At the onset of the COVID-19 pandemic, high school associations throughout the country were faced with the decision of how, if at all, interscholastic fall sports would operate. These decisions varied greatly nationwide.
In some states, it was decided that so long as certain health and safety procedures were followed, fall sports would continue as was planned before the pandemic. On the other side, a handful of states pushed back all high school sports to 2021. In between these two extremes, a vast majority of states took a hybrid approach by continuously assessing their respective state’s infection rate and slowly reinstated fall sports on a case-by-case basis. Illinois is one of these states that took a hybrid approach.
In July, the Illinois High School Association, which regulates all interscholastic athletics of IHSA member schools, announced a series of guidelines called the Return to Play & Contact Day Guidelines. Included in the guidelines was the controversial decision to move fall sports that were considered “high-risk” to the spring.
This conservative approach taken by the IHSA faced almost immediate opposition. A few weeks after the guidelines were announced, a class-action lawsuit was filed against the IHSA on behalf of IHSA student-athletes and their parents. Specifically, the class filed a motion for a temporary restraining order which, if granted, would prohibit the IHSA from enforcing the guidelines.
Pursuant to 732 ILCS 5/11-101 and Illinois case law, four elements must be established by a plaintiff for a temporary restraining order to be granted. Accordingly, a plaintiff must establish that (1) a clearly ascertainable right in need of protection exists; (2) irreparable harm will occur if the order is denied; (3) there is not an alternative and adequate remedy at law for the harm; and (4) there is a likelihood of success on the merits. Makindu v. Illinois High School Ass’n, 2015 IL App (2d) 141201, at Para. 31 (2015).
If a court finds that a plaintiff has established all the aforementioned elements, the court will then balance the hardships and consider the public interest involved. If this analysis results in the court finding in favor of the plaintiff, the defendant will then be temporarily prohibited from conducting the action in controversy.
The lawsuit would then proceed by the plaintiff filing a request for a preliminary injunction. Although a TRO and preliminary injunction both prohibit defendants from performing a specified action, the reason some plaintiffs choose to file a TRO before filing for a preliminary injunction is that the plaintiff believes there will be an immediate irreparable harm if the defendant is not prohibited from proceeding with the action in controversy.
Although plaintiffs enjoy a more lenient standard for establishing why their TRO should be granted, courts offset this imbalance by only granting TROs in extraordinary circumstances. Bartlow v. Shannon, 399 Ill.App.3d 560, 567 (2010). Furthermore, because prohibiting one party from committing an act without the party being afforded the right to plead in its defense, the effective term of a TRO is significantly shorter than what would be granted with a preliminary injunction.
Because the class believed enforcement of the IHSA guidelines would result in immediate irreparable harm that could not be remedied with an alternative remedy at law, the class elected to file a TRO. Accordingly, the class attempted to establish each of the four required elements.
The first element the class needed to establish was that the IHSA student-athletes have a clear, ascertainable right that requires protection. Here, Illinois courts require that the plaintiff show that there is a fair question of the existence of the protectable right and preserving the status quo is a priority. Hartlein v. Illinois Power Co., 151 Ill.2d 142 (Ill. 1992). Accordingly, the class argued that as third-party beneficiaries of their school’s membership in the IHSA, IHSA student-athletes have a clearly ascertainable right in need of protection.
The second element required is to establish that if the TRO is denied, the class would suffer an immediate irreparable harm. To summarize, the class argued that IHSA student-athletes not being able to play for their high school teams constitutes irreparable harm. To further support this claim, the class argued that student-athletes will be deprived of the opportunity to participate as multi-sport athletes as seasons will overlap, seniors will lose vitally important opportunities to bolster their chances of competing at the collegiate level, student-athletes’ mental health will suffer, and community development will regress while crime rates will increase.
Third, the class asserted that the above-mentioned harms cannot be remedied by monetary damages. Speaking candidly, the class argued that no amount of money or similar legal remedy could make up for the athletic opportunities the guidelines would prevent the student-athletes from experiencing. Therefore, the class argued that preventing the enforcement of the guidelines was the only remedy available to maintain fairness.
And for the fourth requirement, the class argued that if the TRO was granted, the merits of the case would likely lead to the granting of a preliminary injunction. The principal argument conveyed by the class was that the IHSA failed to follow its legislative protocol for amending its bylaws as it forwent the required membership vote. Therefore, the class believes that the IHSA’s failure to follow its own rules nullified the enforceability of the guidelines.
At first glance, it appears that the class has a valid claim. Student-athletes of IHSA-member high schools have a right to compete in interscholastic sports. The IHSA taking these opportunities away has the potential to significantly harm these student-athletes’ athletic development, future, and health, all of which likely cannot be remedied with monetary damages. Moreover, the fact that the IHSA was able to implement the guidelines in a manner inconsistent with its mandated procedure demonstrates unfairness.
Nonetheless, these four elements only establish the basis of granting a TRO if the court finds the benefits of granting the TRO outweigh the potential injury to the class if the TRO was denied. Makindu v. Illinois High School Ass’n, 2015 IL App (2d) 141201, at Para. 47 (2015).
In support of its argument, the class first argued that multiple scientific studies have demonstrated that the risk of contracting COVID-19 does not increase for student-athletes that compete in these “high risk” sports. Moreover, the class noted that the IHSA’s principal values include equity and fairness should allow for play. Therefore, the class contended that granting the TRO would preserve IHSA’s core values by nullifying an action it took that was not in accordance with its own rules and procedures.
Although the court acknowledged that the class had presented a fair question, it ultimately denied the TRO. Specifically, the court reasoned that these drastic times call for drastic remedies, and therefore, the IHSA’s implementation of the guidelines was within its bounds during this emergency situation.
The court’s decision in this case is one example of how some judiciaries have embraced the ideology that mitigating COVID-19 is of the highest priority. So long as COVID-19 continues to affect the country, those considering litigating a COVID-19-related matter need to evaluate the amount of significance their jurisdiction puts on getting through this pandemic.