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2d 527) Talbott, 38 Idaho 13, 219 P. 1058 (1923) (in violation of state statute); Progressive Finance and Realty Co. v. Stempel, 231 Mo.App. 721, 95 S.W.2d 834 (1933) (arbitration of future disputes involved). FN61. Waiver of recourse clauses rarely appear in the absence of an association charter or an agreement to arbitrate. Indeed, the waiver of recourse clause presented here must be viewed in light of the totality of circumstances presented, wherein private contractual recourse remedies are provided. For cases upholding waiver of recourse or similar clauses, see Orkin Exterminating Co. v. Stevens, 130 Ga.App. 363, 203 S.E.2d 587, 593 (1973) (There is no generally applicable rule of law forbidding one contracting party from waiving all recourse in the event of breach by the other.); Laub v. Genway Corp., 60 F.R.D. 462 (S.D.N.Y.1973) (Contractual agreement not to assert counterclaims valid in New York); Kiewit Sons' Co. v. Iowa Southern Utilities Co., 355 F.Supp. 376 (S.D.Iowa 1973) (No damage clause will be regarded as valid and enforceable); Seufert Land Co. v. Greenfield, 262 Or. 83, 496 P.2d 197 (1972) (Waiver of all defenses in contract valid); Park v. Board of Trustees, 21 Cal.App.3d 630, 98 Cal.Rptr. 859 (1971) (Judicial review of pension plan board of trustees precluded); Rossum v. Jones, 97 N.J.Super. 382, 235 A.2d 206 (1967) (Covenant not to sue valid); School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 215 N.E.2d 25, 31 (1966) (Arbitration as settlements, releases and covenants not to sue simply removes controversies from the area of litigation (and) . . . is looked upon with favor by federal state and common law.). FN62. In O. H. Overmyer v. Frick, 405 U.S. 174, 184, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972), the Court upheld a cognovit note authorized by state law as constitutional under the Fourteenth Amendment where a party gives up in advance his constitutional right to defend any suit by the other. The Court said that a voluntary, intelligent and knowing waiver of rights is valid. Similarly, Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), upheld a private contractual agreement not to sue in any court other than the High Court of Justice in London. The Court declared that this choice was made in an arm'slength negotiation by experienced and sophisticated businessmen, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts. Id. at 12, 92 S.Ct. at 1914. Certainly this rationale applies to the instant case. See also Scherk v. AlbertoCulver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), where the Court approved an agreement waiving review of an arbitrator's decision. FN63. Memorandum Opinion and Order of August 29, 1977, page 2. [20] Although the waiver of recourse clause is generally valid for the reasons discussed above, we do not believe that it forecloses access to the courts under all circumstances. Thus, the general rule of nonreviewability which governs the actions of private associations is subject to exceptions 1) where the rules, regulations or judgments of the association are in contravention to the laws of the land or in disregard of the charter or bylaws of the association [FN64] and 2) where the association has failed to follow the basic rudiments of due process of law.[FN65] Similar exceptions exist for avoiding the requirements of arbitration under the United States Arbitration Act.[FN66] We therefore hold that,

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Page 24 569 F.2d 527, 1978-1 Trade Cases P 61,978 (Cite as: 569 F.2d 527) absent the applicability of one of these narrow exceptions, the waiver of recourse clause contained in the Major League Agreement is valid and binding on the parties and the courts. FN64. See, e. g., Ryan v. Cudahy, 157 Ill. 108, 41 N.E. 760 (1895); Allen v. Chicago Undertakers' Ass'n, 137 Ill.App. 61 (1907), aff'd, 232 Ill. 458, 83 N.E. 952 (1908). FN65. While (s)trict adherence to judicial standards of due process would be arduous and might seriously impair the . . . proceedings of voluntary associations, Van Daele v. Vinci, 51 Ill.2d 389, 282 N.E.2d 728, 732 (1972), the procedure must not be a sham designed merely to give colorable propriety to an inadequate process. Compare Virgin v. American College of Surgeons, 42 Ill.App.2d 352, 192 N.E.2d 414 (1963) with Parsons College v. North Central Ass'n of Colleges and Secondary Schools, 271 F.Supp. 65 (N.D.Ill.1967). FN66. 9 U.S.C. s 10. We affirm the district court's judgments of September 7, 1976, March 17, 1977 and August 29, 1977.[FN67] FN67. Defendants-Appellees' Motion to Strike Plaintiff-Appellant's Reply Brief is denied. AFFIRMED. FAIRCHILD, Chief Judge, concurring. *545 Jurisdiction, both of the Finley claim that the actions of the Commissioner were not authorized by the Major League Agreement and of the Commissioner's counterclaim based on the waiver of recourse to the courts provision is predicated on diversity of citizenship. To the extent that this is a diversity action, the choice of law rules of the State of Illinois are controlling. Under Illinois choice of law decisions, the law of the place of formation governs where the contract is to be performed in more than one state. Because the contract was made in Illinois and performance is nationwide, Illinois law governs the contract issues: whether the actions of the Commissioner are authorized by the Agreement, and whether the waiver of recourse provision is valid. With respect to whether the actions of the Commissioner were authorized by the Major League Agreement, the first question is whether the Agreement gives the Commissioner the power to void player assignments when no rules have been violated. This question, like the analogous question of determining when a grievance is arbitrable, requires a judicial interpretation of the contract. Two contractual bases exist for the Commissioner's action. Major League Rule 12(a) provides that no assignment of a player contract is valid until approved by the Commissioner. More generally, Art. I, Sec. 2 of the Agreement states that the Commissioner shall have the power to investigate any act suspected to be not in the best interests of . . . baseball and to take whatever preventative, remedial or punitive action is appropriate . . . . Neither of these provisions in any way expressly limits the power of the Commissioner to situations involving rules violations. In my view, Finley has simply failed to establish that these provisions bestowing broad discretionary powers upon the Commissioner were intended by the parties only to apply in cases of rules violations.[FN1] Certainly the history carefully summarized in Judge Sprecher's opinion does not demonstrate that such a limitation was intended. FN1. I do not agree with the majority, however, that it was not error for the district court to admit testimony of twenty-one of the parties to the Major League Agreement regarding their understanding concerning the

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