Nancy C. Hill, Esq.
David S. Hart, Esq.
Winter Johnson & Hill, PLLC Abrams & Byron
Charleston, West Virginia Beckley, West Virginia
Ancil G. Ramey, Esq. Attorney for the Appellee
Steptoe & Johnson, PLLC
Charleston, West Virginia
Linda J. Salfrank, Esq.
Jonathan F. Duncan, Esq.
Blackwell Sanders Peper Martin, LLP
Kansas City, Missouri
Attorneys for the Appellants
Thomas E. McHugh, Esq.
Allen, Guthrie & McHugh
Charleston, West Virginia
Attorney for Amici Curiae,
National Wrestling Coaches Association; and
Amateur Athletic Union (AAU)
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE McGRAW dissents and reserves the right to file a dissenting opinion.
1. In reviewing the exceptions to the findings of fact and conclusions
of law supporting the granting of a temporary or preliminary injunction, we will apply a
three-pronged deferential standard of review. We review the final order granting the
temporary injunction and the ultimate disposition under an abuse of discretion standard,
West v. National Mines Corp., 168 W. Va. 578, 590, 285 S.E.2d 670, 678 (1981), we
review the circuit court's underlying factual findings under a clearly erroneous standard,
and we review questions of law de novo. Syllabus Point 4, Burgess v. Porterfield, 196
W. Va. 178, 469 S.E.2d 114 (1996). Syllabus point 1, State v. Imperial Marketing, 196
W. Va. 346, 472 S.E.2d 792 (1996).
2. The granting or refusal of an injunction, whether mandatory or
preventive, calls for the exercise of sound judicial discretion in view of all the
circumstances of the particular case; regard being had to the nature of the controversy, the
object for which the injunction is being sought, and the comparative hardship or
convenience to the respective parties involved in the award or denial of the writ. Syllabus
point 4, State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E. 154 (1932).
3. 'Moot questions or abstract propositions, the decision of which would
avail nothing in the determination of controverted rights of persons or of property, are not
properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W. Va.
684, 60 S.E. 873 (1908). Syllabus point 5, West Virginia Education Association v.
Consolidated Public Retirement Board, 194 W. Va. 501, 460 S.E.2d 747 (1995).
4. 'A case is not rendered moot even though a party to the litigation
has had a change in status such that he no longer has a legally cognizable interest in the
litigation or the issues have lost their adversarial vitality, if such issues are capable of
repetition and yet will evade review. Syllabus point 1, State ex rel. M.C.H. v. Kinder,
173 W. Va. 387, 317 S.E.2d 150 (1984).' Syllabus point 2, State ex rel. Davis v. Vieweg,
207 W. Va. 83, 529 S.E.2d 103 (2000). Syllabus point 2, State ex rel. Jeanette H. v.
Pancake, 207 W. Va. 154, 529 S.E.2d 865 (2000).
5. Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will determine whether sufficient
collateral consequences will result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate context, questions of great
public interest may nevertheless be addressed for the future guidance of the bar and of the
public; and third, issues which may be repeatedly presented to the trial court, yet escape
review at the appellate level because of their fleeting and determinate nature, may
appropriately be decided. Syllabus point 1, Israel v. West Virginia Secondary Schools
Activities Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989).
The appellants herein and defendants below, the National Collegiate Athletic AssociationSee footnote 1 1 [hereinafter referred to as the NCAA] and the Southern ConferenceSee footnote 2 2 [hereinafter referred to as the SoCon],See footnote 3 3 appeal an injunctive order entered by the Circuit Court of Raleigh County on January 8, 2001. This preliminary injunction was awarded following the request for such relief by the appellee herein and plaintiff below, Jeremy M. Hart [hereinafter referred to as Hart], who is a fifth-year senior student athlete at Appalachian State University [hereinafter referred to as ASU] in Boone, North Carolina. Pursuant to this ruling, the circuit court ordered the NCAA and the SoCon to allow Hart to compete in NCAA Division ISee footnote 4 4 intercollegiate wrestling contests during the 2000-2001 academic year. On appeal to this Court, the appellants contest the circuit court's conclusion that Hart is entitled to an additional year of eligibility. Upon a review of the appellate record, the parties' arguments, and the pertinent authorities, we conclude that Hart was not entitled to injunctive relief. Because we find that the Circuit Court of Raleigh County abused its discretion, we vacate its order awarding a preliminary injunction.
The following year, ASU renewed its scholarship to Hart. ASU wrestling
coaching staff decided to have Hart compete in the 134 lb. class during the fall of 1997
because Smith's academic difficulties precluded him from competing. The coaches then
planned to replace Hart with Smith at the 134 lb. level in early 1998, and to have Hart lose
weight and compete in the 126 lb. division. During the fall of 1997, however, three
collegiate wrestlers at different colleges around the country died as a result of rapid weight
loss designed to help them make weight so that they could compete in lower weight
classes. As a result of these tragedies, the NCAA promptly adopted policies and
procedures to govern the remainder of the 1997-98 wrestling season in an attempt to
prevent further harm to such athletes. At issue to the instant appeal was the regulation
which provided that, during the spring of 1998, a collegiate wrestler could compete only
in those weight classes in which he had competed on or before January 7, 1998, unless he
received a waiver from such requirement. This policy affected five wrestlers on the ASU
team, including Hart. Each of these young men applied for an exemption from this
regulation, with four of the five being granted such a waiver.See footnote 6
Hart, however, was denied
permission to compete in the 126 lb. category. Thereafter, Hart filed numerous appeals
of this decision with the NCAA. Ultimately, ASU coaches allowed Smith to represent
ASU in the 134 lb. weight class for the remainder of the 1997-98 season, with Hart being
effectively precluded from competition.
Hart subsequently returned to ASU during the 1998-99 and 1999-2000
academic years and competed on the ASU wrestling team.See footnote 7
During each of these athletic
seasons, Hart competed in the 141 lb. division. At the end of the 1999-2000 season,
however, Hart had exhausted his four years of wrestling eligibility dictated by the NCAA
guidelines.See footnote 8
Despite the numerous appeals of his waiver denial in 1998 and his subsequent
efforts to obtain an additional year of eligibility so that he could compete during the 2000-
2001 season, the NCAA refused to award Hart the requested relief. Hart then filed the
instant proceeding in the Circuit Court of Raleigh County, on October 31, 2000, against
the NCAA, the SoCon, and ASU alleging breach of contract and requesting a preliminary
injunction and declaratory judgment in his favor to allow him to compete in intercollegiate
wrestling contests during the spring of 2001. By order entered January 8, 2001, the circuit
court awarded Hart a preliminary injunction. The NCAA and the SoCon now appeal the
lower court's ruling to this Court.
While, as we will explain below, we find the ultimate outcome to be clearly dictated by
the governing law, the factual posture of this case has been most troubling. On the one
hand, we have a young man who, unlike so many of his wayfaring counterparts who come
before this Court on charges of illegal criminal activity, seeks this Court's assistance to
accomplish his commendable ambition to succeed and to achieve his noble goal of simply
being the best collegiate wrestler in the country. On the other hand are two organizations
committed to safeguarding the health and well-being of student athletes, such as our young
appellee, and his teammates who, themselves, have similar dreams of greatness. When
all factors have been weighed on the scales of justice, though, this Court remains
constitutionally bound to follow the guiding precedents before us, to apply the law as it has
been interpreted by our predecessors, and to reach the result prescribed thereby. With this
having been said, we proceed to consider the parties' arguments.
On appeal to this Court, the NCAA and the SoCon challenge the circuit
court's ruling whereby it granted Hart a preliminary injunction to enable him to compete
in intercollegiate wrestling matches during the 2000-2001 academic year despite his being
ineligible to participate in such contests for a fifth season. In support of their contentions,
the appellants assert that Hart has failed to satisfy the criteria requisite to an award of
injunctive relief. Hart denies that the circuit court erred and maintains that he was entitled
to the relief awarded to him by that tribunal.See footnote 9
Before addressing the merits of the instant appeal, we necessarily must
discuss the present procedural posture of this case. Although there existed a true
controversy befitting judicial intervention when this case was originally submitted for our
consideration, now, at the present time of decision, the injunctive issue raised in this
appeal has become moot as the contests in which Hart sought to compete have already
transpired and his graduation from Appalachian State University has become a fait
Generally, we have observed that '[m]oot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' Syllabus Point 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908). Syl. pt. 5, West Virginia Educ. Ass'n v. Consolidated Pub. Ret. Bd., 194 W. Va. 501, 460 S.E.2d 747 (1995). Nevertheless, the simple fact of apparent mootness, in and of itself, does not automatically preclude our consideration of this matter.
'A case is not rendered moot even though a party to
the litigation has had a change in status such that he no longer
has a legally cognizable interest in the litigation or the issues
have lost their adversarial vitality, if such issues are capable of
repetition and yet will evade review.' Syllabus point 1, State
ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150
(1984). Syllabus point 2, State ex rel. Davis v. Vieweg, 207
W. Va. 83, 529 S.E.2d 103 (2000).
Syl. pt. 2, State ex rel. Jeanette H. v. Pancake, 207 W. Va. 154, 529 S.E.2d 865 (2000). Guiding our analysis,
[t]hree factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.
Syl. pt. 1, Israel v. West Virginia Secondary Schs. Activities Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989).
Applying these factors to the case sub judice, we are convinced of the
wisdom of addressing the merits of the issue before us. Given the number of public and
private colleges and universities within this State as well as the plethora of college-aged
youth among our State's residents, it is quite likely that the same, or a strikingly similar,
issue could arise in a future case wherein a student athlete asserts his or her ability to
compete in intercollegiate athletic contests when the NCAA, or some other entity, adjudges
him/her to be ineligible. As such decisions most likely would occur during the student's
final year of educational studies, the resolution of such a dispute would necessarily have
to occur within a very finite period of time and, such as with the case sub judice, may not
be capable of resolution within that temporal margin. Additionally, as we reiterated in
Israel, this question 'undisputably involves a most vital public function---education of our
youth. Because it is foreseeable that it will arise again, we find the question remains
justiciable for future guidance.' 182 W. Va. at 457, 388 S.E.2d at 483 (quoting White
v. Linkinoggor, 176 W. Va. 410, 412, 344 S.E.2d 633, 635 (1986) (citations omitted)).
Accordingly, we deem the instant appeal to be a cognizable claim, and thus, we proceed
to review the circuit court's decision.
The first matter to consider when assessing whether injunctive relief is
warranted in a particular case is the nature of the underlying controversy. See Syl. pt. 4,
in part, State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E. 154. This case
commenced as a complaint stating claims for relief for declaratory judgment and breach
of contract, as well as the preliminary injunction that is at issue in the instant appeal. In
order to properly consider the nature of the controversy, however, the object for which
the injunction is being sought, must also be contemplated. See id. As Hart's request for
injunctive relief to enable him to enjoy an additional year of eligibility as a collegiate
wrestler is inextricably entwined with the nature of controversy before us, we will
simultaneously consider these two matters.
Generally, injunctive relief is available to litigants who will sustain an
irreparable injury if emergency action is not taken in their particular case. See generally
10A Michie's Jurisprudence Injunctions § 2 (1990). Under the facts presently before us,
Hart bases his claim for injunctive relief upon his perceived right to participate in
collegiate wrestling contests. This assertion standing alone, however, is not sufficient to
support the issuance of a preliminary injunction. Simply stated, a student's ability to
participate in athletic contests is not a right recognized by the law of this State.See footnote 10
[P]articipation in interscholastic athletics . . . does not rise to the level of a
constitutionally protected 'property' or 'liberty' interest. Bailey v. Truby, 174 W. Va.
8, 21, 321 S.E.2d 302, 316 (1984). Accord Truby v. Broadwater, 175 W. Va. 270, 272,
332 S.E.2d 284, 286 (1985). See also Bailey, 174 W. Va. at 23, 321 S.E.2d at 318
(concluding further that [p]articipation in . . . interscholastic athletics . . . does not rise
to the level of a fundamental . . . right). As Hart has no enforceable right to compete in
collegiate wrestling contests, he has no existing right meriting protection by way of a
preliminary injunction against the NCAA or the SoCon.See footnote 11
Hart also raises a claim against the appellants based upon breach of contract.
Like his general claim for relief, though, this cause of action also does not entitle him to
injunctive relief as the record before us does not evidence a contractual relationship
between these particular parties.See footnote 12
See generally Syl. pt. 2, Go-Mart, Inc. v. Olson, 198
W. Va. 559, 482 S.E.2d 176 (1996) (per curiam) ('The fundamentals of a legal contract
are competent parties, legal subject matter, valuable consideration and mutual assent.
There can be no contract if there is one of these essential elements upon which the minds
of the parties are not in agreement.' Syl. pt. 5, Virginian Export Coal Co. v. Rowland
Land Co., 100 W. Va. 559, 131 S.E. 253 (1926).); Marshall v. Elmo Greer & Sons,
Inc., 193 W. Va. 427, 430, 456 S.E.2d 554, 557 (1995) (per curiam) (An implied
contract 'presupposes an obligation arising from mutual agreement and intent to promise
but where the agreement and promise have not been expressed in words.' (quoting Case
v. Shepherd, 140 W. Va. 305, 310, 84 S.E.2d 140, 143 (1954)) (additional quotations and
citation omitted)). See also Marshall, 193 W. Va. at 430, 456 S.E.2d at 557 (An implied
contract arises from the principle of equity that one person may not enrich himself unjustly
at the expense of another. (internal quotations and citations omitted)).
As Hart has failed to demonstrate that either the nature of the controversy or
the object for which he seeks relief support the issuance of a preliminary injunction in this
case, we need not consider the remaining criteria warranting the issuance of such relief,
i.e., the comparative hardship or convenience to the respective parties. See Syl. pt. 4,
in part, State ex rel. Donley v. Baker, 112 W. Va. 263, 164 S.E. 154. In summary, then,
we conclude that the circuit court misapplied the governing law and abused its discretion
in its order awarding Hart injunctive relief against the NCAA and SoCon. Accordingly,
we vacate the preliminary injunction. Given the relatively nominal harm, if any, to the
parties resulting from this erroneous ruling, however, we strongly object to any reprisal
or adverse action contemplated by the appellants as a result of our decision herein.