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WEISS v. EASTERN COLLEGE ATH. CONF.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


May 4, 1983

FARLEY I. WEISS
v.
THE EASTERN COLLEGE ATHLETIC CONFERENCE and THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

The opinion of the court was delivered by: GREEN

MEMORANDUM

 GREEN, J.

 This case arises from the transfer of a student, plaintiff Farley Weiss (Weiss), from Arizona State University (ASU) to the University of Pennsylvania (Penn). While a freshman at ASU during the 1981-82 academic year, Weiss played varsity tennis and, among junior players, was nationally ranked 63 by the United States Tennis Association. A bylaw of the National Collegiate Athletic Association requires a transfer student such as Weiss to be in residence for one year before he may play varsity tennis for the school to which he transferred. *fn1" Thus, Weiss was ineligible to compete on Penn's tennis team during the 1982-83 academic year. For one like Weiss who aspires to play professional tennis, ineligibility to play collegiate tennis for a year is a critical loss. *fn2"

 Weiss filed a complaint against the NCAA in the federal district of Arizona, challenging the legality of the transfer rule. Virtually all of the evidence produced in this case was submitted in the first instance to the court in Arizona. At the conclusion of the hearing on plaintiff's motion for a preliminary injunction, Judge Muecke stated,

 

I . . . don't feel I should issue an injunction because under the case law . . . I don't find any basis for there being strong support for the Court intervening in stopping this one-year delay plus the speculation as to whether, if the plaintiff were able to play, whether or not he might actually either get into varsity or be accepted for championship or post-season plays or actually go abroad and things of that kind.

 Transcript, April 1, 1983 at 130-31. Thereafter, Judge Muecke denied plaintiff's prayer for injunctive relief and ordered that the case be transferred to this district.

 While the case was being transferred, Weiss brought suit in this district against the Eastern Collegiate Athletic Conference (ECAC), alleging that the transfer rule violated the federal antitrust laws, as well as the equal protection and due process clauses, which apply to the states by virtue of the fourteenth amendment to the Constitution. The ECAC consented to the entry of a temporary restraining order prohibiting it from applying the transfer rule to Weiss or Penn pending a hearing on Weiss' motion for a preliminary injunction. On April 7, 1983, I entered said order enabling plaintiff to play varsity tennis at Penn until the hearing was held. Thereafter, the file in Weiss v. NCAA arrived and was randomly assigned to another judge in this district. Pursuant to Local Civil Rule 3(c)(2), by order of the Chief Judge, Weiss v. NCAA was reassigned to my calendar. On April 20, 1983, I consolidated Weiss v. ECAC with Weiss v. NCAA, convened an evidentiary hearing, heard the parties' arguments regarding plaintiff's motion for a preliminary injunction, and extended the restraining order against the ECAC until a decision on plaintiff's motion was rendered.

 Now before the court is plaintiff's motion for a preliminary injunction prohibiting the ECAC and the NCAA from applying the transfer rule to him. Before beginning to discuss the merits of the motion, the court acknowledges that, as Stevenson v. Four Winds Travel, Inc., 462 F.2d 899 (5th Cir. 1972), correctly states "the rule in most of the national courts . . . is that where a judge of a United States District Court . . . renders a decision and makes a judicial order in such case, and thereafter the case is transferred to the calendar of another judge of such District Court, the latter judge should respect and not overrule such decision and order." Id. at 904-05, citing Price v. Greenway, 167 F.2d 196, 199 (3d Cir. 1948). There are exceptions to this general rule. For example, in Kirby v. P.R. Mallory & Co., 489 F.2d 904, 913 (7th Cir. 1973), reconsideration was permitted where the subsequent motion revealed that, as a matter of law, a necessary element was missing from plaintiff's case. Also, as both Kirby and Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970), demonstrate, in the exercise of sound discretion, this court may consider a second motion. After reading the transcript of the proceedings before Judge Muecke, I exercise that discretion in favor of considering this motion because: defendant ECAC was not a party to the case before Judge Muecke; a formal, signed judicial order was not rendered by Judge Muecke; *fn3" and language Judge Muecke used during the proceeding shows that he did not intend the ruling concerning the NCAA to be a binding decision on the issue of preliminary relief. *fn4"

 When deciding whether to issue a preliminary injunction,

 

the court must consider and weigh whether:

 

(1) The plaintiff will suffer irreparable harm if relief is not granted.

 

(2) The defendant will be harmed if relief is granted.

 

(3) The public generally will be harmed if relief is granted.

 

(4) The plaintiff is likely to prevail on the merits of his claim.

 Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 600-01 (3d Cir. 1979). Although I gave counsel an opportunity to amplify it, the factual record in the instant matter remains sparse. The evidence does not disclose that plaintiff will be irreparably harmed if relief is not granted; nor does it reveal that defendant will suffer significant harm if relief is granted. There is no evidence that the general public will be affected by any decision rendered. After considering the transcript of the proceedings held in Arizona, the record, the parties' briefs and their arguments, I conclude plaintiff has not established that he is likely to prevail on the merits of his claim. Having weighed the aforementioned factors, I find that the scale tips heavily in defendants' favor. Accordingly, I must deny plaintiff's motion for a preliminary injunction.

 The court first considers whether irreparable harm might inure to the plaintiff or defendant, respectively, if relief were denied or granted. Pursuant to the entry and extension of the temporary restraining order, plaintiff has been able to participate in ECAC competition. Penn's varsity tennis team finished fourth in the Ivy League. There is no evidence that Penn is likely to be one of the sixteen teams which will be invited to participate in the post-season NCAA competition. Nor is there any evidence that plaintiff is likely to be one of the sixty four individuals selected to play in singles competition. In sum, there is no evidence that plaintiff would probably be selected to play in the upcoming NCAA tournament even if injunctive relief were granted. Plaintiff will have been in residence at Penn for a full year when the 1983-84 academic year begins and therefore will be eligible to represent Penn in tennis competition next fall. However, this summer, Penn might play post-season tennis matches in England and would include plaintiff in the tournament team if his participation would not violate ECAC bylaws. ECAC bylaws prohibit Penn from paying expenses incurred by an ineligible student athlete. *fn5" The trip would be sponsored and paid for by Penn, and plaintiff's participation at Penn's expense would contravene these bylaws. From the record, I conclude that being unable to participate in the potential matches in England at Penn's expense is the maximum harm plaintiff will suffer due to the denial of injunctive relief. *fn6"

 The record is sparse as to the type of harm defendant will suffer if relief is granted. There is no suggestion that, if injunctive relief were granted, defendants would be required to do more than allow plaintiff to be considered eligible for NCAA post-season competition and the potential trip to England. Counsel for defendant argues that granting the relief sought by plaintiff would encourage student athletes to launch wholesale challenges against ECAC and NCAA regulations. *fn7" However, the expense or inconvenience suffered by defendants due to these challenges is not the type of harm that would justify denying plaintiff relief if he otherwise were entitled.

 Plaintiff has not offered evidence which establishes that he will suffer irreparable harm if relief is not granted. Accordingly, I must deny his prayer for injunctive relief. Although I need not consider whether he is likely to prevail on the merits of his claims, it is appropriate to note that plaintiff has not offered the court evidence to permit me to find that he is likely to prevail. Difficult factual and legal questions, which cannot be decided on such a sparse record, are involved in the case sub judice: e.g., whether the NCAA and ECAC should be deemed state actors; *fn8" whether a classification, which renders those who participated in intercollegiate athletics prior to transfer ineligible to compete at the institution to which he transferred for one year, is valid; whether fundamental rights are adversely affected by the transfer rules; *fn9" whether competing in intercollegiate sports is a privilege or a valuable property right which should be afforded constitutional protection; *fn10" whether intercollegiate tennis is in commerce, affects commerce, or has a commercial impact. *fn11"

 Plaintiff's motion for a preliminary injunction will be denied.

 ORDER

 AND NOW, this 4th day of May, 1983, the court has considered the transcript of the proceedings in the district of Arizona, the record, the parties' briefs and their oral arguments. For the reasons set forth in the accompanying memorandum, IT IS ORDERED that plaintiff's motion for a preliminary injunction, prohibiting defendants from applying their transfer rules to him, is DENIED. IT IS further ORDERED that the temporary restraining order, prohibiting the Eastern College Athletic Conference from applying its transfer rule to plaintiff, is DISSOLVED.


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