Josephine County School Dist. No. 7 v. Oregon School Activities Ass'n

• Decision Date: 31 October 1973
• Citation: 15 Or.App. 185,515 P.2d 431
• Parties: JOSEPHINE COUNTY SCHOOL DISTRICT NO. 7 et al., Respondents, v. OREGON SCHOOL ACTIVITIES ASSOCIATION, an unincorporated association, Appellant.
• Court: Oregon Court of Appeals

Page 431

515 P.2d 431

15 Or.App. 185

JOSEPHINE COUNTY SCHOOL DISTRICT NO. 7 et al., Respondents, v. OREGON SCHOOL ACTIVITIES ASSOCIATION, an unincorporated association, Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 26, 1973.

Decided Oct. 31, 1973.

John R. Faust, Jr., Portland, argued the cause for appellant. With him on the briefs were Cake, Hardy, Buttler, McEwen & Weiss, Portland.

Carl R. Neil, Portland, argued the cause for respondents. With him on the brief were Lindsay, Nahstoll, Hart, Duncan, Dafoe & Krause, Portland; Louis F. Schultz, Jr., Schultz, Salisbury & Cauble, Gene L. Brown, and Brown & Hughes, Grants Pass.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

The Medford and Grants Pass High Schools are both members of the Southern Oregon League of the defendant, Oregon School Activities Association (OSAA). On October 20, 1972, the varsity football teams of the two schools played each other. The Grants Pass team won the game. Because of the previous season records of each team, the latter became the Southern League champion, rather than the former, and, as such, became the league entry in the playoffs for the state high school football championship.

On October 24, 1972, Medford High School, the defeated team, filed a protest with the defendant claiming that one of the Grants Pass players was ineligible under defendant's bylaws governing eligibility.

On November 2, 1972, the Board of Control of defendant OSAA conducted a hearing on the protest and upheld it. Accordingly, it forfeited all of the league games in which the boy had participated as a member of the Grants Pass team during the season. As a result, Medford High School was declared the league champion.

After a request for reconsideration had been denied on November 7, 1972, plaintiff school district, together with Peters and two teammates, filed this declaratory judgment action seeking a determination that Grants Pass was the league champion and was entitled to represent it in the state playoffs.

Because the first playoff game was scheduled for that weekend, the parties agreed that the court consider that a general denial had been filed by defendant, although none was ever filed.

The court heard testimony on November 9, 1972, and found as a fact that Jack Peters was eligible to play football for the Grants Pass football team. This ruling was made orally from the bench at the conclusion of an evening session. The quarter-final football game was to be played within 24 hours thereafter. Because of the obvious impossibility of an appeal, the parties considered themselves bound by the judgment but did not waive rights to appellate review.

Thus, Grants Pass High School in effect was restored by the trial court as the league champion and, accordingly, represented the Southern Oregon League in the state playoff game that weekend. The team was defeated in the first game to the playoff; thus, no further challenge to the court's ruling by other playoff school districts, none of whom were parties to this proceeding, is before us. A number of contentions are made, but we consider only those we conclude are necessary to a disposition of the case.

Plaintiff school district first contends that the matter is now moot since the Grants Pass-Medford game was played approximately a month before the court's judgment was entered and 24 hours after the court's finding of fact concerning the eligibility of Jack Peters to play for the Grants Pass team. We note from the briefs that defendant still retains the share of the playoff game proceeds payable under its rules to the Southern Oregon League champion. Thus, there is not only the right to the usual bric-a-brac of trophies and individual awards emblematic of a championship season but also the right to receive the undistributed funds retained by defendant. ¹ In Robinson v. Illinois High School Association, 45 Ill.App.2d 277, 195 N.E.2d 38 (1963), cert. denied 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965) the Court considered a similar contention. It stated:

'It has been suggested that the question presented for determination by this record is now moot and that the appeal should be dismissed. Auburn Senior High School may have won games which it would not have won had it not used an ineligible player, and for this, and other considerations, we concluded that the merits of htis controversy should be determined.' 195 N.E.2d at 43.

See also: Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963).

We agree and conclude this appeal is not moot.

A principal contention is that since the OSAA is a voluntary, unincorporated association of public and private schools having its own constitution, bylaws and officials, findings of fact regularly made by it pursuant thereto and relating to matters governed thereby are not subject to de novo review in an independent declaratory judgment brought by a member against the association. The trial court, doubtless due to the extreme shortness of time and the absence of pleadings by defendant, expressly refused to consider 'legal questions,' stating:

'Well, I'll tell you gentlemen, I would be doing you a disservice to attempt to decide this on legal questions. And accordingly, my decision is going to be based on a question of fact. * * *'

Defendant contends the court erred in re-trying de novo its finding of fact that Jack Peters had not established residence in Grants Pass as defined in its constitution and bylaws. We agree.

Article V, § 3 of Oregon School Activities Association Bylaws provides:

'The Board of Control shall hear and decide all protests and questions that may be brought to its attention, and in all cases The decisions of the Board of Control shall be final.' (Emphasis supplied.)

The parties concede OSAA is a voluntary association. The rule is well established that courts should not re-try the proceedings of such organizations on the facts.

In Allen v. Southern Pac. Co., 166 Or. 290, 110 P.2d 933 (1941), the Supreme Court considered the nature of the relationship between members of a voluntary, unincorporated association, there the Brotherhood of Railroad Trainmen. A suit for a declaratory decree brought by one group of employes of the Southern Pacific Company against another group of employes sought, in effect, a reversal of a Brotherhood ruling concerning important working rights. All employes of both groups were members of the Brotherhood. After pointing out that the relationship between members of a voluntary, unincorporated association were contractual, the court said:

'* * * Its constitution and general rules are binding upon the Brotherhood and likewise upon all its members, all of whom are chargeable with knowledge of the laws and general rules of the organization. All persons, upon becoming members of such an organization, are deemed to have agreed to be bound by its laws and general rules except where they involve a surrender of a personal or constitutional right or contravene the public law or public policy.' 166 Or. at 294, 110 P.2d at 935.

The court concluded:

'By this suit, the plaintiffs are in effect appealing to this court from the decision of the board of appeals in respect to a matter over which the Brotherhood has exclusive control. This case, therefore, comes within the well established rule that, when the constitution and by-laws of an unincorporated, voluntary association, such as the Brotherhood, are reasonable and valid and provide a mode for determining when relief shall be given or denied to its own members by tribunals provided for therein, redress therefor may not be sought in the courts. (Citations omitted.)' 166 Or. at 306, 110 P.2d at 939.

More recently in McClendon v. Kenin, 235 Or. 588, 385 P.2d 615 (1963), the court expressly reiterated the contractual nature of the relationship between both members inter sese of a voluntary unincorporated association and between a member and the association. ² See also: 6 Am.Jur.2d 466--67, Associations and Clubs § 37.

This rule has been applied to organizations identical in purpose to defendant. In Sturrup v. Mahan, Ind.App., 290 N.E.2d 64 (1972), the court said:

'The IHSAA (Indiana High School Athletic Association) is a voluntary association open to all public, private, parochial and institutional high schools of the State of Indiana. The authorities are legionary that courts will not interfere with the internal affairs of such voluntary associations absent mistake, fraud, collusion, arbitrariness or invasion of personal or property rights. (Citations omitted.)' 290 N.E.2d at 66.

The rule has elsewhere been applied to school activity associations similar to respondent. Robinson v. Illinois High School Association, supra; State ex rel. v. Oakley, Judge, et al., 152 W.Va. 533, 164 S.E.2d 775 (1968).

It is clear, therefore, that the trial court erred in undertaking a de novo review of the facts.

Plaintiff school district next asserts that the OSAA should not, under its rules, have considered the Medford High School protest at all, because it was not filed within ten days after the violation, as Article V, § 1 of the OSAA Bylaws requires.

Plaintiffs note, in their brief, that the Medford football coach had asked the Grants Pass coach to check on Jack Peters' eligibility prior to the beginning of the season. When his name appeared on the list of eligible players prior to the start of the season, plaintiffs contend Medford should have reported the alleged violation to OSAA within ten days.

We do not decide this procedural question because, even assuming Medford forfeited its right to protest Jack Peters' eligibility, OSAA bylaws, Article V, § 1 also provides:

'* * * However, the Board of Control may make rulings in cases of violations which have not been officially protested.'

Since the relative standings of other schools were necessarily affected by a possible decision to declare that Grants Pass forfeit all...