Court: Missing a Few Varsity Games at Beginning of a Career Does Not Cause Irreparable Injury

Mar 28, 2008

Court: Missing a Few Varsity Games at Beginning of a Career Does Not Cause Irreparable Injury
A federal court has denied the request of the parents of a high school student athlete to grant a preliminary injunction that would have allowed their son to compete on the varsity basketball team as a freshman.
In so ruling the court found that the plaintiffs had failed to show that they would “suffer (the requisite) irreparable harm before a decision on the merits can be rendered.”
The impetus for the dispute was a job change that required the plaintiff, Vincent Bailey, to move from New York to California. Bailey and his wife began an investigation into the schools in the Central San Joaquin Valley to decide which schools would be best for their children, especially Kevin, who was an accomplished basketball player.
During this process, the principal of Clovis East High School happened to be visiting New York City, where he met with the elder Bailey at a restaurant over dinner.
In or around August 2007, Kevin Bailey began to attend CEHS as a freshman. Later that fall, Bailey qualified for a position on the varsity basketball team at CEHS. However, in or around mid-November 2007, days before the first game of the season, Bailey received notice that CUSD had denied him eligibility to play basketball at CEHS for the season. The suspension was issued in the wake of the dinner between the elder Bailey and the CEHS Principal — conduct that officials from CUSD deemed to have violated Rule 510 of the California Interscholastic Federation (CIF) Bylaws, which prohibits the “use of undue influence.”
On appeal, Vincent Bailey argued that there was nothing inappropriate about the dinner and that it had no undue influence on the decision to enroll at the school.
Rebuffed, the Baileys brought two causes of action against the CUSD and CIF, pursuant to 42 U.S.C. § 1983. The first claim alleged numerous civil rights violations, including that the defendants violated Kevin Bailey’s right to equal protection under the Constitution by imposing a harsher penalty on Kevin Bailey and treating him differently than other similarly situated students because he is an African-American, and that the defendants violated Kevin Bailey’s rights to freedom of speech, association, travel, and privileges and immunities due to citizens under the Constitution. The second claim alleged that the defendants violated Kevin Bailey’s right to due process under federal and California law.
The plaintiffs sought a preliminary injunction that would allow Kevin to play on the varsity team until a decision could be rendered.
The court began its analysis with a review of Rule 65(a) of the Federal Rules of Civil Procedure, which allows for the issuance of a preliminary injunction as a provisional remedy. “The legal principles applicable to a request for preliminary injunctive relief are well established,” wrote the court. “To prevail, the moving party must show either: ‘(1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.’ Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999); Oakland Tribune, Inc. v. Chronicle Publishing Company, Inc., 762 F.2d 1374, 1376 (9th Cir. 1985).
“The single most important prerequisite for the issuance of a preliminary injunction in a case such as this one is a demonstration that if it is not granted, the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. See 11A Wright & Miller, Federal Practice and Procedure § 2948.1 (3d ed. 2004). The primary injury shown here by the plaintiffs is that the defendants have deprived Kevin Bailey of the opportunity to play varsity basketball during what would be his freshman season at CEHS and if a preliminary injunction is not granted, he will miss the opportunity to play in the remaining few weeks of the season and post-season. The plaintiffs argue that the injury is irreparable because Kevin will lose ‘his participation in varsity basketball for his entire freshman year which can never be repeated.’ In support of this, the plaintiffs cite to a Supreme Court decision and claim that they have no alternative adequate remedies because ‘a pecuniary award is not an adequate substitute for the intangible values’ for which athletes compete,’ such as ‘the incomparable importance of his freshman varsity basketball season.’”
Central to the plaintiffs argument was the language above from Reynolds v. International Amateur Athletic Federation, 505 U.S. 1301, 1302, 112 S. Ct. 2512, 120 L. Ed. 2d 861 (1992), in which Justice Stevens affirmed a circuit court decision to stay a preliminary injunction in order to allow an athlete to compete in the 1992 United States Olympic Trials. Justice Stevens’ complete sentence, from which the plaintiffs quote, reads as follows:
“With respect to the second [dispositive question], a decent respect for the incomparable importance of winning a gold medal in the Olympic Games convinces me that a pecuniary award is not an adequate substitute for the intangible values for which the world’s greatest athletes compete.” Id. “In Reynolds,” wrote the court, “if the preliminary injunction was not granted, the plaintiff’s opportunity to compete in the 1992 Barcelona Olympics, let alone to win a medal, would have been permanently foreclosed; considering that the Olympic Games only take place every four years – a significant amount of time for athletes competing at the international level – the plaintiff may never have been able to compete at the Olympics again.”
In the instant case, however, the plaintiffs “failed to demonstrate any comparably irreparable injury. It is undisputed that Kevin Bailey will be eligible to participate on the varsity basketball team during his next three years of high school. Furthermore, he is currently eligible for and participating on the freshman basketball team. The plaintiffs have not shown sufficient evidence that Kevin Bailey would suffer such irreparable harm by not playing varsity basketball for the remaining weeks of his freshman season that this Court must take the extraordinary step of ordering a preliminary injunction before a decision on the merits can be rendered. More to the point of the quotation cited above, the plaintiffs have failed to show how the opportunity to play varsity high school basketball over freshman high school basketball is tantamount to the opportunity to compete for an Olympic gold medal, especially with regard to the adequacy of a pecuniary award.”
The court also found that the plaintiffs had failed to demonstrate a probability of success on the merits of its argument that the defendants violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by treating Kevin Bailey differently from ‘Caucasian, Asian and female students’ because he is an ‘out of state African-American transfer student.’”
Specifically, the court noted that the defendant submitted sufficient evidence to show a lack of intentional disparate treatment.
Kevin Bailey, et al. v. Clovis Unified School District, et al.; E.D. Cal.; 08-CV-0146-AWI-GSA, 2008 U.S. Dist. LEXIS 10347; 2/11//08
Attorneys of Record: (for plaintiffs) Richard Alan Belardinelli, LEAD ATTORNEY, Georgeson and Belardinelli, Fresno, CA. (for defendant) Jerome M. Behrens, Ovidio Oviedo, Jr., Scott G. Cross, LEAD ATTORNEYS, Lozano Smith, Fresno, CA. (for defendant California Interscholastic Federation) Christian M. Keiner, Diane Marshall-Freeman, Ronald Jason Scholar, LEAD ATTORNEYS, Kronick Moskovitz Tiedemann & Girard, Sacramento, CA.


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