-: SJC 13224 in the matter of an impounded case.
-: Okay, Attorney Hodge.
-: Good morning, Your Honors.
And may it please the court, my name is Kay Hodge.
And along with my partner, John Simon,
we represent the Massachusetts
Interscholastic Athletic Association.
I will refer to it as the MIAA
and I think I would like to start
by just describing briefly to you what the MIAA is.
It's a private membership association comprised
of effectively every public school in the Commonwealth.
Along with some private high schools.
It is a product of Chapter 71 Section 47,
which authorizes school committees to band together
in this way in order
to facilitate competitive athletic events.
As a private membership organization,
it is the members that decide what rules should be applied,
what those rules are going to be and how those rules should
be enforced in furtherance of its goals.
And its goals are important here.
In furtherance of its goals
to ensure fair athletic competition, equitable processes,
and student, and otherwise to make sure there's
essentially a level playing field for everybody.
They have created a set of rules, one of which is 59.1,
which is the rule that's at issue in this case.
59.1 is a rule that says that interscholastic athletes get
four years from the day that they begin the ninth grade
and it's counted consecutively.
So you don't get to play a fifth year.
The case that you have before you is a situation in which
an individual sought a waiver of that rule,
and there are waiver provisions.
And the waiver provisions are contained in section,
in rule number 80, I think it's 87.5.
Excuse me, all these rules.
But in any event, it, in that rule,
it provides that a waiver requires four elements
or at least consideration of four elements.
-: Attorney Hodge, let me ask you on the arbitrary
and capricious standard that you urge us to adopt.
How do we know, how does this superior court judge?
So you get these motions all the time
and as we see from the briefs, you get different results.
Right, okay, so how does the judge know
whether the MIAA applying the four part 87.5 standard is
being arbitrary and capricious,
unless they know what the prior decisions
of the committees have been?
Are these decisions published?
Are they accessible?
I mean, 'cause you really have to compare apples
to apples and student to student
in their particular situation.
And unless they're published, how are they not one-offs?
-: I don't believe that they are one-offs, Your Honor.
I think that they are very clearly.
-: Are they published?
-: They are not published to my knowledge.
-: Okay.
-: However, they're internally maintained and therefore,
but the bigger issue is this.
-: Well, can you ask my littler issue?
The issue I've got is I'm sitting in Suffolk Superior Court
and some kid right before the big game comes up
and he's all set to go and the parents are there
and MIA's there and I have to decide a motion the PI.
And that's really determinative
because these cases rarely get appealed.
And they say, "This is the worst thing.
"This is arbitrary.
"This kid should get the waiver."
And I say, "Well, what about like kids.
"Kids in similar situations."
And I don't have that information.
How do I decide what's arbitrary and capricious
if I have no information, no foundation?
-: I don't think, I think that the first question is,
and this is no different than any other case
that you would have in an employment arena
or whatever it is that you've gotta look to see
if there are similar situated situations.
And I think that there could have been a request
for information to MIAA.
You know, they're the public entity
and therefore that request could have been proffered
and it was not in this case.
But I think it's more important is this.
-: But before you leave that. -: That four standards.
-: Before you leave that,
I was just looking at footnote 10
in the opposing Counsel's brief.
It's a follow up to Justice Gaziano's question.
So how do they know in the same conference.
In fact, at least, this is according to the footnote.
In fact, at least three of the athletes
who were granted a fifth year waiver played
in the same conference as Austin Prep.
One of the fifth year athletes was widely considered one
of the best players in the state
and was a serious contender for the most valuable player.
I'm just, is that?
To me that's the,
I have the same question Justice Gaziano has,
which is if that's, was that introduced at the hearing?
-: Not that I know of, no.
-: But so, so that becomes really significant
'cause that's the seems to be the only way
of judging whether something's arbitrary and capricious.
-: I don't believe that that's right.
I think that what you have to do is focus on the decision
that's in Record Appendix 144 to 146.
It goes through the various criteria
and the evidence that was presented and was considered.
And I will point out to you that number one,
the review board is the EAB or the eligibility appeals board
is comprised of educational and athletic professionals.
And they are a part of this organization
and hear these cases on a fairly regular basis.
-: But that's a trust us argument that.
-: Pardon me?
It is a trust -: That's a trust us argument.
And I mean.
-: I would suggest that's correct, yes.
-: But isn't Justice Gaziano right?
That if, I mean, if this, I mean like this,
if this kid is the most valuable player of the year
and he's obviously taking time
from other people, playing time from other people.
I mean, I don't know anything about the facts of that,
but if that's true.
I mean, 'cause I get you.
I mean, when you look at those four facts, four factors,
you know the impact on the school, the impact on the kid,
clearly this kid is hugely benefited
from being able to play,
but some other kid isn't gonna be able to play
and you can always point that out with a good athlete.
You can always point that out with a very good athlete that
someone else is gonna lose time.
But I just don't know.
I mean, if the most valuable player
in the state gets a fifth year,
why doesn't this kid get a fifth year?
-: Well, I'm not sure that that was established.
And I don't know that the most valuable player.
I mean, I understand that that is what they are asserting
in that footnote.
I can't tell you.
What I can tell you is you have a written opinion.
It is three pages, single space and it goes through
and it describes the information that was presented.
There isn't a lot of dispute except for these other cases.
And they go to basically that there was no undue hardship
to this individual because he played for four full years.
You do not know in that other case, which,
and I point out again,
they could have obtained information
under the public records request, but they not.
But you do not know whether or not, in the other case,
the particular athlete - -: Does your client
do that though?
Does your client go into these hearings and say,
"Here's five cases just like this kid
"and they didn't get a waiver."
-: I think that in most of the instances they do,
they are aware of the other cases.
Do they actually mathematically line them up?
And the answer is no.
-: But when you say they're aware, who's being, who's aware?
-: The members.
In the first instance,
the person who hears these cases is the Executive Director
or his or her designee.
And that individual is the keeper.
The person who normally sits on these cases is the keeper
of all of the decisions to date.
Now over time, have those decisions changed?
Yes they have and to the better.
I mean, there have been a number of cases
that have come through that have, you know,
refined how people have thought about disabilities
and gender and a variety of other issues.
So absolute and strict adherence
to how we've done it always, it should continue to be true
shouldn't necessarily be true.
-: I'm just concerned about the kids that line up
and they get dispersate.
Same type of kid.
One kid was bullied.
Another kid has another tragedy.
One kid gets a waiver, one kid doesn't get a waiver.
And I'm just really concerned
about the arbitrariness of that.
And it basically depends
on which superior court judge roulette,
which judge do you draw, whether you get the PI
or you don't get the PI.
-: I agree with you Justice Gaziano
but I would also point out that in almost all cases,
not all, but almost all cases,
what you have is this fifth year issue applies only
in the private school context.
And the reason is except
for an individual who had to withdraw
or voluntarily withdrew from school in a public school,
after four years and there is another rule, which is 61.1
I believe or 62.1,
which is a rule that says
after you accumulated the credits to graduate,
you're considered a graduate unless you're
in the middle of a sport.
And the fact is is you cannot then play more.
So the public schools do not offer a student an opportunity
to stay over for an extra year.
And consequently,
this is an issue of some level of fairness.
The other point I would make,
and that was why I started with telling you about the MIAA,
it is comprised of people who are all members
and have chosen to be members of the association
and have decided that these are the rules
and have decided that the EAB will
be the methodology by which those rules will be applied.
And it is in that context in the same way,
as you do not know if an agency,
all of the agencies that make determinations,
and there are a number we cite a number of cases
that are somewhat similar,
where discretionary decisions are made by an agency
and an agency then proceed
and then are subject to the arbitrary
and capricious standard.
The question is were there enough facts
that a reasonable person would've agreed with you,
with the decision that was rendered
and the facts are listed in the decision.
What you have instead is you have a judge who,
in that context, it's a discretionary agency decision,
which is coming before him, decided ab initio
to hear the facts and make a different decision.
Now, in every case,
there are likely two versions of those facts
or how you infer.
This court has said repeatedly in these cases,
that is not for the Superior Court
to revisit the credibility,
to make different inferences,
even if you would've made a different decision.
And what you're basically saying is that we will require
of this association, that they then impose essentially,
you know, what we as lawyers have, which are, you know,
compendia of cases, et cetera.
And I'm not sure that that's the appropriate standard
in this instance.
And I understand that for some
of you sports matters a huge amount.
That athletics are really important.
And I understand that it's, that to a parent,
it is the perhaps the most important issue of the moment.
However, the fact of the matter is,
is this is a discretionary agency decision
that was being reviewed by the Superior Court Judge.
And I would also point out if you read the brief, well,
you do read. (justices laughing)
The brief of the plaintiff's apellee's.
The fact of the matter is, is they repeatedly state,
"Well, there was enough evidence in the record to support."
Or "Look at our pleadings and they support."
The decision of the Superior Court Judge.
which is not at bottom when you're looking at whether
or not there's a substantial likelihood
of success on the merits.
You have to look at the decision itself
and what is in fact presented.
Now, I hear that there are refinements
that the MIAA can consider.
But as a body corporate,
they can decide whether to do that or not.
Or you will say,
"This is an agency that we're gonna pull to the side
"and have a whole different set of requirements
"for essentially discretionary decisions."
And I would urge you to consider that we ought
to apply the same. -: I think you're right,
that they've identified the exact right standards
to look at.
The problem is they can come out,
unless we know how they apply it to anyone else,
they can come out.
I mean, if you apply those standards, you can just,
you can come out however you want.
Both, you know, there's almost, I mean,
one thing look at the impact on the kid.
One thing looks at the impact on other kids.
One thing looks at the conference.
One thing looks at the entire system, all good factors,
but the basic, the only way you can judge,
whether something's arbitrary or capricious is whether
they apply it evenly, right?
I mean, you're an employment lawyer.
You know that that's the measure
of equality is do you apply it the same way
to the same people?
-: Well, I think that that may be right,
but that has not heretofor been the standard.
And I suppose the legislature could have decided
that it shall be decided in this particular way.
I think the members here have decided that the criteria
shall be, they do in fact, relegate the decision to a group
of individuals who they trust, educational
and athletic professionals who make up the EAB
to apply the standard in an equitable
and appropriate manner recognizing the constraint
that I just mentioned to you,
and that is, is that the fifth year is not available
to everybody.
It's available -: Can a judge ever reverse one
of these decisions?
-: I'm sorry, what?
-: Can a judge ever reverse one of these decisions?
-: Ever reverse one of these decisions?
And they have.
-: I know, but properly in your view?
-: Well, the fact of the matter is,
is I would suggest that the standard of arbitrary capricious
or at least the way I was taught all along is it's a very,
very high standard.
And the - -: No, I agree with you,
but suppose, gimme a parade of horribles.
You have these four standards under 87 5,
the EAB has written and it's a fine decision.
I'm not, I think it's supported.
But I'm just wondering when are they ever wrong?
And how is that not arbitrary
and capricious if they're always right?
-: Can I tell that - -: How is there
any meaningful review?
-: There are very few instances where the fifth year is,
or should be allowed because the very rules tell you
that the membership had decided that four years is it.
This individual had four full years,
which is probably one of the biggest weighing factors
in all of the consideration.
He played four years of basketball, four years of football.
And the issue of bullying, which is serious,
and I don't wanna minimize it,
but the issue of bullying was considered as was the
psychological report that was proffered
by the parents on behalf and, you know, in this case.
I would suggest to Your Honors that again,
I would cut the slack to the individuals who are making
this decision on the EAB.
And I would also point out that the record evidence is
that this individual got two EABs.
The first EAB was canceled, if you will.
It was a unanimous decision denying the waiver,
but because one of the individuals
on the panel had to leave abruptly, therefore they gave him
yet a second full review.
If the requirement is going to be that there must
be that evidence then in fact did out,
that would be something that the MIAA will have to consider.
But I urge this court to consider that I believe
that the decision is supported,
as Justice Gaziano suggested,
is supported by substantial evidence, in fact.
The fact of the matter is, is the injunction should
not have issued.
And indeed, if it was going to issue
and going to overturn the decision of the EAB,
it at least ought to have described
why it was doing what it did.
And finally,
I would urge that this court look at our brief with regard
to the issue of mootness,
because it is our view that
because sports seasons are what they are,
they are so short that we need to get some clarity
because the number of these cases is rising as are the
number of cases.
And we expect that many will come
if the COVID issue is considered
to be an overwhelming part of this decision.
And so all of these factors I ask this court to consider,
and I ask you to reverse the decision below.
Thank you.
-: Thank you very much.
Attorney Hamilton.
-: May it please the court, my name is Andrew Hamilton
and I represent the plaintiff appellees in this matter.
There are two reasons why this appeal should
be resolved in favor of the plaintiffs.
First, this case is moot as the student plaintiff has
completed his high school athletic career.
And the relief. -: Is it moot as
to Austin prep?
-: I'm sorry.
-: Is it moot as to Austin Prep?
-: Yes. -: Why?
-: And the reason why is because there's no further relief
that's being sought by either party and so.
-: Can you address Attorney Hodge's point
that this is capable of repetition yet evading review
in light of the length of the season's inherent
in these sports?
-: Yes, certainly.
So we don't believe that this is a case that's capable
of repetition because.
-: Not for this particular person,
but for all the other student athletes who wanna play
in their fifth year.
-: Right, and so the, I would look at that
as part of it is capable of repetition.
The other part is evading review.
And so the exigency that the MIAA brings up is their issue,
something that they control.
So the MIAA is the one that sets up this whole procedure
for athletic waiver.
They're the ones that set the deadline
for when the applications are due for waivers.
They're the ones who set up the appeal process.
They're the ones who set it up so close
to the first game of the season.
And then in this particular case,
when we get to the litigation,
there are a number of ways
that the MIAA could get an earlier decision
on this case, a decision on the merit.
So for example,
they could have, under mass civil procedure rule 56,
they could have sought to combine a final decision
on the merits with the preliminary injunction hearing.
They didn't do that.
-: I mean, I agree with Justice Gaziano.
Effectively, the PI is it.
But it doesn't answer why we shouldn't go ahead
and answer this question that will inevitably come up again
in the future.
-: So again, I think that there are other ways
that the MIAA could have gotten a decision,
but, you know.
-: Then tell me why you went on the merits.
-: Why we went on the merits?
Certainly, so the reason why we went
on the merits is because the court,
excuse me, the EAB has in its decision,
ignored important facts, contrary evidence to its decision
that simply weren't considered
and a reviewing judge, in this case,
Judge Doolin in the Superior Court,
could have looked at those facts
that weren't addressed by the EAB
and found that we had a substantial likelihood
of success on the merits.
And we believe that the judge.
-: So he would have to find that there was a substantial
likelihood of success in the merits
that the MIAA acted arbitrarily,
because you presented opposing evidence
that didn't end up in the written decision.
That's what you're saying.
-: Yes. -: Okay.
That sounds like a substantial evidence standard.
And I thought you agreed
that it was arbitrary and capricious?
-: So for a point of clarification,
we haven't challenged the arbitrary and capricious standard
because.
-: This was the time. (laughing)
-: And the reason why we did that is
because this is the decision
that the Superior Court came up with.
And, you know, obviously it came out in our favor
and we believe that we can win under the arbitrary
and capricious standard.
And so you asked for, you know, what the reason is
that we think that we win.
And there are a number of facts that are provided
in the briefs, and I can go through those.
-: But their standard is so open ended
and the factors they're considering seem legitimate.
I was, I thought it's a very good decision.
If it weren't for your footnote, I'd say,
"Wow, that's a well considered decision."
Particularly what Ms. Hodge just emphasized,
which is they emphasized the last point
that he's played for four, eight seasons in both sports.
Which is unusual.
He must be a very talented athlete.
The only thing that gives me pause is this fact that again,
an MVP in the same conference.
Was that presented to the Judge?
Does he have or is that something you guys came
up with afterwards?
-: No, Your Honor, that was presented
to the Superior Court on the motion for reconsideration.
It was in an affidavit by the Austin Prep Athletic Director.
It's provided at record appendix 197.
So the Judge did have the ability to review that in its.
-: But when he makes his original decision,
which has no analysis.
-: I'm sorry?
-: It had has no analysis, the original decision.
-: Yes, sir.
-: But secondarily he's given this and are the facts
of this MVP presented
that he actually had four years of eligibility?
Prior to that he'd played for four years?
Is that in that affidavit?
I haven't read it.
-: So I could pull up the affidavit.
I believe these were all fifth year waiver applications.
-: Meaning, when you're a fifth year,
does that mean you played all five seasons,
I mean all four seasons?
Or does that just mean you were eligible
to play all four seasons?
-: So for the, as I read the MIAA regulations,
it doesn't matter.
So if you start it's four years from when you started.
So even if you don't play any of the four years,
you still have to apply for a fifth year waiver
if you want to play your fifth year.
-: And in the hearing, and again,
I haven't read this whole record.
Do we, we don't have a transcript of the hearing
or do we do have a transcript?
-: Yes, your honor,
we have transcripts of both hearings and they're included.
-: Okay, so they're in the record.
Do they talk about comparisons that this,
kids have been allowed to do this,
they've not been allowed to do it,
or is it just the general sort
of discussion of this particular child?
-: So the - -: Go ahead.
-: Sorry, so the, the decision
and the discussions and the transcript are
about this particular student.
And Your Honor raised this issue on my sister's argument
and it's a valid point.
How do we know whether this is arbitrary
and capricious when we don't know how the other party,
the other cases have gone?
We have some evidence presented in this affidavit,
but we don't know.
-: But counsel, if I can interrupt you,
that's really not gonna advance the ball down field,
so to speak because you just don't know anything
about those other applications
and they could be very different.
You know, when you're talking about the makeup of the team,
the impact to the other players,
all of these things are gonna be very different.
So just looking at this particular application,
and again, I don't mean to suggest by my questions,
that I'm minimizing what he went through
at the first three years of the institution where he was at.
But all of these things were considered by the board.
And it seems to me that this is a substituted judgment
question here as to whether
or not somebody else would've done something different.
But under the arbitrary and capricious standard,
if you read that decision, which I did,
and I delved into the record quite deeply,
why isn't this supported?
And it's just, you don't like the decision they came to.
-: Yeah, no, so thank you for that question, Your Honor.
Because I don't think that, this isn't a situation
where we say, "We don't like this decision
"and so it should be overturned."
This is a situation where we've presented evidence
that we don't believe that the EAB has considered.
Justice: Like what? -: That it doesn't address.
So the first one
and the most important one is the documented therapeutic
benefit that competing in this season,
or these two seasons would have in the student
in light of the mental and.
-: But wasn't that in the social worker's letter
that was submitted?
-: It was Your Honor.
-: And did they cite that,
that they considered that in the decision?
-: They cite that letter, but they cite it
for the proposition that his academic difficulties were a
result of COVID.
They do not get into this issue
of the therapeutic benefits that competing has.
-: It might, it goes back
to Justice Wendlandt's point though.
It may not have necessarily been articulated by the board,
but the letter itself was submitted.
It's part of the record.
They reviewed it and they referenced it in the decision.
At one point in, I believe it was your brief,
you made reference to a high school athlete can only play
in high school.
And going back to attorney Hodge's point.
He played four years of football, four years of basketball.
He got a high school experience
of playing sports in both sports.
So I, just, again, I'm going back
to the likelihood of success on the merits,
where everything that you laid out in your brief,
in your motion was presented to the board
and the board didn't find it compelling enough
to issue the fifth year waiver.
So I just, again,
if you could crystallize and point to me directly,
what is it that they didn't consider in those four factors
that would've tipped to scale to say that,
again, a substantial likelihood of success.
Not just the likelihood, substantial likelihood of success.
-: Yeah and so this therapeutic benefits is one of them,
and it goes beyond just he had a high school experience.
This is something that's going to benefit him, the student,
not just this year, but as he grows up
and continues into adulthood where he has a chance
to work through this incredible emotional
and physical abuse, he suffered at his previous high school.
And there are a number of other aspects
that the court, excuse me,
that the EAB didn't consider.
One of them was brought up by one of your colleagues.
And I apologize, I forget which Justice,
but the issue of playing time.
And so the EAB said, and it's done this
in a number of decisions where it says,
"Well, the fact that a student is competing
"on this team automatically means
"that he takes the varsity position of another student."
In this case, we presented evidence to the EAB
that did not make it into the decision
but's in the record that Austin Prep,
for both of these teams, didn't have enough,
had trouble filling the team roster.
-: Well, but, so it's complicated.
And I guess, guilty when I was the Superior Court Judge
of substituted judgment, perhaps sometimes,
when I should have been doing abuse of discretion,
but, you know, school sports were important
to lots of people.
Lots of people who've been bullied
and lots of people have suffered through COVID
and worked weekend after weekend after weekend.
And all they got was a shortened season.
It's not how many players are on the team.
There's a sixth man on that Austin Prep basketball team
who was the sixth man instead of starting.
So what's so different here?
I mean, the bullying, the mentor, who is a coach.
Every one of these has a compelling story
if they're coming back for a fifth year.
You know, they usually aren't coming back
for a fifth year because well, they loved high school
and they loved sports
and they just want a fifth year.
There's usually a compelling reason.
-: So I think that there are a number of cases
where there is not these kind of situations.
Where it's not just, there are a lot of,
there are applications from students who simply want
to be able to compete for another year
and they're great athletes. -: And those go
to Superior Court on Friday afternoons?
-: I'm sorry, Your Honor?
-: Those are the cases.
Those cases don't seem to get as far as Superior Court
on Friday afternoons.
The ones I had were not, oh I just think I wanted to be.
They were reasons that were pretty darn good reasons.
-: Yeah, and so, but this,
I think this situation is different
because it's not just that he wants to compete,
that he wants to play a sport.
It's that has a important ancillary benefit to him.
And so that I think
separates him. -: And nearly everybody else
on the team. -: I'm sorry?
-: And nearly everybody else on the team.
Justice: Sure.
-: So the record shows that he's a strong player,
But his participation in this team, you know,
didn't tip the ball in anyone's favor.
The team didn't make any championships,
hasn't won any titles.
And so he he's a good player,
but it hasn't tipped the favors in any particular direction.
-: Maybe, perhaps not.
You could make the argument, not to his team,
but certainly you could make an argument that
to an opponent playing someone who's a year out
of four years, a year physically more developed, certainly
in terms of the abilities,
they only get better with experience, not worse.
So what if the MIAA or the EAB, just said,
"This is what we want.
"We want a level playing field.
"We want apples to apples, to the extent that that we can."
So again, I go back to,
I understand you can make him compelling reasons
for all the therapeutic benefits,
but what if another applicant, again, is back
to Justice Gaziano's point
about well, somebody had a tragedy that year
and a death in the family,
or they had some other thing that preyed
on their mental health,
they could make as compelling an argument.
And what does the MIAA do with all of that?
In this case, they considered that
and made a determination that waiver was inappropriate.
-: And they can certainly make that decision,
but it has to be supported.
It has to be, it can't be arbitrary and capricious.
So in, and so the, you know, in the case
where a student has died, family member has died.
You know, I think that would be worthy of a waiver.
And to your question, well, you know, the MIAA
doesn't have to set forth a waiver application.
If it's so concerned about fifth year students
competing against students who haven't had five years,
they could just get rid of the waiver application altogether
and just say, "This is the most important thing
"to us is having a completely level playing field.
"So there's no waiver.
"You got four years and after that."
-: But then wouldn't you be arguing that that was arbitrary?
-: Well, so if they had,
if the procedure applied to everyone equally,
no one gets a waiver ever.
There's no, I would find that hard
to be arbitrary and capricious.