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February 28, 1983

Association For Intercollegiate Athletics For Women, Plaintiff
National Collegiate Athletic Association, Defendant

The opinion of the court was delivered by: JACKSON

Decision and Order

 JACKSON, District Judge.

 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. ยงยง 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.



 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 by-law 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.


 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 "consequently . . . 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 National Association of Intercollegiate Athletics ("NAIA") is yet another intercollegiate athletics governance organization comprised of four-year (predominantly private) institutions, *fn1" 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.

 The Evolution of Women's Governance

 During the 1970's 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. *fn2"

 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 NAIA NCAA/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%)


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