NCAA v. Board of Regents of University of Oklahoma

U.S. Supreme Court NCAA v. Board of Regents, 468 U.S.
85 (1984) National Collegiate Athletic
Association v. Board of Regents of the University of
Oklahoma No. 83-271 Argued March 20, 1984 Decided June 2, 1984 468 U.S.
85 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT Syllabus In 1981, petitioner National Collegiate Athletic Association
(NCAA) adopted a plan for the televising of college football games
of its member institutions for the 1982-1985 seasons. The plan
recites that it is intended to reduce the adverse effect of live
television upon football game attendance. The plan limits the total
amount of televised intercollegiate football games and the number
of games that any one college may televise, and no member of the
NCAA is permitted to make any sale of television rights except in
accordance with the plan. The NCAA has separate agreements with the
two carrying networks, the American Broadcasting Cos. and the
Columbia Broadcasting System, granting each network the right to
telecast the live "exposures" described in the plan. Each network
agreed to pay a specified "minimum aggregate compensation" to the
participating NCAA members, and was authorized to negotiate
directly with the members for the right to televise their games.
Respondent Universities, in addition to being NCAA members, are
members of the College Football Association (CFA), which was
originally organized to promote the interests of major
football-playing colleges within the NCAA structure, but whose
members eventually claimed that they should have a greater voice in
the formulation of football television policy than they had in the
NCAA. The CFA accordingly negotiated a contract with the National
Broadcasting Co. that would have allowed a more liberal number of
television appearances for each college and would have increased
the revenues realized by CFA members. In response, the NCAA
announced that it would take disciplinary action against any CFA
member that complied with the CFA-NBC contract. Respondents then
commenced an action in Federal District Court, which, after an
extended trial, held that the controls exercised by the NCAA over
the televising of college football games violated § 1 of the
Sherman Act, and accordingly granted injunctive relief. The court
found that competition in the relevant market -- defined as "live
college football television" -- had been restrained in three ways:
(1) the NCAA fixed the price for particular telecasts; (2) its
exclusive network contracts were tantamount to a group boycott of
all other potential broadcasters Page 468 U. S. 86 and its threat of sanctions against its members constituted a
threatened boycott of potential competitors; and (3) its plan
placed an artificial limit on the production of televised college
football. The Court of Appeals agreed that the Sherman Act had been
violated, holding that the NCAA's television plan constituted
illegal per se price-fixing, and that, even if it were not per se illegal, its anticompetitive limitation on price
and output was not offset by any procompetitive justifications
sufficient to save the plan, even when the totality of the
circumstances was examined. Held: The NCAA's television plan violates § 1 of the
Sherman Act. Pp. 468 U. S.
98 -120.

															(a) While the plan constitutes horizontal price-fixing and
output limitation, restraints that ordinarily would be held
"illegal per se, " it would be inappropriate to apply a per se rule in this case where it involves an industry in
which horizontal restraints on competition are essential if the
product is to be available at all. The NCAA and its members market
competition itself -- contests between competing institutions.
Thus, despite the fact that restraints on the ability of NCAA
members to compete in terms of price and output are involved, a
fair evaluation of their competitive character requires
consideration, under the Rule of Reason, of the NCAA's
justifications for the restraints. But an analysis under the Rule
of Reason does not change the ultimate focus of the inquiry, which
is whether or not the challenged restraints enhance competition.
Pp. 468 U. S.
98 -104.

															(b) The NCAA television plan, on its face, constitutes a
restraint upon the operation of a free market, and the District
Court's findings establish that the plan has operated to raise
price and reduce output, both of which are unresponsive to consumer
preference. Under the Rule of Reason, these hallmarks of
anticompetitive behavior place upon the NCAA a heavy burden of
establishing an affirmative defense that competitively justifies
this apparent deviation from the operations of a free market. The
NCAA's argument that its television plan can have no significant
anticompetitive effect, since it has no market power, must be
rejected. As a matter of law, the absence of proof of market power
does not justify a naked restriction on price or output, and, as a
factual matter, it is evident from the record that the NCAA does
possess market power. Pp. 468 U. S.
104 -113.

															(c) The record does not support the NCAA's proffered
justification for its television plan that it constitutes a
cooperative "joint venture" which assists in the marketing of
broadcast rights, and hence is procompetitive. The District Court's
contrary findings undermine such a justification. Pp. 468 U. S.
113 -115.

															(d) Nor, contrary to the NCAA's assertion, does the television
plan protect live attendance, since, under the plan, games are
televised during Page 468 U. S. 87 all hours that college football games are played. Moreover, by
seeking to insulate live ticket sales from the full spectrum of
competition because of its assumption that the product itself is
insufficiently attractive to draw live attendance when faced with
competition from televised games, the NCAA forwards a justification
that is inconsistent with the Sherman Act's basic policy. "The Rule
of Reason does not support a defense based on the assumption that
competition itself is unreasonable." National Society of
Professional Engineers v. United States, 435 U.
S. 679 , 435 U. S. 696 .
Pp. 468 U. S.
115 -117.

															(e) The interest in maintaining a competitive balance among
amateur athletic teams that the NCAA asserts as a further
justification for its television plan is not related to any neutral
standard or to any readily identifiable group of competitors. The
television plan is not even arguably tailored to serve such an
interest. It does not regulate the amount of money that any college
may spend on its football program or the way the colleges may use
their football program revenues, but simply imposes a restriction
on one source of revenue that is more important to some colleges
than to others. There is no evidence that such restriction produces
any greater measure of equality throughout the NCAA than would a
restriction on alumni donations, tuition rates, or any other
revenue-producing activity. Moreover, the District Court's
well-supported finding that many more games would be televised in a
free market than under the NCAA plan is a compelling demonstration
that the plan's controls do not serve any legitimate procompetitive
purpose. Pp. 468 U. S.
117 -120.

															707 F.2d 1147, affirmed.

															STEVENS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and
O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in
which REHNQUIST, J., joined, post, p. 468 U. S.
120 . Page 468 U. S. 88 JUSTICE STEVENS delivered the opinion of the Court.

															The University of Oklahoma and the University of Georgia contend
that the National Collegiate Athletic Association has unreasonably
restrained trade in the televising of college football games. After
an extended trial, the District Court found that the NCAA had
violated § 1 of the Sherman Act, [ Footnote 1 ] and granted injunctive relief. 546 F.
Supp. 1276 (WD Okla.1982). The Court of Appeals agreed that the
statute had been violated, but modified the remedy in some
respects. 707 F.2d 1147 (CA10 1983). We granted certiorari, 464
U.S. 913 (1983), and now affirm. I The NCAA Since its inception in 1905, the NCAA has played an important
role in the regulation of amateur collegiate sports. It has adopted
and promulgated playing rules, standards of amateurism, standards
for academic eligibility, regulations concerning recruitment of
athletes, and rules governing the size of athletic squads and
coaching staffs. In some sports, such as baseball, swimming,
basketball, wrestling, and track, it has sponsored and conducted
national tournaments. It has not done so in the sport of football,
however. With the Page 468 U. S. 89 exception of football, the NCAA has not undertaken any
regulation of the televising of athletic events. [ Footnote 2 ]

															The NCAA has approximately 850 voting members. The regular
members are classified into separate divisions to reflect
differences in size and scope of their athletic programs. Division
I includes 276 colleges with major athletic programs; in this
group, only 187 play intercollegiate football. Divisions II and III
include approximately 500 colleges with less extensive athletic
programs. Division I has been subdivided into Divisions I-A and
I-AA for football.

															Some years ago, five major conferences, together with major
football-playing independent institutions, organized the College
Football Association (CFA). The original purpose of the CFA was to
promote the interests of major football-playing schools within the
NCAA structure. The Universities of Oklahoma and Georgia,
respondents in this Court, are members of the CFA. History of the NCAA Television Plan In 1938, the University of Pennsylvania televised one of its
home games. [ Footnote 3 ] From
1940 through the 1950 season, all of Pennsylvania's home games were
televised. App. 303. That was the beginning of the relationship
between television and college football.

															On January 11, 1951, a three-person "Television Committee,"
appointed during the preceding year, delivered a report to the
NCAA's annual convention in Dallas. Based on preliminary surveys,
the committee had concluded that

															"television does have an adverse effect on college football
attendance, and, unless brought under some control, threatens to
seriously harm the nation's overall athletic and physical Page 468 U. S. 90 system." Id. at 265. The report emphasized that "the television
problem is truly a national one, and requires collective action by
the colleges." Id. at 270. As a result, the NCAA decided
to retain the National Opinion Research Center (NORC) to study the
impact of television on live attendance, and to declare a
moratorium on the televising of football games. A television
committee was appointed to implement the decision and to develop an
NCAA television plan for 1951. Id. at 277-278.

															The committee's 1951 plan provided that only one game a week
could be telecast in each area, with a total blackout on 3 of the
10 Saturdays during the season. A team could appear on television
only twice during a season. The plan also provided that the NORC
would conduct a systematic study of the effects of the program on
attendance. Id. at 279. The plan received the virtually
unanimous support of the NCAA membership; only the University of
Pennsylvania challenged it. Pennsylvania announced that it would
televise all its home games. The council of the NCAA thereafter
declared Pennsylvania a member in bad standing, and the four
institutions scheduled to play at Pennsylvania in 1951 refused to
do so. Pennsylvania then reconsidered its decision and abided by
the NCAA plan. Id. at 280-281.

															During each of the succeeding five seasons, studies were made
which tended to indicate that television had an adverse effect on
attendance at college football games. During those years, the NCAA
continued to exercise complete control over the number of games
that could be televised. Id. at 325-359.

															From 1952 through 1977, the NCAA television committee followed
essentially the same procedure for developing its television plans.
It would first circulate a questionnaire to the membership and then
use the responses as a basis for formulating a plan for the ensuing
season. The plan was then submitted to a vote by means of a mail
referendum. Once approved, the plan formed the basis for NCAA's
negotiations Page 468 U. S. 91 with the networks. Throughout this period, the plans retained
the essential purposes of the original plan. See 546 F.
Supp. at 1283. [ Footnote 4 ]
Until 1977, the contracts were all for either 1- or 2-year terms.
In 1977, the NCAA adopted "principles of negotiation" for the
future, and discontinued the practice of submitting each plan for
membership approval. Then the NCAA also entered into its first
4-year contract granting exclusive rights to the American
Broadcasting Cos. (ABC) for the 1978-1981 seasons. ABC had held the
exclusive rights to network telecasts of NCAA football games since
1965. Id. at 1283-1284. The Current Plan The plan adopted in 1981 for the 1982-1985 seasons is at issue
in this case. [ Footnote 5 ] This
plan, like each of its predecessors, recites that it is intended to
reduce, insofar as possible, the adverse effects of live television
upon football game attendance. [ Footnote 6 ] It provides that "all forms of television of
the football Page 468 U. S. 92 games of NCAA member institutions during the Plan control
periods shall be in accordance with this Plan." App. 35. The plan
recites that the television committee has awarded rights to
negotiate and contract for the telecasting of college football
games of members of the NCAA to two "carrying networks." Id. at 36. In addition to the principal award of rights to
the carrying networks, the plan also describes rights for a
"supplementary series" that had been awarded for the 1982 and 1983
seasons, [ Footnote 7 ] as well
as a procedure for permitting specific "exception telecasts."
[ Footnote 8 ]

															In separate agreements with each of the carrying networks, ABC
and the Columbia Broadcasting System (CBS), the NCAA granted each
the right to telecast the 14 live "exposures" described in the
plan, in accordance with the "ground rules" set forth therein.
[ Footnote 9 ] Each of the
networks agreed to pay a specified "minimum aggregate
compensation Page 468 U. S. 93 to the participating NCAA member institutions" during the 4-year
period in an amount that totaled $131,750,000. In essence, the
agreement authorized each network to negotiate directly with member
schools for the right to televise their games. The agreement itself
does not describe the method of computing the compensation for each
game, but the practice that has developed over the years, and that
the District Court found would be followed under the current
agreement, involved the setting of a recommended fee by a
representative of the NCAA for different types of telecasts, with
national telecasts being the most valuable, regional telecasts
being less valuable, and Division II or Division III games
commanding a still lower price. [ Footnote 10 ] The aggregate of all these payments
presumably equals the total minimum aggregate compensation set
forth in the basic agreement. Except for differences in payment
between national and regional telecasts, and with respect to
Division II and Division III games, the amount that any team
receives does not change with the size of the viewing audience, the
number of markets in which the game is telecast, or the particular
characteristic of the game or the participating teams. Instead, the
"ground rules" provide that the carrying networks make alternate
selections of those games they wish to televise, and thereby obtain
the exclusive right to submit a bid at an essentially fixed price
to the institutions involved. See 546 F. Supp. at
1289-1293. [ Footnote 11 ] Page 468 U. S. 94 The plan also contains "appearance requirements" and "appearance
limitations" which pertain to each of the 2-year periods that the
plan is in effect. The basic requirement imposed on each of the two
networks is that it must schedule appearances for at least 82
different member institutions during each 2-year period. Under the
appearance limitations, no member institution is eligible to appear
on television more than a total of six times and more than four
times nationally, with the appearances to be divided equally
between the two carrying networks. See id. at 1293. The
number of exposures specified in the contracts also sets an
absolute maximum on the number of games that can be broadcast.

															Thus, although the current plan is more elaborate than any of
its predecessors, it retains the essential features of each of
them. It limits the total amount of televised intercollegiate
football and the number of games that any one team may televise. No
member is permitted to make any sale of television rights except in
accordance with the basic plan. Background of this Controversy Beginning in 1979, CFA members began to advocate that colleges
with major football programs should have a greater voice in the
formulation of football television policy than they had in the
NCAA. CFA therefore investigated the possibility of negotiating a
television agreement of its own, developed Page 468 U. S. 95 an independent plan, and obtained a contract offer from the
National Broadcasting Co. (NBC). This contract, which it signed in
August, 1981, would have allowed a more liberal number of
appearances for each institution, and would have increased the
overall revenues realized by CFA members. See id. at
1286.

															In response, the NCAA publicly announced that it would take
disciplinary action against any CFA member that complied with the
CFA-NBC contract. The NCAA made it clear that sanctions would not
be limited to the football programs of CFA members, but would apply
to other sports as well. On September 8, 1981, respondents
commenced this action in the United States District Court for the
Western District of Oklahoma and obtained a preliminary injunction
preventing the NCAA from initiating disciplinary proceedings or
otherwise interfering with CFA's efforts to perform its agreement
with NBC. Notwithstanding the entry of the injunction, most CFA
members were unwilling to commit themselves to the new contractual
arrangement with NBC in the face of the threatened sanctions, and
therefore the agreement was never consummated. See id. at
1286-1287. Decision of the District Court After a full trial, the District Court held that the controls
exercised by the NCAA over the televising of college football games
violated the Sherman Act. The District Court defined the relevant
market as "live college football television" because it found that
alternative programming has a significantly different and lesser
audience appeal. Id. at 1297-1300. [ Footnote 12 ] The District Court then concluded
that the NCAA Page 468 U. S. 96 controls over college football are those of a "classic cartel"
with an

															"almost absolute control over the supply of college football
which is made available to the networks, to television advertisers,
and ultimately to the viewing public. Like all other cartels, NCAA
members have sought and achieved a price for their product which
is, in most instances, artificially high. The NCAA cartel imposes
production limits on its members, and maintains mechanisms for
punishing cartel members who seek to stray from these production
quotas. The cartel has established a uniform price for the products
of each of the member producers, with no regard for the differing
quality of these products or the consumer demand for these various
products." Id. at 1300-1301.

															The District Court found that competition in the relevant market
had been restrained in three ways: (1) NCAA fixed the price for
particular telecasts; (2) its exclusive network contracts were
tantamount to a group boycott of all other potential broadcasters
and its threat of sanctions against its own members constituted a
threatened boycott of potential competitors; and (3) its plan
placed an artificial limit on the production of televised college
football. Id. at 1293-1295.

															In the District Court, the NCAA offered two principal
justifications for its television policies: that they protected the
gate attendance of its members and that they tended to preserve a
competitive balance among the football programs of the various
schools. The District Court rejected the first justification
because the evidence did not support the claim that college
football television adversely affected gate attendance. Id. at 1295-1296. With respect to the "competitive
balance" argument, the District Court found that the evidence
failed to show that the NCAA regulations on matters such as
recruitment and the standards for preserving amateurism were not
sufficient to maintain an appropriate balance. Id. at
1296. Page 468 U. S. 97 Decision of the Court of Appeals The Court of Appeals held that the NCAA television plan
constituted illegal per se price-fixing, 707 F.2d at 1152.
[ Footnote 13 ] It rejected
each of the three arguments advanced by NCAA to establish the
procompetitive character of its plan. [ Footnote 14 ] First, the court rejected the argument
that the television plan promoted live attendance, noting that,
since the plan involved a concomitant reduction in viewership, the
plan did not result in a net increase in output, and hence was not
procompetitive. Id. at 1153-1154. Second, the Court of
Appeals rejected as illegitimate the NCAA's purpose of promoting
athletically balanced competition. It held that such a
consideration amounted to an argument that "competition will
destroy the market" -- a position inconsistent with the policy of
the Sherman Act. Moreover, assuming arguendo that the
justification was legitimate, the court agreed with the District
Court's finding "that any contribution the plan made to athletic
balance could be achieved by less restrictive means." Id. at 1154. Third, the Court of Appeals refused to view the NCAA plan
as competitively justified by the need to compete effectively with
other types of television programming, since it entirely eliminated
competition between producers of football, and hence was illegal per se. Id. at 1155-1156.

															Finally, the Court of Appeals concluded that, even if the
television plan were not per se illegal, its
anticompetitive limitation on price and output was not offset by
any Page 468 U. S. 98 procompetitive justification sufficient to save the plan even
when the totality of the circumstances was examined. Id. at 1157-1160. [ Footnote 15 ]
The case was remanded to the District Court for an appropriate
modification in its injunctive decree. Id. at 1162.
[ Footnote 16 ] II There can be no doubt that the challenged practices of the NCAA
constitute a "restraint of trade" in the sense that they limit
members' freedom to negotiate and enter into their own television
contracts. In that sense, however, every contract is a restraint of
trade, and as we have repeatedly recognized, the Sherman Act was
intended to prohibit only unreasonable restraints of trade.
[ Footnote 17 ] Page 468 U. S. 99 It is also undeniable that these practices share characteristics
of restraints we have previously held unreasonable. The NCAA is an
association of schools which compete against each other to attract
television revenues, not to mention fans and athletes. As the
District Court found, the policies of the NCAA with respect to
television rights are ultimately controlled by the vote of member
institutions. By participating in an association which prevents
member institutions from competing against each other on the basis
of price or kind of television rights that can be offered to
broadcasters, the NCAA member institutions have created a
horizontal restraint -- an agreement among competitors on the way
in which they will compete with one another. [ Footnote 18 ] A restraint of this type has often
been held to be unreasonable as a matter of law. Because it places
a ceiling on the number of games member institutions may televise,
the horizontal agreement places an artificial limit on the quantity
of televised football that is available to broadcasters and
consumers. By restraining the quantity of television rights
available for sale, the challenged practices create a limitation on
output; our cases have held that such limitations are unreasonable
restraints of trade. [ Footnote
19 ] Moreover, the District Court found that the minimum
aggregate price in fact operates to preclude any price negotiation
between broadcasters and institutions, Page 468 U. S. 100 thereby constituting horizontal price-fixing, perhaps the
paradigm of an unreasonable restraint of trade. [ Footnote 20 ]

															Horizontal price-fixing and output limitation are ordinarily
condemned as a matter of law under an "illegal per se "
approach, because the probability that these practices are
anticompetitive is so high; a per se rule is applied when
"the practice facially appears to be one that would always or
almost always tend to restrict competition and decrease output." Broadcast Music, Inc. v. Columbia Broadcasting System,
Inc., 441 U. S. 1 , 441 U. S. 19 -20
(1979). In such circumstances a restraint is presumed unreasonable
without inquiry into the particular market context in which it is
found. Nevertheless, we have decided that it would be inappropriate
to apply a per se rule to this case. This decision is not
based on a lack of judicial experience with this type of
arrangement, [ Footnote 21 ]
on the fact that the NCAA is organized as a nonprofit entity,
[ Footnote 22 ] or on Page 468 U. S. 101 our respect for the NCAA's historic role in the preservation and
encouragement of intercollegiate amateur athletics. [ Footnote 23 ] Rather, what is critical is
that this case involves an industry in which horizontal restraints
on competition are essential if the product is to be available at
all.

															As Judge Bork has noted:

															"[S]ome activities can only be carried out jointly. Perhaps the
leading example is league sports. 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."

															R. Bork, The Antitrust Paradox 278 (1978). What the NCAA and its
member institutions market in this case is competition itself --
contests between competing institutions. Of course, this would be
completely ineffective if there were no rules on which the
competitors agreed to create and define the competition to be
marketed. A myriad of rules affecting such matters as the size of
the field, the number of players on a team, and the extent to which
physical violence is to be encouraged or proscribed, all must be
agreed upon, and all restrain the manner in which institutions
compete. Moreover, the NCAA seeks to market a particular brand of
football -- college football. The identification of this "product"
with an academic tradition differentiates Page 468 U. S. 102 college football from and makes it more popular than
professional sports to which it might otherwise be comparable, such
as, for example, minor league baseball. In order to preserve the
character and quality of the "product," athletes must not be paid,
must be required to attend class, and the like. And the integrity
of the "product" cannot be preserved except by mutual agreement; if
an institution adopted such restrictions unilaterally, its
effectiveness as a competitor on the playing field might soon be
destroyed. Thus, the NCAA plays a vital role in enabling college
football to preserve its character, and as a result enables a
product to be marketed which might otherwise be unavailable. In
performing this role, its actions widen consumer choice -- not only
the choices available to sports fans but also those available to
athletes -- and hence can be viewed as procompetitive. [ Footnote 24 ] Page 468 U. S. 103 Broadcast Music squarely holds that a joint selling
arrangement may be so efficient that it will increase sellers'
aggregate output, and thus be procompetitive. See 441 U.S.
at 441 U. S. 18 -23.
Similarly, as we indicated in Continental T. V., Inc. v. GTE
Sylvania Inc., 433 U. S. 36 , 433 U. S. 51 -57
(1977), a restraint in a limited aspect of a market may actually
enhance market-wide competition. Respondents concede that the great
majority of the NCAA's regulations enhance competition among member
institutions. Thus, despite the fact that this case involves
restraints on the ability of member institutions to compete in
terms of price and output, a fair evaluation of their competitive
character requires consideration of the NCAA's justifications for
the restraints.

															Our analysis of this case under the Rule of Reason, of course,
does not change the ultimate focus of our inquiry. Both per
se rules and the Rule of Reason are employed "to form a
judgment about the competitive significance of the restraint." National Society of Professional Engineers v. United
States, 435 U. S. 679 , 435 U. S. 692 (1978). A conclusion that a restraint of trade is unreasonable may
be

															"based either (1) on the nature or character of the contracts,
or (2) on surrounding circumstances giving rise to the inference or
presumption that they were intended to restrain trade and enhance
prices. Under either branch of the test, the inquiry is confined to
a consideration of impact on competitive conditions." Id. at 435 U. S. 690 (footnotes omitted). Per se rules are invoked when surrounding circumstances
make the likelihood of anticompetitive conduct so great as to Page 468 U. S. 104 render unjustified further examination of the challenged
conduct. [ Footnote 25 ] But
whether the ultimate finding is the product of a presumption or
actual market analysis, the essential inquiry remains the same --
whether or not the challenged restraint enhances competition.
[ Footnote 26 ] Under the
Sherman Act, the criterion to be used in judging the validity of a
restraint on trade is its impact on competition. [ Footnote 27 ] III Because it restrains price and output, the NCAA's television
plan has a significant potential for anticompetitive effects.
[ Footnote 28 ] The findings
of the District Court indicate that this Page 468 U. S. 105 potential has been realized. The District Court found that, if
member institutions were free to sell television rights, many more
games would be shown on television, and that the NCAA's output
restriction has the effect of raising the price the networks pay
for television rights. [ Footnote
29 ] Moreover, the Page 468 U. S. 106 court found that by fixing a price for television rights to all
games, the NCAA creates a price structure that is unresponsive to
viewer demand and unrelated to the prices that would prevail in a
competitive market. [ Footnote
30 ] And, of course, since, as a practical matter, all member
institutions need NCAA approval, members have no real choice but to
adhere to the NCAA's television controls. [ Footnote 31 ]

															The anticompetitive consequences of this arrangement are
apparent. Individual competitors lose their freedom to compete.
[ Footnote 32 ] Page 468 U. S. 107 Price is higher and output lower than they would otherwise be,
and both are unresponsive to consumer preference. [ Footnote 33 ] This latter point is perhaps
the most significant, since "Congress designed the Sherman Act as a consumer welfare prescription.'" Reiter v. Sonotone
Corp., 442 U. S. 330 , 442 U. S. 343 (1979). A restraint that has the effect of reducing the importance
of consumer preference in setting price and output is not
consistent with this fundamental goal of antitrust law. [ Footnote 34 ] Restrictions on price
and output are the paradigmatic examples of restraints of trade
that the Sherman Page 468 U. S. 108 Act was intended to prohibit. See Standard Oil Co. v. United
States, 221 U. S. 1 , 221 U. S. 52 -60
(1911). [ Footnote 35 ] At the
same time, the television plan eliminates competitors from the
market, since only those broadcasters able to bid on television
rights covering the entire NCAA can compete. [ Footnote 36 ] Thus, as the District Court found,
many telecasts that would occur in a competitive market are
foreclosed by the NCAA's plan. [ Footnote 37 ] Page 468 U. S. 109 Petitioner argues, however, that its television plan can have no
significant anticompetitive effect, since the record indicates that
it has no market power -- no ability to alter the interaction of
supply and demand in the market. [ Footnote 38 ] We must reject this argument for two
reasons, one legal, one factual.

															As a matter of law, the absence of proof of market power does
not justify a naked restriction on price or output. To the
contrary, when there is an agreement not to compete in terms of
price or output, "no elaborate industry analysis is required to
demonstrate the anticompetitive character of such an agreement." Professional Engineers, 435 U.S. at 435 U. S. 692 .
[ Footnote 39 ] Petitioner
does not quarrel with the District Court's Page 468 U. S. 110 finding that price and output are not responsive to demand.
Thus, the plan is inconsistent with the Sherman Act's command that
price and supply be responsive to consumer preference. [ Footnote 40 ] We have never required
proof of market power in such a case. [ Footnote 41 ] This naked restraint on price and output
requires some competitive justification even in the absence of a
detailed market analysis. [ Footnote 42 ] Page 468 U. S. 111 As a factual matter, it is evident that petitioner does possess
market power. The District Court employed the correct test for
determining whether college football broadcasts constitute a
separate market -- whether there are other products that are
reasonably substitutable for televised NCAA football games.
[ Footnote 43 ] Petitioner's
argument that it cannot obtain supracompetitive prices from
broadcasters since advertisers, and hence broadcasters, can switch
from college football to other types of programming simply ignores
the findings of the District Court. It found that intercollegiate
football telecasts generate an audience uniquely attractive to
advertisers, and that competitors are unable to offer programming
that can attract a similar audience. [ Footnote 44 ] These findings amply support its conclusion
that the NCAA possesses market power. [ Footnote 45 ] Indeed, the District Court's subsidiary
finding that advertisers will pay a premium price per viewer to
reach audiences watching college football because of their
demographic characteristics [ Footnote 46 ] is vivid evidence of the uniqueness of this
product. [ Footnote 47 ]
Moreover, the District Court's market Page 468 U. S. 112 analysis is firmly supported by our decision in International Boxing Club of New York, Inc. v. United
States, 358 U. S. 242 (1959), that championship boxing events are uniquely attractive to
fans, [ Footnote 48 ] and
hence constitute a market separate from that for nonchampionship
events. See id. at 358 U. S.
249 -252. [ Footnote
49 ] Thus, respondents have demonstrated that there is a
separate market for telecasts of college football which "rest[s] on
generic qualities differentiating" viewers. Times-Picayune
Publishing Co. v. United States, 345 U.
S. 594 , 345 U. S. 613 (1953). It inexorably follows that, if college football broadcasts
be defined as a separate market -- and we are convinced they are --
then the NCAA's complete control over those broadcasts provides a
solid basis for the District Court's conclusion that the NCAA
possesses market power with respect to those broadcasts. "When a
product is controlled by one interest, without substitutes
available in the market, there is monopoly power." United
States v. E. I. du Pont de Nemours & Co., 351 U.
S. 377 , 351 U.S.
394 (1956). [ Footnote
50 ] Page 468 U. S. 113 Thus, the NCAA television plan, on its face, constitutes a
restraint upon the operation of a free market, and the findings of
the District Court establish that it has operated to raise prices
and reduce output. Under the Rule of Reason, these hallmarks of
anticompetitive behavior place upon petitioner a heavy burden of
establishing an affirmative defense which competitively justifies
this apparent deviation from the operations of a free market. See Professional Engineers, 435 U.S. at 435 U. S.
692 -696. We turn now to the NCAA's proffered
justifications. IV Relying on Broadcast Music, petitioner argues that its
television plan constitutes a cooperative "joint venture" which
assists in the marketing of broadcast rights, and hence is
procompetitive. While joint ventures have no immunity from the
antitrust laws, [ Footnote
51 ] as Broadcast Music indicates, a joint selling
arrangement may "mak[e] possible a new product by reaping otherwise
unattainable efficiencies." Arizona v. Maricopa County Medical
Society, 457 U. S. 332 , 457 U. S. 365 (1982) (POWELL, J., dissenting) (footnote omitted). The essential
contribution made by the NCAA's arrangement is to define the number
of games that may be televised, to establish the price for each
exposure, and to define the basic terms of each contract between
the network and a home team. The NCAA does not, however, act as a
selling agent for any school or for any conference of schools. The
selection of individual games, and the negotiation of particular
agreements, are matters left to the networks and the individual
schools. Thus, the effect of the network plan is not to eliminate
individual sales of broadcasts, since these still occur, albeit
subject to fixed prices and output limitations. Unlike Broadcast Music's blanket license covering broadcast
rights Page 468 U. S. 114 to a large number of individual compositions, here the same
rights are still sold on an individual basis, only in a
noncompetitive market.

															The District Court did not find that the NCAA's television plan
produced any procompetitive efficiencies which enhanced the
competitiveness of college football television rights; to the
contrary, it concluded that NCAA football could be marketed just as
effectively without the television plan. [ Footnote 52 ] There is therefore no predicate in the
findings for petitioner's efficiency justification. Indeed,
petitioner's argument is refuted by the District Court's finding
concerning price and output. If the NCAA's television plan produced
procompetitive efficiencies, the plan would increase output and
reduce the price of televised games. The District Court's contrary
findings accordingly undermine petitioner's position. In light of
these findings, it cannot be said that "the agreement on price is
necessary to market the product at all." Broadcast Music, 441 U.S. at 441 U. S. 23 .
[ Footnote 53 ] In Broadcast Music, the availability of a package product
that no individual could offer enhanced the total volume of music
that was sold. Unlike this case, there was no limit of any kind
placed on the volume that might be sold in the entire market and
each individual remained free to sell his own music without
restraint. Here, production has been limited not enhanced.
[ Footnote 54 ] Page 468 U. S. 115 No individual school is free to televise its own games without
restraint. The NCAA's efficiency justification is not supported by
the record.

															Neither is the NCAA's television plan necessary to enable the
NCAA to penetrate the market through an attractive package sale.
Since broadcasting rights to college football constitute a unique
product for which there is no ready substitute, there is no need
for collective action in order to enable the product to compete
against its nonexistent competitors. [ Footnote 55 ] This is borne out by the District Court's
finding that the NCAA's television plan reduces the volume of
television rights sold. V Throughout the history of its regulation of intercollegiate
football telecasts, the NCAA has indicated its concern with
protecting live attendance. This concern, it should be noted, is
not with protecting live attendance at games which are shown on
television; that type of interest is not at issue in this case.
Rather, the concern is that fan interest in a televised game may
adversely affect ticket sales for games that will not appear on
television. [ Footnote
56 ]

															Although the NORC studies in the 1950's provided some support
for the thesis that live attendance would suffer if Page 468 U. S. 116 unlimited television were permitted, [ Footnote 57 ] the District Court found that there was
no evidence to support that theory in today's market. [ Footnote 58 ] Moreover, as the
District Court found, the television plan has evolved in a manner
inconsistent with its original design to protect gate attendance.
Under the current plan, games are shown on television during all
hours that college football games are played. The plan simply does
not protect live attendance by ensuring that games will not be
shown on television at the same time as live events. [ Footnote 59 ]

															There is, however, a more fundamental reason for rejecting this
defense. The NCAA's argument that its television plan is necessary
to protect live attendance is not based on a desire to maintain the
integrity of college football as a distinct and attractive product,
but rather on a fear that the product will not prove sufficiently
attractive to draw live attendance when faced with competition from
televised games. At bottom the NCAA's position is that ticket sales
for most college games are unable to compete in a free market.
[ Footnote 60 ] The Page 468 U. S. 117 television plan protects ticket sales by limiting output -- just
as any monopolist increases revenues by reducing output. By seeking
to insulate live ticket sales from the full spectrum of competition
because of its assumption that the product itself is insufficiently
attractive to consumers, petitioner forwards a justification that
is inconsistent with the basic policy of the Sherman Act. "[T]he
Rule of Reason does not support a defense based on the assumption
that competition itself is unreasonable." Professional
Engineers, 435 U.S. at 435 U. S.
696 . VI Petitioner argues that the interest in maintaining a competitive
balance among amateur athletic teams is legitimate and important,
and that it justifies the regulations challenged in this case. We
agree with the first part of the argument, but not the second.

															Our decision not to apply a per se rule to this case
rests in large part on our recognition that a certain degree of
cooperation is necessary if the type of competition that petitioner
and its member institutions seek to market is to be preserved.
[ Footnote 61 ] It is
reasonable to assume that most of the regulatory controls of the
NCAA are justifiable means of fostering competition among amateur
athletic teams, and therefore procompetitive because they enhance
public interest in intercollegiate athletics. The specific
restraints on football telecasts that are challenged in this case
do not, however, fit into the same mold as do rules defining the
conditions of the contest, the eligibility of participants, or the
manner in which members of a joint enterprise shall share the
responsibilities and the benefits of the total venture.

															The NCAA does not claim that its television plan has equalized
or is intended to equalize competition within any Page 468 U. S. 118 one league. [ Footnote 62 ]
The plan is nationwide in scope, and there is no single league or
tournament in which all college football teams compete. There is no
evidence of any intent to equalize the strength of teams in
Division I-A with those in Division II or Division III, and not
even a colorable basis for giving colleges that have no football
program at all a voice in the management of the revenues generated
by the football programs at other schools. [ Footnote 63 ] The interest in maintaining a
competitive balance that is asserted by the NCAA as a justification
for regulating all television of intercollegiate football is not
related to any neutral standard or to any readily identifiable
group of competitors. Page 468 U. S. 119 The television plan is not even arguably tailored to serve such
an interest. It does not regulate the amount of money that any
college may spend on its football program, nor the way in which the
colleges may use the revenues that are generated by their football
programs, whether derived from the sale of television rights, the
sale of tickets, or the sale of concessions or program advertising.
[ Footnote 64 ] The plan
simply imposes a restriction on one source of revenue that is more
important to some colleges than to others. There is no evidence
that this restriction produces any greater measure of equality
throughout the NCAA than would a restriction on alumni donations,
tuition rates, or any other revenue-producing activity. At the same
time, as the District Court found, the NCAA imposes a variety of
other restrictions designed to preserve amateurism which are much
better tailored to the goal of competitive balance than is the
television plan, and which are "clearly sufficient" to preserve
competitive balance to the extent it is within the NCAA's power to
do so. [ Footnote 65 ] And
much more than speculation supported the District Court's findings
on this score. No other NCAA sport employs a similar plan, and in
particular the court found that, in the most closely analogous
sport, college basketball, competitive balance has been maintained
without resort to a restrictive television plan. [ Footnote 66 ]

															Perhaps the most important reason for rejecting the argument
that the interest in competitive balance is served by the
television plan is the District Court's unambiguous and
well-supported finding that many more games would be televised in a
free market than under the NCAA plan. The hypothesis that
legitimates the maintenance of competitive balance as a
procompetitive justification under the Rule of Page 468 U. S. 120 Reason is that equal competition will maximize consumer demand
for the product. [ Footnote
67 ] The finding that consumption will materially increase if
the controls are removed is a compelling demonstration that they do
not, in fact, serve any such legitimate purpose. [ Footnote 68 ] VII The NCAA plays a critical role in the maintenance of a revered
tradition of amateurism in college sports. There can be no question
but that it needs ample latitude to play that role, or that the
preservation of the student athlete in higher education adds
richness and diversity to intercollegiate athletics and is entirely
consistent with the goals of the Sherman Act. But consistent with
the Sherman Act, the role of the NCAA must be to preserve a
tradition that might otherwise die; rules that restrict output are
hardly consistent with this role. Today we hold only that the
record supports the District Court's conclusion that, by curtailing
output and blunting the ability of member institutions to respond
to consumer preference, the NCAA has restricted, rather than
enhanced, the place of intercollegiate athletics in the Nation's
life. Accordingly, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ]

															Section 1 provides in pertinent part:

															"Every contract, combination in the form of trust or otherwise,
or conspiracy, in restraint of trade or commerce among the several
States, or with foreign nations, is declared to be illegal. . .
."

															26 Stat. 209, as amended, 15 U.S.C. § 1.

															[ Footnote 2 ]

															Presumably, however, it sells the television rights to events
that the NCAA itself conducts.

															[ Footnote 3 ]

															According to the NCAA football television committee's 1981
briefing book: "As far as is known, there were [then] six
television sets in Philadelphia; and all were tuned to the game."
App. 244.

															[ Footnote 4 ]

															The television committee's 1981 briefing book elaborates:

															"In 1952, the NCAA Television Committee initiated a plan for
controlling the televising of college football games. The plans
have remained remarkably similar as to their essential features
over the past 30 years. They have had the following primary
objectives and purposes:"

															"1. To reduce, insofar as possible, the adverse effects of live
television upon football game attendance and, in turn, upon the
athletic and education programs dependent upon that football
attendance;"

															"2. To spread television among as many NCAA member colleges as
possible; and"

															"3. To provide football television to the public to the extent
compatible with the other two objectives." Ibid. [ Footnote 5 ]

															Because respondents sought and obtained only injunctive relief
against future violations of § 1 in the District Court, we do not
consider previous NCAA television plans, except to the extent that
they shed light on the purpose and effect of the current plan.

															[ Footnote 6 ]

															"The purposes of this Plan shall be to reduce, insofar as
possible, the adverse effects of live television upon football game
attendance and, in turn, upon the athletic and related educational
programs dependent upon the proceeds therefrom; to spread football
television participation among as many colleges as practicable; to
reflect properly the image of universities as educational
institutions; to promote college football through the use of
television, to advance the overall interests of intercollegiate
athletics, and to provide college football television to the public
to the extent compatible with these other objectives." Id. at 35 (parenthetical omitted).

															[ Footnote 7 ]

															The supplementary series is described in a separate article of
the plan. It is to consist of no more than 36 exposures in each of
the first two years, and no more than 40 exposures in the third and
fourth years of the plan. Those exposures are to be scheduled on
Saturday evenings or at other times that do not conflict with the
principal football series that is scheduled for Saturday
afternoons. Id. at 86-92.

															[ Footnote 8 ]

															An "exception" telecast is permitted in the home team's market
of games that are sold out, and in the visiting team's market of
games played more than 400 miles from the visiting team's campus,
but in both cases only if the broadcast would not be shown in an
area where another college football game is to be played. Id. at 62-72. Also, Division II and Division III
institutions are allowed complete freedom to televise their games,
except that the games may not appear on a network of more than five
stations without the permission of the NCAA. Id. at
73-74.

															[ Footnote 9 ]

															In addition to its contracts with the carrying networks, the
NCAA has contracted with Turner Broadcasting System, Inc. (TBS),
for the exclusive right to cablecast NCAA football games. The
minimum aggregate fee for the initial 2-year period of the TBS
contract is $17,696,000. 546 F. Supp. at 1291-1292.

															[ Footnote 10 ]

															The football television committee's briefing book for 1981
recites that a fee of $600,000 was paid for each of the 12 national
games telecast by ABC during the regular fall season and $426,779
was paid for each of the 46 regional telecasts in 1980. App. 250.
The report further recites:

															"Division I members received $27,842,185 from 1980 football
television revenue, 89.8 percent of the total. Division II's share
was $625,195 (2.0 percent), while Division III received $385,195
(1.3 percent) and the NCAA $2,147,425 (6.9 percent)." Id. at 251.

															[ Footnote 11 ]

															The District Court explained how the agreement eliminates
competition for broadcasting rights:

															"First, the networks have no intention to engage in bidding.
Second, once the network holding first choice for any given date
has made its choice and agreed to a rights fee for that game with
the two teams involved, the other network is then in a monopsony
position. The schools cannot threaten to sell the broadcast rights
to any other network. They cannot sell to NBC without committing a
violation of NCAA rules. They cannot sell to the network which had
first choice over that particular date, because again they would be
in violation of NCAA rules, and the network would be in violation
of its agreement with NCAA. Thus, NCAA creates a single eligible
buyer for the product of all but the two schools selected by the
network having first choice. Free market competition is thus
destroyed under the new plan."

															546 F. Supp. at 1292-1293.

															[ Footnote 12 ]

															The District Court held that the NCAA had monopolized the
relevant market in violation of § 2 of the Sherman Act, 15 U.S.C. §
2. See 546 F. Supp. at 1319-1323. The Court of Appeals
found it unnecessary to reach this issue, as do we.

															[ Footnote 13 ]

															The Court of Appeals rejected the District Court's boycott
holding, since all broadcasters were free to negotiate for a
contract as carrying networks and the threat of sanctions against
members for violating NCAA rules could not be considered a boycott
if the rules were otherwise valid. 707 F.2d at 1160-1161.

															[ Footnote 14 ]

															In the Court of Appeals as well as the District Court,
petitioner argued that respondents had suffered no injury of the
type the antitrust laws were designed to prevent, relying on Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.
S. 477 (1977). Both courts rejected its position, 707
F.2d at 1150-1152; 546 F. Supp. at 1303-1304. Petitioner does not
seek review on that question in this Court. Brief for Petitioner 5,
n. 1.

															[ Footnote 15 ]

															The Court of Appeals rejected petitioner's position that it
should set aside many of the District Court's findings as clearly
erroneous. In accord with our usual practice, we must now accord
great weight to a finding of fact which has been made by a district
court and approved by a court of appeals. See, e.g., Rogers v.
Lodge, 458 U. S. 613 , 458 U. S. 623 (1982). In any event, petitioner does not now ask us to set aside
any of the findings of the District Court, but rather argues only
that both the District Court and the Court of Appeals erred as a
matter of law. Brief for Petitioner 6, n. 2, 18-19.

															[ Footnote 16 ]

															Judge Barrett dissented on the ground that the NCAA television
plan's primary purpose was not anticompetitive.

															"Rather, it is designed to further the purposes and objectives
of the NCAA, which are to maintain intercollegiate football as an
amateur sport and an adjunct of the academic endeavors of the
institutions. One of the key purposes is to insure that the student
athlete is fully integrated into academic endeavors."

															707 F.2d at 1163. He regarded the television restraints as fully
justified "in that they are necessary to maintain intercollegiate
football as amateur competition." Id. at 1165. He
added:

															"The restraints upon Oklahoma and Georgia and other colleges and
universities with excellent football programs insure that they
confine those programs within the principles of amateurism, so that
intercollegiate athletics supplement, rather than inhibits,
academic achievement." Id. at 1167.

															[ Footnote 17 ] See, e.g., Arizona v. Maricopa County Medical Society, 457 U. S. 332 , 457 U. S.
342 -343 (1982); National Society of Professional
Engineers v. United States, 435 U. S. 679 , 435 U. S.
687 -688 (1978); Chicago Board of Trade v. United
States, 246 U. S. 231 , 246 U. S. 238 (1918).

															[ Footnote 18 ] See Arizona v. Maricopa County Medical Society, 457
U.S. at 457 U. S.
356 -357; National Society of Professional Engineers
v. United States, 435 U.S. at 435 U. S.
694 -696; United States v. Topco Associates,
Inc., 405 U. S. 596 , 405 U. S.
608 -611 (1972). See also United States v. Sealy,
Inc., 388 U. S. 350 , 388 U. S.
352 -354 (1967) (marketing association controlled by
competing distributors is a horizontal combination). See
generally Blecher & Daniels, Professional Sports and the
"Single Entity" Defense Under Section One of the Sherman Act, 4
Whittier L.Rev. 217 (1982).

															[ Footnote 19 ] See, e.g., United States v. Topco Associates, Inc., 405
U.S. at 405 U. S.
608 -609; United States v. Sealy, Inc., supra; United
States v. American Linseed Oil Co., 262 U.
S. 371 , 262 U. S.
388 -390 (1923); American Column & Lumber Co. v.
United States, 257 U. S. 377 , 257 U. S.
410 -412 (1921).

															[ Footnote 20 ] See, e.g., Arizona v. Maricopa County Medical Society, 457 U.S. at 457 U. S.
344 -348; Catalano, Inc. v. Target Sales, Inc., 446 U. S. 643 , 446 U. S.
646 -647 (1980) (per curiam); Kiefer-Stewart Co. v.
Joseph E. Seagram & Sons, Inc., 340 U.
S. 211 , 340 U. S. 213 (1951); United States v. Socony-Vacuum Oil Co., 310 U. S. 150 , 310 U. S.
212 -214 (1940); United States v. Trenton Potteries
Co., 273 U. S. 392 , 273 U. S.
396 -398 (1927).

															[ Footnote 21 ]

															While judicial inexperience with a particular arrangement
counsels against extending the reach of per se rules, see Broadcast Music, 441 U.S. at 441 U. S. 9 -10; United States v. Topco Associates, Inc., 405 U.S. at 405 U. S.
607 -608; White Motor Co. v. United States, 372 U. S. 253 , 372 U. S. 263 (1963), the likelihood that horizontal price and output
restrictions are anticompetitive is generally sufficient to justify
application of the per se rule without inquiry into the
special characteristics of a particular industry. See Arizona
v. Maricopa County Medical Society, 457 U.S. at 457 U. S.
349 -351; National Society of Professional Engineers
v. United States, 435 U.S. at 435 U. S.
689 -690.

															[ Footnote 22 ]

															There is no doubt that the sweeping language of § 1 applies to
nonprofit entities, Goldfarb v. Virginia State Bar, 421 U. S. 773 , 421 U. S.
786 -787 (1975), and in the past we have imposed
antitrust liability on nonprofit entities which have engaged in
anticompetitive conduct, American Society of Mechanical
Engineers, Inc. v. Hydrolevel Corp., 456 U.
S. 556 , 456 U. S. 576 (1982). Moreover, the economic significance of the NCAA's nonprofit
character is questionable, at best. Since the District Court found
that the NCAA and its member institutions are in fact organized to
maximize revenues, see 546 F. Supp. at 1288-1289, it is
unclear why petitioner is less likely to restrict output in order
to raise revenues above those that could be realized in a
competitive market than would be a for-profit entity. Petitioner
does not rely on its nonprofit character as a basis for reversal.
Tr. of Oral Arg. 24.

															[ Footnote 23 ]

															While as the guardian of an important American tradition, the
NCAA's motives must be accorded a respectful presumption of
validity, it is nevertheless well settled that good motives will
not validate an otherwise anticompetitive practice. See United
States v. Griffith, 334 U. S. 100 , 334 U. S.
105 -106 (1948); Associated Press v. United
States, 326 U. S. 1 , 326 U. S. 16 , n.
15 (1945); Chicago Board of Trade v. United States, 246
U.S. at 246 U. S. 238 ; Standard Sanitary Manufacturing Co. v. United States, 226 U. S. 20 , 226 U. S. 49 (1912); United States v. Trans-Missouri Freight Assn., 166 U. S. 290 , 166 U. S. 342 (1897).

															[ Footnote 24 ] See Justice v. NCAA, 577 F.
Supp. 356 , 379-383 (Ariz.1983); Jones v.
NCAA, 392 F.
Supp. 295 , 304 (Mass.1975); College Athletic Placement
Service, Inc. v. NCAA, 1975-1 Trade Cases 1160, 117 (NJ), aff'd mem., 506 F.2d 1050 (CA3 1974). See also Brenner
v. World Boxing Council, 675 F.2d 445, 454-455 (CA2 1982); Neeld v. National Hockey League, 594 F.2d 1297, 1299, n. 4
(CA9 1979); Smith v. Pro Football, Inc., 193
U.S.App.D.C.19, 26-27, 593 F.2d 1173, 1180-1181 (1978); Hatley
v. American Quarter Horse Assn., 552 F.2d 646, 652-654 (CA5
1977); Mackey v. National Football League, 543 F.2d 606,
619 (CA8 1976), cert. dism'd, 434 U.S. 801 (1977); Bridge Corp. of America v. The American Contract Bridge League,
Inc., 428 F. 2 1365, 1370 (CA9 1970), cert. denied, 401 U.S. 940 (1971); Gunter Harz Sports, Inc. v. United States
Tennis Assn., 511 F.
Supp. 1103 , 1116 (Neb.), aff'd, 665 F.2d 222 (CA8
1981); Cooney v. American Horse Shows Assn.,
Inc., 495 F.
Supp. 424 , 430 (SDNY 1980); Los Angeles Memorial Coliseum
Comm'n v. National Football League, 468 F.
Supp. 154 , 165-166 (CD Cal.1979), preliminary injunction
entered, 484 F.
Supp. 1274 (1980), rev'd on other grounds, 634 F.2d
1197 (CA9 1980); Kupec v. Atlantic Coast
Conference, 399 F.
Supp. 1377 , 1380 (MDNC 1975); Closius, Not at the Behest of
Nonlabor Groups: A Revised Prognosis for a Maturing Sports
Industry, 24 Boston College L.Rev. 341, 344-345 (1983);
Kurlantzick, Thoughts on Professional Sports and the Antitrust Law: Los Angeles Memorial Coliseum v. National Football League, 15 Conn.L.Rev. 183, 189-194 (1983); Note, Antitrust and Nonprofit
Entities, 94 Harv.L.Rev. 802, 817-818 (1981). See generally
Hennessey v. NCAA, 564 F.2d 1136, 1151-1154 (CA5 1977); Association for Intercollegiate Athletics for Women v.
NCAA, 558 F.
Supp. 487 , 494-495 (DC 1983); Warner Amex Cable
Communications, Inc. v. American Broadcasting
Cos., 499 F.
Supp. 537 , 545-546 (SD Ohio 1980); Board of Regents v.
NCAA, 561 P.2d 499 ,
506-507 (Okla.1977); Note, Tackling Intercollegiate Athletics: An
Antitrust Analysis, 87 Yale L.J. 655, 665-666, 673-675 (1978).

															[ Footnote 25 ] See Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2 , 466 U. S. 15 -16,
n. 25 (1984); Arizona v. Maricopa County Medical Society, 457 U.S. at 457 U. S.
350 -351; Continental T. V., Inc. v. GTE Sylvania
Inc., 433 U. S. 36 , 433 U. S. 50 , n.
16 (1977).

															[ Footnote 26 ]

															Indeed, there is often no bright line separating per se from Rule of Reason analysis. Per se rules may require
considerable inquiry into market conditions before the evidence
justifies a presumption of anticompetitive conduct. For example,
while the Court has spoken of a " per se " rule against
tying arrangements, it has also recognized that tying may have
procompetitive justifications that make it inappropriate to condemn
without considerable market analysis. See Jefferson Parish
Hospital Dist. No. 2 v. Hyde, 466 U.S. at 466 U. S.
11 -12.

															[ Footnote 27 ]

															"The Sherman Act was designed to be a comprehensive charter of
economic liberty aimed at preserving free and unfettered
competition as the rule of trade. It rests on the premise that the
unrestrained interaction of competitive forces will yield the best
allocation of our economic resources, the lowest prices, the
highest quality and the greatest material progress, while at the
same time providing an environment conducive to the preservation of
our democratic political and social institutions. But even were
that premise open to question, the policy unequivocally laid down
by the Act is competition. And to this end, it prohibits 'Every
contract, combination . . . or conspiracy, in restraint of trade or
commerce among the Several States.'" Northern Pacific R. Co. v. United States, 356 U. S.
1 , 356 U. S. 4 -5
(1958).

															[ Footnote 28 ]

															In this connection, it is not without significance that Congress
felt the need to grant professional sports an exemption from the
antitrust laws for joint marketing of television rights. See 15 U.S.C. §§ 1291-1295. The legislative history of
this exemption demonstrates Congress' recognition that agreements
among league members to sell television rights in a cooperative
fashion could run afoul of the Sherman Act, and in particular
reflects its awareness of the decision in United States v.
National Football League, 116 F.
Supp. 319 (ED Pa.1953), which held that an agreement among the
teams of the National Football League that each team would not
permit stations to telecast its games within 75 miles of the home
city of another team on a day when that team was not playing at
home and was televising its game by use of a station within 75
miles of its home city, violated § 1 of the Sherman Act. See S.Rep. No. 1087, 87th Cong., 1st Sess. (1961);
H.R.Rep. No. 1178, 87th Cong., 1st Sess., 2-3 (1961); 107 Cong.Rec.
20059-20060 (1961) (remarks of Rep. Celler); id. at
20061-20062 (remarks of Rep. McCulloch); Telecasting of
Professional Sports Contests: Hearings on H.R. 8757 before the
Antitrust Subcommittee of the House Committee on the Judiciary,
87th Cong., 1st Sess., 1-2 (1961) (statement of Chairman Celler); id. at 3 (statement of Rep. McCulloch); id. at
10-28 (statement of Pete Rozelle); id. at 69-70 (letter
from Assistant Attorney General Loevinger).

															[ Footnote 29 ]

															"It is clear from the evidence that, were it not for the NCAA
controls, many more college football games would be televised. This
is particularly true at the local level. Because of NCAA controls,
local stations are often unable to televise games which they would
like to, even when the games are not being televised at the network
level. The circumstances which would allow so-called exception
telecasts arise infrequently for many schools, and the evidence is
clear that local broadcasts of college football would occur far
more frequently were it not for the NCAA controls. This is not a
surprising result. Indeed, this horizontal agreement to limit the
availability of games to potential broadcasters is the very essence
of NCAA's agreements with the networks. The evidence establishes
the fact that the networks are actually paying the large fees
because the NCAA agrees to limit production. If the NCAA would not
agree to limit production, the networks would not pay so large a
fee. Because NCAA limits production, the networks need not fear
that their broadcasts will have to compete head-to-head with other
college football telecasts, either on the other networks or on
various local stations. Therefore, the Court concludes that the
membership of NCAA has agreed to limit production to a level far
below that which would occur in a free market situation."

															546 F. Supp. at 1294.

															[ Footnote 30 ]

															"Turning to the price paid for the product, it is clear that the
NCAA controls utterly destroy free market competition. NCAA has
commandeered the rights of its members and sold those rights for a
sum certain. In so doing, it has fixed the minimum, maximum and
actual price which will be paid to the schools appearing on ABC,
CBS and TBS. NCAA has created the mechanism which produces a
uniform price for each national telecast, and a uniform price for
each regional telecast. Because of the NCAA controls, the price
which is paid for the right to televise any particular game is
responsive neither to the relative quality of the teams playing the
game nor to viewer preference."

															"In a competitive market, each college fielding a football team
would be free to sell the right to televise its games for whatever
price it could get. The prices would vary for the games, with games
between prominent schools drawing a larger price than games between
less prominent schools. Games between the more prominent schools
would draw a larger audience than other games. Advertisers would
pay higher rates for commercial time because of the larger
audience. The telecaster would then be willing to pay larger rights
fees due to the increased prices paid by the advertisers. Thus, the
price which the telecaster would pay for a particular game would be
dependent on the expected size of the viewing audience. Clearly,
the NCAA controls grossly distort the prices actually paid for an
individual game from that to be expected in a free market." Id. at 1318.

															[ Footnote 31 ]

															Since, as the District Court found, NCAA approval is necessary
for any institution that wishes to compete in intercollegiate
sports, the NCAA has a potent tool at its disposal for restraining
institutions which require its approval. See Silver v. New York
Stock Exchange, 373 U. S. 341 , 373 U. S.
347 -349, and n. 5 (1963); Associated Press v. United
States, 326 U.S. at 326 U. S.
17 -18.

															[ Footnote 32 ] See Fashion Originators' Guild of America, Inc. v. FTC, 312 U. S. 457 , 312 U. S. 465 (1941); Standard Sanitary Manufacturing Co. v. United
States, 226 U.S. at 226 U. S. 47 -49; Montague & Co. v. Lowry, 193 U. S.
38 (1904).

															[ Footnote 33 ]

															"In this case, the rule is violated by a price restraint that
tends to provide the same economic rewards to all practitioners
regardless of their skill, their experience, their training, or
their willingness to employ innovative and difficult
procedures." Arizona v. Maricopa County Medical Society, 457 U.S. at 457 U. S. 348 .
The District Court provided a vivid example of this system in
practice:

															"A clear example of the failure of the rights fees paid to
respond to market forces occurred in the fall of 1981. On one
weekend of that year, Oklahoma was scheduled to play a football
game with the University of Southern California. Both Oklahoma and
USC have long had outstanding football programs, and indeed, both
teams were ranked among the top five teams in the country by the
wire service polls. ABC chose to televise the game along with
several others on a regional basis. A game between two schools
which are not well-known for their football programs, Citadel and
Appalachian State, was carried on four of ABC's local affiliated
stations. The USC-Oklahoma contest was carried on over 200
stations. Yet, incredibly, all four of these teams received exactly
the same amount of money for the right to televise their
games."

															546 F. Supp. at 1291.

															[ Footnote 34 ]

															As the District Court observed:

															"Perhaps the most pernicious aspect is that, under the controls,
the market is not responsive to viewer preference. Every witness
who testified on the matter confirmed that the consumers, the
viewers of college football television, receive absolutely no
benefit from the controls. Many games for which there is a large
viewer demand are kept from the viewers, and many games for which
there is little if any demand are nonetheless televised." Id. at 1319.

															[ Footnote 35 ]

															Even in the context of professional football, where Congress was
willing to pass a limited antitrust exemption, see n 28, supra, it was
concerned about ensuring that telecasts not be subject to output
limitations:

															"Mr. GARY. On yesterday, I had the opportunity of watching three
different games. There were three different games on three
different channels . . . ."

															"Would this bill prevent them from broadcasting three different
games at one time, and permit the league to enter into a contract
so that only one game would be permitted?"

															"Mr. CELLER. The bill does not prevent what the gentleman saw
yesterday. As a matter of fact, the antitrust exemption provided by
the bill shall not apply to any package contract which prohibits
the person to whom league television rights are sold or transferred
from televising any game within any area except the home area of a
member club on the day when that club is playing a home game."

															" * * * *" "Mr. GARY. I am an avid sports fan. I follow football, baseball,
basketball, and track, and I am very much interested in all sports.
But I am also interested in the people of the United States being
able to see on television the games that are played. I am
interested in the television audience. I want to know that they are
not going to be prohibited from seeing games that might otherwise
be telecast."

															"Mr. CELLER. I can assure the gentleman from Virginia that he
need have no fears on that score."

															107 Cong.Rec. 20060 (1961).

															[ Footnote 36 ]

															The impact on competitors is thus analogous to the effect of
block booking in the motion picture industry that we concluded
violated the Sherman Act:

															"In the first place, they eliminate the possibility of bidding
for films theater by theater. In that way, they eliminate the
opportunity for the small competitor to obtain the choice first
runs, and put a premium on the size of the circuit." United States v. Paramount Pictures, Inc., 334 U.
S. 131 , 334 U. S. 154 (1948).

															[ Footnote 37 ]

															546 F. Supp. at 1294. One of respondents' economists illustrated
the point:

															"[I]t's my opinion that, if a free market operated in the market
for intercollegiate television of football, that there would be
substantially more regional and even more local games being
televised than there are currently. I can take a specific example
from my home state of Indiana."

															"I am at Ball State University, which until recently was a
division one-A institution, although now is a division one-AA
institution in terms of intercollegiate football. When Ball State
plays Indiana State, that is a hotly contested game in an
intrastate sense. That is a prime example of the type of game that
probably would be televised. For example, when Ball State is
playing Indiana State at Terre Haute, Indiana, that [would be] a
popular game to be televised in the Muncie area, and, vice versa,
in Terre Haute when the game happens to be in Muncie."

															App. 506-507. See also id. at 607-608.

															[ Footnote 38 ]

															Market power is the ability to raise prices above those that
would be charged in a competitive market. Jefferson Parish
Hospital Dist. No. 2 v. Hyde, 466 U.S. at 466 U. S. 27 , n.
46; United States Steel Corp. v. Fortner Enterprises, 429 U. S. 610 , 429 U. S. 620 (1977); United States v. E. I. du Pont de Nemours &
Co., 351 U. S. 377 , 351 U. S. 391 (1956).

															[ Footnote 39 ]

															"The fact that a practice is not categorically unlawful in all
or most of its manifestations certainly does not mean that it is
universally lawful. For example, joint buying or selling
arrangements are not unlawful per se, but a court would
not hesitate in enjoining a domestic selling arrangement by which,
say, Ford and General Motors distributed their automobiles
nationally through a single selling agent. Even without a trial,
the judge will know that these two large firms are major factors in
the automobile market, that such joint selling would eliminate
important price competition between them, that they are quite
substantial enough to distribute their products independently, and
that one can hardly imagine a pro-competitive justification
actually probable in fact or strong enough in principle to make
this particular joint selling arrangement 'reasonable' under
Sherman Act § 1. The essential point is that the rule of reason can
sometimes be applied in the twinkling of an eye."

															P. Areeda, The "Rule of Reason" in Antitrust Analysis: General
Issues 37-38 (Federal Judicial Center, June 1981) (parenthetical
omitted).

															[ Footnote 40 ]

															Moreover, because, under the plan, member institutions may not
compete in terms of price and output, it is manifest that
significant forms of competition are eliminated. See Catalano,
Inc. v. Target Sales, Inc., 446 U.S. at 446 U. S.
648 -649 (per curiam); Professional Engineers, 435 U.S. at 435 U. S.
692 -695; Paramount Famous Lasky Corp. v. United
States, 282 U. S. 30 , 282 U. S. 43 -44
(1930).

															[ Footnote 41 ] See United States v. McKesson & Robbins, Inc., 351 U. S. 305 , 351 U. S.
309 -310 (1956); United States v. Socony-Vacuum Oil
Co., 310 U.S. at 310 U. S. 221 . See also Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207 , 359 U. S. 213 (1959).

															[ Footnote 42 ]

															The Solicitor General correctly observes:

															"There was no need for the respondents to establish monopoly
power in any precisely defined market for television programming in
order to prove the restraint unreasonable. Both lower courts found
not only that NCAA has power over the market for intercollegiate
sports, but also that in the market for television programming --
no matter how broadly or narrowly the market is defined -- the NCAA
television restrictions have reduced output, subverted viewer
choice, and distorted pricing. Consequently, unless the controls
have some countervailing procompetitive justification, they should
be deemed unlawful regardless of whether petitioner has substantial
market power over advertising dollars. While the 'reasonableness'
of a particular alleged restraint often depends on the market power
of the parties involved, because a judgment about market power is
the means by which the effects of the conduct on the market place
can be assessed, market power is only one test of 'reasonableness.'
And where the anticompetitive effects of conduct can be ascertained
through means short of extensive market analysis, and where no
countervailing competitive virtues are evident, a lengthy analysis
of market power is not necessary."

															Brief for United States as Amicus Curiae 19-20
(footnote and citation omitted).

															[ Footnote 43 ] See, e.g., United States v. Grinnell Corp., 384 U. S. 563 , 384 U. S. 571 (1966); United States v. E. 1. du Pont de Nemours &
Co., 351 U.S. at 351 U.S.
394 -395; Times-Picayune Publishing Co. v. United
States, 345 U. S. 594 , 345 U. S. 612 ,
n. 31 (1953).

															[ Footnote 44 ] See 546 F. Supp. at 1297-1300. See also Hochberg & Horowitz, Broadcasting and CATV: The Beauty and the
Bane of Major College Football, 38 Law & Contemp.Prob. 112,
118-120 (1973).

															[ Footnote 45 ] See, e.g., Jefferson Parish Hospital Dist. No. 2 v.
Hyde, 466 U.S. at 466 U. S. 27 , n.
46; id. at 466 U. S. 37 -38,
n. 7 (O'CONNOR, J., concurring in judgment); Fortner
Enterprises, Inc. v. United States Steel Corp., 394 U.
S. 495 , 394 U. S.
504 -506, and n. 2 (1969).

															[ Footnote 46 ] See 546 F. Supp. at 1298-1300.

															[ Footnote 47 ]

															As the District Court observed, id. at 1297, the most
analogous programming in terms of the demographic characteristics
of its audience is professional football, and as a condition of its
limited exemption from the antitrust laws the professional football
leagues are prohibited from telecasting games at times that
conflict with intercollegiate football. See 15 U.S.C. §
1293.

															[ Footnote 48 ]

															We approved of the District Court's reliance on the greater
revenue-producing potential and higher television ratings of
championship events, as opposed to other events to support its
market definition. See 358 U.S. at 358 U. S.
250 -251.

															[ Footnote 49 ]

															For the same reasons, it is also apparent that the unique appeal
of NCAA football telecasts for viewers means that, "from the
standpoint of the consumer -- whose interests the statute was
especially intended to serve," Jefferson Parish Hospital Dist.
No. 2 v. Hyde, 466 U.S. at 466 U. S. 15 ,
there can be no doubt that college football constitutes a separate
market for which there is no reasonable substitute. Thus we agree
with the District Court that it makes no difference whether the
market is defined from the standpoint of broadcasters, advertisers,
or viewers.

															[ Footnote 50 ] See, e.g., Jefferson Parish Hospital Dist. No. 2 v.
Hyde, 466 U.S. at 466 U. S. 24 -25; Northern Pacific R. Co. v. United States, 356 U.S. at 356 U. S. 7 -8; Times-Picayune, 345 U.S. at 345 U. S.
611 -613. Petitioner seems to concede as much. See Brief for Petitioner 36-37; Tr. of Oral Arg. 6.

															[ Footnote 51 ] See Citizen Publishing Co. v. United States, 394 U. S. 131 , 394 U. S.
134 -136 (1969); United States v. Sealy, Inc., 388 U.S. at 388 U. S. 353 ; Timken Roller Bearing Co. v. United States, 341 U.
S. 593 , 341 U. S. 59 -598
(1951); Associated Press v. United States, 326 U.S. at 326 U. S.
15 -16.

															[ Footnote 52 ] See 546 F. Supp. at 1306-1308.

															[ Footnote 53 ] Compare id. at 1307-1308 ("The colleges are clearly
able to negotiate agreements with whatever broadcasters they
choose. We are not dealing with tens of thousands of relatively
brief musical works, but with three-hour football games played
eleven times each year"), with Broadcast Music, 441 U.S.
at 441 U. S. 22 -23
(footnotes omitted) ("[T]o the extent the blanket license is a
different product, ASCAP is not really a joint sales agency
offering the individual goods of many sellers, but is a separate
seller offering its blanket license, of which the individual
compositions are raw material. ASCAP, in short, made a market in
which individual composers are inherently unable to compete fully
effectively").

															[ Footnote 54 ]

															Ensuring that individual members of a joint venture are free to
increase output has been viewed as central in evaluating the
competitive character of joint ventures. See Brodley,
Joint Ventures and Antitrust Policy, 95 Harv.L.Rev. 1523,
1550-1552, 1555-1560 (1982). See also Note, United
Charities and the Sherman Act, 91 Yale L.J. 1593 (1982).

															[ Footnote 55 ]

															If the NCAA faced "interbrand" competition from available
substitutes, then certain forms of collective action might be
appropriate in order to enhance its ability to compete. See
Continental T. V., Inc., 433 U.S. at 433 U. S. 54 -57.
Our conclusion concerning the availability of substitutes in 468 U. S. supra, forecloses such a justification in this case,
however.

															[ Footnote 56 ]

															The NCAA's plan is not even arguably related to a desire to
protect live attendance by ensuring that a game is not televised in
the area where it is to be played. No cooperative action is
necessary for that kind of "blackout." The home team can always
refuse to sell the right to telecast its game to stations in the
immediate area. The NCAA does not now and never has justified its
television plan by an interest in assisting schools in "blacking
out" their home games in the areas in which they are played.

															[ Footnote 57 ]

															During this period, the NCAA also expressed its concern to
Congress in urging it to limit the antitrust exemption professional
football obtained for telecasting its games to contests not held on
Friday or Saturday when such telecasts might interfere with
attendance at intercollegiate games. See H.R.Rep. No.
1178, 87th Cong., 1st Sess., 3-4 (1961); 107 Cong.Rec. 20060-20061
(1961) (remarks of Rep. Celler); id. at 20662; Hearings, supra, n. 28, at 66-68 (statement of William R. Reed). The
provision enacted as a result is now found in 15 U.S.C. § 1293.

															[ Footnote 58 ] See 546 F. Supp. at 1295-1296, 1315.

															[ Footnote 59 ]

															"[T]he greatest flaw in the NCAA's argument is that it is
manifest that the new plan for football television does not limit
televised football in order to protect gate attendance. The
evidence shows that, under the new plan, many areas of the country
will have access to nine hours of college football television on
several Saturdays in the coming season. Because the 'ground rules'
eliminate head-to-head programming, a full nine hours of college
football will have to be shown on television during a
nine-to-twelve hour period on almost every Saturday of the football
season in most of the major television markets in the country. It
can hardly be said that such a plan is devised in order to protect
gate attendance." Id. at 1296.

															[ Footnote 60 ]

															Ironically, to the extent that the NCAA's position has merit, it
rests on the assumption that football telecasts are a unique
product. If, as the NCAA argues, see supra at 468 U. S.
111 -112, all television programming is essentially
fungible, it would not be possible to protect attendance without
banning all television during the hours at which intercollegiate
football games are held.

															[ Footnote 61 ] See 468 U. S. supra. [ Footnote 62 ]

															It seems unlikely, for example, that there would have been a
greater disparity between the football prowess of Ohio State
University and that of Northwestern University in recent years
without the NCAA's television plan. The District Court found that,
in fact, the NCAA has been strikingly unsuccessful if it has indeed
attempted to prevent the emergence of a "power elite" in
intercollegiate football. See 546 F. Supp. at 1310-1311.
Moreover, the District Court's finding that there would be more
local and regional telecasts without the NCAA controls means that
Northwestern could well have generated more television income in a
free market than was obtained under the NCAA regime.

															[ Footnote 63 ]

															Indeed, the District Court found that the basic reason the
television plan has endured is that the NCAA is in effect
controlled by schools that are not restrained by the plan:

															"The plaintiffs and other CFA members attempted to persuade the
majority of NCAA members that NCAA had gone far beyond its
legitimate role in football television. Not surprisingly, none of
the CFA proposals was adopted. Instead the membership uniformly
adopted the proposals of the NCAA administration which
'legitimized' NCAA's exercises of power. The result was not
surprising in light of the makeup of the voting membership. Of
approximately 800 voting members of the NCAA, 500 or so are in
Divisions II and III, and are not subjected to NCAA television
controls. Of the 275 Division I members, only 187 play football,
and only 135 were members of Division I-A at the time of the
January Convention. Division I-A was made up of the most prominent
football-playing schools, and those schools account for most of the
football games shown on network television. Therefore, of some 850
voting members, less than 150 suffer any direct restriction on
their right to sell football games to television." Id. at 1317.

															[ Footnote 64 ]

															Moreover, the District Court found that those schools which
would realize increased revenues in a free market would not funnel
those revenues into their football programs. See id. at
1310.

															[ Footnote 65 ] See id. at 1296, 1309-1310.

															[ Footnote 66 ] See id. at 1284-1285, 1299.

															[ Footnote 67 ] See Continental T. V., Inc., 433 U.S. at 433 U. S. 54 -57. See also n 55, supra. [ Footnote 68 ]

															This is true not only for television viewers, but also for
athletes. The District Court's finding that the television exposure
of all schools would increase in the absence of the NCAA's
television plan means that smaller institutions appealing to
essentially local or regional markets would get more exposure if
the plan is enjoined, enhancing their ability to compete for
student athletes.

															JUSTICE WHITE, with whom JUSTICE REHNQUIST joins,
dissenting.

															The NCAA is an unincorporated, nonprofit, educational
association whose membership includes almost 800 nonprofit public
and private colleges and universities and more than Page 468 U. S. 121 100 nonprofit athletic conferences and other organizations.
Formed in 1905 in response to a public outcry concerning abuses in
intercollegiate athletics, the NCAA, through its annual convention,
establishes policies and rules governing its members' participation
in college sports, conducts national championships, exerts control
over some of the economic aspects of revenue-producing sports, and
engages in some more-or-1ess commercial activities. See Note, Tackling Intercollegiate Athletics: An Antitrust Analysis, 87
Yale L.J. 655, 656-657 (1978). Although some of the NCAA's
activities, viewed in isolation, bear a resemblance to those
undertaken by professional sports leagues and associations, the
Court errs in treating intercollegiate athletics under the NCAA's
control as a purely commercial venture in which colleges and
universities participate solely, or even primarily, in the pursuit
of profits. Accordingly, I dissent. I "While it would be fanciful to suggest that colleges are not
concerned about the profitability of their ventures, it is clear
that other, noncommercial goals play a central role in their sports
programs."

															J. Weistart & C. Lowell, The Law of Sports § 5.12 (1979).
The NCAA's member institutions have designed their competitive
athletic programs "to be a vital part of the educational system."
Constitution and Interpretations of the NCAA, Art. II, § 2(a)
(1982-1983), reprinted in App. 216. Deviations from this goal,
produced by a persistent and perhaps inevitable desire to "win at
all costs," have in the past led, and continue to lead, to a wide
range of competitive excesses that prove harmful to students and
institutions alike. See G. Hanford, Report to the American
Council on Education, An Inquiry into the Need for and Feasibility
of a National Study of Intercollegiate Athletics 74-76 (1974)
(Hanford); Marco, The Place of Intercollegiate Athletics in Higher
Education: The Responsibility of the Faculty, 31 J.Higher Educ.
422, 426 (1968). The fundamental policy Page 468 U. S. 122 underlying the NCAA's regulatory program, therefore, is to
minimize such deviations and

															"to maintain intercollegiate athletics as an integral part of
the educational program and the athlete as an integral part of the
student body and, by so doing, retain a clear line of demarcation
between college athletics and professional sports."

															Constitution and Interpretations of the NCAA, Art. II, § 2(a),
reprinted in App. 216. See 546
F. Supp. 1276 , 1309 (WD Okla.1982).

															The NCAA, in short,

															"exist[s] primarily to enhance the contribution made by amateur
athletic competition to the process of higher education, as
distinguished from realizing maximum return on it as an
entertainment commodity." Association for Intercollegiate Athletics for Women v.
NCAA, 558 F.
Supp. 487 , 494 (DC 1983), aff'd, 236 U.S.App.D.C. 311,
735 F.2d 577 (1984). In pursuing this goal, the organization and
its members seek to provide a public good -- a viable system of
amateur athletics -- that most likely could not be provided in a
perfectly competitive market. See Hennessey v. NCAA, 564
F.2d 1136, 1153 (CA5 1977).

															"Without regulation, the desire of member institutions to remain
athletically competitive would lead them to engage in activities
that deny amateurism to the public. No single institution could
confidently enforce its own standards, since it could not trust its
competitors to do the same."

															Note, Antitrust and Nonprofit Entities, 94 Harv.L.Rev. 802,
817-818 (1981). The history of intercollegiate athletics prior to
the advent of the NCAA provides ample support for this conclusion.
By mitigating what appears to be a clear failure of the free market
to serve the ends and goals of higher education, the NCAA ensures
the continued availability of a unique and valuable product, the
very existence of which might well be threatened by unbridled
competition in the economic sphere.

															In pursuit of its fundamental goal and others related to it, the
NCAA imposes numerous controls on intercollegiate athletic
competition among its members, many of which "are similar to those
which are summarily condemned when Page 468 U. S. 123 undertaken in a more traditional business setting." Weistart
& Lowell, supra, § 5.12.b. Thus, the NCAA has
promulgated and enforced rules limiting both the compensation of
student athletes, see, e.g., Justice v.
NCAA, 577 F.
Supp. 356 (Ariz.1983), and the number of coaches a school may
hire for its football and basketball programs, see, e.g.,
Hennessey v. NCAA, supra; it also has prohibited athletes who
formerly have been compensated for playing from participating in
intercollegiate competition, see, e.g., Jones v.
NCAA, 392 F.
Supp. 295 (Mass.1975), restricted the number of athletic
scholarships its members may award, and established minimum
academic standards for recipients of those scholarships; and it has
pervasively regulated the recruitment process, student eligibility,
practice schedules, squad size, the number of games played, and
many other aspects of intercollegiate athletics. See 707
F.2d 1147, 1153 (CA10 1983); 546 F. Supp. at 1309. One clear effect
of most, if not all, of these regulations is to prevent
institutions with competitively and economically successful
programs from taking advantage of their success by expanding their
programs, improving the quality of the product they offer, and
increasing their sports revenues. Yet each of these regulations
represents a desirable and legitimate attempt

															"to keep university athletics from becoming professionalized to
the extent that profitmaking objectives would overshadow
educational objectives." Kupec v. Atlantic Coast Conference, 399 F.
Supp. 1377 , 1380 (MDNC 1975). Significantly, neither the Court
of Appeals nor this Court questions the validity of these
regulations under the Rule of Reason. See ante at 468 U. S.
100 -102, 117; 707 F.2d at 1153.

															Notwithstanding the contrary conclusion of the District Court,
546 F. Supp. at 1316, and the majority, ante at 468 U. S. 117 ,
I do not believe that the restraint under consideration in this
case the NCAA's television plan -- differs fundamentally for
antitrust purposes from the other seemingly anticompetitive aspects
of the organization's broader program of self-regulation. Page 468 U. S. 124 The television plan, like many of the NCAA's actions, furthers
several complementary ends. Specifically, the plan is designed

															"to reduce, insofar as possible, the adverse effects of live
television . . . upon football game attendance and, in turn, upon
the athletic and related educational programs dependent upon the
proceeds therefrom; to spread football television participation
among as many colleges as practicable; to reflect properly the
image of universities as educational institutions; to promote
college football through the use of television, to advance the
overall interests of intercollegiate athletics, and to provide
college football television to the public to the extent compatible
with these other objectives."

															App. 35. See also id. at 244, 323, 640, 651, 672. More
generally, in my view, the television plan reflects the NCAA's
fundamental policy of preserving amateurism and integrating
athletics and education. Nor does the District Court's finding that
the plan is intended to maximize television revenues, 546 F. Supp.
at 1288-1289, 1315-1316, warrant any implication that the NCAA and
its member institutions pursue this goal without regard to the
organization's stated policies.

															Before addressing the infirmities in the Court's opinion, I
should state my understanding of what the Court holds. To do so, it
is necessary first to restate the essentials of the NCAA's
television plan and to refer to the course of this case in the
lower courts. Under the plan at issue, 4-year contracts were
entered into with the American Broadcasting Cos. (ABC), Columbia
Broadcasting System (CBS), and Turner Broadcasting System (Turner)
after competitive bidding. Every fall, ABC and CBS were to present
14 exposures of college football and Turner would show 19 evening
games. The overall price for each network was stated in the
contracts. The networks select the games to be telecast and pay
directly to the colleges involved what has developed to be Page 468 U. S. 125 a uniform fee for each game telecast. Unless within one of the
exceptions, only the designated number of games may be broadcast,
and no NCAA member may arrange for televising its games other than
pursuant to the plan. Under this scheme, of course, NCAA members
must compete against one another for television appearances,
although this competition is limited somewhat by the fact that no
college may appear on television more than six times in any 2-year
period. In 1983, 242 games were televised, 89 network games and 153
under the exceptions provided in the television plan. In 1983, 173
schools appeared on television, 89 on network games and an
additional 84 teams under the exceptions. Report of the 1983 NCAA
Football Television Committee to the 78th Annual Convention of the
NCAA 61-65 (1984). [ Footnote
2/1 ]

															The District Court held that the plan constituted price-fixing
and output limitation illegal per se under § 1 of the
Sherman Act; it also held that the scheme was an illegal group
boycott, was monopolization forbidden by § 2, and was, in any
event, an unreasonable restraint of trade. It then entered an
injunction that, for all practical purposes, excluded the NCAA from
interfering with or regulating its members' arrangements for
televising their football games. The Court of Appeals, while
disagreeing with the boycott and monopolization holdings, otherwise
upheld the District Court's judgment that the television plan
violated the Sherman Act, focusing almost entirely on the
price-fixing and output-limiting aspects of the television plan.
The Court of Appeals, however, differed with the District Court
with respect to the injunction. After noting that the injunction
vested exclusive control of television rights in the individual
schools, the court stated that,

															"[w]hile we hold that the NCAA cannot Page 468 U. S. 126 lawfully maintain exclusive control of the rights, how far such
rights may be commonly regulated involves speculation that should
not be made on the record of the instant case."

															707 F.2d at 1162. The court expressly stated, for example, that
the NCAA could prevent its members from telecasting games on Friday
night in competition with high school games, ibid., emphasized that the disparity in revenue between schools could be
reduced by

															"[a] properly drawn system of pass-over payments to ensure
adequate athletic funding for schools that do not earn substantial
television revenues," id. at 1159, and indicated that it was not outlawing
"membership-wide contract[s] with opt-out and pass-over payment
provisions, or blackout rules." Id. at 1162. It
nevertheless left the District Court's injunction in full force and
remanded the case for further proceedings in light of its opinion.
Anticipating that the Court would grant certiorari, I stayed the
judgment of the Court of Appeals. 463 U. S. 1311 (1983).

															In affirming the Court of Appeals, the Court first holds that
the television plan has sufficient redeeming virtues to escape
condemnation as a per se violation of the Sherman Act,
this because of the inherent characteristics of competitive
athletics and the justifiable role of the NCAA in regulating
college athletics. It nevertheless affirms the Court of Appeals'
judgment that the NCAA plan is an unreasonable restraint of trade
because of what it deems to be the plan's price-fixing and
output-1imiting aspects. As I shall explain, in reaching this
result, the Court traps itself in commercial antitrust rhetoric and
ideology, and ignores the context in which the restraints have been
imposed. But it is essential at this point to emphasize that
neither the Court of Appeals nor this Court purports to hold that
the NCAA may not (1) require its members who televise their games
to pool and share the compensation received among themselves, with
other schools, and with the NCAA; (2) limit the number of times any
member may arrange to have its games shown on Page 468 U. S. 127 television; or (3) enforce reasonable blackout rules to avoid
head-to-head competition for television audiences. As I shall
demonstrate, the Court wisely and correctly does not condemn such
regulations. What the Court does affirm is the Court of Appeals'
judgment that the NCAA may not limit the number of games that are
broadcast on television, and that it may not contract for an
overall price that has the effect of setting the price for
individual game broadcast rights. [ Footnote 2/2 ] I disagree with the Court in these
respects. II "In a competitive market," the District Court observed,

															"each football-playing institution would be an independent
seller of the right to telecast its football games. Each seller
would be free to sell that right to any entity it chose,"

															and "for whatever price it could get." 546 F. Supp. at 1318.
Under the NCAA's television plan, member institutions' competitive
freedom is restrained because, for the most part, television rights
are bought and sold, not on a per-game basis, but as a package
deal. With limited exceptions not particularly relevant to
antitrust scrutiny of the plan, broadcasters wishing to televise
college football must be willing and able to purchase a package of
television rights without knowing in advance the particular games
to which those rights apply. The real negotiations over price and
terms take place between the broadcasters and the NCAA, rather Page 468 U. S. 128 than between the broadcasters and individual schools. Knowing
that some games will be worth more to them than others, the
networks undoubtedly exercise whatever bargaining power they
possess to ensure that the minimum aggregate compensation they
agree to provide for the package bears some relation to the average
value to them of the games they anticipate televising. Because some
schools' games contribute disproportionately to the total value of
the package, see id. at 1293, the manner in which the
minimum aggregate compensation is distributed among schools whose
games are televised has given rise to a situation under which less
prominent schools receive more in rights fees than they would
receive in a competitive market, and football powers like
respondents receive less. Id. at 1315.

															As I have said, the Court does not hold, nor did the Court of
Appeals hold, that this redistributive effect, alone, would be
sufficient to subject the television plan to condemnation under § 1
of the Sherman Act. Nor should it, for an agreement to share
football revenues to a certain extent is an essential aspect of
maintaining some balance of strength among competing colleges, and
of minimizing the tendency to professionalism in the dominant
schools. Sharing with the NCAA itself is also a price legitimately
exacted in exchange for the numerous benefits of membership in the
NCAA, including its many-faceted efforts to maintain a system of
competitive, amateur athletics. For the same reasons, limiting the
number of television appearances by any college is an essential
attribute of a balanced amateur athletic system. Even with shared
television revenues, unlimited appearances by a few schools would
inevitably give them an insuperable advantage over all others, and
in the end defeat any efforts to maintain a system of athletic
competition among amateurs who measure up to college scholastic
requirements.

															The Court relies instead primarily on the District Court's
findings that (1) the television plan restricts output; and (2) the
plan creates a noncompetitive price structure that is unresponsive
to viewer demand. Ante at 468 U. S.
104 -106. See, Page 468 U. S.
129 e.g., 546 F. Supp. at 1318-1319. These findings
notwithstanding, I am unconvinced that the television plan has a
substantial anticompetitive effect.

															First, it is not clear to me that the District Court employed
the proper measure of output. I am not prepared to say that the
District Court's finding that "many more college football games
would be televised" in the absence of the NCAA controls, id. at 1294, is clearly erroneous. To the extent that
output is measured solely in terms of the number of televised
games, I need not deny that it is reduced by the NCAA's television
plan. But this measure of output is not the proper one. The
District Court found that eliminating the plan would reduce the
number of games on network television and increase the number of
games shown locally and regionally. Id. at 1307. It made
no finding concerning the effect of the plan on total viewership,
which is the more appropriate measure of output or, at least, of
the claimed anticompetitive effects of the NCAA plan. This is the
NCAA's position, and it seems likely to me that the television
plan, by increasing network coverage at the expense of local
broadcasts, actually expands the total television audience for NCAA
football. The NCAA would surely be an irrational "profit maximizer"
if this were not the case. In the absence of a contrary finding by
the District Court, I cannot conclude that respondents carried
their burden of showing that the television plan has an adverse
effect on output, and is therefore anticompetitive.

															Second, and even more important, I am unconvinced that
respondents have proved that any reduction in the number of
televised college football games brought about by the NCAA's
television plan has resulted in an anticompetitive increase in the
price of television rights. The District Court found, of course,
that

															"the networks are actually paying the large fees because the
NCAA agrees to limit production. If the NCAA would not agree to
limit production, the networks would not pay so large a fee." Id. at 1294. Undoubtedly, this is true. But the market
for television rights to college football competitions should not
be equated to the markets Page 468 U. S. 130 for wheat or widgets. Reductions in output by monopolists in
most product markets enable producers to exact a higher price for
the same product. By restricting the number of games that can be
televised, however, the NCAA creates a new product --
exclusive television rights -- that are more valuable to networks
than the products that its individual members could market
independently.

															The television plan makes a certain number of games available
for purchase by television networks and limits the incidence of
head-to-head competition between football telecasts for the
available viewers. Because competition is limited, the purchasing
network can count on a larger share of the audience, which
translates into greater advertising revenues and, accordingly, into
larger payments per game to the televised teams. There is thus a
relationship between the size of the rights payments and the value
of the product being purchased by the networks; a network
purchasing a series of games under the plan is willing to pay more
than would one purchasing the same games in the absence of the
plan, since the plan enables the network to deliver a larger share
of the available audience to advertisers, and thus to increase its
own revenues. In short, by focusing only on the price paid by the
networks for television rights, rather than on the nature and
quality of the product delivered by the NCAA and its member
institutions, the District Court, and this Court as well, may well
have deemed anticompetitive a rise in price that more properly
should be attributed to an increase in output, measured in terms of
viewership.

															Third, the District Court's emphasis on the prices paid for
particular games seems misdirected and erroneous as a matter of
law. The distribution of the minimum aggregate fees among
participants in the television plan is, of course, not wholly based
on a competitive price structure that is responsive to viewer
demand, and is only partially related to the value those schools
contribute to the total package the networks agree to buy. But as I
have already indicated, see Page 468 U. S.
131 supra at 468 U. S. 128 ,
this "redistribution" of total television revenues is a wholly
justifiable, even necessary, aspect of maintaining a system of
truly competitive college teams. As long as the NCAA cannot
artificially fix the price of the entire package and demand
supercompetitive prices, this aspect of the plan should be of
little concern: and I find little, if anything, in the record to
support the notion that the NCAA has power to extract from the
television networks more than the broadcasting rights are worth in
the marketplace. III Even if I were convinced that the District Court did not err in
failing to look to total viewership, as opposed to the number of
televised games, when measuring output and anticompetitive effect,
and in failing fully to consider whether the NCAA possesses power
to fix the package price, as opposed to the distribution of that
package price among participating teams, I would nevertheless hold
that the television plan passes muster under the Rule of Reason.
The NCAA argues strenuously that the plan and the network
contracts

															"are part of a joint venture among many of the nation's
universities to create a product -- high-quality college football
-- and offer that product in a way attractive to both fans in the
stadiums and viewers on [television]. The cooperation in producing
the product makes it more competitive against other [television]
(and live) attractions."

															Brief for Petitioner 15. The Court recognizes that,

															"[i]f the NCAA faced 'interbrand' competition from available
substitutes, then certain forms of collective action might be
appropriate in order to enhance its ability to compete." Ante at 468 U. S. 115 ,
n. 55. See Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36 , 433 U. S. 54 -57
(1977). It rejects the NCAA's proffered procompetitive
justification, however, on the ground that college football is a
unique product for which there are no available substitutes, and
"there is no need for collective action in Page 468 U. S. 132 order to enable the product to compete against its nonexistent
competitors." Ante at 468 U. S. 115 (footnote omitted). This proposition is singularly
unpersuasive.

															It is one thing to say that "NCAA football is a unique product,"
546 F. Supp. at 1299, that "intercollegiate football telecasts
generate an audience uniquely attractive to advertisers, and that
competitors are unable to offer programming that can attract a
similar audience." Ante at 468 U. S. 111 (footnote omitted). See 707 F.2d at 1158-1159; 546 F.
Supp. at 1298-1300. It is quite another, in my view, to say that
maintenance or enhancement of the quality of NCAA football
telecasts is unnecessary to enable those telecasts to compete
effectively against other forms of entertainment. The NCAA has no
monopoly power when competing against other types of entertainment.
Should the quality of the NCAA's product

															"deteriorate to any perceptible degree, or should the cost of
'using' its product rise, some fans undoubtedly would turn to
another form of entertainment. . . . Because of the broad
possibilities for alternative forms of entertainment,"

															the NCAA "properly belongs in the broader entertainment'
market, rather than in . . . [a] narrower marke[t]" like sports or
football. Grauer, Recognition of the National Football League as a
Single Entity Under Section 1 of the Sherman Act: Implications of
the Consumer Welfare Model, 82 Mich.L.Rev. 1, 34, n. 156 (1983). See National Football League v. North American Soccer
League, 459 U. S. 1074 ,
1077 (1982) (REHNQUIST, J., dissenting from the denial of
certiorari); R. Atwell, B. Grimes, & D. Lopiano, The Money Game
32-33 (1980); Hanford, at 67; J. Michener, Sports in America
208-209 (1976); Note, 87 Yale L.J. at 661, and n. 31. The NCAA has suggested a number of plausible ways in which its
television plan might enhance the ability of college football
telecasts to compete against other forms of entertainment. Brief
for Petitioner 22-25. Although the District Court did conclude that
the plan is "not necessary for effective marketing of the product,"
546 F Supp., at 1307, its Page 468 U. S. 133 finding was directed only at the question whether college
football telecasts would continue in the absence of the plan. It
made no explicit findings concerning the effect of the plan on
viewership, and thus did not reject the factual premise of the
NCAA's argument that the plan might enhance competition by
increasing the market penetration of NCAA football. See
also 707 F.2d at 1154-1156, 1160. The District Court's finding
that network coverage of NCAA football would likely decrease if the
plan were struck down, 546 F. Supp. at 1307, in fact, strongly
suggests the validity of the NCAA's position. On the record now
before the Court, therefore, I am not prepared to conclude that the
restraints imposed by the NCAA's television plan are "such as may
suppress or even destroy competition," rather than "such as merely
regulat[e], and perhaps thereby promot[e], competition." Chicago Board of Trade v. United States, 246 U.
S. 231 , 246 U. S. 238 (1918). IV Finally, I return to the point with which I began -- the
essentially noneconomic nature of the NCAA's program of
self-regulation. Like Judge Barrett, who dissented in the Court of
Appeals, I believe that the lower courts

															"erred by subjugating the NCAA's educational goals (and,
incidentally, those which Oklahoma and Georgia insist must be
maintained in any event) to the purely competitive commercialism of
[an] 'every school for itself' approach to television contract
bargaining."

															707 F.2d at 1168. Although the NCAA does not enjoy blanket
immunity from the antitrust laws, cf. Goldfarb v. Virginia
State Bar, 421 U. S. 773 (1975), it is important to remember that the Sherman Act

															"is aimed primarily at combinations having commercial objectives
and is applied only to a very limited extent to organizations . . .
which normally have other objectives." Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207 , 359 U. S. 213 ,
n. 7 (1959).

															The fact that a restraint operates on nonprofit educational
institutions as distinguished from business entities is as
"relevant Page 468 U. S. 134 in determining whether that particular restraint violates the
Sherman Act" as is the fact that a restraint affects a profession,
rather than a business. Goldfarb v. Virginia State Bar,
supra, at 788, n. 17. Cf. Community Communications Co. v.
Boulder, 455 U. S. 40 , 455 U. S. 56 , n.
20 (1982). The legitimate noneconomic goals of colleges and
universities should not be ignored in analyzing restraints imposed
by associations of such institutions on their members, and these
noneconomic goals

															"may require that a particular practice, which could properly be
viewed as a violation of the Sherman Act in another context, be
treated differently." Goldfarb v. Virginia State Bar, supra, at 421 U. S. 788 ,
n. 17. The Court of Appeals, like the District Court, flatly
refused to consider what it termed "noneconomic" justifications
advanced by the NCAA in support of the television plan. It was of
the view that our decision in National Society of Professional
Engineers v. United States, 435 U. S. 679 (1978), precludes reliance on noneconomic factors in assessing the
reasonableness of the television plan. 707 F.2d at 1154; see Tr. of Oral Arg. 24-25. This view was mistaken, and I
note that the Court does not in so many words repeat this
error. Professional Engineers did make clear that antitrust
analysis usually turns on "competitive conditions" and "economic
conceptions." 435 U.S. at 435 U. S. 690 ,
and n. 16. Ordinarily,

															"the inquiry mandated by the Rule of Reason is whether the
challenged agreement is one that promotes competition or one that
suppresses competition." Id. at 435 U. S. 691 .
The purpose of antitrust analysis, the Court emphasized,

															"is to form a judgment about the competitive significance of the
restraint; it is not to decide whether a policy favoring
competition is in the public interest, or in the interest of the
members of an industry." Id. at 435 U. S. 692 .
Broadly read, these statements suggest that noneconomic values like
the promotion of amateurism and fundamental educational objectives
could not save the television plan from condemnation under the
Sherman Act. Page 468 U. S. 135 But these statements were made in response to "public interest"
justifications proffered in defense of a ban on competitive bidding
imposed by practitioners engaged in standard, profit-motivated
commercial activities. The primarily noneconomic values pursued by
educational institutions differ fundamentally from the "overriding
commercial purpose of [the] day-to-day activities" of engineers,
lawyers, doctors, and businessmen, Gulland, Byrne, & Steinbach,
Intercollegiate Athletics and Television Contracts: Beyond Economic
Justifications in Antitrust Analysis of Agreements Among Colleges,
52 Ford.L.Rev. 717, 728 (1984), and neither Professional
Engineers nor any other decision of this Court suggests that
associations of nonprofit educational institutions must defend
their self-regulatory restraints solely in terms of their
competitive impact, without regard for the legitimate noneconomic
values they promote.

															When these values are factored into the balance, the NCAA's
television plan seems eminently reasonable. Most fundamentally, the
plan fosters the goal of amateurism by spreading revenues among
various schools and reducing the financial incentives toward
professionalism. As the Court observes, the NCAA imposes a variety
of restrictions perhaps better suited than the television plan for
the preservation of amateurism. Ante at 468 U. S. 119 .
Although the NCAA does attempt vigorously to enforce these
restrictions, the vast potential for abuse suggests that measures,
like the television plan, designed to limit the rewards of
professionalism are fully consistent with, and essential to the
attainment of, the NCAA's objectives. In short,

															"[t]he restraints upon Oklahoma and Georgia and other colleges
and universities with excellent football programs insure that they
confine those programs within the principles of amateurism, so that
intercollegiate athletics supplement, rather than inhibit,
educational achievement."

															707 F.2d at 1167 (Barrett, J., dissenting). The collateral
consequences of the spreading of Page 468 U. S. 136 regional and national appearances among a number of schools are
many: the television plan, like the ban on compensating student
athletes, may well encourage students to choose their schools, at
least in part, on the basis of educational quality by reducing the
perceived economic element of the choice, see Note, 87
Yale L.J. at 676, n. 106; it helps ensure the economic viability of
athletic programs at a wide variety of schools with weaker football
teams; and it "promot[es] competitive football among many and
varied amateur teams nationwide." Gulland, Byrne, & Steinbach, supra, at 722 (footnote omitted). These important
contributions, I believe, are sufficient to offset any minimal
anticompetitive effects of the television plan.

															For all of these reasons, I would reverse the judgment of the
Court of Appeals. At the very least, the Court of Appeals should be
directed to vacate the injunction of the District Court pending the
further proceedings that will be necessary to amend the outstanding
injunction to accommodate the substantial remaining authority of
the NCAA to regulate the telecasting of its members' football
games.

															[ Footnote 2/1 ]

															Television plans with similar features have been in place since
1951. The 1951-1953 plans were submitted to the Antitrust Division
of the Department of Justice for review. The Department took the
matter "under study," App. 284-285, and, until this litigation, has
apparently never taken the position that the NCAA's television
plans were unlawful.

															[ Footnote 2/2 ]

															This litigation was triggered by the NCAA's response to an
attempt by the College Football Association (CFA), an organization
of the more dominant football-playing schools and conferences, to
develop an independent television plan. To the extent that its plan
contains features similar to those condemned as anticompetitive by
the Court, the CFA may well have antitrust problems of its own. To
the extent that they desire continued membership in the NCAA,
moreover, participation in a television plan developed by the CFA
will not exempt football powers like respondents from the many
kinds of NCAA controls over television appearances that the Court
does not purport to invalidate.