Phillip v. Fairfield University

• Decision Date: 17 July 1997
• Docket Number: D,No. 2033,2033
• Citation: 118 F.3d 131
• Parties: 119 Ed. Law Rep. 798 Darren PHILLIP, Fred Phillip, and Marguerite Phillip, Plaintiff-Counter-Defendant-Appellees, v. FAIRFIELD UNIVERSITY, Defendant-Cross-Claimant-Counter-Claimant, The National Collegiate Athletic Association, Defendant-Cross-Defendant-Appellant. ocket 97-7210.
• Court: U.S. Court of Appeals — Second Circuit

Page 131

118 F.3d 131

119 Ed. Law Rep. 798

Darren PHILLIP, Fred Phillip, and Marguerite Phillip, Plaintiff-Counter-Defendant-Appellees, v. FAIRFIELD UNIVERSITY, Defendant-Cross-Claimant-Counter-Claimant,

The National Collegiate Athletic Association,

Defendant-Cross-Defendant-Appellant.

No. 2033, Docket 97-7210.

United States Court of Appeals, Second Circuit.

Argued May 23, 1997.

Decided July 17, 1997.

John B. Farley, Hartford, CT (Halloran & Sage, James V. Somers, Hartford, CT, on the brief), for Defendant-Cross-Defendant-Appellant.

Dan E. LaBelle, Trumbull, CT (Owens, Schine, Nicola & Donahue, Trumbull, CT), for Defendant-Cross-Claimant-Counter-Claimant.

J. Daniel Sagarin, Milford, CT (Harris, Beach & Wilcox, LLP, David A. Slossberg, Milford, CT, on the brief), for Plaintiff-Counter-Defendant-Appellees.

Before: WALKER, McLAUGHLIN, and PARKER, Circuit Judges.

PER CURIAM:

Defendant National Collegiate Athletic Association ("NCAA") appeals from the January 27, 1997 order of the United States District Court for the District of Connecticut (Robert N. Chatigny, District Judge ), adopting the recommendation of the magistrate judge and granting plaintiff Darren Phillip a preliminary injunction enjoining the NCAA

from interfering with Phillip's ability to receive financial aid and play college basketball. Because we find that the district court failed to apply the proper standard for assessing the NCAA's alleged breach of the covenant of good faith and fair dealing under Connecticut law, we remand the case to the district court.

BACKGROUND

Having determined during the spring of 1996 that Darren Phillip, then a high school senior, failed to complete the minimum of 13 "core courses" required under the NCAA's eligibility standards, the NCAA notified Phillip that he was ineligible under NCAA guidelines to play college basketball for, or receive financial aid from, his intended college, Fairfield University ("Fairfield"). Fairfield subsequently sought a waiver of the eligibility requirements, which was denied by the NCAA on the ground that there were neither exceptional circumstances present nor independent evidence of Phillip's academic qualifications that warranted granting relief. Following the initial denial of the waiver, Fairfield proceeded through the NCAA's appellate process, ultimately appealing to the very highest level of the NCAA, the NCAA Council. In January of 1997, the Council upheld the denial of the waiver.

On October 21, 1996, Phillip moved for an injunction before the district court that would prevent the NCAA from further interfering with his opportunity to attend Fairfield and play basketball for its team. By this time, Phillip had begun attending his first semester at Fairfield (the tuition for which was paid by his mother, using her retirement fund), although he was prohibited from receiving aid or playing basketball. On November 22, 1996, Magistrate Judge Smith issued his recommendation that the preliminary injunction be granted, and on January 24, 1997, the district court overruled the NCAA's objections, and adopted the magistrate judge's recommendation, reasoning principally that Phillip both would suffer irreparable harm if the injunction were denied and was likely to prevail on his argument that the NCAA breached its duty to Phillip by arbitrarily refusing to grant him a waiver of its eligibility requirements. This appeal followed.

DISCUSSION

This court reviews a district court's entry of a preliminary injunction for abuse of discretion, which means that we may reverse only if the district court applied an incorrect legal standard, based its decision on clearly erroneous findings of fact, or issued an injunction containing an error in form or substance. See Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir.1997).

Preliminarily, we note that the parties dispute the proper characterization of this injunction and the legal test Phillip must satisfy in order to obtain injunctive relief. As a general matter, entry of a preliminary injunction is appropriate where the party seeking an injunction establishes (1) that the injunction is necessary to prevent irreparable harm and (2) either a likelihood of success on the merits or a sufficiently serious question going to the merits of the claim as to make it a fair ground for litigation plus a balance of hardships that tips decidedly in favor of the moving party. See Malkentzos v. DeBuono, 102 F.3d 50, 54 (2d Cir.1996). However, where an injunction is mandatory--that is, where its terms would alter, rather than preserve, the status quo by commanding some positive act, see Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 34 (2d Cir.1995)--the moving party must meet a higher standard than in the ordinary case by showing "clearly" that he or she is entitled to relief or that "extreme or very serious damage" will result from a denial of the injunction. See id. at 34; Malkentzos, 102 F.3d at 54. This heightened showing is also required where the issuance of the injunction would provide the movant with substantially all the relief he or she seeks and where the relief could not then be undone, even if the non-moving party later prevails at trial. See Tom Doherty Assocs., 60 F.3d at 34-35.

Although "[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities," id. at 34, we conclude The alternative question of whether a heightened standard should apply because the injunction provides Phillip with substantially all the relief he seeks and the relief cannot be undone even if the NCAA prevails at trial on the merits is a closer one. On the one hand, common sense suggests that by obtaining the scholarship necessary to attend school and then, by performing well during his first year, Phillip may well have been able to overcome whatever NCAA-disqualifying deficiencies may have been caused by his high school record. That is, one might expect that the NCAA would have little interest in enforcing a penalty against a student on the basis of the student's failure to comply with its high school curriculum requirements when the student, pursuant to a legitimately obtained court order, attends one year of college and performs satisfactorily while there. Were this scenario accurate, Phillip, by obtaining the right to receive his scholarship, would obtain the opportunity to succeed during his first year at Fairfield, thereby (depending on his performance) obtaining all the relief he seeks--relief which is, at bottom, the right to be free from further NCAA interference on account of his high school curriculum. Equally, to the extent that the NCAA would be unable to "take back" the year Phillip played college basketball, its remedy--should it prevail at trial--would be less than meaningful. On the other hand, however, is the fact that both parties represented vigorously at oral argument that the consequences of the injunction would endure well after Phillip's freshman year in college. For example, the NCAA explained that under its current rules, if the injunction is dissolved, Phillip may again become ineligible to receive aid or play basketball--regardless of the calibre of his academic performance during his first year at school.

that the present injunction is more appropriately viewed as prohibitory, because, by its terms, it restrains the NCAA from acting affirmatively to interfere with Fairfield's decision to award plaintiff a scholarship and to allow him to play basketball. Put differently, by prohibiting the NCAA from further interfering with Phillip's ability to receive aid and play...