                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-1997

Schulz v. US Boxing Assn
Precedential or Non-Precedential:

Docket 96-5200,96-5239




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          _______________

                      Nos. 96-5200 and 96-5239
                          _______________


          AXEL SCHULZ; CEDRIC KUSHNER PROMOTIONS, LTD.;
              DER FIRMER SAUERLAND PROMOTION, A.G.;
                       WILFRIED SAUERLAND

                                 v.

     UNITED STATES BOXING ASSOCIATION; INTERNATIONAL BOXING
FEDERATION, a Division Thereof; FRANCOIS BOTHA; MICHAEL MOORER,

                          Francois Botha,
                                  Appellant in 96-5200

    United States Boxing Association and International Boxing
                           Federation,
                                Appellant in 96-5239


                           ______________

                     On Appeal from an Order
               of the United States District Court
                  for the District of New Jersey
                Granting a Preliminary Injunction

                          D.C. No. 96-1076
                           _______________


                      Argued October 30, 1996

           Before:    SCIRICA and COWEN, Circuit Judges,
                     and POLLAK, District Judge*
                      (Filed January 24, 1997)




* Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Eckley M. Keach (argued)
Oscar B. Goodman
Goodman, Chesnoff & Keach
520 South Fourth Street
Las Vegas, Nevada 89101

Rosemary Alito
McCarter & English
Four Gateway Center
100 Mulberry Street
Newark, New Jersey 07102
  Attorneys for Botha

Walter R. Stone (argued)
Adler, Pollock & Sheehan, Inc.
2300 Hospital Trust Tower
Providence, Rhode Island 02903

Linda P. Torres
Carpenter, Bennett & Morrissey
Three Gateway Center
100 Mulberry Street
Newark, New Jersey 07102
  Attorneys for United States Boxing Association
  and International Boxing Federation
Joel J. Reinfeld (argued)
171 East Ridgewood Avenue
P.O. Box 297
Ridgewood, New Jersey 07451
  Attorney for Appellees in 96-5200

Jay Goldberg, P.C.
250 Park Avenue, 14th Floor
New York, New York 10177
  Attorneys for Appellees in 96-5239

Patrick C. English (argued)
Dines & English
685 Van Houten Avenue
Clifton, New Jersey 07013
  Attorneys for Appellee Moorer

          ______________

       OPINION OF THE COURT
          _______________
POLLAK, District Judge.

     This case involves a court's authority to order a private

organization that sponsors prizefights to strip a champion of his

title.   Defendant Francois Botha defeated plaintiff Axel Schulz

in a fight for the International Boxing Federation (IBF)

heavyweight championship.    Botha then tested positive for use of

steroids.   After a hearing, the IBF declined to disqualify Botha,

allowing him to retain his IBF crown.     Schulz sued and the

district court issued a preliminary injunction mandating that the

IBF disqualify Botha.     Botha, the IBF, and the IBF's parent

United States Boxing Association (USBA) now appeal the grant of

the preliminary injunction.


                            I.   Background

     Three major bodies regulate and promote the sport of

professional boxing:    the World Boxing Association, the World

Boxing Council, and the International Boxing Federation with its

parent United States Boxing Association.      Each of these

organizations classifies boxers by weight class, ranks the boxers

within each class, and, for a participation fee, sponsors -- or

"sanctions" -- both championship and non-championship bouts.      The

IBF was formed to provide a mechanism through which the United

States Boxing Association, a national organization, could crown

world champions.   According to its literature, the IBF was

organized "by representatives of various athletic commissions and

other interested persons for the purpose of obtaining greater

efficiency and uniformity in the supervision of professional
boxing and to encourage and assist professional boxing."        App.

274.

       The IBF has promulgated a set of rules and regulations

governing IBF-sanctioned bouts.       Rule 20, entitled "Anti-doping,"

requires boxers to provide a urine specimen after each fight to

be tested for, among other substances, anabolic steroids and pain

killers.    This rule adds that "[s]hould that specimen prove

positive, disciplinary action will follow."       App. 284.   In

addition, Rule 26, entitled "Penalties," provides as follows:
Should anyone be found in violation of the rules and
     regulations of the IBF or USBA by any Committees
     impaneled by the President, they may be subject to
     fine, forfeiture of monies, vacation of title or any
     other discipline directed by the Committee and approved
     by the President for the good of the organization.


App. 291.

       On December 9, 1995, Francois Botha of South Africa fought

Axel Schulz of Germany in Stuttgart for the vacant IBF

heavyweight championship.     Before the bout, each fighter paid the

IBF more than $45,000 in "sanctioning fees" and other fees.        Each

boxer's representative also signed a document entitled "Rules for

IBF/USBA & Intercontinental Championship Bouts" ("Bout Rules").

 The Bout Rules were also signed by Robert W. Lee, president of

the IBF/USBA, and by a representative of the local boxing

commission, the German Boxing Federation.      The Bout Rules begin

by stating that "[t]he Championship fight will be governed by the

rules and regulations of the IBF/USBA and local Boxing Commission

. . . ."    App. 83.   The Bout Rules then set out four pages of


                                  2
detailed requirements.    The last of these is entitled "Anti-

Doping" and reads as follows:
Each boxer is required to take a urinalysis immediately
     following the bout. Said specimen must be taken with a
     Ringside Physician and Commission Inspector on hand.
     The specimens should be taken in a plastic container
     and properly marked by the physician and boxer. It
     should be divided into two parts for each boxer, with
     bottles [sic] #1 being submitted to the laboratory.
     Should either boxer's specimen be positive for drugs,
     etc., all parties will be notified and another test
     made at a laboratory selected by the boxer and the
     local Commission. Should that specimen prove positive,
     disqualification and disciplinary action will follow.
     Specimens will be tested for the following drugs:


There follows a list that includes anabolic steroids and pain

killers.    App. 87.

     An identical "Anti-doping" rule appears in an IBF/USBA

document titled "Ring Officials Guide and Medical Seminar

Outline."    This Guide's introduction states that "[t]he major

purpose of this Ring Officials Guide is to establish criteria to

be followed in all IBF/USBA boxing matches so that uniformity in

actions, responsibilities, duties and total performance of ring

Officials can be attained . . . ."    App. 65.

     In the Stuttgart fight, Botha defeated Schulz in a split

decision to win the IBF heavyweight championship.    Each fighter

then gave a urine specimen.    Botha's specimen was sent to a

German laboratory, where it tested positive for anabolic

steroids.    In accord with the anti-doping Bout Rule, Botha was

then allowed to choose where the sample would be tested a second

time; his choice, the UCLA Olympic Analytical Laboratory, also



                                 3
found anabolic steroids in his urine.    During this period, Botha

vigorously denied using steroids.

     The German Boxing Federation -- the local boxing commission

that signed the Bout Rules -- recommended on February 15, 1996

that the IBF disqualify Botha and that Schulz be designated IBF

world champion.   The Federation also barred all the boxers,

promoters, referees, and trainers whom it licensed from taking

part in Botha's bouts for two years.

     On Saturday, February 24, 1996, upwards of two months after

the Stuttgart bout, the IBF held a hearing in Elizabeth, New

Jersey, to determine what action would be taken as a result of

the positive steroid tests.1   The hearing was conducted by the

IBF's Executive Committee and its subcommittee, the Championship

Committee; the Championship Committee was to make a

recommendation to the Executive Committee, which had final

authority.   All persons having an interest in the outcome of the

Botha/Schulz bout were notified of the hearing and given an

opportunity to be heard.   The committees heard testimony from

Botha, from his attorney and two of his doctors, and from

representatives of Schulz, the German Boxing Federation, and

Michael Moorer.

     Moorer was at the time a former IBF and World Boxing

Association heavyweight champion.    In September 1995, Moorer had


1. Presumably the hearing was held in New Jersey because the
IBF's principal place of business is in that state.



                                 4
sued the IBF in federal court in New Jersey over the IBF's

rankings, seeking to block the Botha/Schulz bout because, he

argued, he was entitled to fight next for the title.    A

settlement agreement signed later that month provided that Moorer

would dismiss his action in return for a guarantee that he would,

within 180 days of the Botha/Schulz bout, fight the winner for

the IBF title.   At the IBF's February 24, 1996 hearing, Moorer's

counsel reminded the IBF of its agreement with Moorer.

     Botha's testimony at the hearing was a surprise:    he

admitted for the first time that he had taken the drug found in

his urine.   He argued, however, that he had not known that what

he took was a steroid.   Botha stated that he had injured his arm

in 1988 and his South African doctor had given him two

prescriptions for the pain and swelling.   In March 1995, after

Botha had moved to California, his South African doctor had sent

him a third medication for his continuing arm stiffness, which

was the steroid (Deca Durabolin) that turned up in his urine.

(There is a good deal of controversy about the steroids' possible

impact on Botha's capacity as a fighter, but the controversy --

the main elements of which are summarized in the annexed

footnote2 -- does not appear to bear upon the issue before this

2.   At its February hearing, the IBF heard testimony from two of
Botha's California doctors -- neither of them pharmacologists --
that the drugs had no effect on the outcome of the fight.
     The principal evidence that the drugs prescribed for Botha
were taken in a deliberate attempt to increase his muscle mass is
an affidavit of Dr. Robert Voy, an expert in drug use by
athletes. This affidavit, submitted by Moorer's counsel, was not
before the IBF at its hearing but was before the district court


                                5
court, namely the appropriateness of the district court's

preliminary injunction.)

     After hearing all the testimony, the IBF Championship and

Executive Committees recessed to deliberate.   When they returned,

IBF President Robert W. Lee announced the IBF's decision:
     We will not vacate the title of Francois Botha. There
     are mitigating circumstances which cause us to feel
     that we should not vacate the title of Francois Botha.

     However, what we will do is we will fine Francois Botha
     in the amount of $50,000 for having taken these
     substances into his system that were in violation of
     our rules.
     Secondly, we will order a rematch between Francois
     Botha and Axel Schulz to take place within 180 days of
     today or not later than August 24, 1996.
     Thirty days prior to that fight taking place Francois
     Botha must give a urinalysis to show that he no longer
     has these substances in his system.
     The winner between Francois Botha and Axel Schulz will
     be obliged to fight Michael Moorer within 120 days of
     the date that they fight . . . .


App. 210-11.3   This announcement triggered vehement protests in

at the preliminary injunction hearing. The affidavit provides
the following information: The two drugs prescribed for Botha in
South Africa were anabolic steroids. Botha's use of the two
steroids together indicates that they were taken in a fashion
known as "stacking," which is a technique to prevent
"aromatization," a process by which the body rids itself of the
drugs. This technique is used only by experienced steroid users
to enhance their performance. Finally, Deca Durabolin -- the
only steroid found in Botha's urine -- has very few legitimate
medical uses; it does not, for example, relieve pain. No
evidence was presented to the district court that Botha had any
of the conditions that would indicate legitimate use of the
steroid.

3. At the hearing, the IBF did not explain the "mitigating
circumstances" that led it to decline to disqualify Botha. After
this suit was initiated, IBF President Lee stated in a
"certification" submitted to the district court that the
mitigating circumstances were: (1) that the steroid was
prescribed by a doctor for a 1988 injury; (2) that Botha admitted


                                 6
the hearing room, but, after some wrangling, the hearing was

adjourned with the IBF's decision unchanged.

     Over the weekend, however, the members of the IBF Executive

Committee conferred over the phone.   On Monday, February 26, the

Executive Committee issued an amended ruling in writing, stating

that its members had not previously given sufficient

consideration to the IBF's commitment to Moorer.4   The amended

ruling preserved the $50,000 fine against Botha but restructured

the scheduled fights:   Moorer would challenge Botha for the title

before June 9, 1996, with Schulz to fight the winner of this bout

within 120 days.

     Schulz, together with his promoters Cedric Kushner

Promotions and Der Firmer Sauerland Promotion, and his manager

Wilfried Sauerland, brought suit in the District of New Jersey,

naming the USBA and IBF as defendants, with Botha and Moorer

joined as necessary defendants because their rights were

affected.   Moorer filed a counterclaim and crossclaim seeking

specific performance of his settlement agreement with the IBF.


taking the medication but denied knowing that it was a steroid;
(3) that Botha exhibited none of the typical signs of prolonged
steroid use; (4) that the Executive Committee believed the
steroid use did not appear to have affected the outcome of the
fight; (5) that Botha had ceased taking the medication; and (6)
that the championship should, in the Committee's view, be decided
in the ring rather than on the sidelines. App. 298.

4. Moorer apparently relied on the settlement agreement with the
IBF, refusing a match with George Foreman that would have earned
him $2.7 million in order to be available for his title bout with
the winner of the Botha/Schulz fight. App. 340.



                                7
The district court had jurisdiction pursuant to 28 U.S.C. §

1332.5

     After a hearing, the district court found that Schulz and

his co-plaintiffs had met the criteria for preliminary injunctive

relief.6   On March 29, 1996, the court accordingly ordered that

(1) the USBA and IBF "amend their decision of February 26, 1996

so as to disqualify Francois Botha"; (2) Moorer and Schulz

"proceed to a bout prior to June 9, 1996 as set forth in the

September 19, 1995 settlement agreement" between Moorer and the

USBA and IBF; (3) the USBA and IBF "determine the consequences of

the order with respect to the ratings of the various boxers in

conjunction with the IBF rules"; and (4) plaintiffs post a

$100,000 bond.

     The IBF/USBA and Botha separately appeal the issuance of the

preliminary injunction, which Schulz and Moorer seek to have


5. Plaintiffs Schulz and Sauerland are citizens of Germany,
Cedric Kushner Promotions, Ltd. is incorporated and headquartered
in New York, and Der Firmer Sauerland Promotion, A.G., is
incorporated and headquartered in Switzerland. Defendant Botha
is a South African citizen living in California. Defendant
Moorer is citizen of Florida. The USBA is incorporated in
Michigan and headquartered in New Jersey. The IBF, originally a
voluntary non-profit corporation organized under the laws of
Rhode Island, became a for-profit Oregon corporation in 1986; its
headquarters are in New Jersey.

6. In district courts within this circuit, "[i]n order to
support a preliminary injunction, plaintiff must show both a
likelihood of success on the merits and a probability of
irreparable harm. Additionally, the district court should
consider the effect of the issuance of a preliminary injunction
on other interested persons and the public interest." Bradley v.
Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).



                                 8
upheld.    This court has jurisdiction pursuant to 28 U.S.C. §

1292.    A motions panel of this court denied the IBF's motion for

a stay and Botha's motion for an expedited appeal.

     On June 22, 1996, Moorer and Schulz fought the bout mandated

by the preliminary injunction.7    Moorer won, regaining the IBF

championship belt.    On November 9, 1996 (some ten days after the

argument of this appeal), Moorer fought Botha, successfully

defending his title with a twelfth-round TKO.


                            II.   Analysis

     We review a district court's ruling on a preliminary

injunction to determine if there has been an abuse of discretion,

an error of law, or a clear mistake of fact.    See Louis Vuitton

v. White, 945 F.2d 569, 574 (3d Cir. 1991).     In this appeal, the

parties dispute whether the district judge was correct in finding

that Schulz and his co-plaintiffs (hereinafter "Schulz") were

likely to succeed on the merits of their claim.     No party

challenges the district court's findings regarding irreparable

harm or the effect of the injunction on third parties and the

public interest.

                                  A.

        Without discussing specific precedents, the district court

summarized the law governing this case as follows:

7. "Moorer Beats Schulz to Reclaim IBF Crown," Phila. Inquirer,
June 23, 1996, at D3.



                                  9
     We are dealing here with a private association, albeit
     one in which the public has a substantial interest.
     Under New Jersey law a private association has the
     right to adopt, administer and interpret its internal
     regulations and is granted substantial deference when
     judicial review is sought. When, however, an
     association departs from its own prescribed procedures,
     or where its actions are in total violation of its own
     rules and regulations, a court will intervene to
     protect the property rights and other substantial
     interests of those who are subject to its rules.
     . . .
     The critical question is whether the IBF violated its
     rules when it failed to disqualify Botha for his drug
     use.


App. 533-34.

     After reviewing the Bout Rules and the IBF rules and

regulations, the district court concluded:
     It is abundantly clear to me that IBF and USBA have
     established a policy that has been made crystal clear
     to the boxers who fight under their aegis that no boxer
     is to take the drugs proscribed in the rules, and that
     if a boxer does take such drugs he will be disqualified
     regardless of what other disciplines may be imposed.
     The broad general language which appears in Rule 26
     cannot trump the unmistakably clear language of the
     Bout Rules which the IBF and the boxers sign and the
     Ring Officials Guide which IBF and USBA promulgate. It
     is hard to imagine how the two organizations can adopt
     any other policy if they were to retain the confidence
     of the public and the fighting profession.


App. 536-37.   On this basis, the district court concluded that

Schulz had a high likelihood of succeeding on the merits.

                                B.

     With the opinion of the district court as predicate, we

proceed to examine whether the court had the authority to set

aside the IBF's decision not to disqualify Botha.   As the court

properly observed, the courts of New Jersey (and like courts in



                                10
other jurisdictions) will ordinarily defer to the internal

decisions of private organizations.   Indeed, "[c]ourts have been

understandably reluctant to interfere with the internal affairs

of [private] associations and their reluctance has ordinarily

promoted the health of society."    Falcone v. Middlesex County

Medical Society, 170 A.2d 791, 796 (N.J. 1961).8

                               1.

     In Rutledge v. Gulian, 459 A.2d 680 (N.J. 1983), the New

Jersey Supreme Court identified the limited occasions when a

court may set aside the determinations of private organizations

regarding discipline of their members.9   Rutledge was a former

8. All parties agree that New Jersey law applies to this action
challenging a decision made at a hearing held in New Jersey by
the IBF, which is headquartered in New Jersey. Indeed, the IBF's
rules and regulations specify that in litigation involving the
activities of the IBF, "the laws of the State of Rhode Island
and/or New Jersey shall apply." App. 285. (As previously
mentioned, the IBF was originally incorporated in Rhode Island.
See supra note 5.)

9.   The district court and the parties have treated this case as
one involving judicial intervention in the affairs of a private
voluntary organization. Within this framework, Rutledge controls
our decision in this case. We observe, however, that the IBF is
more than simply a voluntary social association: it is a profit-
making corporation which wields substantial economic power over
the careers of boxers fighting under its aegis. Moreover, as the
district court noted, the public has a substantial interest in
the IBF's actions and in its integrity. The judicial interest in
protecting those who may be detrimentally affected by an
organization like the IBF is greater than the judicial interest
in protecting members of purely social organizations. Indeed,
New Jersey's courts have a long tradition of intervening to
protect the rights of those affected by organizations which
possess near-monopoly power or which strongly affect the public
interest. See, e.g., Matthews v. Bay Head Improvement Ass'n, 471
A.2d 355, 367-68 (N.J.) (holding that a beachfront association's
limitation on membership to borough residents violates public
policy), cert. denied, 469 U.S. 821 (1984); Moore v. Local Union


                               11
Grand Master of a Masonic Grand Lodge who had been found guilty

of misappropriation of lodge funds by a Masonic trial panel under

the Masonic Code for Trials.   A successor Grand Master suspended

operation of the Code for Trials procedures by which the local

lodge would ordinarily have imposed punishment, ordering instead

that a special "Lodge of Judgment" convene to determine

Rutledge's punishment.   Rutledge challenged the Masons'

unwillingness to discipline him according to their established

procedures.

     The Rutledge court began by setting out the applicable

standard:
     In Higgins v. American Soc'y of Clinical Pathologists,
     51 N.J. 191, 238 A.2d 665 (1968), this Court analyzed
     judicial intervention into the affairs of a private
     organization as follows: (1) does the plaintiff have
     an interest sufficient to warrant judicial action, and
     (2) has that interest been subjected to an
     unjustifiable interference by the defendant?


459 A.2d at 682.

     In examining the first prong, the court concluded that

Rutledge's "status, attributable to membership in a prestigious,


No. 483, Int'l Ass'n of Bridge, Structural and Ornamental
Ironworkers, 334 A.2d 1, 5-6 (N.J. 1975) (requiring a union to
reconsider plaintiff's application for membership fairly and
reasonably); Falcone, 170 A.2d at 799-800 (striking down a
medical society's membership requirement of four years'
attendance at an A.M.A.-approved medical college as violative of
public policy). Cf. New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp., 650 A.2d 757, 768, 775-777
(N.J. 1994) (recognizing a state constitutional right to
distribute political leaflets at a privately-owned regional
shopping center, "the functional equivalent of yesterday's
downtown business district"), cert. denied, 116 S. Ct. 62 (1995).



                                12
socially-active fraternity, merit[ed] protection from

unreasonable discomfiture."   Id. at 683.10

     With respect to the second prong of the test articulated in

Higgins, the Rutledge court concluded that an organization

subjects a plaintiff's interest to "unjustifiable interference"

in either of two circumstances:    when the organization's conduct

is driven by principles that violate public policy, or when the

procedures employed by the organization offend principles of

fundamental fairness.   459 A.2d at 683-84; see also Brounstein v.

American Cat Fanciers Association, 839 F. Supp. 1100, 1110-12

(D.N.J. 1993) (summarizing the Rutledge test).    The Rutledge

court determined that, although Rutledge's membership in the

Masons was an interest that merited judicial protection, the

convening of the Lodge of Judgment did not violate either public

policy or fundamental fairness.

                                  2.

     Following the Rutledge test, and undertaking to assess the

issues as of the time the district court issued its preliminary

injunction, we must therefore ascertain, first, whether Schulz

10. In addition to membership interests in social organizations,
courts following New Jersey law have also protected a member's
economic and status interests in belonging to a professional
society, see Higgins v. American Society of Clinical
Pathologists, 238 A.2d 665, 670 (N.J. 1968) (protecting
plaintiff's interest in certification as a medical technologist),
and in retaining a professional license, see Brounstein v.
American Cat Fanciers Association, 839 F. Supp. 1100, 1110
(D.N.J. 1993) (protecting plaintiff's interest in a license to
judge cats).



                                  13
had "an interest sufficient to warrant judicial action," and --

if the answer to the first question is in the affirmative --

second, whether "that interest [was] subjected to an

unjustifiable interference" by the IBF.   In considering the first

prong, we observe that Schulz's status in the boxing community,

as well as his public reputation, were clearly affected by the

IBF's decision not to disqualify Botha.   In addition, although

Schulz would not have become the champion on Botha's

disqualification,11 he had an economic interest in being declared

the winner of his bout with Botha.12   We therefore conclude that

Schulz had an interest in the IBF's decision sufficient to

warrant judicial action.13

                                3.

     In determining whether Schulz's interest was "subjected to

an unjustifiable interference" by the IBF, we must inquire

11. The IBF's Rule 10 provides that a champion loses his title
if he is disqualified, but a losing challenger does not thereupon
become champion; rather, the title becomes vacant. Schulz and
Botha were fighting for the title vacated by George Foreman when
he retired, so both boxers had the status of challenger.

12. The winner of the Botha/Schulz fight would next fight Moorer
for the vacant title. Although the purse split between a
champion and a challenger is usually negotiated, if the parties
cannot agree the IBF holds a "purse bid" with the champion
receiving 75% of the total bid and the challenger receiving 25%.
 See IBF Rule 23, App. 285. Hence it was financially more
advantageous for Schulz to fight for a vacant title, with a
background norm of a 50/50 purse split between the two
challengers, than to challenge a champion.

13. The interests of Schulz's co-plaintiffs in this action --
his manager and his promoters -- are derivative of Schulz's
interest and likewise merited protection.



                                14
whether the IBF's refusal to disqualify Botha violated either

public policy or fundamental fairness.     If the refusal offended

either of these principles, then the Rutledge standard was met

and judicial intervention was warranted.

      We turn first to public policy.    The Rutledge court made

clear that public policy on its own can justify judicial

protection of a plaintiff's interests.14    In determining New

Jersey public policy, we turn to the enactments of the state

legislature as an authoritative source.    See Higgins, 238 A.2d at

671 ("The grant of a license to a laboratory director found by

the State Board of Medical Examiners to be qualified in

compliance with [N.J.S.A. 45:9-42.1 et. seq.] evinces a

legislative policy determination that the operation of

bioanalytical laboratories by qualified non-doctors, as well as

by physicians, is in the public interest."); see also Desai v.

St. Barnabas Medical Center, 510 A.2d 662, 666-67 (N.J. 1986).15

14. The court cited two examples of unreasonable interferences
based on principles violating public policy. In Higgins, the
court struck down as violative of public policy a rule of the
American Society of Clinical Pathologists forbidding its members
to associate with a laboratory not run by a licensed physician.
See 238 A.2d at 671. In Zelenka v. Benevolent and Protective
Order of Elks, 324 A.2d 35, 37 (N.J. Super. Ct. App. Div.), cert.
denied, 331 A.2d 17 (1974), the court held that the Elks' ban on
its members publicly criticizing the organization's racial
restrictions violated public policy.

15.   In Desai, the court reasoned that

[t]he judicial understanding of the public role of a
     hospital is firmly supported by considerations of
     public policy. The Legislature itself has expressly
     declared in the Health Care Facilities Planning Act . .
     . that "hospital and related health care services of


                                15
     The New Jersey legislature has declared, as "the public

policy of [the] State," that
it is in the best interest of the public . . . that boxing .
     . . should be subject to an effective and efficient
     system of strict control and regulation in order to . .
     . [p]romote the public confidence and trust in the
     regulatory process and the conduct of boxing . . . .


N.J. Stat. § 5:2A-2.   Moreover, the regulations of the state

Department of Law and Public Safety implementing this statute

also evince a purpose to instill public confidence in the sport.

Cf. Desai, 510 A.2d at 667 (relying in part on agency

regulations to ascertain New Jersey's public policy).   The

Department's 1995 proposal for readoption of its regulations

noted that "[t]he rules in this chapter have helped New Jersey be

recognized as a leader in the area of boxing regulation" and

observed that a primary purpose of the rules was "furthering the

trust and confidence of the public."   27 N.J.R. 2096 (June 5,

1995).

     Both the legislative and executive branches of the New

Jersey state government have, therefore, made it clear that they

consider it to be the public policy of the state to inspire the

     the highest quality, of demonstrated need, efficiently
     provided and properly utilized at a reasonable cost are
     of vital concern to the public health." . . . Through
     the Facilities Act, the State exercises extensive
     supervisory and regulatory control over hospital
     functions. . . . The breadth and depth of this
     regulatory jurisdiction reflect and illustrate the
     State's profound concern with public health care.

510 A.2d at 666-67 (citations omitted).



                                16
"trust and confidence" of the citizenry in boxing.    The public's

confidence that the outcome of a prizefight is fair rests

squarely on the assumption that the result was not improperly

influenced -- by illicit equipment,16 by gifts,17 or by the

involvement of managers convicted of crimes of moral turpitude.18

     The regulations of the state Department of Law and Public

Safety also make clear that "the public confidence and trust" in

boxing are promoted by banning the use of substances that can

affect a boxer's performance.   See N.J. Admin. Code tit. 13:46 §

12.3(a) (1995).   The regulations provide that "[t]he use of any

drug . . . by a boxer either before or during a match, shall

result in the immediate disqualification of the boxer from the

match and indefinite suspension from boxing."   Id.

     This express statement of public policy by New Jersey's

political branches is mirrored in the Bout Rules that the IBF

drafted and required the pugilists to sign before the Stuttgart

16. See N.J. Admin. Code tit. 13:46 § 3.3 ("In all bouts, the
gloves shall be inspected by the Commissioner's inspector and the
ringside physician prior to the fight.") The gloves must also be
placed on the boxer's hands under the supervision of the
inspector. See id.

17. See N.J. Admin. Code tit. 13:46 § 23A.4 ("No appointee [of
the State Athletic Control Board] shall solicit, receive or agree
to receive . . . any gift, favor, service or other thing of value
whatsoever . . . .").

18. See N.J. Admin. Code tit. 13:46 § 6.18 ("A license of any
manager shall be suspended for an arrest for or revoked on a
conviction of any offense in this or any other jurisdiction which
would be under New Jersey law a crime of moral turpitude or any
other offense which indicates that licensure would be inimical to
the conduct of the sport of boxing in this State.").



                                17
fight.19   Given the strength of New Jersey's public policy, we

concur in the district court's observation that the IBF could not

have established a less demanding protocol.   See supra at 10.     Of

course, the bout took place not in New Jersey but in Germany;

however, to the extent we have any information regarding the

policy of the fight venue, we observe that the German Boxing

Federation not only recommended that Botha be disqualified for

his steroid use, but banned all persons whom it licenses from

participating in Botha's bouts for two years.

       New Jersey has adopted an express policy of promoting the

public trust and confidence in boxing, and has specifically

mandated disqualification of boxers who use drugs.   The IBF

itself has adopted, and reaffirmed shortly before the contest at

issue here, an identical rule mandating disqualification for drug

use.   The public's trust and confidence in boxing is undermined

if one of the sport's major sanctioning bodies flouts its own



19. We agree with the district court that the mandatory
disqualification language in the Bout Rules takes precedence over
the IBF's rules and regulations. The Bout Rules contain both
specific language that "disqualification will follow" and general
language that the IBF regulations apply. It is well established
that within a particular document containing conflicting specific
and general provisions, the specific provisions control. See,
e.g., Wilson v. Unsatisfied Claim and Judgment Fund Board, 536
A.2d 752, 756 (N.J. 1988). In addition, the Bout Rules
specifically govern the Botha/Schulz fight in Stuttgart, whereas
the rules and regulations are generic. Again, where two sources
of law conflict, familiar rules of construction dictate that the
more specific controls over the more general. See, e.g., New
Jersey Transit Corporation v. Borough of Somerville, 661 A.2d
778, 782 (N.J. 1995).



                                 18
rule which comports with the state's public policy.20   We

conclude, at this preliminary stage, that the IBF's failure to

disqualify Botha likely violated New Jersey's public policy.



                                4.

     We now return to the standard for judicial intervention in

the workings of a private organization, as set forth in Rutledge.

 Under that standard, a reviewing court should invalidate a

private organization's decision affecting a plaintiff's interest

only if (1) the plaintiff's interest is sufficient to warrant

judicial action, and (2) that interest has been subjected to an

unjustifiable interference by the defendant -- that is, violates

public policy or fundamental fairness.   We have determined that

Schulz's interest in the IBF's decision merited judicial

protection and that the IBF's decision likely violated public

policy as expressed by New Jersey's legislature and executive

branch.   Therefore, at this preliminary stage, both elements of

the Rutledge test were met, and judicial intervention was

warranted.21
20. The district court made an identical finding: "Protecting
the integrity of a sport in which there is wide interest is
important. The reputation for integrity is threatened if there
is a rule against drug use but the organization permits the
fighter to retain a victory notwithstanding that use." App. 539.

21. Because we decide this case on the basis of the "public
policy" prong of the Rutledge test, we need not reach the
question whether the IBF's decision not to disqualify Botha was a
violation of "fundamental fairness."
     The IBF/USBA's argument that the district court's
preliminary injunction exceeded the court's authority is without


                                19
                                  C.

     We note, finally, that this case might have been decided on

alternate grounds.     The district court did not address whether

the Bout Rules constitute a contract, and none of the parties has

briefed this question in any detail.    Rather, almost all argument

has centered on whether the IBF violated its own internal rules

and, if so, whether a court may then intervene to mandate that

the IBF disqualify Botha.    Because this case is still at a

preliminary stage, however, we think it appropriate to point out

that the Bout Rules themselves may well be deemed a contract, and

that application of contract law may therefore constitute an

independent basis for the district court's decision.

     As the New Jersey Supreme Court has stated:
A contract arises from offer and acceptance, and must be
     sufficiently definite 'that the performance to be
     rendered by each party can be ascertained with
     reasonable certainty.' . . . Thus, if parties agree on
     essential terms and manifest an intention to be bound
     by those terms, they have created an enforceable
     contract.


Weichert Co. Realtors v. Ryan, 608 A.2d 280, 284 (N.J. 1992)

(citations omitted).    Of course, "[n]o contract is enforceable .
merit. In ordering the fight between Schulz and Moorer, the
court did not "unwittingly set the purses for the fighters for
future bouts." IBF/USBA Br. at 22. The IBF's settlement
agreement with Moorer mandated that Moorer's fight with the
winner of the Schulz/Botha bout be for the IBF title. It is this
agreement, and not the district court's order enforcing it, that
may have set the purses for future bouts. Moreover, the parties
agreed at the preliminary injunction hearing that if Botha were
disqualified, Schulz would fight Moorer. App. 528.



                                  20
. . without the flow of consideration -- both sides must 'get

something' out of the exchange."      Continental Bank of

Pennsylvania v. Barclay Riding Academy, Inc., 459 A.2d 1163, 1171

(N.J.), cert. denied, 464 U.S. 994 (1983) (citations omitted).

     The Bout Rules were signed by representatives of Botha and

Schulz as well as the IBF and the German Boxing Federation; the

signatures manifested an intention to be bound by these rules.

The provisions of the Bout Rules were definite, so that "the

performance to be rendered by each party can be ascertained with

reasonable certainty."   Each party's agreement to abide by the

Bout Rules provided consideration for the other parties'

agreements.   Moreover, each boxer's payment of more than $45,000

for the privilege of fighting under the IBF's aegis constituted

additional consideration for the IBF's agreement to enforce the

Bout Rules.   And, as we have seen, the Bout Rules expressly

provided that, if one of the boxers violated the anti-doping

rule, that boxer would be disqualified.

     Therefore, it appears likely that application of the law of

contract to this case would yield a result identical to that

reached in the main body of this opinion.


                         III.   Conclusion

     The district court was correct in finding that Schulz was

likely to prevail on the merits, and therefore appropriately

granted the preliminary injunction ordering the IBF, in



                                 21
accordance with its own rules, to disqualify Botha.

     For the reasons stated, the judgment of the district court

is affirmed.




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