                                                                                      07/25/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                June 20, 2019 Session

MELANIE ROBERTSON ET AL. v. TENNESSEE SECONDARY SCHOOL
                ATHLETIC ASSOCIATION

                Appeal from the Chancery Court for Shelby County
                    No. CH-18-1312 Jim Kyle, Chancellor
                    ___________________________________

                          No. W2019-00015-COA-R3-CV
                      ___________________________________

Based on its bylaws, Appellant Tennessee Secondary School Athletic Association denied
three students, Appellees herein, permission to play football at a local high school.
Appellees filed a petition for restraining order and for temporary and permanent
injunctions asking the trial court to prohibit the Association from denying the Students
permission to play football. The trial court immediately granted temporary injunctions;
later, the trial court granted permanent injunctions. Appellant appeals. Based on the
allegations contained in Appellees’ petition, the trial court did not have authority to
interfere in the internal affairs of TSSAA concerning the Students’ eligibility to play
football for the 2018-2019 school year. Therefore, we reverse and remand the case with
instructions to the trial court to dismiss the case and collect the costs.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                            Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Richard L. Colbert, John J. Griffin, Jr., Nashville, Tennessee, for the appellant,
Tennessee Secondary School Athletic Association.

                                      OPINION

                                    I. Background

       Tennessee Secondary School Athletic Association (“TSSAA” or “Appellant”) is a
not-for-profit voluntary association of 430 private and public Tennessee schools. “Its
purpose is to stimulate and regulate interscholastic athletic competition between its
member schools in accordance with the standards those schools establish in the TSSAA
Bylaws . . . .” The member schools elect representatives to the TSSAA Legislative
Council; these representatives write the Association bylaws. The TSSAA Director, Mr.
Bernard Childress, enforces the bylaws, and his decisions are subject to review by the
TSSAA Board of Control. Schools in Tennessee are not required to join TSSAA, and
membership is by annual contract.

        Melanie Robertson, Cedric Lynn, and Darlene Shinault are the parents of Cailon
McGhee, Justin Lynn, and Tarique Barnes (together, the “Students” or “Appellees”),
respectively. The Students were high school seniors when the original petition was filed.
The Students played football at East High School (“East”) for Coach Marcus Wimberly
in the fall of 2017. In January 2018, Cordova High School (“Cordova”) announced that
Coach Wimberly would be its football coach for the 2018-2019 school year. During
January and February 2018, after the above announcement, all three Students withdrew
from East and enrolled at Cordova. On August 3, 2018, Cordova submitted transfer
eligibility requests to TSSAA for determinations on the football eligibility of all three
Students for the 2018-2019 school year.

      Based on the information submitted by Cordova, TSSAA determined that all three
Students were ineligible to play football at Cordova under Article II, Section 13(e) of
TSSAA’s bylaws, which states, in pertinent part:

      If a student with an athletic record transfers to a new school where an
      “athletic coaching link” existed in the past 12 months, that student is
      ineligible for 12 months past their first date of enrollment at the new school
      at all levels in the specific sports where a linkage was present. Links may
      include (1) attendance at an individual camp (and then transferring); (2)
      playing on non-school (independent) teams (and then transferring to that
      coach’s school); (3) transferring into a school where a former coach has
      been hired; and (4) transferring to a school where a former or current
      personal trainer or strength and conditioning coach is employed.

(emphasis added).

       Specifically, TSSAA found that the “coaching link” rule prohibited the Students
from playing football at Cordova, where their former coach from East had recently been
hired. Following TSSAA’s determination, Cordova submitted hardship requests for the
Students. According to Mr. Childress’s declaration, which is contained in the record,

      Article II, Section 24, of the TSSAA’s Bylaws, [is] commonly known as
      the “hardship rule,” [which states that] a member school may request a
      discretionary exception to the normal effect of an eligibility rule on a given
      student. Such a discretionary exception is not guaranteed under any
      circumstances, but it may be considered if four prerequisites are satisfied:
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      (a) the circumstances causing the student to fail to satisfy the eligibility rule
      are unforeseen and unavoidable; (b) application of the rule to the student
      works an undue hardship in light of the unforeseen and unavoidable
      circumstances; (c) application of the rule would not accomplish the purpose
      for which the rule was intended; and (d) in the case of a change of schools,
      the change is for reasons unrelated to participation in athletics.

In considering the hardship requests, Mr. Childress contacted Dr. Marilyn Hilliard, the
principal of East, who reported that “she felt all three students transferred for athletic
reasons.” Following his review, Mr. Childress rejected the hardship requests, and upheld
the decision that the Students were ineligible to play football at Cordova for the 2018-
2019 school year. Under TSSAA’s bylaws, Cordova could have appealed Mr.
Childress’s decision to the TSSAA Board of Control, but chose not to seek review of Mr.
Childress’s decision.

        On September 7, 2018, Appellees filed a petition for temporary restraining order,
temporary injunction, and permanent injunction in the Shelby County Chancery Court
(“trial court”) asking the trial court to prohibit TSSAA from denying the Students
permission to play on the Cordova football team by enforcement of the “coaching link”
rule. Specifically, Appellees alleged that the “coaching link” rule was unfair and unjust,
vague and overbroad, and that TSSAA acted arbitrarily and capriciously when it found
the Students ineligible to play football. On September 7, 2018, the trial court signed a
fiat enjoining TSSAA from taking any action to bar the Students from playing football at
Cordova until it conducted a hearing. On September 10, 2018, TSSAA filed a motion to
dismiss on the ground that the trial court did not have jurisdiction to interfere with
TSSAA’s eligibility determinations. On September 19, 2018, TSSAA filed a response to
Appellees’ application for temporary injunction. Appellees filed a response to TSSAA’s
motion to dismiss on September 21, 2018. On October 9, 2018, under Tennessee Rule of
Civil Procedure 65.04(7), the parties filed a joint motion to advance and consolidate the
trial on the merits with a determination of Appellees’ application for preliminary
injunction.1


      1
          Tennessee Rule of Civil Procedure 65.04(7) states:

      (7) Consolidation of Hearing With Trial on Merits.                  Before or after the
      commencement of the hearing of an application for a preliminary injunction, the Court
      may order the trial of the action on the merits to be advanced and consolidated with the
      hearing of the application. Even when this consolidation is not ordered, any evidence
      received upon an application for a preliminary injunction which would be admissible
      upon the trial on the merits becomes part of the record on the trial and need not be
      repeated upon the trial. This subdivision [65.04(7)] shall be so construed and applied as
      to save to the parties any rights they may have to trial by a jury.

      Tenn. R. Civ. P. 65.04
                                                  -3-
        By order dated December 18, 2018, the trial court denied TSSAA’s motion to
dismiss, and granted Appellees’ petition for permanent injunctive relief finding that: (1)
TSSAA’s decision to block the Students from competing on the football team would
cause irreparable harm to the Students; (2) the harm to the Students was far greater than
the harm to TSSAA; (3) because TSSAA’s decision to deny the Students’ requests for
hardship exceptions to the “coaching link” rule was incongruous with TSSAA’s express
mission to “enhance the educational experience of students” and was inequitable, and
because TSSAA’s “coaching link” rule was harsh, arbitrary, and unjust, Appellees would
likely succeed on the merits of their claim; (4) the decisions of TSSAA were tantamount
to state action, giving the trial court subject matter jurisdiction over the matter; and (5)
that granting injunctive relief in this matter was in the public interest because nearly
every public school in Tennessee is a member of TSSAA. TSSAA appealed.

       On April 29, 2019, Appellees filed a motion to dismiss the appeal for lack of
subject matter jurisdiction arguing that this action had become moot because the Students
played football for Cordova for the 2018-2019 school year, and the football season was
over. On May 6, 2019, TSSAA responded to the motion. This Court denied the motion
to dismiss the appeal on May 9, 2019. Appellees did not file an appellate brief and did
not appear at oral argument.

                                         II. Issues

        TSSAA raises two issues on appeal, but the determinative issue is whether the trial
court exceeded its authority by interfering with the internal affairs of TSSAA regarding
its eligibility decisions for the three Students involved.

                                       III. Analysis

       TSSAA argues that the Tennessee Supreme Court’s decision in Tennessee
Secondary School Athletic Ass’n v. Cox, 425 S.W.2d 597 (Tenn. 1968) is controlling in
this case. The Cox case “involve[d] separate suits by two high school transfer students,
Newman and Cox, whom TSSAA had determined to be ineligible to participate on their
new schools’ athletic teams. Both students alleged in their separate complaints that the
actions of the association were harsh, arbitrary, unlawful and were causing irreparable
harm.” Wingad on Behalf of Wingad v. Tennessee Secondary Sch. Athletic Ass’n, No.
02A01-9111CH00275, 1992 WL 213380, at *3 (Tenn. Ct. App. Sept. 4, 1992). See Cox,
425 S.W.2d at 598-99. TSSAA answered, and “[t]he issue raised by the pleadings was
whether the [trial court] had jurisdiction to intervene in the internal affairs of [TSSAA]
and enjoin the enforcement of its eligibility rules for the benefit of [Newman and Cox].”
Cox, 425 S.W.2d at 599. Despite this question, the Cox trial court granted temporary
injunctions in each case. Id. Thereafter, TSSAA petitioned the Tennessee Supreme
Court for writs of certiorari and supersedeas seeking to set aside the trial court’s grant of
temporary injunctions. Id. The Tennessee Supreme Court granted the writs and held oral
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arguments on the matter. Id. On appeal, the students argued, inter alia, that the trial
court had jurisdiction to intervene in the controversy and to grant them relief. Id.

        In concluding that the trial court “was without jurisdiction and acted illegally in
granting the injunctions based upon the allegations contained in respondents’ bills,” id. at
602, the Cox Court explained that “‘[i]t is well established that the courts will not
interfere with the internal affairs of voluntary associations, except in such cases as fraud,
lack of jurisdiction, or the invasion of property rights or interests.’” Id. at 601 (quoting 6
AM. JUR. 2d, Associations and Clubs § 27 (1963)).2 The Cox Court discussed other cases
where courts refused to intervene into the actions of voluntary associations. From these
cases, the Cox Court derived that courts will not interfere with the bylaws and actions of
voluntary associations when: (1) individual property rights are not involved; (2) such
bylaws do not infringe on public policy; and (3) the actions taken are not unlawful. Id. at
601 (discussing Robertson v. Walker, 62 Tenn. 316, 318-19 (Tenn. 1874), Peoria
Comm’n Co. v. Memphis Merch. Exch., 3 Tenn. Civil Appeals 339 (1913), and
Morrison v. Roberts, 82 P.2d 1023, 1025 (Okla. 1938)). The Cox Court also cited cases
from other jurisdictions, which support the proposition that “courts will not interfere in
the internal affairs of a voluntary high school athletic association” because the courts
have no jurisdiction to do so. Id. (citing Sult v. Gilbert, 3 So.2d 729, 731 (Fla. 1941);
Robinson v. Illinois High Sch. Ass’n, 195 N.E.2d 38, 42-43 (Ill. App. Ct. 1963); State
ex rel. Ohio High Sch. Athletic Ass’n v. J. of the Ct. of Com. Pl., 181 N.E.2d 261, 266-
67 (Ohio 1962); Morrison, 82 P.2d at 1025).

       We agree with TSSAA that Cox is controlling in this case. Here, the Students
attended high schools that chose to be members of TSSAA, a voluntary athletic
association; as such, these schools were subject to and bound by TSSAA’s bylaws and
decisions. For the trial court to have had authority to overturn TSSAA’s eligibility
decision, Appellees would have had to allege, and the trial court would have had to find,
that one of the Cox exceptions applied in this case. Instead, as discussed, supra,
Appellees alleged that the “coaching link” rule was unfair and unjust, vague and
overbroad, and that TSSAA acted arbitrarily and capriciously when it found the Students
ineligible to play football. Importantly, there is no allegation that TSSAA failed to
follow its bylaws, or acted in bad faith in making its eligibility determinations regarding
these three Students. See Cox, 425 S.W.2d at 601. The trial court also failed to make the
necessary findings in its order to support its decision to enjoin the enforcement of

        2
           We note that section 27 no longer contains this language. See 6 AM. JUR. 2d, Associations and
Clubs § 6 (“Absent a violation of law or public policy, arbitrary or collusive actions, bad faith, a lack of
jurisdiction, unreasonableness, fraud, or abuse of civil or property rights having their origin elsewhere, the
courts do not interfere with the internal affairs of a voluntary association or an association’s interpretation
or application of its rules.”); 6 AM. JUR. 2d, Associations and Clubs § 25 (“Courts generally refrain from
interfering in the internal affairs of voluntary associations, unless contrary to law, public policy, reason,
or the association’s bylaws and rules, or in matters of fraud, abuse of discretion, collusion, and the like, or
unless the matter involves important economic interests, property interests, or civil rights.”).
                                                    -5-
TSSAA’s eligibility rules. Instead, the trial court found, inter alia, that: (1) TSSAA’s
“decision to deny [the Students’] request for a hardship exception to [the] rule [was]
incongruous to [TSSAA’s] express mission to ‘enhance the educational experience of
students;’” (2) “TSSAA’s decision to decline [the Students’] hardship application[s]
[was] inequitable;” and (3) “TSSAA’s assertion that the coaching link rule overrides a
student’s bona fide change of residence [was] harsh, arbitrary, and unjust.” (Emphasis in
original).

        The record does not support these findings by the trial court. The “coaching link”
rule is not unfair or unjust as it applies to every student who chooses to participate in
athletic competition at a school that has chosen to be a member of TSSAA. The rule is
not vague and overbroad because TSSAA’s bylaws explicitly explain the “coaching link”
rule and the consequences of violating it. Furthermore, TSSAA did not act arbitrarily or
capriciously in applying this rule to the Students. Instead, as Mr. Childress stated in his
declaration, contained in the record, TSSAA followed its bylaws and procedures and
fairly applied the rule to the Students. While the trial court found that TSSAA’s
“decision to deny [the Students’] request for a hardship exception to [the] rule [was]
incongruous to [TSSAA’s] express mission to ‘enhance the educational experience of
students,’” the transfer rule, which contains the “coaching link” rule, actually “serve[s]
the objectives of the member schools by discouraging school shopping for athletic
purposes and recruiting for athletic purposes.”

       Here, based on the record, TSSAA’s eligibility decisions concerning the three
Students: (1) did not involve the Students’ individual property rights; (2) did not infringe
on public policy; and (3) were not unlawful. See Cox, 425 S.W.2d at 601. The Students
did not have a “legally recognized right to participate in high school athletics. The right
to participate [was] a mere privilege.” Id. at 602 (citing Morrison, 82 P.2d at 1025;
Starkey v. Bd. of Educ. of Davis Cnty. Sch. Dist., 381 P.2d 718, 720 (Utah 1963)). And
the Students’ privilege to participate in football at Cordova for the 2018-2019 school year
was subject to eligibility rules that Cordova elected to enter into with other member
schools in Tennessee, and have such rules enforced by TSSAA.

       As in Cox, the Students and the high schools were bound by TSSAA’s bylaws and
its decisions regarding the Students’ eligibilities to play football. The trial court, based
upon Appellees’ allegations, had no authority to interfere with TSSAA’s internal affairs,
and enjoin the enforcement of its eligibility decision for the three Students. See Cox, 425
S.W.2d at 601.

                                     IV. Conclusion

       For the foregoing reasons, we reverse the trial court’s order dated December 18,
2018. We remand the case with instructions to the trial court to dismiss the case and
collect the costs and for such further proceedings as may be necessary and are consistent
                                            -6-
with this Opinion. Costs of the appeal are assessed against Appellees, Melanie
Robertson, on behalf of Cailon McGhee; Cedric Lynn, on behalf of Justin Lynn; and
Darlene Shinault, on behalf of Tarique Barnes, for all of which execution may issue if
necessary.


                                               _________________________________
                                               KENNY ARMSTRONG, JUDGE




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