ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Garth and Higginbotham, Circuit Judges, and McCune, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This is a consolidated appeal from orders of the district court denying appellants Albert Butts and LaSalle University ("LaSalle") preliminary injunctions against enforcement of Bylaw 5-1-(d)-(3) of the appellee National Collegiate Athletic Association ("NCAA"). 600 F. Supp. 73. For the reasons set forth below, we find that it was not reversible error for the trial court to deny the preliminary injunction.
Albert Butts is an academic senior at LaSalle, a distinguished private university located in Philadelphia. LaSalle is a member of the NCAA, and it competes at the Division I level in basketball.
As an outstanding high school basketball player in the Philadelphia area, Mr. Butts attracted the attention of recruiters from many colleges and universities. His otherwise bright prospects for participation in a major intercollegiate basketball program were clouded by his academic deficiencies, which might have rendered him ineligible to compete under NCAA academic standards, or unqualified for admission to many of its member institutions. In 1979, Mr. Butts enrolled for his senior year of high school in the Frederick Military Academy in Virginia, a private preparatory school. At the end of the 1979-80 school year, during which he played on Frederick's basketball team, Mr. Butts received his high school diploma. He stayed at Frederick for the 1980-81 school year, receiving a partial scholarship in exchange for another year of participation in the school's basketball program. According to Mr. Butts, he remained at Frederick for this additional year to upgrade his academic qualifications. During the 1980-81 Frederick basketball season he reached his twentieth birthday.
In the fall of 1981, Mr. Butts entered LaSalle on a full basketball scholarship. By the end of his freshman year, and first year of varsity basketball competition, school officials brought to his attention NCAA Bylaw 5-1-(d)-(3), which had been promulgated by the Division I schools in January of 1980, and which became effective August 1, 1980. The bylaw provides:
Any participation by a student as an individual or as a representative of any team in organized competition in a sport during each 12-month period after his 20th birthday and prior to his matriculation at a member institution shall count as one year of varsity competition in that sport. Participation in organized competition during time spent in the armed services, on official church missions or with recognized foreign aid services of the U.S. Government shall be excepted.
Because Mr. Butts had played for the Frederick Military Academy basketball team after reaching the age of 20, and before matriculating at LaSalle, it was feared that under this bylaw this post-high school experience would be counted against his four years of college eligibility. After consulting with an attorney, Mr. Butts decided to take no action regarding the bylaw at that time in the hope, he testified, that the rule would be amended before his senior year. He continued to participate in LaSalle's basketball program during his sophomore and junior years (the 1982-83 and 1983-84 academic years), though he missed much of the 1983-84 basketball season due to a knee injury.
In the fall of 1984, after LaSalle determined that Mr. Butts was physically and academically eligible to compete during the current 1984-85 season, the question of his eligibility under Bylaw 5-1-(d)-(3) came to the fore. If his second year at Frederick is, under that rule, to count against his four years of college eligibility, then Mr. Butts has exhausted his eligibility and must sit out the year. On October 22, 1984 counsel for Mr. Butts wrote to the NCAA seeking a favorable interpretation of the bylaw. By letter dated November 15, 1984, the Assistant Executive Director of the NCAA indicated that Mr. Butts would be ineligible to play basketball during his senior year. LaSalle's first basketball game was scheduled for November 26. On November 23, Mr. Butts filed suit against the NCAA and LaSalle, seeking declaratory and injunctive relief. LaSalle then cross-claimed against the NCAA.
On November 26 the district court denied Mr. Butts a temporary restraining order that would have enabled him to compete in LaSalle's first game. On December 3, the district court conducted an evidentiary hearing on motions by Mr. Butts and LaSalle for preliminary injunctive relief. The district court denied these motions in a memorandum opinion and order dated December 5, finding that appellants had failed to establish a reasonable probability of success on the merits. On December 7 this court denied LaSalle's emergency motion for an injunction pending appeal, but ordered expedited briefing and argument on the merits of the appeal. Oral argument in this matter was held on December 14.
Though the complaints of LaSalle and Mr. Butts alleged a variety of constitutional and statutory defects in Bylaw 5-1(d)-(3),*fn1 only two are now urged before this court: (1) that the bylaw violates 42 U.S.C. § 6102 (1982) ("No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance."); and (2) that it violates 42 U.S.C. § 2000d (1982) ("No person in the United States shall, on the ground of race, color, or national origin, be excluded ...