NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0532n.06
No. 09-1395 FILED
Aug 20, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
WARRIOR SPORTS, INCORPORATED, )
)
Plaintiff-Appellant, )
)
ATHLETE’S CONNECTION, )
) ON APPEAL FROM THE UNITED
Plaintiff, ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
v. )
)
NATIONAL COLLEGIATE ATHLETIC )
ASSOCIATION, )
)
Defendant-Appellee. )
Before: BATCHELDER, Chief Judge; MOORE, and COOK, Circuit Judges.
COOK, Circuit Judge. Warrior Sports filed suit claiming that, by changing the rule that
governs the size of lacrosse stick heads approved for use in NCAA-sanctioned play, the NCAA
violated the Sherman Act and tortiously interfered with Warrior’s business. After denying Warrior’s
preliminary injunction request, the district court granted judgment on the pleadings in favor of the
NCAA. Warrior appeals, and we affirm.
No. 09-1395
Warrior Sports v. NCAA
I.
Defendant-Appellee the National Collegiate Athletic Association (NCAA) sets the rules that
govern intercollegiate athletic competitions involving its member schools, including the play and
equipment rules for men’s lacrosse matches. Other league governing bodies, including the National
Federation of High School Sports, adopt and follow the rules set by the NCAA, giving those rules
particularly strong influence on the market for lacrosse equipment. Plaintiff-Appellant Warrior
Sports, Inc. manufactures and distributes lacrosse sticks.
Prior to 2006, the rule governing the allowable dimensions of lacrosse stick heads (Playing
Rule 1-17) remained unchanged for thirty years, setting the width of the head at a minimum of 6.5"
at its widest point and 10" from top to bottom. Traditional heads were triangular in shape, but
because the rule did not specify a minimum width for the base (or “channel”) of the head,
manufacturers began producing heads with a more pinched shape. According to the NCAA, the
pinched design made it more difficult for a player to dislodge the ball from an opponent’s stick
during play, which prompted players to use increasing amounts of force when attempting to do so,
leading to more injuries. To address this and other issues, in 2006, the NCAA initiated its rule-
changing process. The NCAA Lacrosse Rules Committee met with equipment manufacturers
(Warrior among them) to address potential rule changes, including the addition of a minimum width
requirement for the channel, aimed at resolving the dislodgement problem. On September 7, 2006,
the Rules Committee announced proposed changes to Rule 1-17 instituting minimum width
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Warrior Sports v. NCAA
requirements for the channel of the stick head. The 2006 Rule Change (intended to go into effect
on January 1, 2009) would have rendered the vast majority of all men’s stick heads, including 14 of
the 15 models marketed by Warrior, illegal for NCAA play. Warrior responded by filing a lawsuit
in the Eastern District of Michigan challenging the 2006 Rule Change, but dismissed the action after
the NCAA agreed to reconsider the proposed change.
The NCAA solicited additional input from all concerned manufacturers, including Warrior,
about how to improve the new specifications. To address the dislodgement issue, Warrior suggested
incorporating a “flare” design—a design on which it held a patent, though it failed to disclose that
fact to the NCAA at the time. In September 2007, the Rules Committee adopted a new rule (the
2007 Rule Change) intended to go into effect January 1, 2010. Much like the 2006 Rule Change,
the 2007 Rule Change would have rendered the majority of stick heads on the market illegal,
including all 15 of those marketed by Warrior. Significantly, the measurements incorporated into
the 2007 Rule Change promoted a flared head design and closely tracked the design patented (but
at the time not being marketed) by Warrior. When the NCAA learned of Warrior’s patent after
adopting the change, it sent Warrior a letter asking whether and under what terms the company
would be willing to license its intellectual property rights to other lacrosse equipment manufacturers.
Viewing this correspondence as a veiled threat by the NCAA to change the rules again if Warrior
refused to negotiate licenses with its competitors, Warrior responded that it perceived the NCAA’s
letter as inappropriate and would not consider licensing its rights in the abstract because it did so
only on a case-by-case basis.
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The NCAA adopted a third rule change in February 2008 (the 2008 Rule Change) and
scheduled its effective date for January 1, 2010. Like the 2007 Rule Change, the 2008 Rule Change
rendered Warrior’s entire existing line of stick heads illegal. The specifications adopted in the 2008
Rule Change differed only slightly from those in the 2007 Rule Change—broadening the range of
permissible widths. This modification allows stick heads using either straight or flared walls to
satisfy the rule, and any head that would have satisfied the 2007 Rule Change necessarily also passes
muster under the 2008 Rule Change. Notably, the 2008 Rule Change permits the use of any stick
head designed in conformity with Warrior’s patent.
Warrior responded to the 2008 Rule Changes by filing suit against the NCAA in the Western
District of Michigan accusing the NCAA of violating the Sherman Act and tortiously interfering with
its business relationships.1 Warrior moved for a preliminary injunction and asked the district court
to consider the motion on an expedited basis. Concerned that Warrior was forum shopping,2 the
NCAA immediately opposed Warrior’s request for expedited consideration of its injunction request
and moved to transfer venue to the Eastern District. The court sided with the NCAA, refusing to
expedite the injunction request and transferring the case to the Eastern District of Michigan. The
1
Warrior’s complaint also asserted a promissory estoppel claim on which the district court
granted judgment in the NCAA’s favor. Warrior does not appeal that portion of the court’s ruling.
2
Although the district court never reached the merits of the first lawsuit before Warrior
voluntarily dismissed it, the NCAA successfully moved, over Warrior’s objection, to stay discovery
in that action pending resolution of the NCAA’s Rule 12(b)(6) motion—suggesting a motive for
Warrior’s choice of the Western District for its second filing.
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Warrior Sports v. NCAA
NCAA promptly filed an answer and moved for judgment on the pleadings under Rule 12(c). By
memorandum opinion dated January 30, 2009, the district court denied Warrior’s preliminary
injunction motion, Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, No. 08-14812, 2009 WL
230562 (E.D. Mich. Jan. 30, 2009), and later, in a separate opinion, granted judgment on the
pleadings in the NCAA’s favor, Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, No. 08-
14812, 2009 WL 646633 (E.D. Mich. Mar. 11, 2009). Warrior appeals.
II.
We review the district court’s grant of a motion for judgment on the pleadings de novo using
the same standard as for a motion to dismiss under Rule 12(b)(6). EEOC v. J.H. Routh Packing Co.,
246 F.3d 850, 851 (6th Cir. 2001). “For purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and
the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and
quotation marks omitted).
A.
Warrior alleged that the changes to Rule 1-17—including the 2008 Rule Change, which the
NCAA “appears to have” adopted “for improper and anticompetitive reasons under the influence of
one or more of [Warrior’s] competitors”—violated § 1 of the Sherman Act, which prohibits “[e]very
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Warrior Sports v. NCAA
contract, combination . . . , or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1.
Because “nearly every contract binding parties to an agreed course of conduct amounts to some sort
of ‘restraint of trade,’ the Supreme Court has limited the restrictions of section 1 to bar only
‘unreasonable restraints.’” Care Heating & Cooling, Inc. v. Am. Standard, Inc., 427 F.3d 1008, 1012
(6th Cir. 2005) (quoting Nat’l Hockey League Players’ Ass’n v. Plymouth Whalers Hockey Club, 325
F.3d 712, 718 (6th Cir. 2003)).
The district court examined all three of the changes to Rule 1-17. It concluded that the 2006
and 2007 Rule Changes were noncommercial and therefore immune from antitrust challenge.
Assessing the 2008 Rule Change, the court found that, in light of Warrior’s accusation that the
NCAA enacted it in collusion with Warrior’s competitors, the 2008 Rule Change served a
commercial purpose because Warrior’s “competitors presumably sought to enact the rule in order
to benefit commercially.” Warrior II, 2009 WL 646633, at *4. The court nevertheless rejected
Warrior’s antitrust claim, finding that the 2008 Rule Change did not restrain trade or commerce
because, when compared to the 2007 Rule Change, the 2008 rule expanded the range of stick head
designs that could meet the standards for NCAA-approved play. Id.
We agree with the district court’s ultimate conclusion, but employ a slightly different
analysis. The NCAA dropped the 2006 and 2007 Rule Changes before they ever went into effect,
and thus they cannot be challenged because they necessarily did not cause (nor do they threaten to
cause) any injury to Warrior or anyone else. See Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d
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768, 788–89 (6th Cir. 2002) (“An antitrust plaintiff bears the burden of showing that the alleged
violation was a material cause of its injury, a substantial factor in the occurrence of damage or that
the violation was the proximate cause of the damage.”). So although the district court chose to
compare the 2008 Rule Change to the 2007 Rule Change to determine whether the 2008 rule
restrained trade or commerce, we find that comparison inapt, given that the 2007 rule never took
effect. Rather, as the sole rule change ever to take effect, only the 2008 Rule Change matters for
purposes of the antitrust analysis.
Although the district court concluded that Warrior’s allegation of collusion between the
NCAA and Warrior’s competitors transformed the otherwise noncommercial rule governing athletic
competition into a commercial one subject to antitrust scrutiny, we avoid that question by assuming
the rule to be commercial and cut to the heart of Warrior’s antitrust claim, finding the challenged rule
does not harm competition and, consequently, does not unreasonably restrain trade or commerce.
Warrior’s Sherman Act claim thus fails as a matter of law.
Two frameworks exist for analyzing Sherman Act claims: the per se rule and the rule of
reason. Care Heating & Cooling, 427 F.3d at 1012. But Warrior’s failure to challenge the rule as
per se unlawful in proceedings below leaves it with only a rule-of-reason argument.3 To state a claim
3
Although Warrior argues in its opening brief that the 2008 Rule Change is per se unlawful,
the NCAA responds that Warrior never raised this argument in the district court. In its opinion, the
district court explicitly noted that Warrior “does not contend that the per se rule applies.” This court
“generally ‘cannot consider an issue not passed on below,’” and exercises its “discretion to rule on
an issue not decided below only in ‘exceptional cases,’” St. Mary’s Foundry, Inc. v. Employers Ins.
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Warrior Sports v. NCAA
under the rule-of-reason test, a plaintiff must allege, inter alia, that the purportedly unlawful
contract, combination, or conspiracy “produced adverse, anticompetitive effects within relevant
product and geographic markets.” Crane & Shovel Sales Corp. v. Bucyrus-Erie Co., 854 F.2d 802,
805 (6th Cir. 1988) (internal quotation marks and citation omitted); see also Nat’l Hockey League
Players Ass’n, 419 F.3d at 473 (“a plaintiff alleging an unreasonable restraint on trade under the rule
of reason theory must show significant anti-competitive effects of the challenged restraint”). The
Sherman Act exists for “the protection of competition, not competitors,” Atlantic Richfield Co. v.
USA Petroleum Co., 495 U.S. 328, 338 (1990) (emphasis in original), and thus “the foundation of
an antitrust claim is the alleged adverse effect on the market.” Care Heating & Cooling, 427 F.3d
at 1014.
Warrior’s complaint fails to identify any anticompetitive effects on the market for lacrosse
sticks attributable to the 2008 Rule Change (or, for that matter, to any other version of Rule 1-17).
Rule 1-17, irrespective of the various versions’ specifications, applies to all manufacturers, including
Warrior, in exactly the same way.4 Any manufacturer wishing to market a lacrosse stick approved
for use in NCAA competition (or in any competition governed by the NCAA standards) must
conform the stick to the dimensions specified in the rule. To be sure, rule changes impose costs on
of Wausau, 332 F.3d 989, 995–96 (6th Cir. 2003) (citations omitted). Warrior fails to satisfy the
“exceptional case” standard, so the panel bypasses analysis under the per se rule.
4
We note Warrior’s complaint may inadequately allege the relevant market. See, e.g.,
Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 963–64 (6th Cir. 2004).
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Warrior Sports v. NCAA
manufacturers: they must adapt their processes to make sticks that meet the new rule’s specs; and
their stock of non-conforming sticks becomes obsolete. But Warrior fails to allege any facts that
would support a conclusion that the rule even arguably injures competition. Indeed, by complaining
that the new rule will “neutralize Warrior’s intellectual property rights and market position . . .
opening the door and paving the way for new entrants,” Warrior concedes that the 2008 Rule Change
will increase competition, not reduce it. Because the new rule applies equally to all manufacturers,
Warrior may compete in the market on the same footing as all other participants. This includes an
ability to sell stick heads produced in conformity with its patent, which the 2008 Rule Change does
not bar. Warrior’s failure to allege an injury to competition dooms its Sherman Act claim as a matter
of law.
B.
Under Michigan law, a claim of tortious interference with business relationship requires
proof of (1) a valid business relationship or expectancy; (2) knowledge of that relationship or
expectancy on the part of the defendant; (3) an intentional interference by the defendant inducing
or causing a breach or termination of that relationship or expectancy; and (4) resulting damage to
the plaintiff. Via The Web Designs, L.L.C. v. Beauticontrol Cosmetics, Inc., 148 F. App’x 483,
487 (6th Cir. 2005) (citing Baidee v. Brighton Area Schs., 695 N.W.2d 521, 538 (Mich. App.
2005)). “The third element of [this] tort requires the plaintiff to demonstrate that the third party
was induced either to breach the contract or to break off the prospective business relationship by
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an intentional act that is either (1) wrongful per se; or (2) lawful, but done with malice and
unjustified in law.” Id. (citing CMI Int’l, Inc. v. Intermet Int’l Corp., 649 N.W.2d 808, 812
(Mich. Ct. App. 2002)).
The district court rejected Warrior’s tortious interference claim, finding that, though
Warrior alleged collusion regarding the 2008 Rule Change in a way that might suggest malice, it
ultimately failed to demonstrate “that the adoption of the 2008 Rule Change was done with a
malicious and unlawful purpose, because the only effect of the 2008 Rule Change [when
compared to the 2007 Rule Change] was to increase the number of sticks that would be allowed
under the NCAA’s rules.” Warrior II, 2009 WL 646633, at *4. We decline to adopt the court’s
analysis, but agree with its ultimate conclusion.
“To establish that a lawful act was done with malice and without justification, the
plaintiff must demonstrate, with specificity, affirmative acts by the[] defendant that corroborate
the improper motive of the interference.” Erickson’s Flooring & Supply Co. v. Tembec, Inc., 212
F. App’x 558, 566 (6th Cir. 2007) (quoting Mino v. Clio Sch. Dist., 661 N.W.2d 586, 597–98
(Mich. Ct. App. 2003)). Taking a comprehensive view of the allegations in the complaint,
Warrior fails to allege specific, affirmative actions by the NCAA that corroborate its claim of
malice. Indeed, its vague assertion that “in deciding to change the rules, [the NCAA] appears to
have acted for improper and anticompetitive reasons under the influence of one or more of the
competitors of [Warrior],” Compl. ¶ 3, lacks the specificity required by Michigan law. And
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nothing about the content or character of the 2008 Rule Change—which applies equally to all
lacrosse stick manufacturers—inherently suggests that the NCAA intended to cause Warrior
harm.5 Accordingly, we affirm the judgment in favor of the NCAA on Warrior’s tortious
interference claim.
III.
For these reasons, we affirm the judgment of the district court.
5
Nor does Warrior’s repeated insistence that the Rule Changes do not actually make it easier
to dislodge the ball create such an inference. Warrior fails to cite any law suggesting that a sports
rule-making body with a facially plausible concern about a competition issue must supply empirical
proof that a proposed rule change actually remedies the concern before enacting the rule.
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