Appeal from a judgment of the United States District Court for the District of Connecticut (Blumenfeld, J .) granting summary judgment in favor of the defendant association. Affirmed.
Before Lumbard, Mansfield and Meskill, Circuit Judges.
This controversy arises out of two stock car races held in New York and Connecticut in late 1973. John Koszela, Jr., the owner of the race car in question, and Carl "Bugs" Stevens, his driver, claim in this diversity action that the failure of the defendant, National Association of Stock Car Auto Racing, Inc. (NASCAR), to adhere to its own rules and regulations governing race procedure and protest adjudication wrongfully deprived them of victories in both of the races. The United States District Court for the District of Connecticut, Blumenfeld, J., granted summary judgment in favor of NASCAR and the plaintiffs appealed. We affirm.
Construing the pleadings and supporting papers in favor of the plaintiffs, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962) (per curiam), the district court concluded that a reasonable jury could have found the following facts.
NASCAR, a for-profit corporation organized under the laws of Florida, promotes and sanctions stock car racing throughout the United States, including Connecticut and New York. In furtherance of its sanctioning function, NASCAR promulgates a number of rules governing nearly every facet of stock car racing. Participation in NASCAR-sanctioned events requires membership in NASCAR and compliance with its rules. The court found that, as a result of its sanctioning and licensing activities, NASCAR dominates stock car racing in this country and that "(t)hose who want seriously to participate in the sport "join' NASCAR and pay annual fees for "membership' and licensing." This membership, however, does not carry with it a right to share in the control of NASCAR's affairs or to elect NASCAR officers. Membership merely entitles the member to seek a license to participate in NASCAR-sanctioned events.
Plaintiff John Koszela, Jr., a citizen of Rhode Island and a member of NASCAR, owns racing cars and has been involved in stock car racing for over 20 years. He earns substantial sums from prize money, commercial endorsements based upon his racing record, and the sale of racing equipment. Plaintiff Carl "Bugs" Stevens, a citizen of Massachusetts and also a member of NASCAR, was Koszela's race car driver during the period in question.
On June 23, 1973, the plaintiffs participated in a 100-lap, NASCAR-sanctioned race at Shangri-La Speedway in Owego, New York. Stevens, driving Koszela's car, trailed in second place for most of the race. On the 94th or 95th lap, Stevens passed the leader, Richie Evans, but before the lap was completed, the yellow caution flag was displayed, requiring the cars to hold their positions and proceed with caution until the green flag is again shown. While the cars were "running" under the yellow flag, a track official directed Evans to pull back in front of Stevens. Immediately, thereafter, the green flag was displayed, the last five laps were raced, and Evans received the checkered flag,*fn1 with Stevens close behind. After the race, Stevens complained that the two lead cars should not have been realigned. After a meeting between Stevens, Evans, and the third-place finisher, in which all seemed to agree that the realigning was improper, the Chief Steward of the track, Harold Keck, ruled that Stevens was the winner and Evans handed the trophy to Stevens. Shortly thereafter, however, Evans complained that the repositioning was proper and that he was the rightful winner. Keck, uncertain what to do, left the first and second place boxes empty and referred the controversy and the prize money to NASCAR headquarters in Daytona Beach, Florida.
NASCAR referred the matter to Competition Director Lin Kuchler, who ruled that Evans was the winner, since (1) Evans was placed in the lead by a track official and therefore had no choice, (2) Evans was the first car over the line on the 100th lap (the "checkered flag rule"), and (3) Evans could not be penalized by a lap or time penalty after the completion of the race. Koszela, who had been unaware that the Shangri-La controversy was being decided, sought reconsideration of the decision and a chance to present his side of the story. Kuchler, however, reaffirmed his decision and notified Koszela of Stevens' right to appeal the decision to the National Stock Car Racing Commission in Daytona Beach. The plaintiffs did appeal and on November 7, 1973, the Commission held a hearing to consider the dispute.
At the hearing, Koszela and his lawyer were not allowed to be present while other witnesses testified and were not allowed to cross-examine. Koszela objected to these rules, but agreed to abide by them. During the course of the hearing, the Commission members heard from both Chief Steward Keck and Koszela. Keck testified as to what local track rules were in effect at Shangri-La that day and what he could recall had occurred. Koszela, who had not been present at the Shangri-La race, testified as to what Stevens and others told him had taken place. After much testimony had been given, a question arose concerning a local track rule.*fn2 A Commission member telephoned Jerry Bowen, the official NASCAR starter at Shangri-La, who said that he personally had realigned the cars "because of procedures at the driver's meeting" and "because of the fact that when the yellow flag came out, Bugs was not past Richie enough to (find) basic reason to put Bugs in the lead " J. App. 163. Even though the latter reason for realigning was contradicted by the testimony of Keck and Koszela, the Commission ruled that Evans ...