Case 1:17-cv IT Document 24 Filed 02/05/18 Page 1 of 28 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Defendants.

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1 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 1 of 28 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS PLAYERS1ST SPORTS MANAGEMENT GROUP SMG a/k/a/ James Dickey, Plaintiff, Civil Action No IT NATIONAL FOOTBALL LEAGUE, et al., v. Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS NATIONAL FOOTBALL LEAGUE AND NATIONAL FOOTBALL LEAGUE MANAGEMENT COUNCIL S MOTION TO DISMISS THE COMPLAINT Timothy W. Mungovan (BBO No ) PROSKAUER ROSE LLP One International Place Boston, MA Telephone: (617) tmungovan@proskauer.com Bradley I. Ruskin (pro hac vice motion pending) Bernard M. Plum (pro hac vice motion pending) PROSKAUER ROSE LLP Eleven Times Square New York, NY Telephone: (212) bruskin@proskauer.com bplum@proskauer.com Stephen R. Chuk (pro hac vice motion pending) PROSKAUER ROSE LLP 1001 Pennsylvania Ave., NW, Suite 600 South Washington, DC Telephone: (202) schuk@proskauer.com Attorneys for Defendants National Football League and National Football League Management Council

2 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 2 of 28 TABLE OF CONTENTS Pages PRELIMINARY STATEMENT...1 FACTUAL BACKGROUND...3 A. Dickey s Career as an Agent...3 B. The Complaint Allegations Underlying Breach of Contract and Fiduciary Duty Claims Antitrust Allegations...5 MOTION TO DISMISS STANDARD...5 ARGUMENT...6 I. COUNT ONE FAILS TO STATE A VIABLE CLAIM AGAINST THE NFL DEFENDANTS....6 A. The Complaint Does Not Allege a Plausible Breach-of-Contract Claim....7 B. The Breach-of-Fiduciary-Duty Claim Fails....9 II. THE COMPLAINT FAILS TO STATE A CLAIM UNDER THE SHERMAN AND CLAYTON ACTS...11 A. Dickey Lacks Antitrust Standing B. Dickey s Antitrust Claims Fail on the Merits Dickey Does Not Plead a Relevant Antitrust Market Dickey s Conspiracy Claim Is Implausible Plaintiff Challenges Legitimate Standard-Setting Activity C. The CBA is Exempt from Antitrust Scrutiny CONCLUSION...20 REQUEST FOR ORAL ARGUMENT i-

3 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 3 of 28 TABLE OF AUTHORITIES Page(s) CASES Adidas Am., Inc. v. NCAA, 64 F. Supp. 2d 1097 (D. Kan. 1999)...14 Am. Steel Erectors v. Local Union No. 7, 815 F.3d 43 (1st Cir. 2016)...18 Asa Accugrade, Inc. v. Am. Numismatic Ass n, 370 F. Supp. 2d 213 (D.D.C. 2005)...15 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...6 Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328 (1990)...12 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...6, 15, 16 Black v. JP Morgan Chase & Co., 2011 WL (W.D. Pa. Aug. 10, 2011)...15 Boston Exec. Helicopters, LLC v. Maguire, 196 F. Supp. 3d 134 (D. Mass. 2016)...7 Brown Shoe Co. v. United States, 370 U.S. 294 (1962)...14 Brown v. Pro Football, 518 U.S. 231 (1996)...18 Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104 (1986)...11 Cascade Health Solutions v. PeaceHealth, 515 F.3d 883 (9th Cir. 2008)...12 Clarett v. Nat l Football League, 369 F.3d 124 (2d Cir. 2004)...18, 19 Collins v. Nat l Basketball Players Ass n, 850 F. Supp (D. Col. 1991)...16, 17, 18 -i-

4 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 4 of 28 Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975)...19 Cultural Care, Inc. v. Office of the Att y Gen. of Mass., 2017 WL (D. Mass. Aug. 1, 2017)...7 Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408 (2d Cir. 2005)...13 Dickey v. City of Boston, 2016 WL (D. Mass. 2016)...1 DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53 (1st Cir. 1999)...16, 17 Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554 (8th Cir. 1998)...12 Doyle v. Hasbro, Inc., 103 F.3d 186 (1st Cir. 1996)...8 Elliott-Lewis v. Abbott Labs., Inc., 2016 WL (D. Mass. Mar. 28, 2016)...6 Howe v. Bank for Int l Settlements, 194 F. Supp. 2d 6 (D. Mass. 2002)...11 In re Travel Agent Comm n Antitrust Litig., 583 F.3d 896 (6th Cir. 2009)...16 Indus. Gen. Corp. v. Sequoia Pac. Sys. Corp., 44 F.3d 40 (1st Cir. 1995)...10 Interface Grp., Inc. v. Mass. Port Auth., 816 F.2d 9 (1st Cir. 1987)...15 Katz v. Pershing, LLC, 806 F. Supp. 2d 452 (D. Mass. 2011)...9 Kelsey K. v. NFL Enters., LLC, 254 F. Supp. 3d 1140 (N.D. Cal. 2017)...15 Kottler v. Deutsche Bank AG, 607 F. Supp. 2d 447 (S.D.N.Y. 2009)...10 Marucci Sports, LLC v. NCAA, 2013 WL (M.D. La. Mar. 25, 2013), ii-

5 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 5 of 28 Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984)...17 Penney v. Deutsche Bank Nat l Tr. Co., 2017 WL (D. Mass. Mar. 15, 2017)...7 R & J Tool, Inc. v. Manchester Tool Co., 2001 WL (D.N.H. Jan. 10, 2001)...14 RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10 (1st Cir. 2001)...11 Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512 (S.D.N.Y. 2013)...6 SAS of P.R., Inc. v. P.R. Tel. Co., 48 F.3d 39 (1st Cir. 1995)...13 SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412 (4th Cir. 2015)...17 Serpa Corp. v. McWane, Inc., 199 F.3d 6 (1st Cir. 1999)...11 Shaywitz v. Am. Bd. of Psychiatry & Neurology, 675 F. Supp. 2d 376 (S.D.N.Y. 2009)...13 Shepherd Intelligence Sys., Inc. v. Def. Techs., Inc., 702 F. Supp. 365 (D. Mass. 1988)...14 Silverman v. Major League Baseball Player Relations Comm., 880 F. Supp. 246 (S.D.N.Y. 1995)...19 Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112 (1st Cir. 2011)...12 Szach v. Vill. of Lindenhurst, 2015 WL (N.D. Ill. June 25, 2015)...16 Szulik v. State St. Bank & Tr. Co., 935 F. Supp. 2d 240 (D. Mass. 2013)...10 Tatone v. SunTrust Mortg., Inc., 857 F. Supp. 2d 821 (D. Minn. 2012)...8 United States v. Hutcheson, 312 U.S. 219 (1941) iii-

6 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 6 of 28 Williams v. Astra USA, Inc., 68 F. Supp. 2d 29 (D. Mass. 1999)...8 Williams v. Nat l Football League, 671 F. App x 424 (9th Cir. 2016)...14 Wood v. Nat l Basketball Ass n, 809 F.2d 954 (2d Cir. 1987)...19 Woods v. Brimm, 2010 WL (Mass. Super. Ct. Aug. 2, 2010)...7 Zimmerman v. Nat l Football League, 632 F. Supp. 398 (D.D.C. 1986)...19 Zyla v. Wadsworth, Div. of Thomson Corp., 360 F.3d 243 (1st Cir. 2004)...7 REGULATIONS Clayton Act...5, 11 National Labor Relations Act Section 9(a)...19 Sherman Act Section 1... passim -iv-

7 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 7 of 28 PRELIMINARY STATEMENT This case is the latest in a series of frivolous lawsuits that Plaintiff James Dickey has brought in this Court. In 2016, Judge Sorokin expressly warned Dickey against filing frivolous or vexatious suits in the future. Dickey v. City of Boston, 2016 WL , at *6 (D. Mass. 2016) (emphasis in original). The Court also ordered Dickey to include a disclaimer on any future filings stating that he had been previously warned against bringing frivolous lawsuits. By filing this Complaint, Dickey has violated both aspects of this Court s order: He has both brought a frivolous lawsuit against the National Football League ( NFL ) and the NFL Management Council ( NFLMC ) (together, the NFL Defendants ) and failed to include the required disclaimer advising the Court of his vexatious litigation history. Dickey claims to be a sports agent. He alleges that he was recently deemed ineligible by the NFL Players Association ( NFLPA ) to represent players in the NFL because he failed to satisfy one of the quality standards for agents set by the NFLPA the requirement that an agent must have negotiated at least one NFL player contract within the last three years to maintain certification (the Three Year Rule ). In his Complaint, Dickey alleges that the NFL Defendants breached an unspecified contract, violated fiduciary duties that they supposedly owed him, and committed antitrust violations on account of his decertification. The NFL Defendants have never formed a contract with Dickey, however, and they owe him no duties. Nor did the NFL Defendants promulgate or enforce the Three Year Rule or any other rule governing NFL players agents; those rules are created and enforced by the NFLPA, as the Complaint acknowledges. Indeed, the NFL Defendants only connection to agent certification is a provision in their Collective Bargaining Agreement (the CBA ) with the NFLPA, which states that the NFL will abide by the NFLPA s -1-

8 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 8 of 28 certification process. The NFL Defendants simply do not belong in this case. Any grievance Dickey might have, even if it had any foundation, would be with the NFLPA, not the NFL Defendants. Dickey s breach-of-contract claim is meritless because he has not alleged that he has a contract with the NFL Defendants. The Complaint makes a vague reference to an expressed [sic] and implied contract that supposedly arose when he paid certain unspecified fees, but it does not allege the nature of those fees; to whom he paid them; what promises were made in consideration for the fees; when or how there was mutual assent; or any other fact necessary to show the formation of a contract. Other than generalized references to The Defendants, Dickey does not allege (nor could he) that any such fees were paid to the NFL Defendants. (See infra Section I.A.) Dickey s breach-of-fiduciary-duty claim is equally groundless because he has not alleged a single fact suggesting that a fiduciary relationship existed between him and the NFL Defendants. (See infra Section I.B.) Dickey s antitrust claims fare no better. The Complaint fails to allege the most fundamental elements of an antitrust claim, including a relevant antitrust market, harm to competition, or an antitrust injury. Instead, Dickey merely complains about harm that he allegedly suffered personally as a result of his decertification as a players agent (which he estimates at $850 million). The antitrust laws exist to address harm to competition, however, not harms that are purely personal, and therefore Dickey lacks standing to bring an antitrust claim. (See infra Section II.A.) In addition, the Complaint fails to allege that competition was impeded in any relevant market, and it therefore does not state an antitrust claim. (See infra Section II.B(1),(2).) Moreover, the Complaint in essence challenges the ability of the NFLPA to promulgate quality standards, which is permissible absent independent allegations of unlawful -2-

9 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 9 of 28 conduct. (See infra Section II.B(3).) In all events, Dickey s antitrust claims cannot circumvent the statutory and non-statutory labor exemptions to the antitrust laws that protect the challenged conduct. (See infra Section I.C.) For these reasons and those explained below, Dickey s frivolous Complaint against the NFL Defendants should be dismissed in its entirety with prejudice. FACTUAL BACKGROUND A. Dickey s Career as an Agent Plaintiff James Dickey is a sports agent who once represented NFL players. (Compl. 1.) The NFLPA, as exclusive bargaining agent for the players, regulates agents conduct and sets certain competency requirements that an agent must satisfy before being certified to represent NFL players. (Id. 2, 6, 7.) One such requirement is the Three Year Rule that to maintain certification, an agent must have negotiated at least one NFL player contract within the last three years. (Id. 6, 7.) Dickey lost his NFLPA certification in 2011 because he failed to represent a player for more than three years a failure he attributes to the nature of the business, other extenuating circumstances, and family illness beyond [his] control that delayed the active pursuit of big named clients. (Id. 6, 8.) He was recertified sometime thereafter, but his failure to negotiate a contract for any NFL player between 2014 and 2016 caused his NFLPA certification again to lapse under the Three Year Rule. (Id. 11, 16, 18.) Dickey appealed his 2016 decertification pursuant to the NFLPA s internal appeals process. (Id. 16, 18.) The NFLPA s special arbitrator set a hearing date, but Dickey failed to appear. (Id. 19.) Dickey alleges that the appeals process is futile because it was merely set up as a ruse and sham to routinely deny any reasonable appeal. (Id. 15, 18.) -3-

10 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 10 of 28 B. The Complaint On November 21, 2017, Dickey sued the NFL Defendants and the NFLPA in connection with his 2016 decertification. He alleges that the Three Year Rule and the NFLPA s other certification criteria for agents create artificial barriers to competition and discriminate against minorities. (Id. at 1 and 29.) He also alleges that Defendants selectively enforce the certification criteria to benefit established agents at the expense of others. (Id ) The Complaint asserts three counts against all Defendants: (1) Breach of Contract and Fiduciary Duty (id. 30); (2) Violations of the antitrust laws (id. 31); and (3) Conspiracy to violate the antitrust laws (id. 32). 1. Allegations Underlying Breach of Contract and Fiduciary Duty Claims In Count One, Dickey alleges that, because he paid dues to the NFLPA, he is a party to an express and implied contract with all Defendants to become a part of the NFL professional business system. (Id. 30(b).) Dickey does not specify to whom he paid such dues and includes only generalized allegations referring to an agreement with The Defendants. Dickey does not allege (nor could he) that he paid any dues or fees to the NFL Defendants (as distinct from dues paid to the NFLPA). In all events, according to Dickey, that contract gives him the right to be a part of the NFL system of agent s representations and requires Defendants active compliance with the CBA to carry out the rules and regulations of the NFL and NFLPA business uniformly to all participants in a non-discriminatory manner. (Id. 30(b).) Dickey claims that Defendants breached the contract by applying the agent regulations in an inconsistent manner to benefit some agents at the expense of others. (Id. 30(d)-(k).) He claims that this breach of contract caused him $850 million in harm. (Id. 30(l).) Dickey further alleges that Defendants are his fiduciaries because he paid the unspecified fees discussed above. (Id. 30(c).) As fiduciaries, Defendants supposedly have a duty to -4-

11 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 11 of 28 (1) maintain loyal compliance with the CBA s rules and regulations ; and (2) monitor and uniformly enforce the rules of the NFL and NFLPA openly and equilaterally. (Id. 30(c).) Again, Dickey alleges that Defendants violated that duty by applying the rules governing agents in an unfair manner to benefit established agents. (Id. 30(d)-(k).) 2. Antitrust Allegations In Counts Two and Three of the Complaint, Dickey alleges that the NFL Defendants and the NFLPA violated Section 1 of the Sherman Antitrust Act, 15 U.S.C. 1, and its enforcement mechanism, the Clayton Act. (Id ) It is not apparent how the two Counts differ because they are based on the same statutory provisions and essentially the same allegations. The antitrust counts allege that Defendants entered into anticompetitive agreements that weaken[] the basis for a free and competitive economy for true agents. (Id. 32.) Specifically, the Complaint alleges that Defendants agreed to institute the Three Year Rule and other certification criteria for NFL agents to disfavor less established agents. (Id. 31(a) (c).) Like Count One, the antitrust claims allege that Defendants selectively enforce rules governing agents in a manner that benefits established agents at the expense of others. (Id. 31(h), 32(b).) Without providing any examples, Dickey claims that he has observed disparity in the application of the rules, particularly as it relates to minority agents & firms. (Id. 12, 14, 24, 26, 28 29, ) He alleges that the NFL Defendants conspired with the NFLPA by agreeing in their CBA that teams can negotiate with only certified agents. (Id. at 1, 6.) Without providing any factual basis, the antitrust claims also assert puzzling allegations that Defendants encourage loansharking and impinge players civil liberties. (Id. 32(c) (d).) MOTION TO DISMISS STANDARD To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege sufficient facts to -5-

12 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 12 of 28 state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 678. Weeding out meritless claims is particularly important in antitrust cases because [t]he costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim. Twombly, 550 U.S. at 558 (internal citation omitted). Evaluating the plausibility of a complaint is a two-step process. First, the court must separate the complaint s factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited). Elliott-Lewis v. Abbott Labs., Inc., 2016 WL , at *2 (D. Mass. Mar. 28, 2016) (Talwani, J.) (internal citations and quotation marks omitted). Second the court must determine whether the remaining facts allow it to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Even from pro se plaintiffs, bald assertions and conclusions of law are not adequate to withstand a motion to dismiss. Ruotolo v. Fannie Mae, 933 F. Supp. 2d 512, 524 (S.D.N.Y. 2013). ARGUMENT I. COUNT ONE FAILS TO STATE A VIABLE CLAIM AGAINST THE NFL DEFENDANTS. Count One of the Complaint asserts two common-law causes of action against the NFL Defendants: one for breach of contract and one for breach of fiduciary duty. (Compl. 30.) Neither cause of action is adequately pled. -6-

13 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 13 of 28 A. The Complaint Does Not Allege a Plausible Breach-of-Contract Claim. To state a viable claim for breach of contract, a plaintiff must allege (1) a valid, binding contract existed, (2) the defendant breached the terms of the contract, and (3) the plaintiffs sustained damages as a result of the breach. Penney v. Deutsche Bank Nat l Tr. Co., 2017 WL , at *4 (D. Mass. Mar. 15, 2017). Dickey s breach-of-contract claim fails at step one because he has not plausibly alleged that he is a party to a contract with the NFL Defendants. See Zyla v. Wadsworth, Div. of Thomson Corp., 360 F.3d 243, 252 (1st Cir. 2004) (affirming dismissal of breach-of-contract claim because there was no contract between defendant and plaintiff). The only contract mentioned in the Complaint is the CBA, which Dickey admits is between the NFL and NFLPA. (Compl. 6.) Dickey does not allege that he is a party to the CBA (nor could he). (See Ex. 1 (NFL-NFLPA CBA) at xv (detailing parties to CBA).) 1 Nor is Dickey a third-party beneficiary because nothing in the Complaint or the CBA suggests that the NFL and the NFLPA intended for Dickey to benefit from their performance under the CBA. See Boston Exec. Helicopters, LLC v. Maguire, 196 F. Supp. 3d 134, 142 (D. Mass. 2016) (explaining that only intended beneficiaries, not incidental beneficiaries, have standing to enforce a contract to which they are not a party ); Woods v. Brimm, 2010 WL , at *7 (Mass. Super. Ct. Aug. 2, 2010) ( The fact that the [plaintiffs] derive a benefit from a contract created between [defendants], standing alone, does not give them a right to sue based on the [contract]. ). As neither a party nor a third-party beneficiary, Dickey cannot enforce the CBA. Dickey alleges that he somehow entered into an expressed [sic] and implied contract with the NFL Defendants when he paid certain unspecified fees presumably fees that he paid 1 The court draw[s] primarily from the facts in the complaint, and may supplement those factual allegations by examining documents incorporated by reference into the complaint[.] Cultural Care, Inc. v. Office of the Att y Gen. of Mass., 2017 WL , at *1 (D. Mass. Aug. 1, 2017) (Talwani, J.). -7-

14 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 14 of 28 when he was certified as a player s agent. (Compl. 30(b).) That conclusory allegation does not plausibly allege the existence of a contract with the NFL Defendants. For one thing, Dickey does not allege he paid the fees to the NFL Defendants and he did not, because any fees would presumably have been paid to the NFLPA. Accordingly, even if paying fees were somehow sufficient to create a contract, the contract would not have been with the NFL Defendants. 2 In any event, Dickey has not plausibly alleged that the payment of fees created a contract with anyone. To allege the existence of a contract, Dickey was required to describe with substantial certainty the bargain at issue and the specific obligation or promise breached. Williams v. Astra USA, Inc., 68 F. Supp. 2d 29, 37 (D. Mass. 1999). He has not alleged any of those things: The Complaint does not explain the contours of the supposed agreement, what fees he paid or to whom, what was promised in exchange for those fees, or when the supposed agreement was reached. Just as in Doyle v. Hasbro, Inc., the Complaint (1) fails to state the nature of the alleged contract with any specificity ; (2) contains no presentation of the terms of a contract, its duration, or even when it was formed ; (3) does not explain what obligations were imposed on each of the parties by the alleged contract ; and (4) does not plead that plaintiffs were ready to perform under the contract or that the defendants breach prevented them from performing. 103 F.3d 186, 195 (1st Cir. 1996) (affirming dismissal of breach-of-contract claim). Accordingly, Dickey s conclusory allegation that he had an expressed contract with the NFL Defendants lacks any factual support and should not be credited. Dickey s claim for breach of an implied contract fails for similar reasons. (Compl. 30(b).) An implied-in-fact contract comes into being when, notwithstanding the absence of a written or verbal agreement, the conduct or relations of the parties imply the existence of a 2 Dickey cannot state a breach-of-contract claim against the NFL Defendants by lumping them together with the NFLPA. Tatone v. SunTrust Mortg., Inc., 857 F. Supp. 2d 821, 831 (D. Minn. 2012) ( A complaint which lumps all defendants together and does not sufficiently allege who did what to whom, fails to state a claim for relief.... ). -8-

15 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 15 of 28 contract. Katz v. Pershing, LLC, 806 F. Supp. 2d 452, 460 (D. Mass. 2011), aff d, 672 F.3d 64 (1st Cir. 2012). The Complaint does not contain any allegations explaining how the NFL Defendants conduct or their relationship with Dickey could give rise to an implied contract. Moreover, breach of an implied contract requires that a plaintiff must plead the elements of an express contract, including consideration, mutual assent, and damages. Id. As with the express contract, the Complaint alleges no facts suggesting that the NFL Defendants had a meeting of the minds with Dickey or that either side provided consideration to the other. Accordingly, the Complaint provides no factual basis to support an implied contract. Finally, even if there somehow were a contract between Dickey and the NFL Defendants, the Complaint does not plausibly allege that the NFL Defendants breached it. The sole breaches alleged in the Complaint concern the promulgation and allegedly discriminatory enforcement of regulations that apply to agents. (Compl. 30(a)-(l).) The Complaint does not allege that the NFL Defendants play any role in determining or enforcing those regulations, however. According to the Complaint, the regulations are created and enforced by the NFLPA, and the NFLPA is the entity that decertified Dickey. (Compl. 10, 14, 17 19; Ex. 1 (NFL-NFLPA CBA) at Article 48 (stating that NFLPA regulates agent conduct).) To the extent that Dickey conclusorily alleges that the NFL Defendants and the NFLPA are acting in concert, that does not make the NFL Defendants liable for actions taken by the NFLPA because the Complaint contains no facts showing that the entities are alter egos. (See, e.g., Compl. 17 (alleging that the decertification process was carried out by the NFLPA and therefore the NFL ).) B. The Breach-of-Fiduciary-Duty Claim Fails. Dickey s fiduciary-breach claim fails because he has not alleged that the NFL Defendants owed him any fiduciary duty or, even if they did, that the duty was breached. It is axiomatic that there can be no breach of fiduciary duty unless a fiduciary relationship -9-

16 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 16 of 28 existed in the first place. Kottler v. Deutsche Bank AG, 607 F. Supp. 2d 447, 465 (S.D.N.Y. 2009). Courts will find a fiduciary relationship only if certain indicia are present. Szulik v. State St. Bank & Tr. Co., 935 F. Supp. 2d 240, 275 (D. Mass. 2013) (dismissing fiduciary-breach claim). In the commercial context, a fiduciary relationship typically arises where one reposes faith, confidence, and trust in another s judgment and advice. Id. In other contexts, a fiduciary relationship can arise when one party exploits a great power disparity in dealing with the other. Indus. Gen. Corp. v. Sequoia Pac. Sys. Corp., 44 F.3d 40, 44 (1st Cir. 1995) (finding no fiduciary relationship). None of the hallmarks of a fiduciary relationship has been alleged here. For example, the Complaint does not allege that Dickey reposed his trust in the NFL Defendants or relied on their expertise or judgment in any manner. Nor does it allege that the NFL Defendants exploited a power disparity to take advantage of Dickey. Instead, the sole allegation supporting the existence of a fiduciary relationship is that Defendants owed a fiduciary duty to the Plaintiff by accepting his fees.... (Compl. 30(c).) In addition to the fact addressed above that there is no allegation, nor could there be, that the NFL Defendants accepted any such fees, the NFL Defendants are aware of no case in which the mere acceptance of unspecified fees was sufficient to create a fiduciary relationship. Because the Complaint is bereft of any allegation even suggesting that the NFL Defendants were fiduciaries, the fiduciary-breach claim fails. Moreover, even if the NFL Defendants did somehow owe Dickey a fiduciary duty, the only acts of breach alleged in the Complaint the promulgation and enforcement of the rules governing agents were carried out by the NFLPA, not the NFL Defendants. (See supra page 9.) Accordingly, the Complaint contains no factual allegations showing that the NFL Defendants committed any breach. -10-

17 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 17 of 28 II. THE COMPLAINT FAILS TO STATE A CLAIM UNDER THE SHERMAN AND CLAYTON ACTS. Counts Two and Three of the Complaint purport to assert claims under Section 1 of the Sherman Act and the Clayton Act. (Compl ) Section 1 of the Sherman Act prohibits a contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in some instances. 15 U.S.C. 1. The Clayton Act provides a private cause of action for violations of the Sherman Act. Serpa Corp. v. McWane, Inc., 199 F.3d 6, 9 (1st Cir. 1999). Dickey s claims under both Acts fail because he does not have standing to bring an antitrust claim and because he has not plausibly alleged an antitrust violation. A. Dickey Lacks Antitrust Standing. As a threshold issue, Counts Two and Three should be dismissed because Dickey lacks standing to pursue antitrust claims. See RSA Media, Inc. v. AK Media Grp., Inc., 260 F.3d 10, 13 (1st Cir. 2001) ( [A]ntitrust standing has significantly narrowed the number of persons entitled to bring suit. ). Whether a plaintiff has antitrust standing depends on six factors: (1) the causal connection between the alleged antitrust violation and harm to the plaintiff; (2) an improper motive; (3) the nature of the plaintiff s alleged injury and whether the injury was of a type that Congress sought to redress with the antitrust laws ( antitrust injury ); (4) the directness with which the alleged market restraint caused the asserted injury; (5) the speculative nature of the damages; and (6) the risk of duplicative recovery or complex apportionment of damages. Howe v. Bank for Int l Settlements, 194 F. Supp. 2d 6, 15 (D. Mass. 2002) (citing Sullivan v. Tagliabue, 25 F.3d 43, 46 (1st Cir. 1994)). Among those factors, antitrust injury is preeminent. Id. A plaintiff who fails to allege an antitrust injury per se lacks antitrust standing. See Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110 n.5 (1986) (explaining that antitrust injury is necessary, but not always sufficient, to establish standing ). Dickey has not alleged that he suffered any antitrust injury, and he therefore does not -11-

18 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 18 of 28 have standing to assert antitrust claims. An antitrust injury is an injury of the type the antitrust laws were intended to prevent and that flows from that which makes the defendant s acts unlawful. Atl. Richfield Co. v. USA Petrol. Co., 495 U.S. 328, 334 (1990). The requirement of an antitrust injury ensure[s] that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant s behavior. Id. If there has been no harm to competition, a plaintiff cannot recover under the antitrust laws, no matter how much of a personal injury he has suffered. Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 121 (1st Cir. 2011); Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 901 (9th Cir. 2008) ( [A]ntitrust laws protect the process of competition, and not the pursuits of any particular competitor. ). Harm to competition is usually measured by a reduction in output and an increase in prices in the relevant market. Sterling Merch., 656 F.3d at 120 (holding that an antitrust plaintiff must show that its loss comes from acts that reduce output and/or raise prices to consumers ). Here, Dickey has not substantively alleged that the NFL Defendants harmed competition or that his injury resulted from that harm to competition. For example, he does not allege that representation fees charged to NFL players have increased on account of any decreased competition among agents, or that fees are higher than they otherwise would be absent the Three Year Rule or other regulations. Nor does he allege that there is a cap or limit on the number of agents that can be certified by the NFLPA, or that the supply of agents available to NFL players has decreased such that any player is limited in his ability to obtain representation. And he certainly does not allege harm to consumers. Instead, Dickey complains solely about an injury to himself his decertification, which supposedly has personally cost him $850 million. (Compl. 30(l).) Even if that personal harm were proven, it would not constitute harm to competition sufficient to support antitrust standing. See Double D Spotting Serv., Inc. v. Supervalu, Inc.,

19 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 19 of 28 F.3d 554, 561 (8th Cir. 1998) (explaining that commercial disappointment does not constitute an injury to competition sufficient to support standing). The personal nature of Dickey s alleged injury is underscored by the fact that the aim of his lawsuit is to join the alleged cartel rather than disband it. Shaywitz v. Am. Bd. of Psychiatry & Neurology, 675 F. Supp. 2d 376, 386 (S.D.N.Y. 2009) (finding no antitrust standing). The law is clear that a plaintiff who seeks to join but not end an exclusive arrangement does not seek to remedy an injury to competition and therefore does not have standing under the antitrust laws. Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 441 (2d Cir. 2005). At the end of the day, Dickey does not seek to end any alleged anticompetitive practices. Instead, his prayer for relief seeks reinstatement to the [NFLPA s] list of certified agents. (Compl. at 10.) Since he seeks relief that would permit [him] to join but not end the alleged exclusive arrangement, he has not alleged an antitrust injury. Daniel, 428 F.3d at 440. Because Dickey has not alleged an antitrust injury, he lacks antitrust standing; Counts Two and Three should be dismissed accordingly. See SAS of P.R., Inc. v. P.R. Tel. Co., 48 F.3d 39, (1st Cir. 1995) (affirming dismissal of claims for failure to allege antitrust injury); Howe, 194 F. Supp. 2d at ( Because of my conclusion on the standing question, I need not consider... arguments that the plaintiff has failed to state a claim under the Sherman Act. ). B. Dickey s Antitrust Claims Fail on the Merits. Even if Dickey has standing to bring his antitrust claims, the claims fail on the merits for a variety of reasons. First, the Complaint does not plead a relevant antitrust market. Second, Dickey has not plausibly alleged an antitrust violation. Third, Dickey challenges legitimate standard-setting activities, which are largely immune from the antitrust laws. -13-

20 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 20 of Dickey Does Not Plead a Relevant Antitrust Market. To survive a motion to dismiss, an antitrust plaintiff must allege a relevant antitrust market. Shepherd Intelligence Sys., Inc. v. Def. Techs., Inc., 702 F. Supp. 365, 369 (D. Mass. 1988). Dickey s Complaint does not define a relevant antitrust market; that alone mandates dismissal of his antitrust claims. See R & J Tool, Inc. v. Manchester Tool Co., 2001 WL , at *2 (D.N.H. Jan. 10, 2001) (dismissing antitrust claim for failure to allege relevant market); see also Williams v. Nat l Football League, 671 F. App x 424 (9th Cir. 2016) (affirming dismissal of Section 1 claim for failure to allege a relevant market). At most, the Complaint contains vague references to seven different markets, but none constitutes a relevant antitrust market: (1) the business markets of the league (Compl. 30(d); (2) the market, the industry, and the economy, generally (Id. 12, 28 29, 30(h), 31b),(e),(g),(i), 32, 32(d)); (3) The NFL s market economy (Id. 31(a)); (4) competitions [sic] of agents to represent NFL athletes (Id. at 1); (5) the business and financial industry of the NFL (Id. 24); (6) the professional football industry and economy (Id. 29); and (7) the activities of the game as a professional sport (Id. 31(b)). Unlike the vague markets mentioned in the Complaint, an antitrust market is defined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962). Where the plaintiff fails to define its proposed relevant market with reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all interchangeable substitute products,... the relevant market is legally insufficient and a motion to dismiss may be granted. R&J Tool, Inc., 2001 WL at *4 (quoting Queen City Pizza, Inc. v. Domino s Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997)). Because the Complaint does not allege any facts concerning interchangeability or cross-elasticity -14-

21 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 21 of 28 of demand, nor otherwise make allegations sufficient to specify a relevant antitrust market, none of its alleged markets has been shown to constitute an antitrust market; the antitrust claims must be dismissed accordingly. See id.; see also Adidas Am., Inc. v. NCAA, 64 F. Supp. 2d 1097, 1104 (D. Kan. 1999) (dismissing claims for failure to plead relevant market). 2. Dickey s Conspiracy Claim Is Implausible. Dickey s antitrust claims also fail because his theory of liability is implausible and unsupported by factual allegations. See Twombly, 550 U.S. at 570. Dickey s antitrust theory is that the NFL Defendants conspired with the NFLPA to create artificial barriers to hamper and inhibit minority agents from competing fairly in the professional football industry. (Compl. 29.) That conclusory allegation has no factual support in the Complaint. Dickey does not explain, for example, why the NFL Defendants would enter a conspiracy or what financial incentive they had to do so. Black v. JP Morgan Chase & Co., 2011 WL , at *30 (W.D. Pa. Aug. 10, 2011) (dismissing antitrust claims where plaintiff failed to allege plausible motive for defendants to join conspiracy). Nor does Dickey allege any evidentiary facts about the secret meetings (Compl. 14) at which the supposed conspiracy was hatched, much less any allegations that involve the NFL Defendants in any respect. Kelsey K. v. NFL Enters., LLC, 254 F. Supp. 3d 1140, (N.D. Cal. 2017) (dismissing claim for antitrust conspiracy where complaint was bereft of evidentiary facts regarding some actual conspiratorial meeting and fail[ed] to allege that any specific meeting set the stage for conspiracy ). Moreover, Dickey does not allege that he competes with the NFL Defendants (nor could he), which undercuts the plausibility of his allegation that the NFL Defendants would have conspired to harm him in the marketplace. Interface Grp., Inc. v. Mass. Port Auth., 816 F.2d 9, 12 (1st Cir. 1987) (antitrust claim against defendant who is not an actual or potential competitor was not plausible); Asa -15-

22 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 22 of 28 Accugrade, Inc. v. Am. Numismatic Ass n, 370 F. Supp. 2d 213, 216 n.4 (D.D.C. 2005) (dismissing claim for antitrust conspiracy where defendants presumably [] have nothing to gain from an illegal conspiracy... as they are not even competitors of the plaintiff ). At the core, Dickey s antitrust claims concern the promulgation and enforcement by the NFLPA of the Three Year Rule and the other rules governing agents. He cannot rope the NFL Defendants into those claims by baldly alleging that they conspired with the NFLPA. See In re Travel Agent Comm n Antitrust Litig., 583 F.3d 896, 905 (6th Cir. 2009) (references to defendants collectively are precisely the type of naked conspiratorial allegations rejected by the Supreme Court in Twombly ); Szach v. Vill. of Lindenhurst, 2015 WL , at *11 (N.D. Ill. June 25, 2015) ( Under federal pleading standards, Plaintiff cannot simply refer to these Defendants collectively or assert in general terms that they engaged in a conspiracy. ). 3. Plaintiff Challenges Legitimate Standard-Setting Activity. Dickey s antitrust claims fail for a third reason, too: They target quality standards set by a professional organization (the NFLPA), which are generally immune from antitrust scrutiny. As the First Circuit recognized, it is commonplace, and often very useful for professional organizations like the NFLPA to recommend quality standards... or adopt them as part of a certification process. DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 57 (1st Cir. 1999); see also Collins v. Nat l Basketball Players Ass n, 850 F. Supp. 1468, 1471 (D. Col. 1991) (regulations governing NBA agents insure that players would receive agent services that meet the minimum standard of quality ). Accordingly, a plaintiff does not state an antitrust claim merely by alleging that the standards are disputable or have some market effects. See DM Research, 170 F.3d at 57. Instead, a plaintiff must show something else or more extreme is present. Id. This typically requires a showing that the standard was deliberately distorted by -16-

23 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 23 of 28 competitors of the injured party, sometimes through lies, bribes, or other improper forms of influence in addition to a further showing of market foreclosure. Id. (emphasis added). The Complaint does not allege the requisite something else to support a claim that the NFLPA s quality standards improperly interfered with competition. Instead, Dickey simply complains that he was personally harmed by those quality standards or, in conclusory terms, that they are discriminatory. It is not the role of a court to second-guess the usefulness of quality standards promulgated by a professional organization. See SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 437 (4th Cir. 2015). If quality standards were subject to judicial review, there would be few standards set since most involve disputable judgment calls. DM Research, 170 F.3d at 57. Accordingly, a claim of injury resulting from standard-setting, without more, does not support an antitrust claim. See Marucci Sports, LLC v. NCAA, 2013 WL , at *3 (M.D. La. Mar. 25, 2013) (being among those excluded [by a standard] is, alone, not enough to maintain a claim for a violation of 1. ), aff d in relevant part, 751 F.3d 368 (5th Cir. 2014). After all, the Sherman Act protects competition not competitors. Id. C. The CBA is Exempt from Antitrust Scrutiny. Finally, Dickey s antitrust claims fail because the challenged conduct is protected by the statutory and non-statutory labor exemptions to the antitrust laws. 3 In particular, the non-statutory labor exemption immunizes the NFL Defendants 3 The statutory labor exemption protects labor organizations like the NFLPA from antitrust liability for actions taken in furtherance of its role as the players exclusive bargaining agent. United States v. Hutcheson, 312 U.S. 219, 232 (1941). On similar facts, the Collins court concluded that the promulgation of agent regulations and the inclusion of a provision in a CBA barring noncertified agents from representing players fulfill the union s role as the players exclusive bargaining representative. 850 F. Supp. at By the same logic, the actions taken by the NFLPA with respect to agent regulations are protected by the statutory exemption. By extension, any conspiracy between the NFL Defendants and the NFLPA to implement the agent rules is likewise immune from antitrust scrutiny because such a conspiracy would have a legal objective. See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768 (1984) (participation in a conspiracy requires that the object of the conspiracy is unlawful). -17-

24 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 24 of 28 challenged conduct. See Brown v. Pro Football, 518 U.S. 231, 237 (1996); see also Clarett v. Nat l Football League, 369 F.3d 124, 130 (2d Cir. 2004). The non-statutory exemption shields concerted activity among unions and employers (1) anchored in the collective-bargaining process (2) concern[ing] only the parties to the collective bargaining relationship and (3) relat[ing] to wages, hours, conditions of employment, or other mandatory subjects of collective bargaining. Am. Steel Erectors v. Local Union No. 7, 815 F.3d 43, 63 (1st Cir. 2016). Here, Dickey alleges that the NFL Defendants conspired with the NFLPA by agreeing in the CBA that teams can negotiate only with agents certified by the NFLPA. (Compl. 6 7.) However, any agreement by the NFL Defendants to limit negotiations to certified agents falls squarely within the non-statutory exemption. First, the agent-certification restriction is anchored in the collective bargaining process as it is embodied in the negotiated CBA. (Ex. 1 (NFL-NFLPA CBA) at Article 48; Compl. 6.) Because the challenged CBA provision is part of a properly bargained collective bargaining agreement, the non-statutory exemption bars antitrust scrutiny. See Collins, 850 F. Supp. at 1479 (applying nonstatutory labor exemption to CBA provision covering agent certification because it was the result of arms-length collective bargaining ); see also Ex. 1 (NFL-NFLPA CBA) at xv (stating that CBA is the product of bona fide, arm s length collective bargaining ). Second, the primary effect of the restriction is on the parties to the collective bargaining relationship, as it concerns individual players ability to select representation in individual contract negotiations with the NFL Clubs. Dickey does not allege otherwise. To the extent that the restriction affects agents like Dickey, who are not signatories to the CBA, the second factor is nevertheless satisfied because agents authority is derived from the NFLPA; agents can perform union-related functions within the union s exclusive jurisdiction only because the union certifies -18-

25 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 25 of 28 them to do so. See Zimmerman v. Nat l Football League, 632 F. Supp. 398, 405 (D.D.C. 1986) (holding that a restriction on future professional players, who were not signatories to the CBA, was covered by the non-statutory labor exemption). 4 Third, because the CBA provision governs individual contract negotiations between players and Clubs, it affects the terms and conditions of employment. Ensuring that agents have met certification standards protects the NFLPA s interest in assuring that its role as the players exclusive bargaining representative is properly delegated and carried out, and therefore impacts wages negotiated on behalf of players. See Clarett, 369 F.3d at 140 (impact on wages and working conditions of NFL players is reason to classify eligibility rules as mandatory bargaining subjects); Wood v. Nat l Basketball Ass n, 809 F.2d 954, (2d Cir. 1987) (agreement between basketball players and team owners is intimately related to wages, hours, and other terms and conditions of employment ); Silverman v. Major League Baseball Player Relations Comm., 880 F. Supp. 246, 259 (S.D.N.Y. 1995) (Sotomayor, J.), aff d, 67 F.3d 1054 (2d Cir. 1995) (player contract issues are so intertwined and inseparable from the mandatory terms and conditions for the contract currently being negotiated as to take on the characteristics of the mandatory subjects themselves ). For all of these reasons, the NFL Defendants are immunized from antitrust liability by the non-statutory (and statutory) exemptions. 4 Restrictions completely removed from the collective bargaining relationship are outside of scope of the nonstatutory labor exemption. Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 625 (1975). Here, the player-agents are not completely removed from the bargaining relationship. As the exclusive representative of the players under Section 9(a) of the National Labor Relations Act, the NFLPA represents its player-members in negotiations with the league over wages, hours, and other conditions of employment. Although the NFLPA exercised its statutory authority to negotiate a level of basic compensation guaranteed to every player, it chose to delegate its exclusive representation authority to certain agents to perform the function of negotiating individual contract negotiations. At all times, therefore, player-agents perform union-related functions, and must abide by the minimum salaries, benefits, and job protections set forth in the CBA. Indeed, Dickey appears to recognize that the NFL and NFLPA engage in exempt activity when he alleges that the NFL and NFLPA operate using the protections of U.S. antitrust laws. (Compl. 2, 4.) -19-

26 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 26 of 28 CONCLUSION The NFL Defendants respectfully request that the Court dismiss the Complaint in its entirety with prejudice. REQUEST FOR ORAL ARGUMENT Pursuant to Local Rule 7.1(d), the NFL Defendants respectfully request that oral argument be heard in conjunction with this motion. February 5, 2018 Respectfully submitted, By: /s/ Timothy W. Mungovan Timothy W. Mungovan (BBO No ) PROSKAUER ROSE LLP One International Place Boston, MA Telephone: (617) Bradley I. Ruskin (pro hac vice motion pending) Bernard M. Plum (pro hac vice motion pending) PROSKAUER ROSE LLP Eleven Times Square New York, NY Telephone: (212) Stephen R. Chuk (pro hac vice motion pending) PROSKAUER ROSE LLP 1001 Pennsylvania Ave., NW, Suite 600 South Washington, DC Telephone: (202) Attorneys for Defendants National Football League and National Football League Management Council -20-

27 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 27 of 28 CERTIFICATION PURSUANT TO RULE 7.1 Pursuant to Local Rule 7.1(a)(2), I hereby certify that counsel for the NFL Defendants conferred and have attempted in good faith with counsel for the NFLPA to resolve or narrow the issues of this motion. Counsel for the NFLPA have indicated their consent to this motion. On multiple occasions, counsel for the NFL Defendants have attempted to confer with Plaintiff by phone and via on the subject of this motion, but have been unable to meet and confer prior to this filing. /s/ Timothy W. Mungovan Timothy W. Mungovan -21-

28 Case 1:17-cv IT Document 24 Filed 02/05/18 Page 28 of 28 CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served upon the attorneys of record by action of the Court s ECF system on February 5, /s/ Timothy W. Mungovan Timothy W. Mungovan -22-