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.
Â¶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.
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
Â¶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.
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
Â¶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
Â¶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
Â¶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.
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
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.
Â¶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.
Â¶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.
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.
Â¶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.
Â¶11 On December 12, 2012, we issued a show cause order inquiring why the appeal should not be dismissed as abandoned.
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.
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.
Â¶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.
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.
can no longer benefit from the injunctive relief he
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
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.
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.
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:
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
Â¶36 A detailed examination