provided that for the ensuing four years the eligibility of participants in NCAA women's championships would be judged by either the NCAA rules (which had been written, to be sure, with only men in mind) or by the published rules of any recognized state, conference, regional or national organization of which an institution had been a member as of August 1, 1981, and that the NCAA's enforcement apparatus would not apply to women's programs until 1985. The result, according to plaintiff's witnesses, has been "chaos" with a consequent depressing effect on women's intercollegiate athletics generally.
The NCAA denies that there has been chaos and responds that during the four-year transition period an NCAA member institution wanting to participate in NCAA women's championships may conduct its women's program under either NCAA rules or the rules it had previously applied to its women's program, being required only to comply with the rules it elects annually to follow. After four years, a member may either affiliate its women's program with the NCAA, in which case it must follow only NCAA rules as they then exist, or it may, of course, affiliate its women's program with some other governance organization. The NCAA states that the four-year transition period was implemented to give the NCAA time to legislate, within a common forum and with the full participation of all women's athletics administrators, comparable rules for both male and female student-athletes. It appears that, in 1981-82, 80 per cent of NCAA member institutions elected to apply AIAW rules to their women's programs, 18 per cent chose to apply NCAA rules, and one per cent each chose NAIA rules and conference rules, without any evidence of disruptive confusion.
3. Championship Dates Conflict. The AIAW says that the dates of AIAW national championships are permanently scheduled and have been published in the AIAW Handbook which is distributed to all AIAW members each year. AIAW policy requires that any change of an AIAW championship date receive Executive Board approval and that 18 months' notice of the change be given to the membership. During 1981-82 the dates of 16 of the NCAA's 29 championships happened to conflict with the dates of AIAW championships in the same sport which, says AIAW, the NCAA could have avoided had it wished.
The NCAA responds that many factors, such as "natural" sports seasons, academic and vacation schedules, qualifying rounds, site availability, and weather, constrain the choice of championship dates. Given these constraints and the existence of multiple governance organizations, scheduling conflicts are virtually inevitable. The dates for its own women's championships for 1981-82 were established by a women's sports committee for each sport, subject to the approval of the NCAA Executive Committee which adopted a policy that, to the extent practicable, NCAA women's championships should be scheduled so as not to conflict with AIAW championships. Moreover, even if it were possible to avoid a conflict between the dates of the final championship rounds, it would be extremely difficult to do so in scheduling qualifying events. Conflicting championship dates are common in men's intercollegiate sports, too. The NCAA also says it offered to meet with the AIAW to attempt to minimize date conflicts, but the AIAW declined to discuss the matter.
The dates of 8 of NAIA's 9 women's championships also conflicted with the dates of AIAW championships in the same sport.
4. Interference With Other Commercial Relationships. In December, 1981, NBC advised AIAW that it would not televise any AIAW championships in 1981-82 nor make any more payments under its contract because "it appears that the AIAW will be unable to produce Division I championships of a character which formed the basis for the NBC agreement with AIAW." The preceding September the President of ESPN had written to AIAW advising that ESPN was not interested in covering AIAW championship events in 1981-82 for much the same reason. Both the Broderick Company and Eastman Kodak were released at their request in June, 1982, from long-term agreements with AIAW to cosponsor awards programs. The AIAW charges that the NCAA procured the termination of these relationships.
The NCAA answers that it never sought to interfere with any of AIAW's advantageous relationships, contractual or voluntary. It submits that NBC's decision appears to have been motivated by the fact that most of the "name schools" which had participated in the AIAW Division I basketball tournament in previous years had indicated their intention to participate only in the NCAA tournament in 1982, and that, contrary to the charge, the NCAA's executive director affirmatively encouraged NBC to telecast both the NAIA and the AIAW Division I women's basketball championships. The NCAA also insists that such contacts as it may have had with Broderick and Kodak were unofficial, exploratory, and innocent (and occurred primarily because the principals knew each other socially as well as professionally); that it never even suggested, much less sought to induce, a breach of an existing contractual relationship; and that it has no present relationship of its own with either company. It denies any contact at all with ESPN with respect to its relations with AIAW.
The Court concludes that the evidence as to each of the alleged predatory acts is, at best, equivocal when considered in the abstract without regard to defendant's intent, which, it now appears, becomes dispositive of all Section 2 claims.
Intent to Monopolize
The NCAA contends that its member institutions voted democratically, in convention assembled, to offer championships and governance for women's intercollegiate athletics for a wide variety of reasons. They desired to give themselves the option of having their men's and women's athletic programs governed by a single national association. They sought an alternative philosophy of athletic competition to that advocated by the AIAW. They wanted the opportunity to develop, in a common forum, a unified rules structure for men's and women's intercollegiate athletics. They hoped to establish additional women's championship events in which their athletes would have the opportunity to participate. They strove to offer financial and staff support for male and female athletics on an equal basis. And they extended to NCAA members who were not also AIAW members access to women's championships for the first time. The vote taken at the 1981 Convention was preceded by extensive public discussion of the concept over a period of several years and vigorous debate in the Convention itself, in both of which the AIAW actively participated but did not prevail.
The AIAW counters with the allegation that the NCAA's leadership — its executive director, paid staff, and various influential committee officials — sought to exert control over women's intercollegiate athletics not for the salutary purposes proclaimed but, rather, to acquire a means of controlling their costs which had increased oppressively in the past decade. As indicia of the NCAA leadership's malevolence AIAW points to what it perceives as an abuse of its parliamentary processes at the 1981 Convention in forcing the governance plan through on the vote of a bare majority intimidated by fear of disciplinary sanctions.
As earlier observed at n. 2, approximately 90 percent of the member institutions attending the NCAA's 1981 Convention were also members of AIAW, and adoption of the plan for women's governance — given the intensity of AIAW's opposition — was very much in doubt. One of AIAW's adherents, Swarthmore College, invoked one provision of the NCAA constitution several months in advance of the Convention to request an "official interpretation" from the NCAA officers of another provision to the effect that NCAA's jurisdiction was limited to all-male and mixed teams and did not extend to all-females. Yet a third provision of the constitution required that such "official interpretations" rendered between conventions be sustained by a two-thirds majority vote if challenged at the next convention. Had the NCAA officers answered Swarthmore in the affirmative by "official interpretation," they would have, in effect, ruled the Division II and III by-law votes of the preceding years to offer women's sports, as well as the forthcoming association-wide by-law vote on women's governance, to be ultra vires. A negative response, on the other hand, could be challenged by Swarthmore at the convention where a two-thirds vote to sustain it was doubtful. Perceiving the dilemma the NCAA officers simply failed to give any "official interpretation" at all. As it turned out the 1981 Convention barely approved the governance plan for the women's programs by a simple majority margin which was uncertain to the end.
While the evidence of parliamentary maneuvering may evince the leadership's determination to see the proposal for women's governance adopted, it does not prove that such determination derived from an intent to monopolize. Nor does the balance of the evidence support a conclusion that women's governance was thrust upon a reluctant membership by NCAA's conspiratorial leaders; rather, it indicates that the impetus came from the membership itself to which a somewhat recalcitrant leadership reluctantly acceded. And, although several of plaintiff's witnesses spoke of an atmosphere of fear pervading the Convention proceedings, they offered no direct evidence that any vote by any institution on any measure resulted from apprehension of persecution under the NCAA's enforcement powers. To the contrary, such testimony as was given on personal knowledge showed each institution to have voted as it wished for reasons of conscience, self-interest, or both.
As early as the summer of 1979 the president of an AIAW Division III school, and sympathetic to AIAW, observed to some of his colleagues that institutional presidents seemed to him to be in virtual agreement on the need for common governance rules for male and female student athletes. At the time, however, the NCAA leadership's official preference was to await integration of male and female athletic structures at institutional and conference levels first. In October, 1979, the NCAA appointed its Governance Committee, but shortly after the Governance Committee's first meeting (and while it was yet undecided whether it even should make a favorable recommendation) the delegates representing the members of Divisions II and III voted at the January, 1980, Convention to offer their own women's championships. The chairman of the Governance Committee then promptly wrote the chief executive officers of all of the NCAA's active institutional members to solicit their views. Within the week the AIAW had gotten out its own appeal to the chief executive officers to go on record against it, primarily on the grounds that the unique needs of women's athletics required a governance organization committed solely to women; that the NCAA had never shown itself an "enthusiastic proponent of equal opportunity for women in athletics;" and that the NCAA would not assure an appropriate number of leadership positions for female athletic administrators on its important committees. Even before any details of an NCAA women's program were put forth AIAW revealed its fear that competing championships might "threaten its survival."
For the remainder of 1980 the issue was warmly debated within both organizations and presumably within the individual institutions. In July, 1980, the NCAA conducted two regional meetings of its membership to discuss "preliminary" proposals. A summary of the criticisms of some 484 institutions attending one or both of the meetings prepared for intra-NCAA use discloses that none of the criticisms had to do with any anti-competitive aspects of the proposals or alluded to a desire on the NCAA's part to obtain control of the market for any purpose. Implicit in the tone of the summary was the continued existence of AIAW as a healthy alternative to the NCAA and the NAIA.
The NCAA dispatched a revised plan to member institutions in September, 1980, and conducted additional forums for chief executive officers and female athletics officers throughout the fall. On November 5, 1980, the final version of the plan was published in the form in which it would be presented at the 1981 Convention, and in a December 1st memo to member institutions the NCAA president and secretary-treasurer sought to explain the association's position on a number of issues of specific concern to the AIAW, including, inter alia, whether the governance plan represented an "attempt to take over women's athletics." In answering their own question in the negative they declared that the objective was to provide an entirely voluntary "alternative" to both the AIAW and the NAIA, and that, in fact, the Governance Committee was in favor of AIAW's continued existence to provide its own alternative to the NCAA, "because there are institutions that prefer [its structure and philosophies] . . ." if the AIAW believed in itself and was ". . . willing to test its concepts and ideas against those of other groups and organizations."
The testimony of plaintiff's witnesses confirms what the record of proceedings at the NCAA January, 1981, Convention in Miami documents, namely, that the proposal to extend the association's jurisdiction to women's sports in all divisions was debated at length, openly and on occasion painfully, with the NCAA's motives very much in question throughout.
In summary, the evidence establishes that defendant's governance plan for women's intercollegiate athletics originated with its members rather than its leaders and took shape in public view over more than a year, being ultimately given a form which reflects in large part the influence of plaintiff's open hostility to it in any form. The process by which it actually came into being is the antithesis of the conspiratorial plotting of a would-be monopolist to acquire surreptitious control of a market to control prices or destroy competition. The Court concludes that plaintiff has failed to prove the specific intent necessary to sustain its claim of attempted monopoly.
Injury
Even if defendant's conduct were avowedly anti-competitive in purpose, this record would not support a finding that its effect on plaintiff was the product of anything but direct competition. Two of plaintiff's former presidents who are also directors of women's athletics at Division I institutions (the Universities of Texas and Iowa) described the economic incentives to participation in NCAA's women's championships (i.e., the "free" dues and travel reimbursement) as "irresistible inducements" which the AIAW could not match. They were, however, unable to identify a single institution by name which had succumbed to those inducements while acknowledging that their own institutions had managed to resist them on principle because of their relative affluence. Their three counterparts who were called as defense witnesses (from UCLA, Missouri, and North Carolina State) expressed their institutions' reasons for opting to participate in the NCAA's championships without reference to the allegedly unlawful inducements, viz., the NCAA's superior management and promotional resources; its philosophic emphasis on competitive excellence as distinguished from maximum participation irrespective of ability; its future promise of a uniform rules structure for both sexes; and championship competitions by "conferences" (comprised of institutions of comparable proficiency located in several states) rather than by "state" and "region" in which teams tend to be of disparate ability. Insofar as money was concerned at all they found the fact that male and female athletes would henceforth receive identical subsidies for travel more important than the reimbursement itself.
Finally plaintiff's own evidence suggests that the so-called "irresistible inducements" tendered by the NCAA might be altogether illusory, because the cost of remaining competitive under NCAA recruiting rules, which are considerably more liberal than the AIAW's, will inevitably escalate as each institution spends to the limit to keep up with its sisters.
In summary plaintiff's evidence with respect to the blandishments offered by the NCAA is both imprecise and contradictory, and it does not support a conclusion that the NCAA, in effect, bought defectors from the AIAW with its superior economic resources.
For the foregoing reasons the Court holds that plaintiff has failed to prove its claims against defendant under Sections 1 and 2 of the Sherman Act, 15 U.S.C. § 1-2, and it is, this 28th day of February, 1983,
ORDERED, that judgment be entered for defendant.