Opinion and Order 16-CE-1330 COMMONWEALTH OF KENTUCKY nu ENTERED FRANKLIN CIRCUIT COURT DIVISION 11 FEB 28 2017 CIVIL ACTION No. 16-C1-1330 FAAUY FBLOMAN CLERIC IDRIS AKINYEMI, et al. PLAINTIFFS vs. KENTUCKY HIGH SCHOOL ATHLETIC ASSOCIATION and KENTUCKY DEPARTMENT OF EDUCATION DEFENDANTS ORDER ‘This matter is before the Court upon Plaintiffs’ Motion for Temporary Injunction and Defendant's Motion to Dissolve Temporary Restraining Order. The parties brought the matter before the Court for a special hearing on Monday, February 20, 2016 at 1:00 pan. Upon review of the parties’ briefs and papers, and affer being sufficiently advised, this Cout hereby DENIES Defendant's Motion 10 Dissolve Temporary Restraining Order and GRANTS Plaintif's Motion for Temporary Injunction. Prior to petitioning the Court for judicial review on this matter, Plaintiffs exhausted their administrative remedies. On November 1, the Kentucky High School Athletics Association (KHSAA) conducted a hearing after receiving complaints about Plaintiffs’ eligibility to play basketball upon transferring to Perry Central High School. ‘The Hearing Officer recommended that a waiver of Bylaw 7 not be granted, and deemed Plaintiffs ineligible to participate in interscholastic athletics at Perry Central High School, ‘The KHSAA upheld the Hearing Officer's Recommended Order on December 15, 2016 and found Plaintiffs ineligible to play interscholastic athletics at Perry Central High 10f8Opinion and Order 16-CE-1330 Schoo! pursuant to Bylaw 7. Plaintiffs petitioned this Court for Judicial Review and a Declaration of Rights pursuant to KRS 13B. On December 22, 2016, this Court entered a ‘Temporary Restraining Order prohibiting the KHSAA from enforcing its Final Order prohibiting Plaintiffs Akinyemi and Anosike from playing basketball. On February 20, 2017, the Court heard Plaintiffs’ Motion for Temporary Injunction. ' ‘A court may grant a temporary injunction where it is clearly shown that the applicant’s rights are being or will be violated by the adverse party, and the applicant will suffer immediate and irreparable injury, loss or damage pending a final judgment in the action. Injunctions should only be granted if the applicant can show irreparable injury, if the equities involved are best served by granting the injunction, and if the applicant presents a substantial question on the merits. Bingo Palace v. Lackey, 310 8.W.3d 215, 216 (Ky. 2009), the Supreme Court of Kentucky discussed the standard for granting injunctive relief established by the Court of Appeals in Maupin v. Stansbury, 575 $.W.2d 695 (Ky. App. 1978): In Maupin, the Court of Appeals stated: “because the injunction is an extraordinary remedy, sufficiency of the evidence below must be evaluated in light of both substantive and equitable principles.” id. At 697, CR 65.04 authorizes the granting of a temporary injunction (interlocutory relief) if the movent's rights are being violated and the movant will suffer immediate and irreparable injury pending a final judgment, or if waiting would render the final judgment meaningless. According to Maupin, “In order to show harm to his rights, a party must first allege possible abrogation of a concrete personal right.” Id, at 698 (citing Morrow v. City of Louisville, 249 8.W.2d 721 (Ky. 1952)). “{DJoubtful cases should await trail of the merits.” /d. (citing Oscar Ewing, Ine. v Melion, 309 $.W.2d 760 (Ky. 1958)). And further, there must be a “clear showing ‘that these rights will be immediately impaired.” Id. ? Division Il of the Franklin Circuit Court drew the above styled action; however Judge ‘Thomas Wingate was unavailable at the time of the hearing, so Judge Phillip Shepherd issued the Temporary Restraining Order. 20f8Opinion and Order 16-C1-1330 “An injunction will not be granted on the ground merely of an anticipated danger or an apprehension of it, but there must be a reasonable probability that injury will be done if no injunetion is granted.” Hamlin v, Durham, 32 S.W.2d 413, 414 (Ky. App. 1930). Moreover, the rule in Kentucky is well-settled that “the extraordinary remedy of injunction will not be granted for the protection of alleged rights, where the litigant seeking the injunction has an adequate remedy at law.” Heyser v. Brown, 184 8.W.2d 893, 894 (Ky. 1945) citing Commercial Credit Co., Ine., v. Martin, ete., 122 $.W.2d 135 (Ky. 1938; Gregory ef al. v. Crain, 163 $.W.2d 289 (Ky. 1942); see also Collins v, Comm, , 324 S.W.2d 406, 408-409 (Ky. 1959). “[MJere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Norsworthy v. Kentucky Bd Of Medical Licensure, 330 S.W.3d 58, 62 (Ky. 2009) citing Sampson, 415 U.S. 61, 90 (1974) (quoting Virginia Petroleum Jobbers Ass'n v, Federal Power, 259 F.2d 921, 925 (D.C. Cir. 1958), Upon review of Plaintiffs" pleadings, the Court believes that Plaintiffs have presented a substantial question, demonstrated that enforcing the order would not serve equity, and showed that their rights are subject to immediate or irreparable injury. Plaintiffs present the Court with a substantial question of determining whether or not the KHSAA used the proper bylaws to review challenges to Plaintifis’ athletic eligibility. The KHSAA Hearing Officer improperly evaluated Plaintiffs at the hearing by relying on Bylaw 7 to govern Plaintiffs’ eligibility, After review of the rules, and advisement from the parties’ pleadings, the Court finds that the governing rule in this case is Bylaw 8. Bylaw 7, used in the KHSAA’s analysis, specifically deals with students who come to the United States as participants in foreign exchange programs on F-1 or J-1 3of8Opinion and Order 16-CI-1330 visas. The very title of the bylaw is “Transfer Rule —Poreign Exchange Students.” Plaintifis, despite being foreign students who are in the United States on F-1 visas, have never participated in a formal exchange program. Without participation in the exchange program, Bylaw 7 cannot govern their eligibility to participate in interscholastie athletics. ‘The Hearing Officer should have evaluated Plaintiffs’ athletic eligibility under Bylaw 8 “Transfer Rule - Non-Exchange Foreign Students” because they are non-foreign exchange students in the United States on F-1 visas, Bylaw 8 governs foreign students who did not enier the United States through a foreign exchange program. Using the incorrect administrative bylaw to review Plaintifis’ eligibility constitutes an abuse of discretion by the KHSAA. As the regulator of Kentucky high school interscholastic athletics, the agency must apply the proper regulations to each decision. An arbitrary, or incorrect, application of bylaws subjects athletes to arbitrary and unpredictable regulations, which can harm high school student athletes” ability to participate in athletics or find any fair recourse for problems associated with high school athletics. Despite improperly applying the bylaw, the Court is persuaded by the KHSAA’s argument that Plaintiffs did not comply with the proper eligibility requirements set forth in Bylaw 8. Section 1 of Bylaw 8 states that foreign non-exchange students in Kentucky “shall be considered ineligible for the first calendar year following enrollment.” Exceptions exist to this rule for students if their entire family has relocated to the United States or if a student's family seeks refugee status or political asylum in the United States. This rule, according to Case 8-1 in the KHSAA Bylaws, treats foreign students in the United States without the accompaniment of parents the same way as domestic students who transfer without the accompaniment of theit parents in an effort to prevent 40f8Opinion and Order 16-CI-1330 team shopping and recruiting practices in high school athletics. Plaintiffs never experienced a year of incligibility when they began fo play sports at the June Buchanan Day School nor upon transferring to Perry Central High School. However, the Court finds that the circumstances precluding the recognition of a period of ineligibility “are clearly beyond the control of all the parties involved,” and to implement the rule would not serve equity. KHSAA Handbook § KHSAA Due Process. Procedure. Plaintiffs came to the United States as individuals, without their parents, in pursuit of the opportunity to play basketball and ultimately eam an athletic scholarship to attend college in the United States. Plaintiffs’ host family enrolled them in June Buchanan Day School during their freshman year of high school, June Buchanan Day School, a KHSAA member school, did not require Plaintiffs to observe the requisite period of ineligibility during any of the three years they played sports after their enrollment in the school. The school’s administrators and athletic advisors failed to properly implement the KHSAA regulations. Plaintiffs, mere teenagers from a foreign country under the watch care of a host family, were not in a position to warrant remote responsibility to enforce KHSAA regulations. The June Buchanan Day Schoo! failed to exercise its obligations as KHSAA member schoo! to fairly and adequately enforee the cligibility rules while Plaintiffs attended the school? Further, Plaintiffs’ current living situation could only be classified as outside the realm of Plaintiffs? control. After living with failing host family in Floyd County while attending June Buchanan Day School, where they were left without a home or food, the of the school asked Rex Frohnapfel and his family to host Plaintiffs. After 2 The Plaintiffs cite to a letter that the June Buchanan Schoo! sent to the KHSAA in the administrative record. The letter is hearsay, however, and, as the Court understands, was not rebutted at the administrative hearing. 5of8Opinion and Order 16-C1-1330 taking Plaintiffs info their home, feeding, clothing, and providing shelter for them, the Frohnapfels moved to Perry County, and they enrolled their daughter and Plaintiffs in Perry County schools. The Frohnapfels, who were previously unaffiliated with any sports Programs at any school in Kentucky, aside from their daughter's elementary school basketball team, enrolled Plaintiffs in Perry Central High School, This way all the children would attend school in the same district and Plaintiffs could take all the requisite classes that June Buchanan School did not offer so they would be eligible for college athletic scholarships. If Plaintiffs remained at June Buchanan Day School, they would have been forced to take and pay for online classes, which they could not afford to do. The Court is persuaded that the circumstances behind Plaintiffs’ enrollment in Perry Central High School were clearly beyond their control, and Plaintiffs did not transfer schools as a recruiting or school shopping exercise. The KHSAA, from the Due Process Procedure in the KHSAA Handbook, had discretion to evaluate and restore Plaintiffs’ eligibility without strictly complying with the bylaws, To enforce strict compliance during Plaintiffs’ senior year would violate every notion of equity. Plaintiffs would suffer immediate and irreparable harm if the Court enforced the KHSAA’s Final Order because no fault of their own caused any potential ineligibility to Participate in their senior season of basketball. After being abandoned by a prior host family, and transferring schools due to the residence of their host family and the lack of course offerings at their prior school, Plaintiffs happened upon attending Perry Central High School. Barring Plaintiffs’ participation in the regular and post season play during their senior year due to circumstances beyond their control would prevent colleges from adequately evaluating them for scholarships. Equity has not been in the favor of Plaintiffs 6of8Opinion and Order 16-C1-1330 prior to their enrollment at Perry Central High School, and the Court refuses to further subject them to unnecessary irreparable harm by denying them the opportunity the ‘opportunity to participate in the basketball season. WHEREFORE, Defendant's Motion fo Dissolve Temporary Restraining Order is DENIED and Plaintiffs’ Motion for Temporary Injunction is GRANTED. SO ORDERED, this 28 day of February, 2017 at 9:00 a.m. Bond is set at $500. Pursuant to CR 65.07, this order is appealable. 7of8Opinion and Order 16-CI-1330 CERTIFICATE OF SERVICE __L hereby certify that a true and correct copy of the foregoing Order was mailed, this_Z9 day of February, 2017, to the following: Hon. Chad Coll 2280 Executive Drive Lexington, Kentucky 40505 Hon. Jason Ams 300 West Vine Street, Suite 1200 Lexington, Kentucky 40507 Hon. Kevin Brown 300 Sower Boulevard, Fifth Floor Frankfort, Kentucky 40601 Hon. Clay A. Barkley Hon. Randal A. Strobo Hon. Julia Taylor 239 South Fifth Street, Suite 917 Louisville, Kentucky 40202 Hon. Ned Pillersdorf 124 West Court Street Prestonsburg, Kentucky 41653 ald Amy Feldman, Franklin County Cirey/it}Court Clerk 8 of8