NATIONAL COLLEGIATE ATHLETIC ASSOCIATION V. MUHAMMED LASEGE AND UNIVERSITY OF LOUISVILLE
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TO BE PUBLISHED
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION
V.
APPEAL FROM COURT OF APPEALS
2001 -CA-0048-I
JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
2000-Cl-7609
MUHAMMED LASEGE AND
UNIVERSITY OF LOUISVILLE
RESPONDENTS
OPINION AND ORDER GRANTING MOTION FOR CR 65.09 RELIEF
OPINION BY JUSTICE KELLER
I. INTRODUCTION
The National Collegiate Athletic Association (“NCAA”)’ moves this Court for
interlocutory relief under CR 65.09 and asks us to vacate the Jefferson Circuit Court’s
temporary injunction which (1) declares Respondent Lasege eligible to participate in
NCAA intercollegiate basketball and (2) prohibits the NCAA from imposing future
sanctions against Lasege or Respondent University of Louisville (“U of L”) pursuant to
its NCAA Bylaw 19.8 restitutionary powers. We find that the NCAA has demonstrated
‘The NCAA is a voluntary association of approximately 1,200 public and private
colleges and universities, conferences, organizations and individuals which have joined
together for purposes of administering and regulating intercollegiate athletic
competition.
“extraordinary cause” justifying CR 65.09 relief and we vacate the temporary injunction
in its entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND
Lasege, a citizen of Nigeria, a country in West Africa, enrolled at the University of
Louisville during the 1999-2000 academic year with the intention of playing for its
intercollegiate men’s basketball team. In March 2000, U of L declared Lasege ineligible
to play intercollegiate basketball because he had previously entered into professional
basketball contracts and had received preferential benefits which compromised his
amateur status. U of L asked the NCAA to reinstate Lasege’s eligibility because of
Lasege’s ignorance of NCAA regulations and other mitigating factors. The NCAA’s
Student-Athlete Reinstatement Staff (“Staff’) found that Lasege had violated its Bylaws
relating to contracts and compensation,2 the use of agents3 and preferential treatment,
‘See NCAA Division I Bylaws $j 12.251 (Contracts and Compensation General Rule):
An individual shall be ineligible for participation in an
intercollegiate sport if he or she has entered into any kind of
agreement to compete in professional athletics, either orally
or in writing, regardless of the legal enforceability of that
agreement.
Id.
‘See NCAA Division I Bylaws 5 12.3.1 (Use of Agents - General Rule):
An individual shall be ineligible for participation in an
intercollegiate sport if he or she ever has agreed (orally or in
writing) to be represented by an agent for the purpose of
marketing his or her athletics ability or reputation in that
sport. . . .
Id.
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benefits, or services,4
and declined U of L’s reinstatement request “[blased on the case
precedent and the subcommittee’s December 1999 amateurism guidelines involving
contracts and professional teams. Specifically, the Staff focused on [Lasege’s]
decisions to sign explicit contracts with a sports agent and a professional team.” The
NCAA described the factual basis for its findings as follows:
Prior to enrollment, SA [Student Athlete] asserts he left his
home in Nigeria to go to Russia in order to obtain a visa to
come to the U.S. so that SA could go to school. SA was
provided with an airline ticket ($800) to Russia from Nigeria
by the Russian Sports Agency, New Sport. While in Russia,
SA signed a contract with New Sport in Russia to represent
SA regarding playing basketball for the professional club
system in Moscow. As a result of the New Sport three-year
contract, SA was to receive a salary of $9,000 a year with
additional monetary incentives based on athletic
performance. SA asserts he did not receive a salary but did
receive living accommodations and meals for approximately
18 months valued at $1 ,I 70. SA was provided a driver, a
cook, a visa to Russia ($70) clothing ($75) and a round-trip
ticket from Moscow to Nigeria ($798). SA signed a second
contract with a professional basketball team, which was to
provide SA with a salary, furnished apartment, utilities but no
telephone, two round-trip airline tickets to return to Nigeria
and a car for personal needs if SA should obtain a Russian
driver’s license. SA asserts he did not receive a salary from
the second contract. SA competed with two junior teams in
13 contests. One of the teams was a junior team of the
professional team SA signed the second contract with, and
4ti NCAA Division I Bylaws § 12.1.1 (Amateur Status):
An individual loses amateur status and thus shall not be
eligible for intercollegiate competition in a particular sport if
the individual:
(a) Uses his or her athletics skill (directly or indirectly) for
pay in any form in that sport;
Id.; NCAA Division I Bylaws § 12.1 .I .I (Prohibited Forms of Pay) & § 12.1 .I .I .6
(Preferential Treatment, Benefits, or Services) (defining “pay” as used in § 12.1 .I).
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both junior teams were financially supported by professional
teams. SA practiced with two professional teams but did not
compete. SA was provided an airline ticket ($750) and visa
($50) to Canada from Moscow by an individual in Canada
who knew of SA due to his athletics ability, which constituted
a violation of 12.1 .I .6. This individual provided SA with
lodging and meals ($2,000) for approximately eight months.
Individual also provided SA with automobile transportation to
and lodging while at institution for an unofficial visit
(!§342.50), airline tickets, meals and lodging at another
collegiate institution for an unofficial visit ($538) and a oneway airline ticket to institution for initial college enrollment
($101.50) for the 1999-00 academic year.
U of L appealed the Staffs decision to the NCAA’s Division I Subcommittee on
Student-Athlete Reinstatement. The Subcommittee, which consists of representatives
from NCAA Division I member institutions, found that Lasege’s Bylaw violations
exhibited a clear intent to professionalize and affirmed the Staffs decision denying
reinstatement.
On November 27, 2000, Lasege filed a Motion and Complaint in Jefferson Circuit
Court seeking a temporary injunction requiring the NCAA to reverse its decision as to U
of L’s request and to immediately reinstate his eligibility to play basketball at U of L.
After conducting an evidentiary hearing, the trial court found that the complaint
presented a substantial question as to whether the NCAA’s ruling was arbitrary and
capricious. Specifically, the trial court: (1) suggested that the NCAA had ignored what it
described as “overwhelming and mitigating circumstances,” including economic and
cultural disadvantages, a complete ignorance of NCAA regulations, and elements of
coercion associated with execution of the contracts; (2) believed the NCAA’s
determination to conflict with the NCAA’s own amateurism guidelines and past eligibility
determinations regarding athletes who had engaged in similar violations; (3) expressed
its doubts about whether the first contract signed by Lasege was legally enforceable as
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an agency contract both because of Lasege’s minority at the time he executed it and
because the trial court disputed that the contract created an agency relationship; and
(4) opined that a clear weight of evidence suggested Lasege committed these violations
not in order to become a professional athlete, but only to obtain a visa which would
allow him to become a student-athlete in the United States.
The trial court found that Lasege would suffer substantial collateral
consequences from an erroneous and adverse eligibility determination, balanced the
equities in favor of Lasege, and ordered “the NCAA and its members . . . to immediately
restore the intercollegiate eligibility of Muhammed Lasege so as to allow him to
participate in all NCAA basketball contests.” The trial court also addressed U of L’s
concern that the NCAA could impose sanctions under NCAA Bylaw 19.8 if the
injunction was subsequently vacated. NCAA Bylaw 19.8 allows the NCAA to seek
restitution from member institutions who permit student-athletes found ineligible by the
NCAA to compete for their athletic teams pursuant to court orders which are later
vacatede5 The trial court therefore “declare[d] that NCAA Bylaw 19.8 is invalid because
it prevents parties from availing themselves of the protections of the courts” and
ordered:
. . . that the University of Louisville shall abide by this
injunction and shall not prohibit Muhammed Lasege from
engaging in intercollegiate basketball;
IT IS FURTHER ORDERED AND ADJUDGED that the
NCAA and its members are hereby ordered to take no action
to prevent or interfere with the University of Louisville’s
ability to abide by this Order by attempting to enforce NCAA
Bylaw 19.8.
‘NCAA Division I Bylaws § 19.8 (Restitution) (reproduced in full in the Appendix
to this Opinion and Order).
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After the trial court entered the temporary injunction, Lasege played basketball for U of
L during the 2000-2001 season.
While Lasege played, the NCAA sought interlocutory relief under CR 65.07, but
the Court of Appeals found the trial court’s findings supported by substantial evidence
and denied the NCAA’s motion. The Court of Appeals did not address the merits of that
portion of the temporary injunction which prohibited the NCAA from seeking restitution
under NCAA Bylaw 19.8 because “[alpplication of the bylaw becomes an issue in this
case only in the event that the injunction were to be set aside or a permanent injunction
were denied in this matter.”
The NCAA thus seeks interlocutory relief from this Court.
III. DISCUSSION
III(A) - STANDARD OF REVIEW
Cases involving challenges to eligibility decisions made by voluntary athletic
associations such as the Kentucky High School Athletic Association (“KHSAA”) or, as in
this case, the NCAA, pose special difficulties for our circuit courts. Such cases are
invariably time-sensitive as they are typically filed in the midst of an athletic season,
often on the cusp of postseason competition. Because athletic seasons are usually
completed before either a final decision on the merits by the trial court or appellate
review, a circuit court’s ruling granting or denying a temporary injunction will typically, as
a practical matter, decide the issue of whether a student-athlete competes. In KHSAA
v. Hookins Co. Board of Education,’ the Court of Appeals recognized the inherent
limitations courts face in such determinations:
6Ky.App., 552 S.W.2d 685 (1977).
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This case demonstrates that courts are a very poor place
in which to conduct interscholastic athletic events, especially
since this type of litigation is most likely to arise at playoff or
tournament time. If an injunction or restraining order is
granted erroneously, it will be practically impossible to
unscramble the tournament results to reflect the ultimate
outcome of the case.7
Since, by definition, temporary injunctions attempt to place the parties in a
position most likely to minimize harm before the court can finally decide the issues
raised in a complaint, trial courts are asked to make significant decisions with less-thancomplete information. As such, these determinations differ from most decisions
reached by trial courts. There are no “drive-through windows” on courthouses for a
good reason -judicial decisionmaking demands thought and deliberation of all
relevant evidence.
The problem is further magnified by the fact that challenges to a voluntary
athletic association’s eligibility decision typically present issues which require
considerable reflection. In general, the members of such associations should be
allowed to “paddle their own canoe” without unwarranted interference from the courts8
Nonetheless, relief from our judicial system should be available if voluntary athletic
associations act arbitrarily and capriciously toward student-athletes.g Thus, cases
involving challenges to a voluntary athletic association’s eligibility decisions involve
‘1d. at 690.
‘See Id. at 687.
9See Id.; 6 Am.Jur.2d (Associations and Clubs) § 28 (“[Wlhile courts ordinarily
refrain from reviewing decisions of unincorporated private associations, if the
organization acts inconsistently with its own rules, its action may be sufficiently arbitrary
to invite judicial review.” Id.); Indiana Hiqh School Athletic Association v. Carlberg, 694
N.E.2d 222, 230-232 (Ind. 1997) (finding review of IHSAA decisions subject to “arbitrary
and capricious” review because the Association occupies the role of a quasi-state actor
with respect to individual student-athletes).
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difficult assessments of a plaintiffs probability of succeeding on his or her claim and
complex balancing of competing interests. Because the values a trial court assigns to
these competing interests will depend, in part, upon the trial court’s assessment of the
probability that the athletic association’s determination was correct, a circuit court’s
ruling as to temporary injunctive relief largely hinges upon its preliminary determination
of the merits of the plaintiffs claim. Claimants will generally demonstrate potential
injuries which justify injunctive relief only when they can show a substantial probability
‘that the athletic association’s ruling was arbitrary and capricious.‘o “Longshot” claims
which have little hope of prevailing when the buzzer sounds will not justify injunctive
relief.
The deferential standard under which appellate courts review - technically
interlocutory but pragmatically final - circuit court determinations as to temporary
injunctive relief in these cases only heightens the importance of sound decisionmaking
at the circuit court level. Under CR 65.07, the Court of Appeals may reverse such
determinations only where it appears that the circuit court has made clearly erroneous
findings unsupported by substantial evidence.” Interlocutory relief in this Court is
“a KHSAA v. Hopkins Co. Bd. of Educ., supra note 6 at 690 (“In almost every
instance, the possible benefits flowing from a temporary restraining order or injunction
will be far outweighed by the potential detriment to the Association, as well as to
member schools who are not before the court. Only in rare instances would the granting
of the temporary restraining order or injunction be a proper remedy.” Id.).
“See Maupin v. Stansbury, Ky.App., 575 S.W.2d 695, 697-8 (1978):
Because the injunction is an extraordinary remedy,
sufficiency of the evidence below must be evaluated in light
of both substantive and equitable principles. Realizing that
the elements of CR 65.04 must often be tempered by the
equities of any situation, injunctive relief is basically
(continued...)
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appropriate only where we find that it is warranted by “extraordinary cause.” Although
circuit courts exercise a great deal of discretion in these cases, we provide for
interlocutory review of circuit court orders granting or denying interlocutory relief to
ensure that the trial courts consider all relevant factors in their decisions.
While additional review by this Court is limited to those cases which demonstrate
“extraordinary cause,“12
abuses
of discretion by the courts below can supply such
cause. In Commonwealth of Kentuckv Revenue Cabinet v. Picklesimer,‘3 this Court
addressed the Revenue Cabinet’s CR 65.09 motion seeking dissolution of a temporary
injunction which prohibited it from preventing Picklesimer from re-taking elected office
despite ongoing removal proceedings from a prior term.14 The Court accepted the
Cabinet’s argument that CR 65.09 relief could be justified if a trial court’s findings were
clearly erroneous, but denied relief because it found the trial court’s findings supported
by substantial evidence.15
“(...continued)
addressed to the sound discretion of the trial court. Unless
a trial court has abused that discretion, this Court has no
power to set aside the order below. . . . [I]t is our opinion that
the abuse of discretion test is equally applicable in our
review of temporary injunctions . . . .
Id. (citations omitted).
‘*CR 65.09.
“KY., 879 S.W.2d 482 (1994).
141d. at 483. The narrow temporary injunction did not prohibit the Revenue
Cabinet from again removing Picklesimer from office, and “specifically stated that such
issue is one to be determined at a later date.” Id. at 484.
lSld. at 484:
Under all the circumstances, and with the more than
(continued...)
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In this case, we find that the trial court abused its discretion by: (1) substituting
its judgment for that of the NCAA on the question of Lasege’s intent to professionalize;
(2) finding that the NCAA has no interest in this case which weighs against injunctive
relief; and (3) declaring NCAA Bylaw 19.8 invalid.
This combination of clearly
erroneous conclusions constitutes extraordinary cause warranting CR 65.09 relief.
III(B) - REINSTATEMENT OF LASEGE’S ELIGIBILITY
The trial court made a preliminary determination that “the arbitrary nature of the
enforcement of its by-laws by the members of the NCAA and its committees raises a
substantial issue concerning the merits of their rules.”
The trial court further found that
“Mr. Lasege faces irreparable harm because without reinstatement, he will not be able
to continue in classes, and may be deported back to Nigeria.” Although we agree with
the trial court’s assessment of the magnitude of the harm from an erroneous NCAA
eligibility decision, we find that Lasege’s chances of prevailing on the merits of his claim
are too remote to justify injunctive relief. We believe the trial court clearly erred when
assessing the merits of Lasege’s claim.
In our opinion, the trial court wrongfully substituted its judgment for that of the
NCAA after it analyzed the evidence and reached a different conclusion as to Lasege’s
intent to professionalize. The mere fact that a trial court considering mitigating
adequate fact-finding and legal conclusions of the trial court,
we cannot do else but conclude that since all of the criteria
set forth in Mauoin were considered and met, the action of
the trial court in granting the temporary injunction was not
clearly erroneous. Therefore, the Cabinet has not met its
burden in this argument, of demonstrating extraordinary
cause.
Id.
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evidence might disagree with the NCAA’s factual conclusions does not render the
NCAA’s decision arbitrary or capricious. We have held that a ruling is arbitrary and
capricious only where it is “clearly erroneous, and by ‘clearly erroneous’ we mean
unsupported by substantial evidence.“16
Here, the NCAA’s ruling has strong evidentiary
support - Lasege unquestionably signed contracts to play professional basketball and
unquestionably accepted benefits. Contrary to the trial court’s allegations of disparate
treatment, the NCAA submits that no individual has ever had his or her eligibility
reinstated after committing a combination of rules violations akin to those compiled by
Lasege. The NCAA’s eligibility determinations are entitled to a presumption of
correctness - particularly when they stem from conceded violations of NCAA
regulations. Although we recognize that Lasege’s mitigation evidence is relevant to
review of the NCAA’s determination, we believe the trial court simply disagreed with the
NCAA as to the weight which should be assigned to this evidence. Accordingly, we
believe the trial court abused its discretion when it found that Lasege had a high
probability of success on the merits of his claim.
We also find “extraordinary cause” warranting CR 65.09 relief in the trial court’s
balancing of the equities. The trial court’s order contrasts Lasege’s risk of irreparable
injury with the NCAA’s interest and states that “[t]he NCAA, on the other hand, will not
suffer any potential harm by this court’s order.” We find this conclusion clearly
erroneous, and accordingly believe the trial court’s subsequent balancing of the equities
suffers from an inherent computational error.
16Thurman
v. Meridian Mutual Ins. Co., Ky., 345 S.W.2d 635, 639 (1961).
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The NCAA unquestionably has an interest in enforcing its regulations and
preserving the amateur nature of intercollegiate athletics.17
As the trial court entered a
temporary injunction on the basis of its preliminary findings, the trial court could
eventually determine that the NCAA properly denied the reinstatement request. If that
is the case, the trial court’s order would have erroneously allowed an ineligible player to
participate in intercollegiate athletics. While the NCAA has no identifiable interest in the
arbitrary application of its regulations to the detriment of a student-athlete, it certainly
has an interest in the proper application of those regulations to ensure competitive
equity.
Here, it appears that the trial court considered the equities of only one party Lasege - and it overvalued that interest with an unrealistic finding as to Lasege’s
probability of success on the merits. The trial court could not possibly have weighed
the NCAA’s interests, because it did not believe the NCAA had any interest for it to
consider. Nor does it appear that the trial court gave any consideration to the possible
injury to those programs and student-athletes who, because of the temporary
injunction, would compete against a U of L Men’s Basketball team with Lasege on the
roster.
In fact, as will be discussed in Section III(C), the trial court stripped the NCAA
of even the somewhat ham-fisted, post-hoc restitutionary measures it uses to correct
competitive inequities created by court orders.
We cannot conclude that the trial
court’s determination was supported by substantial evidence when it so clearly
17&e NCAA v. Jones, 1 S.W.3d 83, 85 (Tex. 1999) (“The NCAA. . . [was]
created for the stated purpose of preserving the proper balance between athletics and
scholarship in intercollegiate sports. Among other things, the NCAA promulgates rules
and regulations to prevent any member institution from gaining an unfair competitive
advantage in an athletic program.” Id.).
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mischaracterized the equities before balancing them. Logically speaking, a conclusion
is flawed when it flows from an invalid premise. We believe this flaw in the trial court’s
conclusion constitutes clear error and warrants CR 65.09 relief.
We find clearly erroneous both the trial courts finding regarding Lasege’s
probability of success on the merits and its failure to evaluate the opportunity costs to
the NCAA and others when balancing the equities. Accordingly, we vacate that portion
of the temporary injunction which declares Lasege eligible to participate in NCAA
intercollegiate
basketball.
III(C) - PROHIBITION OF NCAA BYLAW 19.8 RESTITUTION
We note some disagreement among the parties as to the nature of the trial
court’s ruling with respect to NCAA Bylaw 19.8. Lasege argues that the trial court
prohibited the NCAA from imposing restitutionary sanctions only during the pendency of
the temporary injunction. As the bylaw itself allows the NCAA to seek restitution only if
the temporary injunction is dissolved, we disagree with this characterization. The
language of the order also suggests otherwise:
The Court also understands that U of L fears that Bylaw
19.8 could be enforced against it. That bylaw permits
sanctions to be imposed by the NCAA against member
schools if the Court order should be set aside or reversed in
some manner. This Court has never seen such an
agreement between members of an association that allows
sanctions for turning to the courts for assistance when a
perceived wrongdoing exists. See Kentucky High School
Athletic Ass’n v. Hopkins Co. Bd. of Educ., Ky.App., 552
S.W.2d 685 (1977); Cracker v. Tennessee Secondary
School Athletic Ass’n, 908 F.2d 972 (6’h Cir. 1990). The
judicial power of this Commonwealth cannot be thwarted by
members of an association such as the NCAA. Craft v.
Commonwealth, Ky., 343 S.W.2d 150 (1961). Consequently,
this court declares that the NCAA Bylaw 19.8 is invalid
because it prevents parties from availing themselves of the
protections of the courts.
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in context, therefore, the trial court’s order “that the NCAA and its members are hereby
ordered to take no action to prevent or interfere with the University of Louisville’s ability
to abide by this Order by attempting to enforce NCAA Bylaw 19.8” declares an NCAA
Bylaw invalid within the Commonwealth of Kentucky and insulates U of L from
restitutionary sanctions for allowing Lasege to participate as a member of its
intercollegiate men’s basketball team.
At the outset, we observe that the trial court’s order gives no indication that it
engaged in a CR 65.04 analysis before enjoining the NCAA in this regard, and that
reason standing alone would require us to vacate this portion of the injunction. It
appears that the trial court included this prophylactic measure, at U of L’s urging, simply
to facilitate its other order by permitting U of L the “risk-free” right to allow Lasege to
play basketball. In any event, we can find no interest which would justify such injunctive
relief. Accordingly, we find that the trial court abused its discretion when it prohibited
the NCAA from seeking NCAA Bylaw 19.8 restitution.
By becoming a member of the NCAA, a voluntary athletic association, U of L
agreed to abide by its rules and regulations. NCAA Bylaw 19.8 is one of those
regulations, and it specifically provides that the NCAA can attempt to restore
competitive equity by redistributing wins and losses and imposing sanctions upon a
member institution which allows an ineligible player to participate under a subsequentlyvacated court order, even if that order requires the institution to allow the player to
participate. As the Indiana Supreme Court recently noted when addressing an identical
issue concerning the Indiana High School Athletic Association (“IHSAA”)‘s restitution
rule, such contractual risk allocation is no stranger to the courts:
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Contracts frequently allocate risks of unfavorable litigation
results. For example, contracting parties agree that should a
judgment, order or settlement prohibit a party from enjoying
the benefits of the agreement, that party shall have no
further obligations with respect to the contract. Doctors and
attorneys purchase insurance so as to protect themselves
from the consequences of lawsuits. Couples may sign
prenuptial agreements dictating what is to occur should a
trial judge determine that the prenuptial agreement is
unenforceable. Such agreements show no disrespect to the
courts.
We presume that the judgments of our trial courts are
correct and valid - but sometimes they are wrong. If a
school wants to enjoy the benefits of membership in the
IHSAA, the school agrees to be subject to a rule that permits
the IHSAA to require the school to forfeit victories, trophies,
titles and earnings if a trial court improperly grants an
injunction or restraining order prohibiting enforcement of
IHSAA eligibility rules. Such an agreement shows no
disrespect to the institution of the judiciary.
Member schools voluntarily contract to abide by the rules
of the organization in exchange for membership in the
association. One of those rules is the Restitution Rule.
Undeniably, the Restitution Rule imposes hardship on a
school that, in compliance with an order of a court which is
later vacated, fields an ineligible player. On the other hand,
use of an ineligible player imposes a hardship on other
teams that must compete against the teams fielding
ineligible players. While schools will contend that is unfair
when they have to forfeit victories earned with an ineligible
player on the field because they complied with a court order,
competing schools will reply that it is unfair when they have
to compete against a team with an ineligible student athlete
because a local trial judge prohibited the school or the
IHSAA from following the eligibility rules. The Restitution
Rule represents the agreement of IHSAA members on how
to balance those two competing interests. The Restitution
Rule may not be the best method to deal with such
situations. However, it is the method which the member
schools have adopted. And in any event, its enforcement by
the IHSAA does not impinge upon the judiciary’s function.”
“IHSAA v. Reyes, 694 N.E.2d 249, 257-8 (Ind. 1997). See also Cardinal
Mooney High School v. McClellan, 467 N.W.2d 21, (Mich. 1991):
(continued...)
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In fact, contrary to the belief of the trial court the concept of “risk-free” injunctive
relief is unheard of - CR 65.05 requires the party in whose favor the injunction is
granted to post a bondlg and wrongfully enjoined parties may recover compensatory
damages.*’
Here, U of L and the other NCAA members reached an agreement as to
how competitive equity should be restored in the event of an erroneous court
determination regarding a player’s eligibility, and the trial court simply released U of L
from that obligation.
The trial court’s belief that the NCAA’s Restitution Rule “thwarts the judicial
power” is simply without foundation. NCAA Bylaw 19.8, like the Restitution Rules
enforced by many state high school athletic associations “does not purport to authorize
interference with any court order during the time it remains in effect, but only authorizes
restitutive penalties when a temporary restraining order is ultimately dissolved and the
[W]e find rule 3(D) to be a valid restitutive provision. It is
reasonably designed to rectify the competitive inequities that
would inevitably occur if schools were permitted without
penalty to field ineligible athletes under the protection of a
temporary restraining order, pending the outcome of an
ultimately unsuccessful legal challenge to one or more
eligibility rules. . . . [T]he member schools of the MHSAA
have voluntarily agreed to submit to the MHSAA’s
regulations, including rule 3(D), as a condition of their
membership.
Id.
19$& CR 65.05(l): (“No restraining order or temporary injunction shall be
granted except upon the giving of a bond by the applicant, with surety, in such sum as
the court or the officer to whom application is made deems proper, for the payment of
such costs and damages as may be incurred or suffered by any person who is found to
have been wrongfully restrained or enjoined. . . .‘I lcJ.).
*‘See Bundridge v. Sherwin-Williams Co., Ky.App., 551 S.W.2d 268 (1977).
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challenged eligibility rule remains undisturbed in force.“*’ The authority of the courts is
thus in no way compromised, and NCAA Bylaw 19.8 merely allows for post-hoc
equalization when a trial court’s erroneously granted temporary injunction upsets
competitive balance. If the trial court’s preliminary conclusions carry the day, and a
student-athlete’s eligibility is confirmed by final determination, no restitutionary remedy
is warranted or appropriate, and NCAA Bylaw 19.8 provides for none.
The trial court’s curt conclusion that NCAA Bylaw 19.8 “prevents parties from
availing themselves of the protections of the courts” does not disclose the basis for this
opinion. Perhaps the trial court believed that NCAA Bylaw 19.8 would deter aggrieved
student-athletes from seeking judicial redress because of fears that their efforts would
only hurt their teams in the long-run. Perhaps the trial court believed that the bylaw
created a disincentive for NCAA member institutions to allow players whose eligibility
has not yet been finally adjudicated to play in games or other athletic events. Neither
conclusion would justify the trial court’s order. The decision to seek injunctive relief will
always involve a calculated risk on the part of the plaintiff, and those with meritorious
claims will decide to proceed.
Rather than changing the rules in the middle of the
game, trial courts should consider the possibility that an erroneous decision could result
in restitutionary sanctions against a student-athlete’s institution when they balance the
equities.
We recognize that the Court of Appeals reached a different conclusion in one
paragraph in Hopkins - a case in which the parties did not seek discretionary review
in this Court. For the reasons explained above, we find this conclusion unsound, and
“Cardinal Mooney High School v. McClellan, supra note 18 at 22.
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we overrule Hopkins to the extent that it holds that injunctive relief prohibiting a
voluntary athletic association from seeking agreed-upon restitutionary sanctions is
appropriate.
Accordingly, we vacate that portion of the temporary injunction which prohibits
the NCAA from potentially pursuing NCAA Bylaw 19.8 restitution.
IV. MISCELLANEOUS MATTERS
Although we note that the trial court retains the power to enforce its ordersz2 we
can find no authority to support Lasege’s assertion that the NCAA’s “unclean hands”
prevent them from pursuing interlocutory relief.
We do not address the NCAA’s allegations that the temporary injunction violates
First Amendment freedom of association principles and the commerce clause because
neither issue was raised before the trial court.
In the interest of efficient attention to this matter and after observing that the
parties fully briefed the issues in this matter, we deny the NCAA’s motion for oral
argument.
V. CONCLUSION
For the reasons outlined above, we find “extraordinary cause” warranting CR
65.09 relief and vacate the trial court’s temporary injunction in its entirety.
Cooper, Graves and Stumbo, JJ., concur. Johnstone, J., dissents by separate
opinion with Lambert, C.J. and Wintersheimer, J., joining that dissent.
/
ENTERED: June 14,200l.
22See Hale v. Cundari Gas Transmission%o., Ky., 454 S.W.2d 679 (1969).
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APPENDIX - NCAA BYLAW 19.8 (RESTITUTION)
If a student athlete who is ineligible under the terms of the constitution,
bylaws or other legislation of the Association is permitted to participate in
intercollegiate competition contrary to such NCAA legislation but in
accordance with the terms of a court restraining order or injunction
operative against the institution attended by such student-athlete or
against the Association, or both, and said injunction is voluntarily vacated,
stayed or reversed or it is finally determined by the courts that injunctive
relief is not or was not justified, the Management Council may take any
one or more of the following action against such institution in the interest
of restitution and fairness to competing institutions:
(a) Require that individual records and performances achieved during
participation by such ineligible student-athlete shall be vacated or stricken;
(b) Require that team records and performances achieved during
participation by such ineligible student-athlete shall be vacated or stricken;
(c) Require that team victories achieved during participation by such
ineligible student-athlete shall be abrogated and the games or events
forfeited to the opposing institutions;
(d) Require that individual awards earned during participation by such
ineligible student-athlete shall be returned to the Association, the sponsor
or the competing institution supplying same;
(e) Require that team awards earned during participation by such
ineligible student-athlete shall be returned to the Association, the sponsor
or the competing institution supplying same;
(f) Determine that the institution is ineligible for one or more NCAA
championships in the sports and in the seasons in which such ineligible
student-athlete participated;
(g) Determine that the institution is ineligible for invitational and
postseason meets and tournaments in the sports and in the seasons in
which such ineligible student-athlete participated;
(h) Require that the institution shall remit to the NCAA the institution’s
share of television receipts (other than the portion shared with other
conference members) for appearing on any live television series or
program if such ineligible student-athlete participates in the contest(s)
selected for such telecast, or if the Management Council concludes that
the institution would not have been selected for such telecast but for the
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participation of such ineligible student-athlete during the season of the
telecast; any such funds thus remitted shall be devoted to the NCAA
postgraduate scholarship program; and
(i) Require that the institution that has been represented in an NCAA
championship by such a student-athlete shall return 90 percent of its
share of the net receipts from such competition in excess of the regular
expense reimbursement, or ‘if said funds have not yet been distributed,
require that they be withheld by the president.
-2o-
RENDERED: JUNE 14,200l
TO BE PUBLISHED
2001-SC-0114-I
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION
MOVANT
APPEAL FROM COURT OF APPEALS
2001 -CA-0048-I
JEFFERSON CIRCUIT COURT NO. 2000-Cl-7609
V.
MUHAMMED LASEGE AND
UNIVERSITY OF LOUISVILLE
RESPONDENTS
DISSENTING OPINION BY JUSTICE JOHNSTONE
Respectfully, I dissent from the majority’s Opinion and Order granting CR 65.09
relief to the National Collegiate Athletic Association (NCAA). In my opinion, the NCAA
has not demonstrated “extraordinary cause” justifying such relief.
CR 65.09 provides in pertinent part:
(1) Any party adversely affected by an order of the Court of
Appeals in a proceeding under Rule 65.07 or Rule 65.08 may within five
(5) days after the date on which such order was entered, move the
Supreme Court to vacate or modify it. The decision whether to review
such order shall be discretionarv with the Supreme Court. Such a motion
will be entertained only for extraordinarv cause shown in the motion.
Emphasis added.
The review provided by this rule is discretionary and entertained only for
extraordinary cause. In past cases dealing with the extraordinarily high threshold of
“extraordinary cause,” we have considered whether the trial court considered carefully
the requirements for issuing injunctive relief set out in the seminal case of Mauoin v.
Stansbu~, Ky. App., 575 S.W.2d
695 (1978). They are: (1) has the plaintiff shown an
irreparable injury; (2) are the equities in plaintiffs favor, considering the public interest,
harm to the defendant, and whether the injunction will merely preserve the status quo;
and (3) does the complaint present a substantial question?
In the case before us, the trial judge conducted a thirteen hour hearing and
determined that the Maupin elements had been met. A panel of the Kentucky Court of
Appeals presided over two and one-half hours of oral argument, considered extensive
memoranda, and concluded that the trial judge’s findings were not clearly erroneous,
and that the trial court did not abuse its discretion.
Despite the majority’s acknowledgment of the deferential standard under which
appellate courts review circuit court determinations as to temporary injunctive relief, the
opinion criticizes the trial court for abusing its discretion by “(1) substituting its judgment
for that of the NCAA on the question of Lasege’s intent to professionalize; (2) finding
that the NCAA has no interest in this case which weighs against injunctive relief; and (3)
declaring NCAA Bylaw 19.8 invalid.”
First, it goes without saying that a trial court must do an appropriate amount of
fact finding in determining whether a party is entitled to injunctive relief. Even a cursory
review of the trial court’s detailed findings reveals that the trial judge considered the
evidence presented and all relevant factors before making the initial conclusions
necessitated by proceedings involving injunctive relief. I would agree that there has
been a substitution of judgment in this case, but it has been the majority substituting its
judgment for the trial judge.
-2-
Second, the majority complains that the trial court abused its discretion by finding
that the NCAA has no interest in this case which weighs against injunctive relief.
Despite repeated reviews of the trial court’s findings and order, this writer can locate no
such finding. Indeed, the opinion sets out thoroughly the positions and arguments
espoused. Simply put, the trial judge did not agree with the NCAA - the majority does.
Finally, the provision of the trial court’s order dealing with NCAA Bylaw 19.8
states:
IT IS FURTHER ORDERED and ADJUDGED that the NCAA and
its members are hereby ordered to take no action to prevent or interfere
with the University of Louisville’s ability to abide by this Order by
attempting to enforce NCAA Bylaw 19.8.
Findings and Order Grantina lniunctive Relief Order, 2000-Cl-7609 at 9 (Jefferson
Circuit Court entered December 20, 2000) (emphasis added).
I believe that one could reasonably conclude from a reading of this provision that
it applies only during the period of the injunctive relief. Regardless, the majority opinion
overrules Kentuckv Hiah School Athletic Association v. Hookins Countv Board of
Education, Ky. App., 552 S.W.2d 685 (1997), and then rules that injunctive relief
prohibiting a voluntary athletic association from seeking agreed-upon restitutionary
sanctions is inappropriate. Such action, in my opinion, is unwarranted and premature.
The primary fallacy of the majority’s opinion revolves around its proposition that
cases involving voluntary athletic associations are more troubling than all other cases
involving injunctive relief. While they may “pose special difficulties,” most cases
seeking injunctive relief are “invariably time sensitive” that place trial judges in the
position of having to “make significant decisions with less-than-complete information.”
It is easy to conclude in this case, as did the trial judge, that the NCAA’s ruling did not
-3-
have evidentiary support. The trial court was presented with substantial evidence to
conclude that the complaint raised a substantial question, that the NCAA treated
Lasege differently from other athletes, that the NCAA failed to appropriately consider
mitigating evidence, and that the arbitrary actions of the NCAA posed a risk of
irreparable injury to the plaintiff.
Today, the majority charts new ground for cases involving voluntary athletic
associations like the NCAA. Longstanding precedent regarding the propriety of
injunctive relief is ignored and a special class is produced by this holding. I would deny
the relief requested and return this case for further proceedings to the trial court where
it belongs.
Lambert, C.J., and Wintersheimer, J., join this dissenting opinion.
-4-
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