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December 5, 1967

Arthur HEYMAN, and Mark Bimstein, and Arthur Brown, Individually, and Mark Bimstein and Arthur Brown, Partnership doing business as the New Jersey Americans of the American Basketball Association, Defendants

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 In this diversity action, plaintiff, a Connecticut corporation, has moved pursuant to Rule 65, F.R.Civ.P., for an injunction pendente lite to prevent defendant Arthur Heyman, a New York citizen, from playing professional basketball with the New Jersey Americans or with any professional basketball team other than the Hartford Capitols of the Eastern Professional Basketball League.

 Heyman, an All-American while at Duke University, was selected as one of the top 50 college basketball players of the century. Following his inability to succeed with two National Basketball Association teams, plaintiff purchased Heyman's contract from the Wilmington Blue Bombers of the Eastern League for $1500. On October 20, 1966, he entered into a contract with plaintiff (hereinafter "the Club") under the terms of which he agreed to furnish his services as a basketball player exclusively to the Club for the one-year period ending August 31, 1967, engaging in "as many games as requested by the club" and giving "his best and most skillful performance at all times", for which he was to be paid $125, plus $50 expenses, for each regular season and play-off game "actually played". The agreement acknowledged that Heyman possessed "special knowledge, skill and ability to play professional basketball, and [that] the services of the player are of unique character and require a high degree of efficiency which must be maintained at all times in order to meet the requirements of competition within the league, as well as to insure fulfillment of the demands of the public". The Club was given the option of renewing the contract with all of the terms, provisions and conditions for a one-year period, provided that the new salary should be agreed upon by the parties, or, in default of agreement, should be fixed by the Club. *fn1" In order to exercise its option, the Club was required to serve Heyman with written notice prior to August 31, 1967.

 At any time, the Club could give written notice terminating all of its liabilities and obligations under the contract. *fn2" Thereafter, Heyman would be free of his obligations under the contract and able "to negotiate a new contract for himself with any other club in the league."

 Heyman also agreed that, if he played professional basketball for another club or organization during the option period, without the Hartford Capitols' written consent, the Club would be entitled to commence proceedings to obtain injunctive relief. *fn3" Verbal contracts between the parties were not to bind either of them. The Club's rules and regulations, which were incorporated by reference, provided for "liquidated damages" in the amount of $100 per game for each regularly scheduled game in which the player failed to appear. *fn4"

 During the 1966-67 season, Heyman played in every one of the 28 games that the Hartford Capitols played. His sharpshooting ability (an average of 33 points per game) made him the League's highest scorer, the star of the Capitols and Hartford's darling; he was awarded a trophy as the most popular player on the team. In March 1967, the fickle hero learned that the American Basketball League was being formed, and a short time later, Heyman signed a contract to play for the New Jersey Americans during the 1967-68 season at a salary of $15,000 (Heyman's Affidavit, p. 4). Upon becoming aware of these events, on May 23, 1967, the Club, intending to give the written notice required to exercise its option, mailed Heyman a document identical to the former contract (Plf's Ex. C), except that the salary provision was increased to $150 per game and the renewal option was not inserted. Heyman did not sign the document. On the same date, the Club wrote to Messrs. Arthur Brown and Mark Bimstein, partners doing business as the New Jersey Americans, informing them of its renewal rights under the original contract with Heyman, and indicating a willingness to settle the matter on an amicable basis (Def's Ex. A). However, whatever negotiations took place fell through, and plaintiff on October 26, 1967 commenced its suit by way of show cause order seeking preliminary injunctive relief.

 Plaintiff's motion is denied for the reason that while it appears that plaintiff may be entitled to damages occasioned by defendants' breach of contract, this Court believes that it ought not exercise the powers of the Chancellor because the terms and provisions of this contract are too harsh and one-sided to permit equitable enforcement.

 Injunctive relief that has the effect of precluding an athlete from appearing before the public is an extraordinary remedy, to be granted only where the equities favor the plaintiff, and the injury that will be suffered by the plaintiff upon denial of relief is irreparable and outweighs the harm to the defendant that will be caused by the granting of relief. Machen v. Johansson, 174 F. Supp. 522, 527 (S.D.N.Y.1959) (Kaufman, J.). Although other courts have granted negative injunctive relief in similar circumstances, e.g., Winnipeg Rugby Football Club v. Freeman, 140 F. Supp. 365 (N.D.Ohio 1955); Lemat Corp. v. Barry, No. 580287 (Cal.Super.Ct.1967); Philadelphia Ball Club v. Lajoie, 202 Pa. 210, 51 A. 973 (1902), the law in this District and in New York is that each case is sui generis and decisions hinge upon a careful analysis of the contractual terms. *fn5" Bethlehem Engineering Export Co. v. Christie, 105 F.2d 933, 125 A.L.R. 1441 (2d Cir. 1939) (L. Hand, J.); American League Baseball Club v. Chase, 86 Misc. 441, 149 N.Y.S. 6 (Sup. Ct. Erie Co. 1914).

 The primary reason for denying relief is the fact that plaintiff seeks to enforce a contract that purports to bind defendant for a one-year period and at the same time permit plaintiff to terminate at will. While this Court does not adhere to a wooden mutuality rule, the existence of a provision entitling plaintiff to end the contract whenever it chooses is an important factor in determining whether injunctive relief is appropriate. Kenyon v. Weissberg, 240 F. 536, 538 (S.D.N.Y.1917). Furthermore, Heyman is entitled as a matter of right to engage only in those games where his services are "requested by the Club" (Par. 6(A)). Since he is compensable under the contract only for "each game actually played," it is questionable whether he would be entitled to compensation for games in which he did not "actually" play, or at least dress. *fn6" For instance, if he were injured (a distinct occupational hazard) or became ill, he would not be entitled to any compensation, although he would be obliged to play with the Club when he recovered. In addition, although the Hartford Capitols played 28 games during the 1966-67 season, and expect to play 32 games during the 1967-68 season, there is no provision in the contract requiring that a minimum number of games be played. If, for example, a 10-game season were scheduled, Heyman would be limited to an even more meager annual salary than he had been earning, cf. Chapin v. Powers, 73 N.Y.S.2d 854 (Sup.Ct.N.Y.Co.1947) (Lumbard, J.) (injunctive relief denied where salary of $50 per performance called into serious question opera singer's unique services), and he would be unable to earn additional income because the contract does not permit him to play basketball and advance himself in his trade during those periods when the Hartford Capitols are not playing basketball.

 We recognize that plaintiff did not, during Heyman's one year with it, invoke any of the foregoing one-sided provisions to his harm, and that plaintiff contemplated another harmonious season in which, if all went well, the basketball player would continue as a star, possibly receiving as much as $6550 for the 1966-67 season and up to $8500 if the Capitols qualified for an eight-game playoff. Plaintiff also enabled defendant to supplement his income by finding for him a job as an insurance agent in Hartford. These considerations, however, are insufficient to justify giving plaintiff the right to equitable enforcement of a contract which could be used by it to prevent defendant from earning a living wage from his basketball court activities.

 Thus, this Court is constrained, in the exercise of its discretion, to stay its hand and deny negative injunctive relief, Kenyon v. Weissberg, supra, thereby leaving plaintiff to pursue its remedy at law for damages. Although I am cognizant of the interest in giving fledgling organizations, such as the plaintiff in this case, sufficient protection to enable them to compete with their well-entrenched rivals, such as the National Basketball Association, enforcement by way of negative injunctive relief of onesided bargains such as these would further this interest only at the expense of one who has even less economic power.

 The foregoing will constitute the findings of fact and conclusions of law under Rule 52(a), F.R.C.P.

 Motion ...

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