By Jonathan Wynne
George Washington University rowing captain Patrick George has unsuccessfully sought a preliminary injunction to reinstate the rowing program at GW to varsity status after the school had transitioned the outfit to club sport status.
Encountering Choppy Seas
GW announced the change in July of 2020, on the heels of a $200 million budget shortfall due to Covid-19. Plaintiff George unsuccessfully lobbied GW administration to maintain the varsity status. Rowing transition to club status the following year on July 1, 2021. The team was subsequently denied entry to compete in any Intercollegiate Rowing Association (IRA) sanctioned event, including the National Collegiate Championship Regatta.
Arguing for an implied-in-fact contract, George contended that the school owed him a duty to provide four years of varsity rowing when he signed financial aid agreements and matriculated. The Court found that the Plaintiff had no likelihood of success in arguing for the existence of such a contract. Plaintiff also undercut his own argument for irreparable harm when he continued to row at GW for another ten months after the changes went into effect.
Procedural Oddities, Timing, and Practice Pointers
Plaintiff filed his case on April 1, 2022, two years after GW announced the transition. He sought a permanent injunction ordering GW to immediately reinstate varsity status. Four days later, Plaintiff filed a temporary restraining order to immediately prohibit GW from cutting rowing as a varsity sport, despite the fact that the cut occurred 10 months prior. In essence, Plaintiff sought to turn the clock back two years on the status quo after rowing through it for nearly a year.
Service of process presented a problem after the case was immediately removed to the US District Court for the District of Columbia. Plaintiff was directed to show cause why the Preliminary Injunction should not be denied for failure of service under Federal Rule of Civil Procedure 4. Plaintiff’s response was to refer to his service obligation as a “practical waste” in the current posture of the case. An apology to the Court was filed three days later.
Two years after the announcement (during which time the Plaintiff competed and captained the team) and over a month after plaintiff moved for the preliminary injunction, the Court finally considered and dispensed with the substantive issues in the case.
Success on the Merits Dead in the Water
Plaintiff argued that an implied-in-fact contract obligated GW to maintain varsity rowing during the course of his eligibility. The Court disagreed. Such a contract arises when a writing is absent, but the parties conduct infers the existence of a contract. The party whose conduct is relied upon must have “authority to bind” in order to find such a contract. Mere expectation will not conduct the boat over the finish line.
Plaintiff conceded that no express contract existed. He instead focused on the recruiting promises made by the Head Coach prior to matriculating to GW. Plaintiff pointed to his offer of a varsity position on the team including the “obvious assumption of a four-year varsity experience,” sufficient to imply a contractual guarantee.
The argument failed to hold water on several fronts. Plaintiff’s expectation was based upon the same type of recruiting efforts expected of any collegiate sport program. However, the Head Coach’s authority was narrowly limited to recruiting efforts and far from binding on the University in the manner Plaintiff sought.
The only tangible contract in the record was the financial aid agreement between Plaintiff and the school, express only for purposes of his financial aid award. The document neither included the Head Coach as a party nor expanded his authority. In fact, the agreement stated that coaches and other university employees “cannot obligate the University beyond” the scope of the financial aid agreement.
From a policy standpoint, the result was predictable. The Court observed that a finding in favor of the Plaintiff meant the university could never discontinue any varsity sport without facing a breach of contract claim from a student-athlete.
Plaintiff Sinks His Irreparable Harm Argument
Plaintiff’s argument for injunctive relief stood little chance in large part because of the time he spent rowing at GW after the changes were announced and took hold. Preliminary injunctive relief requires a high standard of irreparable injury. The Court searches for harm that is certain and great, actual and not theoretical, and of such imminence that the Court must act immediately to prevent the harm. Plaintiff simply could not meet this standard.
Plaintiff argued that he would forever lose the chance to row competitively at GW, citing vast differences between club and varsity sport. Even if true, Plaintiff still captained the team and competed during his senior season. The IRA and not the university denied the rowing team a spot in its competition, though the IRA rightly did not have a role in the action. Nothing in GW’s decision prevented Plaintiff from transferring to an institution offering varsity rowing.
Above all, the Court observed that Plaintiff waited nearly two years after the decision was announced, and one month short of his graduation, to file suit. The timeline betrayed any sense of urgency and the Court was quick to deny relief.
Left Unsettled
Student athletes are left holding the bag in this era of Covid and severe budget cuts. The US District Court in Rhode Island rejected injunctive relief on similar grounds in the case of Sterman v. Brown University, in which the Plaintiff challenged the University decision to transition men’s and women’s squash to club status. Promises of varsity competition failed to rise to the level of a contractual guarantee.
Although Plaintiff George could not overcome a decidedly high standard, the truth is that his time competing was finite. Schools are unlikely to use the threat of budget reduction and loss of varsity status as a recruiting tool. A different teacher may be needed to educate prospective athletes on this risk.
Jonathan Wynne is a Civil Litigator in Boston, MA and an aspiring NFL Contract Advisor.
