Relevent Sports, LLC, a U.S.-based soccer promoter, alleges that the Fédération Internationale de Football Association (popularly known as FIFA) and the United States Soccer Federation, Inc. adopted and enforced a geographic market division policy in 2018 that unlawfully prohibits soccer leagues and teams from playing official season games outside of their home territory. Relevent claims that the 2018 policy represents an agreement among direct competitors to restrict competition in violation of federal antitrust laws. The United States District Court for the Southern District of New York (Caproni, J.) concluded that Relevent failed to allege that the challenged anticompetitive conduct stemmed from a prior agreement to enter into the 2018 policy. But a plaintiff challenging an association policy or rule that governs the conduct of the members’ separate businesses need not allege an antecedent “agreement to agree.” Because Relevent challenges the allegedly monopolistic 2018 Policy directly, it has adequately alleged concerted action. The Sherman Antitrust Act and the Clayton Antitrust Act require no further allegations of an agreement to engage in concerted action for Relevent’s complaint to survive a motion to dismiss. VACATED and REMANDED. RAYMOND LOHIER, JR., C.J. Soccer, also known as “the beautiful game,” unites the world in shared competition. This case, by contrast, concerns an allegedly anticompetitive policy that restricts access to the game by prohibiting soccer leagues and teams from playing official season games outside of their home territory. Relevent Sports, LLC (“Relevent”), a U.S.-based soccer promoter, alleges that the Fédération Internationale de Football Association (“FIFA”) and the United States Soccer Federation, Inc. (“USSF”) adopted and enforced this geographic market division policy (“2018 Policy”) in violation of Section 1 of the Sherman Antitrust Act and Sections 4 and 16 of the Clayton Antitrust Act. The United States District Court for the Southern District of New York (Caproni, J.) determined that Section 1 required Relevent to present either direct or circumstantial evidence of an “antecedent ‘agreement [among horizontal competitors] to agree to vote a particular way’ to adopt such a policy.” Special App’x 33 (alteration in original). After concluding that Relevent failed to allege that the 2018 Policy itself stemmed from or constituted direct evidence of such a prior agreement among the Defendants, the District Court dismissed Relevent’s complaint for failure to state a claim. We disagree with the District Court’s conclusion. Relevent plausibly alleges that the 2018 Policy reflects a contractual commitment of head-to-head competitors to restrict competition. Because Relevent’s complaint challenges the 2018 Policy itself “as violative of the antitrust laws,” the “promulgation of [the policy]…constitute[s] direct evidence of §1 concerted action.” N. Am. Soccer League v. U.S. Soccer Fed’n, 883 F.3d 32, 41 (2d Cir. 2018) (“NASL”); see Associated Press v. United States, 326 U.S. 1, 12 (1945). No further allegation of an agreement is necessary. In holding that no inference of concerted activity can be drawn from the “promulgation” of the 2018 Policy, the District Court’s decision conflicts directly with this core principle. The judgment of the District Court is thus VACATED and the matter is REMANDED for further proceedings consistent with this opinion. BACKGROUND1 We start with an overview of the governance structure of international soccer. FIFA, a private membership-based association comprised of over 200 national associations, is the well-known international governing body for soccer. Each national association is itself membership-based and comprised of professional soccer leagues and teams. FIFA’s legislative body, the FIFA Congress, includes representatives from every national association in the world and adopts and amends the FIFA Statutes, which contain many of FIFA’s rules and policies. A smaller entity within FIFA, the FIFA Council, “has authority to interpret the FIFA Statutes and to adopt rules and policies not specifically addressed in the FIFA Statutes.” App’x 502. National associations represent their members in FIFA decision-making and agree to “comply fully with the Statutes, regulations, directives and decisions of FIFA bodies at any time.” App’x 500-01. In turn, the national associations require their members to agree to comply with these same rules and policies. USSF is the FIFA-authorized national association for the United States. “[USSF] and its members are, to the extent permitted by governing law, obliged to respect the statutes, regulations, directives and decisions of FIFA…and to ensure that these are likewise respected by their members.” App’x 502 n.12 (alterations in original) (quoting BYLAWS OF THE UNITED STATES SOCCER FEDERATION, INC., Bylaw 103 §1). Leagues and players that fail to comply with FIFA rules and policies are subject to discipline and sanction, including exclusion from the FIFA World Cup. Relevent organizes, promotes, and hosts soccer matches in the United States and globally. Because it is a violation of the FIFA Statutes for a soccer club affiliated with a FIFA-sanctioned league to play in the United States without USSF’s approval, Relevent had to obtain approval from USSF to organize a match in the United States between teams from other countries. And third-party promoters such as Relevent must also obtain approval from each team’s national association, each team’s regional confederation, and, of course, FIFA. In the past, Relevent has tried to host official season games for international professional soccer leagues in the United States — including for La Liga (Spain), Liga MX (Mexico) and LigaPro Serie A (Ecuador) — without success. Its efforts to host have been foiled by the FIFA Council each time.2 In 2018, for example, Relevent and La Liga, the Spanish professional soccer league, agreed to host an official season game in Miami. Given La Liga’s worldwide popularity, the game would undoubtedly have drawn a large audience. In response, the FIFA Council “issued a policy prohibiting FIFA’s National Association members, including USSF, from sanctioning any official season games held outside of the participants’ home territory.” App’x 523. A FIFA press release memorializing this policy stated: Following a request for guidance…the FIFA Council discussed La Liga’s proposal to host an official 2018/19 regular season league match outside Spain (in Miami). Consistent with the opinion expressed by the Football Stakeholders Committee, the Council emphasized the sporting principle that official league matches must be played within the territory of the respective member association. App’x 601 (2018 Policy). “[B]ecause this was a formal policy announced by a FIFA decision-making body, any leagues and teams who did not comply with it would run the risk of FIFA penalties and all such leagues and teams were required to agree to adhere to this policy.” App’x 523. As a result, the game in Miami never took place. Relevent filed this action against USSF in 2019. The District Court dismissed Relevent’s first complaint without prejudice for failing to allege an unlawful vertical agreement between USSF and FIFA or an unlawful horizontal agreement between USSF and other national associations, leagues, and teams sufficient to support an antitrust violation. The court added that even if Relevent “had adequately alleged an agreement between USSF and FIFA,” its “claim for injunctive relief would be dismissed for failure to join” FIFA as “an indispensable party.” Special App’x 15 n.12. Relevent then filed an amended complaint adding FIFA as a defendant. In the amended complaint, Relevent claimed that the Defendants violated Section 1 of the Sherman Act and Sections 4 and 16 of the Clayton Act, and were liable under New York law for tortious interference with business relationships.3 Relevent principally alleged that “FIFA and USSF, in combination with numerous FIFA-affiliated men’s top-tier professional soccer leagues and teams, including Major League Soccer (“MLS”)4 and its teams, have entered into an agreement to divide geographic markets, including the United States market, which stifles competition in the U.S.” App’x 493. The District Court granted the Defendants’ motion to dismiss Relevent’s amended complaint for failure to state a claim. It again held that Relevent failed to allege that USSF and other national associations in FIFA entered into an unlawful vertical agreement with FIFA to apply the 2018 Policy against their member leagues and teams. The District Court likewise again held that Relevent failed to allege a horizontal conspiracy between USSF and FIFA’s other top-tier men’s professional soccer leagues and their teams outside the United States. The 2018 Policy, the District Court explained, did not constitute direct evidence of a horizontal conspiracy because there was neither an antecedent “agreement to agree” among the Defendants to adopt the policy, Special App’x 32 n.12, nor any circumstantial evidence of an agreement among the members of the FIFA Council to adopt the 2018 Policy. Finally, the District Court determined that universal adherence to the 2018 Policy was insufficient to support a claim that the Defendants engaged in a horizontal conspiracy. This appeal followed. DISCUSSION I. Personal Jurisdiction To start, the Defendants argue that FIFA is not subject to personal jurisdiction in New York. They contend that this action must therefore be dismissed because, in their view, FIFA is a necessary and indispensable party to the action. We conclude that FIFA is subject to personal jurisdiction in this case. “A plaintiff must have a state-law statutory basis for jurisdiction and demonstrate that the exercise of personal jurisdiction comports with due process.” Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 82 (2d Cir. 2018). “New York’s long-arm statute provides in relevant part that ‘a court may exercise personal jurisdiction over any non-domiciliary…who in person or through an agent…transacts any business within the state or contracts anywhere to supply goods or services in the state,’” as to any cause of action arising from such a transaction or contract. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 168 (2d Cir. 2013) (alterations in original) (quoting N.Y. C.P.L.R 302(a)(1)). On the record before us, FIFA is subject to personal jurisdiction in New York under New York’s long-arm statute. According to Relevent’s amended complaint, FIFA “authorizes USSF…to act on its behalf to sanction professional soccer leagues in the U.S. and this District.” App’x 513. USSF, which is incorporated as a New York not-for-profit, is FIFA’s agent and transacts substantial business on behalf of FIFA in New York. For example, FIFA authorized USSF’s “refusal to sanction the official season games sought to be promoted by Relevent from its headquarters in [New York].” App’x 513-14; see also App’x 506-07 (“As FIFA’s National Association in the U.S., USSF is vested with the exclusive authority to sanction, on behalf of FIFA, all men’s professional soccer leagues and games played in this country.”). These allegations establish, at the pleading stage, that USSF “acted in New York for the benefit of, with the knowledge and consent of, and under some control by” FIFA. Charles Schwab, 883 F.3d at 85. No party disputes that USSF’s actions subject it to personal jurisdiction in New York on Relevent’s claims. That USSF undertook those actions as FIFA’s agent is thus sufficient to subject FIFA to personal jurisdiction in New York as well. See id. at 85-86 (“[A]n agency relationship between a parent corporation and a subsidiary that sells securities on the parent’s behalf could establish personal jurisdiction over the parent in a state in which the parent ‘indirectly’ sells the securities.”). FIFA also has the minimum contacts with New York necessary to satisfy constitutional due process principles. Although the long-arm statute and the Due Process Clause are not technically coextensive, the New York requirements (benefit, knowledge, some control) are consonant with the due process principle that a defendant must have purposefully availed itself of the privilege of doing business in the forum. And where we have found personal jurisdiction based on an agent’s contacts, we have never suggested that due process requires something more than New York law. Id. at 85 (cleaned up). Here, the same alleged contacts that subject FIFA to New York’s long-arm statute — including vesting USSF with the exclusive authority to sanction all men’s professional soccer leagues and games played in the United States — satisfy the Constitution’s due process requirement of minimum contacts with New York such that the suit “does not offend traditional notions of fair play and substantial justice.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). II. Antitrust Liability A. Legal Standard Section 1 of the Sherman Act prohibits “[e]very contract, combination…or conspiracy[] in restraint of trade or commerce.” 15 U.S.C. §1. The first question is “whether the challenged conduct stems from independent decision or from an agreement, tacit or express.” United States v. Apple, Inc., 791 F.3d 290, 314-15 (2d Cir. 2015) (cleaned up). Distinguishing between concerted action and independent individual behavior is important because “concerted activity inherently is fraught with anticompetitive risk insofar as it deprives the marketplace of independent centers of decisionmaking that competition assumes and demands.” Am. Needle, Inc. v. NFL, 560 U.S. 183, 190 (2010) (cleaned up). If the challenged conduct reflects concerted action, then we consider whether that action unreasonably restrains trade. Id. at 186.5 At the pleading stage, a plaintiff need only allege “enough factual matter (taken as true) to suggest that an agreement was made.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). In other words, a plaintiff must allege facts that “reasonably tend[] to prove that the defendant and others had a conscious commitment to a common scheme designed to achieve an unlawful objective.” Apple, 791 F.3d at 315 (cleaned up). Those facts can constitute either “direct evidence that the defendants entered into an agreement” or “circumstantial facts supporting the inference that a conspiracy existed.” Id. (quotation marks omitted). Competitors do not avoid antitrust liability by hiding behind or acting through third-party intermediaries. See Amici Br. of Antitrust, Sports Law, and Economics Professors at 3-4. Business, professional, trade, and sports organizations and associations, for instance, are all subject to federal antitrust laws if their members demonstrate “a conscious commitment to a common scheme designed to achieve an unlawful objective.” Apple, 791 F.3d at 315 (quotation marks omitted); see also Am. Needle, 560 U.S. at 190. When an association member “surrender[s] himself completely to the control of the association” in a “contractual restraint of interstate trade, designed in the interest of preventing competition,” then a rule that imposes “duties and restrictions in the conduct of [the members'] separate businesses” demonstrates an agreement for purposes of Section 1 of the Sherman Act. Associated Press, 326 U.S. at 8, 19 (quotation marks omitted). It follows from this precedent that the adoption of a binding association rule designed to prevent competition is direct evidence of concerted action. No further proof is necessary. See, e.g., Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 99 (1984) (“[T]he policies of the NCAA with respect to television rights” give rise to “a horizontal restraint — an agreement among competitors on the way in which they will compete with one another.”); Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141, 2154 (2021) (“[T]he NCAA [does not] dispute that its member schools…remain subject to NCAA-issued-and-enforced limits on what compensation they can offer.…[Accordingly,] this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.”); Nat’l Soc’y of Pro. Eng’rs v. United States, 435 U.S. 679, 683 (1978) (finding “[e]vidence of” an unlawful “agreement” in an engineering society’s “Code of Ethics”); Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 500 (1988) (“Agreement on a product standard is, after all, implicitly an agreement not to manufacture, distribute, or purchase certain types of products.”). Contrary to the District Court’s conclusion, there is no need for Relevent to allege a prior “agreement to agree” or conspiracy to adopt the policy; the adoption of the policy, combined with the member leagues’ prior agreement, by joining FIFA, to adhere to its policies, constitutes an agreement on the part of all — whether they voted in favor of the policy or not — to adhere to the announced restriction on competition. Of course, not every decision by an association violates federal antitrust laws. As we have said, although a “trade association by its nature involves collective action by competitors, a trade association is not by its nature a walking conspiracy.” NASL, 883 F.3d at 40 (cleaned up). Take sports associations, for example. “Without some agreement among rivals — on things like how many players may be on the field or the time allotted for play — the very competitions that consumers value would not be possible.” Alston, 141 S. Ct. at 2156. For this reason, “we focus on those improprieties reducing competition among the members or with their competitors,” not the “day-to-day operations of the organization” including “buying, selling, hiring, renting, or investing decisions.” AD/SAT, Div. of Skylight, Inc. v. Associated Press, 181 F.3d 216, 234 (2d Cir. 1999) (quoting 7 Phillip E. Areeda et al., Antitrust Law 1477, at 347 (1999)). We recently applied these principles in NASL, where the NASL (a second-tier soccer league in the United States)6 brought an antitrust challenge to USSF’s application of its Professional League Standards, which establish requirements for sanctioning professional soccer leagues in the United States. See NASL, 883 F.3d at 35-36. We recognized that “[i]f NASL were challenging the [Professional League] Standards themselves — in totality — as violative of the antitrust laws, then the USSF Board’s promulgation of them would constitute direct evidence of §1 concerted action in that undertaking.” Id. at 41. But the NASL, we explained, had opted to allege an “overarching conspiracy to restrain competition in markets for top-and second-tier men’s professional soccer leagues in North America,” so that “the promulgation of the Standards” constituted only “circumstantial evidence of that conspiracy,” not direct evidence. Id. So how the plaintiff frames a challenge affects how we analyze the adequacy of its pleadings. If the plaintiff alleges that a policy or rule is in service of a plan to restrain competition, then it must allege enough additional facts to show that agreement to such a plan exists. If, on the other hand, the plaintiff adequately alleges that the policy or rule is the agreement itself, then it need not allege any further agreement. In dismissing Relevent’s complaint, the District Court misapplied the lesson of NASL. B. Application Relevent attacks the 2018 Policy directly as anticompetitive. It alleges that “this anticompetitive agreement was expressly formulated in 2018,” App’x 494, and more specifically that “[o]n October 26, 2018, the FIFA Council adopted a policy embodying the anticompetitive market division agreement at issue in this case,” App’x 502, and “issued a policy prohibiting FIFA’s National Association members, including USSF, from sanctioning any official season games held outside of the participants’ home territory,” App’x 523. “The FIFA geographic market division policy was, and is,” Relevent alleges, “a horizontal division of geographic markets agreement.” App’x 523; see App’x 503 (alleging that the USSF president “participated in the FIFA Council’s consideration and adoption of the geographic market division agreement in October 2018″). These allegations provide “enough factual matter (taken as true) to suggest that an agreement was made,” Twombly, 550 U.S. at 556, and the District Court erred in concluding that the 2018 Policy was not itself direct evidence of an agreement under Section 1. The District Court held that “[i]n order for an organizational decision or policy to constitute concerted action and, therefore, to serve as direct evidence of an unlawful agreement, Plaintiff must plausibly allege an antecedent ‘agreement [among horizontal competitors] to agree to vote a particular way’ to adopt such a policy.” Special App’x 33 (alteration in original); see also id. at 34 n.15 (“Plaintiff also fails to…include allegations that those unidentified [remaining members of the FIFA Council] agreed with USSF (or with anyone else) to vote in favor of the Policy.”). Applying this mistaken premise, the District Court concluded that Relevent “fails entirely to allege any facts suggesting that there was an ‘agreement to agree.’” Special App’x 34. A plaintiff challenging an association rule that governs the conduct of members’ separate businesses need not allege an antecedent agreement to agree. The promulgation of the rule, in conjunction with the members’ “surrender[]…to the control of the association,” sufficiently demonstrates concerted action. Associated Press, 326 U.S. at 19; see also Anderson v. Shipowners’ Ass’n of Pac. Coast, 272 U.S. 359, 363 (1926) (“The absence of an allegation that such was the specific intent is not important, since that is the necessary and direct consequence of the combination and the acts of the associations under it….”). Here, Relevent alleges that the national associations, leagues, and teams have “surrendered [their] freedom of action…and agreed to abide by the will of the association[].” Anderson, 272 U.S. at 364-65. That is enough. See Board of Regents, 468 U.S. at 99 (“By participating in an association which prevents member institutions from competing against each other…the NCAA member institutions have created a horizontal restraint….”); Amicus Br. of the United States at 11-12 (“Because the member has already agreed to abide by all association rules, there would be no need for the member to agree to any particular rule to be bound by it.”). This conclusion comports with our decisions in NASL and AD/SAT. In NASL, plaintiffs alleged an “overarching conspiracy” instead of challenging the Standards themselves.” 883 F.3d at 41. And in AD/SAT, plaintiffs challenged an inferred policy as opposed to any specific written or promulgated policy. See 181 F.3d at 233. Here, by contrast, Relevent challenges a specific policy — the “policy embodying the anticompetitive market division agreement” adopted by “the FIFA Council” on “October 26, 2018.” App’x 502. In this circumstance, the “promulgation of [the policy] constitute[s] direct evidence of §1 concerted action.” NASL, 883 F.3d at 41.7 FIFA and USSF defend the District Court’s decision against Relevent’s attacks by urging that the 2018 Policy is not direct evidence of concerted action. First, they contend that Relevent forfeited or waived its direct evidence theory by raising it for the first time on appeal. Not so. The amended complaint alleges that “[t]he FIFA geographic market division policy was, and is, a horizontal division of geographic markets agreement.” App’x 523. Relevent also advanced this argument in response to the Defendants’ motion to dismiss. See Relevent Sports, LLC’s Mem. of Law in Opp’n to Mots. to Dismiss 34 n.9, Dist. Ct. ECF No. 77 (“Relevent…alleges, among numerous other specific allegations, that the market division policy itself is direct evidence of such an unlawful conspiracy.”); Tr. of Oral Arg. on Mots. to Dismiss 35, Dist. Ct. ECF No. 94 (“[The] main factual allegation” “is that FIFA has a rule that says you can’t play out of your own geographic territory.”). And the District Court also specifically considered and rejected this argument. See Special App’x 32 (“Plaintiff argues that the FIFA Policy itself constitutes direct evidence of…[a] common scheme. The Court disagrees.” (alteration in original) (quotation marks omitted)); Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004) (holding that where “the district court was made fully aware of [a] position…and the trial judge discussed and explicitly rejected [the] position in its written opinion on the motion,” “the issue is not waived on appeal”). Next, the Defendants argue that leagues and teams are not members of FIFA, and that the national associations that are members of FIFA are not competitors. But this argument runs headlong into Relevent’s allegations, which we must accept as true, that the FIFA Council’s decisions bind the various national associations, which in turn bind their respective leagues and teams; that those leagues and teams would otherwise compete with each other for fans and sponsors but dodge competition because FIFA and the national associations enforce the 2018 Policy;8 and that, as a result, “[t]he FIFA geographic market division policy has created a barrier to entry which has prevented leagues and teams that do not want to adhere to this policy from competing in the relevant market,” App’x 516. Taken together, these allegations clearly depict a rule governing how an association’s separate members’ separate businesses compete. As Relevent puts it, “[e]ffectively, the National Associations and their respective leagues agreed to stay home, so that each league will be free from competition within its own territory.” Relevent Br. 2. Finally, the Defendants argue that the 2018 Policy was merely a non-binding “sporting principle.” Once again, we consider the allegations in the amended complaint. According to Relevent, “the FIFA Council — one of FIFA’s decision-making bodies with authority to issue policies that each National Association and their member leagues and teams have agreed to follow — adopted a geographic market division policy.” App’x 523; see also App’x 502 (“On October 26, 2018, the FIFA Council adopted a policy embodying the anticompetitive market division agreement at issue in this case….”). And “because this was a formal policy announced by a FIFA decision-making body, any leagues and teams who did not comply with it would run the risk of FIFA penalties and all such leagues and teams were required to agree to adhere to this policy.” App’x 523. These allegations, corroborated by the fact that the 2018 Policy does not on its face relate to “things like how many players may be on the field or the time allotted for play,” Alston, 141 S. Ct. at 2156, but rather relates to a geographic limitation on where various leagues can compete for ticket sales, plausibly allege that in adopting the 2018 Policy, FIFA and its member associations adopted an anticompetitive geographic market division. * * * The District Court correctly observed that “the FIFA Council announced a ‘policy’ that prohibits staging Official Games outside the participants’ home territory,” and that “all National Associations, leagues, clubs, and players must comply with FIFA directives.” Special App’x 23. Relevent directly challenges the 2018 Policy as anticompetitive. Under these circumstances, the very promulgation of the 2018 Policy is direct evidence of an agreement for purposes of Section 1 of the Sherman Act. CONCLUSION For the foregoing reasons, we VACATE the judgment of the District Court and REMAND for further proceedings consistent with this opinion.
