concurring in part and dissenting in part
I concur with the majority regarding the constitutional claims in this case, as general principles of res judicata and collateral estoppel compel me to agree that the litigation in federal court resolved such issues. However, I respectfully dissent with regard to the majority’s application of the arbitrary and capricious standard in reviewing the underlying IHSAA decisions at issue here. I dissent as well regarding the majority’s conclusion that the IHSAA was wrongfully enjoined and its remand to the trial court for an assessment of expenses and fees.
To me, this case concerns notions of fundamental fairness and fair play. I would note that the IHSAA is not a voluntary organization for students subject to its decisions. Rather, students who have no voice in the IHSAA must abide by its rules or be deprived of the right to enter into sports activities at the level which their skills merit. The importance of this *336case, for me, lies in the fact that students learn at the hands of the IHSAA some of their early lessons about what constitutes fair play in decision-making. Unfortunately, students acquainted with the IHSAA’s conduct in this case might reasonably conclude that winning at all costs is more important than fair play.7
As our supreme court noted in Indiana High School Athletic Ass’n, Inc. v. Carlberg, 694 N.E.2d 222, 233 (Ind.1997), we review IHSAA decisions under an “arbitrary and capricious” standard, which is indeed a narrow one. However, it is not entirely empty. A decision is arbitrary and capricious when “it is willful and unreasonable, without consideration and in disregard of the facts or circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusion.” Id.
In this instance, I would first note that we review the IHSAA’s decision here only to decide whether it was wrongfully enjoined. To do so, we must determine whether Vasario established a likelihood of success on the merits.8 This determination entails the need to review the underlying decisions of the IHSAA. I would note as well that trial court findings, including preliminary injunctions, are to be reversed only if they are clearly erroneous. Ind. Trial Rule 52(A); National Sanitary Supply Co. v. Wright, 644 N.E.2d 903, 906 (Ind.Ct.App.1994).
In deciding whether the IHSAA’s decision was arbitrary and capricious, I would observe that if any conceivable problem qualifies for a hardship exception, the problems encountered by Vasario do: they were beyond the control of his school, his family, and himself. None argue in this case that Vasario even understood that his program had been disqualified from any list deemed important by the IHSAA before he was already attending school in Crown Point.
As the majority correctly observes, “Va-sario’s situation seems to epitomize the reason the hardship exception was created.” Op. at 333. To my mind, this ultimately means that the refusal to grant a hardship exception in this case was arbitrary and capricious as that standard is defined. The majority has in effect found no basis whatsoever for the IHSAA’s decision which would lead a reasonable and honest person to the same conclusion. Instead, in my view, the majority has interpreted Carlberg to mean that the IHSAA’s refusal to grant a hardship exception is simply unreviewable. I do not think that this is the standard which our supreme court meant to impose. As a result, I would find that the trial court did not err in finding that the IHSAA’s refusal to grant a hardship exception was arbitrary and capricious, and that the trial court properly awarded preliminary injunctive relief after considering the criteria, cited by the majority, for granting such a remedy. Op. at 334.
Finally, with regard to the IHSAA’s request for attorneys fees, I respectfully disagree that we must remand to the trial court so that it may determine what expenses and fees were reasonably incurred during in the IHSAA’s continuation of this case. On this, the trial court has spoken. It found that the maintenance of the suit was, in essence, unwarranted and that it constituted an obvious attempt to discourage other students from appealing IHSAA decisions. R. at 349. I would thus find the IHSAA undeserving of attorneys fees.
I would remand, however, for a different reason. I would find that, under Ind.Code § 34-52-1-1 and Ind. Appellate Rule *33715(G), this is a frivolous appeal. I would remand with instructions that fees should be assessed against IHSAA because of the multiple indications of bad faith which characterize its pursuit of this case, including its repeated refusal to allow the case to be dismissed, as Vasario requested five years ago and at several points thereafter.
. I would note that public consensus over the issue of fair play has recently led to a legislative bill, passed by both houses of our legislature, which would guarantee a new review system for appealing IHSAA decisions. H. 1018, 111th G.A., 2nd Sess. (Ind.2000).
. The trial court must consider other criteria as well before granting an injunction, and these are cited by the majority. Op. at 334. However, I understand the dispute here to be essentially over whether Vasario had a case likely to succeed at trial.