| David O. Fisher, Randy Stutz
Private Enforcement, Sports, Section 1 of the Sherman Act
On November 19, 2025, the American Antitrust Institute (AAI) filed an amicus brief supporting plaintiffs before the Ninth Circuit in World Association of Icehockey Players Unions North America Division (“WAIPU”) v. National Hockey League (“NHL”), No. 25-3929.
The case arises out of the NHL’s agreement with the Canadian Hockey League (“CHL”) and its member leagues to divide up the North American market for junior hockey players into three exclusive geographic territories, each spanning portions of both the United States and Canada. The plaintiffs, junior major hockey players and the labor organizations that represent them, alleged that the agreement violates Section 1 of the Sherman Act. After dismissing some defendants for lack of personal jurisdiction, the U.S. District Court for the Western District of Washington dismissed the claims of players recruited in Canada to play for Canadian teams as barred by the Foreign Trade Antitrust Improvements Act (“FTAIA”). It then dismissed all of the remaining claims—those of players who were either recruited in the United States or played for teams in the United States—on the basis of international comity.
In its amicus brief supporting plaintiffs and reversal, AAI argues that transnational market allocation agreements in markets that include U.S. territory necessarily fall under the FTAIA’s domestic-effects exception, which applies the Sherman Act to foreign conduct that has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce if that effect “gives rise to” a foreign injury. Under Ninth Circuit precedent, a foreign plaintiff must show a proximate—and not merely but-for—causal connection between its injury and the domestic effects of defendants’ conduct. Here, the direct effect of defendants’ market allocation agreement was to prevent U.S. teams from recruiting North American junior hockey players outside of their allocated territory, and the Canadian players’ injuries were proximately caused by that effect, which left them unable to market their services to many U.S. teams.
AAI also argued that the principles of international comity support exercising jurisdiction when failing to do so would leave U.S. antitrust victims without legal recourse for violations of U.S. antitrust law. Pointing to a Canadian court opinion dismissing parallel claims on the merits, the plaintiffs argued that Canadian law does not provide them any relief. If that is true, AAI argued, then declining to exercise jurisdiction over the U.S. players’ claims on the basis of comity would leave those players without any recourse for a violation of U.S. antitrust law. Considering the U.S.’s strong interest in deterring anticompetitive conduct which harms U.S. markets, the principles of comity support exercising jurisdiction in such a case.
The brief was written by AAI Senior Counsel David O. Fisher, with assistance from AAI President Randy Stutz.
Read the full brief: AAI Amicus Brief in WAIPU v. NHL
