supposed concessions obtained by the NFLPA by noting that in agreeing to resume providing player contracts, NFLMC offered nothing beyond its original obligation under Article XII of the 1982 collective bargaining agreement. The NFLPA countered that the agreement was of substantial value to the union because it avoided the costly delay of a lengthy grievance proceeding before the National Labor Relations Board.
It is not the Court's function in the context of the labor exemption to evaluate the relative bargaining prowess and strategy of the parties, to determine who secured the better deal or whether there was adequate consideration exchanged. The important question is whether bona fide bargaining took place such that the policies in favor of such bargaining should take precedence over antitrust concerns. Because the owners gave up something they were already prepared to grant does not mean that there was an absence of bargaining or that it was conducted in bad faith. In fact, that the union was convinced that roster size was a significant issue over which they needed to bargain is evidence of the arm's-length relationship between the parties. Similarly, the Court is convinced that the union felt the various agreements it entered into were in its best interest. It is the union's honest, albeit subjective, perception that is relevant to the existence of good faith bargaining rather than the Court's objective determination of the comparative value of the consideration exchanged.
In sum, the Court finds that the agreement to allow a supplemental draft in 1984 satisfies all prongs of the Mackey test. The defendants cannot be liable under the antitrust laws for the effects of that agreement.
Even if the labor exemption did not apply, defendants would be entitled to summary judgment on another ground. Plaintiff Zimmerman brings suit under section 4 of the Clayton Act which grants a private right of action to a "person injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S.C. § 15 (emphasis added). Causation between the injury and the alleged antitrust violation is a well established requirement in private antitrust cases. Federal Prescription Service, Inc. v. American Pharmaceutical Association, 214 U.S. App. D.C. 76, 663 F.2d 253, 268 (D.C. Cir. 1981), cert. denied, 455 U.S. 928, 71 L. Ed. 2d 472, 102 S. Ct. 1293 (1982); see also Zenith Radio Corp. v. Hazeltine, 395 U.S. 100, 113-14, 23 L. Ed. 2d 129, 89 S. Ct. 1562 & n.4 (1969). The level of proof demanded of the plaintiff on this issue is high. Our Circuit Court has said that "the 'fact of injury' must be 'certainly proved,'" id. (quoting Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 340 (5th Cir. 1970)), cert. denied, 401 U.S. 912, 27 L. Ed. 2d 811, 91 S. Ct. 880 (1971), or at least "reasonably certain." Id. at 270. Zimmerman has no cause of action because he cannot prove that he was injured "by reason of" the supplemental draft.
There are a number of cases in which the causation requirement has been fatal to an antitrust claim. In Green v. Associated Milk Producers, Inc., 692 F.2d 1153 (8th Cir. 1982), for example, the plaintiffs charged that a dairy cooperative and two independent milk-haulers conspired to divide up territories and later boycott and terminate the plaintiffs' business. The court ruled that there was no evidence of a conspiracy to have the plaintiffs fired and that no causal relationship had been shown between the division of territories and the injury suffered. Id. at 1157-58. It was therefore unnecessary to decide whether the territorial restrictions were lawful. Similarly, in H&B Equipment Co v. International Harvester Co., 577 F.2d 239 (5th Cir. 1978), the plaintiff alleged that Harvester, for whom it distributed agricultural machinery, had unlawfully prevented it from bidding on government and rental contracts. The claim of unlawful customer restrictions failed because the plaintiff had not produced any evidence of its ability to penetrate the markets that defendant had supposedly reserved to itself. Id. at 246-47; see also Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705 (11th Cir. 1984); J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787 (5th Cir. 1983); Pitchford v. PEPI, Inc., 531 F.2d 92 (3d Cir. 1975), cert. denied, 426 U.S. 935, 49 L. Ed. 2d 387, 96 S. Ct. 2649 (1976).
Zimmerman's counsel complains he has been denied the discovery necessary to prove injury. See supra note 3. It is clear, however, that he is referring to the amount of damages which is a different issue than that raised by the NFL. See Federal Prescription Service, 663 F.2d at 268; H&B Equipment Co., 577 F.2d at 246 (distinguishing between the amount of damages and the fact of injury or causation). He then argues that it is speculative to suggest that he would have been selected in the regular draft and that if he had been, his rights might have gone to a team that might have offered him more money, a better location, and generally more security for his family.
In 1983, thirteen players under contract to the USFL were drafted by NFL teams. Given that Zimmerman was the third choice in the supplemental draft and a coveted and highly regarded lineman, it is virtually certain that he would have been chosen in the regular NFL draft had he been eligible. Affidavits of Bobby Beathard, General Manager of the Redskins, Gil Brandt, Vice President of the Cowboys, and the deposition of Al Davis support this assessment. Zimmerman's chances of being drafted by one of his preferred teams (i.e. the four teams on the West Coast) were the same in both drafts: one in seven. And under one of the possible alternatives to the supplemental draft, setting aside a few rounds of the regular draft exclusively for USFL players, Zimmerman might very well have been selected by the New York Giants. Most importantly, the right to sign Zimmerman would have been held by only one team in the NFL, regardless of the alternative selected. What Zimmerman wants is to be a free agent, to be able to negotiate with all 28 NFL teams. That would not have happened even in the absence of the challenged draft. Therefore, as a matter of law, Zimmerman cannot show that he was injured "by reason of" the supplemental draft.
On basis of the above, the Court determines that the plaintiff's claims are lacking in merit. An appropriate order will be entered.
On the basis of the Memorandum Opinion filed in this proceeding, it is this 27th day of March, 1986.
The the plaintiff's motion for summary judgment is denied.
That the defendants' motions for summary judgment are granted and this case is dismissed with prejudice.