The opinion of the court was delivered by: JACKSON
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.
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).
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 ...