Marino v. Waters

• Decision Date: 10 March 1969
• Docket Number: No. 7705,7705
• Citation: 220 So.2d 802
• Parties: Gino MARINO, Plaintiff-Appellee, v. T. H. WATERS and the Louisiana High School Athletic Association, Defendants- Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 802

220 So.2d 802

Gino MARINO, Plaintiff-Appellee, v. T. H. WATERS and the Louisiana High School Athletic Association, Defendants- Appellants.

No. 7705.

Court of Appeal of Louisiana, First Circuit.

March 10, 1969.

Rehearing Denied April 14, 1969.

Charles M. Hughes, of Talley, Anthony, Hughes & Knight, Bogalusa, for appellants.

J. J. McKernan, of Brown, McKernan & Ingram, Baton Rouge, for appellee.

Before LANDRY, SARTAIN, and MARCUS, JJ.

MARCUS, Judge.

This is an appeal by the defendants T. H. Waters and the Louisiana High School Athletic Association from an injunction restraining them from the enforcement of their ruling that Gino Marino is ineligible during the school year 1968--69 to participate in interscholastic athletics at Robert E. Lee High School in Baton Rouge. During the school year 1967--68, plaintiff attended Catholic High School in Baton Rouge where he was an outstanding fullback and linebacker on the Catholic High football team. At that time plaintiff resided with his parents on Belmont Avenue in Baton Rouge. Under the regulations of the East Baton Rouge Parish School Board, a student residing on Belmont Avenue is required to attend Baton Rouge High School, except that, if he wishes to attend a parochial school, he must attend Catholic High School.

On July 1, 1968 plaintiff married, and he and his wife moved to an apartment owned by the family of the bride and provided rent-free to the couple. The apartment is located on Chatworth Street, which is within the Robert E. Lee High School district. It was soon brought to the attention of Gino Marino that he would be unable to continue attending Catholic High School, because of a ruling in force at that school prohibiting attendance by married students. Furthermore, under the general policy of the East Baton Rouge Parish School Board that a student must attend school in the district in which he resides, the only public school which plaintiff could attend was Robert E. Lee High School.

At this point plaintiff, a good football prospect whose talents had attracted tentative contacts from a number of universities relative to football scholarships, became concerned about his eligibility to participate in athletics during his senior year. In an attempt to comply with the eligibility requirements set forth in the rules of the Louisiana High School Athletic Association, the parents of the plaintiff moved from their home on Belmont Avenue into the apartment occupied by the plaintiff and his wife.

The football coach at Lee High School then requested a ruling from the Association on the eligibility of Gino Marino under the 'Transfer Rule' which is Section 11 of Article 1 of the by-laws of the Louisiana High School Athletic Association. That rule provides in relevant part as follows:

'No pupil who enrolls in one high school and later transfers to, or enrolls in, another shall be eligible to represent the latter school in any athletic contest with the following exceptions.

A student shall be considered as enrolled in a high school when he has enrolled and attended any class in that school.

EXCEPTION III--A pupil whose parents make a bona fide move from one school district to another may transfer all his rights and privileges to his school district at the time the parents move.

Definition of 'bona fide move': A student whose parents move to a new residence, but do not intend to make it their permanent home, have not given up their former home, or have not sold their personal property or moved it to the new residence, will not be eligible unless a ruling has been given that a bona fide change of residence has been made. Two legal residences will not be permitted with regard to eligibility. Any move that is not bona fide and is made for the purpose of creating eligibility shall be considered illegal and the student shall be ineligible in any school for a period of one year. A ruling for a bona fide change of residence will be determined as follows: At the request of the new school that the student will attend following his parent's change of residence, the Commissioner will appoint a committee of two or three principals from the district of the family's new residence to serve with him to determine if the family's move was bona fide or if it was for the sole purpose of creating the eligibility of the student.'

Pursuant to the above rule, a committee of three principals was appointed, and an investigation made. The ruling of the committee was that, because the parents of the plaintiff admittedly moved only for the purpose of assisting their son to attain eligibility to play football, theirs was not a bona fide move within the meaning of the transfer rule, and hence Gino Marino was ineligible to participate in football at Robert E. Lee High School. This ruling was appealed to the Association's Executive Committee, which upheld the finding of ineligibility. At this point plaintiff brought an action to enjoin the Association from enforcing its ruling, and after a full hearing in the District Court the injunction was granted and the plaintiff did in fact participate in football for the remainder of the season. The defendants appealed the ruling, and are before this Court asking that the injunction be dissolved.

This Court, as was the trial court, is sympathetic to the dilemma in which plaintiff found himself. Under the rules of the Association, where the districts of two schools intersect, as will frequently be the case where there are a parochial school and a public school in the same area, a student who transfers from one school to another school in the same district will be ineligible for athletics at the latter school for a period of one year. Under this rule, Gino Marino would have been ineligible to participate in athletics at Baton Rouge High School during his senior year, even if he had chosen to reside in that same district trict where he had previously lived with his parents. The rules of Catholic High School prohibited him from continuing to attend there, and the transfer rule of the Association prohibited his participating in athletics in any other member school unless his parents made a 'bona fide move' to the district where the new school was located. Thus, as a result of his marriage, Gino Marino, under the rules of the Association, found himself unable to participate in football at any school belonging to the Association.

In his suit for injunction the plaintiff argued that the rules of the Accociation were arbitrarily depriving him of a 'property right', or 'quasi-property right' as it was termed by the trial court, to participation in athletics at Robert E. Lee High School. He argued that, since his participation in football would attract a college scholarship worth a substantial sum of money, his eligibility was a matter of pecuniary interest of the sort which the Fourteenth Amendment protects against taking without due process of law. He further argued that, since a minor emancipated by marriage is legally free in Louisiana to establish his own domicile independent from that of his parents, to base the question of eligibility on the domicile of the parents was to choose an arbitrary criterion in contrvention of the requirements of due process of law.

The Association in rebuttal maintains that its rule is not arbitrary and insists that the courts are without power to enjoin its enforcement. In the appellnts' brief, the Association is described as follows:

'LHSAA is a voluntary association of high schools of this state. It has no individual membership; i.e., neither the principals nor other administrative officials, nor the coaches, nor the students are members. Membership in the association is on an annual basis and over 400 high schools in the state of Louisiana are members of the association.

The object of LHSAA is to promote, regulate, and direct the interscholastic athletic activities of its member schools. One of its avowed purposes appearing in Article 2 of its constitution is: '2. To protect members of the association by preparing and enforcing eligibility rules that will equalize and stimulate wholesome competition."

Appellants' brief explains the interest of the Association in the regulation of eligibility:

'One of the basic functions of LHSAA is to establish and enforce rules for the eligibility of participants in interscholastic athletics. Interscholastic athletics in Louisiana, particularly football, is highly competitive and arouses intense feelings not only among the students, but frequently throughout the community. In order to minimize friction and put all schools on an equal footing, definite standards of eligibility must be fixed and those standards must be strictly and impartially adhered to.

Among the key eligibility rules are those governing students transferring from one school to another. The possibilities of abuse in such transfers are real and obvious, although in many instances proof of abuse is difficult to obtain. Accordingly, the governing athletic associations all over the United States, both high school and collegiate, fix rules strictly limiting the eligibility of transfer students. The basic rule of LHSAA in this...