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, &amp;

             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, &amp;

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, &amp; 
             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  &amp;  Burling,  Jeremiah  T.  O'Sullivan,  Sarah   Chapin
                                                                 
Columbia,  Choate,  Hall  &amp;  Stewart,  Joseph  W.  Cotchett,  and
                                                           
Cotchett, Illston &amp; 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 &amp; Sands, Bruce J. Wecker, Michael P. Lehmann and
                                                             
Furth, Fahrner &amp; 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

          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

          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 &amp; 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

                   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
                                                               

          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 &amp;  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
                                                          

          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

          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 &amp; 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  &amp;  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

                               -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  &amp;  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 &amp;  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  &amp;  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 &amp; 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

          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

          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  &amp; 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

          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

          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

          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
                      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 &amp; 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

          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-
