By Tim Leeds/Havre Daily Newsemail@example.com
A state District Court judge Friday declined to issue a restraining order that would have allowed a Big Sandy senior to play in the Class C state championship football game.
"The court is not moved to grant a temporary restraining order and denies it," Judge David Rice said.
Mason Ophus filed a request for a restraining order shortly before 5 p.m. Thursday.
Ophus was ejected from the semifinal game in Wibaux Nov. 9 after officials assessed two unsportsmanlike conduct penalties for his actions in the game. Montana High School Association rules state that a player expelled for two unsportsmanlike conduct penalties cannot compete in the next scheduled competition - for Ophus, the Class C state football championship against Drummond on Saturday.
The request for a restraining order said Ophus' constitutional right to due process would be violated if he was not granted an appeal of his ineligibility for the championship game, and that he would "suffer irreparable harm if he is not allowed to participate in the state championship."
Rice held a hearing at 11 a.m. Friday with attorney Brian Lilletvedt, representing Ophus, in the courtroom at the Hill County Courthouse and Jock Anderson, representing the high school association, participating from Helena by telephone.
Rice said that although the request was for a temporary order reinstating Ophus' eligibility, the court's action Friday would end the case.
"A decision today settles this action. If the court lets Mr. Ophus play in this game, he has won. If not, the game goes on without him," he said.
Lilletvedt focused on the first unsportsmanlike conduct call in the Wibaux game. In the first quarter of the game, Ophus intercepted a pass and ran it in for a touchdown. A referee called Ophus for unsportsmanlike conduct and called the touchdown back. The referee said Ophus taunted the other team by holding the ball away from his body while he ran.
In the third quarter, both Ophus and a Wibaux player received unsportsmanlike conduct calls when they were entangled on the field at the end of a play.
Lilletvedt said Ophus was not contesting the expulsion from the Wibaux game. He was contesting being ineligible for another game without having the right to appeal the decision, Lilletvedt said.
MHSA rules state that students can appeal decisions about eligibility within 48 hours, but that decisions made by officials on competition fields will not be overturned. Lilletvedt said Ophus didn't appeal to MHSA because he knew it would not overturn the unsportsmanlike conduct calls.
Anderson said that rule is universal to sports.
"Calls, once made, are simply not subject to being overturned by MHSA. I would submit they are also not subject to being overturned by the judiciary," he said. "In the principal of sports it doesn't matter how bad the call is. If the (official) made that call in good faith it is the call of the game."
He said the court being asked to make a decision was unprecedented.
"We can massage the facts and rearrange them, but ultimately what is being asked for here is for the judiciary to step in and review the call and determine if the call is, quote, arbitrary and capricious," he said.
Lilletvedt said the issue was the impact on future games. The state constitution and MHSA rules guarantee athletes the right to due process, but Ophus couldn't get the decision overturned by the MHSA, he said.
"He has no remedy even if the call by the official is unwarranted," Lilletvedt said. "Somewhere somebody has to be held accountable for the decisions officials make on the field."
Anderson countered that Ophus knew the rules and should have been more careful.
"He wants accountability. I would suggest to the court it is the student who should be accountable," Anderson said.
Lilletvedt also argued that Ophus would be irreparably harmed if he were not allowed to play. Ophus, who played both tight end and defensive end for the Pioneers, is being recruited by college football teams. Not being able to play in the championship game could affect his chances for scholarships, Lilletvedt said.
Rice said he disagreed.
"If he's played all year and impressed those schools, they probably will still be impressed," he said. "The court finds that one football game, not even a championship game, will probably not affect his chance to get a scholarship."
Rice said he would not look at the factual matters of the case, and declined to view a tape of the first unsportsmanlike conduct call against Ophus. His view of the hearing was that it should decide whether there were grounds to grant a preliminary injunction leading to a hearing of the facts of the case, he said.
Rice said he didn't see that the suspension from play without a hearing violated Ophus' constitutional rights. Participation in extracurricular activities is a privilege, not a right, he said.
The schools and associations make the decisions about who is eligible to play, he said.
"The court is not going to get into the middle of those controversies," Rice said.