National Collegiate Athletic Ass'n v. Jones

Justice ABBOTT,

joined by Justice BAKER, Justice HANKINSON and Justice GONZALES, dissenting.

The Court holds that the potential application of NCAA Operating Bylaw 19.8, the Restitution Rule, against Casey Jones and Texas Tech creates a live controversy between Jones and the NCAA. But by remanding this case, the Court forces the court of appeals to determine the validity of the temporary injunction that barred the NCAA from enforcing its eligibility rules against Jones. The issue of this injunction’s validity is now moot; to determine its validity, the court of appeals must issue an impermissible advisory opinion. Furthermore, Jones has all but withdrawn from this case, disclaiming any interest he may have had in the NCAA’s application of the Restitution Rule. Because this case presents no justiciable controversy between the NCAA and Jones, the only parties to this appeal, I dissent.

It is well established that the question of a temporary injunction’s propriety becomes moot once the injunction is inoperative, and no longer of force and effect. Parr v. Stockwell, 159 Tex. 440, 322 S.W.2d 615, 616 (1959). And it is equally well established that appellate courts are prohibited from deciding moot controversies. Camarena v. Texas Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988). When a temporary injunction issues to ensure that an allegedly ineligible athlete will continue to compete until the question of his eligibility is resolved, the question of the temporary injunction’s validity *89is rendered moot once the athlete graduates. See University Interscholastic League v. Jones, 715 S.W.2d 759, 760 (Tex.App.—Dallas 1986, writ ref'd n.r.e.) (holding that the issue of a permanent injunction’s validity was mooted by the athlete’s graduation); see also McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 458 (6 th Cir.1997). Similarly, the question of the injunction’s validity becomes moot when the athlete’s season has ended and his eligibility to participate has expired. See Fink v. Hinson, 243 Ga. 337, 253 S.E.2d 757, 758 (1979) (holding that the validity of injunctive relief sought by students was mooted by football season’s end). With the end of Texas Tech’s 1996 football season, Jones had no more eligibility remaining; thus, the trial court’s injunction prohibiting the NCAA from enforcing its eligibility rules is moot. I believe this fact is sufficient to moot the entire controversy.

The trial court issued a twofold injunction. By its terms, the order first enjoins the NCAA and Tech from enforcing the NCAA’s eligibility rules: “[T]he NCAA and Texas Tech ... are commanded forthwith to desist and refrain from taking any actions, [or] enforcing any rule or bylaw to prevent [Jones] from participating as a member of Texas Tech’s football team until judgment in this cause is entered.... ” The Court does not assert that there is a live controversy as to this portion of the injunction.

The second portion of the order enjoins the NCAA from enforcing its Restitution Rule:

Defendant NCAA is enjoined from involving and enforcing NCAA Operating Bylaw 19.8 entitled “Restitution” in the event that this Couri’s temporary restraining order or injunction as to the NCAA’s determination of [Jones’s] eligibility is subsequently voluntarily vacated, stayed, or reversed or it is finally determined by this or any other Court that injunctive relief is not or was not justified.

(emphasis added). This language mirrors that of the NCAA’s Restitution Rule, which states that the Rule applies only if an “injunction is subsequently voluntarily vacated, stayed or reversed or it is finally determined by the courts that injunctive relief is not or was not justified.” Application of the Restitution Rule (and also the injunction against the Rule’s enforcement) is contingent upon determining the validity of the injunction against enforcement of the eligibility rules. This condition has not been satisfied — the injunction against the NCAA’s enforcement of the eligibility rules has not been vacated, stayed, or reversed. Nor has any court determined that injunctive relief was or was not justified; that issue became moot before such a determination was made. Thus, by its own terms, the Rule may not be applied.

The NCAA could have avoided this predicament by amending the Restitution Rule to apply in cases like this, in which the eligibility issue becomes moot. For example, the Michigan High School Athletic Association employs a rule that tracks the Restitution Rule, but it may also take effect when an injunction “expires without further judicial determination.” MHSAA Regulation V, § 4(C), quoted in McPherson, 119 F.3d at 455-56. With this language, no determination regarding the validity of an expired injunction would be necessary for the NCAA to apply the Restitution Rule.

Nevertheless, the NCAA argues, and the Court agrees, that a controversy continues to exist because the NCAA’s right to apply the Restitution Rule, which would affect Jones’s legal interests by stripping him of any individual records or awards he may have attained and canceling the team victories in which he participated, is contingent on determining the validity of the eligibility-rules injunction. In essence, the NCAA argues that because the determination of a moot issue (the injunction regarding eligibility) affects the parties’ legal rights with regard to the application of the Restitution Rule, that issue is not really *90moot. But even if the terms of the trial court’s temporary injunction and the Restitution Rule itself do not prohibit the NCAA from enforcing the Restitution Rule in this instance, no live controversy exists between Jones and the NCAA regarding application of the Rule.

Because- Tech is not a party to the appeal, any controversy must be between Jones and the NCAA. But Jones has disclaimed any individual interest he may have had in the NCAA’s application of the Restitution Rule. Although Jones has not officially withdrawn, he has refused to mount a defense. Jones’s attorney moved to withdraw as counsel before oral argument in this Court because Jones refused to pay him, and Jones’s attorney received correspondence stating that Jones “does not want anyone doing anything further in connection with the appeal by the NCAA.” “There can be no doubt that an action is mooted if the plaintiff voluntarily withdraws.” 13A WRIGHT ET AL., FEDERAL PRACTICE and PROCEDURE, § 3533.2, at 231 (2d ed.1984).

The Court nonetheless attempts to revive a controversy by looking to Jones’s trial court petition. The Court states that “Jones specifically represented to the trial court that he would be adversely affected if the NCAA were not restrained from penalizing Tech.” 1 S.W.3d at 88. It is true that Jones petitioned the trial court to enjoin the NCAA from enforcing the Restitution Rule in the event that the injunction against enforcement of the eligibility rules was struck down. But Jones did not seek the injunction for the reasons posited by the Court: to preserve team victories and prevent the NCAA from “eras[ing] the records of Jones’s individual performance in each game played in under the injunction.” 1 S.W.3d at 88. Rather, Jones’s petition to the trial court states that he sought to enjoin application of the Restitution Rule to keep Tech from “exert[ing] significant pressure on [Jones] to forego judicial relief,” and to avoid “the potential consequences his ... decision to seek judicial relief may have on the institution, its athletic program and the team members.” Jones has already brought these institutional pressures to bear by seeking judicial relief, and while he may regret seeing the NCAA penalize Tech, he has never argued that the subsequent application of the Restitution Rule will affect his legal interests now. Furthermore, the Court points to no “individual records or performances” that Jones could assert if he so chose. Application of the Restitution Rule would have a meaningful impact only on Tech; but the effect on Tech, a nonparty, does not create a controversy here.

Other courts have considered whether a live controversy continues to exist between a student and a governing organization solely because the student has an interest in preventing the organization from erasing team victories and individual performances. Their holdings conflict. Compare McPherson, 119 F.3d at 458-59, and Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 928 (8th Cir.1994) (both holding that a live controversy continues to exist), with Johnson v. Florida High Sch. Activities Ass’n, 102 F.3d 1172, 1173 (11th Cir.1997), and Jordan v. Indiana High Sch. Athletic Ass’n, 16 F.3d 785, 788-89 (7 th Cir.1994) (both holding that no live controversy exists). There is no controlling Texas authority. Nevertheless, Jones has waived any such interest.

It is the law in Texas, however, that we will not sanction a decision regarding a temporary injunction’s validity once the injunction has become moot, because to do so would constitute an impermissible advisory opinion. See, e.g., Firemen’s Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex.1968). Yet, by remanding this cause to the court of appeals for a determination of the merits, the Court does just that. Because of the contingent nature of the injunction against enforcement of the Restitution Rule and the Rule itself, the court of appeals must decide the validity of the injunction against enforcement of the eligibility rules — a moot issue — before it can *91ever address the injunction against the enforcement of the Restitution Rule. And any potential controversy concerning application of the Restitution Rule does not exist between the NCAA and Jones, who has disclaimed his interest, but rather between the NCAA and Tech, a nonparty. Accordingly, I dissent.