
USCA1 Opinion

	




          September 29, 1994                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 94-1031                                   WILLIAM H. SULLIVAN II,                                Plaintiff - Appellee,                                         v.                                PAUL TAGLIABUE, ET AL.,                                Defendants -Appellees.                                 ____________________                             NATIONAL FOOTBALL LEAGUE, &                       MEMBERS OF THE NATIONAL FOOTBALL LEAGUE                               Defendants - Appellants.                                 ____________________                                     ERRATA SHEET               The opinion of this  Court issued on September 16,  1994, is          amended as follows:               The caption  on  the coversheet  should read:   "William  H.          Sullivan II,  Plaintiff - Appellee v. National Football League, &          Members of the  National Football League."   "Paul Tagliabue,  et          al., Defendants - Appellees" should be deleted.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1031                               WILLIAM H. SULLIVAN II,                                Plaintiff - Appellee,                                          v.                             NATIONAL FOOTBALL LEAGUE, &                        MEMBERS OF THE NATIONAL FOOTBALL LEAGUE                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               John Vanderstar, with whom Sonya D. Winner, Ethan M. Posner,               _______________            _______________  _______________          Covington  &  Burling,  Jeremiah  T.  O'Sullivan,  Sarah   Chapin          _____________________   ________________________   ______________          Columbia,  Choate,  Hall  &  Stewart,  Joseph  W.  Cotchett,  and          ________   _________________________   ____________________          Cotchett, Illston & Pitre were on brief for appellants.          _________________________               Joseph L. Alioto and Frederick P. Furth, with whom Angela M.               ________________     __________________            _________          Alioto,  Law Offices of Joseph L. Alioto, Alan R. Hoffman, Lynch,          ______   _______________________________  _______________  ______          Brewer,  Hoffman & Sands, Bruce J. Wecker, Michael P. Lehmann and          ________________________  _______________  __________________          Furth, Fahrner & Mason, were on brief for appellees.          ______________________                                 ____________________                                  September 16, 1994                                 ____________________                    TORRUELLA, Circuit Judge.  The National Football League                               _____________          and twenty-one  organizations owning NFL franchises  (referred to          collectively as  the "NFL")  appeal the judgment  entered against          them  after a jury found that the NFL violated the antitrust laws          by  restricting  owners of  member  football  clubs from  selling          shares in their teams to the public.  Plaintiff-appellee, William          H. Sullivan, former  owner of the  New England Patriots  football          team  (the "Patriots"),  was awarded  a total  of $51  million in          damages for the losses Sullivan incurred when he had to  sell the          Patriots  to a  private buyer  after the  NFL prevented  him from          offering 49%  of the team to  the public in the  form of publicly          traded stock.  Because  several prejudicial errors were committed          during the trial,  we vacate  the judgment and  remand for a  new          trial.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Under  Article 3.5  of the  NFL's constitution  and by-          laws,  three-quarters of  the NFL  club  owners must  approve all          transfers  of ownership  interests  in an  NFL  team, other  than          transfers within a  family.  In conjunction with this  rule is an          uncodified policy against  the sale of ownership  interests in an          NFL  club to  the  public through  offerings  of publicly  traded          stock.  The  members, however, retain  full authority to  approve          any given transfer by a three-quarters vote  according to Article          3.5.                    Sullivan  owned the Patriots  from the team's inception          in  1959 until  October  of  1988.    When  Sullivan  formed  the                                         -2-          Patriots, he and his  partner sold non-voting shares of  the team          to the public beginning in 1960.  At that time, the Patriots were          in  the old American Football League  ("AFL"), which was separate          from the NFL, and which had no policy against public ownership of          teams.  In  1966, the AFL and  the old NFL  merged into a  single          league.  Under  the terms of the merger, the  new NFL would adopt          the old NFL's  policy against  public ownership.   The  Patriots,          however, were allowed  to retain their level of  public ownership          as a special exception to the rule under a grandfather clause.                    In 1976,  Sullivan sought to acquire  the publicly held          shares of  the Patriots through a  merger of the club  into a new          Sullivan-owned company.   Stockholders approved  the transfer and          the  transaction  was  subsequently  consummated,  although  some          shareholders   subsequently   brought   suit,   challenging   the          sufficiency of the purchase  price.  After protracted litigation,          the shareholders  obtained a  judgment requiring Sullivan  to pay          them a higher price for their shares.  The Patriots then became a          fully privately owned club.                    Sullivan  and his  son, Chuck  Sullivan, who  owned the          stadium where the Patriots  played, began to experience financial          difficulties  and increasing debt burdens in  the mid-1980s.  The          Sullivans decided that  they needed to raise capital to alleviate          their financial problems.   After the Boston Celtics professional          basketball franchise made a public offering of 40% of the team in          December  of 1986, the Sullivans decided to pursue a similar deal          with the Patriots in order  to raise cash to cover some  of their                                         -3-          debts.                    On October  19, 1987, the Sullivans  met with Stephens,          Inc.,  a small investment banking firm  in Little Rock, Arkansas.          They discussed a  debt financing deal whereby Stephens would loan          the  Sullivans  $80  million  dollars,  with  half going  to  the          Patriots  and the  other half  to Chuck Sullivan's  company which          owned the Patriots' stadium.   The Patriots' portion of  the loan          would  be repaid out  of the proceeds  of the sale of  49% of the          Patriots through the  offering of public stock.   Stephens agreed          to  look into the possibility of arranging the deal, but informed          the Sullivans that  they would  first have to  get NFL  approval.          Sullivan ultimately never obtained NFL approval and the deal with          Stephens never progressed beyond some preliminary discussions.                    At a meeting  of the  NFL owners on  October 27,  1987,          Sullivan raised his  stock sale  idea with the  other owners  and          asked  for  a modification  of  the NFL's  policy  against public          ownership  to  allow for  certain  controlled  sales of  minority          interests  in NFL  clubs.   Alternatively,  Sullivan requested  a          waiver  from the  public  ownership policy  for his  contemplated          public  offering  of  the   Patriots.    Sullivan's  request  was          eventually tabled  at this meeting.   Discussions continued among          the  owners  and, at  one point,  Sullivan counted  17 of  the 21          owners needed for  approval as being in favor  of allowing him to          make  his public  offering (seven  owners were  still undecided).          Pete Rozelle, NFL Commissioner  at the time, told  Sullivans that          he  was  not in  favor of  Sullivan's  proposals and  that league                                         -4-          approval was "very dubious."  Sullivan ultimately never asked for          a vote on amending  the ownership policy or on waiving the policy          for the Patriots,  and the NFL never held such  a vote.  Sullivan          claims that he did not ask for a  vote because it would have been          futile.                    In  October of  1988,  Sullivan sold  the Patriots  for          approximately  $83.7  million to  KMS  Patriots  L.P. ("KMS"),  a          limited  partnership owned  by  Victor Kiam  and Francis  Murray.          Sullivan alleges that, absent  the NFL's public ownership policy,          he  would have been able to retain  a majority share of a rapidly          appreciating  asset with  a  high potential  for future  profits.          Instead,  Sullivan asserts, he was forced to sell the Patriots at          a depressed price to private buyers.                    On May 16, 1991, Sullivan  sued the NFL claiming  that,          among other  things, the NFL  had violated the  Sherman Antitrust          Act, 15 U.S.C.    1-2, by preventing him from selling  49% of the          Patriots to the public  in an equity offering.   Sullivan alleged          that, as a  result, he was forced  to sell the  entire team to  a          private  buyer at a fire sale price  in order to pay off existing          debts.  Prior  to trial, the district  court dismissed Sullivan's          claim under    2 of the Sherman Act along  with various state law          claims.   After  a trial  on Sullivan's  claim under    1  of the          Sherman  Act, the  jury rendered  a verdict  for Sullivan  in the          amount of  $38 million,  which the  judge  later reduced  through          remittitur  to $17 million.   Pursuant to  15 U.S.C.    15, which          provides for  treble damages for antitrust  violations, the court                                         -5-          entered a final judgment for Sullivan of $51 million.                                         -6-                                    II.  ANALYSIS                                    II.  ANALYSIS                    The  NFL  has  raised  a number  of  issues  on  appeal          concerning the application of   1 of the Sherman Act to the facts          of this case, which, according to the NFL, entitle it to judgment          as a matter  of law.  We address these issues first to see if the          present case should be dismissed, and we ultimately conclude that          it should  not.  We next  address the NFL's  allegations of trial          error and we  find that several of them require  that we overturn          the verdict in this case and order a new trial.                    The first  set of issues involves  the district court's          denial of the NFL's motions for judgment as a matter of law under          Fed. R.  Civ. P.  50.   We review the  court's decision  de novo,                                                                   _______          using the same stringent decisional standards that controlled the          district court.  Gallagher v. Wilton Enterprises,  Inc., 962 F.2d                           _________    _________________________          120, 125 (1st  Cir. 1992);  Hendricks & Assocs.,  Inc. v.  Daewoo                                      __________________________     ______          Corp., 923 F.2d 209, 214 (1st Cir. 1991).  Under these standards,          _____          judgment for the NFL can only be ordered if  the evidence, viewed          in the light most  favorable to Sullivan, points so  strongly and          overwhelmingly  in favor of the NFL, that a reasonable jury could          not have arrived at a verdict for Sullivan.  Gallagher,  962 F.2d                                                       _________          at 124-25; Hendricks, 923 F.2d at 214.                     _________                III.  ISSUES ALLEGEDLY REQUIRING JUDGMENT FOR THE NFL                III.  ISSUES ALLEGEDLY REQUIRING JUDGMENT FOR THE NFL                             A.  Lack of Antitrust Injury                             A.  Lack of Antitrust Injury                    To establish  an antitrust violation  under   1  of the          Sherman Act, Sullivan must prove that  the NFL's public ownership          policy is "in  restraint of  trade."  Monahan's  Marine, Inc.  v.                                                _______________________                                         -7-          Boston Whaler, Inc., 866  F.2d 525, 526  (1st Cir. 1989).   Under          ___________________          antitrust  law's  "rule  of  reason,"  the  NFL's  policy  is  in          restraint  of trade if the anticompetitive  effects of the policy          outweigh the policy's legitimate business justifications.  Id. at                                                                     __          526-27 (citing  Business Electronics Corp.  v. Sharp  Electronics                          __________________________     __________________          Corp., 485  U.S. 717, 723 (1988)).  Anticompetitive effects, more          _____          commonly referred to as  "injury to competition" or "harm  to the          competitive  process," are  usually  measured by  a reduction  in                                                              _____________          output  and  an  increase  in  prices  in  the  relevant  market.          ______           ____________________          National Collegiate  Athletic Ass'n v. Board of  Regents of Univ.          ___________________________________    __________________________          of  Okla., 468 U.S. 85, 104-07 (1984) ("Restrictions on price and          _________          output  are the  paradigmatic examples  of restraints  of trade")          (hereinafter   "NCAA");   Chicago   Professional    Sports   Ltd.                          ____      _______________________________________          Partnership v. National Basketball Association, 961 F.2d 667, 670          ___________    _______________________________          (7th Cir.),  cert. denied,  113 S.  Ct.  409 (1992).   Injury  to                       ____  ______          competition has also  been described more  generally in terms  of          decreased efficiency in the marketplace  which negatively impacts          ____________________          consumers.   Town of Concord v.  Boston Edison Co.,  915 F.2d 17,                       _______________     _________________          21-22  (1st  Cir.  1990),  cert.  denied,  499  U.S.  931 (1991);                                     ____   ______          Interface Group, Inc. v. Massachusetts Port Auth., 816 F.2d 9, 10          _____________________    ________________________          (1st Cir. 1987).   Thus, an action harms the  competitive process          "when it obstructs the achievement of competition's basic goals -          - lower  prices, better  products, and more  efficient production          methods."  Town of Concord, 915 F.2d at 22.                     _______________                    The jury determined in this case, via a special verdict          form,  that the relevant market is the "nationwide market for the                                         -8-          sale and purchase of ownership interests in the National Football          League member clubs, in general, and in the New England Patriots,          in particular."   The jury went on to find  that the NFL's policy          had an "actual harmful effect" on competition in this market.                    The  NFL  argues  on   appeal  that  Sullivan  has  not          established the  existence of any injury to competition, and thus          has not established a  restraint of trade that can  be attributed          to  the NFL's ownership policy.  The league's attack is two-fold,          asserting (1)  that NFL clubs do not  compete with each other for          the sale of ownership interests in their teams so there exists no          competition  to be injured in  the first place;  and (2) Sullivan          did not present sufficient evidence of injury to competition from          which  a reasonable  jury could  conclude that  the  NFL's policy          restrains   trade.    Although   we  agree  with   the  NFL  that          conceptualizing the  harm to competition  in this case  is rather          difficult, precedent and deference to the jury verdict ultimately          require us to reject the NFL's challenge to the finding of injury          to competition.                    Critically, the  NFL does  not challenge on  appeal the                                               ___          jury's   initial  finding   of   the  relevant   market  and   no          corresponding challenge was raised  at trial.1  As a  result, the                                        ____________________          1   The  NFL  argues in  passing  that certain  expert  testimony          related to the relevant  market issue was inherently unreasonable          and thus could  not support the  jury's relevant market  finding.          We  do not  consider this  passing argument  to be  sufficient to          raise the relevant market  issue on appeal as matters  averted to          in  a  perfunctory  manner,   unaccompanied  by  some  effort  at          developed  argumentation, are  deemed waived  on appeal.   United                                                                     ______          States  v. Innamorati, 996 F.2d  456, 468 (1st  Cir. 1993).  More          ______     __________          importantly, the NFL  did not challenge the relevant market issue                                         -9-          NFL faces  an uphill battle in  its attack on the  presence of an          injury  to competition.  Given the existence of a relevant market          for ownership interests in NFL teams, it is reasonable to presume          that  a  policy  restricting  the  buying  and  selling  of  such          ownership interests injures competition in that market.   The NFL          nevertheless maintains that NFL teams do not compete against each          other  for  the sale  of their  ownership  interests, even  if we          accept that a market exists for such ownership interests.                    1.  No Competition Subject to Injury as Matter of Law                    1.  No Competition Subject to Injury as Matter of Law                        _________________________________________________                    The  NFL correctly  points out  that member  clubs must          cooperate in  a variety of ways, and may do so lawfully, in order          to  make  the  football league  a  success.    See United  States                                                         ___ ______________          Football League v.  National Football League, 842 F.2d 1335, 1372          _______________     ________________________          (2d Cir. 1988); Los Angeles Memorial Coliseum  Comm'n v. National                          _____________________________________    ________          Football League, 726 F.2d 1381, 1391-92 (9th Cir.), cert. denied,          _______________                                     ____  ______          469 U.S. 990 (1984) (hereinafter "L.A. Coliseum"); North American                                            _____________    ______________          Soccer  League v. National  Football League, 670  F.2d 1249, 1251          ______________    _________________________          (2d  Cir.),  cert.  denied,  459 U.S.  1074  (1982)  (hereinafter                       ____   ______          "NASL").   On the  other hand,  it is  well established  that NFL           ____          clubs also compete  with each other,  both on and off  the field,          for  things like  fan  support, players,  coaches, ticket  sales,          local  broadcast revenues,  and the  sale of  team paraphernalia.          Mid-South Grizzlies  v. National  Football League, 720  F.2d 772,          ___________________     _________________________                                        ____________________          in  either its  directed  verdict motion  or  in its  motion  for          judgment  as a  matter of law.   We  will not  consider arguments          which  could have been, but were not, advanced below.  Domegan v.                                                                 _______          Fair, 859 F.2d 1059, 1065 (1st Cir. 1988).          ____                                         -10-          786-87 (3d Cir. 1983),  cert. denied, 467 U.S. 1215  (1984); L.A.                                  ____  ______                         ____          Coliseum, 726 F.2d at  1390, 1393, 1395, 1397.   The question  of          ________          whether competition  exists between NFL  teams for sale  of their          ownership interests, such that the NFL's ownership policy injures          this  competition, is  ultimately a  question of  fact.   The NFL          would have us find, however, that,  as a matter of law, NFL teams          do not compete against each other for the sale of their ownership          interests.  We decline to make such a finding.                    The NFL  relies on  a series  of cases  which allegedly          stand for the "well established" rule that a professional  sports          league's  restrictions on who may  join the league  or acquire an          interest in a member club do not  give rise to a claim under  the          antitrust laws.   Seattle  Totems Hockey  Club, Inc. v.  National                            __________________________________     ________          Hockey League, 783 F.2d  1347 (9th Cir.), cert. denied,  479 U.S.          _____________                             ____  ______          932  (1986); Fishman v. Estate  of Wirtz, 807  F.2d 520 (7th Cir.                       _______    ________________          1986); Mid-South Grizzlies,  720 F.2d at  772; Levin v.  National                 ___________________                     _____     ________          Basketball Ass'n, 385 F. Supp. 149 (S.D.N.Y. 1974).  These cases,          ________________          all involving a professional  sport's league's refusal to approve          individual  transfers of  team ownership or  the creation  of new          teams,  do  not  stand for  the  broad  proposition  that no  NFL          ownership policy  can injure competition.   See, e.g.,  NASL, 670                                                      ___  ____   ____          F.2d at  1259-61 (finding  that the  NFL's policy against  cross-          ownership  of  NFL  teams  and  franchises  in  competing  sports          leagues, which  also effectively barred certain  owners who owned          other  sports  franchises  from  purchasing  NFL  teams,  injured          competition between the NFL and competing sports leagues and thus                                         -11-          violated   1 of the Sherman Act).                    None  of the  cases  cited by  the  NFL considered  the          particular relevant market  that was  found by the  jury in  this          case or a league policy against public ownership.  Seattle Totems                                                             ______________          and   Mid-South   Grizzlies  considered   potential  inter-league                _____________________                          _____          competition   when   a   sports   league   rejected   plaintiffs'          applications for new league franchises.  Seattle Totems, 783 F.2d                                                   ______________          at 1349-50;  Mid-South  Grizzlies, 720  F.2d  at 785-86.    Those                       ____________________          decisions found  no injury to competition  because the plaintiffs          were not competing with the defendant sports leagues, but rather,          were seeking to join those leagues.   Seattle Totems, 783 F.2d at                                                ______________          1350;  Mid-South  Grizzlies,  720  F.2d  at  785-86.    Mid-South                 ____________________                             _________          Grizzlies left open  the possibility that  potential intra-league          _________                                            _____          competition  between NFL football  clubs could  be harmed  by the          NFL's action, but found  that the plaintiff in that  case had not          presented sufficient evidence of harm to  such competition.  Mid-                                                                       ____          South Grizzlies, 720 F.2d at 786-87.          _______________                    The Fishman  and  Levin cases  concerned  the  National                        _______       _____          Basketball  Association's  ("N.B.A.")  rejection  of  plaintiffs'          attempts to  buy an existing team.   Fishman, 807 F.2d at 525-31;                                               _______          Levin,  385 F.  Supp. at  150-51.   Those cases also  based their          _____          finding that there was no injury to  competition on the fact that          the  plaintiffs were seeking  to join  with, rather  than compete          against, the  N.B.A.   Fishman, 807  F.2d at  544; Levin, 385  F.                                 _______                     _____          Supp.  at  152.    Neither case  considered  whether  competition          between teams for investment capital was injured.  As pointed out                                         -12-          in Piazza v.  Major League  Baseball, 831 F.  Supp. 420  (E.D.Pa.             ______     ______________________          1993),   Fishman   explicitly   recognized   the   potential  for                   _______          competition in  the market for  ownership of teams,  although the          plaintiff  had  failed to  raise  the  issue,  and  Levin  simply                                                              _____          presumed, incorrectly, that there  could never be any competition          among league  members.  Piazza,  831 F.  Supp. at  430-31 &  n.16                                  ______          (citing Fishman, 807 F.2d at 532 n.9; and Levin, 385  F. Supp. at                  _______                           _____          152).                       The  important distinction  to make  between the  cases          cited by  the NFL  and the  present case  is  that here  Sullivan          alleges that the NFL's  policy against public ownership generally          restricts  competition  between  clubs  for  the  sale  of  their          ownership interests,  whereas  in  the  aforementioned  cases,  a          league's refusal to  approve a  given sale transaction  or a  new          team  merely  prevented  particular outsiders  from  joining  the          league,  but   did  not  limit  competition   between  the  teams          themselves.   To put it  another way, the  NFL's public ownership          policy allegedly does  not merely prevent the  replacement of one          club owner with another -- an action having little evident effect          on  competition --  it compromises  the entire  process by  which          competition for club ownership occurs.2                                        ____________________          2   This same argument  distinguishes cases cited by  the NFL for          the  proposition that  a franchisor's  disapproval of  a proposed          sale of  a franchise does not  give rise to  an antitrust injury.          See  Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690 (5th Cir.          ___  __________    ______________________          1975), cert.  denied, 424  U.S. 943  (1976); McDaniel  v. General                 ____   ______                         ________     _______          Motors  Corp.,  480 F.  Supp.  666 (E.D.N.Y.  1979).   Individual          _____________          decisions to  block the sale of a  franchise do not implicate the          harm  to competition that is  caused by a  policy restricting all          sales of a certain type of  ownership interest.  Only the  broad-                                         -13-                    We take a moment to briefly address a related  argument          raised by  the NFL to  the effect  that NFL clubs  are unable  to          conspire  with each other  under   1  of the  Sherman Act because          they  function as a single enterprise in relation to the league's          public  ownership  policy.    The NFL  asserts  that  the Supreme          Court's holding  in Copperweld Corp. v.  Independence Tube Corp.,                              ________________     _______________________          467  U.S. 752  (1984),  controls  the  facts  of  this  case  and          overturns  prior caselaw holding that NFL clubs do not constitute          a single enterprise but rather,  are separate entities which were          capable  of conspiring  with each  other  under    1.   See  L.A.                                                                  ___  ____          Coliseum, 726 F.2d at 1387-90; NASL, 670 F.2d at 1256-58.          ________                       ____                    We  do  not  agree   that  Copperweld,  which  found  a                                               __________          corporation and  its  wholly  owned subsidiary  to  be  a  single          enterprise  for purposes  of    1, Copperweld,  467 U.S.  at 771,                                             __________          applies  to the facts of this case or affects the prior precedent          concerning  the NFL.  See McNeil v. National Football League, 790                                ___ ______    ________________________          F. Supp. 871, 879-80 (D.Minn.  1992) (holding that Copperweld did                                                             __________          not apply to  the NFL and its member clubs  and finding the clubs          to be separate  entities capable of  conspiring together under             1).   Copperweld's holding turned on the fact that the subsidiary                __________          of a corporation, although  legally distinct from the corporation          itself, "pursue[d] the  common interests of the whole rather than          interests  separate  from  those   of  the  corporation  itself."          Copperweld,  467  U.S. at  770.   As  emphasized in  City  of Mt.          __________                                           ____________                                        ____________________          based  policy   has  the  potential  to   compromise  the  entire          competitive process  for the buying  and selling of  a good in  a          relevant market.                                         -14-          Pleasant,  Iowa v.  Associated Elec. Co-op.,  Inc., 838  F.2d 268          _______________     ______________________________          (8th Cir. 1988), upon which the NFL relies for the application of          Copperweld  to this  case,  the critical  inquiry is  whether the          __________          alleged  antitrust conspirators  have a  "unity of  interests" or          whether, instead,  "any of  the defendants has  pursued interests          diverse from  those of  the cooperative  itself."  Id. at  274-77                                                             __          (defining "diverse" as "interests which tend to show that any two          of  the  defendants  are,  or  have  been,  actual  or  potential          competitors").    As we  have  already  noted, NFL  member  clubs          compete in several ways off the field, which itself tends to show          that the teams pursue diverse interests and thus are not a single          enterprise under   1.                    Ultimately,  the NFL's Copperweld challenge is subsumed                                           __________          under the question of whether  or not the evidence can support  a          finding that NFL teams compete against each other for the sale of          their  ownership interests.   Proof  of such  competition defeats          both  the  NFL's  challenge to  the  existence  of  an injury  to          competition  and   the   NFL's  Copperweld   argument  as   well.                                          __________          Insufficient proof  of such competition would  require a judgment          in  favor of the NFL anyway, regardless of the implications under          Copperweld.  As we  discuss below, the jury's finding  that there          __________          exists  competition  between  teams  for the  sale  of  ownership          interests was based on sufficient evidence.                    2.  Insufficient Evidence of Harm to Competition                    2.  Insufficient Evidence of Harm to Competition                        ____________________________________________                    The   NFL  contends  that   Sullivan  did  not  present          sufficient evidence concerning: (1) the existence of  competition                                         -15-          between NFL clubs  for the sale of ownership  interests, or (2) a          decrease in output,  an increase in prices,  a detrimental effect          on  efficiency or other incidents  of harm to  competition in the          relevant market, from which a reasonable jury could conclude that          the NFL's policy injured competition.  Although we agree that the          evidence  of all these factors  is rather thin,  we disagree that          the evidence  is too thin to support a jury verdict in Sullivan's          favor.                     With   respect  to   evidence  of   the  existence   of          competition  for   the  sale  of  ownership   interests,  one  of          Sullivan's experts, Professor Roger  Noll, testified that "one of          the ways in which the NFL exercises monopoly power in the  market          for  the franchises and ownership  is by excluding certain people          from owning  all or part --  any type part of  an NFL franchise."          Dr.  Noll explained that this "enables a group of owners, in this          case, you only need eight owners,  to exclude from the League and          from  competing with  them, people  who  might be  more effective          competitors than they are."   The record also contains statements          from several NFL owners which could reasonably be interpreted  as          expressions of concern about their  ability to compete with other          teams  in the market for  investment capital in  general, and for          the  sale of  ownership interests  in particular.    For example,          Arthur  Rooney II of the  Pittsburgh Steelers stated  in a letter          that  he did not "believe  that the individually  or family owned          teams  will  be able  to compete  with the  consolidated groups."          Ralph  Wilson of the  Buffalo Bills stated  that big corporations                                         -16-          should not own teams because it gives them an "unfair competitive          advantage" over other teams  since corporations will funnel money          into  the  team and  make it  "more  competitive" than  the other          franchises.   Former NFL Commissioner Pete  Rozelle admitted that          similar sentiments had been expressed by NFL members.                    Although   it   is  not   precisely   clear  that   the          "competition"  about   which  Noll,   Rooney,  and  Wilson   were          discussing  is  the same  competition at  issue  here --  that is          competition for the sale  of ownership interests -- a  jury could          reasonably interpret these statements as expressing a belief that          the competition  exists between teams  for the sale  of ownership          interests.    The statements  of the  two  NFL owners  imply that          greater access  to  capital  for all  teams  will  put  increased          pressure on some teams  to compete with others for  that capital,          and  all   the  statements  reveal  that   the  ownership  rules,          particularly  the  rule against  public  ownership,  is the  main          obstacle  preventing such  access.   The  fact that  ownership by          "consolidated  groups"  is not  necessarily  the  same as  public          ownership  does  not  affect   the  conclusion  that  teams  face          competitive   pressure  in  selling   their  ownership  interests          generally to whoever  might buy them.  We also note that evidence          of  actual, present competition is  not necessary as  long as the          evidence shows that the potential for competition exists.  See L.                                                                     ___ __          A.  Coliseum,  726  F.2d  at  1394  (discussing  significance  of          ____________          potential  competition, especially where challenged policy limits          _________          such  competition so  that it  is not evident  in practice).   It                                         -17-          would  be   difficult  indeed  to  provide   direct  evidence  of          competition when the NFL effectively prohibits it.                     The  NFL  focusses  on  the fact  that  Professor  Noll          testified that many of the purchasers of Patriots' stock would be          New England  sports fans and others in the New England area.  The          NFL points  out that other  NFL teams would not  compete with the          Patriots for the sale of stock to their own fans.   This argument          slightly  distorts Professor  Noll's testimony.   Professor  Noll          stated that local  souvenir buyers  would be one  portion of  the          market for Patriots stock.  Professor Noll also testified several          times  that other investors would buy Patriots stock as well, for          investment  purposes.  Noll's point was  that the souvenir buyers          would serve to bid up the price of the stock above what the price          would  normally be if  the Patriots were a  regular company.  His          testimony  did not  preclude  a finding  that  NFL teams  compete          against  each  other  for  investment  capital via  the  sale  of          ownership interests.                    The record  also  contains sufficient  evidence of  the          normal incidents of injury to competition from the NFL's policy -          - reduced output, increased prices,  and reduced efficiency -- to          support the  jury's verdict.   As  Dr. Noll  pointed  out in  his          testimony, the NFL's policy "excludes individuals . . . who might          want to own a  share of stock  in a professional football  team."          Several  NFL  officials  themselves  admitted   that  the  policy          restricts  the market  for  investment capital  among NFL  teams.          There  is thus  little dispute  that  the NFL's  ownership policy                                         -18-          reduces the available output of ownership interests.                    The NFL is correct that, in one sense, the overall pool          of potential output is fixed because there are  only 28 NFL teams          and, although their  value may fluctuate,  the quantity of  their          ownership interests cannot.   However, the NFL's public ownership          policy completely  wipes out a certain type of ownership interest          -- public  ownership of stock.  By restricting output in one form                                                                       ____          of ownership, the NFL is thereby reducing the output of ownership          interests  overall.    In  other  words,  the  NFL  is  literally          restricting the output of a product -- a share in an NFL team.                    There  was considerable testimony  concerning the price          effects  of the NFL policy.  Both of Sullivan's experts testified          that the policy depressed the price of ownership interests in NFL          teams because NFL franchises would normally command  a premium on          the  public market relative to their value in the private market,          which is all that  the league currently permits.   Professor Noll          testified that fan loyalty  would push up the price  of ownership          interests  if  sales to  the public  were  allowed.   Even former          Commissioner Pete Rozelle acknowledged  that "it was pointed out,          with  justification,  it  has  been over  the  years,  that  [the          ownership policy] does restrict your market and, very likely, the          price you  could get for one  of our franchises if  you wanted to          sell it, because  you are eliminating a very broad market . . . .          And they have  said that there is a depression  on the price they          could get for their franchise."                    The NFL  points  out that  the  alleged effect  of  its                                         -19-          ownership  policy is  to  reduce  prices  of NFL  team  ownership                                    ______          interests,  rather than  to raise  prices which  is normally  the          measure of an injury to competition.  E.g.,  Town of Concord, 915                                                ____   _______________          F.2d at 22.  We acknowledge that it is not  clear whether, absent          some sort of dumping or  predatory pricing, see, e.g.,  Monahan's                                                      ___  ____   _________          Marine, Inc. v. Boston Whaler, Inc., 866 F.2d 525,  527 (1st Cir.          ____________    ___________________          1989), a decrease in prices can indicate injury to competition in          a  relevant market.   The Supreme Court  has emphasized, however,          that overall consumer preferences in setting output and prices is          more  important than higher prices  and lower output,  per se, in                                                                 ______          determining  whether there  has  been an  injury to  competition.          NCAA, 468  U.S. at 107.   In this  case, regardless of  the exact          ____          price  effects of the NFL's policy, the overall market effects of          the  policy  are  plainly  unresponsive to  consumer  demand  for          ownership interests in NFL  teams.  Dr. Noll testified  that fans          are interested in  buying shares in NFL teams and  that the NFL's          policy deprives  fans of  this product.   Moreover, evidence  was          presented concerning  the public  offering of the  Boston Celtics          professional  basketball  team which  demonstrated,  according to          some  of  the testimony,  fan  interest  in buying  ownership  of          professional  sports teams.  Thus, a jury could conclude that the          NFL's policy  injured competition  by making the  relevant market          "unresponsive to consumer preference."  Id.3                                                  __                                        ____________________          3   The  NFL maintains  that price  and output  are not  affected          because its ownership policy  does not limit the number  of games          or  teams, does  not raise ticket  prices or  the prices  of game          telecasts  and does not affect  the normal consumer  of the NFL's          product in any  other way.   Such facts might  be relevant to  an                                         -20-                    As for overall efficiency of production in the relevant          market,4  Sullivan's  experts  testified that  the  NFL's  policy          hindered  efficiency  gains, and  that allowing  public ownership          would make for better football teams.  Professor Noll stated that          the NFL's public ownership policy prevented individuals who might          be "more  efficient and  much better  at  running a  professional          football  team" from  owning teams.   Dr.  Noll also  stated that          publicly owned  NFL teams  would be better  managed, and  produce          higher quality entertainment  for the fans.   Noll testified that          the  ownership  rule   excluded  certain   types  of   management          structures which  would likely be  more efficient in  running the          teams,  resulting in  higher  franchise values.   One  NFL owner,          Lamar  Hunt, acknowledged  that increased  access to  capital can          improve  a  team's  operations  and performance.    A  memorandum          prepared  by an NFL staff member stated that changes to the NFL's                                        ____________________          inquiry of whether the NFL's policy harms overall efficiency, see                                                                        ___          infra note  [4], but  it is not  relevant to  whether the  policy          _____          affects output  and prices in  the relevant market  for ownership                                     _______________________          interests.   Just  because consumers  of "NFL  football" are  not          affected  by output  controls and price  increases does  not mean          that  consumers of a  product in the  relevant market  are not so          affected.   In  this  case, two  types  of consumers  are  denied          products  by the NFL policy:  consumers who want  to buy stock of          the Patriots or other teams, and consumers like Sullivan who want          to  "purchase"  investment  capital  in  the  market  for  public          financing.          4   Although  the product  at  issue in  the  relevant market  is          "ownership interests," efficiency  in production of  that product          can be measured by the value of the ownership interest.  That is,          an improved  product produced more efficiently  will be reflected          in the value of the output in question (regardless of the price).          In this case, the value of  the product depends on the success of          the  Patriots'  football  team,  the overall  efficiency  of  its          operations, and the success of the NFL in general.                                          -21-          public ownership  policy could contribute to each  NFL team's own          financial strength and viability, which in turn would benefit the          entire NFL because  the league  has a strong  interest in  having          strong, viable teams.                    The  NFL presented a  large amount  of evidence  to the          contrary and  now claims on  appeal that Sullivan's  position was          based on nothing more  than sheer speculation.  We  have reviewed          the record, however,  and we cannot say that the  evidence was so          overwhelming that no  reasonable jury could find  against the NFL          and in favor  of Sullivan.  We therefore refuse to enter judgment          in favor of the NFL as a matter of law.                                B.  Ancillary Benefits                                B.  Ancillary Benefits                    The  NFL next argues that  even if its public ownership          policy  injures competition in  a relevant  market, it  should be          upheld as ancillary to the legitimate joint activity that is "NFL                    _________          football" and thus not violative of the Sherman Act.   We take no          issue  with the  proposition that  certain joint  ventures enable          separate business entities to  combine their skills and resources          in pursuit of a common goal that cannot be effectively pursued by          the  venturers acting alone.  See, e.g., Broadcast Music, Inc. v.                                        ___  ____  _____________________          Columbia Broadcasting System, Inc.,  441 U.S. 1 (1979).   We also          __________________________________          do  not dispute  that  a "restraint"  that  is ancillary  to  the          functioning of such a joint activity -- i.e. one that is required          to make the joint activity more efficient -- does not necessarily          violate  the antitrust laws.  Broadcast Music, 441 U.S. at 23-25;                                        _______________          Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210,          _________________________    _____________________                                         -22-          at 223-24 (D.C. Cir.  1986), cert. denied, 479 U.S.  1033 (1987);                                       ____  ______          see  also   Northwest  Wholesale  Stationers,  Inc.   v.  Pacific          _________   _______________________________________       _______          Stationery  &  Printing Co.,  472 U.S.  284,  295-96 (1985).   We          ___________________________          further  accept,   for  purposes  of  this   appeal,  that  rules          controlling who  may join a joint  venture can be ancillary  to a          legitimate joint activity and  that the NFL's own policy  against          public  ownership constitutes  one example  of such  an ancillary          ______          rule.    Finally,  we accept  the  NFL's  claim  that its  public          ownership  policy  contributes  to  the ability  of  the  NFL  to          function  as an  effective  sports  league,  and that  the  NFL's          functioning  would  be  impaired  if publicly  owned  teams  were          permitted, because the short-term  dividend interests of a club's          shareholder would often conflict  with the long-term interests of          the league  as a whole.  That is, the policy avoids a detrimental          conflict of interests between team shareholders and the league.                    We disagree, however, that these factors are sufficient          to  establish as a matter of  law that the NFL's ownership policy          does not unreasonably restrain trade  in violation of   1  of the          Sherman Act.   The holdings in Broadcast  Music, Rothery Storage,                                         ________________  _______________          and Northwest Stationers, do  not throw the "rule of  reason" out              ____________________          the  window merely because one establishes  that a given practice          among joint  venture participants is ancillary  to legitimate and          efficient  activity -- the  injury to  competition must  still be          weighed against  the purported benefits under the rule of reason.          See, e.g., Broadcast Music, 441  U.S. at 24 (holding only that  a          ___  ____  _______________          particular  ancillary  restraint  did  not constitute  a  per  se                                                                    _______                                         -23-          violation of the Sherman Act and remanding for a determination of          the case under a rule  of reason analysis); Northwest Stationers,                                                      ____________________          472 U.S. at 293-98 (same); see also SCFC ILC, Inc. v. Visa U.S.A.                                     ________ ______________    ___________          Inc.,  819 F. Supp. 956,  979-80 (D.Utah 1993)  (finding that the          ____          existence of  a joint venture  may save  a restraint from  per se                                                                     ______          illegality but not from the normal rule of reason scrutiny).                    One basic tenet of the  rule of reason is that  a given          restriction  is  not reasonable,  that  is,  its benefits  cannot          outweigh  its   harm  to  competition,  if   a  reasonable,  less          restrictive alternative  to the policy exists  that would provide          the same benefits as  the current restraint.  L.A.  Coliseum, 726                                                        ______________          F.2d  at 1396.   The record contains  evidence of a  clearly less          restrictive alternative to the  NFL's ownership policy that would          yield the same benefits  as the current policy.   Sullivan points          to one proposal to amend the current ownership policy by allowing          for the sale  of minority, nonvoting shares of team  stock to the          public  with restrictions on the size  of the holdings by any one          individual.   Dividend payments, if any, would be within the firm          control of the NFL majority owner.  Under such a policy, it would          be  reasonable for  a jury  to conclude  that private  control of          member clubs  is maintained,  conflicts of interest  are avoided,          and  all  the   other  "benefits"  of  the  NFL's  joint  venture          arrangement are preserved while at the same time teams would have          access to  the market for  public investment capital  through the          sale of ownership interests.                           C.  Causation of Injury in Fact                           C.  Causation of Injury in Fact                                         -24-                    The  NFL  next argues  that  Sullivan  did not  present          sufficient evidence to  support a  finding by the  jury that  the          NFL's public ownership policy caused injury in fact  to Sullivan.          An antitrust plaintiff must prove that he or she suffered damages          from an antitrust violation and that there is a causal connection          between the  illegal practice and the injury.  Associated General                                                         __________________          Contractors, Inc. v. California  State Council of Carpenters, 459          _________________    _______________________________________          U.S.  519, 532-33  &  n.26 (1983);  Blue  Shield of  Virginia  v.                                              _________________________          McCready, 457  U.S. 465, 476-78 (1982);  Engine Specialties, Inc.          ________                                 ________________________          v. Bombardier Ltd., 605 F.2d 1, 13 (1st Cir. 1979), cert. denied,             _______________                                  ____  ______          446  U.S.  983  (1980).   "Plaintiffs  need  not  prove that  the          antitrust  violation was the sole cause of their injury, but only          that  it was a material cause."   Engine Specialties, 605 F.2d at                                            __________________          14.                    Sullivan  asserted at  trial that  the NFL's  ownership          policy forced him to sell the  Patriots at a depressed price, far          below  what the  team  would have  been  worth in  a market  that          included  public  ownership of  the team.    "But for"  the NFL's          policy, Sullivan claims, he would have  been able to offer 49% of          the Patriots to  the public for  $70 million, pay off  his debts,          and retained  ownership of a  much more  valuable and  profitable          team.                    The NFL  contends that  Sullivan failed to  establish a          causal connection between his  "forced" sale of the Patriots  and          the NFL's ownership policy  because (1) Sullivan never officially          requested a vote on his proposals to amend or waive the policy so                                         -25-          there  is no  way  of  knowing  whether  the  policy  would  have          prevented  a public offering in the first place; and (2) Sullivan          never  established that  the  public stock  sale was  feasible or          potentially successful and thus an alternative to what ultimately          happened (i.e.,  even if the  NFL did  not have a  policy against          public  ownership, Sullivan would still have had to sell his team          because  the Patriots stock sale would not have happened or would          not  have raised  enough money  to pay  off Sullivan's  debts and          prevent a  fire sale  of  the team).   Although  the evidence  of          causation is  not overwhelming, it is  nevertheless sufficient to          support the verdict.                    Regarding  the NFL's  first  claim that  Sullivan never          called for  a  vote  from  the  owners to  change  or  waive  the          ownership policy,  Sullivan presented sufficient evidence to show          that the NFL essentially rejected Sullivan's request, even though          no  official  vote was  taken.   Under certain  circumstances, an          antitrust  plaintiff must make a demand on the defendant to allow          the plaintiff to take  some action or obtain some  benefit, which          the defendant's  challenged practice is  allegedly preventing the          plaintiff  from taking or obtaining,  in order to  prove that the          practice caused injury  in fact to the plaintiff.  See Wells Real                                                             ___ __________          Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 816          ____________    ______________________________          (1st  Cir.),  cert.  denied,  488  U.S.  955  (1988);  Out  Front                        ____   ______                            __________          Productions, Inc. v.  Magid, 748  F.2d 166, 170  (3d Cir.  1984).          _________________     _____          Such  a requirement  only applies,  however, where  the plaintiff          cannot otherwise prove  that the illegal practice exists  or that                                         -26-          the practice is  preventing the plaintiff  from competing in  the          relevant  market; in  such cases,  a refused  demand is  the only          reliable evidence of causation.   Out Front, 748 F.2d  at 169-70.                                            _________          In cases like the  present one, an official request  and official          refusal is not necessary to establish causality  because there is          other evidence showing that defendant's practice caused injury in          fact to the plaintiff.  Zenith Radio Corp. v. Hazeltine Research,                                  __________________    __________________          395  U.S.  100, 120  n.15 (1969);  Continental  Ore Co.  v. Union                                             ____________________     _____          Carbide &  Carbon Corp., 370 U.S. 690,  699-702 (1962).  There is          _______________________          certainly no blanket requirement, as the NFL maintains, in  Wells                                                                      _____          or any  other case, that Sullivan must call for a vote and obtain          an official refusal from the NFL, even if such a request would be          futile.  See, e.g.,  Wells, 850 F.2d at  816 (finding failure  to                   ___  ____   _____          request access  to multiple listing service  was critical because          "[t]here was  no evidence  of a  group  boycott;" although  court          noted  request "may have been  futile," there was  no evidence to          indicate  that it  would  have been,  so  an actual  request  was          required);  Chicago  Ridge Theatre  Ltd.  Partnership  v. M  &  R                      _________________________________________     _______          Amusement Corp.,  855 F.2d  465,  470 (7th  Cir. 1988)  (futility          _______________          obviates  the need  for a  demand).   Certainly, if  Sullivan can          prove  futility independent of any official  request, he need not          show that he  actually called for  a vote  and received a  denial          from the other NFL owners.                    The jury in this  case heard evidence that would  allow          it to conclude that the NFL effectively denied Sullivan's request          for a waiver  or amendment  of the public  ownership policy,  and                                         -27-          that an official  vote would indeed have been  futile.  The NFL's          policy against public ownership was long-standing, and the policy          withstood  several  efforts  to  change  it  over  the  years  as          proffered  amendment  proposals were  never  brought  to a  vote.          Sullivan requested a wavier of, or  amendment to, the policy at a          meeting  of the  owners  on October  27, 1987.   His  request was          tabled.     After  further  discussions,  then-Commissioner  Pete          Rozelle  said that he opposed  the proposal and  that the chances          for league approval  were "very dubious."   Although Sullivan was          only four  votes shy  of winning a  vote, with seven  votes still          undecided, the jury  could reasonably conclude that,  in light of          the  Commissioner's  statement,  Sullivan  tried  but  failed  to          convince those undecided owners  to vote in his favor and that an          actual  vote  would  have been  futile.    The  evidence is  thus          sufficient  to support  a  finding  that  the  NFL's  policy  was          effectively enforced against Sullivan and that  the policy did in          fact, when considered with  the evidence discussed below, prevent          Sullivan from making his public offering of 49% of the Patriots.                    Sullivan  also presented sufficient evidence to support          a  finding that  the Patriots  stock sale  was both  feasible and          potentially  successful.   Sullivan met  with Stephens,  Inc., an          investment banking firm, to discuss a deal whereby Stephens would          arrange for a loan of  $80 million to Sullivan and his  son, half          of which would  be paid back out of the  proceeds of the Patriots          stock  offering,  which  Stephens  would  also  arrange.    In  a          subsequent letter, Stephens  stated that it had been  retained to                                         -28-          assist in the "private placement of $80 million of debt" and  set          out some preliminary terms and conditions.  Although specifics of          the  public offering  were  not discussed,  and Stephens  did not          determine whether  the  stock offering  was ultimately  feasible,          Stephens repeatedly made it clear  to Sullivan that NFL  approval          was  required --  indeed  Stephens specifically  singled out  NFL          approval as the prerequisite -- before Stephens could proceed any                      ___          further with  efforts to  prepare for the  placement of  Patriots          stock.                    As discussed above,  NFL approval  was never  obtained.          Therefore,  the jury could conclude that lack of approval was the          reason  Stephens was  unwilling  to proceed  with the  deal, even          though  Stephens  also expressed  some  concern about  Sullivan's          financial and legal troubles.  The jury also heard testimony that          Charles Allen, a prominent investment banker in New York, thought          the  Patriots  public  offering  was  feasible and  that  he  was          potentially interested  in arranging the deal.   Sullivan himself          testified  that  the  stock  sale   was  feasible  based  on  his          experience with the previous public offering of Patriots stock in          1960, and based  on the  public offering of  the Boston  Celtics.          Finally, one of Sullivan's experts, Patrick Brake, testified that          the  public offering  would have  been feasible  had the  NFL not          blocked it.                    In  addition, despite  significant financial  and legal          problems with the Patriots, the evidence is sufficient to support          a finding that Sullivan  could have solved these problems  in the                                         -29-          course  of the public offering  and, further, that  he could have          brought off a  successful stock  sale that would  have raised  at          least $70 million.                    The NFL focusses its challenge to the potential success          of  Sullivan's offering on  the testimony  of Patrick  Brake, who          provided the $70 million figure as the value for  the stock sale.          According to the  NFL, Brake's  testimony could  not support  the          jury's finding on causation  because it was not supported  by any          facts,  it was not grounded  in any rational  methodology, and it          ignored important factors  indicating that the Patriots  offering          would  not  be  a  success.    The NFL  does  not  challenge  the          admissibility of  Brake's opinion  but, instead, claims  that his          opinion cannot support the jury's finding that the Patriots stock          sale  would have  been a  success if  the NFL  had allowed  it to          happen.                    "When an expert opinion  is not supported by sufficient          facts to validate it in the eyes of the law, or when indisputable          record   facts  contradict  or   otherwise  render   the  opinion          unreasonable, it cannot support a jury's verdict."  Brooke Group,                                                              _____________          Ltd. v.  Brown & Williamson Tobacco Corp.,  113 S. Ct. 2578, 2589          ____     ________________________________          (1993); accord Price v.  General Motors Corp., 931 F.2d  162, 165                  ______ _____     ____________________          (1st Cir. 1991); Richardson v. Richardson-Merrell, Inc., 857 F.2d                           __________    ________________________          823, 829  (D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989).  A                                      ____  ______          jury verdict  cannot rest  solely on  an  expert's "bottom  line"          conclusion,  without  some underlying  facts  and  reasons, or  a          logical  inferential process  to  support the  expert's  opinion.                                         -30-          Mid-State  Fertilizer Co.  v.  Exchange National  Bank, 877  F.2d          ________________________       _______________________          1333, 1339 (7th Cir. 1989).                     We  agree  that  the  facts  and  reasoning  underlying          Brake's  opinions and testimony leave much to be desired from the          standpoint of  a factfinder  charged with determining  the facts.          As a matter of law, however, Brake provided enough of a basis for          his opinions and had sufficient facts to back his opinions up, to          support, in combination  with the evidence from other  sources, a          jury  finding of  potential success  of the  Patriots stock  sale          venture.  To begin with, Brake  stated in his testimony that  his          opinion was based on a review of documents and depositions in the          case,  a review of the  prospectus for the  Boston Celtics public          offering,  the  fact  that  future television  revenues  for  the          Patriots were likely to increase due to  the Patriots' appearance          in the  Super Bowl, and  the fact that  the public stock  for NFL          teams, like the  Patriots, would  trade at a  premium value  over          what  the club would otherwise be  worth.  Brake also stated that          he  looked at  a  financial statement  of  the Patriots  and  was          apprised of some of the debt and loss history of the club.  Other          testimony and evidence at trial supported the claim that stock of          NFL teams would  sell for a premium above the club's private sale          value  and  the claim  that TV  revenues to  the NFL  teams would          increase.   Sullivan  himself  testified that  a public  offering          would  be successful  based  upon  the  success  of  his  earlier          offering  of Patriots  stock and  on the  results of  the Celtics          public  offering.  There  was also testimony  -- highly disputed,                                         -31-          but potentially  credible testimony nonetheless --  to the effect          that  the  Celtics' stock  offering was  a  success and  that the          Patriots  stock offering  could  be patterned  after the  Celtics          offering.                    As  for  the source  of  Brake's  specific $70  million          figure for  the  likely  proceeds  from a  sale  of  49%  of  the          Patriots,  Brake  explained  a two-step  public  offering process          which,  after  subtracting  underwriting fees,  would  yield  the          Sullivan's  $70 million.    Brake arrived  at  this figure  after          starting  with a  base value  of $150  million for  the Patriots.          Given the $80 million private sale price of the Patriots obtained          by  Sullivan  when  he actually  sold  the  team,  and given  the          testimony  by Brake  and others  that public  stock of  NFL teams          would sell at a premium, we cannot say that the opinion by Brake,          an investment banking expert,  was unreasonable or "not supported          by  sufficient facts  to validate  it in  the eyes  of the  law."          Brooke Group, 113 S. Ct. at 2589.          ____________                    Brake's  testimony was not  merely conclusory.  Rather,          it was  embellished by various  explanations and  justifications.          His  testimony was  also not  overwhelmingly contradicted  by the          weight of  the evidence or inherently contradictory, unreasonable          or irrational.   Brake did overlook  some important factors  that          contradicted  his  opinion, but  he  was  questioned about  these          factors on cross-examination and  the NFL argued them before  the          jury.  The factors do not invalidate Brake's  opinion as a matter          of law; rather, they  merely go to the weight  and credibility of                                         -32-          his  opinions which are  matters for the  jury to consider.   The          basis of the opinion regarding the success of the Patriots public          offering may be flimsy,  but it is not nonexistent  or irrational          as a matter of law.                    Although we  share the NFL's  skepticism that  Sullivan          would  have succeeded  in  his public  offering  if the  NFL  had          allowed him to  try it, we cannot say  that, as a matter  of law,          the  evidence was so  overwhelming that no  reasonable jury could          find that the NFL's policy harmed Sullivan by preventing him from          doing  something he  would otherwise  have been  able to do.   We          therefore  reject  the  NFL's claim  that  it  is  entitled to  a          judgment in its favor on the basis that Sullivan failed to  prove          his injury was caused by the alleged antitrust violation.                          D.  Assignment of Antitrust Claim                          D.  Assignment of Antitrust Claim                    The NFL argues that  Sullivan cannot bring this lawsuit          because  he sold his antitrust  claim when he  sold the Patriots.          The  sale  contract  between  Sullivan and  KMS  Patriots,  L.P.,          provided  that  Sullivan transferred  to  the  buyers "all  other          assets" of the Patriots' and its holding company,5 besides  those          specifically listed and those specifically excluded.  None of the          listed or excluded assets include an antitrust claim.   According          to the NFL,  the term  "all other assets"  should be  interpreted                                        ____________________          5  The language of the contract actually states "all other assets          of  Selling Group,"  which includes  Sullivan himself.   However,          neither party asserts that Sullivan  intended to transfer all his          personal  assets  with this  clause and,  anyway, the  "all other          assets" clause is number seventeen on a list of items referred to          by the contract as  "the following assets of the  Club and Holdco          [the Patriots' holding company]."                                          -33-          broadly to include  the present  antitrust cause of  action.   We          disagree.    Absent some  express  language  to the  effect  that          Sullivan was selling his  football related "antitrust claims" or,          at  the very  least,  "causes of  action,"  we cannot  find  that          Sullivan  assigned the present  antitrust claim to  the buyers of          the  Patriots.    Gulfstream  III  Assocs.,  Inc.  v.  Gulfstream                            _______________________________      __________          Aerospace  Corp., 995 F.2d 425,  437-40 (3d Cir.  1993); see also          ________________                                         ________          Lerman v.  Joyce Int'l,  Inc., 10  F.3d 106,  112 (3d  Cir. 1993)          ______     __________________          (affirming  requirement in  Gulfstream that  assignment of  claim                                      __________          must be "express" but  expanding definition of "express" language          to include a grant  of "all causes of action, claims  and demands          of whatsoever nature").   As no such express language  appears in          the  contract  for the  sale of  the  Patriots, Sullivan  did not          transfer his interest in the present lawsuit to KMS Patriots when          he sold the team.                    The NFL's  arguments concerning the application  of   1          of the  Sherman Act to the facts of this case raise a substantial          challenge to the jury verdict and are certainly weighty enough to          give  us  pause.    Upon  careful  consideration  of  the issues,          however, we find Sullivan's theory of the case to be  a plausible          one and  ultimately find the  evidence sufficient to  support it.          For the foregoing reasons, therefore, we see no justification, as          a matter of law, for ringing the death knell on this litigation.                                  IV.  TRIAL ERRORS                                  IV.  TRIAL ERRORS                    Having reviewed those issues which would have warranted          a  judgment in  favor of  the NFL,  had we  decided any  of those                                         -34-          issues in the NFL's favor, we now turn to the NFL's claim that it          is  entitled to a new  trial because of  allegedly erroneous jury          instructions  and other  trial  errors.   In particular,  the NFL          asserts that the district  court failed to provide the  jury with          several crucial jury instructions that were required  in order to          present to  the jury certain legal theories that were potentially          dispositive  of the  verdict.   The NFL  argues that  the court's          failure to give the  instructions was prejudicial error requiring          a new trial.                    Determining whether the failure to  give proffered jury          instructions  is  error  depends  on  whether   the  instructions          actually  given  to  the  jury,  taken  as  a  whole,  adequately          explained  the law or whether  they tended to  confuse or mislead          the jury  on  the controlling  issues  of  the case.    Davet  v.                                                                  _____          Maccarone, 973 F.2d 22,  26 (1st Cir. 1992); Transnational  Corp.          _________                                    ____________________          v. Rodio  & Ursillo, Ltd., 920  F.2d 1066, 1070 (1st  Cir. 1990);             ______________________          see also L.A. Coliseum, 726 F.2d at 1398 ("The question, then, is          ________ _____________          whether,  viewing the  jury instructions  as a  whole, the  trial          judge gave adequate instructions  on each element of the  case to          insure that the  jury fully  understood the issues.").   We  must          also  consider   whether  the  NFL's  proposed  instructions  are          accurate or misleading.   Shane v. Shane, 891 F.2d 976,  987 (1st                                    _____    _____          Cir.  1989).    "As  long  as  the judge's  instruction  properly          apprises  the jury  of the  applicable law,  failure to  give the          exact instruction  requested  does not  prejudice  the  objecting          party."   Brown v. Trustees  of Boston Univ.,  891 F.2d 337,  354                    _____    _________________________                                         -35-          (1st Cir.  1989), cert.  denied,  496 U.S.  937 (1990)  (internal                            ____   ______          quotations omitted).  A  party, however, is entitled to  have its          legal theories on controlling issues, which are supported  by the          law and  by the evidence,  presented to the  jury.  Jerlyn  Yacht                                                              _____________          Sales, Inc. v.  Roman Yacht Brokerage, 950 F.2d 60,  68 (1st Cir.          ___________     _____________________          1991); L.A.  Coliseum, 726 F.2d  at 1398.   An error in  the jury                 ______________          instructions  will warrant the reversal of the judgment and a new          trial only if, upon review of the record as a whole, the error is          determined  to be  prejudicial.   Davet, 973  F.2d at  26; Jerlyn                                            _____                    ______          Yacht Sales, 950 at 69; Transnational Corp., 920 F.2d at 1070.          ___________             ___________________                    In  this case, we find that the failure to give certain          instructions was  prejudicial error6 and we  therefore vacate the          judgment and order a new trial.                            A.  Equal Involvement Defense                            A.  Equal Involvement Defense                    The NFL argued before  the district court that Sullivan          was a complete and  substantially equal participant in  the NFL's          ownership  policy which he now challenges in the present lawsuit.          As a result of Sullivan's  involvement, the NFL claimed, Sullivan          was  barred from  bringing a damages  action under  the antitrust          laws pursuant to  the "equal involvement defense"  doctrine.  The          district court denied motions for summary judgment and a directed          verdict  on this issue and, further, refused to instruct the jury          on  the availability  of the  defense because  it found  that the                                        ____________________          6   The court's failure  to instruct on  the complete involvement          defense was prejudicial error  and, by itself, sufficient grounds          for reversal  and a new trial.   We do not decide  whether any of          the other errors, standing  alone, are prejudicial.  We  do hold,          however, that all the errors taken together are prejudicial.                                         -36-          evidence  showed   that  Sullivan  "had  very   little,  if  any,          involvement in  the formulation of [the  public ownership] rule,"          and  because the rule "was imposed on [Sullivan] by a preexisting          National   Football  League  rule."     This  ruling  constituted          prejudicial error  because the "equal involvement  defense" is an          absolute defense to an  antitrust claim and because the  evidence          warranted sending the issue to the jury.                    A plaintiff's "complete,  voluntary, and  substantially          equal participation"  in an illegal practice  under the antitrust          laws precludes recovery for that antitrust violation.  CVD,  Inc.                                                                 __________          v. Raytheon Co., 769 F.2d 842, 856 (1st Cir. 1985), cert. denied,             ____________                                     ____  ______          475  U.S. 1016 (1986); General Leaseways,  Inc. v. National Truck                                 ________________________    ______________          Leasing Ass'n, 830  F.2d 716, 720-23 (7th Cir. 1987); THI-Hawaii,          _____________                                         ___________          Inc.  v. First Commerce Financial  Corp., 627 F.2d  991, 995 (9th          ____     _______________________________          Cir.  1980); see  also Bateman  Eichler, Hill, Richards,  Inc. v.                       _________ _______________________________________          Berner, 472  U.S. 299, 310-11 (1985)  (applying equal involvement          ______          defense in securities  law context).   In order  to establish  an          "equal  involvement" defense, an  antitrust defendant must prove,          by a preponderance of  the evidence, that the plaintiff  bears at          least  substantially equal responsibility  for an anticompetitive          restriction by creating,  approving, maintaining, continually and          actively  supporting, relying  upon, or  otherwise utilizing  and          implementing, that restriction to his  or her benefit.7   General                                                                    _______                                        ____________________          7  The Supreme  Court in Bateman added an  additional requirement                                   _______          to  the "equal  involvement"  defense: that  "preclusion of  suit          would not significantly interfere  with the effective enforcement          of" the antitrust laws.  Bateman, 472 U.S. at 311.  We do not see                                   _______          a  preclusion  of Sullivan's  damages  action  as presenting  any                                         -37-          Leaseways,  830 F.2d at 720-26; CVD, 769  F.2d at 856.  It is not          _________                       ___          essential  to  the defense  that  the  plaintiff actually  helped          author  or create the policy, although such facts would be highly          probative, as long as the plaintiff was substantially responsible          for  maintaining and  otherwise  effectuating the  policy.   See,                                                                       ___          e.g.,  General  Leaseways,  830   F.2d  at  723  (applying  equal          ____   __________________          involvement defense  in case where plaintiff  did not participate          in the  actual  adoption of  the  policy although  plaintiff  was          substantially involved  in supporting, enforcing  and maintaining          the  policy).8   On  the other  hand,  proof that  the  plaintiff          benefitted  from the challenged policy or failed to object to the          policy, without  more, is  not sufficient to  show "substantially          equal  participation."   See id.,  830 F.2d  at 725  (noting that                                   ___ __          "mere  participation" in  the challenged  policy is  not enough).          Moreover, proof that the plaintiff was coerced ("economically" or                                        ____________________          significant  interference  with antitrust  law enforcement.   The          NFL's policy is  still subject to  challenge under the  antitrust          laws.   Because the  equal involvement  defense only  precludes a          damages action,  Sullivan could have requested  injunctive relief          when  the public  ownership policy  was allegedly  preventing him          from selling 49% of his team.  In addition, other owners who were          not involved  in the adoption or support  of the policy may still          bring  suit  should they  desire to  sell ownership  interests in          their team to the public.          8    To the  extent this  conflicts with  the "but  for" standard          applied  in  THI-Hawaii,  627  F.2d   at  995  (finding  that  "a                       __________          plaintiff's recovery is not  barred unless the illegal conspiracy          would  not have  been  formed  but  for its  participation"),  we                                         ________          decline to follow that portion of the case.  There is no evidence          of  such a  rigid "but  for" requirement  in the  Supreme Court's          formulation of the equal involvement defense in Bateman, 472 U.S.                                                          _______          at  310-11 (finding the defense applies where "as a direct result          of  his own actions,  the plaintiff bears  at least substantially          equal responsibility for the violations he seeks to redress").                                         -38-          otherwise)  into  supporting  the   policy,  that  the  plaintiff          attempted to oppose the illegal  conduct, or that the plaintiff's          participation was otherwise not voluntary, is highly probative of          the absence of complete and equal involvement by the plaintiff in          an antitrust violation.  E.g., CVD, 769 F.2d at 856.                                   ____  ___                    In this case, the evidence in the record was sufficient          to support a jury  instruction on the equal  involvement defense.          Sullivan was one of the three  AFL members on the Joint Committee          that established the policies,  including the ownership policies,          that were to govern the new expanded NFL.  That Committee agreed,          in  a merger  agreement signed  by Sullivan,  to adopt  the NFL's          policy against public ownership for the new NFL.  Sullivan's son,          Chuck,  stated that Sullivan was the central figure in the merger          negotiations.   Sullivan subsequently relied on  the NFL's public          ownership policy to justify  his purchase, through the merger  of          his team into a wholly owned company, of the outstanding stock of          the   Patriots  in  1976.    In  the  proxy  statement  for  that          transaction, Sullivan  listed  the NFL's  policy  against  public          ownership as one of the "Reasons for the Merger", and he attached          a  letter from the NFL justifying the public ownership policy and          explaining  that the  continued presence  of  public stockholders          conflicted  with  the interests  of  the league.    Sullivan also          affirmatively supported the policy  in sworn testimony during the          litigation with his  former shareholders  following the  Patriots          merger.  Sullivan stated that the  NFL's public ownership policy,          and the  justifications underlying  the policy, were  the reasons                                         -39-          for  his desire to purchase  all outstanding shares  of the team.          There  is no evidence that  Sullivan ever opposed  or objected to          theownership policypriorto thecircumstances surroundingthis case.                    Taken  together,  this  evidence  is  sufficient for  a          reasonable  jury to  conclude  that Sullivan  bears substantially          equal  responsibility  for  the  NFL's  public  ownership  policy          because  Sullivan helped adopt the policy, he relied upon it, and          he actively supported it.  The  jury, however, was never given an          opportunity  to consider  this  evidence in  light  of the  equal          involvement defense.                    Sullivan  claims that  he was  not at  the meetings  in          which  Lamar Hunt, the chairman  of the AFL  committee, agreed to          the NFL's public ownership  policy, and that he  did not know  in          advance that the old NFL's public ownership rule would be adopted          by the  new NFL.   Mr. Hunt himself  testified, however, that  he          always spoke for the entire AFL committee at his various meetings          with NFL owners, and that he discussed various negotiating points          with  the  other  AFL  owners,  including  Sullivan,  before  any          decisions were made.   Moreover, Sullivan's  own team obtained  a          specific waiver  from the  ownership policy, which,  a reasonably          jury could  infer, indicates that  Sullivan was  involved in  the          decision to adopt  the policy.   In any event,  it is the  jury's          responsibility  to  weigh  the  evidence  and  make a  choice  in          circumstances  like this  where  the same  evidence supports  two          different yet reasonable conclusions.                    The  district court erred  by failing to  give the jury                                         -40-          the opportunity to  choose between these  versions of the  facts.          The court's  "finding" that Sullivan's involvement  in the public          ownership policy was minimal ignores evidence in the record.  The          court's view that the NFL imposed the ownership policy on the AFL          owners, rendering  their  participation involuntary,  is  largely          unsupported  by  the  record.   Ultimately,  however,  these  are          factual  questions  for the  jury  and none  of  the instructions          provided  by the district court served to adequately instruct the          jury on this issue or send the issue to the jury.  Therefore, the          district court  erred in  refusing  to give  the NFL's  proffered          instruction on the "equal involvement" defense.                    The error was prejudicial.  By refusing to instruct the          jury  on  the  equal  involvement  defense,  the  district  court          deprived the NFL of a  complete defense from Sullivan's  lawsuit.          The NFL presented facts that could have led to a dismissal of the          case if they were believed by  a properly instructed jury.  While          the NFL could have  highlighted, and in fact did  highlight, some          of the facts concerning Sullivan's support of, and reliance upon,          the  ownership policy  in its closing  argument before  the jury,          this effort was limited to the argument that the NFL's policy was          "reasonable"  for purposes of the  rule of reason  analysis.  The          NFL did not, and could not, argue to the jury that it should rule          in favor  of  the NFL  because  Sullivan's participation  in  the          adoption  and  maintenance of  the  public  ownership policy  was          complete,  voluntary  and  substantially  equal.     Without  the          proffered  instruction,  the jury  had  no  occasion to  consider                                         -41-          whether Sullivan  should be deprived of a  damages remedy because          of his involvement in the policy he now challenges.  As a result,          the  district  court's  refusal  to send  the  equal  involvement          defense to the jury was prejudicial error requiring a new trial.                B.  Failure to Request an Official Vote of the Owners                B.  Failure to Request an Official Vote of the Owners                    As  discussed  in  Section  II.C. above,  in  order  to          establish  that the  policy  actually caused  injury to  himself,          Sullivan must prove  that the NFL effectively denied  his request          to waive or  amend its  policy against public  ownership.   While          there is evidence that  supports a finding that the  NFL's policy          effectively  blocked Sullivan from  pursuing his public offering,          there is also sufficient evidence to support a  contrary finding.          Sullivan's failure to  request a  vote from the  owners after  he          discovered that he was four votes shy of  obtaining a waiver with          seven owners  still undecided, combined with  former Commissioner          Rozelle's testimony that he told Sullivan  that Rozelle would put          to  the owners  any plan  that Sullivan  wished, could  support a          finding  that Sullivan  was  a "dormant  plaintiff"  who did  not          "spring  into action"  until it  was "time  to file  suit."   Out                                                                        ___          Front, 748 F.2d at 170.  As such, a jury could conclude  that the          _____          NFL  did not prevent Sullivan  from pursuing his  stock sale, but          instead, Sullivan  simply dropped the idea  for reasons unrelated          to the  NFL's policy.  If the jury had reached such a conclusion,          Sullivan would have failed to prove that his injury was caused by          the antitrust policy, and judgment for the NFL would be required.                    The  NFL  proposed  instructions concerning  Sullivan's                                         -42-          failure to ask for a vote essentially stating that such a failure          would result  in judgment  for the  NFL if  it was reasonable  to          require  Sullivan to make  such a request.   The court refused to          give the  instruction because it felt  that to do so  would be to          comment on the evidence, and the court did not want to comment on          any  of the  evidence  presented at  trial.   We  understand  the          court's concern but believe  that, under the facts of  this case,          there   is  a  crucial  point  of  law  contained  in  the  NFL's          instruction that was not otherwise provided to the jury.                    The  jury  was instructed  generally  on  the issue  of          causation, but it was  not told that it had to  determine whether          the NFL's  policy against public ownership  was actually enforced          against  Sullivan;  that  is,  whether the  policy,  the  alleged          antitrust restraint, actually restrained Sullivan in any way from          making a  49% public  offering of  his  team.   Although the  NFL          could, and did,  argue that Sullivan's failure to ask  for a vote          was  evidence that the policy  did not cause  injury to Sullivan,          there was no legal hook upon  which the jury could hang the NFL's          argument.   The  failure  of  Sullivan to  request  a  vote is  a          critical  and potentially dispositive issue in this case.  If the          alleged restraint of trade  does not even exist in  practice, the          whole case  essentially disappears.   Therefore, the  jury should          have been directed  to make a specific finding  as to whether the          public ownership policy was enforced against Sullivan.                    If the jury is instructed that Sullivan must prove that          the NFL's policy  was enforced  against him, the  jury will  have                                         -43-          cause  to consider the crucial matter of whether the NFL actually          enforced its policy  against Sullivan or rather,  whether the NFL          never had the chance  to enforce its policy because  Sullivan was          never  prepared to pursue his  public offering.  The instructions          as  proffered  by the  NFL  may  need  to  be tailored  to  avoid          commenting on  the evidence surrounding the "missing" vote by the          NFL  owners, but  that does not  excuse the court  from giving no          instruction  at all  on  the issue.   The  failure  to give  some          instruction concerning the failure of  Sullivan to request a vote          was error.                                        C.  The Murray Option                                C.  The Murray Option                    In 1986, prior to Sullivan's decision to  sell Patriots          stock  to the public, Sullivan sold Fran  Murray an option to buy          the entire  club.   The  NFL took  the position  that the  Murray          option  would have  been an  absolute bar to  any public  sale of          Patriots  stock  and  that  Sullivan therefore  could  not  prove          causation.    The  NFL's   position  was  supported  by  evidence          introduced at trial.  Sullivan proffered evidence that the option          was not  a bar to sale because the option could be bought out and          because it  could not be legally enforced.   The issue of whether          Murray  could have, or would  have, blocked a  public offering by          the Patriots was ultimately disputed.                    The option agreement and Murray's  deposition testimony          were  received  into  evidence.   The  district  court,  however,          refused to admit  Murray's statement  that he  would indeed  have          stopped  any public stock sale of the Patriots from going forward                                         -44-          if  he had been told about it.   The court found the testimony to          be  too speculative to be admissible.  While the court's decision          to exclude  Murray's "speculative"  testimony is well  within the          court's wide  latitude of  discretion in making  such evidentiary          rulings, United States  v. Abel, 469 U.S. 45, 54  (1984); Doty v.                   _____________     ____                           ____          Sewall,  908  F.2d  1053, 1058  (1st  Cir.  1990),  we note  that          ______          Sullivan's  entire case as to the causation of injury was equally          speculative.   Whether Sullivan's proposed stock  sale could have          proceeded  and would have been  successful in the  absence of the          NFL's  public  ownership  policy  was a  matter  of  considerable          conjecture.  Fairness would seem to militate towards allowing the          NFL to present  its own version of the  probable course of future          events to counter Sullivans' theorizing.                    In any  event, the  court's subsequent refusal  to give          the  NFL's proffered  jury  instruction on  the  law of  options,          specifically    the   legal   consequences   of   options   under          Massachusetts law, erroneously removed another crucial issue from          the jury's purview.  The Murray  option was a key defense for the          NFL,  because if  Sullivan did  not have  a legal  right to  sell          Patriots stock to the public, he did not suffer any harm from the          NFL's  ownership policy and the  NFL would have  been entitled to          judgment in its favor.   Again, the NFL could make  this argument          to  the jury, but the  jury would still  lack crucial information          concerning the legal underpinnings  of a crucial defense for  the          NFL.                    Sullivan argues  that  the NFL's  proposed  instruction                                         -45-          would have singled out one factual issue related to causation for          the jury's special attention,  something that would have unfairly          prejudiced Sullivan.  Sullivan adds that allowing the instruction          would  have  generated  countering  instructions  on other  legal          facets of option law that were relevant to Sullivan's position on          the  option issue  and ultimately  would have confused  the jury.          These  arguments  notwithstanding,  we  feel  that,  as  long  as          suitable  instructions  are  provided covering  the  basic  legal          points  relevant to each party's arguments, the jury would not be          unduly  confused.   Furthermore, the risk  of prejudice  from the          instruction -- due  to the  added attention afforded  one of  the          NFL's  defenses  --  is  not sufficient  to  justify  effectively          depriving  the NFL of a crucial defense.   Ultimately, it was for          the jury  to  decide whether  the  Murray option  constituted  an          insurmountable obstacle to Sullivan's  case on causation, and the          district  court's  refusal  to instruct  on  the  law of  options          virtually removed this issue from consideration by the jury.               D.  Balancing Procompetitive and Anticompetitive Effects               D.  Balancing Procompetitive and Anticompetitive Effects                                in the Relevant Market                                in the Relevant Market                    As we noted above, the rule of reason analysis requires          a  weighing  of  the  injury  and  the  benefits  to  competition          attributable to a practice  that allegedly violates the antitrust          laws.   Monahan's Marine, 866  F.2d at 526.   The  district court                  ________________          instructed the  jury on its verdict form to balance the injury to          competition  in   the  relevant  market  with   the  benefits  to          competition in  that same relevant  market.   The NFL  protested,          claiming  that all  procompetitive  effects of  its policy,  even                                         -46-          those  in a  market  different from  that  in which  the  alleged          restraint operated,  should be  considered.   The NFL's  case was          premised on  the claim that  its policy against  public ownership          was  an important part of the effective functioning of the league          as a  joint venture.  Although  it was not readily  apparent that          this  beneficial  effect  applied  to the  market  for  ownership          interests  in NFL teams, the  relevant market found  by the jury,          the  NFL  argued that  its  justification  should necessarily  be          weighed by the jury under the rule of reason analysis.   Sullivan          responded, and the district  court agreed, that a jury  cannot be          asked to  compare what  are essentially  apples and  oranges, and          that  it  is  impossible  to  conduct  a  balancing   of  alleged          anticompetitive   and  procompetitive  effects  of  a  challenged          practice in every definable market.                    The issue of  defining the  proper scope of  a rule  of          reason  analysis  is  a   deceptive  body  of  water,  containing          unforeseen currents  and turbulence lying just  below the surface          of an  otherwise calm and peaceful ocean.  The waters are muddied          by  the Supreme  Court's  decision in  NCAA --  one  of the  more                                                 ____          extensive  examples of  the  Court performing  a  rule of  reason          analysis  -- where  the  Court considered  the  value of  certain          procompetitive  effects  that  existed outside  of  the  relevant          market in which the restraint operated.  NCAA, 468 U.S. at 115-20                                                   ____          (considering the NCAA's interest in protecting live attendance at          untelevised  games  and  the  NCAA's  "legitimate and  important"          interest  in  maintaining  competitive  balance  between  amateur                                         -47-          athletic teams  as a justification for a  restraint that operated          in a completely different market,  the market for the telecasting          of collegiate  football games).9  Other  courts have demonstrated          similar confusion.  See,  e.g., L.A. Coliseum, 726 F.2d  at 1381,                              ___   ____  _____________          1392, 1397, 1399 (stating that the "relevant  market provides the          basis on which to  balance competitive harms and benefits  of the          restraint  at  issue"  but then  considering  a  wide variety  of          alleged  benefits,  and then  directing  the  finder  of fact  to          "balance the gain  to interbrand competition against  the loss of          intrabrand  competition",  where  the  two types  of  competition          operated in different markets).                    To our  knowledge, no authority  has squarely addressed          this  issue.   On  the one  hand,  several courts  have expressed          concern  over the  use of  wide ranging  interests to  justify an          otherwise  anticompetitive   practice,  and  others   have  found          particular  justifications   to  be   incomparable  and   not  in          correlation  with the alleged restraint  of trade.   Smith v. Pro                                                               _____    ___          Football,  Inc., 593 F.2d 1173,  1186 (D.C. Cir.  1978); Brown v.          _______________                                          _____          Pro Football, Inc., 812 F. Supp. 237, 238 (D.D.C. 1992);  Chicago          __________________                                        _______          Pro. Sports Ltd. Partnership v. National Basketball Ass'n, 754 F.          ____________________________    _________________________                                        ____________________          9    The  Supreme Court  did  not  expressly  consider the  issue          presented  here.  Therefore, it is impossible to tell whether the          Court  was consciously applying the  rule of reason  to include a          broad area of procompetitive benefits in a variety of markets, or          whether  the  Court  was  simply  not  being  very  careful   and          inadvertently extended  the rule of reason past its proper scope.          There is certainly no  language, as Sullivan suggests, indicating          that   the  Court   was  considering   the  alleged   benefit  of          "competitive   balance"  only   to   the  extent   that  it   had          procompetitive  effects  in  the  market  for  televised football          games.                                         -48-          Supp. 1336, 1358  (N.D.Ill. 1991).   We agree  that the  ultimate          question  under  the  rule  of reason  is  whether  a  challenged          practice  promotes or  suppresses  competition.   Thus, it  seems          improper to validate a practice that is decidedly in restraint of          trade  simply  because  the  practice  produces  some   unrelated          benefits to competition in another market.                    On  the other  hand,  several  courts,  including  this          Circuit, have found it  appropriate in some cases to  balance the          anticompetitive effects on competition in one market with certain          procompetitive benefits  in other markets.  See,  e.g., NCAA, 468                                                      ___   ____  ____          U.S.  at 115-20; Grappone, Inc.  v. Subaru of  New England, Inc.,                           ______________     ____________________________          858 F.2d  792, 799 (1st  Cir. 1988);  M & H  Tire Co. v.  Hoosier                                                _______________     _______          Racing  Tire Corp.,  733  F.2d 973,  986  (1st Cir.  1984);  L.A.          __________________                                           ____          Coliseum,  726 F.2d  at 1381,  1392, 1397,  1399.   Moreover, the          ________          district court's  argument that it would be impossible to compare          the procompetitive effects of the NFL's  policy in the interbrand                                                                 _____          market  of  competition  between  the  NFL  and  other  forms  of          entertainment, with the anticompetitive effects of the intrabrand                                                                 _____          market of competition  between NFL  teams for the  sale of  their          ownership interests,  is arguably refuted by  the Supreme Court's          holding  in Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S.                      ______________________    _________________          36 (1977).  Continental  T.V. explicitly recognized that positive                      _________________          effects on  interbrand  competition can  justify  anticompetitive                      _____          effects  on intrabrand  competition.   Id.  at  51-59.   Although                      _____                      __          Continental T.V. can reasonably  be interpreted as referring only          ________________          to  interbrand and  intrabrand  components of  the same  relevant                                                             ______________                                         -49-          market, Hornsby Oil  Co., Inc.  v. Champion Spark  Plug Co.,  714          ______  ______________________     ________________________          F.2d  1384, 1394 (5th Cir.  1983), there is  also some indication          that interbrand and  intrabrand competition necessarily refer  to          distinct, yet related, markets.  Continental T.V., 433 U.S. at 52                                           ________________          n.19 ("The degree of intrabrand competition is wholly independent          of the  level of interbrand competition.").  Arguably, the market          put forward by the NFL -- that is the market for NFL  football in          competition  with  other forms  of  entertainment  -- is  closely          related to the  relevant market found  by the jury such  that the          procompetitive   benefits  in   one  can   be  compared   to  the          anticompetitive harms  in the other.   Clearly this  question can          only be answered  upon a much more in-depth  inquiry that we need          not, nor find it appropriate to, embark upon at this time.                       Finally,  we  note  that although  balancing  harms and          benefits in different markets may be unwieldy and confusing, such          is the case with a number of balancing tests that a court or jury          is expected to  apply all  the time.   Indeed, Justice  Brandeis'          famous formulation of the rule of reason seems to contemplate the          balancing of  a wide variety of factors  and considerations, many          of which are not necessarily comparable or correlative:                      The true  test of legality is whether the                      restraint  imposed  is  such   as  merely                      regulates  and  perhaps thereby  promotes                      competition or whether it is such as  may                      suppress or even destroy competition.  To                      determine  that  question the  court must                      ordinarily consider the facts peculiar to                      the  business to  which the  restraint is                      applied; its condition  before and  after                      the restraint was  imposed; the nature of                      the  restraint and its  effect, actual or                      probable.   The history of the restraint,                                         -50-                      the  evil believed  to exist,  the reason                      for adopting the  particular remedy,  the                      purpose or end sought to be attained, are                      all relevant facts.          Board of  Trade of the City of Chicago v. United States, 246 U.S.          ______________________________________    _____________          231, 238 (1918).                    Although the issue of  the proper scope of the  rule of          reason analysis is more appropriately resolved in a case where it          is  dispositive and more fully briefed, we  can draw at least one          general conclusion from  the caselaw at this point: courts should          generally give a measure of  latitude to antitrust defendants  in          their efforts  to explain  the procompetitive justifications  for          their  policies  and  practices;   however,  courts  should  also          maintain some  vigilance by excluding justifications  that are so          unrelated  to  the challenged  practice  that  they amount  to  a          collateral  attempt to  salvage a practice  that is  decidedly in          restraint of trade.                     In any event, we need not enter these  dangerous waters          to  resolve the  instant dispute.    The NFL  wanted the  jury to          consider its  proffered justifications  for the  public ownership          policy  -- namely that the  policy enhanced the  NFL's ability to          effectively produce and  present a popular entertainment  product          unimpaired by  the  conflicting interests  that public  ownership          would  cause.   These  procompetitive justifications  should have          been  considered by the jury, even under Sullivan's theory of the          proper scope of the rule  of reason analysis.  As we point out in          note [4] above, and as Sullivan himself points out, to the extent          the NFL's  policy strengthens and improves  the league, resulting                                         -51-          in increased competition in the market for ownership interests in          NFL clubs through, for example, more valuable teams, the jury may          consider the NFL's justifications as relevant factors in its rule          of  reason analysis.  The danger of the proffered instructions on          the verdict  form is  that they  may have  mislead the  jury into          thinking  that  it  was  precluded  from  considering  the  NFL's          justifications for its ownership policy.  Therefore, the relevant          market  language on the verdict  form should be  removed, or else          the  jury  should  be  informed  that  evidence  of  benefits  to          competition  in  the  relevant  market can  include  evidence  of          benefits flowing indirectly from the public ownership policy that          ultimately  have  a  beneficial  impact  on  competition  in  the          relevant market itself.               E.  References to Prior Antitrust Cases Against the NFL               E.  References to Prior Antitrust Cases Against the NFL                    Despite  a  pretrial  motion  in  limine  and  repeated                                                  __________          objections by the  NFL, the  district court allowed  the jury  to          hear  numerous references  to prior  antitrust cases  against the          NFL.  Evidence about prior  antitrust violations by the defendant          may, in  appropriate cases,  be  admissible to  show things  like          market  power,  intent  to   monopolize,  motive,  or  method  of          conspiracy.   United States Football League  v. National Football                        _____________________________     _________________          League, 842 F.2d  1335, 1371 (2d Cir. 1988) (hereinafter "USFL").          ______                                                    ____          Because of  the inherently  prejudicial nature of  such evidence,          however, evidence  of prior antitrust cases involving the NFL are          only  admissible if  Sullivan  can demonstrate  that the  conduct          underlying   those  prior   judgments   had  a   direct,  logical                                         -52-          relationship to the conduct at issue in the present case.   USFL,                                                                      ____          842 F.2d at 1371;  International Shoe Mach. Corp. v.  United Shoe                             ______________________________     ___________          Mach. Corp., 315 F.2d 449, 454 (1st Cir.), cert. denied, 375 U.S.          ___________                                ____  ______          820 (1963) (plaintiff  must show "that his claimed injury stemmed          directly and proximately from the same type of practice condemned          in the prior Government  action"); see also Coleman Motor  Co. v.                                             ________ __________________          Chrysler  Corp., 525 F.2d 1338, 1351 (3d  Cir. 1975).  In many of          _______________          the  instances where Sullivan  or his counsel  made references to          prior antitrust cases  at trial, Sullivan failed  to satisfy this          burden.                    Sullivan argues  that  the prior  cases  were  relevant          either to  certain testimony regarding the  reasonableness of the          NFL's ownership policy and voting requirements or to the issue of          defining  the  relevant  market.    Because  none  of  the  cases          mentioned at  trial concerned the NFL's ownership policy at issue          here,  evidence of  those  prior cases  is  not relevant  to  the          reasonableness of the NFL's policy against public ownership.  The          general voting requirements are not in dispute, so cases touching          solely upon them are also not relevant.  Certain limited portions          of  some prior antitrust decisions  are relevant to  the issue of          defining the  relevant market.   The testimony and  commentary at          trial  concerning these prior cases,  however, was not limited to          the relevant market portions of these cases and, on the contrary,          focussed  primarily on  the  issue of  whether  the NFL's  public          ownership policy was  unreasonable.  As  such, that evidence  was          prejudicial,  without  any  balancing  relevance  to  justify its                                         -53-          admission into evidence.                    The references to prior NFL cases were made in a number          of different  contexts during the trial  (including during direct          examination,  cross-examination,  and at  closing  argument), and          they  contained  a  variety  of  different  information.    These          references  are not likely to  be repeated in  precisely the same          context  upon  a new  trial.   Therefore, instead  of identifying          which particular  pieces of evidence were  inadmissible, we think          it  would be  more  useful  to  point  out  more  generally  that          references to prior  NFL cases are not  relevant to the  issue of          the reasonableness of the NFL's  public ownership policy and such          references should  be excluded if they  contain information about          the unreasonableness of other  policies of the NFL which  were at          issue in the other cases.                    Reversed and remanded.                    _____________________                                         -54-
