The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0283-15T1
ANDREA DAVIDOVICH, a/k/a
ANYA DAVIDOVICH, APPROVED FOR PUBLICATION
Plaintiff-Respondent, June 23, 2016
v. APPELLATE DIVISION
ISRAEL ICE SKATING FEDERATION,
BORIS CHAIT, IRINA a/k/a IRENE
CHAIT, and GALIT CHAIT,
Defendants-Appellants.
______________________________________
Argued January 4, 2016 – Remanded March 5, 2016
Reargued May 31, 2016 – Decided June 23, 2016
Before Judges Sabatino, Accurso and
O'Connor.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-8543-14.
Brian D. Spector argued the cause for
appellants (Spector & Ehrenworth, P.C.,
attorneys; Mr. Spector, Douglas A. Goldstein
and Danielle M. Koch, on the briefs).
Christopher J. Dalton argued the cause for
respondent (Buchanan Ingersoll & Rooney PC,
attorneys; Stuart P. Slotnick, Mr. Dalton,
Tanya D. Bosi, and Lauren A. Isaacoff, on
the briefs).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Plaintiff is a teenage ice skater of dual United States-
Israeli citizenship. She filed this complaint in the Law
Division seeking to break free from the Israeli ice skating
federation she represented in the pairs event at the 2014 Winter
Olympics. Plaintiff, whose Israeli skating partner severed
their relationship shortly after the Olympics, now wishes to
compete internationally for the United States.
For the past two years the federation has fiercely resisted
plaintiff's efforts to gain her release, even though it has no
apparent plans or desire to have her skate under its flag again.
The federation contends that if it were to release plaintiff
unconditionally, doing so will encourage other skaters in whom
it has invested substantial resources to switch their
affiliations to other countries, for their sole personal
advantage and to the federation's detriment. Meanwhile,
plaintiff has not skated internationally for more than two
years.
Faced with these and other difficult time-sensitive issues,
the trial court granted partial summary judgment to plaintiff
last September. The court ordered the federation, over its
strenuous objection, to issue plaintiff a release permitting her
to skate for another country.
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The court rejected the federation's asserted business
reasons for not releasing plaintiff, finding its motives
"inscrutable." In addition, the court declined to grant summary
judgment to either party on plaintiff's separate claim of
tortious interference with her prospective economic
opportunities, directing that claim be resolved by a jury. We
granted the federation leave to appeal, but kept the court-
ordered release provisionally in place.
Following oral argument in January, we ordered plaintiff,
with her acquiescence, to attempt to exhaust remedies that might
have been available to her under the then-existing rules of the
sport's umbrella organization, the International Skating Union
("ISU"). After she took certain steps to do so without success,
we temporarily remanded the case for an evidentiary hearing to
resolve factual disputes relating to the adequacy of her
efforts.
On remand, the trial court ruled this spring that plaintiff
has sufficiently attempted, both directly and indirectly through
requests she made of the United States team, to obtain a release
from the ISU. The federation appealed that separate ruling and
we heard reargument in late May after post-remand briefing.
In the past two weeks, the posture of this case changed
dramatically in several respects. Most importantly, at its June
3 A-0283-15T1
2016 biannual meeting, the ISU Congress revised its eligibility
rules for skaters who have previously competed for other
federations. In particular, the new version of the rules
instructs that after a twelve-month waiting period has run, a
skater's request to be released from her prior federation "shall
not be unreasonably denied." In addition, the revised rule now
states that the ISU may waive the release requirement in
undefined "special circumstances."
A few days after these rule changes were adopted, the
United States skating organization tendered to the ISU a formal
request to grant such a release for plaintiff, despite the
federation's continued opposition. As of this writing, that
request remains pending before the ISU. Meanwhile, the rosters
of each federation for the coming international skating season
are to be fixed as of July 1.
For the reasons that follow, we reverse the trial court's
partial summary judgment order and remand this matter for
disposition of the remaining counts of the complaint. We do so
principally because of (1) the strong policies disfavoring
judicial interference into the internal affairs of sporting
organizations, (2) the need for possible non-judicial remedies
to be exhausted, and (3) the presence of genuine and hotly-
contested issues of material fact and business justification.
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I.
Although there is discovery left to complete, the present
record supplies the following details pertinent to our
interlocutory review.
Plaintiff, the Federation, and the ISU
Plaintiff Andrea (or "Anya") Davidovich is a dual citizen
of the United States and Israel. She is presently nineteen
years of age and has resided in New Jersey her entire life. Her
parents, who are immigrants with Russian and Israeli
backgrounds, likewise reside in New Jersey.
Plaintiff has trained as a figure skater since she was five
years old. After she became a teenager, plaintiff joined
defendant Israel Ice Skating Federation ("the Federation" or
"the IISF"), for whom she skated in various junior competitions.
The Federation is a private organization that trains ice
figure and speed skaters to take part in international ice
skating competitions as representatives of Israel. Although it
is based primarily in Israel, the Federation also trains skaters
at facilities in the United States. Since 2002, defendant Boris
Chait has served as the Federation's president. Boris's wife,
defendant Irina (also known as "Irene") Chait, serves as the
Federation's "team leader and chaperone" who accompanies the
team members to competitions. Their daughter, defendant Galit
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Chait, is an ice dancing coach and choreographer for the
Federation as well as other teams.
At the age of sixteen, plaintiff was selected by the
Federation to be part of a pairs team with another skater,
Evengi Krasnopoloski.1 In July 2013, plaintiff, and her mother
as her adult guardian, jointly signed a one-page ISU form
document entitled "Declaration for Competitors and Officials
entering ISU Events." The Declaration was counter-signed by
Anna Slavin, the General Secretary of the Federation. No one
signed the document for the ISU.
Among other things, the Declaration acknowledged that the
parties who signed the document accepted the terms and
provisions of the ISU Constitution. The signatories also
recognized the Court of Arbitration for Sport ("CAS") as having
the authority "to issue final and binding awards involving the
ISU, its Members and all participants in ISU activities,
excluding all recourse to ordinary courts."
The ISU is the exclusive international sport organization
recognized by the International Olympic Committee to administer
figure skating and speed skating sports throughout the world.
Int'l Skating Union Const. § I, art. 1, para. 1. The ISU is
1
At various places in the record his first name is alternatively
spelled "Evengy" and his last name is spelled "Krasnopolsky."
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composed of individual national associations (known as
"Members"), which administer these sports at the national level
and which "recognize that all international matters are under
the sole jurisdiction and control of the ISU." Skaters who
compete for a Member are considered members of that individual
organization. Int'l Skating Union Gen. Regs. § D, rule 109,
para. 2(a).
The ISU is a Swiss association established in accordance
with Article 60 of the Swiss Civil Code, placing it under the
jurisdiction of Switzerland. The ISU's legal residence is
Lausanne, Switzerland. Int'l Skating Union Const. § I, art. 1,
para. 6.
The ISU's stated objectives are "regulating, governing and
promoting the sports of Figure and Speed Skating and their
organized development on the basis of friendship and mutual
understanding." Id. at § I, art. 3, para. 1. According to its
governing documents, the ISU works to "broaden[] interest in
Figure and Speed Skating sports by increasing their popularity,
improving their quality and increasing the number of
participants throughout the world." Ibid.
The ISU "does not approve of interference in its sports
based on political or any other grounds and will make every
effort to avoid such interference." Id. at § I, art. 3, para.
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3. It functions within the sport essentially as both an
adjudicative and legislative body, listing among its "Methods
and Activities" such functions as the "settlement of
differences" and the "publication of official decisions." Id.
at § I, art. 4, para. 1(e).
The ISU has issued a set of general regulations.2 The
regulations are designed to "govern the Figure Skating and Speed
Skating Branches of the ISU and are binding to all Members and
affiliated clubs as far as international matters are concerned."
Additionally, the ISU periodically issues "Communications"
regarding the proper interpretation of ISU rules. Int'l Skating
Union Const. § VI, art. 27, para. 1.
The ISU is governed by two bodies: a Congress and a
Council. The Congress has primary "decision-making power
regarding any matter[,]" but normally dictates principles and
directions, leaving the Council to determine the details. Id.
at § VII(A), art. 29, para. 21. The Council governs the
organization in between meetings of the Congress, and consists
2
The ISU collectively refers to its Constitution, Regulations,
and Communications, among other rules and policies, as the "ISU
Statutes." Id. at § VII, art. 38, para. 1. Members, their
skaters, and all other participants are bound by the Statutes,
as is required by Article 7 of the ISU Constitution.
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of a president and several other elected leaders. Id. at §
III(B), art. 16, para. 1.
ISU Rule 109 applies to participation in international
skating competitions. As it was worded before the June 2016
revisions, Rule 109(1) provided in pertinent part:
[t]he International Competitions, listed in
Rule 107, paragraphs 5, 6, 7, 9, 10, 11 and
12 organized by Members, may be entered only
by Competitors who belong to a Member and
for whom the entry can be made only through
the respective Members. For participation
in the Olympic Winter Games, Rule 126
applies.
[Int'l Skating Union Gen. Regs. § D, rule
109, para. 1. (emphasis added).]
Meanwhile, ISU Rule 126, which governs eligibility for the
Olympics, specifies that entry in the Winter Games is subject to
the requirements of the Olympic Charter, as well as the
applicable ISU Regulations. Int'l Skating Union Gen. Regs. § E,
rule 126, para. 2. "Only Competitors from Members may
participate in the Skating events of the Olympic Winter Games."
Id. at para. 7.
According to the Olympic Charter, "[a]ny competitor in the
Olympic Games must be a national of the country of the [team]
which is entering such competitor." Olympic Charter, Rule 41(1)
(2015). Consequently, plaintiff cannot skate in the Olympics
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for any country other than the United States or Israel, even if
her partner is a citizen of some other country.
Plaintiff's Skating at the 2014 Olympics, Her Pairs
Partner's Ensuing Departure and Her Efforts to Find a New
Partner
Plaintiff skated for the Federation with Krasnopoloski in
various international pairs competitions in 2013. The two of
them did very well, placing seventh in the European
Championships in Budapest in January 2014 and winning a monetary
prize. As a result of their successes, plaintiff and
Krasnopoloski qualified to represent the Federation at the
February 2014 Winter Olympics in Sochi, Russia. As such, they
were the first figure skating pair to ever represent Israel in
the Olympics. The two of them competed and placed fifteenth in
Sochi.
Shortly after the Olympics concluded, Krasnopoloski
announced that he was ending his skating partnership with
plaintiff, asserting that he no longer wished to train with the
pair's coach. Efforts to reunite Krasnopoloski and plaintiff
failed, although the parties disagree about who was responsible
for those efforts and why they were unsuccessful. In any event,
plaintiff attempted to find a different partner, advertising her
interest through a profile she posted on a website for
competitive skaters.
10 A-0283-15T1
For reasons that are sharply disputed, the Federation and
plaintiff effectively discontinued their association soon after
the Olympic Games. According to plaintiff, defendants
instructed skaters and other persons with the Federation not to
speak with her and excluded her from training and other
activities. On the other hand, the Federation insists that
plaintiff herself withdrew from the Federation's activities,
although it agrees that it no longer desires to have her
represent Israel in skating competitions.
Although the record is not fully developed in this respect
and the details are not central to the legal issues now before
us, it appears that various personal conflicts arose during
plaintiff's tenure with the Federation. The disagreements
included defendants' concerns about plaintiff's interactions
with her teammates and coaches. Plaintiff, on the other hand,
maintains that defendants and the coaches treated her too
harshly, and have defamed and disparaged her.
Plaintiff briefly attempted to skate in domestic events
with different partners. These included, in succession, two
American male skaters affiliated with the United States Figure
Skating Association ("USFSA"), another Member of the ISU.
11 A-0283-15T1
The Prescribed ISU Release Process
To be authorized to skate for the United States or another
Member country in international competitions or in the next
Olympics, plaintiff must comply with certain ISU provisions
requiring her to be "released" by her former team, here the
Federation. Specifically, prior to its June 2016 revision, ISU
Rule 109, Paragraph 2(c) provided, among other things, that if a
partner in a pair skating or ice dance couple "has already
represented another Member, regardless of the discipline," that
partner must: (1) obtain a "permit from the Member the Skater
represented" and (2) not compete for a "waiting period [of] 12
months from the day of the last competition in which the Skater
represented another Member." Int'l Skating Union Gen. Regs. §
D, rule 109, para. 2(c). These restrictions applied even if the
partner has citizenship or residency in the new Member's
territory. Ibid.
ISU Communication No. 14203 similarly described the
procedure for obtaining permission from a Member that the skater
previously competed for to skate for another Member. The
procedure applies to "any present citizen and skater of the
Member who has in the past represented another ISU Member in an
3
Apparently, the ISU intends to amend Communication 1420 soon to
conform to the June 2016 revisions made to Rule 109.
12 A-0283-15T1
international competition and/or ISU championships and whom the
Member intends to enter in international competitions and/or ISU
Championships in the coming season as a representative of the
Member."
For skaters applying for clearance to compete in pairs and
dance couples, Rule 109 prescribed that "Members may file the
application [for release] at any time. Of course if the waiting
period of 12 months applies, the application can be filed only
after such period has been reached." Int'l Skating Union
Communication No. 1420, Rule 109, § A, para. c, § A, para. c
(emphasis added). Skaters in situations requiring a release
from a former Member were eligible to compete in international
competitions "only after the applying Member has submitted
satisfactory documentation and received from the Secretariat an
ISU Clearance Certificate[.]" Id. at para. d.
The ISU Council was authorized (and remains authorized
under amended Rule 109) in certain circumstances to exempt
particular skaters from these waiting period and release
requirements. In that vein, paragraph 5 of Rule 109 stated that
"Exceptions to Paragraphs 2 & 3 of this Rule may be granted by
the Council, which may also enter a Competitor for an event[.]"
Int'l Skating Union Gen. Regs. § D, rule 109, para. 5. ISU
13 A-0283-15T1
Communication 1420 further addressed the exception process and
standards, as follows:
Although . . . the Council [has] the powers
to grant exceptions from the requirements of
citizenship, residence, permits by Members
and waiting periods, it has always been the
policy of the Council not to grant any
exception simply for the skater to change
Members. Exceptions might be granted only
in cases where a serious hardship would
occur without such exception (e.g. such as
application of a new rule after certain
action[s] have been taken in good faith
prior to adoption of the rule, unjustified
denial of a permit by a Member to a skater
who has not represented that Member at all
or for a number of years, etc.).
[Int'l Skating Union Communication No. 1420,
Rule 109, § D (emphasis added).]
Additionally, the ISU Constitution more generally authorizes the
ISU Council to modify or suspend its rules in "rare" cases of
"exceptional circumstances[.]" See Int'l Skating Union Const. §
III(B), art. 17, para. 1(q).
The CAS Arbitration Process
Decisions of the ISU Council "shall not be subject to
appeal except as explicitly set forth in other provisions of the
ISU statutes." See § III(B), art. 17, para. 2(a). Appeals of a
Council decision must be heard by the CAS. Id. at § V, art. 25,
para. 1. Through the ISU's Constitution, all Members and
skaters are directed to submit any disputes or claims that are
not covered by the ISU's rules and regulations to the CAS for
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final binding arbitration. Id. at § V, art. 26, para. 1. The
CAS is empowered, among other things, to hear and decide appeals
of "any decision of the Council declaring ineligibility of a
Skater, Official, Office Holder or other participant in ISU
activities." Id. at § V, art. 25, para. 2(c) (emphasis added).
CAS decisions are "final and binding to the exclusion of
jurisdiction of any civil court." Id. at § V, art. 25, para. 6.
However, CAS decisions may be appealed to the Swiss Supreme
Court, also known as the Federal Tribunal. See CMS Cameron
McKenna LLP, CMS Guide to Arbitration 898 (2012); Antonio
Rigozzi, Challenging Awards of the Court of Arbitration for
Sport, J. Int'l Disp. Settlement 1(1): 217-65 (2010).
Judicial review by the Swiss courts of CAS arbitral
decisions is severely restricted, and such decisions can only be
challenged on limited specified grounds. Those limited grounds
include, among other things, a "violation of the principle of
equal treatment of the parties or the right to be heard." CMS
Cameron McKenna LLP, supra, at 898-99. The arbitrariness of an
award is not reason in and of itself for annulment under Swiss
law. Id. at 899.
Plaintiff's Unsuccessful Attempts to Procure a Release from
the Federation
After the Sochi Olympics and Krasnopoloski's withdrawal,
plaintiff's parents tried to obtain for her the necessary
15 A-0283-15T1
release from the Federation. They sent this email request to
Boris Chait on April 30, 2014:
Dear Mr. Chait:
It has been 2.5 months since Evengi
Krasnopolsky officially ended partnership
with [plaintiff]. While [plaintiff] (as
everyone in our family) had been really
proud to be a member of the Israeli Figure
Skating Federation and to represent [the]
state of Israel, she has decided to pursue
other opportunities to advance her career.
Please issue an official Release Form
for [plaintiff] as soon as possible.
We would like to thank the Israeli
Federation and you personally for a great
experience and wish you continuous success.
With kind regards,
[Sasha] and Marina Davidovich.
[(Emphasis added).]
The Federation did not provide an immediate decision in
response. Instead, it contacted the ISU to obtain clarification
as to whether the request should have come from plaintiff
herself rather than from her parents, or whether it should come
instead from "[an]other member federation." The ISU's
representative replied in an email stating, "If the Skater wants
to leave the Federation in order to represent an[]other Member,
then it is the new Member who should ask for the release
letter." (Emphasis added).
16 A-0283-15T1
Following this clarification, plaintiff obtained the
assistance of the USFSA to seek a release from the Federation on
her behalf. In a letter dated May 28, 2014, the USFSA requested
the Federation to "grant the required release letter so
[plaintiff would] be able to compete internationally in the
future as a member of U.S. Figure Skating."
The Federation referred the USFSA's request to its Board,
which met shortly thereafter. The Board decided to reject the
request, noting that it was not inclined to do so at that time,
even if plaintiff paid what it considered a "standard" or
"customary" release fee. A translated version of the Board
minutes on this decision reads as follows:
[Plaintiff] asked for a release through the
American Federation. We need to answer the
Federation with [a] decision that we are not
releasing her for the moment, not even for
the standard amount of $20,000. It is the
custom to request for an athlete at this
level about $30,000. We will check with the
international organization what could happen
if we release her and if we don't.
It has been decided that in light of the
high cost for financing athletes, the board
must [make] the decision that if the athlete
wants to transfer to another Federation, the
following rules apply:
1. A team member that wishes to
leave will pay a fine to Israel
Ice Skating Federation in the
amount of $25,000. Level A —
World Championship, Junior World
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Championship, European
Championship, the Olympics.
2. A team member that participated
in international competitions and
Grand Prix will pay a fine of
$15,000.
3. The release [request] will be
examined by the [Federation's]
non-profit organization board
after a discussion on the matter.
[(Emphasis added).]
Following the Board meeting, the Federation issued a formal
denial letter to plaintiff on July 2, 2014. The letter
highlighted several reasons for the denial, including the
investment made by the Federation in plaintiff's skating career
and also the fact that she had not yet completed the one-year
waiting period prescribed by the ISU rules. The letter stated,
in pertinent part:
We would like to share some thoughts
about your request to release [plaintiff].
Twelve months ago, we undertook the project
of [plaintiff] & Evengi Krasnopolsky.
Evengi was [an] established skater
with many years of experience—single & pair
skating, while [plaintiff] was [a] junior
skater with very little capability & only a
few junior competitions. The Federation's
athletes, coaches, [and] technical committee
staff did a great job to develop the pair.
They placed 7th in the Europeans and
qualified for the Sochi Olympics, which was
quite an accomplishment.
18 A-0283-15T1
We cannot overestimate all the work
that was done and the time invested by
everybody at the Federation. We are a small
Federation. Every athlete and every dollar
spent is very crucial for our existence.
It is harmful to the Federation if an
athlete comes to skate for the IISF[,]
learns new skills[,] and reach[es] new goals
and then eventually leaves the Federation.
Under these circumstances at this time,
we can't grant a release for [plaintiff].
In any event[,] under ISU rules, [plaintiff]
has to sit out one year from her last
competition. So there's time to consider
this request in the future.
We would address this issue again
because we always were, are and will be a
pro-athlete Federation.
Thank you for your understanding.
Anna Slavin on behalf of the board members.
[(Emphasis added).]
After this exchange, Boris Chait sought further
clarification from the ISU, asking if the Federation was
obligated to release plaintiff once her one-year waiting period
lapsed. The ISU's representative replied that a release is "not
automatic[,]" and that even after the one-year waiting period
ends, "it is up to the Member federation to decide whether or
not they wish to release a Skater." In a follow-up message, the
ISU representative confirmed that if the Federation decided
after the waiting period not to release plaintiff, the ISU would
19 A-0283-15T1
not issue the necessary "clearance certificate" allowing her to
skate for another Member.
Plaintiff's Lawsuit and Her Continued Efforts to Seek a
Release After the One-Year Waiting Period Expired
In September 2014, plaintiff, through her mother as
guardian, filed in the Law Division a ten-count complaint
against the Federation and the three Chaits. Among other
things, the complaint asserted that the Federation has
"unreasonably refused" to release her and that, as a result, she
is "unable to advance her career and skate in international ice
skating competitions for another team." Plaintiff further
claimed that defendants have wrongfully interfered with her
"ability to compete internationally for the USFSA and further
her professional skating career."
The complaint sought in count one what plaintiff styled as
"declaratory judgment" – but which essentially was a request for
mandatory injunctive relief – compelling the Federation "to
issue [her] a written release[.]" In count two, plaintiff
claimed that the Federation has tortiously interfered with her
prospective economic advantage, and is thereby liable to her for
20 A-0283-15T1
monetary damages.4 Plaintiff demanded equitable relief and
monetary damages.
Defendants denied liability and interposed a host of
affirmative defenses. Unlike plaintiff, defendants requested a
jury trial. Discovery has been partially completed, including
the deposition of plaintiff and several other persons. The
individual defendants have not yet been deposed, although they
submitted interrogatory responses explaining why they believe
they were justified in withholding a release.
In essence, defendants maintain that they undertook
reasonable steps to attempt to reunite plaintiff with her
partner and that she and her parents rebuffed those efforts,
that they preserved a spot for the pair through the time of the
World Figure Skating Championship in March 2014, and that
plaintiff never proposed a new partner to the Federation for its
approval. Defendants further stressed the resources and time
they expended in training and coaching plaintiff, contending
that a donation of over $60,000 her parents had made to a
4
The remaining counts of the complaint, none of which were
adjudicated by the trial court and are not at issue before us,
included claims of intentional and negligent infliction of
emotional distress by the Chaits (counts three and four),
various forms of defamation by Boris Chait (counts five, six and
seven), invasion of privacy and false light against Boris and
Irene Chait (counts eight and nine), and negligence against all
three Chaits (count ten).
21 A-0283-15T1
separate tax-exempt organization for the benefit of Federation
skaters did not sufficiently cover those expenses. Defendants
also claim that plaintiff had engaged in improper behavior while
she was a member of the team, and that plaintiff herself
terminated her relationship with the Federation.
Plaintiff's one-year waiting period expired on February 12,
2015. That month the USFSA made a second request to the
Federation to release her, which the Federation again denied.
The Parties' Motions for Partial Summary Judgment
Before the scheduled end of discovery, defendants moved for
partial summary judgment, seeking the dismissal of counts one
and two of the complaint. Plaintiff cross-moved for partial
summary judgment, requesting the court on count one to compel
the Federation to issue her a release permitting her to skate
internationally for another Member country. As to count two,
plaintiff asked the court to find defendants liable for tortious
interference, subject to a trial on damages. None of the other
eight counts of the complaint were included in the parties'
motion practice.
The Trial Court's September 2, 2015 Decision
After hearing oral argument on the motions, the trial court
issued an order and written opinion on September 2, 2015,
granting plaintiff summary judgment and other relief on count
22 A-0283-15T1
one. The court determined there was "no legal or equitable
basis for the [Federation] to continue to refuse to release
[plaintiff] from her membership with the organization, and she
must therefore be released immediately so that she may pursue
opportunities to skate internationally on behalf of the United
States of America."
The court found unpersuasive defendants' threshold argument
that the Superior Court lacked jurisdiction to adjudicate the
dispute because plaintiff had agreed to abide by the rules of
the ISU and must exhaust her administrative appeals through that
body. The court deemed those ISU provisions "simply not
dispositive of . . . [p]laintiff's rights and privileges as a
citizen of the United States of America and a resident of the
State of New Jersey."
The trial court deemed plaintiff's request in count one for
a declaratory judgment justiciable. The court distinguished
plaintiff's circumstances from non-justiciable controversies
involving membership disputes within private associations. In
that regard, the court noted that plaintiff had not been a
member of the Federation since February 2014 and that no
"membership decision" had been made.
Substantively, the trial court concluded in essence that
the Federation's refusal to allow plaintiff to skate for another
23 A-0283-15T1
Member of the ISU constituted a serious injustice that demanded
a remedy. The court specifically determined from the motion
papers that the Federation was "withholding a release with an
inscrutable motive, despite the termination of the [p]laintiff's
membership with that federation." (Emphasis added).
Additionally, the court ruled that plaintiff had not
waived, "in the form of an arbitration agreement or otherwise,"
her right to litigate her rights in the Superior Court,
regardless of whether an ISU appeal process existed and whether
such a process was fair or reasonable. The court reasoned that
(1) the parties "vigorously dispute[d] whether any contract at
all existed between [p]laintiff and the [Israeli Federation], or
the ISU"; (2) defendants' characterization of plaintiff's
signing an agreement "with a non-party to this litigation"
(meaning the ISU) as "some sort of binding administrative
proceeding" was unpersuasive; (3) the Federation had not
"deal[t] in good faith and fairly with" plaintiff; and (4)
plaintiff's "commercial viability, as well as [her] rights and
privileges as [a] U.S. Citizen[]" were being "unlawfully
restricted," such that "mere reference to the rules and
regulations codified by a non-party entity [(the ISU)] [we]re
insufficient" to meet the standards under New Jersey case law
governing the enforceability of arbitration provisions.
24 A-0283-15T1
The trial court declined, however, to grant summary
judgment to either side on count two. The court found that
plaintiff needed to proceed to trial on the issue of tortious
interference because it was not clear from the record that the
Federation's failure to release her caused her to lose an
"ascertainable prospective economic advantage."
The Court-Ordered Release
Defendants initially did not carry out the trial court's
order directing them to issue plaintiff's release. Instead,
they sought a stay of that order, which the court denied. The
court then imposed sanctions because of their failure to comply
promptly with the initial order.
Defendants eventually issued the court-ordered release
under protest on September 25, 2015. Consistent with the terms
of the trial court's directive, the release stated as follows:
Dear International Skating Union Member:
Please let this letter serve as the
permit, or release, required by
International Skating Union ("ISU") Rule
109(2)(c) (as clarified by ISU Communication
No. 1420(B)(1) and (3) to allow Andrea
Davidovich ("Davidovich") to compete in any
ISU Figure Skating and Speed Skating Sports
and Olympic Winter Games ("International
Competitions") on behalf of any ISU member
(as defined in Article 1, Sections 1 and 3
of the ISU Constitution), including but not
limited to United States Figure Skating
Association ("USFSA"). This release is not
limited.
25 A-0283-15T1
Davidovich previously skated in
International Competitions on behalf of the
Israel Skating Federation ("IISF").
Davidovich has not competed in any
International Competition on behalf of the
IISF since the 2014 Olympic Winter Games and
is no longer affiliated with the IISF.
With this letter, the IISF releases
Davidovich pursuant to all ISU Rules and
give her permission to compete in
International Competitions on behalf of any
other ISU member. Accordingly, there is no
restriction or impediment to Davidovich
skating as a member of the USFSA in any
event.
This Interlocutory Appeal
Defendants moved for leave to appeal the trial court's
grant of relief to plaintiff on count one, and its denial of
their motion to dismiss her tortious interference claims in
count two. Defendants also sought an appellate stay of the
court-mandated release. The Federation issued a press release
announcing its pursuit of an appeal, emphasizing its position
that the trial court had erred in intervening in this sports-
related controversy.5 Plaintiff did not cross-appeal the denial
of her own motion for partial summary judgment on count two.
We granted defendants leave to appeal but denied a stay
under Rule 2:9-5. In doing so, we noted in our corresponding
5
Plaintiff contends that this press release and a later one
issued by the Federation have hindered her efforts to find a new
partner and pursue her skating career.
26 A-0283-15T1
order that defendants had "not demonstrated that the balance of
equities warrants altering the status quo resulting from the
trial court's order during the interim period while this
accelerated appeal is considered on its merits." We also noted
defendants' failure to show they would suffer immediate and
irreparable harm during the pendency of the appeal, or that the
public interest compelled the entry of an appellate stay.
The First Sua Sponte Order in January 2016 Directing
Plaintiff to Attempt to Exhaust Non-Judicial Remedies
After considering the briefs and oral argument on the
appeal, it became evident to this court that a critical
threshold issue was whether plaintiff had a remedy with the ISU,
either directly or through the USFSA. Consequently, we issued a
sua sponte order on January 6, 2016, two days after oral
argument, directing plaintiff to attempt to obtain such possible
remedies as a condition of her continued right to use the court-
ordered release. Plaintiff's counsel indicated at oral argument
that his client did not object to doing so.
We accordingly ordered plaintiff to pursue such measures,
even though we acknowledged that the provisions within the ISU
did not clearly afford her as an individual skater such a
pathway to redress. Meanwhile, the Federation issued another
27 A-0283-15T1
press release, incorrectly stating that our sua sponte order had
"overturned" the trial court.6
Plaintiff thereafter submitted a letter petition to the ISU
on January 27, 2016, seeking relief from the Federation's denial
of a release. The letter requested that the ISU either: (1)
declare that plaintiff was released from the Federation and
could therefore skate for another ISU member, (2) waive the
release requirement, pursuant to Rule 109(5), so that she could
skate for another ISU member, in addition to providing a
clearance certificate allowing her to skate in ISU events, or
(3) accept or adopt the release that the Federation issued her
pursuant to the trial court's order.
On a parallel track, plaintiff sent a letter request to the
USFSA on that same day. She requested that the USFSA "petition
the ISU" to approve any of the three options set forth in her
own letter to the ISU.
In response, the USFSA declined at that point to seek
relief on plaintiff's behalf from the ISU. The USFSA
communicated this decision through an email to her on February
3, 2016. The email stated that plaintiff's request, as worded,
"involves issues that extend beyond the interests of U.S. Figure
6
Defense counsel concedes this wording in the press release was
wrong.
28 A-0283-15T1
Skating and involve actions that are broader in scope than would
apply specifically to U.S. Figure Skating."
Meanwhile, on February 5, 2016, the ISU likewise declined
to entertain plaintiff's request. It advised her that she must
submit her request "through and with the support of a new Member
[she] intend[s] to skate for[.]"
We then issued a second sua sponte order requesting counsel
to address the significance of these developments. Thereafter,
plaintiff submitted a clarified request to the USFSA on March 7,
2016, this time making plain that she intended only to procure a
release to skate for the United States.
The Remand on Exhaustion Issues
Because the parties disputed the legal significance of
these events and the sufficiency of plaintiff's efforts to
exhaust potential remedies, we issued a third sua sponte order
on March 15, 2016, remanding the matter temporarily to the trial
court. We directed the trial court to make findings on the
exhaustion issue, granting it the discretion to allow limited
discovery on the subject.
As part of that discovery, the parties took de bene esse
depositions of the Executive Director of the USFSA, David Raith,
and the Director General of the ISU, Fredi Schmid, in April.
29 A-0283-15T1
Both officials happened to be in Boston that same day for the
World Figure Skating Championships.
The Trial Court's Post-Remand Decision
After conducting a two-day evidentiary hearing, the trial
court concluded in a written decision dated April 22, 2016 that
plaintiff had undertaken reasonable efforts to exhaust her
potential non-judicial remedies. The court observed that the
record, as amplified on remand, details plaintiff's "many
attempts to exhaust her administrative remedies[.]" The court
ruled that "[t]he simple fact that the USFSA has not pursued the
matter while it awaits [a]ppellate review and ISU clearance does
not undermine [her] extraordinary exhaustion efforts."
The trial court also found that the testimony of the ISU's
Director General, Schmid, "proves that the ISU's involvement in
this matter does not obviate" plaintiff's "need to resort to the
courts, it only affirms that judicial intervention is
imperative." The court found it significant that all of
plaintiff's attempts to obtain a non-judicial release thus far
have been fruitless and that Schmid's testimony demonstrated
that there were virtually no "next steps" plaintiff could
pursue.
Furthermore, the court found that "the professed inaction
of both the [USFSA] and the ISU is decisive evidence that
30 A-0283-15T1
[p]laintiff has done all she can do." The court observed that
"[t]o delay decision[] in the instant case and to permit the
procedural inequities inherent in the ISU's Rules and
Regulations to persist, cannot be justified[.]" The court found
that plaintiff was having difficulty finding a partner because
of this litigation, and that "[t]he consequence of indefinitely
stayed administrative inaction is a deprivation of any genuine
prospect that she may skate in the future."
The Changes to Rule 109 at the June 2016 ISU Congress
Major developments affecting Rule 109 occurred at the ISU
Congress's biannual meeting in Dubrovnik, Croatia, the week of
June 6-10, 2016. In its Agenda for the meeting, the ISU Council
noted the Rule's release requirement had become "legally
problematic." Int'l Skating Union, Communication No. 2004,
Agenda of the 56th Ordinary Congress § I(B), ¶ 86, at 50-51
(2016), http://static.isu.org/media/1006/2004-congress-2016-
agenda.pdf.7 The Council proposed a revised version of Rule 109
that would eliminate the need for a skater to obtain a release
from his or her former team after a twelve-month waiting period.
7
Although the Agenda did not refer to the present litigation,
the post-remand record indicates the ISU had also recently been
dealing with another controversial situation involving a French
skater who wished to be released to skate for another country.
31 A-0283-15T1
Although the ISU Congress did not support the proposed
elimination of the release provision, it did vote at its June
2016 meeting to revise Rule 109 and set forth a "reasonableness"
standard for withholding releases. The revised rule also
confers upon the ISU the express authority to exempt a skater
from the release requirement in undefined "special
circumstances."
As revised, Rule 109 now states, in pertinent part:
1. Participation in ISU Championships, ISU
Events and International Competitions
ISU Championships, ISU Events and
International Competitions, listed in Rule
100, paragraph 3, and Rule 107, paragraphs
1, 4, 5, 6, 7, 8, 9, 10, 11 and 12, may be
entered only by Competitors who are members
of an ISU Member. The entry can be made only
through that ISU Member. For participation
in Olympic Winter Games and Winter Youth
Olympic Games, Rule 126 respectively [sic]
the provisions of the Olympic Charter and
its By-Laws apply.
2. a) A Skater may compete only as a
member of the ISU Member of a
country of which he is a citizen
or in which he has resided for at
least one year.
b) In Pair Skating and Ice Dance
only one partner needs to fulfil
the requirements stated in
paragraph 2.a). The other partner,
however, must be a citizen or
resident of the country of an ISU
Member.
32 A-0283-15T1
c) A Skater who has competed in
any ISU Championships, ISU Event
and/or International Competition
for any ISU Member and who intends
to compete in the future for
another ISU Member needs a permit
from the ISU Member he currently
represented in the past, which
permit shall not unreasonably be
denied.
In addition[,] such Skater may
compete for the respective ISU
Member in International
Competitions, ISU Events and ISU
Championships only after a waiting
period of twelve (12) months since
the Skater competed for any other
ISU Member in any such competition
has elapsed.
d) . . . .
3. Skaters competing for the ISU Member of a
country whose citizenship they do not have
(except for members of Synchronized Skating
Teams under the 25% quota according to
paragraph 2.d) above), and Skaters who have
competed in any ISU Championships, ISU Event
and/or International Competition before and
intend to compete in the future for another
ISU Member may do so only after obtaining,
through the Member for which they intend to
compete, a clearance certificate (CC) from
the ISU Secretariat.
All relevant procedures are published in an
ISU Communication.
4. In the course of the same season (July
1st – June 30th) a Skater may skate for only
one ISU Member in all ISU Championships, ISU
Events and International Competitions. This
also applies to Skaters who compete in
several ISU sport disciplines.
33 A-0283-15T1
. . . .
5. If special circumstances so warrant the
Council may waive the citizenship/residency
or the permit requirement and/or the waiting
periods according to paragraphs 2.a) and c)
above.
. . . .
6. The Council may reject an application
from an ISU Member for a Clearance
Certificate for any Skater, although the
formalities and requirements stated in this
Rule have been met, if in the opinion of the
Council granting such application would be
contrary to the spirit of sports (e.g. in
case an ISU Member tries to "import" several
athletes with foreign citizenship, in
particular when such athletes should form a
new national team or its substantial part of
such ISU Member).
[Int'l Skating Union, Communication No. 2017
Decisions of the ISU Council, Rule 109, at 9
(2016) (emphasis added), http://static.
isu.org/media/342540/2017-decisions-of-isu-
council-dubrovnik.pdf.]
A few days after these significant rule changes, the USFSA
petitioned the ISU on plaintiff's behalf on June 17, 2016,
requesting that it release her from the control of the
Federation and thereby provide her with "the opportunity to
qualify to compete in the future for U.S. Figure Skating and the
United States in international competitions." Notably, this is
the first time the USFSA has requested the ISU to provide a
release to plaintiff, although the USFSA had twice made direct
requests to the Federation that were both rebuffed.
34 A-0283-15T1
As of the writing of this opinion, the ISU has not yet
acted on the USFSA's request. Meanwhile, the rosters of Member
teams for the upcoming 2016-17 international figure skating
season must be set by July 1.
II.
A.
Aside from Kenesaw Mountain Landis, who at one point served
at the same time as a federal judge and as Commissioner of
Organized Baseball8, judges generally should and do refrain from
interfering with the internal matters of sports associations
unless exceptional circumstances justify that interference.
As the United States Court of Appeals for the Second
Circuit recently observed in overturning a trial court's
nullification of an arbitral ruling by the National Football
8
Judge Landis served as a district court judge in the Northern
District of Illinois from 1905 to 1922, and as the first
Commissioner of Organized Baseball from 1921 to 1944. Shayna M.
Sigman, The Jurisprudence of Judge Kenesaw Mountain Landis, 15
Marq. Sports L. Rev. 277, 277 (2005). He was selected as
Commissioner by baseball team owners in the wake of a scandal,
in which eight Chicago White Sox players conspired with gamblers
to throw the 1919 World Series to the underdog Cincinnati Reds.
Id. at 283. Having presided earlier over an antitrust lawsuit
brought against the National and American Leagues, Judge Landis
was sought out by the owners for the position with the hope that
his stern approach would restore integrity to the game. Ibid.
He served both as Commissioner and as a federal judge for over a
year before resigning from the bench in 1922. Id. at 284. He
continued to preside over baseball until his death in 1944.
35 A-0283-15T1
League Commissioner addressing cheating allegations against New
England Patriots quarterback Tom Brady, courts "do not sit as
referees of football any more than [they] sit as the 'umpires'
of baseball or the 'super-scorer[s]' for stock car racing.
Otherwise, [they] would become mired down in the areas of a
[sporting] group's activity concerning which only the group can
speak competently." NFL Mgmt. Council v. NFL Players Ass'n,
Nos. 15-2801 (L), 15-2805 (CON), 2016 U.S. App. LEXIS 7404, at
*17 n.5 (2d Cir. Apr. 25, 2016) (citing Crouch v. Nat'l Ass'n
for Stock Car Auto Racing, Inc., 845 F.2d 397, 403 (2d Cir.
1988) and Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527,
536-38 (7th Cir. 1978)); see also Major League Baseball Players
Ass'n v. Garvey, 532 U.S. 504, 509, 121 S. Ct. 1724, 1728, 149
L. Ed. 2d 740, 746 (2001). Applying that principle, the Second
Circuit held that the NFL Commissioner, in his role as
arbitrator under the collective bargaining agreement, "properly
exercised his broad discretion to resolve an intramural
controversy between the League and a player." NFL Mgmt.
Council, supra, 2016 U.S. App. LEXIS 7404, at *4-5.
Other cases recognize this precept disfavoring judicial
entanglement with the internal operations of sports. "Courts
generally defer to a private [sports] organization's
interpretation of its rules in the absence of bad faith or
36 A-0283-15T1
illegality." Ruiz v. Sauerland Event Gmbh, 801 F. Supp. 2d 118,
125 (S.D.N.Y. 2010). Judges "are reluctant to interfere with
the internal decisions of [sports] organizations . . . [being]
ill-equipped to resolve conflicts involving the interpretation
of the organization's own rules." M'Baye v. World Boxing Ass'n,
429 F. Supp. 2d 660, 667 (S.D.N.Y. 2006).
For example, in Koszela v. National Association of Stock
Car Auto Racing, Inc., 646 F.2d 749, 754-59 (2d Cir. 1981), the
Second Circuit affirmed summary judgment in favor of the
defendant stock car racing association, after plaintiffs, a
driver and car owner, claimed the association had not adhered to
its own rules and regulations and thereby had deprived them of
victories in two races.
Likewise in Schulz v. United States Boxing Association, 105
F.3d 127, 132 (3d Cir. 1997), the Third Circuit observed that
"courts have been understandably reluctant to interfere with the
internal affairs of [private] associations and their reluctance
has ordinarily promoted the health of society." (alteration in
original) (quoting Falcone v. Middlesex Cty. Med. Soc'y, 34 N.J.
582, 590 (1961)). Nevertheless, the Circuit upheld in Schulz
the New Jersey district court's preliminary injunction requiring
a boxing federation to disqualify a professional boxer from a
current match because of his steroid use in a prior fight.
37 A-0283-15T1
Exercising its limited authority to intervene in a sporting
decision, the Circuit reasoned that the "public's confidence
that the outcome of a prizefight is fair rests squarely on the
assumption that the result was not improperly influenced" by
illicit factors. Id. at 135.
This policy disfavoring interference in sports
adminsitration comports with more general case law in our State
involving disputes over the internal affairs of private
organizations. In New Jersey, "[d]eference has always been
afforded to the internal decision making process of the private
association." Danese v. Ginesi, 280 N.J. Super. 17, 23 (App.
Div. 1995) (quoting Loigman v. Tromabadore, 228 N.J. Super. 437,
449 (App. Div. 1988)). This is because our courts ordinarily
"recognize an association's right to adopt, administer, and
interpret its own rules without judicial intervention." Ibid.
Consequently, "[i]t is well established that a voluntary
association may, without direction or interference by the
courts, draw up for its government and adopt rules, regulations
and by-laws which will be controlling as to all questions of
. . . doctrine or internal policy." Loigman, supra, 228 N.J.
Super. at 450 (second alteration in original) (quoting 6 Am.
Jur. 2d, Associations and Clubs, § 5 at 433).
38 A-0283-15T1
Even so, "[p]rivate associations do not have unfettered
discretion with respect to their membership decisions."
Cipriani Builders, Inc. v. Madden, 389 N.J. Super. 154, 164
(App. Div. 2006). In evaluating whether judicial intervention
into a private association's membership decision is proper,
courts are to consider whether a "'plaintiff [has] an interest
sufficient to warrant judicial action,' and if such an interest
is shown, whether 'that interest [has] been subjected to an
unjustifiable interference by the defendant[.]'" Id. at 165
(alterations in original) (quoting Rutledge v. Gulian, 93 N.J.
113, 118 (1983)).
We have applied these principles by requiring the
exhaustion of non-judicial remedies that might be available
within a sport itself before passing upon the merits of a
dispute involving an athlete. In Dolan v. United States
Equestrian Team, Inc., 257 N.J. Super. 314 (App. Div. 1992), we
held that an amateur horse rider's challenge of the decision of
two non-profit amateur athletic associations not to select her
for membership on the American equestrian team was barred
because the plaintiff had not exhausted the administrative
remedies available to her.
Namely, we found it pivotal in Dolan that "[p]articipation
in international sports competitions on behalf of this country
39 A-0283-15T1
is governed by the federal Amateur Sports Act[;]" the purpose
of the Act was to "provide for the swift resolution of conflicts
and disputes involving amateur athletes, national governing
bodies, and amateur sports organizations, and protect the
opportunity of any amateur athlete, coach, trainer, manager,
administrator, or official to participate in amateur athletic
competition . . .[;]" and the Act contained arbitration
procedures to be followed in the event of a dispute. Id. at 317-
19 (citing 36 U.S.C.A. § 391(b)(3) and (11)). Consequently, we
ruled that the plaintiff athlete in Dolan had to exhaust her
non-judicial remedies before proceeding in the courts,
perceiving "nothing unfair" about requiring her to do so. Id.
at 319-20.
Our decision in Dolan comported with the general doctrine
favoring the exhaustion of remedies that may be available, from
an administrative agency or otherwise, before a court acts to
resolve a dispute and impose a remedy. Under that well-
established exhaustion doctrine, parties must "pursue available
internal proceedings to conclusion before seeking judicial
intervention." Hernandez v. Overlook Hosp., 149 N.J. 68, 73
(1997) (citing Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79
N.J. 549, 559 (1979)). This obligation stems in part from the
courts' usual desire to "discourage piecemeal litigation."
40 A-0283-15T1
Garrow, supra, 79 N.J. at 559. Additionally, "the expertise of
an administrative [body] may not be exercised or known until it
renders its final decision, and usually upon judicial review due
deference is accorded [to] that expertise." Ibid.
To be sure, the doctrine of exhaustion must yield to
certain exceptions. Id. at 561. These include circumstances
"when only a question of law need be resolved," "when the
administrative remedies would be futile," "when irreparable harm
would result," "when jurisdiction of the [body] is doubtful,"
and "when an overriding public interest calls for a prompt
judicial decision[.]" Ibid.
B.
The trial court strayed from these and certain other
principles by granting partial summary judgment to plaintiff on
count one and taking the extraordinary step of mandating the
Federation to issue a release before potential avenues of relief
to her through ISU processes were fully pursued.
At the outset, we agree with the trial court's threshold
decision to treat this lawsuit as a potentially justiciable
matter and carefully consider the time-sensitive issues posed
affecting this young Olympian's skating career. This case is
not a routine matter involving a simple membership decision
within a private association. Instead, it concerns plaintiff's
41 A-0283-15T1
future livelihood and her ability to compete and earn prizes as
an international athlete. Because the career span of such a
skater is relatively short, time can be of the essence.
As we noted in Cipriani Builders, supra, 389 N.J. Super. at
165, when a "professional society or trade association exercises
'virtually monopolistic control' over a form of economic
activity, a court will be especially vigilant in protecting the
interests of members and prospective members." "When a
membership decision of such an association is challenged, '[t]he
intimate personal relationships which pervade[] the social,
religious and fraternal organizations [are] hardly in evidence
and [an] individual's opportunity of earning a livelihood and
serving society in his chosen trade or profession appear[s] as
the controlling policy consideration.'" Ibid. (alteration in
original) (quoting Falcone, supra, 34 N.J. at 596).
Nevertheless, the trial court acted too quickly here in
deciding count one in plaintiff's favor on summary judgment and
requiring the Federation to release her. There are several
reasons why the court's decision, while undoubtedly well-
intentioned given plaintiff's difficult situation, was
improvident.
First, the trial court should have afforded greater
deference to the autonomy of a sporting association such as the
42 A-0283-15T1
ISU to attempt to resolve conflicts between athletes and their
respective teams internally, in accordance with the rules of
that association. We were guided by such principles of
presumptive deference in Dolan, and they must likewise be heeded
here, at least until all reasonable non-judicial processes for
resolution are exhausted. We must be careful not to supplant
the authority of the ISU to administer figure skating rules and
regulations throughout the world.
The ISU, which is not even a party to this litigation, has
obvious expertise in this realm and courts should tread lightly
before interfering. In fact, it is instructive the ISU recently
amended its rules to make clear that member federations cannot
"unreasonably" deny releases to their former skaters. Whether
or not this litigation was a catalyst in producing that change,
the revision of Rule 109 illustrates that the ISU has the
authority and expertise to solve athlete-federation conflicts
within its own arena.
Although on appeal we required plaintiff to attempt to
exhaust non-judicial remedies — which to her credit she
willingly agreed to and did pursue after we raised the subject —
that process should have run its course originally before
dispositive relief was issued last September against the
43 A-0283-15T1
Federation. We disagree with the trial court's assessment that
such recourse was necessarily futile.
We acknowledge that the ISU's rules, Schmid's deposition
testimony, and the emails from ISU representatives all reflect
that an individual skater does not have a clear avenue to obtain
a release directly from the ISU. However, the rules and the
record also show that the ISU is able, and apparently has been
willing, to consider releasing plaintiff if that request came
through another Member federation. Until last week, the USFSA
had not taken that important step, perhaps because of the
confusion caused by plaintiff's unfortunate overly-broad
phrasing of her initial request. We do not find that the ISU's
process requiring a Member federation's support to override a
release denial by a skater's former federation is necessarily
futile or unjust.
As of this moment, the process under revised Rule 109 is
actively underway. We will not presume that the ISU will dawdle
over the USFSA's request, particularly with rosters to be fixed
imminently for the upcoming skating season. Although the trial
court had no reason to predict that the ISU rules would change
or that the USFSA would finally intercede for plaintiff, that
has now occurred.
44 A-0283-15T1
We therefore shall let the process under Rule 109 be
completed, and for that reason vacate the trial court's findings
that non-judicial remedies have been adequately exhausted. In
doing so, we need not decide at this interlocutory juncture if
the arbitration provisions in the form signed by plaintiff's
mother are binding or comport with New Jersey law.9 Instead, we
defer to the sporting organization's authority for policy
reasons, consistent with both tradition and sound case law.
Once the ISU's decision is made, the litigation can resume in
the trial court to address the consequences of that decision and
the other claims raised in plaintiff's complaint.10
The trial court's decision on count one was also flawed
insofar as it decided genuine factually-laden disputes on
summary judgment on the basis of competing written submissions.
We need not repeat at length the well-settled principle that
courts reviewing summary judgment motions must "consider whether
the competent evidential materials presented, when viewed in the
9
To the extent our grant of leave to appeal could be viewed to
encompass review of the trial court's discrete ruling on the
arbitration clause, we vacate that aspect as improvidently
granted.
10
We need not decide here hypothetically whether a decision by
the ISU concluding that it was or was not "unreasonable" for the
Federation to deny plaintiff a release would have preclusive
effects in this litigation. That question has not been briefed
and is reserved for the trial court.
45 A-0283-15T1
light most favorable to the non-moving party, are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-
2(c). Courts ought not resolve contested factual issues on
competing certifications and discovery materials, but instead
are limited to determining from the record whether the alleged
factual disputes are genuine. Agurto v. Guhr, 381 N.J. Super.
519, 525 (App. Div. 2005). If there are materially disputed
facts, the motion for summary judgment should be denied. Brill,
supra, 142 N.J. at 540. On appeal, we accord no special
deference to a trial judge's assessment of the documentary
record, and instead review the summary judgment ruling de novo
as a question of law. W.J.A. v. D.A., 210 N.J. 229, 237-38
(2012); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995) (noting that no "special deference" applies
to a trial court's legal determinations).
This record contains an abundance of fact-laden issues
relating to whether defendants treated plaintiff unfairly and
tortiously acted without justification to thwart her career
after she sought to compete for another nation. Although the
trial court determined that defendants' motives were unjustified
and "inscrutable," they have presented a competing explanation.
46 A-0283-15T1
Defendants have repeatedly asserted that if the Federation
unconditionally releases plaintiff, doing so will have the
deleterious effect of encouraging other skaters in whom it has
invested time and effort in training to leave and affiliate with
other countries. The ISU has recognized that this can be a
legitimate concern, although it has suggested the Federation may
have already reaped a sufficient "return" on its investment in
plaintiff by her pair's unprecedented success for Israel in the
2014 Olympics.
A trier of fact has not yet sorted out these competing
contentions. The factfinder must evaluate, after hearing trial
testimony and assessing the credibility of the witnesses,
whether the Federation's asserted justification for withholding
a release has been sincere and sufficiently compelling under the
law of tortious interference and, by analogy, the law of
restrictive covenants. See Cmty. Hosp. Grp. v. More, 183 N.J.
36, 57 (2005) (requiring consideration of an employer's
legitimate business interests in evaluating the reasonableness
of a challenged restraint on post-employment activities);
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
751-56 (1989) (requiring consideration in a tortious
interference case of whether the defendant's conduct was
justified by legitimate reasons).
47 A-0283-15T1
These determinations are factually intertwined with the
issues posed by the counts of the complaint dealing with whether
defendants have defamed or disparaged plaintiff, and have
wrongfully inflicted upon her severe emotional distress. The
paper record on summary judgment was not appropriate to
adjudicate these questions dispositively.
Indeed, the trial court correctly denied summary judgment
to either side on the tortious interference claims in count two.
We affirm that sound ruling. But having done so, we cannot
uphold the court's dispositive, pre-emptive finding on count one
that defendants acted unjustifiably. Instead, the questions of
justification and motive must be decided in a plenary manner at
trial.
Apart from this, the expansive remedy imposed by the trial
court on count one was premature and an unwarranted incursion
into the primary authority of the ISU. Although plaintiff
styled her prayer for relief in count one as a request for a
declaratory judgment, in substance it amounted to a demand for a
mandatory injunction. "Unlike a prohibitory injunction, a
mandatory injunction commands the defendant to do some positive
act or particular thing, prohibits him from refusing (or
persisting in a refusal) to do or permit some act to which [a]
plaintiff has a legal right, or restrains [a] defendant from
48 A-0283-15T1
permitting his previously wrongful act to continue." Samaritan
Ctr., Inc. v. Borough of Englishtown, 294 N.J. Super. 437, 444
n.4 (Law. Div. 1996) (citing Bailey v. Schnitzius, 45 N.J. Eg.
178 (E. & A. 1888)).
A mandatory injunction is "an extraordinary remedy that is
only granted sparingly by the courts." Trinity Indus. v.
Chicago Bridge & Iron, Co., 735 F.3d 131, 139 (3d Cir. 2013)
(citing Communist Party of Ind. v. Whitcomb, 409 U.S. 1235,
1235, 93 S. Ct. 16, 16, 34 L. Ed. 2d 40, 40 (1972)).
Consequently, a "party who seeks mandatory preliminary
injunctive relief must satisfy a 'particularly heavy' burden[,]"
Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 396 (App. Div.
2006) (quoting Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.
1980)), such that "the moving party's 'right to relief must be
indisputably clear.'" Trinity, supra, 735 F.3d at 139 (quoting
Communist Party, supra, 409 U.S. at 1235, 93 S. Ct. at 16, 34 L.
Ed. 2d at 40).
The mandatory injunction issued on count one, forcing the
Federation to release plaintiff over its strenuous objection,
did not meet these stringent requirements while the possibility
of non-judicial remedies before the ISU existed. Certainly,
plaintiff's predicament in not having the freedom to skate for
another team while her former team has no interest in her return
49 A-0283-15T1
is sympathetic. But, for the reasons we have already stressed,
the trial court should not have preempted the ISU process.
Indeed, the court's chosen remedy has been ineffective in
providing any true practical relief to plaintiff within the
skating world. That speaks volumes.
For these many reasons, we reverse the trial court's grant
of summary judgment on count one. We also vacate the court-
ordered release, effective immediately. Doing so will now clear
the path for the ISU to make its awaited decision in response to
the USFSA's request. If the ISU declines to grant plaintiff a
release, the trial court can reconsider the posture of the case
in light of that development and any issues the parties wish to
assert or renew. However, the Law Division shall not reinstate
any court-ordered release unless or until the parties' proofs
and justifications are litigated at the requested jury trial and
appropriate findings are made. We presume the trial will be
conducted expeditiously after the remaining discovery is
completed.
As a final note, we recognize that we allowed the court-
ordered release to remain in place while this appeal has been
pending. But the recent rule changes adopted at the ISU
Congress and the USFSA's long-sought intercession with the ISU,
as well as the applicable law, make it clear that the time has
50 A-0283-15T1
come for plaintiff's fate to be decided in the first instance by
the sporting tribunal that has presumptive authority over her
skating credentials.
The balance of defendants' arguments, including their claim
that the trial judge should recuse himself because of his past
adverse rulings, lack sufficient merit to warrant comment. R.
2:11-3(e)(1)(E).
Affirmed in part as to count two, reversed as to count one,
and remanded to the Law Division for proceedings consistent with
this opinion. We do not retain jurisdiction.
51 A-0283-15T1