Was it a mistake for Minnesota Hockey to back Brad Hewitt?

[scrapiron]

I think that is fair to question anyones motives but attacks and name calling should be checked. We should stay on topic.

[HockeyDad41]

Thank you for that Mr. Terry Moore. On a side note what is your bias? That right you are "the" Blades guy.

Just a quick update on this guy, he showed up to testify against Bernie in court when a former employee of Mn Made tried to sue Bernie to get out of a non-compete contract. What was his relationship to that case? Nothing! Why would he do that, because he is a competitor of Mn Made. According to Terry "he thought the former employee needed some help".

The judge in that case did not release the former employee from the non-compete.

As far as your legal opinion you could be correct. I wouldn't know much about that.

So everyone is a slave at the "made"?

Wait...what?

I need to be careful. I'm starting to enjoy your twisted mind.

ibtl

[High Off The Glass]

Thank you for that Mr. Terry Moore. On a side note what is your bias? That right you are "the" Blades guy.

Just a quick update on this guy, he showed up to testify against Bernie in court when a former employee of Mn Made tried to sue Bernie to get out of a non-compete contract. What was his relationship to that case? Nothing! Why would he do that, because he is a competitor of Mn Made.

According to Terry "he thought the former employee needed some help".

The judge in that case did not release the former employee from the non-compete.

As far as your legal opinion you could be correct. I wouldn't know much about that.

I'd rather be in association with a guy who's willing to help you out in a tough situation, than in the latter, where a guy's willing to take you to court to prevent you from earning an income. Remember, it's all about the $ down at the Made...don't ever forget that!

[MrBoDangles]

Thank you for that Mr. Terry Moore. On a side note what is your bias? That right you are "the" Blades guy.

Just a quick update on this guy, he showed up to testify against Bernie in court when a former employee of Mn Made tried to sue Bernie to get out of a non-compete contract. What was his relationship to that case? Nothing! Why would he do that, because he is a competitor of Mn Made.

According to Terry "he thought the former employee needed some help".

The judge in that case did not release the former employee from the non-compete.

As far as your legal opinion you could be correct. I wouldn't know much about that.

I'd rather be in association with a guy who's willing to help you out in a tough situation, than in the latter, where a guy's willing to take you to court to prevent you from earning an income. Remember, it's all about the $ down at the Made...don't ever forget that!

Not a very good example hockeydad11......... The good news is that you're probably smarter than HockeyDad41.

[MrBoDangles]

Thank you for that Mr. Terry Moore. On a side note what is your bias? That right you are "the" Blades guy.

Just a quick update on this guy, he showed up to testify against Bernie in court when a former employee of Mn Made tried to sue Bernie to get out of a non-compete contract. What was his relationship to that case? Nothing! Why would he do that, because he is a competitor of Mn Made. According to Terry "he thought the former employee needed some help".

The judge in that case did not release the former employee from the non-compete.

As far as your legal opinion you could be correct. I wouldn't know much about that.

So everyone is a slave at the "made"?

Didn't we have a civil war over slavery...we have come a long way IBTL

Self subjected...... IBUDBMc

[BowlusEnforcer]

[quote="hockeydad11"]Thank you for that Mr. Terry Moore. On a side note what is your bias? That right you are "the" Blades guy.

Just a quick update on this guy, he showed up to testify against Bernie in court when a former employee of Mn Made tried to sue Bernie to get out of a non-compete contract. What was his relationship to that case? Nothing! Why would he do that, because he is a competitor of Mn Made. According to Terry "he thought the former employee needed some help".

The judge in that case did not release the former employee from the non-compete.

Nice personal attack. TM offers up some well thought out information, and you jump at the chance to post some real garbage about something you know nothing about. You need to get your facts straight.
1. TM didn’t just show up, he would have been on an approved witness list.
2.Bernie sued the employer as Bernie usually is the first one to line up and sue at the first opportunity...

[woodley]

From what I'm seeing, the only thing before the Court was a motion for temporary injunction. While I don't know exactly the "right" words, the only basis for granting a temporary injunction is if there will be irreparable permanent harm. That's it. . . not a likelihood to win or lose, immediate harm that can not be changed. In this case, the potential harm to either litigating party is solely money (remember, no players are parties). That can always be replaced through judgement. Now, if you don't read a hint in the quotes from the opinion, I'd really like to play poker with you, you might not be able to see me swallow really hard when I have a good hand!!!

[lefty76]

It has been said a number of times that a simple attendance would work fine. But Hewitt wanted to try and shut Mn Made down. This was clear. Minnesota Hockey through Brad Hewitt was trying to use their Non-profit monopoly put Bernie out of business. What choice did he have. He is going to protect his business.

High off glass, you are way off base. I know personally a number of a number of families the Bernie has help financially. He is a business man, but I will tell you that I do not know another hockey person that gives more out of his pocket to help kids play the game.

[popeye]

I know this a Brad Hewitt Thread, but Bernie puts a ton of effort into these kids. He has organized a bunch of events for these players off the ice sleep overs at the rink, Movies, flying feild trips, lake days, go carting, golfing and on and on. A guy that is in it just for the money does not do that stuff.

High off Glass, We get it you don't like the guy, but you go out of your way to attack this mans character and it is wrong. You might want to take a look in the mirror.

[hockey_is_a_choice]

Let's agree that we will not engage in personal attacks. In order to keep the thread on topic and with the hopes that giving everyone on this thread the opportunity to review the Court's actual Order will refocus the comments, I will post most of the Court's Order in a subsequent post. The reason I am not posting the final page, which is essentially limited to the Court denying the motion for a preliminary injunction and denying Minnesota Hockey's and District 6's motion to strike Art Cobb's and Bernie's affidavit is that in copying the text from a pdf file, the final page was too distorted to post--if that makes any sense.

While I agree with Terry Moore that MM will not be awarded attorneys' fees for the preliminary injunction motion, an antitrust offender sued in civil court risks paying treble damages (three times the value of proven harm caused by its offense), as well attorney's fees and costs, which include high fees for expensive experts. An antitrust defendant, even if it prevails, cannot recover its attorneys' fees, costs or experts' fees, unless the case was demonstrably frivolous. Antitrust cases are usually very costly to the alleged offender even if it prevails.

[hockey_is_a_choice]

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MINNESOTA MADE HOCKEY, INC.,
Plaintiff,
v.
MINNESOTA HOCKEY, INC.; DISTRICT
OF MINNESOTA AMATEUR HOCKEY,
ASSOCIATION, DISTRICT 6 OF
MINNESOTA AMATEUR HOCKEY
ASSOCIATION; BLOOMINGTON
JEFFERSON HOCKEY BOOSTER CLUB;
BLOOMINGTON KENNEDY HOCKEY
ASSOCIATION; BLOOMINGTON YOUTH
HOCKEY ASSOCIATION; BURNSVILLE
HOCKEY CLUB; CHASKA CHANHASSEN
HOCKEY ASSOCIATION; EDEN HOCKEY
ASSOCIATION; EDEN PRAIRIE HOCKEY
ASSOCIATION; MINNETONKA YOUTH
HOCKEY ASSOCIATION; NEW PRAGUE
HOCKEY ASSOCIATION, INC.; PRIOR
LAKE/SAVAGE HOCKEY ASSOCIATION;
RICHFIELD HOCKEY AUXILIARY;
SHAKOPEE YOUTH HOCKEY
ASSOCIATION; WACONIA HOCKEY
ASSOCIATION, INC.; BRAD HEWITT; ABC
CORPORATION; and JOHN DOE,
Defendants.
Civil No. 10-3884 (JRT/JJK)


MEMORANDUM OPINION AND
ORDER DENYING
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION


In July 2010, defendant District 6 of Minnesota Hockey, Inc. adopted a rule
barring its players from participating in another hockey league while playing for a
District 6 team. Plaintiff Minnesota Made Hockey, Inc. offers league play opportunities
to youth who play in District 6 and brought this motion for a preliminary injunction to
enjoin District 6 and the other defendants from enforcing the rule. Although the Court
finds that Minnesota Made Hockey has shown a likelihood of success on it anti-trust
monopolization claims, the Court denies the preliminary injunction motion because the
plaintiff has not shown irreparable harm, an essential requirement for injunctive relief.

BACKGROUND

All amateur sports in which the United States competes internationally are
organized under a cascading system of regulation – the head of this system is the United
States Olympic Committee (“USOC”). Each sport is governed by a National Governing
Body (“NGB”). Congress authorized this structure when it passed the Amateur Sports
Act (“ASA”) in 1978. 36 U.S.C. §§ 220501 et seq. Congress’ purpose for the structure
and oversight of amateur sports as governed by the ASA included:
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(1) to establish national goals for amateur athletic activities and encourage
the attainment of those goals;
(2) to coordinate and develop amateur athletic activity in the United States,
directly related to international amateur athletic competition, to foster
productive working relationships among sports-related organizations;
. . .
(6) to promote and encourage physical fitness and public participation in
amateur athletic activities;
(7) to assist organizations and persons concerned with sports in the
development of amateur athletic programs for amateur athletes . . . .
36 U.S.C. § 220503.
The NGB for each sport must be a non-profit entity that demonstrates “autonom[y]
in the governance of its sport.” 36 U.S.C. § 220522(a)(1), (5). Circuit courts have
determined that the autonomy required in the statute allows an NGB “the monolithic
control of an amateur sport by the NGB for that sport . . . .” Behagen v. Amateur
Basketball Ass’n of U.S., 884 F.2d 524, 529 (10th Cir. 1989); see also JES Props., Inc. v.
USA Equestrian, Inc., 458 F.3d 1224, 1231 (11th Cir. 2006), cert. denied, 549 U.S. 1205
(2007); Eleven Line, Inc. v. N. Tex. State Soccer Ass’n, Inc., 213 F.3d 198, 204 (5th Cir.
2000).
The NGB for hockey is USA Hockey. Amateur hockey in Minnesota is controlled
by USA Hockey-affiliate Minnesota Hockey. Minnesota Hockey is further divided into
thirteen geographic district associations.1 District 6 controls the South and West metro
areas of the Twin Cities, and is itself a cooperative group of thirteen independent youth
1 There are 13 districts, numbered 1 through 16 with no district 7, 13, or 14.
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hockey associations. Brad Hewitt is the director of District 6. Minnesota Hockey,
District 6, District 6 Director Brad Hewitt, and the cooperative associations organized
under District 6 are, collectively, “defendants” in this litigation.
Plaintiff Minnesota Made Hockey operates a for-profit hockey program in the
same geographic area as District 6. Plaintiff offers a variety of youth hockey
programming services including skate training, speed training, stick handling, passing
and shooting, checking, offensive/defensive strategies, team training, and league and
tournament team services. Plaintiff owns its own hockey rink in Edina and regularly
rents ice time at a rink in Burnsville to conduct this business. These rinks are also in the
geographic area of District 6. As a result, plaintiff and defendants provide similar
services to the same population. Particularly at issue in this litigation are their leagueplay
offerings.
In July of 2010, District 6 adopted a rule (“the outside league rule”):
A player registered with [District 6] may not register or play hockey with
any other organization, association or team during the winter hockey
season, including playoffs. If a player is found to be registered or playing
with another team, the District Director will determine, in their sole
discretion, what sanction shall be assessed which may include, without
limitation, suspension for the remainder of the District 6 winter hockey
season, including playoffs. This rule does not impact any hockey clinics or
outside activities including but not limited to Boy Scouts, Girl Scouts,
Religious events, birthday parties, etc. This rule strictly applies to league
play.
(First McBain Aff. ¶ 33, Sept. 10, 2010, Docket No. 6.) Several of the for-profit hockey
operations in District 6’s area sought clarification about whether players could participate
in their programs without being sanctioned. For example, Joe Dziedzic, a former
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professional hockey player, operates a program that includes a winter 3-on-3 league that
District 6 subsequently exempted from the outside league rule.2
Several players and coaches have left plaintiff’s programs citing the outside league
rule. Many of the departing players had already made substantial deposits for plaintiff’s
programming. Plaintiff seeks a preliminary injunction to enjoin enforcement of the rule
alleging tortious interference with prospective business relations; tortious interference
with existing contractual relations; violations of Minn. Stat. §§ 325D.51 & D.52
(Minnesota’s anti-trust statutes); and violations of 15 U.S.C. §§ 1 & 2 (federal anti-trust
statutes or the “Sherman Act”).

ANAYLSIS

I. Standard of Review

In determining whether a party is entitled to preliminary injunctive relief, the
Court considers “(1) the threat of irreparable harm to the movant; (2) the state of the
balance between this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that [the] movant will succeed on the merits; and
(4) the public interest.” Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.
1981). “The question is whether the balance of equities so favors the movant that justice
requires the court to intervene to preserve the status quo until the merits are determined.”
Id. “It frequently is observed that a preliminary injunction is an extraordinary and drastic
2 3-on-3 Skills Night, Joe Dziedzic Hockey, http://www.jdhockey.com/page/show/35004
(last visited Oct. 3, 2010) (“This is not a ‘league.’ District 6 has approved this program.”)
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remedy, one that should not be granted unless the movant, by a clear showing, carries the
burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis
omitted).

II. Irreparable Harm

To succeed in an action for a preliminary injunction, a movant must first show
irreparable harm that is not compensable with money damages. Travel Tags, Inc. v. UV
Color, Inc., 690 F. Supp. 2d 785, 798 (D. Minn. 2010). Irreparable harm occurs when a
party has no adequate remedy at law, typically because its injuries cannot be fully
compensated through an award of damages. Gen. Motors Corp. v. Harry Brown’s, LLC,
563 F.3d 312, 319 (8th Cir. 2009). Loss of reputation can be irreparable harm. See Med.
Shoppe Int’l, Inc. v. S.B.S. Pill Dr., Inc., 336 F.3d 801, 805 (8th Cir. 2003) (loss of
intangible assets such as reputation and goodwill constitute irreparable injury even
though they are difficult to quantify); Iowa Utils. Bd. v. Fed. Commc’ns Comm’n, 109
F.3d 418, 426 (8th Cir. 1996) (loss of consumer goodwill can be irreparable harm).
Plaintiff alleges the loss of current customers, as well as the loss of reputation and
consumer goodwill, as a result of District 6’s outside league rule. Defendants contend
that a preliminary injunction is not necessary since their own internal grievance policy is
so prolonged that a player would likely not face discipline for violation of the rule during
the hockey season.
The Court finds that plaintiff’s request for a preliminary injunction fails to
demonstrate irreparable harm for several reasons. First, the loss of players from one
season of play is a calculable financial loss. Second, the fact that plaintiff has filed this
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lawsuit is likely known to those players who have chosen to leave plaintiff’s leagues, or
can be communicated to them, so as to preserve the players as potential customers in the
next season. Third, the slow-moving grievance policy means that no individual player is
likely to lose eligibility to play in District 6 during the coming season. As a result, the
Court does not find that the type of harm demonstrated by plaintiff warrants the
“extraordinary and drastic remedy” of a preliminary injunction. Mazurek, 520 U.S. at
972.

III. Balance Between the Parties

Defendants argue that a preliminary injunction would “force Minnesota Hockey to
not only live with, but to participate in, the physical taxing of youth hockey players . . . .”
(Defs.’ Mem. in Opp’n. at 19, Docket No. 14.) However, defendants also negotiated for
other “physically taxing” hockey programs to be exempted from the rule, undermining
this argument. Further, since defendants admit enforcement of the rule will occur so
slowly as to have little impact, it is not clear that enjoining the rule would have any
impact on defendants. Consequently, the Court finds that plaintiff has demonstrated
greater harm will flow from the existence of the rule than would flow from its
enjoinment.

IV. Probability of Success on the Merits

In evaluating the “probability of success on the merits,” the Court need not discern
with mathematical precision, whether the plaintiff has a greater than fifty percent chance
of prevailing. Dataphase, 640 F.2d at 113.
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The equitable nature of the proceeding mandates that the court’s approach
be flexible enough to encompass the particular circumstances of each case.
Thus, an effort to apply the probability language to all cases with
mathematical precision is misplaced. . . . [W]here the movant has raised a
substantial question [as to irreparable harm] and the equities are otherwise
strongly in his favor, the showing of success on the merits can be less. . . .
[W]here the balance of other factors tips decidedly toward plaintiff a
preliminary injunction may issue if movant has raised questions so serious
and difficult as to call for more deliberate investigation.
Id. (footnotes omitted). Further, the plaintiff need not demonstrate a probability of
success on each claim. See e.g., Anheuser-Busch, Inc. v. VIP Products, LLC, 666 F. Supp. 2d
974, 981-82 (E.D. Mo. 2008).

A. Anti-trust claims

Plaintiff alleges federal and state anti-trust violations.3 As an initial matter,
defendants allege they are exempt from anti-trust laws given their status as non-profit
entities, and given the expressed Congressional intent that NGBs have “monolithic”
control over their sport. See Behagen, 884 F.2d at 529. The Fifth, Tenth, and Eleventh
Circuits have found implied immunity arising from the ASA for the NGB of a sport.
Eleven Line, Inc., 213 F.3d at 204; Behagen, 884 F.2d at 529; JES Props., Inc., 458 F.3d
at 1231-32. Given the reluctance to find exemption from anti-trust laws absent clear
intent, however, courts have held that when it is the state association, not the NGB, that
promulgates a rule, exemption does not follow. JES Props., Inc., 458 F.3d at 1230 (“f
the national state associations all over the country had a similar rule, one could infer that
3 Courts have interpreted the Minnesota anti-trust statutes as analogous to federal claims.
See, e.g., Howard v. Minn. Timberwolves Basketball Ltd. P’ship, 636 N.W.2d 551, 557 (Minn.
Ct. App. 2001).
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the rule was necessary to the management of the sport.” (internal citations omitted)); see
also Eleven Line, Inc., 213 F.3d at 204. Here, one local district of one NGB has
promulgated a rule, “suggest[ing] that the rule is not necessary to the local management
of amateur [hockey].” Eleven Line, Inc., 213 F.3d at 204. In accord with courts that have
found no exemption when only one state association has adopted a rule, this Court finds
no exemption from anti-trust liability when one local association has adopted a rule for
only their players. Id.
Second, defendants argue that plaintiff cannot meet the threshold requirements of
the Sherman Act of anti-trust injury and anti-trust standing. See In re Canadian Imp.
Antitrust Litig., 470 F.3d 785, 791 (8th Cir. 2006) (requiring a showing of both antitrust
injury and standing under antitrust laws). The essence of defendants’ arguments on these
points seems to be that there was no competition before the rule, since most players could
participate in both leagues, so the outside league rule has now improved the competitive
market for hockey services, and as a result more players will choose plaintiff since
plaintiff will allow those players to play elsewhere. This argument is both circular and
speculative. The existence of injury is addressed above. The outside league rule changed
the market in a manner antithetical to competition and an argument that the rule will
improve plaintiff’s business prospects runs counter to the record. Further, such a
determination requires the type of speculation not appropriate for consideration of a
preliminary injunction motion. See Goff v. Harper, 60 F.3d 518, 521 (8th Cir. 1995). The
Court thus finds that plaintiff has both injury and standing to bring an anti-trust claim.
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1. 15 U.S.C. § 1: Conspiracy
To establish a claim under Section 1 of the Sherman Act a plaintiff must
demonstrate (1) that there was a contract, combination, or conspiracy; (2) that the
agreement unreasonably restrained trade under either a per se rule of illegality or a rule of
reason analysis; and (3) that the restraint affected interstate commerce. Insignia Sys., Inc.
v. News Am. Mtkg. In-Store, Inc., 661 F. Supp. 2d 1039, 1062 (D. Minn. 2009).
On the first element, the plaintiff must demonstrate concerted, as opposed to
unilateral, action. Willman v. Heartland Hosp. E., 34 F.3d 605, 610 (8th Cir. 1994).
Defendants argue that, despite the number of cooperatives that comprise District 6, it
should benefit from a “single economic entity” designation as defined by the Supreme
Court. Under that analysis
it is perfectly plain that an internal “agreement” to implement a single,
unitary firm’s policies does not raise the antitrust dangers that § 1 was
designed to police. The officers of a single firm are not separate economic
actors pursuing separate economic interests, so agreements among them do
not suddenly bring together economic power that was previously pursuing
divergent goals.
Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 769 (1984).
However, “[m]any . . . courts have resisted single entity arguments involving
sports industries.” Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820, 836 (3d Cir.
2010); see id. at 836 n.14 (discussing cases). Given the conclusion that the ASA does not
automatically exempt a state association from anti-trust liability, even if such an
exemption exists for the NGB, it is not clear that local associations are exempt from § 1’s
conspiracy proscription. See Eleven Line, Inc., 213 F.3d at 204.
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Plaintiff asserts that the enforcement of the outside league rule by the different
cooperative associations comprising District 6 rises to the level of concerted action, but
plaintiff does not address the “single economic entity” issue as defined by the Supreme
Court. Copperweld, 467 U.S. at 769. A review of Minnesota Hockey’s by-laws that are
a part of the record makes clear that each team within a district operates under the
direction of the District Director. For example, the bylaws allow a district to establish a
“district board” but maintain that “if they exist, [they] shall operate as an adjunct part of
[the state NGB].” (Minnesota Hockey Handbook at 25, Hewitt Aff. Ex B, Docket
No. 16.). Additionally, the different associations do not “compete” for players for their
teams within a district; rather players are assigned based on their residence and can only
switch teams through a waiver procedure. (Id. at 27.) These operating procedures lead
the Court to conclude that plaintiff’s conspiracy claim will likely not succeed on the
merits, as defendants appear to be more appropriately deemed a single economic actor.
Therefore, the outside league rule is likely a unilateral action. It is thus unnecessary, at
this stage, for the Court to evaluate the remaining elements of a conspiracy claim.

2. 15 U.S.C. § 2: Monopolization

To succeed on a claim of monopolization under Section 2 of the Sherman Act,
“plaintiff [must] plead and prove that . . . defendant[s] (1) possessed monopoly power in
the relevant market and (2) willfully acquired or maintained that power as opposed to
gaining it as a result of a superior product, business acumen, or historical accident.”
Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 560 (8th Cir. 1998)
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(internal quotation marks omitted). In assessing a monopolization claim, the Court must
first define the relevant market. Id.

a. Market

“The definition of the relevant market [for an anti-trust claim] has two components
– a product market and a geographic market.” Bathke v. Casey’s Gen. Stores, Inc., 64
F.3d 340, 345 (8th Cir. 1995). The determination of the relevant market is a fact driven
analysis where “[t]he question is just where these parties met in the [relevant] market.”
Crown Zellerbach Corp. v. F.T.C., 296 F.2d 800, 804 (9th Cir. 1961). Here, the Court
finds the relevant product market to be “league-play programming.” While plaintiff
offers a number of services related to youth hockey, the parties’ programming overlaps in
the area of league play. The evidence of players in both leagues is a “meeting of the
parties,” thus giving definition to the market. Further, given the demands of family and
school, youth hockey is also limited in geographic scope by the ability of parents to drive
their players to practices and games, thus roughly establishing the geographic market at
issue. See Bathke, 64 F.3d at 345 (“The proper definition of a geographic market is
determined by a factual inquiry into the commercial realities faced by consumers.”
(internal quotations and citations omitted)). Therefore, the Court finds that the relevant
market is youth league hockey programming in the South and West Twin Cities metro
area.
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b. Market Power

“Monopoly power is the power to control prices or exclude competition.” United
States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956). A plaintiff may
establish monopoly power by “showing . . . the actual exclusion of competitors.” Byars
v. Bluff City News Co., 609 F.2d 843, 850 (6th Cir. 1979) (emphasis added); Insignia Sys.,
Inc., 661 F. Supp. 2d at 1057. Here, the rule explicitly states that players may not play in
outside leagues and players are citing the rule as the reason for their defection from
plaintiff’s programs. (E.g., E-mail from Charlie Pizel, First McBain Aff. Ex. F, Docket
No. 6-1). This evidence sufficiently demonstrates defendants’ market power to exclude
competition.

c. Maintenance of Market Power

The final step of a Section 2 analysis is a showing that defendants have maintained
their market power through anti-competitive means as opposed to gaining that power as a
result “of a superior product, business acumen, or historical accident.” Double D
Spotting Serv., Inc., 136 F.3d at 560 (internal quotation marks omitted). “[M]ere
possession of monopoly power is not illegal. . . . However, if a monopolist abuses its
monopoly power and acts in an unreasonably exclusionary manner vis-a-vis rivals or
potential rivals, then § 2 is violated.” Byars, 609 F.2d at 850. The exclusivity
requirement of the outside league rule, coupled with the exemption of certain other
leagues and activities, is adequate to demonstrate a probability of success on this element
for the purposes of a preliminary injunction. See id.
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In sum, plaintiff has proven the existence of a relevant product and geographic
market, the power of defendants over that market, and their maintenance of that power
through anti-competitive means. Therefore, the Court finds that plaintiff has
demonstrated a likelihood of success on the merits of its § 2 monopolization claim.

3. 15 U.S.C. § 2: Attempted Monopolization

To establish that defendants attempted to create a monopoly under Section 2 of the
Sherman Act, plaintiff needs to prove that defendants (1) specifically intended to control
prices or destroy competition in some part of commerce; (2) engaged in predatory or anticompetitive
conduct directed to accomplishing the unlawful purpose; and (3) had a
dangerous probability of success. Trace X Chemical v. Can. Indus., 738 F.2d 261, 265
(8th Cir. 1984). Specific intent can be shown through inference. Gen. Indus. Corp. v.
Hartz Mountain Corp., 810 F.2d 795, 802 (8th Cir. 1987).
As to the first prong, plaintiff provides circumstantial evidence of intent to
monopolize — the rule itself expressly prohibiting players from participating in other
leagues and the minutes of the meetings where specific competitors are named in
reference to the rule. (Meeting Minutes, First McBain Aff. Exs. A–D, Docket No. 6.)
Plaintiff also provides direct evidence that Hewitt stated he wanted to block players from
going to other leagues. (Cobb Aff. ¶7, Docket No 23 (“Mr. Hewitt discussed concerns
regarding the prospective development of winter hockey season [league play] by
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[plaintiff]. I recall that Mr. Hewitt stated that [defendants] ha[ve] to ‘stop [plaintiff]’
from ‘taking our kids’ . . . .”).)4
Regarding the second prong, “[a]nticompetitive conduct is conduct without
legitimate business purpose that makes sense only because it eliminates competition.
When a valid business reason exists for the conduct alleged to be predatory or anticompetitive,
that conduct cannot support the inference of a Sherman Act violation.”
HDC Med., Inc. v. Minntech Corp., 474 F.3d 543, 549–50 (8th Cir. 2007) (alteration
omitted) (internal quotation marks and citation omitted). The outside league rule
expressly prohibits players from purchasing services from a competitor. Defendants
assert that minimizing scheduling conflicts and promoting player well-being are valid
justifications for the rule. However, since they exempted other potentially conflicting
and physically taxing programs from the rule, the Court finds that the inference of an
anti-trust violation is not overcome.
Regarding the third prong, a dangerous probability of success is evidenced by the
actual defection of players citing the rule. (See E-mails, First McBain Aff., Exs. G–K,
Docket No. 6.) In sum, the Court finds that plaintiff has demonstrated a likelihood of
success on the merits of its claim of attempted monopolization.
4 Defendants moved to strike the Cobb Affidavit and the Second McBain Affidavit
because they were not timely submitted. Given the time constraints and discovery limitations
involved in pursuing an early preliminary injunction and the presence of other evidence
supporting the evidence submitted in the affidavits, the Court will deny the motion to strike.
CASE 0:10-cv-03884-JRT-JJK Document 66 Filed 01/04/11 Page 15 of 19
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4. Conspiracy to Monopolize

Plaintiff alleges conspiracy to monopolize and it is unclear to the Court how this
charge is different from the conspiracy to monopolize under 15 U.S.C. § 1. Regardless,
this claim is likely to fail for lack of concerted action.

B. State Claims

Defendants argue that the state claims asserted in plaintiff’s motion are preempted
by federal law. Courts have held that the legislative history of the ASA indicates that
Congress did not intend to provide individual athletes a private cause of action. Lee v.
U.S. Taekwondo Union, 331 F. Supp. 2d 1252, 1256 (D. Haw. 2004) (emphasis added).
Since this case does not involve an individual athlete, the Court finds that plaintiff’s state
law claims are not preempted.

1. Tortious interference with prospective business relationships

Tortious interference with prospective business relationships involves the
intentional and improper (1) inducing or otherwise causing a third person not to enter into
or continue the prospective relation or (2) preventing the other from acquiring or
continuing the prospective relation. United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628,
633 (Minn. 1982). Discouraging prospective customers can constitute such interference.
Golden Valley Lutheran Coll. v. City of Golden Valley, No. CO-91-1189, 1991 WL
263472, at *3 (Minn. Ct. App. Dec. 17, 1991) (noting that evidence that a city manager
verbally discouraged potential buyers of real estate was adequate to survive dismissal for
failure to state a claim). Plaintiff must establish that the interference actually caused the
CASE 0:10-cv-03884-JRT-JJK Document 66 Filed 01/04/11 Page 16 of 19
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third person to not enter into the prospective relation. Hunt v. Univ. of Minn., 465
N.W.2d 88, 96 (Minn. Ct. App. 1991).
Here, plaintiff presents sufficient evidence of interference. Plaintiff notes that of
thirteen players registered in one league, all but one dropped out since the District 6 rule
was promulgated. (Second McBain Aff. ¶ 4, Sept. 30, 2010, Docket No. 22; see, e.g., Email
from Dan Brandt, id., Ex. A.) Further, plaintiff provides evidence that defendants’
conduct was precisely designed to “eliminate competition during the winter hockey
season . . . .” (Cobb Aff. ¶ 6, Docket No. 23; see also id. ¶ ; see also United Wild Rice,
313 N.W.2d at 633 (noting that competition is favored in the law so actions that increase
competition are not improper). The outside league rule explicitly discourages players
from joining plaintiff’s leagues by making them ineligible for the District 6 leagues. See
Golden Valley Lutheran Coll., 1991 WL 263472, at *3. The rule, therefore, has the intent
and purpose of eliminating competition. Further, the wording of the rule and the
consequent withdrawal of players from plaintiff’s leagues citing the rule are sufficient to
demonstrate actual interference. See Hunt, 465 N.W.2d at 96. Therefore, on its claim of
tortious interference with prospective business relationships, the Court finds that plaintiff
has demonstrated a likelihood of success on the merits.

2. Tortious interference with contract

To succeed on a claim of tortious interference with contract, plaintiff must show
(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract;
(3) intentional procurement of its breach; (4) without justification; and (5) damages.
CASE 0:10-cv-03884-JRT-JJK Document 66 Filed 01/04/11 Page 17 of 19
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Lisec Am., Inc. v. Wiedmayer, No. 05-1082, 2005 WL 3143985, at *4 (D. Minn. Nov. 23,
2005) (citing Kallok v. Medtronic, Inc., 573 N.W.2d 356, 362 (Minn. 1998)). Defendants
assert that any interference is justified due to good faith protection of their own interests
in minimizing scheduling conflicts and promoting player well-being.
Plaintiff has provided evidence that defendants knew it had contracts not only with
some of District 6’s players, but some of its “best” players and coaches. (See Cobb Aff.
¶ 6, Docket No. 23; E-mail from Todd Blackstone, Second McBain Aff., Ex. C, Docket
No. 22 (discussing coaches who were “blacklisted” for their involvement with plaintiff).)
Evidence of intent is present in the desire to keep plaintiff from “taking” District 6’s
players. (Cobb Aff. ¶ 6, Docket No. 23; see also id. ¶ 8.) Damages are the lost revenue
from players who have withdrawn from plaintiff’s leagues citing the outside league rule.
The Court finds implausible the offered justification that District 6 acted to reduce
scheduling conflicts and promote player well-being, given that defendants exempted
other programs from the rule, (First McBain Aff. ¶ 58, Docket No. 6 (discussing the Joe
Dziedzic Hockey exemption)), and did not require players to refrain from any other type
of athletic competitions that might cause scheduling conflicts or diminish their physical
well-being. The Court, therefore, finds that plaintiff has demonstrated adequate
probability of success on the merits for its claim of tortious interference with contracts.

V. Public interest

The public interest factor is balanced.

[High Off The Glass]

I know this a Brad Hewitt Thread, but Bernie puts a ton of effort into these kids.

He has organized a bunch of events for these players off the ice sleep overs at the rink

, Movies, flying feild trips, lake days, go carting, golfing and on and on. A guy that is in it just for the money does not do that stuff.

High off Glass, We get it you don't like the guy, but you go out of your way to attack this mans character and it is wrong. You might want to take a look in the mirror.

It cost $20 a head to get in for the sleepover. Never miss a chance for a money making opportunity. When did I "attack" his charactor?

[popeye]

My son has had two sleep overs with his team and never been charged a penny. Of course you are not part of the team so how would you know.

I'm sorry that your son got cut, but bitterness is not good for your health. Change your tune.

[polyman22]

High on grass take a pill.

Back on to the topic. My 2 cents, Brad blew it.

[iwearmysunglassesatnight]

[quote="popeye"]My son has had two sleep overs with his team and never been charged a penny. Of course you are not part of the team so how would you know.

I'm sorry that your son got cut, but bitterness is not good for your health. Change your tune.[/quote]

PIPE CLEANER one day you will get it. Slow down my little man your tiny and will hopefully see the big picture. You just said you had your son for two sleepovers at the rink. There is help nearby, I have been there. Throw some water in your face. Caring and McMoney or McWin are not in the same category.

[High Off The Glass]

My son has had two sleep overs with his team and never been charged a penny. Of course you are not part of the team so how would you know.

I'm sorry that your son got cut, but bitterness is not good for your health. Change your tune.

When in doubt pull out "oh your kid got cut" line. That one is getting a little old. Once again poopeye, how is anything I said "bitter" or "attacking BM's charactor"? Please explain or enlighten me.

[PWD10]

While I have no dogs in this battle.

Isn't there a bunch of governing bodies that limit your ability to play on more then one hockey team? I know for a fact that Wisconsin prohibits you from playing HS and travel and I am pretty certain Michigan does too. I don't think you can play Youth travel and HS in Minnesota but am not certain. I know some states have no such issue. So for all intents the precedent has been set that a governing body can limit the players ability to play for other then one organization.

One might be able to argue that due to MH is underwriting and responsible for the insurance that they are trying to limit their exposure to possible concussions and other serious injuries. Whether it would pass muster or not I don't know, but due to the recent spate of concussions and head injuries that have been made public by a whole host of organizations D6 is maybe being proactive in trying to take care of their players.

The way I understand it MH/D6 has said if you play for another organization you can't play for us. This doesn't prevent that player playing from MM but it will not be allowed under their watch.

I am surprised MM and the Wisconsin Fire didn't go in as co-plantiffs.

Truthfully I can see both sides of this coin. I do think it is frivelous to name the organizations under D6 individually in the lawsuit as they are just following their districts direction.

It's late and it is just my .02

If I was a judge give it a one year cooling off period and then see if the two organizations can't come to some agreement.

[trippedovertheblueline]

While I have no dogs in this battle.

Isn't there a bunch of governing bodies that limit your ability to play on more then one hockey team? I know for a fact that Wisconsin prohibits you from playing HS and travel and I am pretty certain Michigan does too. I don't think you can play Youth travel and HS in Minnesota but am not certain. I know some states have no such issue. So for all intents the precedent has been set that a governing body can limit the players ability to play for other then one organization.

One might be able to argue that due to MH is underwriting and responsible for the insurance that they are trying to limit their exposure to possible concussions and other serious injuries. Whether it would pass muster or not I don't know, but due to the recent spate of concussions and head injuries that have been made public by a whole host of organizations D6 is maybe being proactive in trying to take care of their players.

The way I understand it MH/D6 has said if you play for another organization you can't play for us. This doesn't prevent that player playing from MM but it will not be allowed under their watch.

I am surprised MM and the Wisconsin Fire didn't go in as co-plantiffs.

Truthfully I can both sides of this coin. I do think it is frivelous to name the organizations under D6 individually in the lawsuit as they are just following their districts direction.

It's late and it is just my .02

If I was a judge give it a one year cooling off period and then see if the two organizations can't come to some agreement.

Why you make sense, I am not so sure the parties in this can. Hence their lawsuit.

[Averageone99]

Seems pretty simple to me Brad doesn't like what Minnesota Made Hockey is doing so he made up a rule. Bernie didn't like the rule and because in a nation of laws he took Minnesota Hockey to court which is his right.

I talked with Bernie and believe me he will take this as far as he can to win his case. He said that someone has to stand up to the Brad Hewitts in Minnesota Hockey. Some of you keep say he all about the money, I just don't see it. No one works for free. I would tell you he has been the best coach my three boys have ever had.

America is Great!!! How about the Canadians dropping one to the Russians.

[old goalie85]

Tell Bernie to go back to Wyoming !!!!!

[Ugottobekiddingme]

Tell Bernie to go back to Wyoming !!!!!

[Huh]...still feeling the effect of the MM squirts taking FLHS to task. How do you really feel?

[gorilla1]

For those that still back BH in this matter, I am curious to know why other than having a dislike for BM? The court did make one thing perfectly clear in his decision--if this case comes down to a question of whether BH had a legitimate reasOn for the rule, BH loses. The court very rationally and clearly knocked down BH reasons one by one.

[boardguy1998]

For those that still back BH in this matter, I am curious to know why other than having a dislike for BM? The court did make one thing perfectly clear in his decision--if this case comes down to a question of whether BH had a legitimate reasOn for the rule, BH loses. The court very rationally and clearly knocked down BH reasons one by one.

I have known Brad for years, not a guy you can trust at all. I have also dealt with Bernie, while he has his faults, he is an honest guy. This was all Brad, as he has done many times in D6, being a dictator and doing what he wants. I hope he gets whats coming to him, and we get a real leader for D6, one that actually is about the kids and not his own agenda.

[Doglover]

IMO they deserve one another. Should be fun watching them battle it out for years in court.

[elliott70]

Brad is a firend of mine.
He works hard for kids in hockey and has done some great things...
if this was a mistake, so be it...
I, for one, have made a mistake.
He is putting in the effort to do something.