The Boxing Octopus laid bare; Supreme Court affirms IBC versus U.S suit Part III

INTERNATIONAL BOXING CLUB OF NEW YORK, INC. V. UNITED STATES 358 U.S. 242

NO. 18.  ARGUED NOVEMBER 13, 1958 - DECIDED JANUARY 12, 1959 - 150 F. SUPP.
397, AFFIRMED.

(continued from The BAWLI Papers No. 24)


EXCLUSIVE CONTRACTS WITH CONTESTANTS.

APPELLANTS OBJECT TO THE PROHIBITION AGAINST EXCLUSIVE CONTRACTS APPLYING TO
ALL PROFESSIONAL BOXING CONTESTS.  THEY QUESTION THE GOVERNMENT'S ENLARGING
ITS BASE FROM CHAMPIONSHIP BOUTS TO ALL
PROFESSIONAL BOXING.  BUT HUMAN NATURE BEING WHAT IT IS THERE IS SOUND REASON
TO SAY THAT EXCLUSIVE CONTRACTS WITH BOXERS IN NONTITLE CONTESTS WOULD SURELY
AFFECT THOSE SAME BOXERS WHEN AND IF THEY ARRIVE AT THE TITLE.  SUCH
ARRANGEMENTS WOULD GIVE APPELLANTS, SO EXPERIENCED IN THE BOXING FIELD, A
DECIDED ADVANTAGE OVER THE INDEPENDENT PROMOTER.  SUCH A PROHIBITION IS FULLY
JUSTIFIED AT LEAST UNTIL THE EFFECTS OF THE
CONSPIRACY ARE FULLY DISSIPATED.  FOR THE SAME REASON WE SEE NO FAULT IN THE
FIVE-YEAR PROHIBITION AGAINST EXCLUSIVE RIGHTS TO A RETURN BOUT.

THE TRIAL COURT RECOGNIZED THAT THESE RESTRICTIONS WENT BEYOND THE "RELEVANT
MARKET" WHICH HAS BEEN CONSIDERED FOR PURPOSES OF DETERMINING THE SHERMAN ACT
VIOLATIONS, BUT FELT THAT "THE RELIEF HERE MUST BE BROADER THAN THE
CHAMPIONSHIP FIELD BECAUSE THE EVIL TO BE REMEDIED IS
BROADER."  THIS COURT HAS RECOGNIZED THAT SOMETIMES "RELIEF, TO BE EFFECTIVE,
MUST GO BEYOND THE NARROW LIMITS OF THE PROVEN VIOLATION."  UNITED STATES V.
UNITED STATES GYPSUM CO., SUPRA, 340 U.S., AT P. 90;
TIMKEN CO. V. UNITED STATES, 341 U.S. 593, 600 (1951).  WHEN THIS SORT OF
RELIEF IS GRANTED, WE MUST OF COURSE BE ESPECIALLY WARY LEST THE TRIAL COURT
OVERSTEP THE CORRESPONDINGLY NARROWER LIMITS OF ITS
DISCRETION, BUT, FOR THE REASONS SET OUT ABOVE, WE FEEL THAT NO SUCH MISUSE OF
THE TRIAL COURT'S POWER IS PRESENT HERE.

WE HAVE CONSIDERED THE OTHER OBJECTIONS OF APPELLANTS TO THE DECREE AND FIND
THEM UNSUBSTANTIAL AS PRESENTLY POSED.  IN THE EVENT EXPERIENCE PROVES THAT
SOME OF THE PROVISIONS ARE SO SEVERE AS TO
REQUIRE MODIFICATION OR AMENDMENT, THE PARTIES MAY APPLY TO THE DISTRICT COURT
AS PROVIDED IN PARAGRAPH 25 OF THE DECREE.  THE JUDGMENT SHOULD BE AFFIRMED.
IT IS SO ORDERED.

FN1  15 U.S.C. SEC. 1 ET SEQ.

FN2  EZZARD CHARLES, JOE WALCOTT, LEE SAVOLD, AND GUS LESNEVICH.

FN3  THE IMPORTANCE OF MADISON SQUARE GARDEN IN THE PRESENT CONTEXT IS SHOWN
BY THE FACT THAT OF ALL THE CHAMPIONSHIP CONTESTS STAGED DURING THE 12 YEARS
IMMEDIATELY PRECEDING 1949, 45% WERE HELD IN NEW YORK CITY, OF WHICH 75% WERE
IN MADISON SQUARE GARDEN.  THE BALANCE OF
THE NEW YORK CHAMPIONSHIP BOUTS, WITH ONE EXCEPTION, WERE HELD IN YANKEE
STADIUM, THE POLO GROUNDS, OR ST. NICHOLAS ARENA.

FN4  BETWEEN 1937 AND 1948, 50% OF ALL CHAMPIONSHIP CONTESTS WERE STAGED IN
EITHER MADISON SQUARE GARDEN, YANKEE STADIUM, THE POLO GROUNDS, ST. NICHOLAS
ARENA, CHICAGO STADIUM, DETROIT OLYMPIA ARENA, OR THE ST. LOUIS ARENA.

FN5  AT THE TIME THE I.B.C.'S WERE FORMED, JOE LOUIS OWNED 20% OF THE STOCK OF
EACH AND THE OTHER 80% WAS SPLIT EVENLY BETWEEN NORRIS AND WIRTZ ON ONE HAND
AND MADISON SQUARE GARDEN ON THE OTHER.  AT SOME POINT THEREAFTER, LOUIS
CEASED TO BE A STOCKHOLDER AND HIS SHARE WAS SPLIT EVENLY BETWEEN NORRIS-WIRTZ
AND MADISON SQUARE GARDEN.  AT THE TIME OF THE FINAL DECREE, APPARENTLY AS THE
RESULT OF AN EFFORT TO MAKE A SHOWING OF SEPARATENESS OF CONTROL, THE NORRIS-
WIRTZ INTERESTS OWNED ALL OF THE STOCK IN I.B.C., ILLINOIS, AND MADISON SQUARE
GARDEN OWNED ALL OF THE STOCK IN I.B.C., NEW YORK.   THE TRIAL COURT FOUND
THAT THE TWO INTERESTS NEVERTHELESS STILL SHARED EQUALLY IN THE COMBINED
PROFITS OF BOTH I.B.C.'S.

FN6  ACCORDING TO THE DISTRICT COURT, THE "NIELSEN AVERAGE AUDIENCE RATING IS
A PERCENTAGE WHICH PURPORTS TO SHOW THE NUMBER OF RESIDENTIAL TELEVISION SETS
THAT WERE TUNED IN TO THE PROGRAM EXPRESSED AS A PERCENTAGE OF THE TOTAL
RESIDENTIAL TELEVISION SETS, WHETHER TURNED OFF OR ON, WHICH WERE IN AREAS
INTO WHICH THE PROGRAM WAS TELECAST."

FN7  APPROXIMATELY 25% OF THE REVENUE PRODUCED BY THE APPELLANTS' CHAMPIONSHIP
FIGHTS DURING THE PERIOD COVERED BY THE COMPLAINT WAS DERIVED THROUGH THE SALE
OF RADIO, TELEVISION AND MOTION PICTURE RIGHTS.

FN8  BY ANALOGY, IT BEARS THOSE SUFFICIENTLY "PECULIAR
CHARACTERISTICS" FOUND IN AUTOMOBILE FABRICS AND FINISHES SUCH AS TO BRING
THEM WITHIN THE CLAYTON ACT'S "LINE OF COMMERCE."  UNITED STATES V. DU PONT &
CO., 353 U.S. 586, 593-595 (1957).

FN9  NORRIS AND WIRTZ WERE GIVEN FIVE YEARS TO SELL THEIR STOCK IN MADISON
SQUARE GARDEN, WHICH STOCK IS LISTED ON THE NEW YORK STOCK EXCHANGE.  DURING
THIS TIME, THE STOCK IS TO BE HELD BY TWO TRUSTEES NAMED BY THE COURT.  IF THE
STOCK IS NOT SOLD WITHIN FIVE YEARS, THE TRUSTEES ARE ORDERED TO SELL IT
WITHIN THE NEXT TWO YEARS.

FN10  THIS PROVISION OF THE DECREE, APPLYING ONLY TO CHAMPIONSHIP CONTESTS,
ORDERED APPELLANTS TO LEASE THEIR RESPECTIVE BUILDINGS UPON SEASONABLE WRITTEN
REQUEST BY A QUALIFIED PROMOTER, IF THE PROPOSED RENT IS REASONABLE, IF THE
APPLICANT FURNISHES ADEQUATE SECURITY, AND IF AT THE TIME OF THE APPLICATION
THE BUILDING IS NEITHER ALREADY UNDER LEASE TO ANOTHER FOR THE SPECIFIED DAY
NOR IN CONFLICT AT THAT TIME WITH "ANY WELL-ESTABLISHED EVENT" WHICH HAS BEEN
REGULARLY CONDUCTED THEREIN.  IF THE PARTIES CANNOT AGREE ON WHAT CONSTITUTES
ADEQUATE SECURITY OR A REASONABLE RENTAL, EITHER PARTY MAY APPLY TO THE COURT
FOR A DETERMINATION THEREOF.

MR. JUSTICE STEWART TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS
CASE.

MR. JUSTICE FRANKFURTER, DISSENTING IN PART.

WHILE I HAVE HERETOFORE EXPRESSED VIEWS IN FAVOR OF THE ALMOST CONTROLLING
DEFERENCE TO BE PAID TO A DISTRICT COURT'S CONSIDERED FORMULATION OF THE
PROVISIONS APPROPRIATE TO A DECREE DESIGNED TO
REMEDY ADJUDICATED VIOLATIONS OF THE ANTITRUST LAWS, THOSE VIEWS HAVE NOT
PREVAILED, SEE THE OPINIONS IN UNITED STATES V. PARAMOUNT PICTURES, 334 U.S.
131, AND THIS COURT HAS FELT FREE TO MODIFY AND ELIMINATE PROVISIONS OF AN
ANTITRUST DECREE, PARTICULARLY WHEN A SINGLE JUDGE HAS IMPOSED AN
UNCONVENTIONAL AND DRASTIC REMEDY.  THE MAIN ISSUE DEALT WITH IN MR. JUSTICE
HARLAN'S DISSENT, WHILE A NARROW ONE, IS, IN MY VIEW, IMPORTANT.  WHILE
DIVESTITURE HAS BEEN DECREED BY THE DISTRICT JUDGE, THE MANDATORY DISPOSITION
OF THE STOCK HAS BEEN DELAYED FOR FIVE
YEARS, AND THE STOCK PLACED IN TRUSTEESHIP.  DURING THIS FIVE-YEAR PERIOD A
SERIES OF DETAILED CONTROLS HAVE BEEN IMPOSED, UNDER THE SUPERVISION OF THE
DISTRICT COURT, IN ORDER TO PREVENT APPELLANTS NORRIS AND WIRTZ FROM
EXERCISING THE POWER THEIR STOCK OWNERSHIP HAS GIVEN THEM OVER THE OPERATIONS
OF MADISON SQUARE GARDEN.  THE OWNERSHIP ITSELF HAS BEEN STERILIZED.  I THINK
IT NOT AN UNREASONABLE FORECAST THAT, EVEN WERE WE TO POSTPONE FOR FIVE YEARS
THE DECISION WHETHER TO ORDER THE DIVESTITURE OR CONTINUE THE TRUSTEESHIP,
APPELLANTS NORRIS AND WIRTZ WOULD NOT FIND IT PROFITABLE TO CONTINUE THEIR
STERILIZED OWNERSHIP OF THE GARDEN STOCK.  HOWEVER, THERE IS NO COMPELLING
REASON TO ORDER THEM TO DO WHAT SOUND BUSINESS JUDGMENT MAY COMPEL.  ONE HAS
THE RIGHT TO ASSUME THAT, IN VIEW OF THIS COURT'S UNANIMOUS AFFIRMANCE OF THE
FINDINGS BELOW THAT APPELLANTS WERE IN VIOLATION OF THE SHERMAN LAW, THEY WILL
SCRUPULOUSLY OBEY THE DECREE AND NOT EVEN BY THE SUBTLEST INDIRECTION SEEK TO
AVOID OUR DECISION.  THEREFORE I THINK IT
IS NEEDLESS NOW TO DETERMINE THAT DIVESTITURE MUST TAKE PLACE FIVE YEARS
HENCE, RATHER THAN WAIT UPON THE EVENT IN ORDER TO DETERMINE WHETHER
DIVESTITURE SHOULD THEN BE ORDERED.

ACCORDINGLY, I JOIN MR. JUSTICE HARLAN'S OPINION.

MR. JUSTICE HARLAN, WHOM MR. JUSTICE FRANKFURTER AND MR. JUSTICE WHITTAKER
JOIN, DISSENTING IN PART.

I AM UNABLE TO SUBSCRIBE TO THE COURT'S APPROVAL OF THOSE PARTS OF THE DECREE
BELOW WHICH ORDERED (1) THE DIVESTITURE OF THE STOCKHOLDINGS OF NORRIS AND
WIRTZ IN MADISON SQUARE GARDEN CORPORATION AND (2) THE DISSOLUTION OF THE NEW
YORK AND ILLINOIS INTERNATIONAL BOXING CLUBS.
ON THE OTHER ASPECTS OF THE CASE I AGREE WITH THE RESULTS THE COURT HAS
REACHED.

       DIVESTITURE.

AS A STARTING POINT I ACCEPT THE CONCLUSION OF THE DISTRICT COURT THAT
COMPETITION IN THE PROMOTION AND EXHIBITION OF PROFESSIONAL CHAMPIONSHIP
BOXING COULD NOT BE EFFECTIVELY RESTORED SO LONG AS NORRIS AND WIRTZ REMAINED
IN CONTROL OF MADISON SQUARE GARDEN'S ACTIVITIES IN THIS FIELD.  BECAUSE OF
THE PRE-EMINENCE OF THE GARDEN AS A SITE FOR BOXING CONTESTS, THE DISTRICT
COURT FOUND THAT ITS CONTROL BY NORRIS
AND WIRTZ CONSTITUTED THE FULCRUM OF THE ANTITRUST VIOLATIONS WHICH WERE
ADJUDGED.  THAT FINDING IS SUPPORTED BY THE EVIDENCE, AND IN TURN JUSTIFIED
THE COURT'S CONCLUSION THAT THE ELIMINATION OF THEIR INFLUENCE IN THE GARDEN
WAS PREREQUISITE TO RESTORING COMPETITION.

IT BY NO MEANS FOLLOWS, HOWEVER, THAT THE ORDER DIVESTING NORRIS AND WIRTZ OF
THEIR GARDEN STOCKHOLDINGS WAS AN APPROPRIATE METHOD OF ACCOMPLISHING THAT
OBJECTIVE IN THE CIRCUMSTANCES OF THIS CASE.  UNLESS PAST PRONOUNCEMENTS OF
THIS COURT CAUTIONING AGAINST THE INDISCRIMINATE USE OF DIVESTITURE AS A
REMEDY IN ANTITRUST CASES, SEE TIMKEN CO. V.
UNITED STATES, 341 U.S. 593, ARE TO BE TAKEN LESS SERIOUSLY THAN THEY SHOULD
BE, IT SEEMS TO ME THAT THE COURT HAS TOO LIGHTLY GIVEN APPROVAL TO THE USE OF
THAT DRASTIC MEASURE HERE.

FIRST.  IT IS NOT AT ALL CLEAR TO ME JUST WHY THE DISTRICT COURT, WHICH IN THE
EARLY STAGES OF THE HEARINGS ON RELIEF EXPRESSED ITSELF STRONGLY AGAINST
DIVESTITURE, ULTIMATELY REACHED THE CONCLUSION THAT SUCH A COURSE WAS
NECESSARY.  INDEED THE RECORD CAN BE READ AS INDICATING THE COURT'S BELIEF
THAT THE FIVE-YEAR TRUSTEESHIP OF THE STOCK, THOUGH DESIGNED TO ALLEVIATE SOME
OF THE HARDSHIPS OF A FORCED SALE, WOULD AT THE SAME TIME EFFECTIVELY REMOVE
NORRIS AND WIRTZ FROM CONTROL OVER THE GARDEN'S AFFAIRS AND THEREFORE IN
CONJUNCTION WITH THE OTHER PROVISIONS OF THE DECREE RESULT IN RESTORING
COMPETITIVE CONDITIONS, WHETHER OR NOT THE CORRELATIVE REQUIREMENT OF SALE WAS
CARRIED OUT WITHIN THE FIVE-YEAR PERIOD.  (FN1)  THE DECREE ITSELF SUPPORTS
THIS READING.  FOR DESPITE THE EVIDENT REALIZATION THAT THE STOCK MIGHT NOT BE
SOLD WITHIN FIVE YEARS, THE PROVISIONS OF THE DECREE ESPECIALLY AIMED AT
OPENING UP COMPETITION FOR THE USE OF THE GARDEN
ARE ALL GEARED TO THIS PERIOD.  IF IN FACT THE DISTRICT COURT THOUGHT THIS
FIVE-YEAR INSULATION OF NORRIS AND WIRTZ FROM MANAGERIAL AND POLICYMAKING
ACTIVITIES AT THE GARDEN WOULD COMBINE WITH THE OTHER
RESTRICTIONS TO RESTORE COMPETITION, JUSTIFICATION FOR DIVESTITURE MUST THEN
BE FOUND IN A PURPOSE TO PREVENT A RELAPSE INTO NONCOMPETITIVE CONDITIONS
AFTER THE FIVE YEARS HAVE ELAPSED, SOMETHING WHICH THE DISTRICT COURT QUITE
PROPERLY CONSIDERED TO BE A FUNCTION OF THE
DECREE.  ON THIS PREMISE I AM AT A LOSS TO SEE WHY CONTINUANCE OF THE
TRUSTEESHIP, AND, IF NECESSARY, THE CONCOMITANT RESTRICTIONS ON THE GARDEN'S
ACTIVITIES, SHOULD NOT HAVE BEEN CONSIDERED ADEQUATE TO SERVE THAT END.

SECOND.  IF I AM MISTAKEN IN THUS DIVINING THE THINKING OF THE DISTRICT COURT,
I STILL CONSIDER THAT IN THE CIRCUMSTANCES OF THIS CASE DIVESTITURE WAS AT
LEAST ORDERED PREMATURELY.  DETERMINATION WHETHER THAT DRASTIC REMEDY WAS
REQUIRED SHOULD HAVE BEEN POSTPONED UNTIL THE EXPIRATION OF THE TRUSTEESHIP
PERIOD SO THAT THE NECESSITY FOR ITS
APPLICATION COULD THEN BE JUDGED IN LIGHT OF THE EFFECTIVENESS OF THE OTHER
SANCTIONS OF THE DECREE.  I RECOGNIZE THAT VARIOUS CONTINGENCIES CAN BE
CONJURED UP TO SUPPORT THE VIEW THAT DIVESTITURE, RATHER THAN TRUSTEESHIP,
HOLDS THE MORE SOLID PROMISE OF ASSURING THE PRESERVATION OF COMPETITION.
NEVERTHELESS I THINK THAT REJECTION OF A CONTINUANCE OF THE TRUSTEESHIP IN
FAVOR OF DIVESTITURE SHOULD, IN THE PECULIAR
SETTING OF THIS CASE, BE BASED ON EXPERIENCE RATHER THAN SPECULATIVE
APPREHENSION.

THREE FACTORS SEEM TO ME ESPECIALLY COMPELLING TOWARD SUCH A COURSE.
IN THE FIRST PLACE, THIS CANNOT PROPERLY BE CONSIDERED A CASE OF REPREHENSIBLE
IMMORAL CONDUCT OR WILLFUL LAWBREAKING.  (FN2)  NOT UNTIL JANUARY 31, 1955,
WHEN THIS COURT HANDED DOWN ITS OPINION IN UNITED
STATES V. INTERNATIONAL BOXING CLUB, 348 U.S. 236, DID IT BECOME KNOWN THAT
PROFESSIONAL BOXING WAS EVEN SUBJECT TO THE FEDERAL ANTITRUST LAWS.  IN VIEW
OF THIS COURT'S EARLIER DECISIONS IN THE BASEBALL CASES, FEDERAL BASEBALL CLUB
V. NATIONAL LEAGUE, 259 U.S. 200, AND TOOLSON V. NEW YORK YANKEES, INC., 346
U.S. 356, I THINK IT REASONABLE TO SAY THAT IN 1949 WHEN THIS ALLEGED
CONSPIRACY BEGAN MOST WELL-INFORMED LAWYERS BELIEVED THAT PROFESSIONAL BOXING,
LIKE PROFESSIONAL BASEBALL, WAS BEYOND ANTITRUST STRICTURE.  HENCE THE
APPELLANTS HAD EVERY REASON TO BELIEVE THEIR ACTIONS WERE INNOCENT WHEN TAKEN.
PUTTING THE MATTER SOMEWHAT DIFFERENTLY, WE SHOULD BE SLOW IN LENDING APPROVAL
TO THE USE
OF SUCH A DRASTIC REMEDY AS THIS IN A CASE WHERE THE APPELLANTS HAVE NEVER HAD
THE OPPORTUNITY TO DEMONSTRATE THEIR WILLINGNESS TO COMPLY WITH THE LAW ONCE
THEY HAVE LEARNED THAT IT APPLIES TO THEIR
ACTIVITIES.  IN MY OPINION, THE THRUST OF THIS FACTOR IS NOT BLUNTED BY
ARGUING, AS THE COURT DOES, THAT APPELLANTS SHOULD VOLUNTARILY HAVE DONE
SOMETHING TO UNSCRAMBLE THEIR RELATIONSHIPS DURING THE TWO AND A HALF YEARS
THAT ELAPSED BETWEEN THE COURT'S DECISION IN THE ORIGINAL INTERNATIONAL BOXING
CASE AND THE ENTRY OF THE PRESENT DECREE.  THAT
SORT OF SQUEEZE PLAY SHOULD NOT BE EXPECTED OF THOSE ALREADY INVOLVED
IN A LAWSUIT.

FURTHER, DIVESTITURE HERE IS BROUGHT TO BEAR UPON A LARGE INVESTMENT MUCH OF
WHICH WAS ACQUIRED LONG BEFORE THE CONDUCT CHARGED IN THIS CASE BEGAN, AND THE
BALANCE OF WHICH WAS OBTAINED PRIOR TO THE ANNOUNCEMENT OF THE INTERNATIONAL
BOXING DECISION.  THE "UNLAWFUL FRUITS" DOCTRINE ACCORDINGLY OFFERS NO
JUSTIFICATION FOR THIS DIVESTITURE.  ALTHOUGH RECOGNIZING THIS TO BE TRUE, THE
COURT STATES THAT THE GARDEN STOCK WAS
NONETHELESS UTILIZED AS MEANS OF ACCOMPLISHING THE ANTITRUST
VIOLATIONS.  BUT THIS IS JUST ANOTHER WAY OF SAYING THAT DIVESTITURE IS A
NECESSARY ELEMENT OF EFFECTIVE RELIEF; IT AFFORDS NO INDEPENDENT JUSTIFICATION
FOR THE EMPLOYMENT OF THAT REMEDY.

LASTLY, THE DIVESTITURE ORDER REACHES FAR BEYOND THE SUBJECT MATTER OF THE
ACTION.  IT PERMANENTLY REMOVES NORRIS AND WIRTZ FROM ALL INTEREST IN THE
GARDEN, OVER 90% OF WHOSE ACTIVITIES ARE ENTIRELY UNRELATED TO PROFESSIONAL
BOXING.

THIRD.  IT IS TRUE, OF COURSE, THAT THE TRIAL COURT'S CONSIDERED JUDGMENT ON
WHAT IS NECESSARY TO DISSIPATE THE EFFECTS AND PREVENT RECURRENCE OF AN
ADJUDGED ANTITRUST VIOLATION IS ENTITLED TO MUCH
DEFERENCE FROM THIS COURT.  BUT BY THE SAME TOKEN THIS COURT, BEFORE IT IS
ASKED TO PUT ITS STAMP OF APPROVAL ON SUCH A DRASTIC REMEDY AS DIVESTITURE, IS
ENTITLED TO HAVE A CLEAR AND UNAMBIGUOUS EXPRESSION OF THE DISTRICT COURT'S
REASONING IN CHOOSING SUCH A COURSE.  ESPECIALLY IS THIS SO WHERE, AS HERE,
THIS COURT IS THE SOLE REVIEWING AUTHORITY AND IN CONSEQUENCE HAS NOT HAD THE
BENEFIT OF AN INTERMEDIATE REVIEW OF THE ISSUES BY A COURT OF APPEALS.  IN MY
OPINION THIS RECORD LEAVES MUCH TO BE DESIRED IN THIS REGARD.  THE MOST I CAN
MAKE OF IT, TAKING
THE CASE FOR DIVESTITURE MOST FAVORABLY TO THE GOVERNMENT, IS THAT THE
DISTRICT COURT WOULD HAVE BEEN JUSTIFIED IN RESERVING THAT ISSUE FOR
CONSIDERATION AT THE TIME THE FIVE-YEAR TRUSTEESHIP OF THE NORRIS AND WIRTZ
STOCK EXPIRED.  CERTAINLY NO ADEQUATE CASE FOR A PRESENT ORDER OF
DIVESTITURE HAS BEEN MADE OUT.  IN THIS VIEW OF THE MATTER IT BECOMES
UNNECESSARY TO DISCUSS AT THIS TIME THE VARIOUS "OPTIONS" ALTERNATIVE TO
DIVESTITURE WHICH WERE REJECTED BY THE DISTRICT COURT.

                            DISSOLUTION.

I CAN FIND NO ADEQUATE BASIS FOR THE ORDER DISSOLVING THE TWO INTERNATIONAL
BOXING CLUBS.  MY DIFFICULTY WITH THIS ASPECT OF THE RELIEF IS SUFFICIENTLY
SHOWN BY THE FACT THAT, AS I READ THE RECORD, IT
WOULD BE PERMISSIBLE FOR MADISON SQUARE GARDEN AND THE NORRIS AND WIRTZ
INTERESTS IN CHICAGO TO CREATE NEW CORPORATIONS CARRYING EXACTLY THE
SAME NAME AS THE TWO PRESENT ORGANIZATIONS.  THE ONLY JUSTIFICATION
OFFERED BY THE GOVERNMENT FOR THIS ASPECT OF THE DECREE IS THAT THE TWO
CLUBS WERE INSTRUMENTALITIES OF THE ANTITRUST CONSPIRACY AND THAT THEIR
DISSOLUTION WAS BUT AN EXPEDIENT FOR INSURING THAT ALL OF THEIR ILLEGAL
AGREEMENTS HAD BEEN PUT TO AN END.  BUT SINCE ALL SUCH AGREEMENTS, BOTH
WRITTEN AND ORAL, ARE ALREADY CANCELED BY OTHER PROVISIONS OF THE DECREE, AND
SINCE THERE IS NO SUGGESTION THAT THE SWEEPING RELIEF GRANTED BY THE DISTRICT
COURT HAS ANY LOOPHOLES WHICH WOULD PERMIT THESE ORGANIZATIONS TO FUNCTION
IMPROPERLY, THIS JUSTIFICATION IS HARDLY CONVINCING.  IN THESE CIRCUMSTANCES
DISSOLUTION APPEARS TO ME TO BE NOT ONLY PUNITIVE BUT FUTILE, SOMETHING NOT
PROMOTIVE OF SOUND ANTITRUST LAW ENFORCEMENT.

I WOULD REMAND THE CASE TO THE DISTRICT COURT WITH INSTRUCTIONS TO MODIFY ITS
DECREE BY STRIKING THE PROVISIONS FOR COMPULSORY SALE OF THE NORRIS AND WIRTZ
STOCK IN THE MADISON SQUARE GARDEN CORPORATION, RESERVING THE ISSUE OF
DIVESTITURE FOR FURTHER PROCEEDINGS AT THE END OF THE FIVE-YEAR TRUSTEESHIP
PERIOD, AND ELIMINATING THE REQUIREMENT OF
DISSOLUTION OF THE TWO INTERNATIONAL BOXING CLUBS.

FN1  APART FROM ITS DIVESTITURE AND DISSOLUTION PROVISIONS, THE DECREE IMPOSES
WIDE-RANGING AND PERVASIVE RESTRICTIONS ON APPELLANTS' ACTIVITIES IN BOXING
PROMOTION AND EXHIBITION.  IT RENDERS VOID ALL EXCLUSIVE CONTRACTS WHICH THEY
MAY PRESENTLY HAVE WITH BOXERS.  IT PROHIBITS THE MAKING OF NEW EXCLUSIVE
CONTRACTS, WITH THE EXCEPTION
THAT, AFTER FIVE YEARS, EXCLUSIVE PROVISION MAY BE MADE FOR RETURN BOUTS.
SIMILARLY, EXCLUSIVE LEASES WITH STADIA NOT OWNED BY APPELLANTS ARE
PROSCRIBED.  SO, TOO, ARE SUCH ARRANGEMENTS WITH TELEVISION AND RADIO
BROADCASTERS.  FURTHER, APPELLANTS ARE RESTRAINED, FOR A PERIOD
OF FIVE YEARS, FROM PROMOTING MORE THAN FOUR CHAMPIONSHIP BOXING PROGRAMS
ANNUALLY, TWO BY MADISON SQUARE GARDEN AND TWO, CUMULATIVELY, BY NORRIS AND
WIRTZ.  DURING THAT FIVE-YEAR PERIOD, ALSO, THE COMPULSORY LEASING PROVISIONS
DISCUSSED IN THE COURT'S OPINION ARE TO
BE IN EFFECT.  FINALLY, THE DECREE REMOVES NORRIS AND WIRTZ AS OFFICERS AND
DIRECTORS OF MADISON SQUARE GARDEN, AND ENJOINS THEM FROM HOLDING SUCH
POSITIONS IN THE FUTURE.

FN2  THE DISTRICT COURT PUT THE MATTER IN THIS WAY:  "I DON'T CHARGE THEM
(NORRIS AND WIRTZ) WITH MALICIOUS INTENTIONAL AND MORAL WRONGDOING, NOR DO I
PROCEED TO FORMULATE THE DECREE ON SUCH A BASIS.
THEY ARE GUILTY, IF ANYTHING, OF A MORAL, PROHIBITIVE WRONG WHICH WAS IN DOUBT
AS TO WHETHER IT WAS EVEN PROHIBITIVE AT THE TIME SOME OF THESE ACTS WERE
DONE, AND SERIOUS DOUBT, BUT MOST PEOPLE HELD IT WAS NOT."
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