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WILSON v. INTERCOLLEGIATE

May 19, 1981

DAVID WILSON, PLAINTIFF,
v.
INTERCOLLEGIATE (BIG TEN) CONFERENCE ATHLETIC ASSOCIATION, AN UNINCORPORATED ASSOCIATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert D. Morgan, District Judge.

DECISION AND ORDER ON MOTION TO REMAND

This is a civil action, originally filed in the Circuit Court for the Sixth Judicial Circuit, Champaign County, Illinois, as case number 80-C-801. Plaintiff is a student at the University of Illinois at Urbana-Champaign, is a member of the varsity football team, and the suit involves his eligibility to play intercollegiate football.

Plaintiff filed his original complaint in two counts on August 19, 1980, naming as defendants the National Collegiate Athletic Association (NCAA), the Big Ten Athletic Conference (Conference), Neale Stoner, as Athletic Director of the University of Illinois Athletic Association (Stoner), and the University of Illinois Athletic Association (UIAA). He sought declaratory judgment and injunctive relief. On August 26, 1980, plaintiff amended his complaint to name as alternative defendants the ten individual member schools of the Conference and the Conference Commissioner, Wayne Duke. Hearings were conducted in the state court on plaintiff's prayer for preliminary injunctive relief. Defendants, through legal counsel, participated in those hearings. A preliminary injunction in plaintiff's favor was granted on September 5, 1980. The circuit court dissolved that injunction on September 17, 1980. The Illinois Appellate Court, Fourth District, reinstated the injunction on September 19, 1980, and the Illinois Supreme Court, on October 3, 1980, denied leave to appeal. Plaintiff played football for the University of Illinois in the fall of 1980 under that injunction.

On March 25, 1981, plaintiff filed three "Additional Counts to Amended Complaint." The additional counts were directed only against defendant Conference. Conference filed a petition to remove the case to federal court on April 8, 1981. Plaintiff filed a motion to remand on May 4, 1981. The parties presented oral arguments on the remand motion on May 11, 1981, and have submitted briefs in support of their respective positions. For the reasons developed herein, the motion to remand must be denied.

I

Right to Remove Under 28 U.S.C. § 1446(b)

Plaintiff's original complaint,*fn1 entitled "Complaint for Declaratory Judgment and Injunction," is in two counts. Count One alleges that the NCAA*fn2 and Neale Stoner denied plaintiff the equal protection of the laws, as guaranteed by the Constitutions of the State of Illinois and the United States, by promulgating certain NCAA rules and applying them to plaintiff. Count Two alleges that the Conference, Stoner, and UIAA denied plaintiff procedural due process, as guaranteed by the Constitutions of the State of Illinois and the United States, during hearings that were held to determine the status of his eligibility to participate in intercollegiate athletics.

Both parties appear to concede that the original complaint was removable, as it stated a federal question. When defendants, for whatever reason, failed to seek removal within the time prescribed by statute, 28 U.S.C. § 1446(b), they waived their right to remove that action. Fletcher v. Hamlet, 116 U.S. 408, 6 S.Ct. 426, 29 L.Ed. 679 (1886); 28 U.S.C. § 1446(b)(¶ 2). The initial question before this court, therefore, is whether the additional counts, which plaintiff voluntarily filed in 1981, so changed the nature of the suit as to revive the right to remove. This court decides that plaintiff's voluntary amendments of March 25, 1981 did state several new federal causes of action against defendant Conference, thus reviving its right to remove.

Plaintiff's original complaint named Conference only in Count II (procedural due process). The amendments name Conference as the sole defendant, alleging violations of First Amendment rights to travel, study, associate and compete; racial discrimination under 42 U.S.C. § 1981; violation of unspecified civil rights under color of state law under 42 U.S.C. § 1983; conspiracy to discriminate against a class under 42 U.S.C. § 1985; failure to give full faith and credit under Article IV of the United States Constitution; violation of unspecified rights under the Fourteenth Amendment (all in Count III); violations of the Illinois antitrust statutes (Count IV); and sex discrimination by a public institution under 20 U.S.C. § 1681-83 (Title IX) (Count V).

Plaintiff argues that all of the counts arise out of a single body of facts and seek to redress a single injury, and thus constitute a single cause of action. The court cannot agree.

The determination of what constitutes a cause of action must be made here by looking to federal law, and the Supreme Court of the United States has stated:

  "A cause of action does not consist of facts, but
  of the unlawful violation of a right which the
  facts show." American Fire & Casualty Co. v. Finn,
  341 U.S. 6, 13, 71 S.Ct. 534, 95 L.Ed. 702 (1951),
  quoting Baltimore S.S. Co. v. Phillips,
  274 U.S. 316, 321, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927).

The eight new causes of action are sufficiently different from the original cause of action to give rise to new federal questions that revive the right to remove. As stated above, Conference was named originally as a defendant only in the procedural due process count. The allegations in the new counts, while based on the same facts, advance substantially different legal theories and will involve substantially different proofs and defenses than the original suit. A right to remove may be revived by amendment when plaintiff ...


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