Appeals Court Affirms Ruling Against Petanque Umpires

Mar 2, 2007

A California appeals court has affirmed the ruling of a trial court that an athletic association’s suspension of two umpires for a year did not violate the common law “fair procedure” doctrine, primarily because the umpires had every opportunity to defend themselves against allegation of egregious behavior and they could not demonstrate economic suffering.
Plaintiffs Hans Kurz and Bill Carter had sought to overturn a decision by the Federation of Petanque U.S.A. (FPUSA), which suspended Kurz and Carter for one year from their positions as FPUSA umpires.
FPUSA is a nonprofit sports organization, the purpose of which is to build a national body of affiliated clubs and individuals dedicated to spreading, practicing, and enjoying the game of petanque (
Membership is open to individuals who reside in the United States, according to the court. Groups of 10 or more individual members may apply for club membership. Umpires for member clubs, such as Kurz and Carter, are individual members in good standing who are nominated for the position, pass a test, and complete a confirmation process. FPUSA umpires are neither paid nor reimbursed for travel expenses.
The appeals court noted that an “umpire policy,” adopted by FPUSA in March 2005, provides among other things that “[w]hether officiating or not, every umpire is required to conduct him/herself in a manner that complies with the rules of petanque and that reflects well on all FPUSA umpires, the organization and the game of petanque. Noncompliance … may be grounds for sanction up to and including loss of the umpire’s license.”
In separate incidents, Kurz and Carter allegedly violated the umpire policy and were suspended for a year. On September 30, 2005, the plaintiffs filed a petition for writ of mandate in the Sonoma County Superior Court. They alleged that FPUSA, in suspending their umpire credentials, had violated their “common law right of fair procedure” and had improperly sanctioned them for “exercising their right of free speech.”
At a hearing on February 17, 2006, none of the parties appeared and the court denied the petition, concluding that “the common law doctrine of fair procedure was not applicable to the proceedings in issue, because the proceedings had not implicated three ‘essential elements’ that limited application of the doctrine. That is, FPUSA was not a private organization ‘engaged in activities affecting the public interest,’ its proceedings had not impaired a ‘substantial economic interest’ possessed by Kurz or Carter, and FPUSA’s action had not “excluded or expelled [them] from [its] membership.”
The court also found that FPUSA had afforded Kurz and Carter a “fair procedure.” In that each had been “notified of the complaint, permitted to make a written statement in defense, and permitted to submit any other written materials, including written statements by third parties.”
On appeal, the panel of judges noted that “Kurz and Carter have not drawn our attention to any authority that has applied the common law ‘fair procedure’ doctrine in any analogous situation, where the private organization’s action has not adversely implicated either an economic interest or a fundamental membership right.”
In addition, the court wrote that “common sense and judicial restraint would also dictate that a court should not involve itself in internal disciplinary actions of the type involved in this case. Such determinations are better left to the discretion and expertise of the nonprofit mutual benefit organization’s governing board. Two policy concerns raise a flashing yellow light: judicial attempts to construe laws of private organizations may lead the court into what one law professor characterized as the ‘dismal swamp,’ and also may lead to the infringement on autonomy for private voluntary organizations. (Berke v. Tri Realtors (1989) 208 Cal. App. 3d 463, 467 [257 Cal. Rptr. 738].)”
Hans Kurz et al. v. Federation of Petanque, U.S.A.; Ct. App.Calif., 1st App. Dist, Div. 1; A113551 , 2006 Cal. App. LEXIS 2060; 12/27/06
Attorneys or Record: (for plaintiffs) Malcolm A. Misuraca. (for defendant) Geary, Shea, O’Donnell, Grattan & Mitchell, P.C., Raymond J. Fullerton, Jr.


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