Date: 10-01-2013

Case Style: Brayden Scott v. Oklahoma Secondary School Activities Association

Case Number: 2013 OK 84

Judge: Kauger

Court: Oklahoma Supreme Court on appeal from the District Court, Cherokee County

Plaintiff's Attorney: Chadwick Smith, Tahlequah, Oklahoma, for Appellant.

Defendant's Attorney: Mark S. Grossman, Oklahoma City, Oklahoma, Todd Hembree, Tahlequah, Oklahoma, for Appellee.

Description: ¶1 The questions presented on appeal are whether the district court: 1) applied the incorrect standard of review in determining whether the actions of the Oklahoma Secondary School Activities Association (OSSAA) warranted the issuance of a permanent injunction; and 2) erred in its determination that there was no substantial likelihood of Petitioner Brayden Scott (Scott) prevailing on his claim that the OSSAA acted in an arbitrary and capricious manner. We hold that the district court erred in applying the wrong standard of review, and that, under any standard, the district court erred by failing to find Scott had a substantial likelihood of prevailing on his claim that the OSSAA acted in an arbitrary and capricious manner.

FACTS

¶2 Scott is a former student at Sequoyah School (Sequoyah) in Tahlequah, Oklahoma, a federal Indian boarding school operated by the Cherokee Nation. At the time the events giving rise to this cause occurred, Scott was a senior at Sequoyah and quarterback of the varsity football team. Respondent OSSAA is an association that regulates interscholastic sports competition in Oklahoma. It identifies itself as a voluntary association of Oklahoma secondary schools that regulates the interscholastic activities of member schools which serves to ensure that desired educational goals are not shortchanged by an overemphasis on athletics.1

¶3 In July of 2012, the OSSAA apparently received a copy of a newspaper article concerning Sequoyah's successes attracting the attention of college football recruiters.2 Based on comments made in the article, the OSSAA became concerned that Sequoyah might have violated what the OSSAA considered to be its long-standing prohibition on member schools paying for their student-athletes to attend individual athletic camps. The OSSAA notified the school of its concerns and asked for confirmation as to whether Sequoyah had paid for selected students to attend individual camps. The OSSAA alleges it received no response prior to September 10, 2012.3 At that point it received a response from Coach Brent Scott offering somewhat vague answers to its request for more information.4

¶4 Concerned that multiple students might be ineligible due to violations and yet still participating in games during the season, the OSSAA sought specific details about which students might have attended camps and had their tuition paid by either Sequoyah or sources that were not their own family, such as parents of other students. Despite apparently stressing the urgency of its requests, the OSSAA did not receive any more information from the head coach until Sequoyah, in a letter dated September 27, 2012, instructed Coach Brent Scott to respond to the OSSAA's request by 8:00 a.m. the next morning.5

¶5 October 16, 2012, appears to be the date on which the OSSAA was first able to confirm the identities of students for whom Sequoyah had paid tuition or fees for individual football camps and the camps that had been attended at school expense from 2009 to 2012. This information was provided to the OSSAA in a letter and attached spreadsheet sent by the Sequoyah Athletic Director.6

¶6 On October 22, 2012, OSSAA Executive Director Sheakly spoke on the phone with Sequoyah's Athletic Director about the possible ineligibility of several students, including Scott, as well as the head football coach. The exact details of the conversation are disputed. Scott alleged that the OSSAA declared him and other students ineligible at that point.7 The OSSAA alleged that it informed Sequoyah that it expected the players in question and the coach would be held out of competition in order to avoid possible future violations and attached sanctions.8 Regardless, on this date the OSSAA considered Scott and certain of his fellow players ineligible to play, and the head coach ineligible to coach, based on what it considered to be violations of its rules and policies concerning tuition payment for participation in individual camps. Sequoyah's athletic director apparently conceded the violations and announced it was suspending the head coach, but he thought that the players should be allowed to continue to participate because they were blameless. At this point there were only two games remaining in the regular season, scheduled for October 26 and November 2, 2012.

¶7 One of Scott's teammates, through his parent and attorney, sought relief in the District Court of Cherokee County on October 25, 2012, by filing a Verified Petition and Application for Temporary Restraining Order and/or Temporary Injunction. The player argued that even though administrative remedies had not been exhausted, an administrative appeal would not take place until after the end of the player's senior season and irreparable harm would result. In a Temporary Restraining Order issued on October 25, 2012, the court ordered the OSSAA to refrain from enforcing its determination of ineligibility for not just the represented player, but for Scott and all other players as well as the head coach, so that they could finish the regular season. The day after the issuance of the Temporary Restraining Order, Scott moved to intervene in the litigation as a plaintiff, and was permitted by the court to do so.

¶8 Meanwhile, the OSSAA continued its investigation, interviewing students and parents in the course of an attempt to obtain more detailed information. After conducting the investigation, on November 3, 2012, the Executive Director of the OSSAA directed that Sequoyah forfeit each of the wins in the current season, instructed that Sequoyah was not to participate in the state football playoffs, and also directed that the head coach (already on suspension by Sequoyah) not participate in coaching until reinstated by the OSSAA's Board of Directors.9 Sequoyah and the head coach were notified that the determinations could be appealed at the upcoming Board of Director's meeting on November 7, 2012. On November 6, 2012, OSSAA Staff issued a twenty-page report concerning its investigation, its findings regarding the student-athletes' participation in camps, and recommended sanctions. The OSSAA Board adopted the findings and all but one of the proposed penalties.

¶9 In response to the OSSAA's November 3 decision, on November 7, 2012, the same day as the OSSAA's Board Meeting, Scott petitioned the district court for a declaratory judgment and permanent injunction, to prevent the OSSAA from enforcing its ruling and to allow Scott and his affected teammates to participate in the 2012 state football championships. Sequoyah announced it would not contest the OSSAA's final decision and it did not join in Scott's petition for a permanent injunction. The district court denied Scott's request for a permanent injunction.

¶10 On November 9, 2012 (the day the state football playoffs were to begin), Scott filed an Application for Original Jurisdiction and Petition for an Emergency Writ of Mandamus, as well as a Petition in Error also requesting a writ of mandamus be issued in this Court, ordering the district court to issue an injunction against the OSSAA. We denied Scott's Application for an Emergency Writ of Mandamus on November 9, 2012, and on November 29, 2012, recast Scott's Petition in Error as an appeal from a final order of the district court.

¶11 On December 12, 2012, we issued a show cause order inquiring why the appeal should not be dismissed as abandoned. Scott responded on December 28, 2012, and this Court permitted the appeal to continue on January 3, 2013. On January 11, 2013, Scott moved to stay his appeal pending final disposition of his request for a declaratory judgment in the trial court, which this Court denied on March 14, 2013. The OSSAA moved to dismiss the appeal for mootness on January 25, 2013, and the motion was denied on March 11, 2013. On May 14, 2013, Scott filed a motion to retain the appeal in this Court, which was granted on June 26, 2013. This cause was assigned to this office on June 26, 2013.

¶12 On appeal, Scott argues that the District Court erred when it denied his request for a permanent injunction against the OSSAA on November 8, 2012, because: 1) it exercised the improper standard of judicial review by giving absolute deference to the OSSAA's decisions; and 2) it found he had no likelihood of succeeding on his claim that the OSSAA acted in an arbitrary, capricious, and unreasonable manner.

I.

The District Court Erred in Applying the Wrong Standard of Review, but Under any Standard, the District Court Erred by Failing to Find Scott had a Substantial Likelihood of Prevailing on his Claim that the OSSAA acted in an Arbitrary and Capricious Manner.

A.

This Matter Falls Within Long-Standing Exceptions to the Mootness Doctrine.

¶13 The OSSAA asserts that this appeal should be dismissed as moot and unripe for appellate review. The OSSAA acknowledges that this Court denied a similar motion on March 11, 2013, but that it did so without specifically stating that the denial was with prejudice to refiling. The OSSAA now asks the Court to once again examine the issue, and asserts that Scott's motion for a permanent injunction, denial of which is the sole subject for this appeal, was addressed specifically to Scott's high school athletic eligibility and the exclusion of Sequoyah's football team from the 2012 state playoffs. It is undisputed that the playoffs are now over, and that by graduating and enrolling in college, Scott will never again attend an OSSAA-member school or be subject to its rules regarding eligibility. He can no longer benefit from the injunctive relief he originally sought.

¶14 Oklahoma recognizes two exceptions to the mootness doctrine: 1) when the appeal presents a question of broad public interest; and 2) when the challenged event is capable of repetition, yet evading review.10 Exceptions to the mootness doctrine are not fixed, and their application depends on the facts presented and the policy considerations.11

¶15 The OSSAA's interpretation of its policies affects a great many athletic programs, because of the sphere of influence it possesses over secondary school sporting competition. The ability of students to participate in athletics is important to potential college and professional careers, and it is a matter of great public import. Questions regarding student eligibility to participate in sporting events occur often, but because of the short window between questions arising and the occurrence of the events in question, judicial review of the OSSAA's decisions prior to the occurrence of those events can be difficult. That is precisely what occurred here. If controversies regarding the OSSAA's decisions concerning eligibility were to become moot each time merely because the events in question had already occurred, all the OSSAA would need to do to perpetually evade review of its actions is to delay a decision until the event occurs. Clarification regarding the proper standard of review for decisions made by the OSSAA is necessary to avoid continuing confusion regarding disputes over student eligibility.

B.

The Proper Standard of Review for Decisions of the OSSAA is that Provided by the Administrative Procedures Act, 75 O.S. 2011 §322.

¶16 Granting or denying injunctive relief is generally within the sound discretion of the trial court and judgments issuing or refusing to issue an injunction will not be disturbed on appeal unless the lower court has abused its discretion or its decision is clearly against the weight of the evidence.12 An action for an injunction is one of equitable cognizance and this Court will consider all of the evidence on appeal.13 In order to determine whether there was an abuse of discretion, a review of the facts and the law is essential.14 The fact issue involves whether the ruling reviewed is without a rational basis in the evidence to support the decision.15 The law issue concerns whether the ruling is based upon an erroneous legal conclusion.16 On appeal, Scott argues that the trial court committed an error of law by applying an overly-deferential standard of review to actions taken by the OSSAA in making its decision whether to grant a permanent injunction. We agree.

¶17 In a hearing before the trial court on November 8, 2012, regarding Scott's Motion for a Permanent Injunction, it indicated it found this Court's decision in Morgan v. Secondary School Secondary School Activities Ass'n, 2009 OK 21, 207 P.3d 362 to be persuasive regarding the deference due a voluntary association's interpretation of its own rules and policies.

¶18 In Morgan, supra, the OSSAA sought review of an order of the district court enjoining it from enforcing its determination that a high school basketball player was ineligible to participate in varsity athletics under the OSSAA's rules following a voluntary transfer to another school. This Court held:

It is fundamental that voluntary unincorporated associations such as the Oklahoma Secondary School Association, through their members, are free to adopt rules that govern their interaction and that they are free to enforce those rules without undue interference by the courts.17

As a result, the Court stated:

... [C]ourts should not intervene except to ascertain whether association proceedings are conducted pursuant to the rules and laws of the organization, in good faith and lawfully. Absent fraudulent, collusive, unreasonable, arbitrary or capricious behavior, this Court may not overturn a voluntary association's enforcement of its rules.18

¶19 Morgan, supra, is part of a long series of cases going back to 1938 in which this Court has reinforced the notion of judicial deference to the actions of the OSSAA in the exercise of its authority to establish and enforce its rules controlling students' athletic eligibility.19 Aside from deference to the OSSAA regarding interpretation of its own rules, Morgan, supra, also held that no vested right to "eligibility" existed. The Court stated:

[t]he plaintiff has many rights as a citizen and as a high school student, but he has no vested right in "eligibility" as dealt with at such great length in the rules of the Oklahoma High School Athletic Association.

¶20 Morgan, supra, and prior decisions are predicated on the notion that the OSSAA is truly a voluntary association. Even when this Court decided Morgan, in 2009, there was some doubt as to whether the OSSAA could accurately be called "voluntary" in a traditional sense. The dissent noted that:

While the term "voluntary" is used in our prior decisions--for students--the term is a misnomer. A school is required be [sic] a member of the OSSAA to participate in state-wide interscholastic athletic events. Students who want to be involved in athletics and who might even choose athletics as a career are required to be bound by the OSSAA rules and procedures if their school is a member and if they want to play sports. In this sense, it is not truly "voluntary" as the term suggests.20

¶21 There are several possible meanings for the term voluntary.21 The common thread is that for a decision, such as a decision to join an association, to be voluntary, it must be unconstrained by outside interference and done without valuable consideration or legal obligation.22 Implicit in Morgan, supra, is that the unique treatment of voluntary associations stems from the decision to join them being voluntary--this is what makes them voluntary associations.23 The OSSAA cannot be a voluntary association if the decision on the part of its member schools to join is not truly voluntary.

¶22 Pursuant to the OSSAA Constitution, member schools may only participate in athletic competition with other member schools of the OSSAA, with schools that are members of associations in other states, or with amateur teams and school teams not eligible for membership in any association.24 This means that OSSAA member schools are not permitted to engage in athletic competition with Oklahoma secondary schools that are eligible to join the OSSAA but decline to do so. Put another way, an Oklahoma secondary school must join the OSSAA to compete with any of its approximately 491 member schools. Should the school desire the value and enrichment its families and students receive from interscholastic competition, it effectively has no choice but to join the OSSAA. In exchange for joining a school receives extremely valuable consideration: the ability of its students to participate in interscholastic athletics in Oklahoma with their peers at other schools. Functionally, membership in the OSSAA is not a choice but a requirement, lest students flee the district in droves for districts where they can participate in athletics.

¶23 The notion that the OSSAA might not really fit within the definition of a voluntary association was reinforced in a different manner by the Court of Appeals for the Tenth Circuit, in Christian Heritage Academy v. Oklahoma Secondary School Activities Association, 483 F.3d 1025 (10th Cir. 2007). In that case, the court concluded that the OSSAA was subject to the Fourteenth Amendment, because it was a state actor.25 The court held that the OSSAA's conduct constituted state action because of the pervasive entwinement of public institutions and public officials in its composition and workings.26 As a result, the Court of Appeals for the Tenth Circuit held that the OSSAA's requirement of majority approval for admission of non-public schools (a different rule than for public schools), violated the equal protection clause of the Fourteenth Amendment.27

¶24 Regarding due process claims, however, the court in Christian Heritage Academy, supra, held that due process arguments were not properly preserved on appeal and also that Christian Heritage had not identified a property or liberty interest at stake, which is necessary for advancing a due process claim.28 While Scott has spent a great deal of time asserting a Fourteenth Amendment due process claim, he appears to have failed to address the principle that the Due Process Clause is implicated only when a constitutionally protected interest is at stake.29 In fact, the Tenth Circuit has previously indicated that athletic participation is not a constitutionally protected interest.30 In this regard, the Tenth Circuit is in accord with this Court's previous determination that a student's participation in interscholastic athletics is not a right but a privilege.31 We decline to depart from that determination today.

¶25 However, Fourteenth Amendment claims aside, Scott argues that because the Tenth Circuit has declared the OSSAA to be a state actor, its decisions should be subject to the standard of review applicable to decisions of state agencies under the Administrative Procedures Act (APA), 75 O.S. 2011 §322.32 This Court has not previously held that the APA is applicable to the OSSAA.

¶26 The standard of review applicable to agencies pursuant to the APA, 75 O.S. 2011 §322, while similar in some respects, is different than that required by Morgan, supra. Under §322, an agency's order will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error.33 An order is subject to reversal if an appealing party's substantial rights were prejudiced because the agency's findings, inferences, conclusions or decisions were entered in excess of its statutory authority or jurisdiction, were arbitrary or capricious, or were clearly erroneous in view of the reliable, material, probative and substantial competent evidence.34

¶27 The OSSAA is not truly a voluntary association. As this Court stated very recently in Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, ¶18, 303 P.3d 884, most public and private schools in Oklahoma are members of the OSSAA.35 At the time of that decision membership was about 481 secondary schools.36 It is difficult to argue that the OSSAA is not effectively in almost complete control of secondary school athletic competition between public school students in the state of Oklahoma. The OSSAA is given specific authority over eligibility in certain circumstances by the statutes.37 Nor is that the only place that the OSSAA is mentioned in the statutes: 70 O.S. 2011 §24-155 requires that school district boards of education work with the OSSAA to develop guidelines to help prevent head injury in youth sports.38 Title 70 O.S. 2011 §24-131.2 grants school administrative officers authority to order persons interfering with the conduct of sanctioned athletic events to leave the premises.39 For purposes of that section, a "sanctioned athletic event" is defined as an athletic contest or sporting event sanctioned by the Oklahoma Secondary School Activities Association.40

¶28 In many respects the OSSAA already behaves like a state agency and adheres to requirements provided by statute. The OSSAA Constitution provides that the Board of Directors is required to develop procedures similar to those required by Oklahoma State Law for public school funds in order to track receipt and expenditure of OSSAA funds.41 The OSSAA Constitution also specifies that its meetings shall be conducted pursuant to "the Open Meeting Law of the State of Oklahoma."42

¶29 These examples serve to illustrate how all-pervasive a force the OSSAA is in secondary school athletic competition in Oklahoma. In 1977, this Court examined, and found appropriate, judicial scrutiny into the internal matters of another allegedly voluntary association, the NCAA. In Bd. of Regents of University of Oklahoma v. National Collegiate Athletic Ass'n, 1977 OK 17, 561 P.2d 499, this Court stated:

Courts are normally reluctant to interfere with the internal affairs of voluntary membership associations, however, in particular situations, where the considerations of policy and justice are sufficiently compelling judicial scrutiny and relief are available. In dealing with an organization in which membership is an economic necessity, the courts must be particularly alert to the need for protecting the public welfare and advancing the interests of justice by reasonably safeguarding the individual's opportunity to earn a livelihood while not impairing the proper standards and objectives of the organization. The necessity of court action is apparent where the position of a voluntary association is so dominant in its field that membership in a practical sense is not voluntary but economically necessary.43

¶30 This Court discussed in detail the purposes and mission of the NCAA in regulating intercollegiate athletics, which mirror closely those of the OSSAA in Oklahoma for regulation of competition between secondary schools.44 What was true of the NCAA in 1977, is true of the OSSAA today. Because the role it plays in our State, goes above and beyond that of a traditional voluntary association, closer scrutiny when reviewing its actions is a necessity.

¶31 Member fees are paid by Oklahoma public schools in order to be part of the OSSAA.45

Because the source of funding of public schools is from Oklahoma taxpayers, the State of Oklahoma has an interest in ensuring that tax dollars are used by the OSSAA in a manner that is not arbitrary and capricious, but one that is fair and impartial. Meaningful review of the OSSAA's actions is necessary to ensure this.

¶32 The district court, therefore, erred in showing near complete deference to the OSSAA regarding its internal procedures. The standard of review from Morgan, supra, relied upon by the district court in making its ruling cannot properly be applied to a nominally voluntary association that is not truly voluntary. While the OSSAA is not a state agency subject to the provisions of the APA, it is similar enough in character and in reach that courts should apply the standard of review provided by the APA in 75 O.S. 2011 §322 for agency decisions.46

II.

Under Any Standard of Review, the OSSAA's Determinations Were Arbitrary and Capricious.

¶33 Even under the review standard in Morgan, supra, however, supposedly voluntary associations are still prohibited from engaging in behavior that is unreasonable, arbitrary, or capricious in the enforcement of their rules.47 Unlike in Morgan and Brown, the record in this cause, as discussed below, contains copious evidence that the OSSAA acted in a manner that was arbitrary and capricious. Even applying the Morgan standard, the district court erred by entering a decision against the evidence in failing to grant a permanent injunction prohibiting the OSSAA from enforcing its determinations as to Scott.

¶34 Scott argues on appeal that the district court erred in deferring to the OSSAA because the OSAA's decisions were arbitrary, capricious, and unreasonable. At issue is the OSSAA's determination that Scott participated in certain camps where fees and expenses were paid in violation of OSSAA rules and policies. Scott does not contest that Sequoyah paid fees and expenses for football players, including Scott, to attend individual camps.48 Rather, Scott asserts the OSSAA's interpretation of its rules and its application of them were arbitrary and capricious. While this Court has yet to construe the meaning of arbitrary and capricious within the context of §322, two divisions of the Court of Civil Appeals have defined it as acting in a manner that is wilful and unreasonable without consideration or in disregard of facts or without determining principle or unreasoning in disregard of facts and circumstances.49 While agency decisions are due some deference, we find the words of the United States District Court for the District of Columbia in Conservation Law Foundation v. Evans, 209 F.Supp.2d 1, 8 (D.D.C. 2001), to be apt: "courts do not hear cases merely to rubber stamp agency actions. To play that role would be tantamount to abdicating the judiciary's responsibility."

¶35 Scott argues that OSSAA's retroactive application of portions of its policies is arbitrary and capricious. We agree. Retroactive application of policies that did not exist for the majority of the alleged violations is inherently arbitrary and capricious because it has no basis in reason and is in complete disregard of the facts and circumstances. The OSSAA determined that Sequoyah paying the fees for various individual camps in which Scott participated violated OSSAA Policy X(D), which provides in pertinent part:

D. An individual student who is attending or who is enrolled and planning to attend a member school in grades 7-12:

....

2. may participate in individual camps and clinics in a particular activity, however:

....

(c) no fees or expenses for the camp or clinic may be paid by the school, or by school personnel, or by any booster club or organization associated with the school, or by any non-family member; any discount or waiver of fees or expenses must be based on financial need, and must be available to all participants based on the same standards;50

Scott insists that this policy provision came into effect after he attended most of the individual camps at issue. The OSSAA contends that the specific provisions of policy X.D.2. had been in effect since the start of Scott's alleged violations in 2009.51 This is incorrect by the OSSAA's own admission. It is not disputed that the specific language on X.D.2. did not appear until the 2011-2012 policy. Application of this specific provision, then, to find Scott ineligible, was not appropriate prior to the effective date of this new language.52

In response, the OSSAA asserted that camp policy in effect before July 2011, in the form of Policy X.B., plainly stated that a student's attendance at an individual camp would be paid by the student or his/her family without concession.53

¶36 A detailed examination of the record reveals that the OSSAA intended to, and did apply the then current version of Policy X, containing Section D.2., for all the alleged violations going back to 2009.54 Even if the new Section D.2. took effect as early as the OSSAA asserts, on July 1, 2011, the OSSAA's attempt to apply it retroactively to the 11 camp attendances by Scott which occurred prior to that date, without any justification and in disregard of the underlying facts, was arbitrary and capricious.

A. The Application of OSSAA Rule 9 Was Arbitrary and Capricious.

¶37 Both the final report drafted by the OSSAA staff and the Executive Director's November 3, 2012, letter making the initial determinations, concluded that Rule 9 of the OSSAA Rules prohibited payment by Sequoyah of fees for its students to attend individual camps.55 Rule 9 is clearly and unambiguously directed towards recruitment of student-athletes, and Section 1 delineates this purpose. It provides:

Section 1. Statement of purpose.

OSSAA recognizes that permitting member schools to recruit students as athletes would place undue emphasis on secondary school athletic activities, and might cause competitive imbalances among member schools, misdirection of scarce educational resources, and threats to the continued amateur standing of students. Accordingly, no member school is permitted to recruit a student to select or transfer to that school, or to encourage or allow others to do so on its behalf, based on that student's skill, reputation, or experience in athletics.56

The plain language of Section 1 indicates that the purpose of Rule 9 is to prohibit schools from offering special treatment to prospective student athletes. This is reinforced by Section 2, which also concerns recruitment.57

¶38 When the Executive Director made his initial determination of forfeiture based on ineligibility by letter on November 3, 2012, his only explanation regarding the application of Rule 9 to Sequoyah's payment for Scott and others to attend individual camps was to state that "[t]he school's regular payment of expenses for certain student-athletes, particularly its most prominent and skilled football players, obviously could be viewed as an economic incentive for skilled student athletes to attend and remain at the school..." The same statement is repeated in the OSSAA's report on November 6, 2012. 58 The above hypothetical is the only real explanation given by the OSSAA as to how Sequoyah might have violated Rule 9. At no point did the OSSAA allege or attempt to prove that the payment of individual camp fees by Sequoyah for its football players, including Scott, constituted:

[o]ffering economic incentives or rewards of any type to a student-athlete, which are not available to all prospective students on an equal basis, regardless of participation in athletics, or offering such economic incentives or rewards to the student-athlete's family members, friends, or associates, for the purpose of encouraging that student-athlete to select, transfer to, or remain at a member school.59

Nor did the OSSAA allege or attempt to prove in any way that Sequoyah was

offering or providing special or additional coaching or instruction that is not offered or made available to other student-athletes at the school on an equal basis, or providing special attention or consideration to a student-athlete who is considering transferring, for the purpose of influencing that student-athlete to remain at the school.60

Nor did the OSSAA allege or attempt to prove that Sequoyah was paying for individual camps for the purposes of recruiting anyone to come to Sequoyah or to remain there. In fact, the article that apparently sparked the OSSAA's investigation indicates that while recruitment was indeed the primary purpose of the whole endeavor, the recruitment discussed was the recruitment by college programs of current Sequoyah students, which is no way regulated or touched upon by Rule 9. Rule 9, Section 9 defines when a violation of Rule 9 has occurred, and reinforces the notion that application of Rule 9 in this instance was both arbitrary and capricious, because it is plainly not applicable here.61

B. The OSSAA's Investigation Procedure and Penalties Were Arbitrary and Capricious.

¶39 After a lengthy period of information gathering and one on one interactions with students and parents, a report regarding the OSSAA's investigation, findings, determinations, and proposed sanctions was provided to the School, the attorneys, and the OSSAA's Board of Directors.62 This report was given to those affected on November 6, 2012, one day before the next scheduled meeting of the OSSAA Board of Directors, November 7, 2012, during which those affected would be permitted to appeal. Scott had one day to prepare for and answer all the allegations contained in a twenty-page report. It is difficult to see how it is reasonable under the circumstances to sanction an individual without sufficient notice of all the allegations and proposed sanctions.

¶40 Pursuant to the OSSAA Constitution, the Executive Director is given almost unlimited leeway to impose restrictions and penalties prior to the completion of any investigation.63 We previously criticized the excessive leeway granted to the Executive Director by the OSSAA Board in Wright City Public Schools v. Oklahoma City Public School Activities Ass'n, 2013 OK 35, ¶¶29-33, 303 P.3d 88. It is apparent that the OSSAA has continued to allow the Executive Director unlimited authority.

¶41 On November 7, 2012, the OSSAA Board adopted all of the sanctions recommended in the formal report drawn up by OSSAA staff, rubberstamping the Executive Director's actions, with the exception of the recommendation that each student be required to reimburse the School for the camp expenses paid, and to sit out of one future game or contest in the student's next activity for every camp attended at School expense.64 For several of the recommended sanctions in the report, the OSSAA staff referenced authorizing authority under the OSSAA Constitution, Rules, and Policies.65 However, some of the penalties imposed by the OSSAA upon Sequoyah and the students, including Scott, come with no explanation or authorization from the OSSAA's own Constitution, Rules, or Policies. The two most disturbing examples are penalties 5) and 7), which state:

5) that the School reimburse OSSAA for the attorney fees and other costs associated with the investigation of the above-referenced violations, up to a total of $25,000.00;

7) that the school require all current students for whom individual camp expenses were paid in violation of OSSAA policies and rules to reimburse the School for all such expenses; if the students and families can demonstrate that they are financially unable to reimburse the School in full, a payment plan or a waiver of the requirements can be considered, but must be discussed with the OSSAA;66

No authorizing provision from the OSSAA's Constitution, Rules, or Policies was provided for these penalties, and the parts of the OSSAA Constitution, Rules, and Policies included in the record do not anywhere authorize such penalties. Because this Court holds the OSSAA's decision regarding payment of fees by Sequoyah for most of the individual camps in question to be arbitrary and capricious, it naturally follows that imposition of steep monetary penalties, without an apparent basis in the OSSAA's Constitution, Rules, or Policies, is likewise arbitrary and capricious. It completely disregards the underlying facts and circumstances.

¶42 The imposition of recommendation five disturbs this Court. In our recent decision in Wright City Public Schools v. Oklahoma Secondary School Activities Ass'n, 2013 OK 35, 303 P.3d 884, at least three members of this Court expressed concern that the Executive Director of the OSSAA chastised Wright City Public Schools for seeking judicial relief.67

¶43 In the course of this matter, the formal report drawn up by OSSAA staff appears to levy criticism against those seeking relief from the courts. In a section of the report labeled Discussion of Delayed Response and Rationales from the Coach and School, the report asserts:

[w]ith the School having belatedly determined particular students were ineligible, but nevertheless insisting that the students be permitted to continue playing, some of the students and parents filed legal actions against the OSSAA, thereby substantially increasing OSSAA's costs associated with this investigation. These costs obviously place additional constraints on OSSAA's limited budget and resources.68

This finding appears to be an attempt to justify enhanced sanctions against Sequoyah, Scott, and others because some of those subject to the OSSAA's investigation and determinations chose to seek protection from the courts from what they perceived as unjust action by the OSSAA. This statement also appears to be the justification for the imposition of recommendation five, whereby the OSSAA ordered Sequoyah to reimburse it for legal expenses it incurred as a result of Scott and other students and their parents challenging the OSSAA's actions in the district court. This reimbursement was ordered without any apparent justification from the OSSAA's Constitution, Rules, or Policies.

* * *

See: http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2013+OK+84

Outcome: ¶44 An examination of the record reveals that Scott did attend some individual camps after Policy Section D.2. was added and took effect. Scott makes several creative arguments regarding the interpretation of this section, and even if they are not wholly convincing, they do cast doubt on the supposedly absolute and unequivocal nature of this Section as presented by the OSSAA. Regardless, these camps represent but a small portion of the laundry list of violations of which Scott is accused. The overall character of the OSSAA's investigation and application of its own rules is of such an arbitrary and capricious character that as to Scott it must be thrown out in its entirety.

¶45 This Court has permitted the OSSAA, in the guise of a voluntary association, to govern the affairs of secondary school athletics in Oklahoma with near impunity. No more. An organization interwoven so tightly with the public school system and the statutes of Oklahoma, in which membership is functionally required to participate in nearly all extra-curricular activities, is not truly voluntary. We will, when necessary, examine its actions with the same careful depth we use in examining the decisions of state agencies. This examination should not be withheld from the prevailing party - nor should similarly situated litigants who have preserved the issue on appeal be bypassed, and left unaffected and unprotected in the appellate pipeline.69 To that end, our decision shall apply to this case, to cases now pending before judicial or administrative tribunals or in the appellate litigation process, as well as to all judicial review of OSSAA actions after this opinion is promulgated.70

¶46 However, under any standard of review, the OSSAA has never been permitted to act in an arbitrary and capricious manner in interpreting and enforcing its own rules. We are left in this instance with little doubt that it has done so. While it is true that the events for which Scott sought the permanent injunction have passed, and that while this type of conduct has up until now been capable of repetition, we trust this will be the last time. To the extent any monetary penalties were leveled, such as the demand to repay the costs for camps allegedly attended in violation of the OSSAA's policies or for reimbursement of attorney fees, those penalties are reversed.

¶47 Competition in sports is more than a mere passing enjoyment for students. Particularly in rural areas, athletic teams are the glue which holds the community together. The college and post-college careers of student athletes often have their genesis at the secondary school level, and for some provide the only path to higher education. The OSSAA wields too much control over their future to be allowed to act in an arbitrary and capricious manner in applying its rules. It must be reasonable, it must be conscientious, and it must be fair. From now on, we trust, it will be.

THE JUDGMENT OF THE TRIAL COURT IS REVERSED.

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