Full opinion text
HIGGINBOTHAM, District Judge. I. INTRODUCTION In 1917, the National Hockey League was born with Montreal.and Toronto as its only members. In 1924, Boston was added, followed in 1926 with Chicago, Detroit and New York. In 1967, Los Angeles, Philadelphia, Pittsburgh, California, Minnesota, St. Louis entered the League and in 1970 Buffalo and Vancouver. In 1972, Nassau (New York) and Atlanta joined this now famous League. Since 1966, the National Hockey League has received in exeess of $36,000,000 for the sale of the rights to play major league professional hockey in their league. When in 1970 the National Hockey League admitted Vancouver and Buffalo, each of these two new clubs paid in excess of $8,000,000 for the acquisition of the minor professional league clubs in their locality and for distribution to National Hockey League clubs. Thus, from what in 1917 was a relatively minor sports attraction, the National Hockey League has skated into the 1970’s to a position of substantial wealth, power, broad spectator interest, international recognition and many superstars, all crescendoing into huge profits for both its owners and players. One writer observes: “What has happened is this: the intrinsic speed and excitement of hockey has made it the game of the second half of this century.” Maybe in 1922 when the Supreme Court decided the baseball case, hockey was also, as Mr. Justice Holmes then described baseball, primarily an effort to give exhibitions with profits and interstate commerce contacts as mere incidentals. But today, as I review the instant record, hockey is primarily a multi-state, bi-national business, where the fundamental motive is the making of money. From its multiple interstate contacts it is a business in commerce subject to the federal anti-trust laws. Despite the thousands of words uttered on this record by all parties about the glory of the sport of hockey and the grandeur of its superstars, the basic factors here are not the sheer exhilaration from observing the speeding puck, but rather the desire to maximize the available buck. Since 1971, the World Hockey Association (hereinafter referred to as WHA) has attempted to enter major league professional hockey to become a real competitor in this field where the National Hockey League (hereinafter referred to as NHL) has for so long held a total monopolistic position as the sole supplier of major league hockey competition. The basic issue is whether through their reserve clause, affiliation agreements, and market power dominance, the National Hockey League has violated the federal antitrust laws and if such a violation is found, whether the WHA is entitled to relief at this preliminary injunction stage.. After a careful review of this most detailed record and the extensive briefs and proposed findings of fact, I find, for the reasons noted below, that for the National Hockey League players whose current contracts expired in September, 1972, the National Hockey League violates the Sherman Act, Section 2, in its efforts to preclude those players from joining WHA teams; accordingly the WHA is entitled to preliminary injunctive relief. I would like to note my appreciation to all counsel for the most diligent manner in which they have pursued their discovery and litigation in this case. In fact, their performance has been a model for the entire legal profession as to the rational way in which able counsel can meet difficult problems in litigating with obvious vigor a preliminary injunction case where time, if not of the essence, is at least critical because any unnecessary delay by counsel or the court could create a substantial injury to some of the parties. If this case could be decided solely on the basis of the talent and diligence of counsel, the parties would be in perfect equipoise. The original complaint was filed in Philadelphia on August 18, 1972. Since then, the parties have had extensive discovery, meeting with extraordinary dispatch difficult deadlines. They have filed detailed pre-trial memoranda and proposed pre-trial orders and amendments in support of numerous motions to remand, to dismiss, and for partial summary judgment. For one phase of this litigation pertaining to whether one case should be remanded to a Chicago state judge, we had extensive detailed arguments on the afternoon of September 27, 1972 and at 9:21 that evening, I dictated my opinion from the bench— from which no appeal was filed. Though originally some phases of the case were argued as motions for partial summary judgment and motions to dismiss, on October 10, 1972 the parties agreed that the record was closed and that I “ . . . may consider all of the matters on the preliminary injunction [aspects] which have been [also] submitted on behalf of the [motions for] summary judgment.” Transcript, October 10, 1972, 148-9. The last exhibit was filed on.October 24, 1972 pursuant to the court’s request for additional information. Since the record has been closed as to the preliminary injunction phase and the record might contain some material facts which are in dispute, T am declining to rule on the summary judgment motions. Instead I am deciding the case on the preliminary injunction phase with all of the facts (whether disputed or not) being resolved in the findings of fact, infra, and in the opinion. In accordance with Rule 52 of the Federal Rules of Civil Procedure, this entire opinion, including the discussion, constitutes my Findings of Fact and Conclusions of Law, and any proposed Findings of Fact and Conclusions of Law inconsistent with those not here found are hereby rejected. II. FINDINGS OF FACT GENERAL FINDINGS AS TO JURISDICTION AND PARTIES 1. Five separate actions are consolidated before this Court in this proceeding. They are: a. Philadelphia World Hockey Club, Inc. v. Philadelphia Hockey Club, Inc. et al., C.A. 72-1661, complaint originally filed in this Court on August 18, 1972. b. Philadelphia Hockey Club, Inc. v. John McKenzie, et al., C.A. 72-1807, removed from the Court of Common Pleas of Philadelphia. County on September 13, 1972, pursuant to 28 U.S.C. § 1441. c. John McKenzie v. Philadelphia Hockey Club, Inc., et al., C.A. 72-1902, complaint originally filed in this Court on September 26, 1972. d. Sports Centrepoint Enterprises, Ltd., et al. v. National Hockey League, et al., C.A. 72-1906, transferred from the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). e. World Hockey Association, et al. v. National Hockey League, et al., C. A. 72-1995, transferred from the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). 2. Philadelphia World Hockey Club, Inc. (hereinafter “Philadelphia Blazers”), plaintiff in C.A. 72-1661, is a corporation organized under the laws of the State of New Jersey with its principal place of business in Philadelphia, Pennsylvania. 3. Sports Centrepoint Enterprises, Ltd., (hereinafter “Winnipeg Jets”), plaintiff in C.A. 72-1906, is a corporation organized under the laws of the Province of Manitoba with its principal place of business in Winnipeg, Manitoba, Canada. (Complaint and Answer in C.A. 72-1906, ¶ 3a.) 4. Chicago Cougars Hockey Club, Inc., (hereinafter “Chicago Cougars”), plaintiff in C.A. 72-1906, is a corporation organized under the laws of the Province of Manitoba with its principal place of' business in Chicago, Illinois. (Complaint and Answer in C.A. 72-1906, ¶ 3b.) 5. John McKenzie, (hereinafter “McKenzie”), plaintiff in C.A. 72-1902, is an individual and a citizen of Canada, residing at Boston, Massachusetts (Complaint in C.A. 72-1902, ¶ 3; Complaint and Answer ¶ C.A. 72-1807, ¶ 2.) 6. World Hockey Association, (hereinafter “WHA”), a plaintiff in No. 72-1995, is a non-profit corporation organized and existing under the laws of the State of Delaware, with its main office located in Santa Ana, California. WHA was formed in 1971 to operate a league of professional hockey clubs and to promote the interests of its individual member clubs. WHA has member franchises in cities and states throughout the United States and Canada. (Complaint in C.A. 72-1995, ¶ 3.) 7. The following plaintiffs in C.A. 72-1995 are all WHA franchise holders, and are corporations organized under the laws of the state or province indicated, with a place of business similarly indicated for each defendant: a. Edmonton World Hockey Enterprises, Ltd., Alberta, McDonald Hotel, Edmonton, Alberta, Canada. b. Cleveland World Hockey Association Club, Ohio, 3715 Euclid Avenue, Cleveland, Ohio. c. Houston Hockey Club, Inc., Ohio, San Houston Coliseum, 810 Bagby, Houston, Texas. d. Los Angeles Sharks, Inc., California, 3939 South Figueroa Street, Los Angeles, California. e. Midwest Saints, Inc., Minnesota, Metro Square, St. Paul, Minnesota. f. New England Professional Hockey Club, Inc., Massachusetts, 17 Lobby Street, Boston, Massachusetts. g. Metropolitan Hockey Club, Inc., New Jersey, Statler Hilton Hotel, 7th Avenue and 33rd Street, New York, New York. h. Ontario National Hockey Teams, Inc., Ontario, P.O. Box 1358, Station B, Ottawa, Ontario, Canada. i. Le Club de Hockey Les Nordiques, Inc., Quebec, Colisee de Quebec, Quebec 3, Quebec, Canada. (Complaint in C.A. 72-1995, ¶ 4.). 8. National Hockey League, (hereinafter “NHL”), defendant in C.A. 72-1661, 72-1902, 72-1906 and 72-1995, is an unincorporated nonprofit association with its principal place of business in Montreal, Canada. From the time-of its organization, the membership of the NHL has consisted of member clubs engaged in the staging of professional hockey games- throughout the United States and Canada through a league of professional hockey clubs based on franchises covering specific geographical territories. (Complaint and Answer in C. A. 72-1661, ¶ 4; Exhibit P-3, Arts. I & II.) 9. The following defendants in C.A. 72-1661, 72-1902, 72-1906 and 72-1995, are all corporations organized under the laws of the State or Province indicated immediately following each such defendant, with a place of business as indicated: a. Boston Professional Hockey Association, . (hereinafter “Boston Bruins”), Massachusetts. (Complaint and Answer in C.A. 72-1661, ¶ 5.) b. Charles O. Finley and Company, Inc., (hereinafter “California Golden Seals”), holds the' NHL franchise for Oakland, California. (Complaint and Answer in C.A. 72-1661, ¶ 6.) c. Chicago Blackhawk Hockey Team, Inc., (hereinafter “Chicago Black-hawks”), Illinois, 1800 W. Madison Street, Chicago, Illinois. (Complaint and Answer in C.A. 72-1661, 117.) d. Detroit Hockey Club, Inc., (hereinafter “Detroit Red Wings”), Michigan, 5920 Grand River, Detroit, Michigan. (Complaint and Answer in C.A. 72-1661, ¶ 8.) e. California Sports, Inc., (hereinafter “Los Angeles Kings”), California, 3900 West Manchester Boulevard, P.O. Box 485, Inglewood, California. (Complaint and Answer in C.A. 72-1661, ¶ 9.) f. The Hockey Club of Minnesota, Inc., (hereinafter “Minnesota North Stars”) now known as Northstar Financial Corporation, holds an NHL franchise in Bloomington, Minnesota. (Complaint and Answer in C.A. 72-1661, ¶ 10.) g. Le Club de Hockey Canadien, Inc., (hereinafter “Montreal Canadiens”), Quebec, 2312 St. Catherine Street West, Montreal, Quebec, Canada. (Complaint and Answer in C.A. 72-1661, ¶ 11.) h. Madison Square Garden Center, Inc., (hereinafter “New York Rangers”), holds an NHL franchise for New York, New York. (Complaint and Answer in C.A. 72-1661, ¶ 12.) i. Philadelphia Hockey, Inc., (hereinafter “Philadelphia Flyers”), Philadelphia, Pennsylvania, The Spectrum, Pattison Place, Philadelphia. (Complaint and Answer in C.A. 72-1661, ¶ 14.) j. Pittsburgh Penguin Partners, a Limited Partnership, (hereinafter “Pittsburgh Penguins”), hold an NHL franchise for . Pittsburgh, Pennsylvania. (Complaint and Answer in C.A. 72-1661, ¶ 14.) k. St. Louis Blues Hockey Club, Inc., (hereinafter “St. Louis Blues”), Missouri, 5700 Oakland Avenue, St. Louis, Missouri. (Complaint and Answer in C.A. 72-1661, ¶ 15.) l. Maple Leaf Gardens, Ltd., (hereinafter “Toronto Maple Leafs”), Ontario, 60 Carlton Street, Toronto, Ontario, Canada. (Complaint and Answer in C.A. 72-1661, ¶ 16.) m. Niagara Frontier Hockey Corporation, (hereinafter “Buffalo Sabres”), New York, Buffalo, New York. (Complaint and Answer in C.A. 72-1661, ¶ 17.) n. Vancouver Hockey Club, Ltd., (hereinafter “Vancouver Canucks”), holds an NHL franchise for a hockey club in Vancouver, British Columbia. (Complaint and Answer in C.A. 72-1661, ¶ 18.) o. Atlanta Hockey, Inc., (hereinafter “Atlanta Flames”), Georgia, 2 Forsyth Street, N.W., Atlanta, Georgia. (Complaint and Answer in C.A. 72-1661, ¶ 19.) p. Nassau Sports, a Limited Partnership, (hereinafter “New York Islanders”), New York, 1 Old Country Road, Carle Place, Nassau County, New York. (Complaint and Answer in C.A. 72-1661, ¶ 20.) 10. Clarence S. Campbell, (hereinafter “Campbell”), defendant in C.A. 72-1995 is an individual and President of the NHL and maintains a place of business in Montreal, Quebec, Canada. (Complaint in C.A. 72-1995, ¶ 8.) 11. Jurisdiction of the subject matter duly appears pursuant to 15 U.S.C. §§ 15 and 26 and 28 U.S.C. § 1337 and has not been challenged. Jurisdiction and proper venue of the defendants, except Atlanta and Nassau in C.A. 72-1661, is not contested. (See Complaint and Answer in C.A. 72-1661, ¶¶ 1 and 21.) 12. C.A. 72-1807 was removed to this Court pursuant to 28 U.S.C. § 1441(a) and (b). (Removal Petition in C.A. 72-1807, ¶ 11.) 13. This matter comes before the Court on motions for partial summary judgment and preliminary injunction submitted by Blazers in No. 72-1661, Centrepoint and Cougars in C.A. 72-1906 and McKenzie in C.A. 72-1807 and 72-1902. INTERSTATE TRADE AND COMMERCE 14. The various teams of the NHL transport players and equipment across state lines and the boundary between Canada and the United States in the course of playing their schedules of professional major league hockey games in the various cities in which NHL teams are located. (Defs.’ Proposed Pretrial Order, ¶ 4(c), p. 22.) 15. Each NHL club stages hockey events, contracts with players and other individuals for their services, purchases equipment, contracts with television and radio stations, transports players and equipment, purchases and sells or arranges for the purchase and sale of refreshments at hockey rinks and carries on other activities in various parts of the United States and Canada. (Defs.’ Proposed Pretrial Order, ¶ 2, p. 21.) 16. The NHL employs the instrumentalities of interstate commerce in the following respects: (a) The NHL contracts with national network television stations for the broadcast of certain of its games (Exhibit P-27, Campbell dep., p. 148; Exhibit P-38, Wirtz dep., p. 36; Defs.’ Proposed Pretrial Order, ¶ 4(a), p. 22.) (b) Some of the NHL clubs sell tickets, employ agents and advertise in connection with the staging of some hockey events across state and national boundaries (Defs.’ .Proposed Pretrial Order, ¶ 4(b), p. 22.) ' (c) The staging of hockey events by NHL teams requires interstate travel by them as well as communication in interstate commerce and movement of equipment in interstate commerce. (Defs.’ Proposed Pretrial Order, ¶ 4(c), p. 22.) THE RELEVANT MARKET 17. The relevant market is major league professional hockey. (Findings of Fact 20-37, infra.) 18. The relevant geographic markets are the United States and Canada and the metropolitan areas in which the NHL teams are located. (Findings of Fact 20-37, infra.) 19* There is a sufficient disparity between major league professional hockey on the one hand and minor professional league and amateur hockey on the other to distinguish the former from the latter. (Findings of Fact 20-37), infra. 20. The average ticket price for NHL games is $5.22; for AHL games it is $3.07; for WHL games $2.47; and for CHL games $2.42. (Exhibit P-27, Campbell dep., p. 147; Exhibit P-71.) 21. Average paid.attendance at NHL games is approximately 14,000; total paid attendance for the 1971-72 season was 7,906,000 for 536 games,. The following is the total and average paid attendance for the 1971-72 season at minor league games: Total Paid Average Paid No. of Attendance Attendance Games AHL 1,934,504 4,437 436 WHL 1,032,233 4,779 216 CHL 849,333 3,932 216 Total Minor Leagues . 3,816,070 (Exhibit P-71; Exhibit P-27, Campbell dep., pp. 148-149). 22. Total attendance at NHL games was more than twice that of all three minor professional leagues combined, although the minor leagues played more games than the NHL. (Exhibit P-24, Allen dep., p. 225; Exhibit P-27, Campbell dep., pp. 148-49; Exhibit P-71.) 23. The popularity of major league professional hockey vis-a-vis its minor league counterpart is indicated by the fact that average 1969-70 season attendance in the NHL East Division was more than 100% of rated seating capacity. (Exhibit P-59). Chicago Black-hawks President William Wirtz testified that his team’s games are typically sold out, but that in contrast the Blackhawks’ Dallas minor league team draws only 2,500 in an 8,000 seat arena. (Exhibit P-38, Wirtz dept., p. 42.) 24. The NHL has entered into network television contracts, in both the United States and Canada, the proceeds of which are divided among the NHL member teams. It is, however, highly unusual for a minor league team to be able to secure such an agreement. (Exhibit P-27, Campbell dep., pp. 148, 152.) The Chicago Blackhawks have a local television contract under which its out of town games are shown in Chicago. The television station in Chicago pays the Blackhawks for the broadcast rights. No such arrangements can be made for the Dallas minor league team because “(t)here is no market for it”. (Exhibit P-38, Wirtz dep. p. 37.) 25. Salaries paid NHL players are far higher than in the AHL. (Exhibit P-24, Allen dep., pp. 221-22.) Contracts offered to younger players often contain two salaries, one if the player is signed by his NHL team, a lesser sum if he is transferred to or remains with a minor league club. (Exhibit P-43; Exhibit P-33, O’Neill dep., pp. 89-91.) The average NHL player’s salary in 1971-72 season was $24,000. For minor league players, salaries were typically $11,000 to $12,000. (Exhibit P-24, Allen dep., p. 222.) 26. There is no dispute among the witnesses that the presence of qualified players of major league professional caliber is essential to the successful conduct of major league professional ice hockey competition. (Exhibit D-2, Swados Aff., pp. 3-9; Exhibit P-38, Wirtz dep., pp. 27-28, 44-55; Exhibit P-27, Campbell Test. Senate, p. 545; Exhibit P-28, Cook dep., pp. 74-75.) Robert Swados, Vice President and Counsel of the NHL’s Buffalo Sabres, states that highly developed playing skills are essential to the high quality of hockey demanded by major league fans. (Exhibit D-2, Swados Aff., p. 7, ¶ 5.) 27. Most amateur hockey players do not have sufficiently developed skills to warrant their inclusion on NHL team rosters. Such players usually require two to four years of minor professional league seasoning for major league competition. (Exhibit P-38, Wirtz dep., pp. 27-28; Exhibit P-33, O’Neill dep., p. 119.) Swados, of the Buffalo Sabres’ organization, observes that only in “rare cases” is an outstanding amateur player placed immediately on the roster of an NHL team. Mr. Swados states: “In most cases he would be assigned to a farm club for further development of his skill conditioning, elimination of his weaknesses, refinement of his team play or whatever special training the hockey department of the NHL club felt was required. Upon attaining the necessary skills and experience in team play, he would move up to his major league club.” (Swados Aff., p. 12.) 28. The use of young amateur players as the sole basis for a professional hockey league team, in the words of the president of the NHL would mean “they (WHA) have got to spend at least another four years in developing them before they can do them one bit of good” and “if they do, they haven’t got a good enough show.” (Exhibit P-26, Campbell Senate, p. 545). 29. There are more than 50,000 amateur hockey players in Canada and the United States. In 1972, approximately 7000 Canadian players attained the age of 20 and were available in the NHL draft; of these, 152 were drafted by NHL clubs. By September 25, 1972, 45 of them had been successfully signed by the NHL clubs. (Exhibit D-126, O’Neill dep., p. 105; Exhibit D-2, Swados Affidavit, p. 14). The record does not reveal whether these 45 players immediately will play for an NHL major league team, or will first be assigned to the minor leagues. 30. Any and all of these 50,000 amateur players, including those subject to the NHL draft or actually drafted by an NHL club, but not successfully signed, are available to play in the WHA or any other league. As stated by Mr. Swados, of the NHL, “there is no provision of contract, constitution, by-law or statute that prevents any amateur player, whether or not drafted by an NHL club, from signing with the WHA or any other new league ...” [Ex. D-2 (Swados), p. 14.] Mr. Davidson, President of the WHA, is also of the view that amateur players are contractually free to sign with any professional team that tenders them a contract. [Ex. D-134 (Davidson), p. 15.] While there is apparently no legal bar which precludes the WHA’s contracting with amateur players of any age, the Canadian government in regulating its sponsored amateur leagues would prefer that the professional leagues draft only amateurs who are over 20 years of age. Even if the WHA observes the 20 year-old rule, there are many “junior hockey graduates”, over the age of 20, who have had prior competitive experience by reason of the extensive play in the amateur leagues. 31. The World Hockey Association does intend to utilize some players from the minor professional leagues in order to stock their newly established clubs. As stated by one of the two promoters of the WHA, the WHA “started off with the premise . . . that we would most probably not get too many players to join us from the National Hockey League after their contract period was up. We started off with that premise, so we looked at the basis that there was the Central League, the Western League, the International League, the Eastern League and the American League, all minor leagues, and the amateur leagues and the European leagues, and we felt that there was a great reservoir of players.” [Ex. D-135 (Murphy), pp. 70, 79.] The “Player Personnel Executive” for the WHA, Mr. Steve Arnold (See Ex. D-19) gave Mr. Murphy, one of the two WHA promoters, “the feeling that there was plenty of good talent to draw from and that there was going to be a considerable reservoir of players to come from in the future.” [Ex. D-135 (Murphy), p. 71.] 32. Financial considerations of the WHA further dictate that some players other than those of major league caliber will be signed. The WHA has advised its member clubs that: “We would caution each of you that the expenditures for players could far exceed our budgetary estimates unless we all agree to a firm formula. This formula will provide for the stocking of each team under the following recommended structure. “That each team include six graduating Junior Hockey League players, a minimum of six professional players from the Minor Leagues and five other professionals, hopefully National Hockey League players. “It is felt that we can secure more than enough excellent Junior Hockey League players — future Super Stars — to build a foundation from. It is also felt that these players can be secured at an average cost of $10,000 bonus and a $15,000 salary. It would be to our advantage to sign these players to a multi-year contract.” (Exhibit D-115) 33. Bobby Hull, apparently one of the “superstars” in professional hockey, has commented on the ability of junior hockey players: “Some buffs consider the brand of hockey played in the Junior ‘A’ leagues more exciting if not better than that in the NHL. The reasoning is that every player knows he is being watched constantly by the NHL parent club and may be hauled upstairs at any time, if only to fill in for somebody who has been injured. This continued observation is supposed to make the Juniors play better. I doubt they do, regardless of the pressure, and I am certain a fan will see more finesse in the NHL than in the Juniors.” (B. Hull, Hockey is My Game, 15-16 (1967)). Bobby Hull has also stated: “I would defy all but the hockey purist to find that much difference between the play in, say, the American Professional League and the NHL. Or for that matter between two of the top Junior ‘A’ clubs in Canada, though I know I have said there is a difference in play between the NHL and these clubs.” (Id. at p. 22) To the extent there is any inconsistency between the two statements, I adopt the former as a Finding of Fact and specifically reject the latter. 34. The WHA clubs have drafted 104 International Hockey League and Eastern Hockey League players, 105 college players and four known European players. (Exhibit D-3; Exhibit D-135 (Murphy) p. 80-A; Exhibit D-134 (Davidson), p. 16; Exhibit D-87, p. 2; Exhibit D-126 (O’Neill), p. 103.) THE STRUCTURE OF PROFESSIONAL HOCKEY AND THE SUPPLY OF PROFESSIONAL PLAYERS. 35. Prior to the formation of the WHA in 1971, the NHL was the only major league professional hockey association in North America. (Exhibit P-34, Schmidt dep., p. 11; Exhibit P-73; Exhibit P-32, Mulcahy dep., p. 4-114.) 36. In addition to the NHL, there are three other professional hockey leagues in North America. These are the American Hockey League (AHL), the Western Hockey League (WHL), and the Central Hockey League, formerly the Central Professional Hockey League, (CHL), with a total of 24 teams (Exhibit P-71; Exhibit P-29 at 563-64; Exhibit P-34, Schmidt dep., p. 11; Exhibit P-35, Snider dep., pp. 13-15; Exhibit P-38, Wirtz dep., p. 24.) The best players are found in the NHL (Exhibit P-29, Eagleson Test, in Flood, pp. 549-50; Exhibit P-32, Mulcahy dep., pp. 4-114, 4-115), the next best in the American and Western Hockey Leagues, and the lowest level of professional players is in the Central Hockey League (Exhibit P-29, Eagleson, pp. 563-64.) 37. The International and Eastern Hockey Leagues are amateur or at best semi-professional leagues. William Wirtz (NHL) testified that the International Hockey League is an amateur organization “[tjhat does have professional players that have sat out for a couple of years and come back and want their amateur status reinstated.” (Exhibit P-38, Wirtz dep., p. 23; Exhibit P-34, Schmidt dep., p. 11; Exhibit D-2, Swados Aff., p. 12.) And although they are sometimes used by NHL teams for assignment for development of their weakest players (see Exhibit P-24, Allen dep., pp. 226-29; Exhibit D-2, Swados Aff., p. 12), their players are generally less talented than those in the minor professional leagues. 38. The NHL requires that each of its member teams must have an affiliation with a “player development team”. (Exhibit P-33, O’Neill dep. at 28; Exhibit D-2, Swados Affidavit at p. 17). Thus, at least 16 of the 24 professional minor league teams are owned or operated by or affiliated with NHL teams. All of the teams in the CHL are owned by NHL teams. (Exhibit P-25, Campbell Flood test. p. 574; Exhibit D-2, Swados Affidavit at 18.) C. S. Campbell stated that in addition to the teams owned by NHL members, “ . . . there are almost an unlimited number of affiliations and loaning arrangements of various kinds.” (Exhibit P-25, Campbell Flood test. p. 574.) 39. The National Hockey League is governed by a Board of Governors and a President selected by that Board, and each individual team defendant herein has a representative and a vote on the Board of Governors. (Exhibit P-3, NHL Constitution, Arts. 5.2, 61.). 40. The NHL By-laws provide that the Board of Governors will adopt a uniform Standard Player’s Contract. The contract used during the 1971-72 playing season contained the following provision : Clause 17 “The Club agrees that it will on or before September 1st . . . next following the season covered by this contract tender to the Players personally or by mail ... a contract upon the same terms as this contract save as to salary. The Player hereby undertakes that he will at the request of the Club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement. (Exhibit P-4, NHL By-Laws, § 2.2(a); Exhibit D-1, Campbell Affidavit, Ex. D-4 attached thereto.) Any player’s Standard Player’s Contract entered subsequent to March 29, 1972, will contain the following new Clause 17: “17. The Club agrees that it will on or before September 1st (August 10th, in the case of ‘protected’ players and those who played fifty NHL games in the preceding season) next following the season covered by this contract tender to the Player personally or by mail directed to the Player at his address set out below his signature hereto a contract upon the same terms as this contract save as to salary. The Player hereby undertakes that he will at the request of the Club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement, failing which, by arbitration under the Arbitration Agreement between the League and the NHL Players’ Association dated March 29th, 1972.” Ex. P-1, ¶ 17. A reserve clause has been in effect since at least 1952. (Exhibit P-38, Wirtz dep. at p. 48) 41. On May 15, 1967, the NHL entered into an agreement with the Canadian Amateur Hockey Association (hereinafter “CAHA”) and the Amateur Hockey Association of the United States (hereinafter “AHAUS”). (Exhibit P-8). Prior to this agreement, various NHL member teams had individually sponsored amateur clubs. (Exhibit D-2, Swados Affidavit at p. 15). The Pro-Amateur Agreement also replaced an earlier agreement of September 1, 1958, between the .NHL and the CAHA, AHAUS and the International Ice Hockey Federation. (Exhibit P-8, Preamble, P. 2). 42. Unlike professional football and basketball, which can draw on an ample supply of talented players developed in competition at the college level in the United States at no cost to the member clubs of the professional leagues, the NHL has never had such a ready-made source of talent. Accordingly, it has invested millions of dollars to help support a system of amateur league and minor league hockey in Canada and the United States which will give youngsters an opportunity to play hockey and develop their hockey skills and which will thus also provide a source of potential players of major league calibre. (Ex. D-2 (Swados), pp. 7-8; Ex. D-126 (O’Neill), pp. 108-113). 43. During the period June, 1967 through June, 1971 alone, the NHL made grants totaling $5,493,000 to amateur hockey associations for distribution to and support of amateur hockey leagues throughout Canada and the United States. (Ex. D-2 (Swados), pp. 12-14.) 44. In addition to the NHL’s support of amateur hockey, the NHL clubs have invested large sums for the development and support of professional minor league hockey clubs in Canada and the United States, many of which could not continue to operate without the subsidies provided by the NHL clubs. (Ex. D-2 (Swados), pp. 16-20.) 45. The willingness of the NHL clubs to invest so heavily in the development of hockey players in the amateur and minor leagues is based in large part on their belief that if a player developed through this system signs a contract with an NHL club that club will, because of the “reserve” clause, have the right to his services as a professional hockey player. (Ex. D-2 (Swados), pp. 7-9, 16.) 46. On May 1, 1968, NHL and the three minor professional leagues entered into a memorandum of agreement commonly referred to as the Joint Affiliation Agreement or “JAA” (Exhibit P-5 § 1). The JAA recites that its object is the "... furtherance of the mutual welfare and interests of the parties hereto and their member clubs in particular . . .” (Exhibit P-5, Preamble.) 47. The Constitution of the NHL gives each team the exclusive control over all professional hockey activities in its “home territory”, defined as the city where each team is located and an area of fifty miles from the city limits. (Exhibit P-3, Art. IV). 48. The “home territory” of each NHL team is preserved from minor professional league competition by the Joint Affiliation Agreement [Exhibit P-5, ¶ 31.] Simultaneously with the execution- of the Joint Affiliation Agreement NHL teams acquired from the minor professional leagues territorial rights for Los Angeles, Pittsburgh and San Franciseo-Oakland. [Exhibit P-5, ¶ 3, 32.] 49. Clause 17 of the Standard Player’s Contracts in the AHL and CHL contain language identical in all material respects to that of Clause 17 of the NHL Standard Player’s Contract prior to the March 29, 1972 addition of the Arbitration clause. [Exhibits P-6; P-7, P-42.] Clause 17 of the Standard Player’s Contract of the WHL is identical to the above, except that instead of stating “the club agrees . . . ”, it states “The Club shall have the option. ...” The similarities of phraseology and basic incorporation of Clause 17 in the Standard Player’s Contract of the AHL, CHL, WHL, and NHL is the result of a common agreement, mutual understanding, and conspiracy by the NHL and its affiliated minor leagues to maintain a monopolistic position so strong that the NHL precludes effective competition by the entry of another major professional hockey league. Through the totality of many interlocking arrangements, including the Joint Affiliation Agreement, the Pro-Amateur Agreement, and Clause 17 in the Standard Player’s Contract, the NHL perpetuates a conspiracy and combination with the intent to monopolize and. which monopolizes major league professional hockey. These concerted efforts were done not solely to maintain a high level of professional competition among the NHL teams, but rather the major reason was the desire to preclude others from ever having immediate access to the reservoir of players who could become part of another major professional hockey league which could be a material and viable competitor to the NHL. In the words of Mr. Clarence Campbell, President of the NHL, part of the NHL’s purpose was to make certain that the NHL would always be “ . . . the only major professional hockey league operating from coast-to-coast in the United States or Canada.” [Exhibit P-73.] THE NATIONAL HOCKEY LEAGUE BY-LAWS 50. Paragraph 18 of the Standard Player’s Contract, provides that the player and the club are “ . . . to be legally bound by the Constitution and By-Laws of the league.” [Exhibit P-1, ¶ 18]. 51. The By-Laws provide that no member club may derogate from or change the provisions of the Standard Player’s. Contract without authorization of the Board of Governors. [Exhibit P-4, §2.2(a)]. 52. The By-Laws [Exhibit P-4, § 4] also establish “lists” relating to the right of NHL teams to control the services of professional players and provide the number of players which each team may maintain on such lists: List Number of Piayers a. Reserve List 30 [Exhibit P-4, § 53 b. Goal Keepers Reserve 3 [Exhibit P-4, § 63 List c. Negotiation list 4 [Exhibit P-4, § 7.13 d. Voluntarily Retired List e. Playoff Eligibility List f. Sponsorship List (now obsolete) g. Protected List 20 [Exhibit P-4, § 16A.13 h. Inactive List 53. Pursuant to the By-Laws, the Joint Affiliation Agreement with the minor leagues and the Pro-Amateur Agreement, a Central Registry is maintained by the. NHL which receives and records all of the documents relating to the rights of NHL and minor league teams to various players and the transfer of amateur draft rights [Exhibit P-4, § 9.9; Exhibit P-5, § 13; Exhibit P-8, § 14.] 54. Section 15 of the By-Laws forbids “tampering” with any player owned by any other club. “Tampering” as used in section 15 includes negotiating with, offering employment or discussing employment. It includes also the making of any public or private statement indicating a desire, interest or intention of acquiring the services of a player. Punishment for violation of this By-Law may include a fine of not less than $2,-000 but not more than $10,000 of which 50% is received by the offended club, prohibition of employment of the “tampered” person, and deferment by the offending member club of its choice in the draft proceedings. [Exhibit P-4, § 15]. Similarly, no member club may directly or indirectly negotiate with a player on another team’s negotiation list. [Exhibit P-4, § 7.2]. 55. Paragraph 14 of the By-Laws provides that each NHL team shall be liable for any act or omission of a minor league team owned, operated or affiliated by it which violates the By-Laws. The President of the NHL has the sole discretion to determine ownership, operation or affiliation. [Exhibit P-4, § 14.3]. 56. The By-Laws, the Joint Affiliation Agreement and the Pro-Amateur Agreement establish the procedures for drafting players. [Exhibit P-4, §§ 16, 16A; Exhibit P-5, §§ 19, 22, 23.] There are four types of drafts: a. The Inter-League draft, between the NHL and the three minor professional leagues; b. The Intra-League draft, among NHL teams inter se; c. The “reverse” draft, by which players move from the NHL back to the minor leagues; d. The universal amateur draft. 57. The Inter-League draft is controlled by Section 16 of the By-Laws [Exhibit P-4, § 16], and the Joint Affiliation Agreement [Exhibit P-5, § 19]. Players selected in the Inter-League draft are placed on the reserve list of the selecting NHL club. [Exhibit P-4, § 16.6]. Not more than three hours following the Inter-League draft, each NHL team submits to the President a list of 18 players and two goal keepers it wishes to “protect”. The “protected” lists are then circulated among the NHL member clubs as an offer to sell for $40,000 any “unprotected” professional or amateur player over the age of 22, on the club’s reserve list (other than a first year professional). [Exhibit P-4, § 16A.3] 58. The Universal Amateur Draft is conducted pursuant to By-Law 16B and the Pro-Amateur Agreement. The ByLaws provide that “no player shall be exempt from such right of selection in the year in which he is eligible for claim.” [Exhibit P-4, § 16B.2(b)]. Conversely, the Joint Affiliation Agreement prohibits any professional team from dealing with a player before he has passed through the Universal Amateur Draft. [Exhibit P-5, § 15(c)]. Selected players are placed on the selecting club's reserve list as “unsigned draft choices”, which gives the selecting club the exclusive right to negotiate with such players. [Exhibit P-4, § 16B.-5(a)], The selecting player may be held on the selecting club’s reserve list so long as that club offers him employment in the NHL for a minimum of $10,000 per year or in the minor league for a minimum of $5,000 per year. [Exhibit P-4, § 16B.5(b)]. 59. Payment to the amateur associations for selected players is set out in the By-Laws [Exhibit P-4, § 16B.6] and Pro-Amateur Agreement [Exhibit P-8, ¶ 18] as follows: a. $3,000 for each player selected in the Universal Amateur draft. b. An additional $3,000 if such player is signed by an NHL team. c. $4,000 if in his first year under a Standard Player’s Contract, such player plays in 25 or more NHL games. Recently, these amounts have been amended. [Exhibit D-2, Swados Affidavit, at p. 13.] 60. Any player under contract or reserved by a member who, without permission, plays for any other league or organization may be expelled or suspended as may a player refusing to sign a standard player contract containing an arbitrator’s award. [Exhibit P-4, § 17.-5] The President of the league may prohibit the employment of any person by any member club if in his opinion such employment would be “prejudicial to or against the welfare of the league”. [Exhibit P-4, § 18]. 61. In addition to establishing the waiver price ($40,000) for NHL players and minimum salary levels for drafted amateurs ($10,000 in NHL, $5,000 in the minors), the By-Laws provide that no member shall pay or offer to pay its players any bonus or other reward which would be a special inducement over and above the contracted salary [Exhibit P-4, §§ 16A.7, 16B.5(b), 25.3; Exhibit P-38, Wirtz dep. p. 15]. THE PRO-AMATEUR AGREEMENT 62. The Pro-Amateur Agreement recites that the NHL is contracting on behalf of its associated and affiliated minor professional leagues, and the Joint Affiliation Agreement confirms that authority. [Exhibits P-8, p. 1; P-5, 1128]. 63. The NHL agrees to recognize the CAHA and AHAUS (hereafter “amateur associations”) as the “sole and exclusive governing bodies of amateur hockey within their respective territorial and constitutional spheres . . ” and agrees that “. . in all matters relating to amateur hockey and its relations with professional hockey .” the NHL will deal only with the amateur associations. The NHL also agrees to notify the amateur associations if it becomes aware of the possibility that a professional hockey club might be entering an amateur association’s territory, and if any amateur group seeks recognition as a professional league, application for such change in status would be first submitted to the amateur associations. [Exhibit P-8, ¶ 2]. 64. The amateur associations acknowledge that the NHL and its affiliated and associated minor leagues “. . . are the sole and exclusive governing bodies of professional hockey in Canada and the United States of America . . . ” and agree that “. . .in all matters relating to professional hockey and its relations to amateur hockey . . .” the amateur associations will deal only with the NHL. [Exhibit P-8, ¶ 3]. 65. The amateur associations and the professional leagues agree to recognize each other’s suspensions in a manner similar to the reciprocal recognition of suspensions contained in paragraph 26 of the Joint Affiliation Agreement. The effect of these agreements is to preclude a suspended player from any participation in organized professional or amateur hockey. [Exhibits P-8, ¶¶ 4, 5; P-5, § 26], 66. The amateur associations also acknowledge that the Standard Player’s Contract, the negotiation claim and the unsigned draft claim will be the “. . . only officially recognized relationships in existence and use .” by the NHL and minor professional leagues [Exhibit P-8, ¶] 6], and that a player will be considered a “professional” only when he has signed a Standard Player’s Contract [Exhibit P-8, ¶] 9]. The recognition of the Standard Player’s Contract, the negotiation nomination and unsigned draft claims are supplemented with the recognition by the amateur associations of the various lists employed by the .four professional leagues. [Exhibit P-8, 1117]. 67. The NHL, CAHA, and AHAUS agree that ordinarily no amateur player may be a “professional” unless he has reached his 20th birthday by December 31-January 1 of that season. [Exhibit p-8, uno, 11]. 68. The NHL and the amateur associations agree to establish a Joint Development Committee to oversee liaison between the groups and that the NHL will subsidize the amateur associations, and make certain payments also specified in the NHL By-Laws [Exhibit P-8, ¶¶ 17, 18] for players drafted in the Universal Amateur Draft. 69. The Pro-Amateur Agreement also recites procedures by which a professional player seeking to be reinstated as an amateur must obtain permission of either the club with whom he was affiliated or the Joint Development Committee. [Exhibit P-8, ¶ 16]. 70. The parties agree that they and their respective clubs will not “tamper” with each other’s players. [Exhibit P-8, ¶ 16; see, Finding 54, supra.] THE JOINT AFFILIATION AGREEMENT 71. The NHL Constitution and ByLaws are subject to § 29(a) of the Joint Affiliation Agreement: “(a) Each league, party to this agreement, is free to adopt such Constitution and By-Laws and League Rules or Regulations as it may see fit, provided always that nothing in such Constitution, By-Laws, Regulations or Rules shall conflict with this agreement while it is in force.” 72. Under the Joint Affiliation Agreement each NHL member is permitted to protect 37 players, including players under Standard Player Contracts, not more than three goalies, and four negotiation nominees or unsigned draft choices. AHL and WHL clubs are entitled to protect thirty-one players, CHL clubs are entitled to protect thirty players. [Exhibit P-5, § 2]. 73. Protection is recognized by the four professional leagues only if the player in question is under a Standard Player Contract. [Exhibit P-5, § 3]. Paragraph 3 of the Joint Affiliation Agreement specifies the Standard Player’s Contract and registration of draft claims and negotiation nomination and states: “No other forms of agreement will be recognized or acted upon for the purpose of registering the rights to the services of any player upon the reserve list of any club.” [Exhibit P-5, §§ 3, 12e]. 74. Section 12(d) of the Joint Affiliation Agreement provides: “Every professional player must sign a Standard Player’s Contract in the form recognized by the league in which he plays, which contract shall be filed with the Central Registry Bulletin. Such contract shall not be modified by any deletion therefrom or by the addition of any provision thereto which has the effect of derogating from the printed contract in any manner whatsoever.” 75. Under Section 5(a) and (b) each league agrees to “acknowledge and respect” the negotiation nominees or negotiation claims of the member teams in each league to a maximum of 4 such nominations for NHL clubs, three for AHL and WHL clubs and two for CHL clubs. The parties also agree that “a player whose name has been validly placed on any of the club or league lists hereinbefore described shall not be placed on any list of any other club in any league.” [Exhibit P-5, §§ 5(a) and (b), 8(a)]. 76. The Joint Affiliation Agreement recognizes and refers to the Pro-Amateur Agreement, provides that the age limit for competition in the junior category of amateur competition in the CAHA and AHAUS shall be 20 years [Exhibit P-5, § 15(a)], and establishes interleague rules governing the conduct of the Universal Amateur Draft. [Exhibit P-5, §§ 15(b), 22]. Similarly, the Joint Affiliation Agreement also establishes the procedures for the Inter League draft, one of the methods by which players are transferred from the minor professional leagues to the NHL [Exhibit P-5, § 19, See Exhibit P-33, O’Neill Dep. at 29], and the “reverse draft” by which the minor leagues may draft players from NHL teams. [Exhibit P-5, § 23]. Section 20 provides that “ [a] draft claim shall be considered as an actual purchase of the player drafted and subject to the normal rules governing purchases." Conversely, Section 23 provides that, by selecting a NHL player, the selecting minor league in the reverse draft becomes the owner of the right to the services of the player claimed. [Exhibit P-5, §§ 20, 23(i) ]. CLAUSE 17 OF THE NATIONAL HOCKEY LEAGUE STANDARD PLAYER’S CONTRACT 77. Since at least 1958 the NHL Standard Player’s Contract has contained the following language: “The player hereby undertakes that he will at the request of the club enter into a contract for the following playing season upon the same terms and conditions as this contract save as to salary which shall be determined by mutual agreement . . . ” [Exhibit D-l, Affidavit of Clarence Campbell, especially Exhibits D-l through D-5 attached thereto.] 78. In 1969 certain provisions of the NHL Standard Player’s Contract came under severe criticism from Task Force on Sports for Canadians, including the reserve clause which is described as giving the Club the “right to require [a player under contract] to give his services indefinitely and wholeheartedly to the Club.” The Report concludes: “The Task Force cannot approve of this reserve clause. We recommend that steps be taken, if necessary by legislation, to require its deletion.” [Exhibit P-68 at 35.] 79. R. Alan Eagleson, Executive Director of the NHL Players’ Association, testified in 1970 in Flood v. Kuhn that: “[The reserve clause] is considered by me, and I am sure by most, to be simply a lifetime option clause and that a player once he signs the contract, since that is the standard contract of the league, signs with a team for life.” [Exhibit P-29, Eagleson Flood at p. 550.] 80. On June 28, 1972, Mr. Eagleson testified before the Senate Commerce Committee that the nature of the reserve clause had not changed in the intervening two years. He stated: “There is no way that the players in the National Hockey League can accept the position [the reserve clause] under the present circumstances, namely, lifetime option on a player’s services.” [Exhibit P-30, Eagleson Senate at p. 507 (Emphasis added).] 81. Charles W. Mulcahy, Jr., General Counsel and Vice-President of the Boston Bruins, on September 30, 1972, agreed that the reserve clause is a perpetual option. [Exhibit P-32, Mulcahy dep. at p. 2-173, p. 3-38.] In addition, William Wirtz, President of the Chicago Blackhawks, concurs in the view that the reserve clause constitutes a “continual option clause”. [Exhibit P-38, Wirtz dep. at p. 49.] 82. In his 1969-1970 Report to the NHL Board of Governors, President Campbell expressed opposition to any attempt to “water down” the reserve clause and urged the Governors to use the League’s position to maintain the provision. [P-59 at pp. 7-8.] 83. Clause 17 of the Standard-Player’s Contract, Amended Form, June, 1970 — the contract used for the 1971-72 season, made no reference to any method for resolving disputes as to salary except by mutual agreement between the parties. [Exhibit D-1, Campbell Affidavit, Exhibit D-4, Cl. 17.] 84. On August 20, 1971, pursuant to a directive of the NHL Owner-Player Council, R. Alan Eagleson and Clarence Campbell initially entered into an arbitration agreement for the resolution of salary disputes for the 1971-72 season naming Edward J. Houston as Arbitrator. [Exhibit D-1, Campbell Affidavit at ¶ 9.] 85. The August 20, 1971 arbitration agreement reflected a change in the means or the manner in which salary was to be determined, and it is clear that the parties did not intend the entire standard player’s contract to expire at the conclusion of 1972 because there was no agreement as to arbitration in the contract. [Based on Findings 79-81, 83, 84, 89.] 86. On March 29, 1972, an agreement was reached between the NHL Players’ Association and the NHL that salary disputes would be submitted to a neutral arbitrator pursuant to an arbitration agreement signed by R. Alan Eagleson on behalf of the NHLPA and Clarence Campbell on behalf of the NHL. This agreement by its terms expires at the end of three years. [Exhibits P-52 and D-1, Campbell Affidavit at ¶ 10, Exhibit C.] The only purpose of the arbitration agreement was to provide a means for resolving salary disputes for the option years of the Standard Player’s Contract. [Exhibit D-1, Campbell Affidavit at ¶ 10.] 87. This arbitration agreement was neither intended nor understood by the parties to it to alter in any way the perpetual nature of the reserve clause. Mr. Eagleson’s testimony referred to above before the Senate Commerce Committee and the testimony of Messrs. Mulcahy and Wirtz in their depositions, all were given from three to six months after the March 29, 1972 arbitration agreement was executed. As found above, the testimony of both the owners and the players indicates that, notwithstanding any time limitation in the arbitration agreement, the reserve clause of the Standard Players’ Contract continues to be understood as a perpetual option on the players’ services without limitation. [Based in part on Findings 79, 80, 81.] 88. Section 2.2 of the By-Laws of the NHL provides in pertinent part : “The provisions [of the Standard Player’s Contract] shall not be changed or derogated from except as may be authorized by resolution of the Governors.” There is no evidence of record to indicate that the arbitration agreement dated March 29, 1972, and alleged to be part of the Standard Player’s Contract, has ever been approved by the Board of Governors. [Exhibit P-4, § 2.2.] 89. The record does not indicate that any players who have signed with WHA teams signed an amended March 1972 Standard Player’s Contract. Therefore, the court finds that none of the Standard Player’s Contracts here in dispute —those between NHL teams and players who have signed with WHA teams for the 1972-73 season — contain a reference to the Ai'bitration Agreement of March 29, 1972 between NHL member clubs and professional players [Exhibit D-l, Campbell Affidavit, Exhibit C.] PARAGRAPH 17 OF THE NHL’S STANDING PLAYER’S CONTRACT AND COLLECTIVE BARGAINING 90. Since 1967, the NHL has recognized the NHL Players’ Association as the representative of all the NHL players for purposes of collective bargaining with the players’ employers, the various clubs that comprise the NHL, who in turn bargain jointly with the Association. [Exhibit D-1 (Campbell), ¶ 6, and attached Exhibit A, p. 3; Exhibit D-2 (Swados), ¶ 9, p. 23, ¶ 10.] During the 1971-72 NHL playing season, every NHL player was a dues-paying member of the Players’ Association. This latter accomplishment was undoubtedly facilitated by a “check-off” arrangement adopted in 1969 by the Players’ Association. [Exhibit D-1 (Campbell), ¶¶ 7, 15, attached Exhibit A, p. 4 and attached Exhibit F (Eagleson), pp. 480-81; Exhibit D-2 (Swados), ¶ 10, p. 25.] 91. Bargaining between the NHL Players’ Association (NHLPA) and the NHL clubs is carried on principally through the medium of an Owner-Player Council, which meets regularly. Ex. D-1 (Campbell), ¶¶ 5-10, 15, and attached ex. A, ex. F (Eagleson), p. 481; Ex. D-128 (Mulcahy), p. 26; Ex. D-129 (Wirtz), p. 65. The Owner-Player Council has incorporated into a cumulative book of “Minutes and Agreements” those agreements reached by the Council that were in effect as of January 1, 1972. Ex. D-1 (Campbell), ¶ 6, and attached ex. A. 92. During 1969, 1971 and 1972, the NHL clubs and the NHLPA entered into agreements relating to the arbitration of salary disputes under paragraph 17. The 1971 agreement is the “Agreement Establishing the ‘Terms of Reference for the Arbitration of Salary Differences between NHL Member Clubs and Professional Players for the Season 1971-72’ ” agreed to by the NHL clubs and the NHLPA on June 10, 1971, and signed by the executive director of the Players’ Association and the president of the NHL on August 20, 1971, and the 1972 agreement is the “Agreement Establishing the ‘Terms of Reference for the Arbitration of Salary Differences between NHL Member Clubs and Professional Players for the Seasons 1972-73, 1973-74 and 1974-75,’” similarly agreed to and signed on March 29, 1972 (hereafter sometimes referred to as the “1971 Arbitration Agreement” and the “1972 Arbitration Agreement” respectively). Ex. D-1 (Campbell) ¶¶ 9-10, and attached exs. B, C. The NHL clubs and the NHLPA have acknowledged that these agreements constitute, during their operative periods, part of the overall set of agreements existing between and binding upon them. [Ex. D-1 (Campbell), ¶¶[9-10; Ex. D-1 (Campbell), ¶ 6, and attached ex. A, p. 7; Ex. D-1 (Campbell), ¶ 15, and attached ex. F (Eagleson), pp. 485-86; Ex. D-2 (Swados), ¶ 10, p. 26, item 8.] 93. Paragraph 17 of the NHL Standard Player’s Contract directly involves terms and conditions of employment and is one of the subjects about which the clubs and the Players’ Association have discussed since 1967. [Findings of Fact 94-103]. 94. As early as June 1969 the Players’ Association and the NHL clubs agreed, following negotiations between them, that disputes over what salary should be paid to a player under paragraph 17 should be determined by binding, third-party arbitration. The agreement reached by the NHL clubs and the NHLPA at that time provided that each party to such a dispute was to select one arbitrator, with the two arbitrators thus chosen deciding the salary question jointly, and that in the event that these two arbitrators were unable to reach a decision, they were to select a third arbitrator who would then decide the issue. Ex. D-1 (Campbell) ¶ 8; Ex. D-2 (Swados), ¶ 10, app. A. Previously, disputes regarding salary under paragraph 17 had been determined by the president of the NHL, as reflected in the version of the Standard Player’s Contract then in effect. [Ex. D-1 (Campbell), ¶¶ 8, 12, and attached Exhibit D-3, ¶. 17]. 95. This system of arbitration continued in operation for the next two years. At the time of the NHL Board of Governors’ meeting of June 8-9, 1971, however, the Owner-Player Council considered the question further and agreed on June 10 of that year to institute a new system on a trial basis for a period of one year. Under that system, salary arbitration decisions under paragraph 17 were to be made by a single independent arbitrator to be chosen jointly by the president of the NHL and the executive director of the Players’ Association; and Edward J. Houston, Q. C., was in fact chosen by them to serve as arbitrator. [Ex. D-1 (Campbell, ¶¶ 6, 9, ex. A, p. 7, ex. B, Ex. D-121 (Campbell), pp. 154-55; Ex. P-39, item 18, p. 4.] 96. Further negotiations between the Players’ Association and the NHL clubs resulted, on March 29, 1972, in an agreement between those parties extending the 1971 Arbitration Agreement, with certain modifications, for another three years. Under this 1972 Arbitration Agreement, Mr. Houston remains as arbitrator for the next three playing seasons, and a procedure is set out for selecting a successor in case of his inability to so act during the specified three-year period. Ex. D-1 (Campbell), ¶ 10, and attached ex. C; Ex. D-2 (Swados), ¶ 10, item 8; Ex. D-129 (Wirtz), pp. 67-68; Ex. P-39, item 21, p. 5. The NHL Board of Governors, having failed to ratify the 1972 Arbitration Agreement, could assert that the 1972 Arbitration Agreement is not enforceable. 97. The NHLPA and the NHL acknowledge that the Arbitration Agreement, like all Owner-Player agreements, automatically modifies and supersedes any conflicting provisions in subsequently signed NHL player contracts and automatically becomes a part of such contracts. Ex. D-1 (Campbell), ¶¶ 10, 15, and attached ex. F (Eagleson), p. 481; Ex. D-127 (Eagleson), pp. 547-8; Ex. D-122 (Cooke), pp. 53-54, 56; Ex. D-123 (Snider), Vol. 2, pp. 78-79, 82; Ex. D-125 (Mulcahy), Vol. 4, pp. 33-35; (for a discussion of the effect on contracts then in existence, see pages 505-10, infra). The form of the NHL Standard Player’s Contract promulgated by the League in June 1972 incorporates this agreement by explicit reference in paragraph 17. [Ex. D-1 (Campbell), ¶ 11; Ex. P-1, ¶ 17.] 98. In the summer of 1969, the NHL Board of Governors approved the use of binding third-party arbitration to settle salary disputes under paragraph 17 (Ex. D-1 (Campbell), ¶ 6, and attached ex. A, pp. 7-8; Ex. D-2 (Swados), ¶ 10, and attached app. A, p. 1; Ex. P-39, item 6, p. 2); and the 1971 and 1972 Arbitration Agreements state they are based on authorization by both the Players’ Association and the NHL. [Ex. D-1 (Campbell) ¶ 9, and attached ex. B, p. 4; Ex. D-1 (Campbell), ¶ 10, and attached ex. C, p. 4; Ex. D-121 (Campbell), pp. 153-55.] At the October 25-27, 1971 semi-annual meeting of the Board of Governors, the Board unanimously approved and ratified a change in the NHL Standard Player’s Contract to incorporate the provision for binding arbitration of salary disputes under para graph 17 already