744 F.2d 731 (10th Cir. 1984), 83-1435, Behagen v. Amateur Basketball Ass'n of United States

Docket Nº:83-1435.
Citation:744 F.2d 731
Party Name:Ronald BEHAGEN, Plaintiff-Appellant, v. AMATEUR BASKETBALL ASSOCIATION OF the UNITED STATES OF AMERICA, and Federation Internationale De Basketball Amateur, and William Wall, Defendants-Appellees.
Case Date:September 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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744 F.2d 731 (10th Cir. 1984)

Ronald BEHAGEN, Plaintiff-Appellant,



AMERICA, and Federation Internationale De

Basketball Amateur, and William Wall,


No. 83-1435.

United States Court of Appeals, Tenth Circuit

September 20, 1984

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Steven M. Schneebaum of Patton, Boggs & Blow, Washington, D.C. (Ronald H. Brown of Patton, Boggs & Blow, Washington, D.C., and William A. Palmer of Gibson, Gerdes & Palmer, Colorado Springs, Colo., with him on brief), for plaintiff-appellant.

Glen E. Keller, Jr., Denver, Colo. (John M. Roche, Denver, Colo., with him on brief) of Davis, Graham & Stubbs, Denver, Colo., for defendant-appellee Federation Internationale de Basketball Amateur.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Ronald Behagen, a basketball player, brought this suit against the Federation Internationale de Basketball Amateur (FIBA), the Amateur Basketball Association of the United States of America (ABA/USA), and ABA/USA's executive director William Wall. FIBA is the international association governing amateur basketball in its member countries, and ABA/USA is the American member of FIBA. The district court dismissed for lack of personal jurisdiction. It entered judgment under Fed.R.Civ.P. 54(b) to permit Behagen to appeal immediately. For the reasons set out below, we reverse.

Behagen played professional basketball in the National Basketball Association (NBA) from 1973 through 1979. In October 1979, Behagen accepted an offer from a team in the Italian basketball league. Although the Italian team gave Behagen a salary, transportation, and living accommodations, the league is nonetheless considered an amateur one by FIBA. The Italian league required Behagen to be qualified as an amateur, which apparently entailed receiving and ABA/USA travel permit or a FIBA license or both. 1 Behagen was reinstated as an amateur by FIBA, obtained a FIBA license, and played with the Italian league during its 1979-1980 season.

In March 1980, Behagen returned to the United States and signed a "tryout" contract with the NBA Washington Bullets for the remaining two weeks of that team's season. He played in eight games with the Bullets but was not offered a contract for the coming season. In the summer of 1980, Behagen signed another contract with the Italian team. Behagen was subsequently informed by the team that his FIBA license had been revoked because he had played for the Bullets. FIBA purportedly has a rule prohibiting reinstatement to amateur status more than once. Without this document reflecting his amateur status, Behagen was no longer eligible to play in the Italian league.

Behagen then brought this suit against ABA/USA, FIBA, and Wall for damages, injunctive relief, and a declaratory judgment. In his complaint Behagen alleges that the decision to deny his second reinstatement to amateur status was made without giving him notice or a hearing, and was contrary to the regulations and practice of ABA/USA, FIBA, or both. Behagen asserts claims for breach of contract, denial of due process, tortious interference with contract, and antitrust violations.

FIBA filed a motion under Fed.R.Civ.P. 12(b)(2) to dismiss for lack of personal jurisdiction, contending that FIBA does not have sufficient minimum contacts with Colorado to support jurisdiction under the

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state's long-arm statute. Because both Behagen and FIBA offered affidavits and other written material on this issue, the district court treated the motion as one for summary judgment and granted it.

The plaintiff bears the burden of establishing personal jurisdiction over the defendant. American Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d 1449, 1454 n. 2 (10th Cir.1983). Prior to trial, however, when a motion to dismiss for lack of jurisdiction is decided on the basis of affidavits and other written materials, the plaintiff need only make a prima facie showing. Id.; Brown v. Flowers Industries, Inc., 688 F.2d 328, 332 (5th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1275, 75 L.Ed.2d 496 (1983); Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981); Neiman v. Rudolf Wolff & Co., 619 F.2d 1189, 1190 (7th Cir.), cert. denied, 449 U.S. 920, 101 S.Ct. 319, 66 L.Ed.2d 148 (1980); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977). The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. American Land Program, 710 F.2d at 1454. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. Id. at 1454 n. 2; Marine Midland Bank, 664 F.2d at 904; Neiman, 619 F.2d at 1190.

Behagen seeks to assert in personam jurisdiction over FIBA under Colorado's long-arm statute, which permits service of process outside Colorado upon any person subject to the jurisdiction of the courts of Colorado. Colo.Rev.Stat. Secs. 13-1-124, -125 (1973). "In enacting the long-arm statute, the Colorado legislature intended to extend the jurisdiction of Colorado courts to the fullest extent permitted by the due process clause of the United States Constitution." Waterval v. District Court, 620 P.2d 5, 8 (Colo.1980), cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981).

FIBA argues that Colorado cannot exert personal jurisdiction over it because it is an association with headquarters, staff, and offices in Munich, Germany; it has no office or assets in Colorado or even the United States; it is not licensed to do business in the United States; and it has committed no acts in the United States, in general, and Colorado, in particular. FIBA points out that Behagen's claim that he was denied the right to play...

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