                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0283-15T1

ANDREA DAVIDOVICH, a/k/a
ANYA DAVIDOVICH,                     APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                 June 23, 2016

v.                                       APPELLATE DIVISION


ISRAEL ICE SKATING FEDERATION,
BORIS CHAIT, IRINA a/k/a IRENE
CHAIT, and GALIT CHAIT,

     Defendants-Appellants.
______________________________________

         Argued January 4, 2016 – Remanded March 5, 2016
         Reargued May 31, 2016 – Decided June 23, 2016

         Before    Judges    Sabatino,    Accurso      and
         O'Connor.

         On appeal from the Superior Court of New
         Jersey, Law Division, Bergen County, Docket
         No. L-8543-14.

         Brian D. Spector argued the cause for
         appellants (Spector & Ehrenworth, P.C.,
         attorneys; Mr. Spector, Douglas A. Goldstein
         and Danielle M. Koch, on the briefs).

         Christopher J. Dalton argued the cause for
         respondent (Buchanan Ingersoll & Rooney PC,
         attorneys; Stuart P. Slotnick, Mr. Dalton,
         Tanya D. Bosi, and Lauren A. Isaacoff, on
         the briefs).

     The opinion of the court was delivered by

SABATINO, P.J.A.D.
     Plaintiff is a teenage ice skater of dual United States-

Israeli    citizenship.              She    filed    this    complaint    in    the    Law

Division seeking to break free from the Israeli ice skating

federation she represented in the pairs event at the 2014 Winter

Olympics.      Plaintiff,            whose   Israeli     skating      partner    severed

their relationship shortly after the Olympics, now wishes to

compete internationally for the United States.

     For the past two years the federation has fiercely resisted

plaintiff's efforts to gain her release, even though it has no

apparent plans or desire to have her skate under its flag again.

The federation contends that if it were to release plaintiff

unconditionally, doing so will encourage other skaters in whom

it   has    invested           substantial          resources    to     switch      their

affiliations       to        other    countries,       for    their    sole     personal

advantage    and        to     the    federation's       detriment.           Meanwhile,

plaintiff   has     not        skated      internationally      for    more    than    two

years.

     Faced with these and other difficult time-sensitive issues,

the trial court granted partial summary judgment to plaintiff

last September.              The court ordered the federation, over its

strenuous objection, to issue plaintiff a release permitting her

to skate for another country.




                                              2                                  A-0283-15T1
    The     court     rejected    the     federation's        asserted     business

reasons    for   not    releasing        plaintiff,      finding    its     motives

"inscrutable."       In addition, the court declined to grant summary

judgment   to    either   party     on    plaintiff's         separate    claim    of

tortious     interference         with       her        prospective        economic

opportunities, directing that claim be resolved by a jury.                          We

granted the federation leave to appeal, but kept                         the court-

ordered release provisionally in place.

    Following oral argument in January, we ordered plaintiff,

with her acquiescence, to attempt to exhaust remedies that might

have been available to her under the then-existing rules of the

sport's umbrella organization, the International Skating Union

("ISU").    After she took certain steps to do so without success,

we temporarily remanded the case for an evidentiary hearing to

resolve    factual     disputes   relating         to   the    adequacy     of    her

efforts.

    On remand, the trial court ruled this spring that plaintiff

has sufficiently attempted, both directly and indirectly through

requests she made of the United States team, to obtain a release

from the ISU.       The federation appealed that separate ruling and

we heard reargument in late May after post-remand briefing.

    In the past two weeks, the posture of this case changed

dramatically in several respects.            Most importantly, at its June




                                         3                                  A-0283-15T1
2016 biannual meeting, the ISU Congress revised its eligibility

rules     for    skaters     who       have     previously       competed        for    other

federations.        In     particular,         the     new    version       of    the   rules

instructs that after a twelve-month waiting period has run, a

skater's request to be released from her prior federation "shall

not be unreasonably denied." In addition, the revised rule now

states    that    the    ISU      may     waive      the     release    requirement        in

undefined "special circumstances."

    A     few    days    after     these      rule     changes       were    adopted,     the

United States skating organization tendered to the ISU a formal

request    to    grant     such    a     release      for    plaintiff,       despite     the

federation's continued opposition.                        As of this writing, that

request remains pending before the ISU.                        Meanwhile, the rosters

of each federation for the coming international skating season

are to be fixed as of July 1.

    For the reasons that follow, we reverse the trial court's

partial    summary       judgment        order      and     remand    this       matter   for

disposition of the remaining counts of the complaint.                              We do so

principally      because     of     (1)       the    strong     policies         disfavoring

judicial    interference          into    the       internal    affairs      of    sporting

organizations, (2) the need for possible non-judicial remedies

to be exhausted, and (3) the presence of genuine and hotly-

contested issues of material fact and business justification.




                                               4                                    A-0283-15T1
                                             I.

    Although there is discovery left to complete, the present

record     supplies      the        following         details        pertinent     to    our

interlocutory review.

    Plaintiff, the Federation, and the ISU

    Plaintiff Andrea (or "Anya") Davidovich is a dual citizen

of the United States and Israel.                        She is presently nineteen

years of age and has resided in New Jersey her entire life.                              Her

parents,       who     are     immigrants             with     Russian     and     Israeli

backgrounds, likewise reside in New Jersey.

    Plaintiff has trained as a figure skater since she was five

years    old.        After    she    became       a    teenager,       plaintiff    joined

defendant    Israel     Ice    Skating       Federation         ("the    Federation"      or

"the IISF"), for whom she skated in various junior competitions.

    The Federation is a private organization that trains ice

figure   and    speed    skaters       to    take       part    in    international      ice

skating competitions as representatives of Israel.                          Although it

is based primarily in Israel, the Federation also trains skaters

at facilities in the United States.                     Since 2002, defendant Boris

Chait has served as the Federation's president.                           Boris's wife,

defendant Irina (also known as "Irene") Chait, serves as the

Federation's     "team       leader    and    chaperone"         who    accompanies      the

team members to competitions.                 Their daughter, defendant Galit




                                             5                                     A-0283-15T1
Chait,      is    an    ice      dancing          coach       and    choreographer        for    the

Federation as well as other teams.

       At   the       age   of    sixteen,          plaintiff         was      selected    by    the

Federation       to    be     part     of     a    pairs      team    with      another    skater,

Evengi Krasnopoloski.1                 In July 2013, plaintiff, and her mother

as   her    adult      guardian,         jointly          signed      a     one-page     ISU    form

document       entitled       "Declaration              for    Competitors        and    Officials

entering ISU Events."                   The Declaration was counter-signed by

Anna Slavin, the General Secretary of the Federation.                                       No one

signed the document for the ISU.

       Among other things, the Declaration acknowledged that the

parties        who     signed      the      document           accepted         the     terms    and

provisions        of    the      ISU    Constitution.                 The      signatories      also

recognized the Court of Arbitration for Sport ("CAS") as having

the authority "to issue final and binding awards involving the

ISU,     its     Members       and      all       participants            in   ISU    activities,

excluding all recourse to ordinary courts."

       The ISU is the exclusive international sport organization

recognized by the International Olympic Committee to administer

figure skating and speed skating sports throughout the world.

Int'l Skating Union Const. § I, art. 1, para. 1.                                        The ISU is


1
  At various places in the record his first name is alternatively
spelled "Evengy" and his last name is spelled "Krasnopolsky."



                                                    6                                      A-0283-15T1
composed    of     individual        national         associations       (known       as

"Members"), which administer these sports at the national level

and which "recognize that all international matters are under

the sole jurisdiction and control of the ISU."                           Skaters who

compete for a Member are considered members of that individual

organization.          Int'l Skating Union Gen. Regs. § D, rule 109,

para. 2(a).

    The ISU is a Swiss association established in accordance

with Article 60 of the Swiss Civil Code, placing it under the

jurisdiction      of    Switzerland.          The    ISU's    legal    residence      is

Lausanne, Switzerland. Int'l Skating Union Const. § I, art. 1,

para. 6.

    The ISU's stated objectives are "regulating, governing and

promoting   the    sports    of     Figure     and    Speed    Skating    and     their

organized   development      on     the   basis      of     friendship   and    mutual

understanding."         Id. at § I, art. 3, para. 1. According to its

governing documents, the ISU works to "broaden[] interest in

Figure and Speed Skating sports by increasing their popularity,

improving     their       quality     and      increasing        the     number       of

participants throughout the world."                 Ibid.

    The ISU "does not approve of interference in its sports

based on political or any other grounds and will make every

effort to avoid such interference."                  Id. at § I, art. 3, para.




                                          7                                    A-0283-15T1
3.    It        functions     within     the   sport     essentially        as   both       an

adjudicative and legislative body, listing among its "Methods

and       Activities"          such    functions       as      the       "settlement        of

differences" and the "publication of official decisions."                                 Id.

at § I, art. 4, para. 1(e).

          The ISU has issued a set of general regulations.2                               The

regulations are designed to "govern the Figure Skating and Speed

Skating Branches of the ISU and are binding to all Members and

affiliated clubs as far as international matters are concerned."

Additionally,           the     ISU    periodically         issues       "Communications"

regarding the proper interpretation of ISU rules.                          Int'l Skating

Union Const. § VI, art. 27, para. 1.

          The    ISU    is    governed    by   two   bodies:         a   Congress     and    a

Council.          The    Congress      has     primary      "decision-making           power

regarding any matter[,]" but normally dictates principles and

directions, leaving the Council to determine the details.                                 Id.

at    §    VII(A),      art.    29,    para.   21.       The    Council      governs      the

organization in between meetings of the Congress, and consists




2
  The ISU collectively refers to its Constitution, Regulations,
and Communications, among other rules and policies, as the "ISU
Statutes."   Id. at § VII, art. 38, para. 1.      Members, their
skaters, and all other participants are bound by the Statutes,
as is required by Article 7 of the ISU Constitution.




                                               8                                    A-0283-15T1
of    a    president     and       several    other      elected     leaders.    Id.      at   §

III(B), art. 16, para. 1.

          ISU   Rule    109    applies       to       participation    in    international

skating competitions.                As it was worded before the June 2016

revisions, Rule 109(1) provided in pertinent part:

                [t]he International Competitions, listed in
                Rule 107, paragraphs 5, 6, 7, 9, 10, 11 and
                12 organized by Members, may be entered only
                by Competitors who belong to a Member and
                for whom the entry can be made only through
                the respective Members.    For participation
                in the Olympic Winter Games, Rule 126
                applies.

                [Int'l Skating Union Gen. Regs. § D, rule
                109, para. 1. (emphasis added).]

Meanwhile,        ISU    Rule      126,   which         governs    eligibility      for    the

Olympics, specifies that entry in the Winter Games is subject to

the       requirements        of    the   Olympic         Charter,     as    well   as     the

applicable ISU Regulations.                  Int'l Skating Union Gen. Regs. § E,

rule       126,   para.       2.       "Only          Competitors     from   Members       may

participate in the Skating events of the Olympic Winter Games."

Id. at para. 7.

          According to the Olympic Charter, "[a]ny competitor in the

Olympic Games must be a national of the country of the [team]

which is entering such competitor."                       Olympic Charter, Rule 41(1)

(2015).         Consequently, plaintiff cannot skate in the Olympics




                                                  9                                 A-0283-15T1
for any country other than the United States or Israel, even if

her partner is a citizen of some other country.

       Plaintiff's Skating at the 2014 Olympics, Her Pairs
       Partner's Ensuing Departure and Her Efforts to Find a New
       Partner

       Plaintiff skated for the Federation with Krasnopoloski in

various international pairs competitions in 2013.                                 The two of

them     did     very        well,      placing         seventh       in       the   European

Championships in Budapest in January 2014 and winning a monetary

prize.         As   a    result         of     their        successes,         plaintiff    and

Krasnopoloski       qualified           to    represent       the   Federation        at    the

February 2014 Winter Olympics in Sochi, Russia.                                As such, they

were the first figure skating pair to ever represent Israel in

the Olympics.         The two of them competed and placed fifteenth in

Sochi.

       Shortly      after         the        Olympics        concluded,         Krasnopoloski

announced      that     he       was    ending       his    skating      partnership       with

plaintiff, asserting that he no longer wished to train with the

pair's coach.           Efforts to reunite Krasnopoloski and plaintiff

failed, although the parties disagree about who was responsible

for those efforts and why they were unsuccessful.                               In any event,

plaintiff attempted to find a different partner, advertising her

interest       through       a    profile       she        posted   on     a     website    for

competitive skaters.




                                                10                                    A-0283-15T1
       For reasons that are sharply disputed, the Federation and

plaintiff effectively discontinued their association soon after

the     Olympic       Games.           According        to     plaintiff,        defendants

instructed skaters and other persons with the Federation not to

speak       with   her    and    excluded         her    from    training        and    other

activities.         On the other hand, the Federation insists that

plaintiff      herself      withdrew      from     the       Federation's    activities,

although      it   agrees       that    it   no    longer       desires     to    have    her

represent Israel in skating competitions.

       Although the record is not fully developed in this respect

and the details are not central to the legal issues now before

us,    it    appears     that    various     personal         conflicts     arose      during

plaintiff's        tenure    with      the   Federation.           The     disagreements

included      defendants'        concerns       about        plaintiff's    interactions

with her teammates and coaches.                    Plaintiff, on the other hand,

maintains      that      defendants      and      the    coaches       treated     her    too

harshly, and have defamed and disparaged her.

       Plaintiff       briefly    attempted        to    skate    in    domestic       events

with    different        partners.      These     included,       in    succession,       two

American male skaters affiliated with the United States Figure

Skating Association ("USFSA"), another Member of the ISU.




                                             11                                     A-0283-15T1
     The Prescribed ISU Release Process

     To be authorized to skate for the United States or another

Member    country       in    international           competitions       or    in    the   next

Olympics,       plaintiff      must    comply         with     certain     ISU      provisions

requiring her to be "released" by her former team, here the

Federation.           Specifically, prior to its June 2016 revision, ISU

Rule 109, Paragraph 2(c) provided, among other things, that if a

partner    in     a    pair   skating       or    ice    dance    couple       "has   already

represented another Member, regardless of the discipline," that

partner must: (1) obtain a "permit from the Member the Skater

represented" and (2) not compete for a "waiting period [of] 12

months from the day of the last competition in which the Skater

represented another Member."                 Int'l Skating Union Gen. Regs. §

D, rule 109, para. 2(c).              These restrictions applied even if the

partner     has       citizenship      or    residency          in   the      new     Member's

territory.       Ibid.

     ISU     Communication            No.        14203    similarly        described        the

procedure for obtaining permission from a Member that the skater

previously       competed      for    to     skate       for    another       Member.       The

procedure applies to "any present citizen and skater of the

Member who has in the past represented another ISU Member in an

3
  Apparently, the ISU intends to amend Communication 1420 soon to
conform to the June 2016 revisions made to Rule 109.




                                                 12                                   A-0283-15T1
international competition and/or ISU championships and whom the

Member intends to enter in international competitions and/or ISU

Championships in the coming season as a representative of the

Member."

    For skaters applying for clearance to compete in pairs and

dance couples, Rule 109 prescribed that "Members may file the

application [for release] at any time.              Of course if the waiting

period of 12 months applies, the application can be filed only

after   such   period     has   been    reached."       Int'l     Skating       Union

Communication No. 1420, Rule 109, § A, para. c, § A, para. c

(emphasis added).         Skaters in situations requiring a release

from a former Member were eligible to compete in international

competitions      "only   after   the     applying     Member     has    submitted

satisfactory documentation and received from the Secretariat an

ISU Clearance Certificate[.]"           Id. at para. d.

    The    ISU    Council   was   authorized      (and    remains       authorized

under   amended    Rule   109)    in    certain   circumstances         to    exempt

particular     skaters    from    these      waiting     period    and       release

requirements.      In that vein, paragraph 5 of Rule 109 stated that

"Exceptions to Paragraphs 2 & 3 of this Rule may be granted by

the Council, which may also enter a Competitor for an event[.]"

Int'l Skating Union Gen. Regs. § D, rule 109, para. 5.                             ISU




                                        13                                   A-0283-15T1
Communication 1420 further addressed the exception process and

standards, as follows:

             Although . . . the Council [has] the powers
             to grant exceptions from the requirements of
             citizenship, residence, permits by Members
             and waiting periods, it has always been the
             policy of the Council not to grant any
             exception simply for the skater to change
             Members.   Exceptions might be granted only
             in cases where a serious hardship would
             occur without such exception (e.g. such as
             application of a new rule after certain
             action[s] have been taken in good faith
             prior to adoption of the rule, unjustified
             denial of a permit by a Member to a skater
             who has not represented that Member at all
             or for a number of years, etc.).

             [Int'l Skating Union Communication No. 1420,
             Rule 109, § D (emphasis added).]

Additionally, the ISU Constitution more generally authorizes the

ISU Council to modify or suspend its rules in "rare" cases of

"exceptional circumstances[.]"         See Int'l Skating Union Const. §

III(B), art. 17, para. 1(q).

    The CAS Arbitration Process

    Decisions     of   the   ISU   Council   "shall   not   be    subject   to

appeal except as explicitly set forth in other provisions of the

ISU statutes."     See § III(B), art. 17, para. 2(a).            Appeals of a

Council decision must be heard by the CAS.            Id. at § V, art. 25,

para.   1.     Through   the   ISU's    Constitution,    all     Members    and

skaters are directed to submit any disputes or claims that are

not covered by the ISU's rules and regulations to the CAS for



                                       14                            A-0283-15T1
final binding arbitration.             Id. at § V, art. 26, para. 1. The

CAS is empowered, among other things, to hear and decide appeals

of "any decision of the Council declaring ineligibility of a

Skater,    Official,    Office      Holder       or    other    participant       in   ISU

activities."      Id. at § V, art. 25, para. 2(c) (emphasis added).

       CAS decisions are "final and binding to the exclusion of

jurisdiction of any civil court."                 Id. at § V, art. 25, para. 6.

However, CAS decisions may be appealed to the                             Swiss Supreme

Court, also known as the Federal Tribunal.                            See CMS Cameron

McKenna    LLP,   CMS   Guide     to      Arbitration          898    (2012);     Antonio

Rigozzi,    Challenging     Awards      of       the   Court    of    Arbitration      for

Sport, J. Int'l Disp. Settlement 1(1): 217-65 (2010).

       Judicial    review    by     the      Swiss     courts        of   CAS   arbitral

decisions is severely restricted, and such decisions can only be

challenged on limited specified grounds.                   Those limited grounds

include, among other things, a "violation of the principle of

equal treatment of the parties or the right to be heard."                              CMS

Cameron McKenna LLP, supra, at 898-99.                   The arbitrariness of an

award is not reason in and of itself for annulment under Swiss

law.   Id. at 899.

       Plaintiff's Unsuccessful Attempts to Procure a Release from
       the Federation

       After the Sochi Olympics and Krasnopoloski's withdrawal,

plaintiff's    parents      tried      to    obtain      for    her       the   necessary



                                            15                                   A-0283-15T1
release from the Federation. They sent this email request to

Boris Chait on April 30, 2014:

            Dear Mr. Chait:

                 It has been 2.5 months since Evengi
            Krasnopolsky officially ended partnership
            with [plaintiff].     While [plaintiff] (as
            everyone in our family) had been really
            proud to be a member of the Israeli Figure
            Skating Federation and to represent [the]
            state of Israel, she has decided to pursue
            other opportunities to advance her career.

                 Please issue an official Release Form
            for [plaintiff] as soon as possible.

                 We would like to thank the Israeli
            Federation and you personally for a great
            experience and wish you continuous success.

            With kind regards,
            [Sasha] and Marina Davidovich.

            [(Emphasis added).]

       The Federation did not provide an immediate decision in

response.    Instead, it contacted the ISU to obtain clarification

as   to   whether      the    request    should    have   come    from    plaintiff

herself rather than from her parents, or whether it should come

instead     from    "[an]other          member    federation."           The      ISU's

representative replied in an email stating, "If the Skater wants

to leave the Federation in order to represent an[]other Member,

then   it   is   the    new    Member     who    should   ask    for   the     release

letter."    (Emphasis added).




                                          16                                   A-0283-15T1
       Following    this      clarification,          plaintiff   obtained     the

assistance of the USFSA to seek a release from the Federation on

her behalf.    In a letter dated May 28, 2014, the USFSA requested

the    Federation    to      "grant    the      required   release   letter     so

[plaintiff    would]    be    able    to    compete    internationally   in    the

future as a member of U.S. Figure Skating."

       The Federation referred the USFSA's request to its Board,

which met shortly thereafter.              The Board decided to reject the

request, noting that it was not inclined to do so at that time,

even   if   plaintiff      paid   what     it    considered   a   "standard"    or

"customary" release fee.              A translated version of the Board

minutes on this decision reads as follows:

            [Plaintiff] asked for a release through the
            American Federation.   We need to answer the
            Federation with [a] decision that we are not
            releasing her for the moment, not even for
            the standard amount of $20,000.    It is the
            custom to request for an athlete at this
            level about $30,000. We will check with the
            international organization what could happen
            if we release her and if we don't.

            It has been decided that in light of the
            high cost for financing athletes, the board
            must [make] the decision that if the athlete
            wants to transfer to another Federation, the
            following rules apply:

                   1. A team member that wishes to
                   leave will pay a fine to Israel
                   Ice Skating Federation in the
                   amount of $25,000.    Level A —
                   World Championship, Junior World




                                           17                            A-0283-15T1
                  Championship,              European
                  Championship, the Olympics.

                  2. A team member that participated
                  in international competitions and
                  Grand Prix will pay a fine of
                  $15,000.

                  3. The release [request] will be
                  examined   by  the   [Federation's]
                  non-profit    organization    board
                  after a discussion on the matter.

          [(Emphasis added).]

    Following the Board meeting, the Federation issued a formal

denial   letter   to   plaintiff   on    July   2,   2014.      The    letter

highlighted   several    reasons   for    the   denial,      including      the

investment made by the Federation in plaintiff's skating career

and also the fact that she had not yet completed the one-year

waiting period prescribed by the ISU rules.           The letter stated,

in pertinent part:

               We would like to share some thoughts
          about your request to release [plaintiff].
          Twelve months ago, we undertook the project
          of [plaintiff] & Evengi Krasnopolsky.

               Evengi was [an] established skater
          with many years of experience—single & pair
          skating, while [plaintiff] was [a] junior
          skater with very little capability & only a
          few junior competitions.    The Federation's
          athletes, coaches, [and] technical committee
          staff did a great job to develop the pair.
          They placed 7th in the Europeans and
          qualified for the Sochi Olympics, which was
          quite an accomplishment.




                                   18                                 A-0283-15T1
                We cannot overestimate all the work
           that was done and the time invested by
           everybody at the Federation. We are a small
           Federation.   Every athlete and every dollar
           spent is very crucial for our existence.

                It is harmful to the Federation if an
           athlete comes to skate for the IISF[,]
           learns new skills[,] and reach[es] new goals
           and then eventually leaves the Federation.

                Under these circumstances at this time,
           we can't grant a release for [plaintiff].
           In any event[,] under ISU rules, [plaintiff]
           has to sit out one year from her last
           competition.   So there's time to consider
           this request in the future.

                We would address this issue again
           because we always were, are and will be a
           pro-athlete Federation.

           Thank you for your understanding.

           Anna Slavin on behalf of the board members.

           [(Emphasis added).]

      After     this    exchange,    Boris       Chait       sought   further

clarification    from   the   ISU,   asking      if    the    Federation    was

obligated to release plaintiff once her one-year waiting period

lapsed.   The ISU's representative replied that a release is "not

automatic[,]" and that even after the one-year waiting period

ends, "it is up to the Member federation to decide whether or

not they wish to release a Skater."          In a follow-up message, the

ISU   representative    confirmed    that   if   the     Federation   decided

after the waiting period not to release plaintiff, the ISU would




                                     19                               A-0283-15T1
not issue the necessary              "clearance certificate" allowing her to

skate for another Member.

    Plaintiff's Lawsuit and Her Continued Efforts to Seek a
    Release After the One-Year Waiting Period Expired

    In      September         2014,     plaintiff,          through      her     mother    as

guardian,    filed       in    the     Law       Division    a    ten-count       complaint

against   the     Federation          and    the    three     Chaits.          Among   other

things,     the       complaint        asserted       that       the     Federation       has

"unreasonably refused" to release her and that, as a result, she

is "unable to advance her career and skate in international ice

skating   competitions          for     another       team."           Plaintiff    further

claimed   that        defendants      have       wrongfully      interfered        with   her

"ability to compete internationally for the USFSA and further

her professional skating career."

    The complaint sought in count one what plaintiff styled as

"declaratory judgment" – but which essentially was a request for

mandatory    injunctive         relief       –    compelling      the     Federation      "to

issue   [her]     a    written       release[.]"        In       count    two,    plaintiff

claimed that the Federation has tortiously interfered with her

prospective economic advantage, and is thereby liable to her for




                                             20                                     A-0283-15T1
monetary      damages.4        Plaintiff      demanded      equitable      relief      and

monetary damages.

       Defendants       denied    liability       and    interposed       a    host        of

affirmative defenses.            Unlike plaintiff, defendants requested a

jury trial.          Discovery has been partially completed, including

the deposition of plaintiff and several other persons.                                 The

individual defendants have not yet been deposed, although they

submitted interrogatory responses explaining why they believe

they were justified in withholding a release.

       In     essence,     defendants        maintain     that     they       undertook

reasonable      steps     to    attempt      to   reunite    plaintiff         with    her

partner and that she and her parents rebuffed those efforts,

that they preserved a spot for the pair through the time of the

World       Figure   Skating     Championship       in   March     2014,       and    that

plaintiff never proposed a new partner to the Federation for its

approval.       Defendants further stressed the resources and time

they    expended     in   training     and    coaching      plaintiff,        contending

that    a    donation     of   over   $60,000     her    parents   had     made       to   a


4
  The remaining counts of the complaint, none of which were
adjudicated by the trial court and are not at issue before us,
included claims of intentional and negligent infliction of
emotional distress by the Chaits (counts three and four),
various forms of defamation by Boris Chait (counts five, six and
seven), invasion of privacy and false light against Boris and
Irene Chait (counts eight and nine), and negligence against all
three Chaits (count ten).



                                           21                                   A-0283-15T1
separate tax-exempt organization for the benefit of Federation

skaters did not sufficiently cover those expenses.                        Defendants

also claim that plaintiff had engaged in improper behavior while

she   was    a     member   of    the   team,   and    that    plaintiff     herself

terminated her relationship with the Federation.

      Plaintiff's one-year waiting period expired on February 12,

2015.       That    month   the    USFSA    made   a   second     request       to   the

Federation to release her, which the Federation again denied.

      The Parties' Motions for Partial Summary Judgment

      Before the scheduled end of discovery, defendants moved for

partial summary judgment, seeking the dismissal of counts one

and two of the complaint.               Plaintiff cross-moved for partial

summary judgment, requesting the court on count one to compel

the Federation to issue her a release permitting her to skate

internationally for another Member country.                     As to count two,

plaintiff asked the court to find defendants liable for tortious

interference, subject to a trial on damages.                    None of the other

eight counts of the complaint were included in the parties'

motion practice.

      The Trial Court's September 2, 2015 Decision

      After hearing oral argument on the motions, the trial court

issued   an      order   and     written   opinion     on     September    2,    2015,

granting plaintiff summary judgment and other relief on count




                                           22                               A-0283-15T1
one.     The court determined there was "no legal or equitable

basis for the [Federation] to continue to refuse to release

[plaintiff] from her membership with the organization, and she

must therefore be released immediately so that she may pursue

opportunities to skate internationally on behalf of the United

States of America."

       The court found unpersuasive defendants' threshold argument

that the Superior Court lacked jurisdiction to adjudicate the

dispute because plaintiff had agreed to abide by the rules of

the ISU and must exhaust her administrative appeals through that

body.      The    court    deemed    those      ISU   provisions      "simply      not

dispositive of . . . [p]laintiff's rights and privileges as a

citizen of the United States of America and a resident of the

State of New Jersey."

       The trial court deemed plaintiff's request in count one for

a   declaratory      judgment     justiciable.        The   court    distinguished

plaintiff's       circumstances      from      non-justiciable       controversies

involving membership disputes within private associations.                          In

that    regard,    the    court   noted     that   plaintiff   had    not    been    a

member    of   the    Federation     since      February    2014     and    that    no

"membership decision" had been made.

       Substantively, the trial court concluded in essence that

the Federation's refusal to allow plaintiff to skate for another




                                          23                                A-0283-15T1
Member of the ISU constituted a serious injustice that demanded

a remedy.        The court specifically determined from the motion

papers that the Federation was "withholding a release with an

inscrutable motive, despite the termination of the [p]laintiff's

membership with that federation." (Emphasis added).

      Additionally,           the    court       ruled       that        plaintiff     had    not

waived, "in the form of an arbitration agreement or otherwise,"

her   right      to     litigate       her       rights      in     the      Superior    Court,

regardless of whether an ISU appeal process existed and whether

such a process was fair or reasonable.                            The court reasoned that

(1) the parties "vigorously dispute[d] whether any contract at

all existed between [p]laintiff and the [Israeli Federation], or

the   ISU";      (2)     defendants'         characterization                 of    plaintiff's

signing    an    agreement          "with    a    non-party         to       this   litigation"

(meaning    the       ISU)     as    "some       sort       of    binding      administrative

proceeding"       was        unpersuasive;            (3)    the        Federation    had     not

"deal[t]    in    good       faith     and   fairly         with"       plaintiff;      and   (4)

plaintiff's "commercial viability, as well as [her] rights and

privileges       as     [a]     U.S.     Citizen[]"              were     being     "unlawfully

restricted,"          such    that     "mere          reference         to    the    rules    and

regulations codified by a non-party entity [(the ISU)] [we]re

insufficient" to meet the standards under New Jersey case law

governing the enforceability of arbitration provisions.




                                                 24                                     A-0283-15T1
    The   trial   court        declined,    however,    to    grant    summary

judgment to either side on count two.                The court found that

plaintiff needed to proceed to trial on the issue of tortious

interference because it was not clear from the record that the

Federation's   failure    to    release     her    caused   her   to   lose   an

"ascertainable prospective economic advantage."

    The Court-Ordered Release

    Defendants initially did not carry out the trial court's

order directing them to issue plaintiff's release.                     Instead,

they sought a stay of that order, which the court denied. The

court then imposed sanctions because of their failure to comply

promptly with the initial order.

    Defendants    eventually       issued     the    court-ordered      release

under protest on September 25, 2015.              Consistent with the terms

of the trial court's directive, the release stated as follows:

          Dear International Skating Union Member:

               Please let this letter serve as the
          permit,    or     release,    required    by
          International Skating Union ("ISU") Rule
          109(2)(c) (as clarified by ISU Communication
          No. 1420(B)(1) and (3) to allow Andrea
          Davidovich ("Davidovich") to compete in any
          ISU Figure Skating and Speed Skating Sports
          and Olympic Winter Games ("International
          Competitions") on behalf of any ISU member
          (as defined in Article 1, Sections 1 and 3
          of the ISU Constitution), including but not
          limited to United States Figure Skating
          Association ("USFSA").   This release is not
          limited.



                                     25                                A-0283-15T1
                Davidovich    previously    skated    in
           International Competitions on behalf of the
           Israel     Skating    Federation    ("IISF").
           Davidovich    has  not    competed   in   any
           International Competition on behalf of the
           IISF since the 2014 Olympic Winter Games and
           is no longer affiliated with the IISF.

                With this letter, the IISF releases
           Davidovich pursuant to all ISU Rules and
           give   her    permission   to   compete   in
           International Competitions on behalf of any
           other ISU member.   Accordingly, there is no
           restriction or impediment to Davidovich
           skating as a member of the USFSA in any
           event.

     This Interlocutory Appeal

     Defendants       moved   for    leave     to   appeal   the   trial   court's

grant of relief to plaintiff on count one, and its denial of

their   motion   to    dismiss      her   tortious    interference    claims      in

count two.       Defendants also sought an appellate stay of the

court-mandated release.          The Federation issued a press release

announcing its pursuit of an appeal, emphasizing its position

that the trial court had erred in intervening in this sports-

related controversy.5         Plaintiff did not cross-appeal the denial

of her own motion for partial summary judgment on count two.

     We granted defendants leave to appeal but denied a stay

under Rule 2:9-5.        In doing so, we noted in our corresponding

5
  Plaintiff contends that this press release and a later one
issued by the Federation have hindered her efforts to find a new
partner and pursue her skating career.



                                          26                               A-0283-15T1
order that defendants had "not demonstrated that the balance of

equities warrants altering the status quo resulting from the

trial     court's    order      during      the       interim          period   while     this

accelerated appeal is considered on its merits."                            We also noted

defendants'      failure     to    show     they      would      suffer     immediate     and

irreparable harm during the pendency of the appeal, or that the

public interest compelled the entry of an appellate stay.

      The First Sua Sponte Order in January 2016 Directing
      Plaintiff to Attempt to Exhaust Non-Judicial Remedies

      After      considering       the    briefs         and    oral     argument    on    the

appeal,     it    became     evident      to        this       court     that   a   critical

threshold issue was whether plaintiff had a remedy with the ISU,

either directly or through the USFSA.                       Consequently, we issued a

sua   sponte     order     on     January      6,    2016,       two     days   after     oral

argument, directing plaintiff to attempt to obtain such possible

remedies as a condition of her continued right to use the court-

ordered release.         Plaintiff's counsel indicated at oral argument

that his client did not object to doing so.

      We accordingly ordered plaintiff to pursue such measures,

even though we acknowledged that the provisions within the ISU

did   not   clearly      afford     her     as      an     individual      skater    such    a

pathway to redress.             Meanwhile, the Federation issued another




                                            27                                      A-0283-15T1
press release, incorrectly stating that our sua sponte order had

"overturned" the trial court.6

     Plaintiff thereafter submitted a letter petition to the ISU

on January 27, 2016, seeking relief from the Federation's denial

of a release.      The letter requested that the ISU either: (1)

declare   that   plaintiff      was     released     from   the     Federation    and

could therefore skate for another ISU member, (2)                         waive the

release requirement, pursuant to Rule 109(5), so that she could

skate    for   another    ISU    member,      in     addition      to   providing    a

clearance certificate allowing her to skate in ISU events, or

(3) accept or adopt the release that the Federation issued her

pursuant to the trial court's order.

     On a parallel track, plaintiff sent a letter request to the

USFSA on that same day.          She requested that the USFSA "petition

the ISU" to approve any of the three options set forth in her

own letter to the ISU.

     In   response,      the    USFSA    declined     at    that    point   to   seek

relief    on   plaintiff's       behalf       from    the    ISU.        The     USFSA

communicated this decision through an email to her on February

3, 2016. The email stated that plaintiff's request, as worded,

"involves issues that extend beyond the interests of U.S. Figure


6
  Defense counsel concedes this wording in the press release was
wrong.



                                         28                                 A-0283-15T1
Skating and involve actions that are broader in scope than would

apply specifically to U.S. Figure Skating."

    Meanwhile, on February 5, 2016, the ISU likewise declined

to entertain plaintiff's request.            It advised her that she must

submit her request "through and with the support of a new Member

[she] intend[s] to skate for[.]"

    We then issued a second sua sponte order requesting counsel

to address the significance of these developments.                Thereafter,

plaintiff submitted a clarified request to the USFSA on March 7,

2016, this time making plain that she intended only to procure a

release to skate for the United States.

    The Remand on Exhaustion Issues

    Because       the   parties   disputed    the    legal   significance   of

these    events   and   the   sufficiency     of    plaintiff's   efforts   to

exhaust potential remedies, we issued a third sua sponte order

on March 15, 2016, remanding the matter temporarily to the trial

court.     We directed the trial court to make findings on the

exhaustion issue, granting it the discretion to allow limited

discovery on the subject.

    As part of that discovery, the parties took de bene esse

depositions of the Executive Director of the USFSA, David Raith,

and the Director General of the ISU, Fredi Schmid, in April.




                                     29                              A-0283-15T1
Both officials happened to be in Boston that same day for the

World Figure Skating Championships.

       The Trial Court's Post-Remand Decision

       After conducting a two-day evidentiary hearing, the trial

court concluded in a written decision dated April 22, 2016 that

plaintiff     had    undertaken       reasonable             efforts   to    exhaust     her

potential non-judicial remedies.                   The court observed that the

record,     as    amplified     on     remand,          details    plaintiff's         "many

attempts to exhaust her administrative remedies[.]"                             The court

ruled that "[t]he simple fact that the USFSA has not pursued the

matter while it awaits [a]ppellate review and ISU clearance does

not undermine [her] extraordinary exhaustion efforts."

       The trial court also found that the testimony of the ISU's

Director General, Schmid, "proves that the ISU's involvement in

this matter does not obviate" plaintiff's "need to resort to the

courts,     it      only     affirms        that        judicial       intervention       is

imperative."         The     court     found       it    significant        that   all    of

plaintiff's attempts to obtain a non-judicial release thus far

have   been      fruitless    and    that    Schmid's          testimony     demonstrated

that   there      were     virtually    no       "next       steps"    plaintiff       could

pursue.

       Furthermore, the court found that "the professed inaction

of   both   the     [USFSA]    and    the    ISU        is    decisive      evidence   that




                                            30                                     A-0283-15T1
[p]laintiff has done all she can do."            The court observed that

"[t]o delay decision[] in the instant case and to permit the

procedural      inequities    inherent      in   the      ISU's   Rules      and

Regulations to persist, cannot be justified[.]"              The court found

that plaintiff was having difficulty finding a partner because

of this litigation, and that "[t]he consequence of indefinitely

stayed administrative inaction is a deprivation of any genuine

prospect that she may skate in the future."

     The Changes to Rule 109 at the June 2016 ISU Congress

     Major developments affecting Rule 109 occurred at the ISU

Congress's biannual meeting in Dubrovnik, Croatia, the week of

June 6-10, 2016.     In its Agenda for the meeting, the ISU Council

noted     the   Rule's   release   requirement      had     become    "legally

problematic."       Int'l    Skating   Union,    Communication       No.   2004,

Agenda of the 56th Ordinary Congress § I(B), ¶ 86, at 50-51

(2016),         http://static.isu.org/media/1006/2004-congress-2016-

agenda.pdf.7     The Council proposed a revised version of Rule 109

that would eliminate the need for a skater to obtain a release

from his or her former team after a twelve-month waiting period.




7
  Although the Agenda did not refer to the present litigation,
the post-remand record indicates the ISU had also recently been
dealing with another controversial situation involving a French
skater who wished to be released to skate for another country.



                                       31                              A-0283-15T1
       Although   the   ISU   Congress    did   not    support    the   proposed

elimination of the release provision, it did vote at its June

2016 meeting to revise Rule 109 and set forth a "reasonableness"

standard   for     withholding   releases.           The    revised    rule   also

confers upon the ISU the express authority to exempt a skater

from     the      release     requirement       in         undefined    "special

circumstances."

       As revised, Rule 109 now states, in pertinent part:

           1. Participation in ISU Championships, ISU
           Events and International Competitions

           ISU    Championships,   ISU    Events    and
           International Competitions, listed in Rule
           100, paragraph 3, and Rule 107, paragraphs
           1, 4, 5, 6, 7, 8, 9, 10, 11 and 12, may be
           entered only by Competitors who are members
           of an ISU Member. The entry can be made only
           through that ISU Member. For participation
           in Olympic Winter Games and Winter Youth
           Olympic Games, Rule 126 respectively [sic]
           the provisions of the Olympic Charter and
           its By-Laws apply.

           2.     a) A Skater may compete only as a
                  member of the ISU Member of a
                  country of which he is a citizen
                  or in which he has resided for at
                  least one year.

                   b) In Pair Skating and Ice Dance
                   only one partner needs to fulfil
                   the    requirements   stated    in
                   paragraph 2.a). The other partner,
                   however, must be a citizen or
                   resident of the country of an ISU
                   Member.




                                     32                                  A-0283-15T1
    c) A Skater who has competed in
    any ISU Championships, ISU Event
    and/or International Competition
    for any ISU Member and who intends
    to compete in the future for
    another ISU Member needs a permit
    from the ISU Member he currently
    represented in the past, which
    permit shall not unreasonably be
    denied.

    In addition[,] such Skater may
    compete for the respective ISU
    Member       in      International
    Competitions, ISU Events and ISU
    Championships only after a waiting
    period of twelve (12) months since
    the Skater competed for any other
    ISU Member in any such competition
    has elapsed.

    d) . . . .

3. Skaters competing for the ISU Member of a
country whose citizenship they do not have
(except for members of Synchronized Skating
Teams under the 25% quota according to
paragraph 2.d) above), and Skaters who have
competed in any ISU Championships, ISU Event
and/or International Competition before and
intend to compete in the future for another
ISU Member may do so only after obtaining,
through the Member for which they intend to
compete, a clearance certificate (CC) from
the ISU Secretariat.

All relevant procedures are published in an
ISU Communication.

4. In the course of the same season (July
1st – June 30th) a Skater may skate for only
one ISU Member in all ISU Championships, ISU
Events and International Competitions. This
also applies to Skaters who compete in
several ISU sport disciplines.




                     33                        A-0283-15T1
                   . . . .

         5. If special circumstances so warrant the
         Council may waive the citizenship/residency
         or the permit requirement and/or the waiting
         periods according to paragraphs 2.a) and c)
         above.

                   . . . .

         6. The Council may reject an application
         from   an   ISU   Member   for   a   Clearance
         Certificate for any Skater, although the
         formalities and requirements stated in this
         Rule have been met, if in the opinion of the
         Council granting such application would be
         contrary to the spirit of sports (e.g. in
         case an ISU Member tries to "import" several
         athletes   with    foreign   citizenship,   in
         particular when such athletes should form a
         new national team or its substantial part of
         such ISU Member).

         [Int'l Skating Union, Communication No. 2017
         Decisions of the ISU Council, Rule 109, at 9
         (2016)   (emphasis   added),   http://static.
         isu.org/media/342540/2017-decisions-of-isu-
         council-dubrovnik.pdf.]

    A few days after these significant rule changes, the USFSA

petitioned   the    ISU    on   plaintiff's       behalf    on    June   17,     2016,

requesting   that     it     release   her        from    the     control   of    the

Federation   and    thereby     provide     her    with    "the    opportunity     to

qualify to compete in the future for U.S. Figure Skating and the

United States in international competitions."                    Notably, this is

the first time the USFSA has requested the ISU to provide a

release to plaintiff, although the USFSA had twice made direct

requests to the Federation that were both rebuffed.



                                       34                                   A-0283-15T1
    As of the writing of this opinion, the ISU has not yet

acted on the USFSA's request.              Meanwhile, the rosters of Member

teams   for   the   upcoming     2016-17       international       figure       skating

season must be set by July 1.

                                       II.

                                         A.

    Aside from Kenesaw Mountain Landis, who at one point served

at the same time as a federal judge and as Commissioner of

Organized Baseball8, judges generally should and do refrain from

interfering     with   the    internal     matters    of    sports       associations

unless exceptional circumstances justify that interference.

    As    the    United      States   Court     of   Appeals       for    the    Second

Circuit   recently      observed      in      overturning      a    trial       court's

nullification of an arbitral ruling by the National Football


8
  Judge Landis served as a district court judge in the Northern
District of Illinois from 1905 to 1922, and as the first
Commissioner of Organized Baseball from 1921 to 1944. Shayna M.
Sigman, The Jurisprudence of Judge Kenesaw Mountain Landis, 15
Marq. Sports L. Rev. 277, 277 (2005). He was selected as
Commissioner by baseball team owners in the wake of a scandal,
in which eight Chicago White Sox players conspired with gamblers
to throw the 1919 World Series to the underdog Cincinnati Reds.
Id. at 283.   Having presided earlier over an antitrust lawsuit
brought against the National and American Leagues, Judge Landis
was sought out by the owners for the position with the hope that
his stern approach would restore integrity to the game. Ibid.
He served both as Commissioner and as a federal judge for over a
year before resigning from the bench in 1922. Id. at 284. He
continued to preside over baseball until his death in 1944.




                                         35                                     A-0283-15T1
League Commissioner addressing cheating allegations against New

England Patriots quarterback Tom Brady, courts "do not sit as

referees of football any more than [they] sit as the 'umpires'

of   baseball      or   the     'super-scorer[s]'               for   stock          car    racing.

Otherwise, [they] would become mired down in the areas of a

[sporting] group's activity concerning which only the group can

speak competently."             NFL Mgmt. Council v. NFL Players Ass'n,

Nos. 15-2801 (L), 15-2805 (CON), 2016 U.S. App. LEXIS 7404, at

*17 n.5 (2d Cir. Apr. 25, 2016) (citing Crouch v. Nat'l Ass'n

for Stock Car Auto Racing, Inc., 845 F.2d 397, 403 (2d Cir.

1988) and Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527,

536-38 (7th Cir. 1978)); see also Major League Baseball Players

Ass'n v. Garvey, 532 U.S. 504, 509, 121 S. Ct. 1724, 1728, 149

L. Ed. 2d 740, 746 (2001).                  Applying that principle, the Second

Circuit     held    that      the         NFL    Commissioner,         in       his        role    as

arbitrator under the collective bargaining agreement, "properly

exercised     his       broad     discretion           to       resolve         an     intramural

controversy     between         the       League      and   a    player."              NFL     Mgmt.

Council, supra, 2016 U.S. App. LEXIS 7404, at *4-5.

      Other   cases       recognize         this      precept     disfavoring              judicial

entanglement       with   the     internal           operations       of    sports.         "Courts

generally       defer      to         a     private         [sports]            organization's

interpretation      of    its     rules         in   the    absence        of    bad       faith   or




                                                36                                          A-0283-15T1
illegality." Ruiz v. Sauerland Event Gmbh, 801 F. Supp. 2d 118,

125 (S.D.N.Y. 2010).           Judges "are reluctant to interfere with

the internal decisions of [sports] organizations . . . [being]

ill-equipped to resolve conflicts involving the interpretation

of the organization's own rules."              M'Baye v. World Boxing Ass'n,

429 F. Supp. 2d 660, 667 (S.D.N.Y. 2006).

    For example, in Koszela v. National Association of Stock

Car Auto Racing, Inc., 646 F.2d 749, 754-59 (2d Cir. 1981), the

Second    Circuit    affirmed       summary    judgment     in        favor    of    the

defendant   stock     car     racing   association,       after       plaintiffs,       a

driver and car owner, claimed the association had not adhered to

its own rules and regulations and thereby had deprived them of

victories in two races.

    Likewise in Schulz v. United States Boxing Association, 105

F.3d 127, 132 (3d Cir. 1997), the Third Circuit observed that

"courts have been understandably reluctant to interfere with the

internal affairs of [private] associations and their reluctance

has ordinarily promoted the health of society."                       (alteration in

original) (quoting Falcone v. Middlesex Cty. Med. Soc'y, 34 N.J.

582, 590 (1961)).           Nevertheless, the Circuit upheld in Schulz

the New Jersey district court's preliminary injunction requiring

a boxing federation to disqualify a professional boxer from a

current   match     because    of   his   steroid   use    in     a    prior    fight.




                                          37                                   A-0283-15T1
Exercising    its    limited       authority       to    intervene      in       a   sporting

decision,    the    Circuit    reasoned          that    the   "public's         confidence

that the outcome of a prizefight is fair rests squarely on the

assumption that the result was not improperly influenced" by

illicit factors. Id. at 135.

    This       policy         disfavoring           interference             in        sports

adminsitration comports with more general case law in our State

involving     disputes      over      the        internal      affairs       of       private

organizations.      In   New       Jersey,       "[d]eference      has       always        been

afforded to the internal decision making process of the private

association."       Danese v. Ginesi, 280 N.J. Super. 17, 23 (App.

Div. 1995) (quoting Loigman v. Tromabadore, 228 N.J. Super. 437,

449 (App. Div. 1988)).             This is because our courts ordinarily

"recognize    an    association's       right       to    adopt,     administer,            and

interpret its own rules without judicial intervention."                                    Ibid.

Consequently,       "[i]t     is    well     established         that        a       voluntary

association     may,     without      direction          or    interference           by    the

courts, draw up for its government and adopt rules, regulations

and by-laws which will be controlling as to all questions of

. . . doctrine or internal policy."                      Loigman, supra, 228 N.J.

Super. at 450 (second alteration in original) (quoting 6 Am.

Jur. 2d, Associations and Clubs, § 5 at 433).




                                            38                                        A-0283-15T1
       Even      so,    "[p]rivate          associations          do    not     have       unfettered

discretion            with        respect      to        their    membership           decisions."

Cipriani Builders, Inc. v. Madden, 389 N.J. Super. 154, 164

(App. Div. 2006).                  In evaluating whether judicial intervention

into   a    private          association's          membership          decision       is     proper,

courts are to consider whether a "'plaintiff [has] an interest

sufficient to warrant judicial action,' and if such an interest

is shown, whether 'that interest [has] been subjected to an

unjustifiable interference by the defendant[.]'"                                       Id. at 165

(alterations in original) (quoting Rutledge v. Gulian, 93 N.J.

113, 118 (1983)).

       We       have     applied          these      principles           by     requiring         the

exhaustion        of     non-judicial          remedies          that    might        be    available

within      a    sport       itself       before     passing       upon       the     merits    of    a

dispute         involving         an     athlete.          In    Dolan     v.       United     States

Equestrian Team, Inc., 257 N.J. Super. 314 (App. Div. 1992), we

held that an amateur horse rider's challenge of the decision of

two non-profit amateur athletic associations not to select her

for    membership            on    the    American         equestrian          team    was     barred

because         the    plaintiff         had   not        exhausted       the       administrative

remedies available to her.

       Namely, we found it pivotal in Dolan that "[p]articipation

in international sports competitions on behalf of this country




                                                    39                                       A-0283-15T1
is governed by the federal Amateur Sports Act[;]"                          the purpose

of the Act was to "provide for the swift resolution of conflicts

and   disputes        involving       amateur       athletes,     national     governing

bodies,    and     amateur       sports       organizations,       and     protect    the

opportunity      of    any   amateur         athlete,    coach,    trainer,    manager,

administrator, or official to participate in amateur athletic

competition       . . .[;]"           and     the     Act   contained       arbitration

procedures to be followed in the event of a dispute. Id. at 317-

19 (citing 36 U.S.C.A. § 391(b)(3) and (11)).                       Consequently, we

ruled that the plaintiff athlete in Dolan had to exhaust her

non-judicial          remedies        before        proceeding     in    the     courts,

perceiving "nothing unfair" about requiring her to do so.                              Id.

at 319-20.

      Our decision in Dolan comported with the general doctrine

favoring the exhaustion of remedies that may be available, from

an administrative agency or otherwise, before a court acts to

resolve    a    dispute      and      impose    a    remedy.       Under     that    well-

established exhaustion doctrine, parties must "pursue available

internal       proceedings       to     conclusion       before    seeking      judicial

intervention."          Hernandez v. Overlook Hosp., 149 N.J. 68, 73

(1997) (citing Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79

N.J. 549, 559 (1979)).                This obligation stems in part from the

courts'    usual       desire      to       "discourage     piecemeal      litigation."




                                              40                                A-0283-15T1
Garrow, supra, 79 N.J. at 559.                Additionally, "the expertise of

an administrative [body] may not be exercised or known until it

renders its final decision, and usually upon judicial review due

deference is accorded [to] that expertise."                      Ibid.

      To    be    sure,   the    doctrine       of     exhaustion        must   yield       to

certain exceptions.            Id. at 561.           These include circumstances

"when     only    a   question    of    law     need       be   resolved,"      "when      the

administrative remedies would be futile," "when irreparable harm

would result," "when jurisdiction of the [body] is doubtful,"

and   "when      an   overriding    public       interest        calls    for    a    prompt

judicial decision[.]"           Ibid.

                                         B.

      The     trial    court     strayed      from     these      and    certain        other

principles by granting partial summary judgment to plaintiff on

count one and taking the extraordinary step of mandating the

Federation to issue a release before potential avenues of relief

to her through ISU processes were fully pursued.

      At the outset, we agree with the trial court's threshold

decision     to   treat   this     lawsuit      as     a    potentially      justiciable

matter and carefully consider the time-sensitive issues posed

affecting this young Olympian's skating career.                           This case is

not   a    routine    matter     involving      a    simple      membership      decision

within a private association. Instead, it concerns plaintiff's




                                           41                                        A-0283-15T1
future livelihood and her ability to compete and earn prizes as

an international athlete. Because the career span of such a

skater is relatively short, time can be of the essence.

    As we noted in Cipriani Builders, supra, 389 N.J. Super. at

165, when a "professional society or trade association exercises

'virtually        monopolistic       control'    over    a     form     of    economic

activity, a court will be especially vigilant in protecting the

interests     of     members     and    prospective      members."            "When     a

membership decision of such an association is challenged, '[t]he

intimate    personal       relationships        which   pervade[]       the    social,

religious and fraternal organizations [are] hardly in evidence

and [an] individual's opportunity of earning a livelihood and

serving society in his chosen trade or profession appear[s] as

the controlling policy consideration.'"                  Ibid.        (alteration in

original) (quoting Falcone, supra, 34 N.J. at 596).

    Nevertheless, the trial court acted too quickly here in

deciding count one in plaintiff's favor on summary judgment and

requiring the Federation to release her.                       There are several

reasons     why    the     court's     decision,    while      undoubtedly       well-

intentioned        given     plaintiff's         difficult       situation,           was

improvident.

    First,         the   trial    court    should       have    afforded       greater

deference to the autonomy of a sporting association such as the




                                          42                                  A-0283-15T1
ISU to attempt to resolve conflicts between athletes and their

respective teams internally, in accordance with the rules of

that    association.         We   were       guided      by   such       principles    of

presumptive deference in Dolan, and they must likewise be heeded

here, at least until all reasonable non-judicial processes for

resolution are exhausted.              We must be careful not to supplant

the authority of the ISU to administer figure skating rules and

regulations throughout the world.

       The ISU, which is not even a party to this litigation, has

obvious expertise in this realm and courts should tread lightly

before interfering.         In fact, it is instructive the ISU recently

amended its rules to make clear that member federations cannot

"unreasonably" deny releases to their former skaters.                           Whether

or not this litigation was a catalyst in producing that change,

the    revision    of   Rule    109    illustrates         that    the    ISU   has   the

authority and expertise to solve athlete-federation conflicts

within its own arena.

       Although    on   appeal    we    required         plaintiff    to    attempt    to

exhaust    non-judicial        remedies       —     which     to    her     credit    she

willingly agreed to and did pursue after we raised the subject —

that    process    should      have    run    its     course       originally    before

dispositive       relief    was   issued          last    September        against    the




                                         43                                     A-0283-15T1
Federation.    We disagree with the trial court's assessment that

such recourse was necessarily futile.

      We acknowledge that the ISU's rules, Schmid's deposition

testimony, and the emails from ISU representatives all reflect

that an individual skater does not have a clear avenue to obtain

a release directly from the ISU.           However, the rules and the

record also show that the ISU is able, and apparently has been

willing, to consider releasing plaintiff if that request came

through another Member federation.         Until last week, the USFSA

had   not   taken   that   important   step,    perhaps   because   of    the

confusion     caused   by    plaintiff's       unfortunate   overly-broad

phrasing of her initial request.        We do not find that the ISU's

process requiring a Member federation's support to override a

release denial by a skater's former federation is necessarily

futile or unjust.

      As of this moment, the process under revised Rule 109 is

actively underway.     We will not presume that the ISU will dawdle

over the USFSA's request, particularly with rosters to be fixed

imminently for the upcoming skating season. Although the trial

court had no reason to predict that the ISU rules would change

or that the USFSA would finally intercede for plaintiff, that

has now occurred.




                                   44                               A-0283-15T1
     We    therefore      shall    let    the   process    under   Rule       109    be

completed, and for that reason vacate the trial court's findings

that non-judicial remedies have been adequately exhausted.                           In

doing so, we need not decide at this interlocutory juncture if

the arbitration provisions in the form signed by plaintiff's

mother are binding or comport with New Jersey law.9                     Instead, we

defer     to    the    sporting    organization's      authority        for    policy

reasons,       consistent   with   both    tradition      and   sound    case     law.

Once the ISU's decision is made, the litigation can resume in

the trial court to address the consequences of that decision and

the other claims raised in plaintiff's complaint.10

     The trial court's decision on count one was also flawed

insofar    as     it    decided    genuine      factually-laden     disputes          on

summary judgment on the basis of competing written submissions.

We need not repeat at length the well-settled principle that

courts reviewing summary judgment motions must "consider whether

the competent evidential materials presented, when viewed in the


9
  To the extent our grant of leave to appeal could be viewed to
encompass review of the trial court's discrete ruling on the
arbitration clause, we vacate that aspect as improvidently
granted.
10
  We need not decide here hypothetically whether a decision by
the ISU concluding that it was or was not "unreasonable" for the
Federation to deny plaintiff a release would have preclusive
effects in this litigation. That question has not been briefed
and is reserved for the trial court.



                                          45                                  A-0283-15T1
light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party."                 Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-

2(c).    Courts ought not resolve contested factual issues on

competing certifications and discovery materials, but instead

are limited to determining from the record whether the alleged

factual disputes are genuine.              Agurto v. Guhr, 381 N.J. Super.

519, 525 (App. Div. 2005).                If there are materially disputed

facts, the motion for summary judgment should be denied.                         Brill,

supra,   142    N.J.    at   540.     On       appeal,   we    accord     no    special

deference      to   a   trial   judge's     assessment        of   the    documentary

record, and instead review the summary judgment ruling de novo

as a question of law.              W.J.A. v. D.A., 210 N.J. 229, 237-38

(2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995) (noting that no "special deference" applies

to a trial court's legal determinations).

    This       record    contains    an    abundance     of    fact-laden         issues

relating to whether defendants treated plaintiff unfairly and

tortiously      acted    without    justification        to    thwart     her    career

after she sought to compete for another nation.                          Although the

trial court determined that defendants' motives were unjustified

and "inscrutable," they have presented a competing explanation.




                                          46                                    A-0283-15T1
Defendants         have     repeatedly     asserted      that    if    the      Federation

unconditionally            releases    plaintiff,        doing   so    will      have     the

deleterious effect of encouraging other skaters in whom it has

invested time and effort in training to leave and affiliate with

other countries.               The ISU has recognized that this can be a

legitimate concern, although it has suggested the Federation may

have already reaped a sufficient "return" on its investment in

plaintiff by her pair's unprecedented success for Israel in the

2014 Olympics.

      A trier of fact has not yet sorted out these competing

contentions. The factfinder must evaluate, after hearing trial

testimony         and     assessing    the     credibility       of    the      witnesses,

whether the Federation's asserted justification for withholding

a release has been sincere and sufficiently compelling under the

law   of        tortious       interference    and,      by   analogy,       the    law    of

restrictive covenants.               See Cmty. Hosp. Grp. v. More, 183 N.J.

36,       57     (2005)     (requiring       consideration       of    an       employer's

legitimate business interests in evaluating the reasonableness

of    a        challenged      restraint      on    post-employment          activities);

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,

751-56          (1989)      (requiring        consideration       in        a      tortious

interference            case    of   whether       the   defendant's        conduct       was

justified by legitimate reasons).




                                              47                                   A-0283-15T1
       These     determinations        are       factually       intertwined    with     the

issues posed by the counts of the complaint dealing with whether

defendants       have      defamed     or     disparaged          plaintiff,    and    have

wrongfully inflicted upon her severe emotional distress.                                 The

paper        record   on    summary     judgment          was     not   appropriate       to

adjudicate these questions dispositively.

       Indeed, the trial court correctly denied summary judgment

to either side on the tortious interference claims in count two.

We affirm that sound ruling.                     But having done so, we cannot

uphold the court's dispositive, pre-emptive finding on count one

that defendants acted unjustifiably.                      Instead, the questions of

justification and motive must be decided in a plenary manner at

trial.

       Apart from this, the expansive remedy imposed by the trial

court on count one was premature and an unwarranted incursion

into    the     primary     authority       of     the    ISU.      Although    plaintiff

styled her prayer for relief in count one as a request for a

declaratory judgment, in substance it amounted to a demand for a

mandatory injunction.            "Unlike           a     prohibitory       injunction,     a

mandatory injunction commands the defendant to do some positive

act     or    particular      thing,        prohibits       him     from    refusing     (or

persisting in a refusal) to do or permit some act to which [a]

plaintiff has a legal right, or restrains [a] defendant from




                                              48                                 A-0283-15T1
permitting his previously wrongful act to continue."                           Samaritan

Ctr., Inc. v. Borough of Englishtown, 294 N.J. Super. 437, 444

n.4 (Law. Div. 1996) (citing Bailey v. Schnitzius, 45 N.J. Eg.

178 (E. & A. 1888)).

       A mandatory injunction is "an extraordinary remedy that is

only    granted    sparingly    by     the       courts."         Trinity     Indus.   v.

Chicago Bridge & Iron, Co., 735 F.3d 131, 139 (3d Cir. 2013)

(citing Communist Party of Ind. v. Whitcomb, 409 U.S. 1235,

1235,    93   S.   Ct.   16,    16,     34       L.   Ed.    2d    40,   40     (1972)).

Consequently,       a    "party       who        seeks      mandatory       preliminary

injunctive relief must satisfy a 'particularly heavy' burden[,]"

Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 396 (App. Div.

2006) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.

1980)), such that "the moving party's 'right to relief must be

indisputably clear.'"          Trinity, supra, 735 F.3d at 139 (quoting

Communist Party, supra, 409 U.S. at 1235, 93 S. Ct. at 16, 34 L.

Ed. 2d at 40).

       The mandatory injunction issued on count one, forcing the

Federation to release plaintiff over its strenuous objection,

did not meet these stringent requirements while the possibility

of non-judicial remedies before the ISU existed.                              Certainly,

plaintiff's predicament in not having the freedom to skate for

another team while her former team has no interest in her return




                                            49                                  A-0283-15T1
is sympathetic.        But, for the reasons we have already stressed,

the   trial   court     should    not     have    preempted   the    ISU    process.

Indeed,    the      court's    chosen     remedy     has   been   ineffective      in

providing     any    true     practical    relief     to   plaintiff    within    the

skating world.        That speaks volumes.

      For these many reasons, we reverse the trial court's grant

of summary judgment on count one.                    We also vacate the court-

ordered release, effective immediately.                 Doing so will now clear

the path for the ISU to make its awaited decision in response to

the USFSA's request.           If the ISU declines to grant plaintiff a

release, the trial court can reconsider the posture of the case

in light of that development and any issues the parties wish to

assert or renew.        However, the Law Division shall not reinstate

any court-ordered release unless or until the parties' proofs

and justifications are litigated at the requested jury trial and

appropriate findings are made.                 We presume the trial will be

conducted     expeditiously        after       the    remaining      discovery     is

completed.

      As a final note, we recognize that we allowed the court-

ordered release to remain in place while this appeal has been

pending.       But    the     recent    rule     changes   adopted     at   the   ISU

Congress and the USFSA's long-sought intercession with the ISU,

as well as the applicable law, make it clear that the time has




                                          50                                A-0283-15T1
come for plaintiff's fate to be decided in the first instance by

the sporting tribunal that has presumptive authority over her

skating credentials.

    The balance of defendants' arguments, including their claim

that the trial judge should recuse himself because of his past

adverse rulings, lack sufficient merit to warrant comment. R.

2:11-3(e)(1)(E).

    Affirmed in part as to count two, reversed as to count one,

and remanded to the Law Division for proceedings consistent with

this opinion.   We do not retain jurisdiction.




                                51                      A-0283-15T1
