IN RE: Professional Hockey Antitrust Litigation

Case MDL No. 119 Document 2 Filed 04/30/15 Page 1 of 14
. ey =_ “i ’ - -: MULT.C	rm eis SE
i esa y EE EO .
BEFORE THE JUDICIAL PANEL oo
ON JENS jo73 ee WLMULTIDISTRICT LITIGATION 4H 0
IN RE PROFESSIONAL HOCKEY ) CE
ANTITRUST LITIGATION ) DOCKET NO. 119 So
BEFORE ALFRED P. MURRAH*, CHAIRMAN, AND JOHN MINOR WISDOM, 11 | |
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, [lb 2) :JOSEPH S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF ’ :
THE PANEL Cee
PER CURIAM
Prior to the formation of the World Hockey Association (WHA)
in 1971, the National Hockey League (NHL) was the only major :
league professional hockey association in North America. Member
teams in the WHA successfully induced many players under contract :
to NHL teams to disregard the so-called "reserve clause" in their : :
1971-72 standard Player's Contracts and to sign contracts with WHA :
teams for the 1972-73 hockey season. As a result, lawsuits were
filed by affected NHL clubs to prevent the defendant players from :
playing for or rendering services to any club except the NHL :
teams which held their contracts. Additional actions were brought
by the WHA and its member clubs against the NHL and its member oo
clubs alleging violations of the federal antitrust laws.
One of the parties involved in the litigation moved the
Panel for an order transferring eight actions to a single district
* Although Judge Alfred P. Murrah was unable to attend
the hearing, he has, with the consent of all parties, participated
in this decision.

Case MDL No. 119 Document 2 Filed 04/30/15 Page 2 of 14
ca
LJ | oT	N for pretrial proceedings. All parties, except plaintiff Nassau
Sports, have urged that the actions be consolidated for pretrial
proceedings in the Eastern District of Pennsylvania. We find
that, for the convenience of parties and witnesses and the just
and efficient conduct of the litigation, the actions on the
attached Schedule A pending in the Districts of Massachusetts
and Minnesota must be transferred, pursuant to 28 U.S.C. §1407,
to the Eastern District of Pennsylvania for coordinated or
consolidated pretrial proceedings with the actions pending in
that district. We also find that, on principles of comity,
transfer of the actions brought by plaintiff Nassau Sports in
the Eastern District of New York is inappropriate at this
& time.The basic issue in all of these actions, including the
ones by plaintiff Nassau Sports pending in the Eastern District
of New York, is whether the NHL and its member teams have
violated the federal antitrust laws through the "reserve clause"
in their contracts, affiliation agreements and market power
dominance. The parties have conceded, and we find, that
common questions of fact exist and that common document discovery
and depositions will be pursued in this litigation. The parties
also agree, and we find, that the Eastern District of Pennsylvania
is the most appropriate transferee district for this litigation.
The majority of the discovery to date has taken place in the
®

Case MDL No. 119 Document 2 Filed 04/30/15 Page 3 of 14
» <a
actions pending in that district and Judge A. Leon Higginbotham,
Jr. of that district has already ruled on motions for preliminary
injunctions and is completely familiar with the issues raised in
1/
these actions.
Plaintiff Nassau Sports brought two actions in the Eastern
District of New York seeking to enjoin the defendant players
from playing for any professional hockey team other than
2/
Nassau. The plaintiff's motions for a preliminary injunction
have been briefed, argued and reargued in that court and are
3/
now sub judice.
1l/ On November 8, 1972, Judge Higginbotham issued a 124 page
opinion and order preliminarily enjoining "the National Hockey
League, its member clubs and teams, and those actions on its
behalf, . . . from further prosecuting, commencing, or threatening
to commence any legal proceeding pursuant to and/or to enforce
the so-called 'reserve clause' (presently Paragraph 17) of the
National Hockey League Standard Player's Contract, against any
player, coach or other person whose contract, but for the :
reserve clause, expired on or before November 8, 1972." 1In
addition to detailed findings of fact, Judge Higginbotham
discussed at length the issues raised and the applicable law.
Philadelphia World Hockey Club, Inc. v. Philadelphia Hocke
Club, Inc., __ F. Supp. (E.D. Pa. 1972)
2/ Nassau Sports, etc. v. Garry Peters, et al., E.D.N.Y.,
Civil Action No. 72 Civ. 1086 and Nassau Sports, etc. v. Norman
Ferguson, et al., E.D.N.Y., Civil Action No. 72 Civ. 1132
3/ On procedural grounds, Judge Higginbotham specificallyFeserved ruling on whether his opinion and order of November '
( 1972, was applicable to Nassau Sports. Philadelphia World HockeClub. Inc. v. Philadelphia Hockey Club, Inc., supra, note 57
at (E.D. Pa. 1972].

Case MDL No. 119 Document2 Filed 04/30/15 Page	4 of 14
- 4 -
® We have consistently adhered to well-founded principles of
comity in deciding motions for transfer under Section 1407:
The Panel is keenly aware of the problems of
the District Courts and Courts of Appeals in which
is pending multidistrict litigation subject to
transfer under Section 1407. There is no disposition
on the part of the Panel to act hastily or without a
considerate and well deserved respect for these courts,
on principles of comity.
On principles of comity, where appropriate, the
Panel has in the past timed its actions and constructed
its orders in a manner which will permit the transferor
courts . . . to reach timely decisions on particular
issues without abrupt, disconcerting, untimely or
inappropriate orders of transfer by the Panel. This
policy of comity has been followed in the past and
will be followed in the future by the Panel. 4/
Inasmuch as plaintiff's motions for a preliminary injunction
& are sub judice, transfer of the two Nassau Sports actions
pending in the Eastern District of New York is inappropriate
5/
at this time. Transfer is denied, however, without prejudice
to reconsideration by the Panel, either on its own initiative
or on motion of one of the parties, at a later time.
IT IS THEREFORE ORDERED that all actions on the attached
Schedule A pending in the District of Massachusetts and the
District of Minnesota be, and the same hereby are, transferred
to the Eastern District of Pennsylvania and assigned to the
Honorable A. Leon Higginbotham, Jr. for coordinated or
4/ In re Plumbing Fixtures Cases, 298 F. Supp. 484, 496
(J.P.M.L. 1968).
oP 3/ Subsequent to the Panel hearing concerning this litigationthe Panel was advised that a "Memorandum Decision and Order" was
entered in Nassau Sports; etc. vw. Garry Peters, et-al., E.D.N.Y.
Civil Action No. 72 Civ. 1086, régarding plaintiff's motion for
a preliminary injunction.

Case MDL No. 119 Document 2 Filed 04/30/15 Page 5 of 14
® 5
| consolidated pretrial proceedings, pursuant to 28 U.S.C. §1407,
with the actions pending in that district.
IT IS FURTHER ORDERED that transfer of Nassau Sports, etc.
v. Garry Peters, et al., E.D.N.Y., Civil Action No. 72 Civ. 1086
and Nassau Sports, etc. v. Norman Ferguson, et al., E.D.N.Y.,
Civil Action No. 72 Civ. 1132 be, and the same hereby iss DENIED
without prejudice to later reconsideration by the Panel upon
its own initiative or motion of one of the parties.
o
@®

Case MDL No. 119 Document 2 Filed 04/30/15 Page 6 of 14
® SCHEDULE A DOCKET NO. 119
DISTRICT OF MASSACHUSETTS
Boston Professional Hockey Assn., Inc. Vv. Civil Action
Derek Sanderson No. 72-2490-C
Boston Professional Hockey Assn., Inc. v. Civil Action
Gerry Cheevers No. 72-2484-C
DISTRICT OF MINNESOTA
Nassau Sports v. Edward Hampson, et al. Civil Action
No. 4-72 Civ. 466
EASTERN DISTRICT OF PENNSYLVANIA
Philadelphia World Hockey Club, Inc. v. Civil Action
Philadelphia Hockey Club, Inc. No. 72-1661
World Hockey Assn., et al. v. National Civil Action
Hockey League, et al. No. 72-1995
Sports Centrepoint Enterprises Ltd., et al. Civil Action
& v. National Hockey League No. 72-1906

Case MDL No. 119 Document 2 Filed 04/30/15 Page 7 of 14
~~
BEFORE THE JUDICIAL PANEL = == 7° Co
ON oo
MULTIDISTRICT LITIGATION A Le
IN RE PROFESSIONAL HOCKEY ) LU AOE a
ANTITRUST LITIGATION ) - Pelt
)
California Sports, Inc. v. Serge Bernier, )
et al., C.D. Cal., Civil Action No. ) DOCKET NO. 119
C-73-2127-ALS )
World Hockey Association, et al. v. Nassau ) 19Sports, et al., E.D.N.Y., Civil Action ) iy go
No. 73C1370 ) tfea¢ Lo Co
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER,
JOSEPH S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM :
This litigation arises out of the competition for N
players between the two major league professional hockey associa-
tions: the newly formed World Hockey Association (WHA) and the }
established National Hockey League (NHL). The basic issue :
involved in all actions is whether the NHL and its member teams :
have violated the federal antitrust laws through the "reserve
clause" in their contracts, affiliation agreements and market
power dominance. We previously transferred these actions to
the Eastern District of Pennsylvania for coordinated or consoli-
dated pretrial proceedings. In re Professional Hockey Antitrust
Litigation, 352 F. Supp. 1405 (J.P.M.L. 1973) and F. Supp.
(J.P.M.L., filed January 3, 13574).
* Although Judge Lord was not present ak the hearing, he has,
with the consent of all parties, participated in this
decision.

Case MDL No. 119 Document2 Filed 04/30/15 Page	8 of 14
® “Eo
The above-captioned actions appeared to involve the
same basic issue and the Panel ordered the parties to show
cause why the actions should not also be transferred to the
Eastern District of Pennsylvania. Prior to the Panel hearing,
the California Sports action was transferred to that district
under 28 U.S.C. §l1404 (a). Inasmuch as transfer under Section
1404 (a) is for all purposes, the question of transfer of this
action under Section 1407 is now moot. Defendants in the WHA
action, however, oppose transfer. We find that the WHA action
raises questions of fact common to the previously transferred
actions and that for the convenience of the parties and witnesses
and the just and efficient conduct of the litigation, this action
® must be transferred to the Eastern District of Pennsylvania
pursuant to Section 1407.
Defendants argue that the issues in the WHA action
are distinguishable from those in the other actions in the
litigation because Nassau Sports has only been a member of the
NHL since October 1972. They also contend that they have not
participated in any of the discovery in the transferee district
and that they would be highly prejudiced by transfer so late
in the pretrial proceedings.
Defendants' arguments are not persuasive. First, our
decision is necessarily influenced by the facts as pleaded.
On its face, the complaint in the WHA action contains allegations
substantially identical to those asserted by the WHA in the
® actions presently pending in the transferee district. Clearly,

Case MDL No. 119 Document2 Filed 04/30/15 Page	9 of 14
® ne
unless this action is transferred the vast majority of the
document and depositional discovery pursued will duplicate that
already undertaken or contemplated in the transferee court.
Secondly, we do not perceive how transfer at this time will prej-
udice defendants. Discovery in this action has not yet commenced.
And even assuming that discovery in the coordinated or consoli-
dated proceedings is far advanced, appropriate orders may be
entered by the transferee court making that discovery available
to these parties and preventing unnecessary duplication and
inconvenience. See Manual for Complex Litigation, Part I,
§3.11 (1973). Furthermore, we recently transferred three actions
to the transferee district which involve defendant Nassau Sports
@ and raise the same antitrust issues as those in the WHA action.
___F. Supp. __ (J.P.M.L., filed January 3, 1974).
IT IS THEREFORE ORDERED that the action entitled
World Hockey Association, et al. v. Nassau Sports, et al., E.D.N.Y.,
Civil Action No. 73Cl370 be, and the same hereby is, transferred
to the Eastern District of Pennsylvania and, with the consent of
that court, assigned to the Honorable A. Leon Higginbotham, Jr.
for coordinated or consolidated pretrial proceedings with the
actions in the above-captioned litigation.
IT I8 FURTHER ORDERED that transfer of California Sports,
Inc. v. SergeBernier,	et al., C.D. Cal., Civil Action No.
C-73-2127-ALS, under 28 U.S.C. §1407 be, and the same hereby is,
DENIED because the question ig moot.
9

Case MDL No. 119 Document 2 Filed 04/30/15 Page 10 of 14
’ ) EP
BEFORE THE JUDICIAL PANEL | EE
ON : -
MULTIDISTRICT LITIGATION Ja ger IEEE
IN RE PROFESSIONAL HOCKEY 2) SET ER oe
ANTITRUST LITIGATION ey SI
)
Nassau Sports v.Garry Peters, et al., )
E.D.N.Y., Civil Action No. 72 Civ. 1086 ) DOCKET NO. 119
Nassau Sports v. Norman Ferguson, et al., )
E.D.N.Y.,Civil Action No. 72 Civ. 1132 ) |
Nassau Sports v. Houston Hockey Club, et al., ) - 9. RES.D. Texas, Civil Action No. 72-H-1356 ) /l po A
CCF
OPINION AND ORDER ] I PE - : :
BEFORE ALFRED P. MURRAH, CHAIRMAN, AND JOHN MINOR WISDOM,
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, :
JOSEPH S. LORD, III, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM .
The Panel previously transferred several actions
involving the World Hockey Association (WHA) and the National
Hockey League (NHL) to the Eastern District of Pennsylvania ;
and, with the consent of that court, assigned them to the
Honorable A. Leon Higginbotham,Jr. for coordinated or consoli-
dated pretrial proceedings pursuant to 28 U.S.C. 51407. In re :
Professional Hockey Antitrust Litigation, 352 F. Supp. 1405
(J.P.M.L. 1973). We are now urged to similarly transfer the oo
above-captioned actions. Nassau Sports, plaintiff in each of
the actions, opposes transfer. We find that all three actions
raise questions of fact common to the actions previously
transferred to the Eastern District of Pennsylvania and that
their transfer for coordinated or consolidated pretrial pro-
ceedings will best s=rve the convenience of the parties and

Case MDL No. 119 Document 2 Filed 04/30/15 Page 11 of 14
ee.
se witnesses and promote the just and efficient conduct of the
litigation.
I. Transfer of the Peters and Ferguson Actions
In our previous opinion and order in this litigation,
we found that:
The basic issue in all of these actions,
including the ones by plaintiff Nassau Sports
pending in the Eastern District of New York
(the Peters and Ferguson actions), is whether
the NHL and its member teams have violated
the federal antitrust laws through the "reserve
clause" in their contracts, affiliation agree-
ments and market power dominance. The parties
have conceded, and we find, that common questions
of fact exist and that common document discovery
and depositions will be pursued in this litiga-
tion. 352 F. Supp at 1406.
® Notwithstanding these findings, the Panel initially
denied transfer of the Peters and Ferguson actions, without
prejudice to reconsideration, solely on the ground that
plaintiff's motions for preliminary injunctions were sub judice.
352 F. Supp. at 1407. Decisions were rendered on the prelim-
inary injunction motions and, as a result, the question of
transferring both actions to the Eastern District of Pennsyl~-
vania under Section 1407 came before the Panel again. We were
then advised, however, that a notice of appeal had been filed
in the Court of Appeals for the Second Circuit with respect to
the Peters action and we necessarily deferred our decision.
Cf. In re National Student Marketing Litigation, 358 F. Supp.
1303 (J.P.M.L. 1973). That appeal has been dismissed by the
@® parties and therefore the Peters and Ferguson actions are now
ripe for transfer.

Case MDL No. 119 Document 2 Filed 04/30/15 Page 12 of 14
Ts Our review of the file record in the Peters and
Ferguson actions in the Eastern District of New York reveals
that little discovery has been undertaken. And although dis-
covery is well advanced in the previously transferred actions,
the parties will not be prejudiced by transfer at this time
because the transferee court may enter appropriate orders to
protect their interests and still prevent duplication of
discovery. See Manual for Complex Litigation, Part I, §3.11
(1973).
II. Transfer of the Houston Action
The Houston action was originally filed in Texas state
® court and later removed to the United States District Courtfor the Southern District of Texas. Shortly thereafter,
plaintiff filed a motion to remand the action to state court.
Defendants now move the Panel for transfer of the action to
the Eastern District of Pennsylvania. Plaintiff opposes
transfer on the ground that the remand motion should be decided
by the Texas federal court.
We find that the Houston action involves questions
of fact virtually identical to those raised in the actions
previously transferred by the Panel and that the criteria for
transfer of this action under Section 1407 are clearly satisfied.
Inasmuch as the transferee judge has the power to rule on the
question of remand, we perceive no reason to delay transfer.
C See In re Florida Everglades	Air Disaster Litigation, _
F. Supp. ____ (J.P.M.L., filed December 14, 1273).

Case MDL No. 119 Document 2 Filed 04/30/15 Page 13 of 14
Qe a. a
IT IS THEREFORE ORDERED that the actions entitled
Nassau Sports v. Garry Peters, et al., E.D.N.Y., Civil Action
No. 72 Civ. 1086; Nassau Sports v. Norman Ferguson, et al.,
E.D.N.Y., Civil Action No. 72 Civ. 1132; and Nassau Sports
v. Houston Hockey Club, et al., S.D. Texas, Civil Action No.
72-H-1356 be, and the same hereby are, transferred to the
Eastern District of Pennsylvania and, with the consent of that
court, assigned to the Honorable A. Leon Higginbotham, Jr.
for coordinated or consolidated pretrial proceedings with the
actions in the above-captioned litigation which are already
pending in that district.
®
®

Case MDL No. 119 Document2 Filed 04/30/15 Page 14 of 14
Q EDWARD WEINFELD, Judge of the panel (dissenting) fe oo
Jo BRET	= nT
I dissent insofar as the Nassau Sports, |
v. Gary Peters, et al.(E.D.N.Y. 72 civ. 1086) and Co
Nassau Sports v. Norman Ferguson, et al. (E.D.N.Y.
72 Civ. 1132) actions are concerned. Upon the argu-
ment of this motion it appeared that discovery in
these matters was well advanced in the original dis-
trict of commencement of suit and counsel represented
that the cases were ripe for trial there. In the cir-
cumstances, a transfer would not be "for the convenience
® of parties [nor] . . . promote the just and efficient
conduct" of such action as required by 28 U.S.C.,
section 1407. I would leave these actions where they
are.
@