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September 20, 1990


The opinion of the court was delivered by: WISEMAN



 The facts leading to this lawsuit are not in dispute. Bradford L. Gaines was a football player for Vanderbilt during the 1986-89 football seasons. He is currently enrolled at Vanderbilt to complete the thirteen additional semester hours he needs to graduate. Gaines has attended Vanderbilt on a full athletic scholarship.

 In late March of 1990, Gaines submitted a Petition For Special Eligibility and Renunciation of College Eligibility to the National Football League ("NFL") declaring himself eligible for the NFL draft to be conducted on April 22-23, 1990. The paragraph immediately preceding his signature on the Petition contained the following language: "I HEREBY IRREVOCABLY RENOUNCE ANY AND ALL REMAINING COLLEGE FOOTBALL ELIGIBILITY I MAY HAVE. I WISH TO BE ELIGIBLE FOR THE NFL DRAFT SCHEDULED FOR APRIL 22-23, 1990."

 On April 7-8, 1990, Gaines attended a scouting combine in Indianapolis, Indiana. The combine gave Gaines and other college football players a chance to try out before the scouts for various pro football teams. Gaines had no other contact with any NFL team prior to the draft, and he was not selected by any team during any round of the draft.

 Shortly after the draft, Gaines was contacted by a representative of one NFL team regarding a possible free agency contract with that team. Mr. Tim Greer, who serves as the agent for Gaines' older brother, a football player in the Canadian Football League ("CFL"), briefly discussed this possible free agency contract with the NFL team. However, the next day the team let Gaines know that they were no longer interested in signing him to a free agency contract. Subsequently, Mr. Greer phoned numerous teams in the NFL and the CFL on Gaines' behalf, but Gaines has never entered into any contract with any professional team. Nor has Greer received any compensation of any kind from Gaines. Additionally, Greer has never compensated Gaines in any way.

 As a result of NCAA Rules 12.1.1(f),, and 12.3.1, Gaines is now ineligible to complete his fourth year of eligibility as a football player at Vanderbilt. Rule 12.1.1(f) *fn1" provides that an athlete loses his amateur status when he enters a professional draft or enters into an agreement with an agent to negotiate a professional contract. Rule, *fn2" commonly known as the "no-draft" rule, makes a player ineligible for participation in a particular intercollegiate sport when he or she asks to be placed on the draft list or supplemental draft list of a professional league in that sport. Rule 12.3.1, *fn3" commonly known as the "no-agent" rule, makes any player ineligible for participation in any future intercollegiate sport in which the player agrees, orally or in writing, to be represented by an agent for the purposes of marketing the player's abilities in the sport. This Rule applies even if the player receives no money or financial benefit of any kind from the agent, even if the agent is a family member or a close family friend, and even if the agent has not charged and agrees not to charge the player any fee.


 In his Memorandum of Law in support of his application for a preliminary injunction, Gaines argues that the Defendants, by preventing college football players like himself from returning to college play for which they are otherwise eligible after an unsuccessful bid in the NFL draft, have engaged in an unlawful exercise of monopoly power in violation of 15 U.S.C. § 2. *fn4" Gaines cites 15 U.S.C. § 26, which provides that any party threatened with loss or damage by a violation of the antitrust laws may seek injunctive relief against the threatened conduct, as the basis for his injunction suit against the Defendants.

 The parties agree on the four relevant factors this Court must consider in deciding whether to issue a preliminary injunction:

(1) whether a substantial likelihood exists that the party seeking the preliminary relief ultimately will succeed on the merits;
(2) whether it is likely that the party seeking preliminary relief will suffer immediate and irreparable harm if the relief is not granted;
(3) whether granting the relief would cause substantial harm to the other parties; and
(4) whether granting the preliminary relief would protect the public interest.

 American Motors Sales Corp. v. Runke, 708 F.2d 202, 205 (6th Cir. 1983). The parties also agree that the plaintiff bears the burden of proving each of these elements. Although the case law is clear that this Court should apply each of the four factors in a flexible manner, the likelihood of success on the merits factor is one of the most significant factors. Gibson v. Sallee, 648 F. Supp. 54, 56 (M.D.Tenn. 1986) (citing Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978)).

 This Court recognizes that the plaintiff need only raise "questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation" to satisfy the likelihood of success on the merits element. Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978); Brandeis Machinery & Supply Corp. v. Barber-Greene Co., 503 F.2d 503, 505 (6th Cir. 1974). However, as elaborated below, this Court has concluded that Gaines has not raised any question on the merits of his § 2 claim which presents a "fair ground for litigation." Consequently, because Gaines has failed to show a substantial likelihood that he ultimately will succeed on the merits, this Court must deny his application for a preliminary injunction.

 Before analyzing the likelihood of success on the merits factor, however, it is important to point out the nature of the injunctive relief sought by Mr. Gaines and to emphasize the effect of this relief on the standards this Court must apply in determining whether to issue the injunction. Despite the fact that Gaines requested relief in language suggesting the injunction would be merely prohibitory, *fn5" it is clear to this Court that Gaines really is seeking a mandatory injunction. As Defendant NCAA correctly argued (see NCAA's Memorandum In Opposition To Plaintiff's Request For Preliminary Injunction, p. 6 n. 4), Gaines seeks a preliminary injunction to force the NCAA and Vanderbilt to do an affirmative act -- the NCAA to restore his eligibility and Vanderbilt to allow him to participate in its football program this season -- not to preserve the status quo.

 Because Gaines is requesting mandatory relief which would change the status quo, he bears an especially heavy burden in convincing the Court that an injunction is appropriate. The United States Court of Appeals for the Sixth Circuit has explained that where "the relief prayed for . . . is much broader than a mere restraining order preserving the status quo" and there is "sufficient doubt about whether appellant will ultimately prevail", granting a mandatory injunction is inadvisable. See Dunn v. Retail Clerks International Ass'n, Local 1529, 299 F.2d 873 (6th Cir. 1962). This Court agrees that it is inappropriate to give a party relief on the "front end" where sufficient doubt exists as ...

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