Clifford WILEY, Plaintiff-Appellee, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION et al., Defendants-Appellants, 612 F.2d 473

McKAY, Circuit Judge. Wiley was a student-athlete at the University of Kansas. Coming from a desperately poor background, he sought to meet his education costs through a federal Basic Education Opportunity Grant (BEOG) pursuant to 20 U.S.C. § 1070a. He was awarded $1400 for the 1975-76 school year. In addition, he received an athletic scholarship from the University of Kansas in the amount of $2621. In the spring of 1976, plaintiff was' declared ineligible to compete in intercollegiate athletic events because his athletic award plus his BEOG exceeded National Collegiate Athletic Association (NCAA) limitations.

The University of Kansas unsuccessfully appealed to the NCAA to restore plaintiff’s eligibility but did not pursue its right to appeal further. Wiley then brought suit in the United States District Court for the District of Kansas to enjoin, inter alia, the inclusion of his BEOG in the calculation of the maximum financial assistance permissible under the NCAA Constitution. He alleged violation of the Equal Protection Clause and the Supremacy Clause. The court issued the requested injunction.

It found that the NCAA rule in question was unconstitutional under the Equal Protection Clause because it bore no rational relationship to the purposes and policies of the NCAA. The court declined, however, to apply a Supremacy Clause analysis to provisions of the NCAA rules. The NCAA and the Big Eight Conference appeal from the judgment based on the Equal Protection Clause issue, and Wiley cross-appeals on the Supremacy Clause issue. Following the initiation of this appeal, Wiley graduated from the University of Kansas.

Under the protection of the district court’s injunction, he had participated on the University of Kansas track team until his graduation. He received his full athletic scholarship along with his BEOG during this time. MOOTNESS Mootness, like ripeness and standing, has its constitutional origin in the “case or controversy” limitation of

Article III which insures that courts exercise their power only in cases where true adversary context allows informed judicial resolution. Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); Napier v. Gertrude, 542 F.2d 825, 828 (10th Cir. 1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed. 765 (1977). The actual controversy between the parties “must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.” Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973).

The portion of the district court’s opinion granting prospective relief in the form of an injunction has indeed been mooted by Wiley’s graduation. It is our opinion, however, that a substantial controversy still exists between the parties.

Section 10 of the Official Procedure Governing the NCAA Enforcement Program contemplates possible retrospective action against a student-athlete who is ineligible under the terms of the NCAA Constitution, Bylaws or other legislation of the Association but who is permitted, to participate in intercollegiate competition under the protection of a court restraining order or injunction operative against the institution of the NCAA. Record, vol. 2, at 122-23.

Under this provision the NCAA can in its discretion vacate or strike the individual records and performances of the student-athlete, forfeit victories won by the team upon which the student-athlete played, and require the return of awards. For example, the Big Eight Conference, also a defendant in this action, has given notice of its intention to adjust Wiley’s points and vacate any places earned in Big Eight championships should this court find him to have been ineligible to participate. Brief for Appellee on Mootness, Exhibit A at 1.

As long as Wiley’s records and awards are at stake, this court can render a decision that will affect the rights of the litigants. See Uyeda v. Brooks, 348 F.2d 633 (6th Cir. 1965). DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1706, 40 L.Ed.2d 164 (1974), does not require a different result on these facts. The University of Washington Law School, a defendant in DeFunis’ admission policies challenge, warranted to the Supreme Court that DeFunis would be allowed to finish his final quarter of law school and receive his diploma regardless of the resolution of his case by the Court. Id. at 316, 94 S.Ct. 1706.

Consequently, DeFunis was assured of obtaining the entire and ultimate object of his suit without threat of retroactive penalty. Neither is Wiley’s appeal rendered moot by the subsequent amendment of the NCAA Constitution to take into account the nature of the BEOG program and the exceptional circumstances of BEOG recipients. “[Vjoluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.” DeFunis v. Odegaard, 416 U.S. at 318, 94 S.Ct. at 1706, quoting United States v. W. T.

Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). This is particularly true when, as here, the amendment does not fully comport with the relief sought by the plaintiff. See Wirtz v. Local 153, Glass Bottle Blowers Association, 389 U.S. 463, 474-75, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). SUBSTANTIAL FEDERAL QUESTION Finding this case not moot does not take us to the merits. We must first determine whether the interest Wiley is seeking to preserve is sufficiently substantial to invoke the cognizance of a federal court.

We observe that the case does not implicate the right to a college education, or even to participate in intercollegiate athletics. Wiley’s interest is instead the right to attend college and play sports under a certain favorable financing arrangement — i. e., a full athletic scholarship plus a full BEOG grant.

Federal district courts are granted original jurisdiction under 28 U.S.C. § 1343(3) to hear civil actions commenced “[t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights.” However, this grant of jurisdiction is tempered by a judicial doctrine which originated with an 1875 enactment requiring the dismissal of any claim which did not “really and substantially involve a dispute or controversy properly within the jurisdiction of [the district] court.” Act of March 3, 1875, ch. 137, § 5, 18 Stat. 472 (1875).

Recently, in Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), the Supreme Court traced the history and scope of the substantial federal question doctrine: Over the years this Court has repeatedly held that the federal courts are without power to entertain claims otherwise within their jurisdiction if they are “so atten-tuated and unsubstantial as to be absolutely devoid of merit,” Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 [24 S.Ct. 553, 557, 48 L.Ed. 795] (1904); “wholly insubstantial,” Bailey v.

Patterson, 369 U.S. 31, 33 [82 S.Ct. 549, 550-551, 7 L.Ed.2d 512] (1962); “obviously frivolous,” Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910); “plainly unsubstantial,” Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 [53 S.Ct. 549, 550, 77 L.Ed. 1062] (1933); or “no longer open to discussion,” McGilvra v. Ross, 215 U.S. 70, 80 [30 S.Ct. 27, 31, 54 L.Ed. 95] (1909). 415 U.S. at 536-37, 94 S.Ct. at 1378-1379.

According to Hagans, the doctrine will warrant dismissal when the claim is (1) wholly insubstantial or obviously frivolous, (2) foreclosed by prior cases which have settled the issue one way or another, or (3) so patently without merit as to require no meaningful consideration. Id. at 539—41, 94 S.Ct. 1372; see also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 70-71, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

This court has consistently found that, unless clearly defined constitutional principles are at issue, the suits of student-athletes displeased with high school athletic association or NCAA rules do not present substantial federal questions. See Colorado Seminary v. NCAA, 570 F.2d 320 (10th Cir. 1978); Albach v. Odle, 531 F.2d 983 (10th Cir. 1976); Oklahoma High School Athletic Association v. Bray, 321 F.2d 269 (10th Cir. 1963). In light of Hagans, language contained in these cases may be too sweeping if applied where access to an education or othe.r similarly substantial interest is at stake.

Nonetheless, we find neither Wiley’s personal interest nor the character of the alleged misclassification, even under Hagans, to require alteration of our cases. Accordingly, the case is dismissed. .

The NCAA Constitution, art. 3, § 1(f)(1), provided at the time the dispute arose: In the event [financial aid awarded by an institution] exceeds commonly accepted educational expenses (i. e., tuition and fees; room and board; required courses related supplies and books, and incidental expenses not in excess of fifteen dollars per month) during the undergraduate career of the recipient, it shall be considered “pay” for participation in intercollegiate athletics.

Section 4(

b) further stated: Where a student’s athletic ability is taken into consideration in any degree in awarding him unearned financial aid, . . . such aid combined with that received from the following and similar sources may not exceed [“commonly accepted educational expenses”]. The “sources” of financial aid that must be combined with an institutional athletic grant included: Governmental grants for educational purposes, except (

i) benefits received by student-athletes under the G.I. Bill of Rights; (ii) payments to student-athletes for participation in military reserve training programs [e. g., ROTC]; or (iii) payments by the U.S. Government under the terms of the War Orphans' Educational Program, Social Security Insurance Program or Non-Service-Connected Veteran’s Death Pension Program. Id. § 4(b)(2). “Commonly accepted educational expenses” at the University of Kansas were $2756. Since it was a non-excluded government grant, plaintiffs $1400 BEOG was “combined” with his athletic scholarship of $2621.

Under § 1(f)(1), the $1265 excess was “considered ‘pay’ for participation in intercollegiate athletics,” and plaintiff was declared ineligible for participation under § 1(a)(1). . The issue was not rational purpose, but rather one of over or under inclusive categories. The trial court concluded that the inclusion of BEOG grants not subject to university manipulation in the calculation of eligibility was not rationally related to the objective of preventing professionalism. The court was also impressed by the fact that other categories of government aid, similar to BEOG’s, were excluded from consideration.

It rejected the argument that, because these forms of excluded aid must be “earned” by the recipient or his parent, BEOG’s should be distinguished on that ground. . The Big Eight Conference is an athletic association composed of eight universities, including the University of Kansas, which operates under the purview of NCAA rules. . Other sanctions are authorized by

section 10 but are inapplicable here, their impact falling mainly upon the institution which allows an ineligible student-athlete to participate in competition. .

Article 3, § 4(b)(2) now exempts BEOG awards from the computation of the maximum allowable financial aid “provided that maximum when added to the BEOG award does not exceed the U.S. Office of Education-approved ‘cost of education’ at the member institution.” Reply Brief for Appellant at 23. . Wiley admits to several available options that would have permitted attending college. Wiley insists that “[a]s a student with complete need at the university, [he would be] entitled to $3800 aid” from various programs. Brief for Appellee at 48.

Indeed, Wiley could have remained on the university’s track team and under NCAA rules met his residual needs through federal educational loans or other student loans. See Brief for Appellee at 51. Wiley was also free under NCAA rules to obtain employment during periods either before or between his years in college. Finally, while it may have required an “austere” life style, Brief for Appel-lee at 48, Wiley could have survived in college on his athletic scholarship alone.

The athletic scholarship available to Wiley in 1975-76 included tuition, books, housing, food and, had Wiley chosen to do various jobs for the athletic department, $15.00 per month extra. Record, vol. 1, at 60; Brief for Appellee at 5.