Buckton v. National Collegiate Athletic Assn.

• Decision Date: 26 August 1977
• Docket Number: Civ. A. No. 73-3475-T.
• Parties: William BUCKTON and Peter Marzo v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al.
• Court: U.S. District Court — District of Massachusetts

436 F. Supp. 1258

William BUCKTON and Peter Marzo v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al.

Civ. A. No. 73-3475-T.

United States District Court, D. Massachusetts.

August 26, 1977.

Gordon A. Martin, Jr., Martin, Morse & Wylie, Boston, Mass., for plaintiffs.

John G. Fabiano, Harold Hestnes, Hale & Dorr, Boston, Mass., George R. Bisacca, Fairfield, Conn. (appearing specially for motion to take depositions), Roche, Carens & DeGiacomo, John C. Wyman, Boston, Mass., for trustees of B. U.

Timothy F. O'Leary, Asst. Atty. Gen., Boston, Mass., for University of Mass.

Leroy Dalton, Asst. Atty. Gen., Madison, Wis., for University of Wisconsin.

Philip Burling, Peter A. Fine, Foley, Hoag & Eliot, Boston, Mass., for Trustees of Boston College.

Silas Little, III, Manchester, N. H., for University of New Hampshire.

MEMORANDUM

TAURO, District Judge.

Before the court is plaintiff's motion seeking an award of attorney's fees from the defendant National Collegiate Athletic Association (NCAA). The underlying litigation was commenced in late 1973 by plaintiffs, Boston University students of Canadian nationality, seeking to retain their eligibility to play on that school's intercollegiate hockey team. Although a detailed statement of the procedural and factual background of this litigation is reported at 366 F.Supp. 1152 (D.Mass.1973), a brief chronology of events is helpful in considering the issues raised by the instant motion.

Plaintiffs brought this action on October 11, 1973 against the NCAA and the Eastern Collegiate Athletic Conference (ECAC). Boston University (BU) was subsequently permitted to intervene as a party defendant.

The subject of plaintiffs' grievance was a determination by ECAC and NCAA, as enforced by BU, that the plaintiffs were ineligible to play intercollegiate hockey, because their participation in a Canadian Junior hockey program violated amateur standing regulations.¹ Plaintiffs' position was that such a determination violated their rights under the due process and equal protection clauses.²

After several days of hearings, a preliminary injunction was issued on November 21, 1973, restraining BU from declaring plaintiffs ineligible on the basis of alleged violations of amateur standing rules.³ In addition, NCAA was enjoined from imposing any sanctions against BU on account of its compliance with this court's order. The ECAC stipulated that it would take no action against BU during the pendency of this litigation and, therefore, was not so enjoined.⁴ Protected by this court's injunction, BU permitted plaintiffs to participate in the 1973-74 intercollegiate ice hockey season.

During the months of March, May and June of 1974, 11 trial days were dedicated to hearing evidence on the merits. After subsequent conferences, all parties, except for NCAA, joined in a consent decree on June 19, 1974. By the terms of that decree, ECAC reinstated the eligibility of the plaintiffs, recommended to the NCAA that it do the same, and revised its procedures for determining eligibility. For its part, BU agreed to reassert its petition to the NCAA for the reinstatement of plaintiffs' eligibility. Although the NCAA did not participate in the decree, it did agree to re-evaluate its position with respect to its eligibility requirements.

Throughout the fall of 1974, the NCAA reconsidered its standards for eligibility for intercollegiate competition. In an affidavit relied upon by all parties to this litigation, the Assistant Director of the NCAA, Warren Brown, commented on the impact of the instant litigation on that problem:

10. As a result of the opinion of the United States District Court for the District of Massachusetts in Buckton et al. v. N C A A et al., 366 F.Supp. 1152, and information obtained in that litigation (which is still pending) the NCAA decided to ascertain the eligibility, under the aforesaid provisions, of all ice hockey-playing student athletes within the NCAA. On or about September 27, 1974 the NCAA mailed to "Directors of Athletics at NCAA Ice Hockey-Playing Institutions" . . . the memorandum . . . informing said institutions that all student-athletes competing in intercollegiate ice hockey during the 1974-75 academic year were to complete a new ice hockey questionnaire relating to eligibility.

11. As a further result of said opinion in Buckton et al. v. N C A A et al., and as a result of the information obtained from said questionnaires, on or about October 21-23, 1974 the NCAA Council revised and clarified official interpretations of the aforesaid provisions of Article Three of the NCAA Constitution in order to eliminate any discriminations either in favor of or against Canadian hockey players or in favor of or against American student-athletes or aliens . . ..

June 11, 1976 affidavit of Warren Brown at p. 4.

The revisions and clarifications referred to by Brown were reviewed and accepted by the NCAA membership at its annual convention in January, 1975. In November and December of 1974, the NCAA reinstated the eligibility of numerous student athletes, including plaintiff Buckton. Marzo remained ineligible in the eyes of the NCAA.

Under the protection of this court's preliminary injunction, both plaintiffs successfully participated in the 1974-75 intercollegiate ice hockey season for BU.

In August of 1975, the NCAA moved to vacate the preliminary injunction. Plaintiffs opposed that motion, as did co-defendant BU. The motion was denied by the court in November of 1975.⁵

Protected by this court's preliminary injunction, both plaintiffs successfully participated in BU's 1975-76 intercollegiate ice hockey season, and on May 23, 1976 graduated from BU having completed three full seasons of intercollegiate ice hockey competition.

On May 4, 1976 plaintiffs' counsel filed the instant motion for an award of attorney's fees from defendant NCAA. The court conducted a hearing on that motion on October 4, 1976. As a result of the subsequent passage of the Civil Rights Attorney's Fees Award Act of 1976⁶ and its construction by the First Circuit Court of Appeals in Rodriguez et al. v. Jimenez, et al., 551 F.2d 877 (1st Cir. 1977), this court directed the parties to submit memoranda on the applicability of that Act to the instant litigation.

I.

In approaching plaintiffs' motion for attorney's fees, the court is aware that the "American Rule" ordinarily prohibits fee awards to prevailing parties.⁷ There are, however, three established exceptions to that general rule. First, attorney's fees may be awarded to the prevailing party as a punitive response where the losing party has "acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . ." Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). Second, under the "common fund" theory, the Court permits the award of attorney's fees to a successful litigant who "has conferred a substantial benefit on a class of persons and the court's shifting of fees operates to spread the cost proportionately among the members of the benefitted class." Rich v. Industrial Lumber, 417 U.S. 116, 130, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). Third, attorney's fees may be awarded pursuant to explicit statutory provisions,⁸ such as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). Alyeska Pipeline, 421 U.S. at 260, 95 S.Ct. 1612.

The plaintiffs urge their entitlement to attorney's fees under each of the three exceptions to the American Rule. Because this court agrees that plaintiffs are entitled to a fee award under the Civil Rights Attorney's Fees Award Act of 1976, it is unnecessary to consider plaintiffs' alternate theories.

II.

On October 19, 1976 the Civil Rights Attorney's Fees Award Act of 1976 (Act) became effective. As an amendment to 42 U.S.C. § 1988, the Act provides in pertinent part,

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, . . . the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The plaintiffs argue that the Act applies to the instant case because: 1. this is an action to enforce §§ 1981 and 1983; and 2. the plaintiffs have prevailed over the NCAA in this action. Plaintiffs thus conclude that the Act vests discretion in the court to award them fees.

The NCAA suggests that the court is not entitled to exercise that discretion for three reasons: A). because the case was moot on October 19, 1976 and thus was no longer pending; B). because this is not properly an action to enforce one of the enumerated sections of Title 42; and C). because the plaintiffs did not prevail over the NCAA.

A.

NCAA's first argument against application of the Act is that the suit was no longer pending at the time that the Act went into effect. The relevant chronology is as follows: 1. on May 4, 1976 the plaintiffs filed a motion for attorney's fees; 2. on May 23, 1976 the plaintiffs graduated from BU; 3. on October 4, 1976 the court heard argument on plaintiffs' motion; and 4. on October 19, 1976 the Act became effective.

Legislative history makes clear that the Act applies to cases pending on the date of passage.⁹

The Court of Appeals for the First Circuit has held that the Act applies to cases pending on appeal on the date of enactment. Rodriguez et al. v. Jimenez et al., 551 F.2d 877 (1st Cir. 1977). See also Finney v. Hutto, 548 F.2d 740 (8th Cir.), petition for cert. filed 21 Crim.L.Rep. 4090 (U.S. June 22, 1977). These two decisions were based on Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Bradley involved protracted litigation over desegregation of the Richmond, Virginia school system. The Court held that the attorney's fee provisions of § 718 of the Education Amendments of 1972 applied, despite the fact that the propriety of a fee award in that case was on appeal when § 718...