UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WARRIOR SPORTS, INC., and ATHLETE’S

CONNECTION, INC.,

Plaintiffs,

v.

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION,

Defendant.

_____________________________________/

Case No. 08-14812

HON. MARIANNE O. BATTANI

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY

INJUNCTION

I. INTRODUCTION

Before the Court is a motion for a preliminary injunction that Plaintiffs Warrior

Sports and Athlete’s Connection filed in the Western District of Michigan, before the

case was transferred to this Court. (W.D. Mich. Doc. 12). After the case was

transferred to this Court, Plaintiffs filed a motion for a preliminary injunction directly with

this Court. (Doc. 5). For the reasons discussed below, Plaintiffs’ original motion for a

preliminary injunction is DENIED, and Plaintiffs’ second motion for a preliminary

injunction is DENIED AS UNNECESSARY. 

II. STATEMENT OF FACTS

This case arises from a series of rule changes the National Collegiate Athletic

Association (NCAA) implemented concerning the size of lacrosse sticks that may be

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used in intercollegiate play. Previously, any lacrosse head that was between 6.5” and

10.5” wide at its widest point and 10” ”from the tip of the scoop to [the] front edge of the

stop area” was permitted. Originally, lacrosse sticks were triangular in shape, but the

aforementioned restrictions permitted manufacturers to design sticks that were

“pinched” such that they were narrower in certain spots. The NCAA rules committee

indicated that the pinched design was preventing the ball from being dislodged from the

stick easily, and that this was resulting in injuries due to players’ more aggressive

attempts to dislodge the ball. In September 2006, the NCAA rules committee changed

the rules relating to lacrosse stick heads, effective January 1, 2009, as follows:

Measurement from throat of crosse Minimum distance between narrowest

point on the crosse

1.25” 2.75” (all measurements)

3” 3.25” (all measurements)

5” 4.25” front and 3.5” back

The widest point 6.5” front and 6” back

Warrior Sports filed a lawsuit over these changes, but subsequently withdrew the

suit when the NCAA agreed to reconsider the September 2006 rule change. In

September 2007, the NCAA rules committee adopted the following new rules, to be

effective January 1, 2010:

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Measurement from throat of crosse Minimum distance between narrowest

point on the crosse

1.25” 3” (all measurements)

3” 3” (all measurements)

5” 4” front and 3.5” back

The widest point 6.5” front and 6” back

After adopting this rule, the NCAA allegedly learned that the rule’s minimum

dimensions tracked designs patented by Warrior Sports that covered stick heads that

were narrower in the back then they were in the front. The NCAA contacted Warrior

Sports asking it to confirm that it had a patent covering such “flared” sticks and inquiring

whether Warrior was “willing to provide other manufacturers with license to produce

stick heads [that complied with the September 2007 rules] on reasonable and nondiscriminatory terms.” The NCAA went on to advise Warrior that it reserved the right to

amend the stick head specifications as it deemed appropriate. Warrior informed the

NCAA that it would not “agree in the abstract to licensing deals with all of its

competitors.” Then, in February 2008, the NCAA adopted the following rule change,

effective January 1, 2010:

Measurement from throat of crosse Minimum distance between narrowest

point on the crosse

1.25” 3” (all measurements)

3” 3” (all measurements)

5” 3.5” - 4” front and 3.5” back

The widest point 6” - 6.5” front and 6” back

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Dale Kohler, the general manager of Warrior Sports, asserts in an affidavit that

all of Warrior Sports current lacrosse heads are illegal under the 2008 rule change. In

addition, Kohler contends that Warrior Sports will be damaged by the devaluation of its

patents, loss of sales, loss of market share, cost of developing a new product line,

disposal and returns of current inventory, loss of customer goodwill, and loss of the

benefit of its past marketing of the lacrosse heads that will become illegal. In order to

provide lacrosse heads that comply with the rules in time for January 1, 2010, Warrior

Sports will have to begin incurring costs associated with developing the new heads in

October 2008, with the entire process from concept to mass production taking at least

eight to ten months. Kohler claims that it will cost Warrior Sports “millions of dollars” to

update its line of men’s lacrosse heads to comply with the new rule. Kohler also asserts

that the NCAA’s rules are very influential because Major League Lacrosse, college

athletic associations, the National Federation of State High School Associations (NFHS)

and other high school associations, U.S. Lacrosse, and youth lacrosse associations

usually adopt the NCAA lacrosse rules without any significant changes.

An affidavit from Kent Summers, an assistant director of the NFHS, was

submitted by the NCAA. According to Summers, the NFHS is a non-profit corporation,

whose members include the 50 state high school athletic associations. The NFHS

member state associations are not required to adopt the rules and regulations

promulgated by the NFHS and, typically, some state associations do not adopt NFHS

rules without modifications. In July 2007, the NFHS discussed the 2006 NCAA lacrosse

head rules revision and decided to take no action at that time. In July 2008, the NFHS

considered a proposal to adopt, with a January 1, 2013 effective date, stick

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specifications equivalent to the NCAA’s September 2007 rule change. The proposal

failed by a 5-1 margin. Summers stated that, at this time, “the NFHS has not adopted

lacrosse stick head specifications equivalent to those adopted by the NCAA in either

September 2007 or February 2008, and no such adoption is pending.”

III. STANDARD OF REVIEW

A preliminary injunction is an extraordinary measure that the Sixth Circuit has

characterized as “one of the most drastic tools in the arsenal of judicial remedies.” 

Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001) (quotation omitted). Accordingly,

it is the movant’s burden to show that a preliminary injunction is necessary. See United

States Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008). In considering

a motion for preliminary injunction, the Court must balance four factors:

(1) whether the movant has a strong likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the

injunction;

(3) whether issuance of the injunction would cause substantial harm to

others; and

(4) whether the public interest would be served by the issuance of the

injunction.

Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542

(6th Cir. 2007).

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IV. ANALYSIS

1. Likelihood of success on the merits

Section 1 of the Sherman Act states that, “Every contract, combination . . . or

conspiracy, in restraint of trade or commerce among the several States, or with foreign

nations, is declared to be illegal.” 15 U.S.C. § 1. The Sixth Circuit has held that the

actions of the NCAA are subject to the Sherman Act when the NCAA’s actions are

“commercial in nature.” Worldwide Basketball & Sport Tours, Inc. v. NCAA (Worldwide

Basketball), 388 F.3d 955, 958 (6th Cir. 2004). For example, in NCAA v. Board of

Regents of Univ. of Okla., the Supreme Court held that the NCAA’s restriction of the

number of televised football games violated the Sherman Act. 468 U.S. 85, 120 (1984).

The Court also noted, however, “It is reasonable to assume that most of the regulatory

controls of the NCAA are justifiable means of fostering competition among amateur

athletic teams and therefore procompetitive because they enhance public interest in

intercollegiate athletics.” Id. at 117. The Court went on to distinguish the restriction on

television broadcasts, which was at issue in that case, from, among other things, the

“rules defining the conditions of the contest.” Id. Likewise, in Worldwide Basketball, the

Sixth Circuit held that an NCAA rule limiting the number of preseason tournaments a

school’s basketball team could participate in was commercial in nature because the rule

“has some commercial impact insofar as it regulates games that constitute sources of

revenue for both the member schools and the Promoters.” 388 F.3d at 959. 

The Sixth Circuit also recently reaffirmed this principle when it held that the

NCAA’s imposition of sanctions, which were a result of the coach’s violation of NCAA

recruiting and academic rules and made it difficult for a coach to obtain employment

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with NCAA schools, did not constitute an antitrust violation. Bassett v. NCAA, 528 F.3d

426, 429 (6th Cir. 2008). In that case, the Sixth Circuit indicated that the NCAA’s

enforcement of these rules was not commercial activity because the rules “were

intended to ensure fair competition in intercollegiate athletics.” Id. at 433 (quoting Smith

v. NCAA, 139 F.3d 180, 185 (3rd Cir. 1998) (holding that the NCAA’s promulgation of

eligibility rules is not subject to challenge under the Sherman Act because such rules

are not related to the NCAA’s commercial or business activities and primarily seek to

ensure fair competition)).

Plaintiffs have not shown that they have a strong likelihood of success on the

merits because they have not demonstrated that the NCAA’s rule regarding the type of

lacrosse equipment is “commercial in nature.” See Worldwide Basketball, 388 F.3d at

958. There is no evidence that the NCAA engages in commercial or business activity

relating to the sale of lacrosse sticks or that the rule otherwise relates to the NCAA’s

commercial or business activities. See Smith, 139 F.3d at 185. As such, the rule

appears only to be directed towards increasing the quality of college lacrosse play and,

thereby, enhancing interest in intercollegiate lacrosse. See Board of Regents of Univ.

of Okla., 468 U.S. at 117 (stating that most of the NCAA’s regulations are a “justifiable

means of fostering competition among amateur athletic teams, [which] enhance[s]

public interest in intercollegiate athletics”); see also Bassett, 528 F.3d at 429 (holding

that the NCAA’s enforcement of rules that were intended to insure fair competition in

intercollegiate athletics was not commercial activity). 

This case is analogous to Adidas America, Inc. v. NCAA, where the district court

found that a NCAA bylaw prohibiting manufacturers’ logos that were larger than a

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specified size was noncommercial. 40 F.Supp.2d 1275, 1286 (D.Kan. 1999). The court

first found that the bylaw had the noncommercial purposes of maintaining amateurism in

NCAA athletics and insuring that player uniforms effectively performed their basic

functions of allowing identification of players. Id. The court went on to find that the

bylaw did not confer any direct economic benefit upon the NCAA because, even though

the bylaw did not restrict “NCAA Football” logos, there was no evidence that the NCAA

was a competitor in the sports apparel market. Id.

As in Adidas America, Inc., the rule in this case has noncommercial purposes in

the form of the NCAA’s desire to remedy the problem of it being too difficult to dislodge

the ball from a competitor’s lacrosse stick during play. In addition, there is no evidence

either that the NCAA is a competitor in the lacrosse stick market or that the rule confers

any direct commercial benefit upon the NCAA. Accordingly, because the rule is not

commercial in nature, it is not subject to challenge under the Sherman Act. 

See Worldwide Basketball, 388 F.3d at 958. 

Plaintiffs allege that the NCAA is retaliating against Warrior Sports for its

unwillingness to license the patent it has that tracked the minimum stick requirements

under the September 2007 rule change. There is, however, no direct evidence of such

retaliation, and the circumstantial evidence is not strong enough to show that Plaintiffs

claim will likely succeed.

Similarly, Plaintiffs contend that the NCAA may have created the February 2008

rule in collusion with Warrior Sports’ competitors. If there was such collusion, a strong

argument could be made that the rule was commercial in nature and, therefore, subject

to the Sherman Act. But, Plaintiffs have no evidence of such collusion. Therefore,

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Plaintiffs have not shown that they will likely succeed on the merits of their claim under

Section 1 of the Sherman Act.

Plaintiffs also have failed to show that they will likely succeed on their tortuous

interference claim. “The elements of the tort of interference with an advantageous

business relationship are (1) a valid business relationship (2) known to the defendant

who (3) engaged in intentional conduct (4) causing the termination of that relationship

resulting in (5) damages.” Ass’n Research & Dev. Corp. v. CNA Fin. Corp., 123 Mich.

App. 162, 169 (Mich. Ct. App. 1983). In order to make out such a claim, plaintiffs must

show either an act that is per se unlawful or a lawful act done with a malicious and

unlawful purpose. CMI Int’l, Inc. v. Intermet Int’l Corp., 251 Mich. App. 125, 131 (Mich.

Ct. App. 2002) (quotation omitted). In this case, the NCAA’s act of changing the rules

relating to the dimensions of permissible lacrosse sticks is not per se unlawful. See id.

In addition, for the reasons already discussed, Plaintiffs have not shown that the NCAA

passed the rule in an effort to unlawfully or maliciously interfere with their business

interests. See id.

Finally, Plaintiffs have not shown that their promissory estoppel claim will likely

succeed. The elements of a promissory estoppel claim are:

(1) a promise,

(2) that the promisor should reasonably have expected to induce action of

a definite and substantial character on the part of promisee, 

(3) which in fact produced reliance or forbearance of that nature, and 

(4) in circumstances such that the promise must be enforced if injustice is

to be avoided.

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Ardt v. Titan Ins. Co., 233 Mich. App. 685, 692 (Mich. Ct. App. 1999). In this case,

Plaintiffs have not shown that the NCAA promised that it would not change its lacrosse

stick head rules. Accordingly, Plaintiffs have failed to show that their claims will likely

succeed on the merits.

2. Irreparable Injury

Irreparable injury is injury so great that an award after litigation has concluded

would be inadequate to fully compensate the injured party. Aluminum Workers Int’l

Union v. Consol. Aluminum Corp., 696 F.2d 437, 443 (6th Cir. 1982). “Mere injuries,

however substantial, in terms of money, time and energy necessarily expended in the

absence of a stay, are not enough. The possibility that adequate compensatory or other

corrective relief will be available at a later date, in the ordinary course of litigation,

weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61,

90 (1974). Furthermore, “the harm alleged must be both certain and immediate, rather

than speculative or theoretical.” Michigan Coalition of Radioactive Material Users, Inc.

v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991).

The NCAA argues that Plaintiffs act of not bringing this suit for roughly six

months following the February 2008 rule change indicates that a preliminary injunction

is not necessary. The Sixth Circuit has viewed a Plaintiff’s delay in bringing an action as

evidence that the failure to issue an injunction would not cause irreparable harm. See

Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 267 (6th Cir. 1988) (addressing the issue

in the context of a copyright infringement action). This is because such a delay

demonstrates “that there is no apparent urgency to the request for injunctive relief.” 

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High Tech Med. Instrumentation, Inc. v. New Age Indus., Inc., 49 F.3d 1551, 1557 (Fed.

Cir. 1995). The NCAA points to NACCO Indus. v. Applica Inc., where a district court

held that a delay of approximately one month in filing an action was convincing evidence

that there was not irreparable harm. 2006 WL 3762090 at *8-*9, No. 06-3002 (N.D.

Ohio, Dec. 20, 2006). In that case, however, it appears that the complaint was filed

within weeks of the date on which the alleged irreparable harm would have resulted. 

See id. The Ninth Circuit, on the other hand, has held that a delay of four months

should not be held against the plaintiff. See Gilder v. PGA Tour, Inc., 936 F.2d 417, 423

(9th Cir. 1991).

Although Plaintiffs did not file this suit as quickly as they could have, it does not

appear that their delay should lead to an inference that there is no irreparable harm. 

Plaintiffs contend that they waited to file suit because they believed they could convince

the NCAA to change the rule. In light of the fact that the February 2008 rule is the third

version of the lacrosse stick rule since 2006, it appears that this was not an

unreasonable belief on the part of Plaintiffs. In addition, this suit was still filed over a

year before the rule’s implementation and more than a month before Warrior Sports

anticipated suffering any harm as a result of the rule change. As such, the Court will not

view Plaintiffs’ delay in filing this suit as evidence that a preliminary injunction is not

needed to avoid irreparable injury. To find otherwise would discourage parties from fully

exploring whether their disputes could be resolved without resorting to litigation.

Nevertheless, Plaintiffs have not shown that they will be irreparably harmed if an

injunction is not entered. First, it is not clear that Plaintiffs will suffer a significant loss of

customer goodwill when the NCAA requires participants in college lacrosse to begin

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using sticks that comply with the new rules. Instead, it appears likely that any animosity

their customers might feel would primarily be directed towards the NCAA, because it is

their rule. Second, Warrior Sports claims that irreparable harm will occur because of

(1) the loss of value of its patents and (2) the fact that no longer allowing the current

“innovative and cutting edge lacrosse sticks and heads” to be used will damage

lacrosse’s popularity also fails. A preliminary injunction is not needed at this time in

order to avoid these harms because they will not accrue in any significant form until the

rule is implemented in January 1, 2010. See Michigan Coalition of Radioactive Material

Users, Inc., 945 F.2d at 154.

Although Plaintiffs claim they will accrue costs in revamping their lacrosse stick

product lines to comply with the 2008 rule, it appears that these costs will be necessary

since Plaintiffs have been unable to show that their claims will likely succeed and,

therefore, it appears that the 2008 rule will stand. See Blue Cross & Blue Shield Mut. of

Ohio v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 334 (6th Cir. 1997) (stating that

“where the harm to be suffered as a result of the issuance of a preliminary injunction is

dependent upon the outcome of the litigation . . . it is within the district court’s discretion

to take the likely ultimate result of the underlying suit into consideration when assessing

the harms”). Accordingly, the Court finds that Plaintiffs have not made a strong showing

that they will be irreparably harmed if a preliminary injunction is not entered.

3. Harm to Others and the Public Interest

In light of the Plaintiffs’s failure to show that they are likely to succeed on the

merits of their claims, it appears that the issuance of an injunction would harm others

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and not be in the public interest. In particular, the issuance of such an injunction would

place the NCAA’s lacrosse stick rules in a further, and apparently unnecessary, state of

flux. Accordingly, the Court finds that the issuance of an injunction would harm others

and be against the public interest in a situation such as this, where Plaintiffs have not

shown that their claims would succeed on the merits and that they would be harmed by

the Court’s failure to issue an injunction.

V. CONCLUSION

As discussed, Plaintiffs have not shown that they are likely to succeed on the

merits of their claims because the NCAA’s rule is not commercial in nature. In addition,

Plaintiffs have not made a strong showing that they will suffer irreparable harm if a

preliminary injunction is not issued. Furthermore, in light of, among other things, the

fact that Plaintiffs appear unlikely to succeed on the merits of their claims, the issuance

of a preliminary injunction would both harm others and not be in the public interest. 

Therefore, none of the factors the Court is to look to in issuing a preliminary injunction

favor issuing such an injunction. See Certified Restoration Dry Cleaning Network,

L.L.C., 511 F.3d at 542.

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Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ original motion for a

preliminary injunction, (W.D. Mich. Doc. 12), is DENIED. The second motion for a

preliminary injunction, (Doc. 5), is DENIED AS UNNECESSARY.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: January 30, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served upon counsel of record on this date by ordinary

mail and/or electronic filing.

 s/Bernadette M. Thebolt

 DEPUTY CLERK

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