No. __-____
IN THE

Supreme Court of the United States
___________
NATIONAL FOOTBALL LEAGUE, ET AL.,
Petitioners,
v.
NINTH INNING, INC., ET AL.,
_____________

Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
_____________
PETITION FOR A WRIT OF CERTIORARI
_____________
Paul D. Clement
Erin E. Murphy
KIRKLAND & ELLIS LLP
1301 Pennsylvania
Ave., NW
Washington, DC 20004
Counsel for DIRECTV
Petitioners

February 7, 2020

Gregg H. Levy
Counsel of Record
Derek Ludwin
David M. Zionts
John S. Playforth
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
glevy@cov.com
(202) 662-6000
Counsel for NFL Petitioners

[Additional Counsel on Inside Cover]

 Melissa Ingalls
Robyn E. Bladow
Tammy A. Tsoumas
Jonathan J. Faria
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071
Aaron M. Panner
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK,
P.L.L.C.
Sumner Square
1615 M Street, NW,
Suite 400
Washington, DC 20036
Counsel for DIRECTV
Petitioners

Beth A. Wilkinson
WILKINSON WALSH LLP
2001 M Street, NW,
10th Floor
Washington, DC 20036
Counsel for NFL
Petitioners

 i
QUESTIONS PRESENTED
The Sherman Act’s rule of reason requires
plaintiffs to allege and prove harm to competition in a
properly defined antitrust market. In the First,
Second, Third, Sixth, and Seventh Circuits,
challenged agreements among joint venture
participants governing the venture’s core activities
are assessed under this full rule of reason. In
contrast, in the decision below, the Ninth Circuit held
that agreements governing the distribution of a
venture’s jointly produced product—in this case, NFL
Football telecasts—could be condemned without full
rule-of-reason review, i.e., without requiring plaintiffs
to establish harm to competition in a properly defined
antitrust market.
The Ninth Circuit compounded the problem by
permitting plaintiffs—who purchased nothing from
the joint venture—to pursue a damages claim against
the venture notwithstanding this Court’s limitation
on indirect purchaser claims in Illinois Brick.
Consistent with rulings of the Third and Eighth
Circuits, but contrary to rulings of the Fourth and
Eleventh Circuits, the Ninth Circuit held that an
antitrust plaintiff may assert a damages claim
against alleged co-conspirators as long as the plaintiff
purchased from a middleman that also participated in
the alleged conspiracy, even if the alleged conspiracy
did not concern the price plaintiffs paid.
The questions presented are:
1. Whether an agreement among the members of a
joint venture on how best to distribute the venture’s

 ii
jointly created core product may be condemned under
the Sherman Act without requiring the plaintiff to
establish that defendants harmed competition in a
properly defined antitrust market?
2. Whether, notwithstanding this Court’s decision
in Illinois Brick, antitrust damages claims may be
brought by indirect purchasers who do not allege that
they paid a price fixed by the alleged conspirators?

 iii
PARTIES TO THE PROCEEDING BELOW AND
RULE 29.6 STATEMENT
Petitioners (Defendants-Appellees below) are the
National Football League; NFL Enterprises, LLC; Arizona Cardinals, Inc.; Atlanta Falcons Football Club
LLC; Baltimore Ravens, LP; Buffalo Bills, Inc.; Panthers Football, LLC; Chicago Bears Football Club,
Inc.; Cincinnati Bengals, Inc.; Cleveland Browns,
LLC; Dallas Cowboys Football Club, Ltd.; Detroit Lions, Inc.; Green Bay Packers, Inc.; Houston NFL
Holdings, LP; Indianapolis Colts, Inc.; Jacksonville
Jaguars, Ltd.; Kansas City Chiefs Football Club, Inc.;
Miami Dolphins, Ltd.; Minnesota Vikings Football
Club, LLC; New England Patriots, LP; New Orleans
Louisiana Saints, LLC; New York Football Giants,
Inc.; New York Jets Football Club, Inc.; Raiders Football Club, LLC; Philadelphia Eagles Football Club,
Inc.; Pittsburgh Steelers Sports, Inc.; San Diego
Chargers Football Co.; San Francisco Forty Niners,
Ltd.; the Rams Football Company, LLC; Buccaneers,
LP; Tennessee Football, Inc.; Washington Football,
Inc.; Football Northwest LLC; Denver Broncos Football Club; DIRECTV, LLC; and DIRECTV Holdings
LLC.
Pursuant to Supreme Court Rule 29.6, Petitioners
disclose the following:
1. The National Football League is an unincorporated association of 32 member clubs and
has its principal executive office at 345 Park
Avenue, New York, New York 10154.

 iv
2. NFL Enterprises LLC is wholly owned by
NFL Ventures, L.P.
3. The 32 member clubs of the National Football
League are as follows:
a. Arizona Cardinals Football Club LLC,
d/b/a Arizona Cardinals;
b. Atlanta Falcons Football Club, LLC, d/b/a
Atlanta Falcons;
c. Baltimore Ravens Limited Partnership,
d/b/a Baltimore Ravens (Baltimore Football Company, LLC is the general
partner);
d. Buffalo Bills, LLC, d/b/a Buffalo Bills;
e. Panthers Football, LLC, d/b/a Carolina
Panthers;
f. The Chicago Bears Football Club, Inc.,
d/b/a Chicago Bears;
g. Cincinnati Bengals, Inc., d/b/a Cincinnati
Bengals;
h. Cleveland Browns Football Company
LLC, d/b/a Cleveland Browns;
i. Dallas Cowboys Football Club, Ltd., d/b/a
Dallas Cowboys (JWJ Corporation is the
general partner);

 v
j. PDB Sports, Ltd. d/b/a Denver Broncos
(Bowlen Sports, Inc. is the general partner);
k. The Detroit Lions, Inc., d/b/a Detroit Lions;
l. Green Bay Packers, Inc., d/b/a Green Bay
Packers;
m. Houston NFL Holdings, L.P., d/b/a Houston Texans (RCM Sports & Leisure, L.P.
is the general partner; Houston NFL
Holdings G.P., L.L.C. is the general partner of RCM Sports);
n. Indianapolis Colts, Inc., d/b/a Indianapolis Colts;
o. Jacksonville Jaguars, LLC, d/b/a Jacksonville Jaguars;
p. Kansas City Chiefs Football Club, Inc.,
d/b/a Kansas City Chiefs;
q. The Los Angeles Rams, LLC, d/b/a Los Angeles Rams;
r. Chargers Football Company, LLC, d/b/a
Los Angeles Chargers;
s. Miami Dolphins, Ltd., d/b/a Miami Dolphins (South Florida Football Associates
LLC is the general partner);

 vi
t. Minnesota Vikings Football, LLC, d/b/a
Minnesota Vikings;
u. New England Patriots LLC, d/b/a New
England Patriots;
v. New Orleans Louisiana Saints, LLC, d/b/a
New Orleans Saints;
w. New York Football Giants, Inc., d/b/a New
York Giants;
x. New York Jets LLC, d/b/a New York Jets;
y. Raiders Football Club, LLC, d/b/a Las Vegas Raiders;
z. Philadelphia Eagles, LLC, d/b/a Philadelphia Eagles;
aa. Pittsburgh Steelers LLC, d/b/a Pittsburgh
Steelers;
bb. Forty Niners Football Company LLC,
d/b/a San Francisco 49ers;
cc. Football Northwest LLC, d/b/a Seattle
Seahawks;
dd. Buccaneers Team LLC, d/b/a Tampa Bay
Buccaneers;
ee. Tennessee Football, Inc., d/b/a Tennessee
Titans (a subsidiary of KSA Industries,
Inc.); and

 vii
ff. Pro-Football, Inc., d/b/a Washington Redskins (a subsidiary of WFI Group, Inc.,
which is a subsidiary of Washington Football, Inc.).
4. DIRECTV, LLC, a California limited liability
company, is a wholly-owned subsidiary of
DIRECTV Holdings LLC.
a. DIRECTV Holdings LLC, a Delaware limited liability company, is a wholly-owned
subsidiary of The DIRECTV Group, Inc.
b. The DIRECTV Group, Inc., a Delaware
corporation, is a wholly-owned subsidiary
of DIRECTV Group Holdings, LLC.
c. DIRECTV Group Holdings, LLC, a Delaware limited liability company, is a
wholly-owned subsidiary of AT&T Inc.
d. AT&T Inc., a Delaware corporation, is a
publicly traded company on the New York
Stock Exchange.
e. There is no one person or group that owns
10% or more of the stock of AT&T Inc.
Other than what is listed above, no Petitioner has
a parent corporation. Other than AT&T Inc., no publicly-held corporation owns more than 10 percent of
any Petitioner’s stock.
Respondents (Plaintiffs-Appellants below) are
Ninth Inning, Inc., 1465 Third Avenue Restaurant

 

Corp, Robert Gary Lippincott, J12, and Michael
Holinko.

ix
TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING BELOW
AND RULE 29.6 STATEMENT........................ iii
TABLE OF AUTHORITIES ...................................... xi
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
STATUTORY PROVISIONS INVOLVED .................1
STATEMENT OF THE CASE ....................................2
REASONS FOR GRANTING THE PETITION .......11
I.

The Court Should Grant Review To
Resolve A Circuit Conflict Regarding The
Antitrust Standards For Joint Ventures. .........14
A. Several courts of appeals have
recognized that antitrust challenges
to a joint venture’s production and
distribution of its joint product must
be subject to full rule-of-reason
analysis. ......................................................14
B. The decision below conflicts with
these decisions and defies this
Court’s precedents. .....................................20
C. The question presented is important
and warrants review now...........................27

 x
II.

The Court Should Grant Review To
Resolve A Circuit Conflict Regarding The
Purported “Co-Conspirator” Exception To
Illinois Brick. .....................................................30

CONCLUSION ..........................................................37
APPENDIX
Appendix A: Court of Appeals Decision
(Aug. 13, 2019). .................................................... 1a
Appendix B: District Court Order on
the NFL Defendants’ Motion to
Dismiss (Redacted) (June 30, 2017). ................. 44a
Appendix C: Court of Appeals Order
Denying Rehearing En Banc (Oct.
10, 2019). .......................................................... 100a
Appendix D: Relevant Statutory
Provisions. ........................................................ 102a
Appendix E: Consolidated Amended
Complaint in In re National Football
League Sunday Ticket Antitrust
Litigation, No. ML 15-02668-BRO
(JEMx) (C.D. Cal. filed June 24,
2016). ................................................................ 108a
Supplemental Appendix: District
Court Order on the NFL Defendants’
Motion to Dismiss (June 30, 2017)
(Filed Under Seal). ........................................... 174a

 xi
TABLE OF AUTHORITIES

Page(s)
Cases
Am. Needle, Inc. v. Nat’l Football League,
560 U.S. 183 (2010) ...................................... passim
Apple Inc. v. Pepper,
139 S. Ct. 1514 (2019) .......................................... 30
In re ATM Fee Antitrust Litig.,
686 F.3d 741 (9th Cir. 2012) ................................ 36
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .............................................. 29
Broad. Music, Inc. v. Columbia Broad. Sys.,
Inc.,
441 U.S. 1 (1979) ............................................ 24, 28
Campos v. Ticketmaster Corp.,
140 F.3d 1166 (8th Cir. 1998) .............................. 35
Chicago Prof’l Sports Ltd. P’ship v. Nat’l
Basketball Ass’n,
95 F.3d 593 (7th Cir. 1996) ................ 14, 15, 22, 23
Cont’l T.V., Inc. v. GTE Sylvania Inc.,
433 U.S. 36 (1977) .................................................. 8
Copperweld Corp. v. Indep. Tube Corp.,
467 U.S. 752 (1984) ................................................ 3

 xii
Deutscher Tennis Bund v. ATP Tour, Inc.,
610 F.3d 820 (3d Cir. 2010) ........................... 18, 19
Dickson v. Microsoft Corp.,
309 F.3d 193 (4th Cir. 2002) .................... 31, 32, 33
Fraser v. Major League Soccer, L.L.C.,
284 F.3d 47 (1st Cir. 2002) ...................... 17, 18, 23
Howard Hess Dental Labs. Inc. v. Dentsply
Int’l, Inc.,
424 F.3d 363 (3d Cir. 2005) ........................... 33, 34
Illinois Brick Co. v. Illinois,
431 U.S. 720 (1977) .................................... 9, 30, 31
Insulate SB, Inc. v. Advanced Finishing
Systems, Inc.,
797 F.3d 538 (8th Cir. 2015) ................................ 35
Kansas v. UtiliCorp United, Inc.,
497 U.S. 199 (1990). ............................................. 31
Kingray, Inc. v. Nat’l Basketball Ass’n, Inc.,
188 F. Supp. 2d 1177 (S.D. Cal. 2002) ................ 22
Laumann v. Nat’l Hockey League,
907 F. Supp. 2d 465 (S.D.N.Y. 2012) ................... 31
Lowell v. Am. Cyanamid Co.,
177 F.3d 1228 (11th Cir. 1999) ...................... 33, 34
Major League Baseball Props., Inc. v.
Salvino, Inc.,
542 F.3d 290 (2d Cir. 2008) ......................... passim

 xiii
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp.,
475 U.S. 574 (1986) .............................................. 28
Med. Ctr. at Elizabeth Place, LLC v.
Atrium Health Sys.,
922 F.3d 713 (6th Cir. 2019) ................................ 19
NCAA v. Bd. of Regents,
468 U.S. 85 (1984) ........................................ passim
Ohio v. Am. Express Co.,
138 S. Ct. 2274 (2018) ...................................... 4, 14
Smith v. Pro Football, Inc.,
593 F.2d 1173 (D.C. Cir. 1978) ........................ 3, 23
Spinelli v. Nat’l Football League,
96 F. Supp. 3d 81 (S.D.N.Y. 2015) ....................... 24
Texaco, Inc. v. Dagher,
547 U.S. 1 (2006) .............................................. 3, 21
U.S. Football League v. Nat’l Football
League,
842 F.2d 1335 (2d Cir. 1988) ................................. 6
United States v. Nat’l Football League,
196 F. Supp. 445 (E.D. Pa. 1961) .......................... 6
Washington v. Nat’l Football League,
880 F. Supp. 2d 1004 (D. Minn. 2012) ................ 24
Statutes
15 U.S.C. § 1291 .......................................................... 7

 xiv
28 U.S.C. § 1254(1) ...................................................... 1
Other Authorities
R. Bork, The Antitrust Paradox (1978) .................. 3, 4

 PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully petition for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the district court (App. 44a-99a (unsealed), 174a-211a (sealed)) is unreported. The Ninth
Circuit’s opinion (App. 1a-43a) is reported at 933 F.3d
1136 (9th Cir. 2019). The Ninth Circuit’s order denying rehearing en banc (App. 100a-101a) is unreported.
JURISDICTION
The Ninth Circuit issued its decision on August 13,
2019. A timely petition for rehearing en banc was denied on October 10, 2019. On December 2, 2019,
Justice Kagan extended the time for filing this petition to February 7, 2020. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent statutory provisions are reproduced
in the appendix to this petition. App. 102a-107a.

 2
STATEMENT OF THE CASE
This antitrust case seeks to overturn arrangements for telecasting NFL Football that have been in
place, and that have served the NFL’s hundreds of
millions of fans, for over 25 years.
Coordination among the members of integrated
joint ventures, including but not limited to professional sports leagues, undeniably can have
procompetitive effects. Without such cooperation, the
joint venture’s product cannot be created or improved,
licensed or distributed, or made more responsive to
consumer demand. That is why this Court has recognized that such agreements to cooperate are both
subject to and “likely to survive the Rule of Reason.”
Am. Needle, Inc. v. Nat’l Football League, 560 U.S.
183, 203 (2010).
Such procompetitive agreements cannot survive
scrutiny under the rule of reason, however, if a court
refuses to apply it. Here, in conflict with decisions of
multiple other courts of appeals, the Ninth Circuit
permitted a challenge to the core activities of a joint
venture—producing and distributing its joint product—to proceed without requiring plaintiffs to satisfy
the ordinary, minimum requirements of a rule-of-reason case, i.e., a properly defined antitrust market and
anticompetitive effects within that market. Moreover,
deepening a different circuit conflict, the court of appeals broadened a purported exception to the direct
purchaser rule of Illinois Brick by allowing indirect
purchasers who do not allege that they paid a price

 3
fixed by the alleged conspirators nevertheless to pursue a damages claim against them. Each of those
holdings warrants this Court’s review.
1. Joint ventures are common throughout the
modern economy. “[A]n important and increasingly
popular form of business organization,” Texaco, Inc. v.
Dagher, 547 U.S. 1, 5 (2006), joint ventures “hold the
promise of increasing a firm’s efficiency and enabling
it to compete more effectively,” Copperweld Corp. v.
Indep. Tube Corp., 467 U.S. 752, 768 (1984). That is
because many products are most efficiently
produced—and some can only be produced—through
the joint activity of multiple “independent centers of
decisionmaking.” Id. at 769.
“Perhaps the leading example” of a business activity that “can only be carried out jointly . . . is league
sports.” NCAA v. Bd. of Regents, 468 U.S. 85, 101
(1984) (quoting R. Bork, The Antitrust Paradox 278
(1978)). NFL Football is illustrative. The NFL and
its 32 member clubs operate as an integrated joint
venture that produces and distributes NFL Football,
a structured series of over 250 professional football
games culminating in the Super Bowl. See App. 124a,
131a, 140a; Am. Needle, 560 U.S. at 202-04. As the
D.C. Circuit recognized decades ago, “[n]o NFL club
can produce this product without agreements and
joint action with every other team.” Smith v. Pro Football, Inc., 593 F.2d 1173, 1179 (D.C. Cir. 1978).
It is not just logistics and the rules of the game on
which the League and its member clubs must agree to
create their joint product and make it viable. “The
fact that NFL teams share an interest in making the

 4
entire league successful and profitable . . . provides a
perfectly sensible justification for making a host of collective decisions.” Am. Needle, 560 U.S. at 202. Take,
for example, the televising of NFL games. The NFL
and its member clubs each own distinct intellectual
property rights—rights that each must agree to license for a game to be televised. The League and its
members thus must reach agreements among themselves about the licensing of their intellectual
property for use in games; that is the only way that
their joint product, NFL Football, can be distributed
to consumers on television. To treat that cooperation
as an antitrust problem—or even a presumptively serious antitrust concern—would deny the reality that
production and distribution of a product like NFL
Football are activities that can only be carried out
jointly. See, e.g., Bork, supra, at 278 (“When a league
of professional lacrosse teams is formed, it would be
pointless to declare their cooperation illegal on the
ground that there are no other professional lacrosse
teams.”).
For precisely that reason, this Court has gone out
of its way to make clear that “[f]ootball teams that
need to cooperate are not trapped by antitrust law.”
Am. Needle, 560 U.S. at 202. “When ‘restraints on
competition are essential if the product is to be available at all,’ per se rules of illegality are inapplicable,
and instead the restraint must be judged according to
the flexible Rule of Reason.” Id. at 203 (quoting
NCAA, 468 U.S. at 101). Under that rule, “the plaintiff has the initial burden to prove that the challenged
restraint has a substantial anticompetitive effect that
harms consumers in the relevant market.” Ohio v.
Am. Express Co., 138 S. Ct. 2274, 2284 (2018).

 5
Moreover, precisely because professional sports
leagues “unquestionably” have “interest[s] that may
well justify a variety of collective decisions made by
the teams,” the Court has emphasized that in this context, not only must the full rule of reason be applied,
but it might be easily determined that the challenged
conduct is lawful under that standard. Am. Needle,
560 U.S. at 203-04. Notably, the Court confirmed
these principles in the specific context of joint licensing by the NFL teams of their separately owned
intellectual property.
2. Plaintiffs in this putative class-action antitrust
litigation demand that the NFL fundamentally
restructure its longstanding arrangements for
telecasting its core venture product—arrangements
that have led to increasing viewership of NFL Football
for over a quarter century.
Most regular-season NFL games are played on
Sunday afternoons. App. 50a, 139a-140a. Those
games, which are broadcast live, attract significant
audiences. App. 50a, 124a, 156a-157a. While many
fans prefer to watch a particular team, consumer demand for each NFL broadcast is not solely
attributable to a single team, a single game, or even a
single season. Instead, demand derives from each
team’s, game’s, and season’s relationship to the joint
venture’s product as a whole. See App. 129a-131a. In
particular, fans’ interest in watching games—especially games not involving their favorite team—
depends on a host of decisions made by the League.
Those decisions involve everything from scheduling to
rules designed to preserve and enhance competitive
balance, i.e., teams of relatively equal on-field

 6
strength. Even a decision as basic as kick-off time is
made by the League, not the participating teams, with
an eye to maximizing the value, quality, and attractiveness to consumers of the overall product.
In furtherance of their collective “interest in making the entire league successful and profitable,” Am.
Needle, 560 U.S. at 202, the clubs long ago agreed to
pool their broadcast rights and to give the NFL authority to license them. That arrangement has served
the League and its fans well, generating dramatic increases in fan interest and viewership, growing
revenues, and fostering competitive balance in very
different and disparate television markets. Congress
enacted a statute nearly 60 years ago to ensure that
professional sports leagues—and the NFL in particular—would be able to do just that. When a district
court enjoined the NFL from licensing the pooled
broadcast rights of the League and its member teams
on the theory that the pooling agreement violated the
antitrust laws, see United States v. Nat’l Football
League, 196 F. Supp. 445 (E.D. Pa. 1961), Congress
reacted swiftly by enacting the Sports Broadcasting
Act (SBA). See generally U.S. Football League v. Nat’l
Football League, 842 F.2d 1335, 1347 (2d Cir. 1988).
Under the SBA:
The antitrust laws . . . shall not apply to any
joint agreement by or among persons engaging
in or conducting the organized professional
team sports of football, baseball, basketball, or
hockey, by which any league of clubs participating in [that] professional [sport] sells or
otherwise transfers all or any part of the rights
of such league’s member clubs in the sponsored

 7
telecasting of the games . . . engaged in or conducted by such clubs.
15 U.S.C. § 1291.
Accordingly, the clubs have transferred their telecasting rights to the NFL through agreements that
are “squarely covered by the SBA.” App. 12a. Pursuant to those agreements, the NFL in turn has entered
into distribution agreements with CBS and FOX to
broadcast Sunday-afternoon regular season games.
See App. 139a-140a. Those broadcast agreements ensure that every Sunday-afternoon NFL game is
available to consumers on free, over-the-air television.
App. 139a-140a. Every Sunday during the NFL season, consumers can choose, without any charge or fee,
from among at least three NFL games, and the NFL’s
broadcast agreements ensure that every fan can
watch, without any charge or fee, every game of his or
her local team(s). App. 49a-51a, 139a-140a.
Under those unquestionably legal broadcast agreements, “the NFL owns the copyright in the telecasts.”
App. 14a. For a quarter century, to provide consumers additional options for viewing NFL Football, the
NFL—as copyright holder—has licensed DIRECTV to
redistribute the telecasts in a package known as “NFL
Sunday Ticket.” App. 136a-137a. That package affords DIRECTV subscribers access to copyrighted
telecasts of Sunday afternoon games that are not
broadcast in their local market (“out-of-market”
games). App. 50a-51a, 141a. Plaintiffs’ novel theory
is that this arrangement, which expands consumer
choice and access to broadcasts of NFL games, is unlawful because it restrains individual teams from

 8
separately distributing broadcasts of their games in
competition with the game broadcasts made available
by the NFL on free, over-the-air network television.
Plaintiffs assert that because the NFL and its member
clubs have expanded consumer access to NFL games
through Sunday Ticket, the antitrust laws now compel them also to distribute their game broadcasts
separately, thus undermining their pre-existing, SBAprotected agreements with broadcast networks.
3. Plaintiffs are commercial entities and individuals who claim to have purchased an NFL Sunday
Ticket subscription from DIRECTV. They assert
claims on behalf of putative classes of Sunday Ticket
subscribers. App. 125a-126a.
Plaintiffs’ consolidated amended complaint challenges two aspects of the Sunday Ticket
arrangements: (i) the agreement among the NFL and
its member clubs to license out-of-market game broadcasts jointly instead of by each club individually; and
(ii) the grant of certain exclusive redistribution rights
to DIRECTV. App. 51a-52a. As to the former, even
though there is no dispute that the NFL obtains the
copyright to the telecasts pursuant to SBA-protected
joint licensing agreements, App. 14a, plaintiffs insist
that the pooling of redistribution rights—to the extent
not protected by the SBA—amounts to an illegal horizontal conspiracy among the NFL and its member
clubs. As to the latter, while this Court has long
treated “exclusive distributorships” as presumptively
procompetitive, see, e.g., Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 53-55 (1977), plaintiffs
maintain that this exclusive distribution agreement

 9
unlawfully forecloses potential competition among telecasts of NFL games.
The district court granted defendants’ motion to
dismiss plaintiffs’ claims with prejudice, holding that
plaintiffs had failed to allege that either aspect of the
Sunday Ticket arrangements harmed competition.
App. 67a-83a. The district court held further that because the NFL offered multiple games for free every
Sunday afternoon, plaintiffs had failed to allege (and
could not plausibly allege) that defendants exercised
market power in any properly defined antitrust market. App. 90a-94a. In particular, the district court
rejected plaintiffs’ assertions that there was a “submarket defined as out-of-market football broadcasts,”
i.e., a market limited to the broadcasts included in the
NFL Sunday Ticket product. App. 93a. It found that
such a market definition would constitute an impermissible “post-hoc narrowing of the relevant market
to cover only those products over which Plaintiffs allege that Defendants have control.” App. 94a.
In addition, the district court applied the direct
purchaser rule of Illinois Brick Co. v. Illinois, 431 U.S.
720 (1977), to hold that plaintiffs, who had not purchased any product or service from the NFL or its
member clubs, lacked standing to assert damages
claims based on the challenged agreement among
those defendants. App. 84a-88a.1

1 In light of its dismissal, the district court denied as moot the
DIRECTV Defendants’ motion to compel arbitration. Those parties reserve their right to renew that motion if necessary.

 10
4. A Ninth Circuit panel reversed.
While the appellate panel referred to this Court’s
admonition in American Needle that agreements in
the context of a joint venture “must be judged according to the flexible Rule of Reason,” Am. Needle, 560
U.S. at 203, see App. 18a, it nonetheless concluded
that this Court’s decision in NCAA excused plaintiffs
from two of the long-established requirements of that
rule.
The panel read NCAA to stand for the proposition
that no legal or practical constraint “requir[es] the
teams and the NFL to cooperate in order to produce”
NFL game telecasts. App. 25a-28a. Accordingly, the
panel (i) held that the Sunday Ticket licensing arrangements could be deemed a “naked” restriction on
output, (ii) excused plaintiffs from their burden to
plead injury to competition, and (iii) held that “plaintiffs were not required to establish a relevant market.”
App. 22a. NCAA, however, did not involve an economically integrated venture that created, licensed, or
distributed a joint venture product. See 468 U.S.
at 118 (“[T]here is no single league or tournament in
which all college football teams compete.”). This is a
critical distinction.
The panel also concluded that plaintiffs—admittedly indirect purchasers with respect to the NFL and
its member clubs—nevertheless could pursue antitrust damages claims against them. App. 30a-35a. To
overcome the Illinois Brick rule against indirect purchaser damages claims, the panel extended a
purported “exception” for plaintiffs who purchased directly from a middleman that had allegedly conspired

 11
to set the price plaintiff had paid; the Ninth Circuit
extended that “exception” to purchasers that challenge agreements not involving price-setting but
instead allegedly reducing output. App. 34a-35a.
Judge N.R. Smith dissented from this portion of the
panel’s opinion; he would have affirmed the district
court’s dismissal of damages claims against the NFL
and its member clubs based on the challenged “horizontal agreement” among them. App. 38a-43a.
REASONS FOR GRANTING THE PETITION
The decision below creates one circuit split and exacerbates another, all to reinstate a lawsuit seeking
to disrupt the settled licensing practices of a joint venture that have benefitted many millions of consumers
for a quarter century.
As this Court made crystal clear in American Needle, the activities of a joint venture in producing and
distributing its core, jointly created product must be
subject to a full rule-of-reason analysis that is quick
to permit and slow to condemn such joint efforts.
Other courts of appeals have so held with respect to
agreements among professional sports leagues and
their member clubs regarding the production and distribution of their games.
Those courts have insisted that such agreements
must not be condemned without full rule-of-reason
scrutiny—not abbreviated forms of analysis that relieve plaintiffs of their burdens to define a viable
antitrust market and identify harm to competition. It
could hardly be otherwise. American Needle held that
full rule-of-reason analysis applies to an agreement to
jointly license separately owned intellectual property

 12
for use on apparel bearing a single team’s logo. No less
demanding standard could apply to joint licensing
agreements involving production and televised distribution of the games themselves—which are
inherently joint undertakings and are the core product that a league and its members join together to
produce.
The decision below breaks sharply from the consensus of the other courts of appeals. According to the
Ninth Circuit, an agreement among the NFL and its
member clubs to jointly license the rights to televise
their jointly produced games is so “naked” a restraint
that plaintiffs may challenge it without even identifying the antitrust market in which that agreement
purportedly harms competition. Other courts of appeals have rejected exactly that argument—and done
so in the context of materially indistinguishable challenges to materially indistinguishable joint ventures.
Making matters worse, the Ninth Circuit reached
that conclusion because it labored under the misapprehension that this Court’s precedent compelled it.
In particular, the court deemed this case “control[led]”
by NCAA—a case that did not involve either an integrated joint venture or the joint licensing of
intellectual property rights. App. 21a. It is little surprise that other circuits have squarely rejected efforts
to extend NCAA to the activities of professional sports
league joint ventures. By embracing plaintiffs’ claim
that NCAA exempts them from the full rule-of-reason
showing that American Needle requires, the Ninth
Circuit has created a clear conflict both with this
Court’s precedent and with decisions of other circuits.

 13
In short, the Ninth Circuit’s decision creates a conflict as to a pure question of law. The Ninth Circuit
has now held that a core activity of a lawful joint venture may be condemned as a naked restraint, without
requiring plaintiffs to satisfy their burden of demonstrating anticompetitive effects in an antitrust
market, while other courts of appeals have held that
a core activity of a lawful joint venture may never be
condemned as a naked restraint and must always be
evaluated under the full rule of reason.
The Ninth Circuit also exacerbated a circuit split
on an issue arising under the direct purchaser rule of
Illinois Brick. Under Illinois Brick and the law of the
Fourth and Eleventh Circuits, plaintiffs would not be
able to recover damages against the NFL or its member clubs based on the horizontal agreement among
them because (i) they purchase nothing from the NFL
and (ii) they do not (and cannot) allege that there is
any agreement between the NFL and DIRECTV as to
the price that the latter unilaterally sets and charges
for Sunday Ticket. Implicitly recognizing this problem, plaintiffs asked the Ninth Circuit to join the
Third and Eighth Circuits in extending a purported
“co-conspirator” exception to Illinois Brick to reach alleged agreements to reduce output rather than to set
the price that the purchaser pays—and the Ninth Circuit acceded to that request.
The decision below not only vastly expands the potential for antitrust liability, but also vastly expands
the universe of defendants who might be forced to pay
treble damages for these purported violations. The
Court should grant certiorari to make clear that the

 14
core activities of a joint venture may not be condemned under the antitrust laws if a plaintiff fails to
satisfy the full rule-of-reason standard and to restore
the rule of Illinois Brick.
I.

The Court Should Grant Review To
Resolve A Circuit Conflict Regarding The
Antitrust Standards For Joint Ventures.
A.

Several courts of appeals have recognized that antitrust challenges to
a joint venture’s production and distribution of its joint product must be
subject to full rule-of-reason analysis.

“When ‘restraints on competition are essential if
the product is to be available at all,’ per se rules of illegality are inapplicable, and instead the restraint
must be judged according to the flexible Rule of Reason.” Am. Needle, 560 U.S. at 203 (citation omitted).
Consistent with that admonition, circuit courts have
repeatedly concluded that the activities of an integrated joint venture like a sports league cannot be
condemned without a full rule-of-reason analysis—including, inter alia, the requirement that a plaintiff
seeking to challenge such an arrangement must establish a properly defined antitrust market and
demonstrate that defendants reduced competition in
that market. See, e.g., Am. Express, 138 S. Ct. at 2284
(articulating rule-of-reason standard).
For instance, the Seventh Circuit so held in a
closely analogous challenge to the NBA’s broadcasting
arrangements. Chicago Prof’l Sports Ltd. P’ship v.
Nat’l Basketball Ass’n, 95 F.3d 593 (7th Cir. 1996)

 15
(“Bulls II”) (Easterbrook, J.). Bulls II addressed NBA
rules for broadcasts on television “superstations” carried on nationwide cable systems. Id. at 595.
Recognizing that the NBA is a joint venture that
“makes professional basketball [and that] only it can
make ‘NBA Basketball’ games,” id. at 599, the Seventh Circuit held that the NBA’s broadcast rules “may
not be condemned without analysis under the full
Rule of Reason,” id. at 600 (emphasis added). That
review, the court of appeals held, includes “an inquiry
into market power and, if there is power, proceeding
to an evaluation of competitive effects.” Id.
The Second Circuit reached the same conclusion in
a case concerning an agreement among Major League
Baseball clubs to jointly license intellectual property
rights. Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290 (2d Cir. 2008). The Second Circuit
began by explaining that MLB, like the NBA and the
NFL, is an integrated joint venture:
The Major League Baseball teams together produce an entertainment product—the “MLB
Entertainment Product”—that consists of approximately 2,400 interrelated, professional
baseball games per year played by the 30 MLB
Clubs, leading to separate playoff games for the
American and National Leagues and culminating each season with the World Series between
the champion Clubs from the two Leagues.
This entertainment product can be produced
only by the Clubs operating together in the
form of a league; it cannot be produced by any
one individual Club, or even a few Clubs.

 16
Id. at 296.
For that reason, the court rejected the antitrust
plaintiff’s request to “dispense with a full rule-of-reason analysis,” and to condemn the MLB Clubs’
agreement under either the per se rule or an abbreviated “quick look” analysis, on the theory that the
agreement effected a “naked” restraint. Id. at 317-18.
As the court explained, “the fact that the MLB Clubs
exist as members of a sports league, and [that] their
interests are interdependent,” “plainly foreclose[s] the
imposition of per se or quick-look liability.” Id. at 323.
Instead, the court held that the antitrust plaintiff
must satisfy the ordinary requirement of establishing
anticompetitive effects within a relevant antitrust
market. Id. at 317; see also id. at 308, 334. The court
ultimately rejected the antitrust plaintiff’s claims because it had “proffered no evidence that the
centralization of licensing . . . caused any actual injury to competition or any evidence that [antitrust
defendants] possessed power in the relevant market.”
Id. at 334.
Then-Judge Sotomayor concurred in the judgment.
She “join[ed] with the majority in concluding that neither a per se nor a quick-look approach is appropriate
here.” Id. at 337 (Sotomayor, J., concurring). In particular, Judge Sotomayor concurred with the
majority’s conclusion that agreements among the
members of a joint venture “should normally be analyzed under a rule of reason, requiring an inquiry into
market power and structure and the actual effects of
any restraints on trade.” Id.

 17
She elaborated that full rule-of-reason analysis
was not required in circumstances where “a joint venture is essentially a sham, offering no reasonable
prospect of any efficiency-enhancing benefit” or where
the challenged restraint “is not reasonably necessary
to achieve . . . the efficiency-enhancing benefits of a
joint venture and serves only as a naked restraint
against competition.” Id. at 338 (citations omitted).
Neither of these situations was present in Salvino,
however. The MLB joint venture was not “so manifestly anticompetitive that it should be considered a
sham cartel.” And its joint licensing was “reasonably
necessary to achieve [antitrust defendants’] efficiency-enhancing purposes.” Id. at 340. Judge
Sotomayor therefore concluded that MLB should have
prevailed as a matter of law because the antitrust
plaintiff had “adduced no evidence of an actual adverse effect on competition as a whole in the relevant
market.” Id. at 341 (internal quotation marks and citation omitted).
The First Circuit likewise has concluded that activities of a lawful joint venture with respect to its core
product could not be condemned without full rule-ofreason analysis. In Fraser v. Major League Soccer,
L.L.C., 284 F.3d 47 (1st Cir. 2002) (Boudin, J.), the
court addressed a challenge to the joint hiring of players by Major League Soccer. The court first noted that
the core product of a sports league—there, MLS Soccer—could be created only jointly, as “individual
sports teams, after all, must collaborate to produce a
product.” Id. at 55. The court held that challenges to
MLS’s integrated salary regime accordingly required
full rule-of-reason scrutiny, under which plaintiffs

 18
“would have to show that MLS exercised significant
market power in a properly defined market, that the
practices in question adversely affected competition in
that market and that on balance the adverse effects
on competition outweighed the competitive benefits.”
Id. at 59. The First Circuit upheld judgment for MLS
because a jury had rejected plaintiffs’ proposed market definition. Id. at 60-61.
The Third Circuit has reached the same conclusion. In Deutscher Tennis Bund v. ATP Tour, Inc., 610
F.3d 820 (3d Cir. 2010), the ATP had established a hierarchy of tennis tournaments, and required topranked players to participate in certain top-tier
events. The organizers of a tournament that had been
downgraded complained that the ATP and its officers
and directors had unlawfully conspired to control and
restrict the supply of top players’ services. Id. at 827.
The court rejected the plaintiff’s attempt to apply abbreviated antitrust scrutiny—despite claims that the
reorganization plan constituted unlawful market allocation—“because for a tennis tour, like other sports
leagues, horizontal restraints on competition are essential if the product is to be available at all.” Id.
at 831 (citation and internal quotation marks omitted); see also id. at 832-33 (rejecting application of
abbreviated scrutiny because “[o]nce a defendant
comes forward with plausible procompetitive justification for the challenged restraint, the ‘quick look’
presumption disappears and the overall reasonableness of the restraint is assessed using a full-scale rule
of reason analysis”). The court therefore concluded
that the alleged restraints must be evaluated under
“the full rule of reason,” and it rejected plaintiffs’
claim because they “did not satisfy their burden of

 19
proving a relevant market.” Id. at 837 & n.15 (emphasis added).
The Sixth Circuit has recognized and applied these
antitrust standards beyond the context of professional
sports. In a case involving a joint venture among
health care providers, the Sixth Circuit construed this
Court’s decision in Dagher to require full rule-of-reason analysis in any challenge to the core activities of
an integrated joint venture. Med. Ctr. at Elizabeth
Place, LLC v. Atrium Health Sys., 922 F.3d 713 (6th
Cir. 2019). The Sixth Circuit outlined “three categories of restraints” involving joint venture participants
that this Court has recognized: “(1) restraints that
are core to the joint venture’s efficiency enhancing
purpose; (2) restraints that are ancillary to the joint
venture’s efficiency enhancing purpose; and (3) restraints that are nakedly unrelated to the purpose of
the joint venture.” Id. at 724-25. The court explained
that antitrust challenges to restraints in the first two
of those categories “should be judged under the rule of
reason.” Id. at 724.
In the case before it, the Sixth Circuit determined
that the challenged conduct was not a “naked” restraint because it could plausibly contribute to the
procompetitive efficiencies of the joint venture, so the
rule of reason applied and required plaintiffs to “show
that the restraint produced anticompetitive effects
within the relevant product and geographic markets.”
Id. at 718 n.1, see id. at 723-31 (citation omitted).

 20
B.

The decision below conflicts with
these decisions and defies this
Court’s precedents.

The Ninth Circuit’s decision in this case conflicts
with those of the First, Second, Third, Sixth, and Seventh Circuits. According to the Ninth Circuit, joint
venture agreements that are necessary for distribution of the venture’s core product—here, NFL
Football—can qualify as “naked” restraints.
App. 22a-23a. The court therefore declined to apply
full rule-of-reason analysis to plaintiffs’ challenge,
concluding that plaintiffs “were not required to establish a relevant market” or harm to competition.
App. 22a. That decision cannot be squared with decisions from other courts rejecting virtually identical
arguments.
1. Central to the Ninth Circuit’s decision to excuse
plaintiffs from establishing harm to competition in a
properly defined antitrust market was its view that
“NCAA controls [its] analysis” because this case and
NCAA address “the same sorts of restrictions.”
App. 21a-22a. In fact, the NCAA itself, and the restrictions with which this Court took issue in NCAA,
are both materially different in critical respects from
the joint venture and agreements challenged here.
The Second and Seventh Circuits so recognized in rejecting exactly the same reasoning that led the Ninth
Circuit astray.
As an initial matter, NCAA did not address an integrated joint venture. Unlike the NFL, the NCAA
was not then engaged in either joint production or
joint licensing; the association did not “act as a selling

 21
agent for any school or for any conference of schools.”
468 U.S. at 113. As this Court explained in Dagher,
for this reason NCAA was an “ancillary restraints”
case in which “courts must determine whether the
nonventure restriction is a naked restraint on trade,
and thus invalid, or one that is ancillary to the legitimate and competitive purposes of the business
association, and thus valid.” Dagher, 547 U.S. at 7
(emphasis added). But “the ancillary restraints doctrine has no application . . . where the business
practice being challenged involves the core activity of
the joint venture itself,” id.—here, the production and
televised distribution of NFL Football.
In addition, the fact that the NCAA was not engaged in joint production or licensing meant that it
was unable to justify the challenged restraints based
on the “procompetitive” effects and “efficiencies” of a
“joint selling arrangement.” NCAA, 468 U.S. at 113.
Here, by contrast, those efficiencies are indisputably
implicated by the challenged agreements; joint licensing of intellectual property by multiple teams and the
NFL is “essential if the product is to be available at
all.” Am. Needle, 560 U.S. at 203 (citation omitted);
see also supra at 5-8; App. 14a-15a (describing joint
selling arrangement).
It is little surprise, then, that the Second and Seventh Circuits rejected the same argument that the
Ninth Circuit embraced here. In Salvino, the antitrust plaintiff argued that “‘NCAA . . . is . . . the
yardstick that should have been used by the [district]
court to evaluate’” MLB’s joint licensing. 542 F.3d
at 323 (quoting plaintiffs’ brief) (alterations in original). The Second Circuit disagreed, finding “the

 22
circumstances in NCAA to be different from those [in
Salvino] in every meaningful respect.” Id. at 323-24;
see also, e.g., id. at 325 (“Whereas the Supreme Court
noted that the NCAA did not act as a selling agent for
those whose product was being sold, precisely the opposite is true of [MLB].”). As it explained, NCAA and
its abbreviated form of antitrust scrutiny have no application to cases that “involve[] an integrated
professional sports league in which the competitors
are not independent but interdependent, competitive
balance among the teams is essential to both the viability of the Clubs and public interest in the sport, and
profit sharing is a legitimate means . . . of maintaining some measure of competitive balance.” Id. at 33132.
The Seventh Circuit also rejected NCAA’s application in Bulls II, emphasizing that “[u]nlike the
colleges and universities that belong to the National
Collegiate Athletic Association, . . . the NBA has no
existence independent of sports.” 95 F.3d at 599. As
Judge Cudahy emphasized in his concurrence, NCAA
“involv[ed] a loose alliance of colleges which had
agreed on price and output restrictions on broadcast
of their football games.” Id. at 601 (Cudahy, J., concurring). “This framework should not be extended to
the more highly integrated and economically unitary
NBA.” Id.; see also Kingray, Inc. v. Nat’l Basketball
Ass’n, Inc., 188 F. Supp. 2d 1177, 1195 (S.D. Cal. 2002)
(dismissing challenge to NBA’s version of Sunday
Ticket).
In sum, “[e]xcept for the fact of revenue sharing,
none of the factors emphasized by the Supreme Court

 23
in NCAA finds even a superficial parallel in the present case.” Salvino, 542 F.3d at 325. The challenged
agreement in NCAA was deemed a “naked” restraint
because it was a direct output limitation, involving a
“loose alliance” of colleges in dozens of football conferences, unrelated to any joint licensing arrangements
and therefore unsupported by potential procompetitive effects. NCAA, 468 U.S. at 99, 104-15; Bulls II,
95 F.3d at 601 (Cudahy, J., concurring).
2. The Ninth Circuit departed just as fundamentally from the decisions of this Court and its sister
circuits in declaring an absence of “any binding precedent requiring the teams and the NFL to cooperate
in order to produce the telecasts.” App. 25a. That
premise conflicts directly with this Court’s recognition
that “NFL teams . . . must cooperate in the production
and scheduling of games.” Am. Needle, 560 U.S.
at 202 (emphasis added). Every appellate court that
had previously considered the question reached the
same conclusion, recognizing that professional sports
leagues in general—and the NFL in particular—are
integrated joint ventures whose members must cooperate in order to produce their joint product. As the
D.C. Circuit explained, “[t]he [NFL] clubs operate basically as a joint venture in producing an
entertainment product—football games and telecasts.
No NFL club can produce this product without agreements and joint action with every other team.” Smith,
593 F.2d at 1179 (emphases added); see also Salvino,
542 F.3d at 296; Fraser, 284 F.3d at 55; Bulls II, 95
F.3d at 599.
That consensus is plainly correct, as no “binding
precedent” is needed to confirm the obvious conclusion

 24
that it is impossible to produce an NFL telecast
without the participation and consent of at least the
two competing teams and the NFL itself. Agreement
between teams is required because both teams must
compete to create the game. Their cooperation with
the NFL is required because no competition can be an
“NFL game”—with, for example, attendant impact on
NFL standings and NFL playoff eligibility—unless it
is played as part of the NFL schedule, using NFL
branding, pursuant to NFL rules, with NFL referees,
and with players allocated under league-wide,
collectively-bargained terms.
Moreover, no game telecast could be distributed
without the consent of both participating teams and
the NFL to use their respective trademarks. See Spinelli v. Nat’l Football League, 96 F. Supp. 3d 81, 115
(S.D.N.Y. 2015) (“[T]he majority of photos at issue
here are ‘collectively owned’ because they contain the
trademarks of the NFL and at least one NFL Club, or
the trademarks of more than one NFL Club, and thus
neither the NFL nor any individual NFL Club alone
could license these photos.”); Washington v. Nat’l
Football League, 880 F. Supp. 2d 1004, 1005-07 (D.
Minn. 2012) (same for historical NFL game footage);
see also Broad. Music, Inc. v. Columbia Broad. Sys.,
Inc., 441 U.S. 1, 23 (1979) (blanket license distributed
by venture “is quite different from anything any individual owner could issue”).2

2 The requirement that multiple teams and the NFL participate
in the on-field competition and consent to the use of their respective trademarks makes this an even easier case than American
Needle, which involved joint licensing solely of “separately owned
intellectual property.” 560 U.S. at 201 (emphasis added). Even

 25
Congress recognized all this in enacting the SBA,
which permits professional sports leagues like the
NFL to market and distribute their joint product via
“sponsored telecasts” without antitrust concerns. The
Ninth Circuit essentially used the SBA—which had
been enacted as a shield against antitrust liability—
as a sword against the League, reasoning that because
distribution by subscription did not constitute “sponsored telecasts,” the challenged agreements here
could be condemned without full rule-of-reason scrutiny. App. 17a, 21a-23a. That analysis is deeply
flawed.
Even if distribution by subscription does not come
within the express protection of the SBA, Congress’
recognition and express sanction of the League’s essential role in marketing the broadcast rights for NFL
games cannot be ignored. Congress itself recognized
that the production and distribution of broadcasts of
the joint venture’s core product requires agreements
among the League and its member teams. That reality does not disappear when it comes to the possibility
of expanding the distribution of the copyrighted performances that are envisioned and directly protected
by the SBA. Indeed, the whole notion that individual
teams are obligated by law to compete with the broadcasts created and marketed under the SBA borders on
the bizarre.

in that case, where joint production and jointly owned intellectual property were not at issue, this Court declined to
characterize the NFL’s joint licensing as a naked restraint and
instructed the lower courts to “apply[] the Rule of Reason” on remand. Id. at 204.

 26
It is also wholly impractical. Contrary to Congress’
judgment in the SBA and this Court’s recognition in
American Needle that teams must cooperate to produce their entertainment product, the Ninth Circuit’s
holding expressly assumes that absent the challenged
agreements, “individual teams would create multiple
telecasts of each game and would compete against one
another by distributing telecasts of their games.”
App. 5a. That unfounded assumption is tantamount
to asserting that if two production companies enter
into a joint venture to produce a television drama,
those two companies independently can—and under
penalty of antitrust challenge legally must—separately market the drama’s broadcast rights in
competition with one another.
But just as no one would argue that antitrust law
obligates joint authors not to assign their copyrights
to a single publisher, it makes no sense to insist that
the NFL and its member clubs must compete among
themselves with respect to broadcast licensing rights.
Because any broadcast involves the active participation and intellectual property of at least the two
participating teams and the NFL, an agreement regarding assignment of broadcast rights is essential if
there are to be broadcasts at all. The Ninth Circuit’s
decision thus ignores this Court’s precedent that
where “restraints on competition are essential if the
product is to be available at all . . . the agreement is
likely to survive the Rule of Reason.” Am. Needle, 560
U.S. at 203 (citations and internal quotation marks
omitted). At a minimum, these agreements cannot be
condemned without a full rule-of-reason inquiry.

 27
*

*

*

The decision below cannot be reconciled with decisions of this Court or other courts of appeals.
According to the Ninth Circuit, plaintiffs may challenge the distribution of the core product of a joint
venture without establishing an antitrust market or
any reduction of competition in that market.
App. 22a-23a. The court thus relieved plaintiffs of the
responsibility to plead two of the critical elements of a
full rule-of-reason claim. This holding was dispositive
because the district court had correctly concluded that
plaintiffs had failed to allege—and could not plausibly
allege—either element. See, e.g., App. 89a-94a, 114a.
Accordingly, the decision below both creates a clear
circuit split and presents an excellent vehicle to resolve it.
C.

The question presented is important
and warrants review now.

The decision below has wide-ranging implications
for all manner of joint ventures. Absent this Court’s
intervention, integrated joint ventures could be forced
to defend their core activities—the creation and distribution of the joint venture product—under an
abbreviated antitrust analysis in which plaintiffs are
not required to establish a properly defined antitrust
market or that competition was restrained in any such
market.
The decision thus puts at risk a wide range of joint
ventures across the economy, especially those whose
activities—integrating separately-owned assets to
create and distribute a product that no single member
could produce on its own—are particularly likely to

 28
generate procompetitive benefits. Such ventures are
common not only in sports, but also in the motion picture, recording, publishing, high-tech, and other
industries in which cooperation is commonly required
to produce and license products protected by intellectual property laws. See generally, e.g., Broad. Music,
441 U.S. 1.
Where such cooperation is either efficient or necessary—and it is often both—inappropriate antitrust
standards have the potential to deter the very competition that the antitrust laws were enacted to foster.
Indeed, opening the door for treble damage antitrust
challenges to the decision-making of integrated joint
ventures—on the theory that some alternative arrangement would have enhanced competition among
the joint venture’s participants in the joint venture’s
products—would chill procompetitive collaboration
and diminish inter-brand competition. See, e.g.,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 594 (1986) (mistaken standards “are especially costly, because they chill the very conduct the
antitrust laws are designed to protect”).
That prospect certainly applies to the NFL’s broadcast arrangements, which for the last quarter century
have ensured (i) that every Sunday afternoon NFL
game is broadcast on free, over-the-air television and
(ii) that every NFL fan in the country has access to
several of these broadcasts every Sunday—including
every game involving his or her local team(s)—without fee or charge. All of the joint activity leading to
those broadcasts has been undertaken pursuant to the
express sanction of Congress. The Ninth Circuit’s

 29
premise—that the antitrust laws condemn as a “naked restraint” joint efforts to expand consumer choice
through further distribution of copyrighted performances produced by congressionally-sanctioned
conduct—defies both logic and common sense.
The antitrust laws offer no justification for insisting, as the Ninth Circuit did here, that out-of-market
NFL games may lawfully be distributed only by a
plethora of separate agreements between and among
the two teams participating in each game and some
third-party distributor. Such a result would lead to
inefficiencies, potential diminutions in output, and potential reductions in quality.
These considerations apply not only to the standards applied at summary judgment or at trial, but also
to the pleading standards that determine which challenges to joint ventures will be permitted to impose on
defendants the “potentially enormous expense of discovery” common in modern antitrust litigation. See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558-59
(2007). The costs of discovery are only accentuated by
the risk that “the threat of discovery expense will
push cost-conscious defendants to settle even anemic
cases before reaching” summary judgment or trial. Id.
at 559. Review is therefore necessary to ensure that
appropriate pleading standards prevent costly but implausible challenges from deterring the formation of
procompetitive ventures in the first place.

 30
II.

The Court Should Grant Review To Resolve A Circuit Conflict Regarding The
Purported “Co-Conspirator” Exception To
Illinois Brick.

The Ninth Circuit not only distorted the proper
analysis of joint ventures but also bent the traditional
rules that limit antitrust damages claims to direct
purchasers. In Illinois Brick Co. v. Illinois, this Court
held that, with very narrow and limited exceptions,
only direct purchasers may sue for damages under the
antitrust laws. 431 U.S. 720 (1977). The Court should
also grant review to resolve a dispute among the
courts of appeals as to the existence and scope of a “coconspirator” exception to this Court’s direct purchaser
rule.
1. No one disagrees that plaintiffs are indirect purchasers of the product that the NFL produces and
provides to DIRECTV for distribution to Sunday
Ticket subscribers. Indirect purchasers generally lack
standing to bring antitrust damages claims under section 4 of the Clayton Act. As this Court explained in
limiting standing to direct purchasers, indirect purchasers generally rely on pass-on theories of harm,
and “[p]ermitting the use of pass-on theories under § 4
essentially would transform treble-damages actions
into massive efforts to apportion the recovery among
all potential plaintiffs that could have absorbed part
of the overcharge from direct purchasers to middlemen to ultimate consumers.” Illinois Brick, 431 U.S.
at 735, 737. This Court recently reaffirmed that this
is “a bright-line rule that authorizes suits by direct
purchasers but bars suits by indirect purchasers.” Apple Inc. v. Pepper, 139 S. Ct. 1514, 1520 (2019). Under

 31
these principles, plaintiffs’ damages claims arising
from the pooling agreement among the NFL and its
member clubs would fail at the threshold.
To avoid having pass-on theories “add whole new
dimensions of complexity to treble-damages suits and
seriously undermine their effectiveness,” Illinois
Brick, 431 U.S. at 737, this Court instructed courts
not to “carve out exceptions . . . for particular types of
markets,” id. at 744. That proscription applies categorically, even though the “difficulties and
uncertainties” presented by pass-on theories “will be
less substantial in some contexts than in others.” Id.
at 743. Kansas v. UtiliCorp United, Inc. emphasized
the unequivocal nature of this bar: “even assuming
that any economic assumptions underlying the Illinois Brick rule might be disproved in a specific case,
we think it an unwarranted and counterproductive exercise to litigate a series of exceptions.” 497 U.S. 199,
217 (1990).
“Despite this admonition, several courts have recognized a ‘co-conspirator exception’ to Illinois Brick”
under which an indirect purchaser may nonetheless
bring suit. Dickson v. Microsoft Corp., 309 F.3d 193,
214 (4th Cir. 2002) (collecting cases). The Supreme
Court has not adopted the co-conspirator exception,
and “those circuits that have addressed it have not
taken a uniform view of its scope.” Laumann v. Nat’l
Hockey League, 907 F. Supp. 2d 465, 481 (S.D.N.Y.
2012).
The Fourth Circuit has held—and the Eleventh
Circuit has indicated—that an indirect purchaser

 32
may sue for damages only if the direct purchaser participated in a conspiracy to fix the price paid by the
indirect purchaser. By contrast, the Third and Eighth
Circuits have carved out a far broader exception permitting indirect-purchaser damages suits regardless
of the specific anticompetitive behavior allegedly undertaken by the conspiracy, so long as the plaintiff
alleges that the middleman-seller was a participant in
the conspiracy in some fashion. By joining this second
group and creating an extraordinarily broad “exception” that would swallow the Illinois Brick rule, the
decision below deepens a conflict among the courts of
appeals that requires this Court’s resolution.
2. On one side of the circuit split, the Fourth and
Eleventh Circuits have concluded that if any “co-conspirator” exception to Illinois Brick exists, it is limited
to “price-fixing conspiracies” where, for example, “a
dealer has illegally conspired with a manufacturer
with respect to the price paid by a consumer.” Dickson, 309 F.3d at 215. Plaintiffs in Dickson challenged
allegedly anticompetitive conduct by Microsoft relating to its operating system and application software.
See id. at 198-200. They were not direct purchasers
from Microsoft. Rather, plaintiffs had purchased computers with pre-installed Microsoft software from
original equipment manufacturers (OEMs), and
rested their standing to challenge Microsoft’s conduct
on their allegations that the direct purchasers (the
OEMs) and Microsoft had entered into allegedly anticompetitive
“exclusive
dealing
distribution
arrangements.” Id. at 199.
The Fourth Circuit held that Illinois Brick barred
plaintiffs’ claims against Microsoft. The plaintiffs did

 33
“not allege any conspiracy between Microsoft and the
OEM Defendants to set the resale price of the software.” Id. at 200, 213-16 (emphasis added). Dickson
reasoned that an exception limited to price-fixing conspiracies would fit more comfortably with Illinois
Brick. As the Dickson court explained, “the rationale
for concluding that Illinois Brick does not apply to a
price-fixing conspiracy is that no overcharge has been
passed on to the consumer.” Id. at 215. Any other
theory of harm would require “the exact analysis that
Illinois Brick forbids”: a determination of “the overcharge, if any, . . . that was passed on to consumers.”
Id.
Dickson’s recognition of this Court’s direction to
avoid pass-on analysis also undergirds the Eleventh
Circuit’s recognition that “[n]ot every vertical conspiracy allegation will get around the Illinois Brick
doctrine.” Lowell v. Am. Cyanamid Co., 177 F.3d
1228, 1232 (11th Cir. 1999). In Lowell, a group of
farmers had sued a manufacturer of crop-protection
products and its retail dealers, alleging that the manufacturers and dealers had engaged in a vertical pricefixing conspiracy. Id. at 1229. The Eleventh Circuit
concluded that Illinois Brick did not bar plaintiffs’
suit, as “[t]he inapplicability of Illinois Brick to vertical conspiracies with no allegations of pass-on (what
some have called the ‘vertical conspiracy exception’)
has long been recognized.” Id. at 1231. However,
Lowell expressly distinguished the price-fixing conspiracy alleged there—which allegedly fixed the price
paid by plaintiffs—from other types of conspiracies.
The Eleventh Circuit explained that if, as in this case,
plaintiffs allege a “vertical conspiracy on top of a horizontal conspiracy,” the vertical conspiracy “does

 34
not . . . ‘save’ the overall conspiracy claims.” Id.
at 1232. Rather, “the Illinois Brick doctrine might apply even more strongly” in such a case. Id. (emphasis
added).
3. In contrast to the Fourth and Eleventh Circuits,
the Third and Eighth Circuits have created broad coconspirator exceptions.
The Third Circuit established a “general co-conspirator exception” extending to all types of
conspiracies. Howard Hess Dental Labs. Inc. v.
Dentsply Int’l, Inc., 424 F.3d 363, 378-79 (3d Cir.
2005). Howard Hess considered dental laboratories’
price-fixing and exclusive-dealing claims against a
manufacturer of artificial teeth and the manufacturer’s dealers. Id. at 366. The Third Circuit held
that plaintiffs could assert their price-fixing claims.
Consistent with Dickson, Howard Hess reasoned that
plaintiffs “who purchase from dealers who are part of
a price-fixing conspiracy with the initial seller” are not
barred by Illinois Brick. Id. at 378.
However, with respect to plaintiffs’ exclusive-dealing claims, the Third Circuit parted ways with the
Fourth and Eleventh Circuits and crafted a “general
co-conspirator exception” not limited to price-fixing
conspiracies. Id. at 378-79. Howard Hess’s “general
co-conspirator exception” is “limited” only in that the
direct purchasers must “be barred from bringing a
claim against their former co-conspirator” based on
their involvement in the conspiracy. Id. at 378. But
it is nonetheless broad in that it extends beyond pricefixing conspiracies. Id. The Third Circuit acknowledged, in seeking to establish this broader exception,

 35
that doing so “creates the need to ascertain the portion
of an overcharge that was passed on”—the very analysis that this Court instructed courts not to undertake
in Illinois Brick and UtiliCorp, and which the Fourth
Circuit rejected in Dickson. Id. at 381. Nonetheless,
the Third Circuit reasoned that “the alternative,
adopting no general co-conspirator exception, is less
desirable” as a policy matter. Id.
The Eighth Circuit also extends the co-conspirator
exception to conspiracies beyond those fixing the
prices paid by indirect-purchaser plaintiffs. In Insulate SB, Inc. v. Advanced Finishing Systems, Inc., 797
F.3d 538 (8th Cir. 2015), a purchaser of spray-foam
equipment sued a manufacturer and its distributors,
alleging that they had entered into a series of anticompetitive exclusive-dealing agreements, id. at 541.
Though no price-fixing conspiracy was alleged, the
Eighth Circuit nonetheless held that Illinois Brick did
not bar plaintiff’s suit. Id. at 542. The court reasoned
that it had previously suggested that indirect purchasers could sue as long as they “allege the direct
purchasers are ‘party to the antitrust violation’ and
join the direct purchasers as defendants.” Id. (quoting
Campos v. Ticketmaster Corp., 140 F.3d 1166, 117071 & nn. 3-4 (8th Cir. 1998)). Campos contemplated a
co-conspirator exception only in the context of an alleged price-fixing conspiracy, see 140 F.3d at 1168, but
Insulate SB nonetheless extended that dicta to an exclusive-dealing conspiracy.
The Ninth Circuit here held that plaintiffs could
pursue a damages claim against the NFL and its
member clubs based on the alleged horizontal agreement among them, even though there is no allegation

 36
that the challenged “conspiracy” involved setting the
price of Sunday Ticket. The majority opinion below
thus joins the Third and Eighth Circuits in extending
the purported co-conspirator exception beyond conspiracies that fix the price paid by the plaintiffs. See
App. 40a (N.R. Smith, J., dissenting) (“Plaintiffs’
claim for damages stemming from the alleged horizontal agreement among the NFL Teams would require
the very analysis prohibited by the Illinois Brick
rule”).3
4. The proper scope of any co-conspirator exception
to Illinois Brick is a matter of exceptional practical
importance in shaping the nature and scope of federal
antitrust litigation, as it affects whether defendants
can be held liable for damages under the antitrust
laws for alleged overcharges reflected in prices that
they did not set. In the present case, plaintiffs seek to
hold the NFL liable for alleged overcharges reflected
in prices that DIRECTV unilaterally sets—in its own
discretion—for its own subscribers, based on a supposed horizontal agreement among the NFL teams
and the NFL to restrict the output of NFL broadcasts
by pooling broadcast rights. If a court can conclude
that such horizontal allegations fall outside the Illinois Brick bar, remote participants in almost any
vertical distribution chain are at risk for similarly indirect claims.
By the same token, the Ninth Circuit’s rule invites
plaintiffs to threaten remote defendants with treble
The Ninth Circuit’s decision also departed from that court’s
precedent in In re ATM Fee Antitrust Litigation, 686 F.3d 741
(9th Cir. 2012), as noted in Judge Smith’s dissent. App. 38a-43a
(N.R. Smith, J., dissenting).
3

 37
damages liability by pursuing flimsy allegations in an
effort to connect vertical agreements to alleged
horizontal conspiracies. That danger is illustrated in
this case as well: For six decades, the NFL and its
member clubs have jointly distributed their broadcast
rights through agreements with broadcast networks.
The notion that an additional vertical distribution
agreement with DIRECTV—one that expands
consumer choice and access to game broadcasts—
somehow converted the underlying agreement among
the NFL and its member clubs to pool broadcasting
rights into a conspiracy involving DIRECTV, and
exposed that pooling agreement to treble damages
claims by indirect purchasers, makes nonsense of
Illinois Brick. See App. 32a-33a.
Because this conflict is ripe for the Court’s resolution and involves an important issue, review of the
second question presented is warranted as well.
CONCLUSION
The petition for a writ of certiorari should be
granted.

 38
Respectfully submitted,
Paul D. Clement
Erin E. Murphy
KIRKLAND & ELLIS LLP
1301 Pennsylvania Ave.,
NW
Washington, DC 20004
Melissa Ingalls
Robyn E. Bladow
Tammy A. Tsoumas
Jonathan J. Faria
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071

Gregg H. Levy
Counsel of Record
Derek Ludwin
David M. Zionts
John S. Playforth
COVINGTON & BURLING
LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
glevy@cov.com
(202) 662-6000

Beth A. Wilkinson
WILKINSON WALSH LLP
2001 M Street, NW,
Aaron M. Panner
10th Floor
KELLOGG, HANSEN, TODD,
Washington, DC 20036
FIGEL & FREDERICK,
P.L.L.C.
Sumner Square
1615 M Street, NW,
Suite 400
Washington, DC 20036
Counsel for DIRECTV
Petitioners
February 7, 2020

Counsel for NFL
Petitioners