[Cite as Nelsons v. Ohio High School Athletic Assn., 2018-Ohio-4169.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




ROBERT NELSON, ET AL.,
LEGAL GUARDIANS FOR MINOR, J.R.,
                                                                   CASE NO. 1-18-12
       PLAINTIFFS-APPELLEES,

       v.

OHIO HIGH SCHOOL ATHLETIC
ASSOCIATION,                                                       OPINION

       DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2017 0653

                       Judgment Reversed and Cause Remanded

                           Date of Decision: October 15, 2018




APPEARANCES:

        Steven L. Craig and Stanley R. Evans for Appellant

        Robert B. Fitzgerald, Richard T. Reese and Terence R. Coates
                for Appellees
Case No. 1-18-12


SHAW, J.

       {¶1} Defendant-Appellant, the Ohio High School Athletic Association

(“OHSAA”) appeals the February 8, 2018 judgment of the Allen County Court of

Common Pleas granting the request for injunctive relief filed by Robert and Nicole

Nelson (collectively the “Nelsons”) as legal guardians of J.R., and finding J.R.

eligible to participate in interscholastic athletics at Lima Senior High School,

thereby overriding the decision of the OHSAA’s Executive Director Office on J.R.’s

ineligibility.

                                 Factual Background

       {¶2} J.R. is a minor, who was born in 2002 in New York and is a United

States citizen. J.R. moved to St. Thomas, U.S. Virgin Islands, with his biological

parents, who remain residing there.

       {¶3} In August of 2016, J.R. moved to Lima, Ohio to live with the Nelsons.

The Nelsons filed an application to become J.R.’s legal guardians on August 25,

2016, which was granted on January 27, 2017. During the 2016-2017 school year,

J.R. attended middle school as an eighth grade student and then matriculated into

Lima Senior High School as a ninth grade student for the 2017-2018 school year.

J.R. sought to participate in interscholastic basketball, track, lacrosse, and any other

athletic endeavor of his choice while attending Lima Senior. Lima Senior is a




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current member school of the OHSAA, and was also a member school during the

2017-2018 school year.

       {¶4} On September 22, 2017, John Zell, Director of Athletics at Lima Senior,

emailed Roxanne Price, Director of Compliance and Sporting Behavior in the

OHSAA’s Executive Director’s Office inquiring of J.R.’s eligibility to participate

in interscholastic athletics at Lima Senior. Zell did not mention J.R.’s name, but

simply stated “We have a 9th grade athlete whose parents do not live in Ohio. The

student is living with another family of no relation who have had custody pursuant

to a court order for over one year. They have been residents of Ohio for over one

year. Please advise.” (Def. Ex. D.)

       {¶5} On September 25, 2017, Price responded to the email directing Zell to

OHSAA Bylaw 4-6-3, which states:

       A student whose parents reside outside the state of Ohio will be
       ineligible for interscholastic athletics in a member school.

(2017-2018 OHSAA Handbook, Def. Ex. B at 51).

       {¶6} There are several exceptions to Bylaw 4-6-3. Exception 1 to Bylaw 4-

6-3 states:

       EXCEPTION 1: The Executive Director’s office may declare a
       student who is the subject of a custody order issued by a court of
       proper jurisdiction conferring custody upon a grandparent, aunt,
       uncle or sibling who resides in Ohio, if, in the sole discretion of
       the Executive Director’s office, Executive Director’s office
       determines that the purpose of this change in custody was not for
       athletic reasons, but purely for the best interest of the student in

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Case No. 1-18-12


      terms of the student’s mental, physical and educational well-
      being. The Executive Director’s office may grant eligibility to a
      student whose legal custodian, pursuant to a court order, has had
      legal custody of the student for a minimum of one year and who
      has become a bona fide resident of the state of Ohio. Such a
      student is ineligible until declared eligible by the Executive
      Director’s office.

      {¶7} Price explained her response to Zell that: “Bylaw 4-6-3 indicates that

an individual who has had custody of a student for one year and that individual

becomes a resident of Ohio, the student can meet exception 1. This means that the

custodians had to have had custody for one year prior to moving to Ohio…with the

student. If the custodians were already living in Ohio and the student came to live

with them and then they became the custodians, this will not permit the use of

exception 1. There is no provision for a student whose parents do not live in Ohio

to be able to become eligible after the new custodians, who are not a primary

relative, have had custody for a year. The custodians and the student would have

had to move to Ohio together and the custodians would have had to be legal

custodians prior to the move to Ohio.” (Def. Ex. D.)

      {¶8} Price asked Zell for further clarification, “ I can’t ascertain from the

question posed, if the student and his legal custodians moved to Ohio together and

if the legal custody preceded the move to Ohio. I also do not know if they have

legal custody or ‘guardianship.’ Please provide more information.” (Def. Ex. D.)




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       {¶9} In a reply email, Zell informed Price that “the parents are the legal

guardians and not custodial parents. If they are legal guardians in essence they are

his parents…correct?” (Def. Ex. D.) Zell further inquired whether there would be

a need to meet any of the exceptions for Bylaw 4-6-3. Price responded that for

purposes of Bylaw 4-6-3, “parents are defined as ‘biological’ or adoptive parents.”

(Id.) She further explained that “[i]f the individuals in your previous email are not

the student’s actual biological or adoptive parents, and the biological or adoptive

parents do not live in Ohio, then the legal custodians must be a primary relative

(aunt, uncle, grandparent, sibling) in order for the student to have any eligibility, at

any time, at any member school.” (Id.)

       {¶10} Thereafter, the Nelsons retained counsel who contacted legal counsel

for the OHSAA on October 30, 2017, to further inquire of the initial ruling from the

Executive Director’s Office on J.R.’s ineligibility under bylaw 4-6-3. Legal counsel

for the OHSAA reiterated the Association’s rationale for the inapplicability of

Exception 1 to J.R.’s case previously given by Price. Specifically, because (1) the

Nelsons were not a parent, grandparent, uncle, aunt or sibling of J.R.; and (2)

because Nelsons were already residents of Ohio prior to J.R. moving to the state and

obtaining guardianship of him, and thus since they did not move to Ohio together

after having legal custody for one year, the circumstances outlined in Exception 1




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did not apply. The Nelsons’ counsel further inquired if J.R. could be deemed

eligible under Exception 9 to Bylaw 4-6-3, which states that:

       Exception 9:       A student may be declared eligible for
       interscholastic athletics when the student’s parents are citizens of
       the United States who reside outside the United States. The
       student is not eligible until declared eligible by the Executive
       Director’s office upon submission of the appropriate documents.

(2017-2018 OHSAA Handbook, Def. Ex. B at 5). The OHSAA’s legal counsel

indicated that Exception 9 did not apply. He explained that even though J.R.’s

parents, by virtue of being citizens of the U.S. Virgin Islands, are United States

citizens thus satisfying the first portion of the exception, the second component of

the exception is not satisfied because St. Thomas is a United States territory and

therefore J.R.’s parents do not “reside outside of the United States” under the

interpretation of the exception by the Executive Director’s Office. In other words,

the Executive Director’s Office interpretation of the United States under this

exception includes all U.S. territories and in this context treats St. Thomas as no

different from Indiana, Kentucky, or any other state.

                                  Procedural History

       {¶11} On November 20, 2017, the Nelsons, as legal guardians, filed a

verified complaint for injunctive and other equitable relief on behalf of J.R. in the

Allen County Court of Common Pleas seeking to enjoin the OHSAA’s enforcement

of its determination of J.R.’s ineligibility to participate in interscholastic athletics at


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Lima Senior. As the basis for the complaint, the Nelsons alleged the OHSAA’s

decision regarding J.R.’s ineligibility on the grounds that neither Exception 1 or

Exception 9 applied to his case to be arbitrary and capricious. The Nelsons also

filed a motion for injunctive and equitable relief and included an affidavit from their

counsel indicating that he had attempted to resolve the matter with the OHSAA’s

legal representative over the course of the preceding month, but to no avail.

        {¶12} On November 21, 2017, the trial court granted a Temporary

Restraining Order enjoining the OHSAA from enforcing its determination of J.R.’s

ineligibility and permitting J.R. to participate in interscholastic athletics while the
                                    1
proceedings were pending.                 The OHSAA subsequently filed an answer and

response. In its answer, the OHSAA asserted inter alia the affirmative defense that

the trial court lacked jurisdiction to hear the case because the Nelsons failed to

exhaust their administrative remedies by not pursing the internal appeal process put

in place by the OHSAA and its member schools.

                                   The Trial Court’s Decision

        {¶13} On December 8, 2017, the trial court held a hearing on the Nelsons’

motion for injunctive relief. Both Robert and Nicole Nelson testified in support of

their motion.        The OHSAA presented the testimony of Roxanne Price, the




1
  After the TRO was granted, a visiting judge was assigned to the case by the Supreme Court of Ohio due to
the recusal of the judge originally assigned to the case.

                                                   -7-
Case No. 1-18-12


representative of the Executive Director’s Office who made the initial determination

on J.R.’s ineligibility. Several exhibits were admitted by both sides.

       {¶14} On February 8, 2018, the trial court issued a decision granting the

Nelsons’ request for injunctive relief. Specifically, the trial court found that the

OHSAA’s determination that Exception 1 and Exception 9 to the residency Bylaw

4-6-3 do not apply to J.R.’s circumstances to be arbitrary and capricious.

       {¶15} With respect to Exception 1, the trial court found the following

regarding the second section of the exception pertaining to legal custodians:

       This Court agrees with the OHSAA that By-law 4-6-3 Exception
       1 is not ambiguous. While not ambiguous, this Court agrees with
       the Plaintiffs that the Exception is arbitrary and capricious. The
       intent of the Rule was to prevent guardian shopping for the
       purpose of making an out-of-state athlete immediately eligible to
       play a sport. If J.R.[’s] guardianship in Ohio must be in effect for
       one year before J.R. would become eligible, the purpose of the
       Rule exception would be faithfully implemented. Under the
       present Rule, J.R. would never become eligible to participate in
       sports at Lima Senior while in high school. Surely, such a Rule is
       arbitrary and capricious.

(Doc. No. 14 at 10).

       {¶16} As for the interpretation of Exception 9 by the Executive Director’s

Office to include the United States territories in the definition of the “United States,”

the trial court concluded that the “OHSAA views the United States in an expansive

manner as to disqualify J.R. from participating in interscholastic sports. OHSAA’s




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Case No. 1-18-12


interpretation of the word United States is at best wrong and at worst ‘arbitrary and

capricious.’ ” (Id. at 14).

       {¶17} The trial court found that the Nelsons had proven by clear and

convincing evidence that J.R. was entitled to injunctive relief on the grounds that

“Exception 1 to rule 4-6-3 was arbitrary in part as written and [Exception 9 was]

arbitrarily and capriciously enforced when OHSAA interpreted the ‘United States’

to include the territory of the Virgin Islands.” (Doc. No. 14 at 14). The trial court

further found that J.R. would “suffer irreparable harm if he is not permitted to

participate in interscholastic athletics for his entire high school” and that “there are

no Third parties identified who will be unjustfully [sic] harmed if this permanent

injunction is granted; and the public interest will be served by the injunction. Should

OHSAA believe that youngsters who move here without their parents from the U.S.

territories should not participate, the Association can clearly amend the Rule

accordingly.” (Id. at 14-15)

       {¶18} Based on this reasoning, the trial court issued a permanent injunction

enjoining the OHSAA from enforcing its decision on J.R.’s ineligibility to

participate interscholastic athletics and ordered the following:

       (1) the OHSAA’s conduct relating to J.R. and its finding that
       J.R. is ineligible to participate interscholastic athletics at Lima
       Senior High School is arbitrary and capricious;




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Case No. 1-18-12


         (2) J.R. is eligible to participate in interscholastic athletics at
         Lima Senior High School during the 2017-2018 school year so
         long as he remains eligible in all other respects; and,

         (3) J.R.’s eligibility as granted through this order shall remain
         in place for the duration of J.R.’s enrollment at Lima Senior High
         School so long as no other change of legal guardianship takes
         place and J.R. meets all other requirements for remaining
         eligible.

(Doc. No. 14 at 16).

         {¶19} The OHSAA filed this appeal, asserting the following assignments of

error.

                        ASSIGNMENT OF ERROR NO 1.

         THE TRIAL COURT ERRED IN ISSUING A PERMANENT
         INJUNCTION AGAINST THE OHSAA AND SUBSTITUTING
         THE TRIAL COURT’S INTERPRETATION OF THE OSHAA
         BYLAWS FOR THE INTERPRETATION OF THE OHSAA’S
         MEMBER SCHOOLS.

                        ASSIGNMENT OF ERROR NO 2.

         THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN
         THE    TRIAL     COURT:    (A)   ADVANCED     AND
         CONSOLIDATED THE TRIAL ON THE MERITS WITH THE
         HEARING ON APPELLEES’ APPLICATION FOR A
         PERMANENT INJUNCTION; (B) HELD THAT APPELLEES’
         WERE NOT REQUIRED TO APPEAL THE RULING OF THE
         EXECUTIVE     DIRECTOR’S      OFFICE    OF   J.R.’S
         INELIGIBILITY THROUGH THE OHSAA’S APPEALS
         PROCESS BECAUSE SUCH AN APPEAL WOULD BE A
         FUTILE ACT; (C) BASED ON ITS DECISION, AT LEAST IN
         PART, ON A TRIAL EXHIBIT THAT THE TRIAL COURT
         RULED INADMISSIBLE; (D) FOUND THAT J.R. WILL
         SUFFER IRREPARABLE HARM; AND (E) FOUND THAT
         THE ISSUANCE OF A PERMANENT INJUNCTION

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       AGAINST THE OSHAA WILL INFLICT NO HARM ON
       OTHERS.

                              First Assignment of Error

       {¶20} In its first assignment of error, the OHSAA argues that the trial court

erred in issuing a permanent injunction enjoining the Association from enforcing its

determination of J.R.’s ineligibility to participate in interscholastic athletics because

he did not meet the eligibility requirement or exceptions in Bylaw 4-6-3.

Specifically, the OHSAA claims that the trial court unreasonably interfered with the

internal affairs of the Association by declaring: (1) that section 2 of Exception 1 to

Bylaw 4-6-3 as written is arbitrary and capricious; and (2) that the Executive

Director’s Office interpretation of the term “United States,” as used in Exception 9,

to include the United States territories is too expansive and, therefore, is also

arbitrary and capricious.

                                 Standard of Review

       {¶21} “In determining whether a preliminary injunction is warranted, a trial

court looks to four factors: (1) whether the evidence presents a substantial likelihood

that the plaintiff will prevail on the merits; (2) whether denying the injunction will

cause the plaintiff to suffer irreparable injury; (3) whether granting the injunction

will cause unjustifiable harm to third parties; and (4) whether the injunction serves

the public interest.” Elec. Classroom of Tomorrow v. Ohio Dep’t of Educ., 2017-

Ohio-5607, ¶ 33 10th Dist. Franklin Nos. 16AP-863, 16AP-871 citing Cuyahoga

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Re-Entry Agency v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-

740, 2012-Ohio-2034, ¶ 31.

       {¶22} “A party seeking a permanent injunction must show that the injunction

is necessary to prevent irreparable harm and that the party does not have an equitable

remedy at law.” Bd. of Directors, Maumee Watershed Conservancy Dist. v. Army,

3d Dist. Van Wert No. 15-17-09, 2017-Ohio-9082, ¶ 23, citing Procter & Gamble

Co. v. Stoneham, 140 Ohio App.3d, 260, 267 (2001). The decision to grant or deny

an injunction lies within the discretion of the trial court and generally will not be

reversed absent an abuse of discretion. Youngstown City Sch. Dist. Bd. of Educ. v.

State, 10th Dist. Franklin No. 17AP-775, 2018-Ohio-2532, ¶ 9. An abuse of

discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

                             The Nature of the OHSAA

       {¶23} According to its handbook, the OHSAA is a 111-year old

unincorporated, non-profit association that regulates and administers interscholastic

competition. (2017-2018 OHSAA Handbook, Def. Ex. B at 5). Approximately 821

high schools and 900 7th and 8th grade schools belong to the OHSAA. (Id.)

Membership to the OHSAA is voluntary and there are no fees assessed to the

schools to maintain membership. (Id.) When a school becomes a member of the

OHSAA, it agrees to follow the regulations approved by the membership. (Id.)


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       {¶24} The conduct of the OHSAA is governed by its constitution and

bylaws. The specific procedures by which the OHSAA’s constitution and bylaws

may be amended are set forth in Article 8 of the Association’s constitution, which

permits amendment to the constitution and bylaws through “a referendum vote of

the member schools in which the principal of the member school shall case the vote

for the school.” (Art. 8-1-4, 2017-2018 OHSAA Handbook, Def. Ex. B at 37.) The

OHSAA’s constitution further provides that “[a]ny proposed amendment shall be

adopted if it receives a majority of the votes cast” and that “[v]oting on referendums

to amend the constitution shall be conducted between May 1 and May 15.” (Arts.

8-1-4, 8-1-8, 2017-2018 OHSAA Handbook, Def. Ex. B at 37.)

       {¶25} As members of the Association, the schools have agreed to delegate

certain duties and authority to Executive Director’s Office. According to the

OHSAA’s constitution “[t]he Executive Director or another administrative staff

member designated by the Executive Director shall decide all questions and

interpretations of the Constitution, Bylaws, and Regulations and shall impose and

enforce penalties.” (Art. 6-1-2, 2017-2018 OHSAA Handbook, Def. Ex. B at 33)

       {¶26} In May of 2012, the member schools authorized the OHSAA Board of

Directors to establish an Appeals Process “with exclusive jurisdiction to hear

student eligibility appeals.” (2017-2018 OHSAA Handbook, Def. Ex. B at 26.)

Recently, in May of 2017, the member schools voted to expand “the Appeals Panel’s


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jurisdiction to hear all appeals related to rulings emanating from the Executive

Director’s Office.” (Id.) “[T]he Appeals Panel does not have any authority to alter,

amend, change or delete or add to the Bylaws. Only the members schools have the

authority to do this and only then through the referendum process.” (Id.) The

OHSAA Handbook further clarified that the Appeals Panel does not have authority

to waive the requirements of the Bylaws and that “the standard of review to be used

by the Appeals Panel is simply to determine whether the Executive Director’s

Office, in rendering its ruling, made a mistake of fact, mistake of

interpretation/application of the Bylaw in question or neglected to consider another

Bylaw that may be applicable.” (Id. at 27)

                                    Relevant Law

       {¶27} As a preliminary matter, we note that other appellate districts have

held that the right to participate in interscholastic athletics is not constitutionally

protected. Ulliman v. Ohio High Sch. Athletic Assn., 2009-Ohio-3756, ¶ 61, 184

Ohio App. 3d 52, 65; Menke v. Ohio High School Athletic Assn., 2 Ohio App.3d

244, 246 (1981). On this basis, “[t]he claim of arbitrariness, therefore, is not

evaluated under constitutional standards, but is governed by State ex rel. Ohio High

School Athletic Ass’n. v. Judges of the Court of Common Pleas of Stark Cty. 173

Ohio St. 239, 247, (1962), which holds that OHSAA internal-affairs decisions will




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be accepted as conclusive, in the absence of arbitrariness.” Ulliman, 184 Ohio App.

3d 52, 65, 2009-Ohio-3756, ¶ 61.

       {¶28} In State ex rel. Ohio High School Athletic Ass’n. v. Judges, the

Supreme Court of Ohio stated the general rule applicable to judicial review of

internal decisions made by voluntary associations:

       The decisions of any kind of voluntary society or association in
       disciplining suspending, or expelling members are of a quasi
       judicial character. In such cases the courts never interfere except
       to ascertain whether or not the proceeding was pursuant to the
       rules and laws of the society, whether or not the proceeding was
       in good faith, and whether or not there was anything in the
       proceeding in violation of the laws of the land. * * *

Id., 173 Ohio St. at 247, (1962), quoting 4 American Jurisprudence, 472, Section

27. See, also, 6 Ohio Jurisprudence 3d Associations, Section 4, Judicial supervision

or intervention.

       {¶29} Thereafter, the Supreme Court of Ohio again had the occasion to

review this issue in Lough v. University Bowl, Inc., 16 Ohio St.2d 153 (1968). The

Court in Lough acknowledged the general rule is that “courts will not interfere with

the quasi-judicial decisions of voluntary associations unless such decisions are

alleged and shown to be the result of fraud, arbitrariness, or collusion.” Id. at 154,

citing State ex rel. Ohio High School Athletic Ass’n. v. Judges, 173 Ohio St. 239,

247 (1962); Wedemeyer v. U.S.S. F.D.R (CV-42) Reunion Assoc., 3d Dist. Allen No.

1-09-57, 2010-Ohio-1502, ¶ 26. In reviewing relevant case authority on the issue,


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the Supreme Court of Ohio observed that the jurisprudence “almost without

exception, include[s] the criteria which warrant[s] jurisdiction under the general

rule, such as arbitrary action in violation of the constitution and rules of the

association, or a procedural scheme which is not in accord with due process.” Id.,

citations omitted (emphasis added). Accordingly, the Supreme Court of Ohio in

Lough held that:

       [W]here the duly adopted laws of a voluntary association provide
       for the final settlement of disputes among its members, by a
       procedure not shown to be inconsistent with due process, its
       action thereunder is final and conclusive and will not be reviewed
       by the courts in the absence of arbitrariness, fraud, or collusion.

Lough, 16 Ohio St.2d at 155-56, citing State ex rel. Ohio High School Athletic Ass’n.

v. Judges, supra; Gallagher v. Harrison, 86 Ohio App. 73 (1949); Boblitt v.

Cleveland, C.C. & St. L. Ry. Co., 73 Ohio App. 339 (1943).

                                      Analysis

       {¶30} In acknowledgement of the general rule of judicial restraint, the

Nelsons alleged in their complaint that the OHSAA’s decision not to apply

Exceptions 1 and 9 to J.R. was arbitrary. On appeal, the Nelsons primarily take

issue with the manner in which the member schools have chosen to word the bylaws,

along with its exceptions, and the interpretations made by the Executive Director’s

Office of Bylaw 4-6-3 and its exceptions on three grounds. It is the conclusion of

this Court that none of these issues are sufficient to invoke judicial intervention


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under the standards set forth by the Supreme Court of Ohio in State ex rel. Ohio

High School Athletic Ass’n. v. Judges and Lough above.

        {¶31} First, with respect to Exception 1 to Bylaw 4-6-3, the Nelsons claim

that the OHSAA arbitrarily limited the definition of the term “parent” only to a

person who is the biological or adoptive parent of the student for purposes of

determining residency. In support, the Nelsons point to a former definition used in

the bylaws pertaining to transfers which appears to contemplate a more expansive

definition of the term “parent” to include “the person to whom parenting rights and

responsibilities have been allocated pursuant to court order. In the event a student

has been temporarily or permanently removed from the home, ‘parent’ means the

person or governmental agency with legal or permanent custody.” (Doc. No. 14 at

7); see, also, Ulliman v. Ohio High Sch. Athletic Assn., 184 Ohio App. 3d 52,

67,2009-Ohio-3756, ¶ 17.

        {¶32} However, the OHSAA presented testimony and supporting

documentation at the hearing on the Nelsons’ motion for injunctive relief

establishing that the member schools specifically voted as a referendum item in

2013 to limit the definition of the term parent as it pertained to Bylaw 4-6-3 to mean

“biological or adoptive.”2 (Doc. No. 19 at 139, Def. Ex. I at 7). Notably, even the



2
  Price testified that the member schools voted for the OHSAA to view “the custody between parents
differently than custody between someone who is a nonparent.” (Doc. No. 19 at 139). She further testified
that according to the 2008-2009 OHSAA Handbook, Bylaw 4-6-3, at issue in this case, stated that “Note: a

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trial court found this portion of Exception 1 to be unambiguous and does not appear

to base its decision regarding arbitrariness on the part of the OHSAA on this

provision in the exception.

        {¶33} The second and third grounds alleged by the Nelsons in support of

their claim that the OHSAA’s conduct was arbitrary with respect to its

determination of J.R.’s ineligibility form the basis of the trial court’s decision to

grant the permanent injunction. Specifically, the second ground alleged is the legal

custodian provision of Exception 1, which states that:

        The Executive Director’s office may grant eligibility to a student
        whose legal custodian, pursuant to a court order, has had legal
        custody of the student for a minimum of one year and who has
        become a bona fide resident of the state of Ohio. Such a student
        is ineligible until declared eligible by the Executive Director’s
        office.

        {¶34} Price testified that the language “has had legal custody of the student

for a minimum of one year and who has become a bona fide resident of the state of

Ohio” imposes the requirement that the legal custodian: (1) be a legal custodian

prior to the move to Ohio; and (2) has moved to Ohio with the student in order for

the student to be eligible to participate in interscholastic athletics under this portion

of the exception. (Doc. No. 19 at 137; Def. Ex. D). Price also clarified that one of

the reasons there is a residency requirement is to prevent member schools from



biological or adoptive parent must reside in Ohio. A change in custody/guardianship does not satisfy the
requirement of this bylaw.” (Doc. No. 19 at 126).

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“recruiting across the borders.” (Doc. No. 19 at 143)(emphasis added).3 Thus,

contrary to the findings of the trial court on this issue, there is nothing in the

testimony or in the OHSAA bylaws pertaining to Exception 1 to indicate that the

only purpose behind the one-year residency requirement is to merely delay the

“immediate” eligibility of out-of-state transfers.

          {¶35} The final and third ground is Exception 9 to Bylaw 4-6-3 which simply

states:

          A student may be declared eligible for interscholastic athletics
          when the student’s parents are citizens of the United States who
          reside outside the United States.

          {¶36} Price testified that in the twelve years of executing her responsibilities

for the OHSAA, which include fielding eligibility questions on a daily basis, the

Executive Director’s Office has never excluded United States territories from the

term the “United States” when making interpretations and administering Exception

9 to Bylaw 4-6-3. Price explained that there has always been an assumption when

interpreting the exception that the United States territories are included as part of

the United States.          (Doc. No. 19 at 161).              Specifically, Price stated that the

ineligibility ruling is “no different whether the ruling is for a student from Puerto



3
  The Nelsons direct our attention to a deposition that Price gave in a prior case concerning eligibility
involving a non-public school to argue that the original intent of Bylaw 4-6-3 was to prevent recruiting by
non-public, or private schools. Price disputed this characterization at the hearing and stated that “we have
had more incidents of recruiting this year and the previous and last year with individuals at public schools.
But to be able to grant eligibility to any individual is basically swallowing up the residency bylaw altogether
and in some ways the transfer bylaw and the membership does not want that.” (Doc. No. 19 at 143).

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Rico, Guam, American Samoa than it is from a student from Michigan. We’re not

writing, oh, this includes the United States and its territories. We’re just making a

ruling based on the same perception that its included.” (Id). Notably, the Nelsons

provided no evidence which contradicted Price’s testimony as to this point.

       {¶37} Notwithstanding the decision of the trial court which determined that

the legal custody provision of Exception 1 as written was arbitrary and capricious,

and Executive Director’s Office interpretation of Exception 9 was “at best wrong

and at worst ‘arbitrary and capricious,’ ” “The Supreme Court of Ohio has defined

“arbitrary” in other contexts as “ ‘without adequate determining principle; * * * not

governed by any fixed rules or standard.’ ” Ulliman, supra, citing Dayton ex rel.

Scandrick v. McGee, 67 Ohio St.2d 356, 359 (1981), quoting Black’s Law

Dictionary (5th Ed.); (Doc. No. 14 at 10,14). .

       {¶38} The record indicates that Bylaw 4-6-3 and its exceptions in its current

form had been adopted properly, in compliance with the OHSAA constitution.

Moreover, the evidence presented at the hearing on the Nelsons’ request for

injunctive relief established that the member schools specifically sought to limit the

definition of “parent” and to view nonparent custody differently than parent or

primary relative custody and achieved this through its referendum process. The

evidence at the hearing further established that, even though the term “United

States” is not defined in the Bylaw, and we note once again that contrary to the trial


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court’s findings, there is significant Federal legal authority as to the “United States”

and “its territories” supporting both sides of this question. Moreover, the testimony

established that the term “United States” has been consistently interpreted by the

Executive Director’s Office to include the United States territories when

administering Exception 9.

       {¶39} Thus, the uncontroverted evidence at the hearing establishes that, in

this instance, the conduct of the OHSAA, by virtue of its Executive Director’s

Office, was merely interpreting and enforcing the bylaws pursuant to the authority

delegated to it by the member schools. In other words, we simply do not find

support in the record for the trial court’s determination that the manner in which the

OHSAA’s made its decision regarding J.R.’s ineligibility was arbitrary and

capricious—as those terms are defined in State ex rel. Ohio High School Athletic

Ass’n. v. Judges and Lough, or that its procedure in rendering its decision was

inconsistent with due process—which in this instance notably even included an

internal appeals process although the Nelsons chose not to use it. Accordingly, we

conclude that the Nelsons have failed to show that the OHSAA’s decision was the

result of arbitrariness so as to warrant judicial intervention or interference with the

Association’s decision on J.R.’s ineligibility.

       {¶40} Consequently, we conclude that the trial court erred when it found that

the Nelsons had a substantial likelihood of succeeding on the merits in their request


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for injunctive relief. We need not address the remaining prongs of the preliminary

injunction standard because a finding in the Nelson’s “favor on the likelihood of

success is required to justify ‘intrusion into the ordinary processes of administration

and judicial review.’ ” Ulliman v. Ohio High Sch. Athletic Assn., supra, ¶ 70,

quoting Internatl. Diamond Exchange Jewelers, Inc., 70 Ohio App.3d 667, 672 (2d

Dist.1991). Accordingly, we conclude that the trial court erred in granting the

Nelsons’ motion and in issuing a permanent injunction enjoining the OHSAA from

enforcing its determination of J.R.’s ineligibility to participate in interscholastic

athletics. The OHSAA’s first assignment of error is sustained.

                            Second Assignment of Error

       {¶41} Due to our resolution of the first assignment of error, we find the

arguments raised in the second assignment of error to be moot. Therefore, we

decline to address the issues raised therein.

       {¶42} Based on the foregoing, the judgment of the trial court is reversed and

the cause remanded for further proceedings consistent with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded

ZIMMERMAN and PRESTON, J.J, concur.

/jlr




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