FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 8, 2019
In the Court of Appeals of Georgia
A18A1930. GEORGIA HIGH SCHOOL ASSOCIATION v.
CHARLTON COUNTY SCHOOL DISTRICT.
MCMILLIAN, Judge.
The Georgia High School Association (“GHSA”) appeals the trial court’s order
enjoining GHSA’s imposition of penalties on Charlton County School District, d/b/a
Charlton County High School (“Charlton County”) after the school self-reported that
it had violated GHSA’s 110-pitch rule in two baseball games. GHSA argues that any
decision that it makes regarding high school athletic contests in Georgia are non-
justiciable, that is, not reviewable by any court. Although GHSA possesses wide
discretion in its treatment of member schools, GHSA is required to abide by its own
Constitution and Bylaws, and that issue is reviewable, so we affirm and remand the
case to the trial court for further proceedings consistent with this opinion.
GHSA is an unincorporated association of public and private high schools,
which serves as the governing body for high school athletic, music, speech, and other
fine arts competitions among high schools in the State of Georgia.1 See Parents
Against Realignment v. Georgia High School Assn., 271 Ga. 114, 114 (516 SE2d 528)
(1999). GHSA divides its member high schools into classifications based on student
enrollment and then groups the schools in each classification into geographically-
based regions. At the pertinent time, Charlton County was a GHSA member and paid
dues to GHSA to maintain its membership in the association. GHSA assigned
Charlton County to Region 2 of its “A” classification, known as “Region 2A,” and
member high schools in Lanier and Irwin Counties were also classified as Region 2A
schools.
GHSA promulgates rules for each sport it governs, and its Constitution and By-
Laws (often called, and referred to herein as, the “White Book”) set out the method
1
Although the trial court held an evidentiary hearing in this case, GHSA did
not include a transcript of that hearing on appeal. The trial court’s order sets out
detailed findings of fact, and we rely on those findings, because in the absence of a
transcript, we must assume they were supported by the evidence. Borotkanics v.
Humphrey, 344 Ga. App. 875, 877 (1) n.5 (811 SE2d 523) (2018); Collier v. D & N
Trucking Co., 273 Ga. App. 271, 272 (614 SE2d 801) (2005).
2
for addressing any violation of such rules. Charlton County competes in high school
baseball, among other activities, under the auspices of GHSA. One of GHSA’s rules
applicable to baseball prohibits a player from throwing more than 110 pitches in a
two-day period, with certain exceptions not applicable here.2 A violation of the pitch-
count rule potentially subjects the offending school to a $250 fine, a two-game
suspension for its head coach, and the forfeit of the game in which the violation
occurred.
During two baseball games played consecutively on March 9 and 10, 2018, the
official GHSA pitch count showed that one Charlton County player threw 115
pitches, violating the GHSA pitch-count restriction. At GHSA-sanctioned games, the
pitch count is conducted by a GHSA-registered umpire, and although not required by
GHSA rules, it is routine practice for the pitch count monitor (“PCM”) to give a
courtesy warning to teams and the home-plate umpire when a player is approaching
the pitch-count limit, and, in fact, GHSA trains PCMs to give such warnings.
However, no such warnings were given at Charlton County’s March 10 game against
Lanier County High School (“Lanier County”), during which the rule violation
2
That rule establishes rest periods that must be observed between pitching
sessions and provides that “[a] pitcher shall not throw more than 110 pitches . . .
cumulative over a two-day period and cannot pitch more than two consecutive days.”
3
occurred. The White Book authorizes the State Executive Director to interpret GHSA
rules and impose the proper penalty for any rule violation , and on March 15, 2018,
Charlton County self-reported the pitch count violation to Dr. Robin Hines, GHSA
Executive Director. That same day, GHSA officials, including Hines and Ernie
Yarbrough, GHSA Assistant Executive Director, participated in a conference call
with representatives from Charlton County to discuss the matter. Following the
conference call, Yarborough and Hines conferred and decided the appropriate
punishment for the violation was to issue Charlton County a warning. Yarborough
sent an e-mail that day to Charlton County and Lanier County announcing that a
violation had occurred, “[b]ut upon further review of all the circumstances [GHSA
ruled that there would] be no penalty due to the PCM not informing the Charlton Co.
coach, nor the home plate umpire, that pitching to the final batter would exceed the
two-day pitch count restriction” (the “March 15 decision”).3
The White Book provides that any member that is unsatisfied with a penalty
decision has seven calendar days after the decision in which to file an appeal to
GHSA’s State Appeal Board (the “Appeal Board”), or if the only issue under appeal
3
Charlton County was also put on “warning” that the penalty would be doubled
for any future violations.
4
is a request to modify the penalty imposed, the member school may appeal directly
to the Executive Committee of GHSA. On appeal, the State Appeal Board or the
Executive Committee then considers the evidence submitted by the party or parties
in rendering its decision. No appeal of the March 15 decision was filed within the
seven-day period, and Charlton County went on to finish its regular season with a 14-
2 record against its Region 2A opponents. Irwin County High School (“Irwin
County”) also finished with a 14-2 record for the season, but because both of its
losses had been against Charlton County, the latter was named the 2018 Region 2A
Champion.
Subsequently, on April 18, 2018, the head coach of Irwin County sent an e-
mail to a number of Irwin County school officials and GHSA employees, including
Yarbrough, complaining of GHSA’s March 15 decision to issue Charlton County a
warning instead of a penalty and asking GHSA to award the win in the March 10
game to Lanier County. The Irwin County coach also asked GHSA to “[p]lease don’t
throw us under the bus with the team in question by allowing them to know that we
sent this e-mail.” GHSA and Irwin County continued to exchange emails about the
matter over the period April 18-19, 2018 , and in one of those messages, Irwin
County acknowledged that the matter had been “ruled on more than a month go” and
5
that the Irwin County coach, “as well as the other coaches in our region, knew about
it before y’all did. We all just held on to it in case we needed it in a situation like we
do now.” Consistent with Irwin County’s request, GHSA did not inform Charlton
County of Irwin County’s challenge to the March 15 decision before it decided the
appeal.
A few days later, on April 23, 2018 at 9:01 a.m., Irwin County faxed a written
appeal letter contesting the March 15 decision to Hines and the “Baseball Appeals
Committee.”4 On the same day, at approximately 11:20 a.m., Hines called the
Charlton County principal to inform him that an appeal had been filed, and that he,
acting alone, had decided to sustain the appeal. Hines repeated this decision in a
follow-up e-mail sent at 11:28 a.m., explaining that he had reviewed the appeal and
decided to sustain it. As a result, he ruled that Charlton County would forfeit the
March 10 game to Lanier County. In that e-mail, Hines stated that he was
“disappointed that there was no appeal to the original ruling in a timely fashion since
the game in question was played well over a month ago.” As a result of Hines’
4
The trial court found that although Irwin County had styled its appeal “Power
Rating Appeal Letter,” the letter was “in substance an appeal of the March 15
decision[,]” and, in fact, Irwin County’s power rating decreased as a result of the
appeal.
6
decision, Charlton County was stripped of the Region 2A championship, which was
awarded instead to Irwin County, and Charlton County dropped below Irwin County
in the rankings for the upcoming state baseball championship playoffs, affecting its
seeding position for the playoffs. GHSA posted the playoff rankings on its website
later that day and announced that no further appeals would be heard. The time for
appealing the rankings had, in fact, expired at 12:00 noon on April 23, 2018,
approximately 32 minutes after Hines provided Charlton County with his written
ruling.
On April 25, 2018, Charlton County filed a “Petition for Declaratory Judgment
and Injunctive Relief,” asking the trial court to declare that Irwin County’s appeal of
the March 15 decision was void because it was decided in violation of the White
Book, that Charlton County’s record for the season remained 14-2, and that it was the
2018 Region 2A baseball champion. The petition also sought to enjoin GHSA from
conducting the Class A public school state playoffs until the matter could be heard.
Following an evidentiary hearing into the matter, the trial court issued an order on
May 2, 2018, finding that GHSA had violated the White Book in considering and
ruling on Irwin County’s appeal and that GHSA’s decision on the matter was void.
As a result, the trial court:
7
– enjoined GHSA from granting Lanier County a forfeit victory in
the March 10 game against Charlton Couinty;
– required GHSA to recognize the original outcome of the March
10 game;
– required GHSA to recognize that Charlton County finished with
a 14-2 record against Region 2A opponents;
– required GHSA, after Charlton County’s record had been changed
to reflect a victory in the March 10 game, to determine the Region
2A champion according to its rules;
– required GHSA to recalculate the power ratings for the top eight
teams in the Class A baseball playoffs; and
– required GHSA to disseminate the updated playoff bracket to
affected teams.
Irwin County filed an appeal and emergency motion seeking a stay of the trial court’s
order, and this Court granted the motion on May 4, 2018. Consequently, GHSA was
not required to reinstate Charlton County’s victory in the March 10 game before the
state playoffs, and the schools retained their rankings as posted on April 23, 2018.
8
The state playoffs and championship games were played and the season has now
concluded. This appeal followed.
1. As an initial matter, we must consider whether the issues in this appeal are
moot in light of the fact that the 2018 baseball season is over and state baseball
championship playoffs have concluded. “[M]ootness is an issue of jurisdiction and
thus must be determined before a court addresses the merits of a claim.” Shelley v.
Town of Tyrone, 302 Ga. 297, 308 (2) (806 SE2d 535) (2017). “[A] case is moot
when its resolution would amount to the determination of an abstract question not
arising upon existing facts or rights[.]” (Citation and punctuation omitted.) Collins
v. Lombard Corp., 270 Ga. 120, 122 (1) (508 SE2d 653) (1998).
GHSA contends the issues in this appeal are moot as of the completion of the
2018 baseball season, because the playoffs are over and the playoff seedings cannot
be redetermined at this point. On the other hand, Charlton County asserts that issues
related to its regular season record remain a live controversy and the issues presented
with respect to the playoffs are capable of repetition yet evade review, and, therefore,
not subject to the mootness doctrine.
We turn first to the issues related to the March 10 game and Charlton County’s
regular season record. Although we could locate no Georgia cases directly addressing
9
whether such issues remain ripe for judicial review after the conclusion of a playing
season, our cases require us to look at the nature of the relief requested and whether
the resolution would rest on existing facts or rights, rather than an abstract question.
Pimper v. State ex rel. Simpson, 274 Ga. 624, 626 (555 SE2d 459) (2001); Collins,
270 Ga. at 122 (1). Here, Charlton County asserts that GHSA resolved Irwin County’s
appeal in violation of the White Book, which though apparently amended, remains
in effect. Also, Charlton County’s regular season record and the reported result from
the March 10 game are retained for future reference, giving Charlton County an
interest in ensuring that those records are correct. Because these matters do not
present abstract questions and instead arise from the existing facts, and since this
Court can conduct a meaningful review of these issues, they are not moot. See
Collins, 270 Ga. at 122 (1). See also Indiana High School Athletic Assn. v. Cade, 51
NE3d 1225, 1234 (Ind. Ct. App. 2016) (athletic association’s appeal from injunction
allowing high schools to compete in tournament not moot because continuing interest
remained in whether rules allowed for the forfeiture of school’s team records,
victories, or awards); Ulliman v. Ohio High School Athletic Assn., 184 Ohio App. 3d
52, 60 (919 NE2d 763) (2009) (same); Sandison v. Michigan High School Athletic
Assn., 64 F3d 1026, 1030 (II) (A) (6th Cir. 1995) (holding that appeal of an injunction
10
preventing state high school athletic association from penalizing school with forfeited
victory for competing with age-ineligible players remained a live controversy after
the season concluded and the involved players had graduated).
We reach a different result with regard to Charlton County’s request to
recalculate the power rankings and reseed the playoff tournaments. Because the
playoffs have concluded and the games cannot be replayed, there can be no
meaningful review by this Court, and thus they are moot. See Fink v. Hinson, 243 Ga.
337, 337 (253 SE2d 757) (1979) (appeal of eligibility requirement moot where the
interscholastic football program for the pertinent school year 1978-79 had ended and
the students involved in the appeal were seniors whose eligibility to participate in the
program expired at the same time). See also Cole v. National Collegiate Athletic
Assn., 120 FSupp2d 1060, 1067 (ND Ga. 2000) (issue of player eligibility moot
where the football season at issue had concluded and player’s competition with the
football program no longer restricted).
Charlton County asserts that these issues are not moot because they are capable
of repetition yet evade review. “[A] case which contains an issue that is capable of
repetition yet evades review is not moot because a decision in such a case would be
based on existing facts or rights which affect, if not the immediate parties, an existing
11
class of sufferers.” (Citation and punctuation omitted; emphasis supplied.) Collins,
270 Ga. at 122 (1). See also Inserection v. City of Marietta, 278 Ga. 170, 171 (2) (598
SE2d 452) (2004). Thus, “the term ‘moot’ must be narrowly construed to exclude .
. . those matters in which there is intrinsically insufficient time to obtain judicial relief
for a claim common to an existing class of sufferers.” (Citation and punctuation
omitted.) Collins, 270 Ga. at 121-22 (1).
Here, the issues related to Charlton County’s power rankings and seeding in
the playoff tournaments are no longer live controversies since the games have been
played, and even though the underlying issue of whether GHSA violated its rules may
reoccur, it would not necessarily evade review. As demonstrated in this case, this
issue will be reviewed in connection with how GHSA handled the appeal from the
initial March 15 decision.
We conclude, therefore, that while any issues regarding the power rankings and
seedings for the 2018 state baseball championship are moot, the issue of whether the
trial court properly voided the appeal and ordered that the March 10 victory be
awarded to Charlton County, resulting in a redetermination of the 2018 2A Region
regular season baseball champion based on this change, as well as the issue of
12
whether the courts may intervene to consider such issues, is not moot, and we may
properly consider them.
2. We now turn to GHSA’s primary argument that the issues before us are not
justiciable.
GHSA asserts that it is well-settled law in this State that regulation of extra-
curricular activities, such as interscholastic athletic competitions, is not a subject for
judicial action. GHSA is correct that our Supreme Court has warned against judicial
intervention in scholastic and other school-related matters, explaining that “[c]ourts
are ill-equipped to make fundamental, legislative, and administrative policy decisions
which are involved in the everyday administration of a public school system[ ]” and
that “[t]he Georgia Constitution . . . clearly manifests an intent to entrust the schools
to the boards of education rather than the courts.” (Citation, punctuation, and
emphasis omitted.) Parents Against Realignment, 271 Ga. at 114. Instead,
“[r]esolution of discretionary policy determinations best can be made by other
branches of government[,]” and “[a]bsent plain necessity impelled by a deprivation
of major proportion, the hand of the judicial branch must be withheld.” (Citation and
punctuation omitted.) Id.
13
But judicial restraint in this context does not mean that any decision related to
interscholastic sports is non-justiciable. Charlton County’s petition did not ask the
trial court to substitute its discretion for that of GHSA regarding the penalty imposed
against it; rather, the issue is whether GHSA must abide by its own Constitution and
Bylaws in making such a discretionary determination. Therefore, this case is
distinguishable from the cases upon which GHSA relies, none of which involve an
assertion by a GHSA member that the association (or another named institution)
failed to abide by its own rules and procedures in exercising its discretion. Rather, in
each of those cases, the plaintiff(s) sought to overturn a discretionary decision or to
obtain damages resulting from such a decision. See Parents Against Realignment, 271
Ga. at 114 (suit brought by parents’ association contesting GHSA’s decision to
realign three high schools into a new region after the member schools were
unsuccessful in overturning the decision through GHSA’s appeal process); Woodruff
v. Ga. State Univ., 251 Ga. 232, 232-33 (304 SE2d 697) (1983) (student brought suit
against the Board of Regents, the university, and certain professors asserting
constitutional, tort, and contract claims after professors refused, on academic grounds,
to give student a recommendation for a doctoral program); Ga. High School Assn. v.
Waddell, 248 Ga. 542, 542 (285 SE2d 7) (1981) (parents of high school football
14
players brought suit to protest football referee’s assessment of a penalty during a
game after school was unsuccessful in obtaining relief through GHSA’s protest and
appeal process); Smith v. Crim, 240 Ga. 390, 390-91 (240 SE2d 884) (1977) (student
athlete contested GHSA’s determination that he was ineligible to play high school
sports under its “normal semesters of years of enrollment” rule on constitutional
grounds).
Because we have found no Georgia cases directly considering the nature of the
relationship between voluntary associations like GHSA and its dues-paying
members,5 we begin our analysis by examining the association’s legal structure.
GHSA is an unincorporated association with over 400 member high schools, which
serves as the governing body for interscholastic competitions among those schools.
Charlton County is a GHSA member and pays dues for the right to participate in
GHSA-sanctioned sports and activities. The White Book, containing the GHSA’s
Constitution and Bylaws, is the governing document for GHSA , and consequently,
it also governs the relationship between GHSA and its members.
5
We note, however, that OCGA § 9-2-25 (a) expressly grants a voluntary
association like GHSA the capacity to sue and be sued. Prior to the passage of this
statute in 1959, Ga. L. 1959, p. 44, §§ 2-5, the Georgia Supreme Court had held that
voluntary associations lacked such capacity. See Howard v. Betts, 190 Ga. 530, 530
(2) (9 SE2d 742) (1940).
15
Under this arrangement, the White Book is in the nature of an implied contract6
between GHSA and its members, under which the parties agree to operate in
accordance with the procedures outlined in the White Book, and this agreement is
supported by consideration in the form of member dues. See OCGA § 13-3-1.7 We
find, therefore, that the provisions of the White Book should be construed according
to principles of Georgia contract law. Cf. Rigby v. Boatright, 294 Ga. 253, 256 (751
SE2d 851) (2013) (bylaws of electric membership corporation, which is in essence
a nonproft public service cooperative,8 construed according to contract principles).
Accordingly, we analyze this case as one to enforce an implied contract and conclude
that the general principles of judicial restraint cited by GHSA do not preclude our
review because Charlton County is seeking to require that GHSA abide by its
6
Because the record in this case contains only a portion of the White Book, it
is possible other portions of that document contain terms creating an express contract.
7
OCGA § 13-3-1 provides: “To constitute a valid contract, there must be
parties able to contract, a consideration moving to the contract, the assent of the
parties to the terms of the contract, and a subject matter upon which the contract can
operate.”
8
See Rigby v. Boatright, 330 Ga. App. 181, 182 (767 SE2d 783) (2014).
16
Constitution and Bylaws in its treatment of Irwin County’s appeal – and not simply
objecting to the merits of the decision. 9
This conclusion is supported by our prior decisions in cases involving the
somewhat analogous situation of church governance. It is well settled that
constitutional principles of separation of church and state normally “prevent[ ] courts
from deciding questions involving a church’s internal affairs in matters of theology,
church discipline, or church governance.” Smith v. Mount Salem Missionary Baptist
Church, 289 Ga. App. 578, 579 (1) (657 SE2d 642) (2008). However, in limited
situations, courts can intervene such as when a case involves a civil matter like a a
property dispute. Id. at 579 (1). In Smith, a dispute arose over the dismissal of the
church’s pastor, and the church’s board of deacons filed suit to enjoin the pastor from
exercising control over church property and to obtain a ruling from the trial court
“requiring that a vote on whether to retain or discharge [the] pastor be limited to votes
by those persons who were admitted to membership in the Church according to the
Church bylaws.” Id. at 578. The trial granted the relief sought by the deacons, and the
pastor appealed, asserting that strict enforcement of the church bylaws failed to take
9
So, for example, if GHSA had initially required Charlton County to forfeit the
March 10 game as a penalty, that decision likely would be non-justiciable.
17
into account a church tradition that persons are also accepted as new church members
through a more informal, traditional method not set out in the bylaws, although he
offered no evidence supporting this contention. Id. at 579 (1). The pastor argued,
based on this alleged tradition, that the trial court’s order determining which members
could vote on his dismissal impermissibly strayed into ecclesiastical matters. Id. After
acknowledging the constitutional restraints imposed on courts in addressing such
matters, this Court found that the trial court’s ruling was not an “order
[impermissibly] deciding the criteria for Church membership or controlling a matter
of Church governance, but merely an order requiring that the Church bylaws setting
forth the procedure for obtaining membership be followed.” Id. at 579-80 (1). See
also Waverly Hall Baptist Church v. Branham, 276 Ga. App. 818, 826 (3) (625 SE2d
23) (2005) (“It is not beyond judicial purview to look at church documents to
ascertain whether members were duly elected.”) (punctuation omitted). We see no
reason to reach a different result in a case involving GHSA and high school athletics.
3. Turning now to the merits of the trial court’s ruling, we look to the
provisions of the parties’ contract (i.e., the White Book) where, as here, its terms are
clear and unambiguous. Eagle Jets, LLC v. Atlanta Jet, Inc., 347 Ga. App. 567, 572
(2) (820 SE2d 197) (2018). It is undisputed that GHSA did not follow the appeal
18
procedures set out in the White Book, which require that appeals of penalty decisions
be made within seven days and that such appeals be considered by the GHSA Appeal
Board or the Executive Committee and that the parties involved be allowed to present
evidence in the matter. Irwin County did not raise any complaint about the the March
15 decision until April 18, thirty-four days later, in an e-mail to Hines, the Executive
Director, and others, even though Irwin County acknowledged that it was aware of
that ruling around the time it was made, and Irwin County did not file its formal
written appeal to the Appeal Board until April 23, thirty-nine days after the decision.
Nevertheless, Hines considered Irwin County’s appeal, despite acknowledging its
untimeliness in his written decision, and he decided the matter individually and
apparently without notice to the Appeals Board as required by the White Book.
Moreover, Hines did not forward Irwin County’s April 18 complaint to Charlton
County even though the White Book requires that the involved schools be given
notice of any appeal. Given the timing of the impending state championship playoffs,
Charlton was left with just thirty-two minutes to respond to Hines’ ruling, in effect,
giving the school no practical recourse under the White Book’s procedures.10
10
At oral argument, counsel for GHSA asserted that GHSA provided Charlton
County with sufficient due process by allowing it thirty-two minutes to appeal after
Hines’ ruling. We need not consider this issue, however, because Charlton County
19
Despite this series of events, GHSA argues that no violation occurred, raising
for the first time in its supplemental appellate brief following oral argument that the
White Book granted Hines the discretion to rule on the appeal. In support of this
argument, GHSA cites a provision of the White Book providing, “The State
Executive Director shall make all arrangements for holding and conducting State
Meets and Tournaments.” GHSA asserts that this provision gives the Executive
Director broad discretion and asserts that because this language is a more specific
provision of the White Book than the appellate procedures, it should control.
Pretermitting whether this language can be construed as more specific than the
appellate procedures or whether it even relates to the issues remaining in this case
regarding Charlton County’s win-loss record and the regional championship, GHSA
has failed to establish that it ever raised this issue before the trial court. It certainly
does not appear in any of GHSA’s written filings, and GHSA failed to submit a
transcript of the hearing in this matter.
has conceded that it has not asserted any state or federal constitutional claims. But see
Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288
(121 SCt 924, 148 LE2d 807) (2001) (enforcement of rule by state high school
association constitutes state action).
20
It is well settled that issues presented for the first time on appeal furnish
nothing for us to review, for this is a court for correction of errors of law
committed by the trial court where proper exception is taken. Nor may
[an appellant] alter the course of its arguments mid-stream, raising
issues on appeal that were not raised before the trial court.
(Citation omitted.) American Academy of Gen. Physicians, Inc. v. LaPlante, 340 Ga.
App. 527, 529 (1) (798 SE2d 64) (2017).
Accordingly, because GHSA breached its own appeal procedures when it
allowed Irwin County to file an untimely appeal without sufficient time for Charlton
County to respond and failed to submit the appeal to the Appeal Board for
presentation of evidence, as required in the White Book, we affirm that portion of the
trial court’s order voiding Irwin County’s appeal and directing GHSA to award the
victory in the March 10 game against Lanier County to Charlton County and after that
change is made to Charlton County’s record, to determine the Region 2A baseball
championship according to its rules and remand this case for further proceedings not
inconsistent with this opinion.
Judgment affirmed and case remanded. Barnes, P. J., and Reese, J., concur.
21