Andrea Davidovich v. Israel Ice Skating Federation

140 A.3d 616, 446 N.J. Super. 127

• Court: New Jersey Superior Court Appellate Division
• Decided: June 23, 2016
• Docket: A-0283-15T1
• Status: Published

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

2 A-0283-15T1 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.

4 A-0283-15T1 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

5 A-0283-15T1 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."

6 A-0283-15T1 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.

7 A-0283-15T1 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.

8 A-0283-15T1 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

9 A-0283-15T1 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

14 A-0283-15T1 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

17 A-0283-15T1 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.

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.

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