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BLUBAUGH v. AMERICAN CONTRACT BRIDGE LEAGUE

February 18, 2004.

JOHN E. BLUBAUGH, Plaintiff,
v.
AMERICAN CONTRACT BRIDGE LEAGUE, Defendant



The opinion of the court was delivered by: DAVID HAMILTON, District Judge

ENTRY ON MOTIONS FOR SUMMARY JUDGMENT

Plaintiff John Blubaugh has sued defendant American Contract Bridge League (ACBL) on a variety of theories arising from the ACBL's decision to suspend him from playing in ACBL-sanctioned tournaments for a period of 18 months. Blubaugh has made his living in recent years as a professional bridge player. After a question was raised about the manner in which Blubaugh shuffled and dealt cards in tournaments, the ACBL's Ethical Oversight Committee held a hearing with witnesses, exhibits, cross-examination and counsel. The committee issued a written decision finding that Blubaugh had violated bridge rules. The committee suspended him from sanctioned bridge play Page 2 for four months. Blubaugh appealed to the ACBL's Appeals and Charges Committee, which upheld the findings but enhanced the punishment to an eighteen month suspension.

Blubaugh filed this action on March 15, 2001, and moved for a temporary restraining order to prevent the suspension from taking effect. After a hearing on March 16, 2001, the court orally denied such relief. Blubaugh then filed two amended complaints and a motion for preliminary injunction seeking to have the suspension lifted. After a hearing on Blubaugh's motion for a preliminary injunction, the court denied the motion. Blubaugh v. American Contract Bridge League, 2001 WL 699656 (S.D. Ind. June 20, 2001).

  Blubaugh's third amended complaint contains no fewer than 19 counts that can be grouped as follows.*fn1 Breach of Contract Counts I, IX, X, XI, XII, XIII, XIV, XV, and XVI allege that the ACBL breached a contract with Blubaugh by failing to honor its own internal rules and regulations, specifically the Code of Disciplinary Regulations and Guidelines for Disciplinary Proceedings. Tortious Interference: Count II alleges that the ACBL, by suspending Blubaugh, tortiously deprived him of his livelihood. Indiana does not recognize a cause of action for "tortious deprivation of livelihood," so the court construes this count to allege Page 3 tortious interference with a business relationship, which can be actionable under Indiana law. Count III sets forth a claim of tortious interference with contract based on the same conduct complained of in Count II. Defamation: Counts IV and XX allege defamation, and Count V alleges a conspiracy to defame. Blubaugh claims that various statements regarding the disciplinary proceedings made by the ACBL or those associated with it were defamatory.

  Miscellaneous Claims: Count VI alleges that the ACBL was grossly negligent in its handling of a surveillance videotape that was used as evidence in the disciplinary proceedings against Blubaugh. The videotape contained a recording of Blubaugh shuffling and dealing cards at a national tournament. Count VII alleges a violation of the Americans with Disabilities Act, but Blubaugh has abandoned that claim in response to the ACBL's motion for summary judgment. Count VIII alleges a violation of the federal Sherman Antitrust Act. Count XVII alleges a violation of the Racketeering and Corrupt Organizations Act (RICO). Finally, Count XVIII advances an abuse of process claim.

  The court has jurisdiction based on diversity of citizenship and the amount in controversy. Although the complaint contains three counts arising under federal law, they are so weak as to provide only meager support for federal jurisdiction. See, e.g., Williams v. Aztar Indiana Gaming Corp., 351 F.3d 294, Page 4 299 (7th Cir. 2003) (finding that federal RICO claim was so frivolous as not to support supplemental jurisdiction overstate law claims where citizenship was not diverse). Page 5

  Summary Judgment Standard

  The ACBL has moved for summary judgment on each count. Blubaugh has also moved for summary judgment on liability on his claims for breach of contract and abuse of process. The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, so that the moving party is entitled to judgment as a matter of law. Fed.R. Civ. P. 56(c). The moving party must show there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).

  In light of Blubaugh's briefs, which focus on myriad trivial details and irrelevant history, it is worth emphasizing that a factual issue is material only if resolving the factual issue might change the suit's outcome under the governing law. Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). A factual issue Page 6 is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). In considering defendants' motion, the court must consider the evidence in the light reasonably most favorable to the opposing party, giving him the benefit of the most favorable reasonable inferences from the evidence. See Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 255; Celotex, 477 U.S. at 323; Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).

  For the reasons explained below, the court grants defendant's motion for summary judgment in all respects. Though all of Blubaugh's claims have specific flaws that are discussed below, the central defect running throughout the Complaint lies in Blubaugh's erroneous and expansive view of the court's role in overseeing the internal affairs of a voluntary membership organization like the ACBL. At the core of this case, Blubaugh contends the suspension imposed on him is simply unjust. He asserts his suspension resulted both from violations of the ACBL's rules and procedures and from personal malice on the part of some ACBL leaders with whom he has had some bitter conflicts over the years.

  Indiana courts, however, exercise only very limited judicial oversight of voluntary membership organizations like the ACBL. Blubaugh has not shown Page 7 that his case fits the limited exceptions for fraud, other illegality, or abuse of civil or property rights having their origin elsewhere. See Indiana High School Athletic Ass'n v. Reyes, 694 N.E.2d 249, 256 (Ind. 1997). Nor has he shown any material violation of the ACBL's elaborate rules and procedures. Although Blubaugh contends he is the victim of a prolonged and concerted effort to harm him unjustly, he simply has not come forward with evidence that would allow a reasonable jury to find that such an effort was made.

  The Seventh Circuit has often said that summary judgment is the "put up or shut up" moment in a lawsuit, when a party must show what evidence he has that would convince a trier of fact to accept his version of events. Johnson v. Cambridge Industries, Inc., 325 F.3d 892, 901 (7th Cir. 2003). On this record, it would be a "gratuitous cruelty" to the parties and their witnesses, not to mention the jurors, to go through the ordeal of a trial that could have only one outcome. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).

  Undisputed Facts

  Keeping in mind the standard on a motion for summary judgment, the following facts are undisputed or reflect the evidence in the light reasonably most favorable to Blubaugh, as the party opposing the principal motion for summary Page 8 judgment. The ACBL serves as the sanctioning body for competitive and duplicate bridge in North America. Blubaugh has made his living since 1990 or 1991 as a professional bridge player. Bridge is a team game, and some devoted amateurs are willing and able to pay excellent bridge players like Blubaugh to play as their partners in bridge tournaments that do not offer monetary prizes. Blubaugh has also established a modest business in which he brokers such arrangements between such paying clients and other professional players in return for a fee. Most if not all of these tournaments are sanctioned by the ACBL.

  In 2000, Blubaugh's primary client was a Mr. Villman, who paid Blubaugh $2,250 per tournament pursuant to an oral agreement. Blubaugh was negotiating a similar arrangement for 2001 with Gerald Mindell while the disciplinary process was going forward. These negotiations were abandoned when Blubaugh was suspended.

  Blubaugh is a member of the ACBL and has been active in its national leadership, including past membership on its national board of governors and its Appeals and Charges Committee, which was the same body that increased his suspension from four to eighteen months. Over the years, he has been an outspoken critic of others in leadership positions with the ACBL and the World Page 9 Bridge Federation. For example, he has criticized what he views as excessive travel expenses for ACBL directors and their spouses. He also was critical of the appointment in 1999 of Michael Aliotta to the position of national recorder.

  At a regional ACBL bridge tournament in Indianapolis during the summer of 2000, the ACBL received information from James Chiszar that he believed he had observed Blubaugh deliberately placing an ace or other "honor card" at the bottom of a deck, shuffling the deck in such a way as to keep the ace at the bottom of the deck throughout the shuffles, and then putting the ace in the hand given to his partner. Chiszar, who was an ACBL tournament director, reported his observations to several other directors attending the Indianapolis tournament. They all agreed to observe Blubaugh the next day. The next day, Chiszar and directors Johnson, Van Cleve and Flader observed Blubaugh. Of the four, three believed they observed Blubaugh manipulate the shuffle so as to place an ace on the bottom of the deck where it would be dealt to his partner.

  If one member of a bridge team knows that his partner holds a specific card, that knowledge can provide their team with a modest but unfair advantage in the competition. Page 10

  Following the Indianapolis tournament, the ACBL arranged for video surveillance of Blubaugh as he shuffled and dealt at the national tournament in Anaheim, California in August 2000. Based on the videotape and the directors' observations, the ACBL's chief tournament director Gary Blaiss, national recorder Richard Colker, and league counsel Jeffrey Polisner agreed that the evidence was sufficient to institute charges against Blubaugh for cheating.

  Blubaugh was formally charged on August 12, 2000, with manipulating honor cards to the bottom of the deck and knowing into which hands he dealt them at the Indianapolis Regional tournament on July 29-30, 2000, and the Anaheim NABC tournament on August 10-11, 2000. The charge specified violations of Sections 2.1, 2.2 and 2.11 of the ACBL's Code of Disciplinary Regulations and the ACBL's Laws 6 and 16. Blubaugh was notified of a hearing scheduled for August 16, 2000, before the ACBL's Ethical Oversight Committee. The notice informed him of his rights under ACBL rules to have "counsel" (who was not required to be an attorney), to present evidence, to confront witnesses, and to challenge any committee member for cause. He was also informed that any appellate bodies that might review a decision by the Ethical Oversight Committee had the power, among others, to increase any discipline imposed. Page 11

  At Blubaugh's request, the hearing before the Ethical Oversight Committee was postponed to November 17, 2000, at a tournament in Birmingham, Alabama. Blubaugh's counsel obtained the four-month delay by explaining that he needed time to gather evidence relating to Blubaugh's earlier injuries and their effects.

  Blubaugh suffered an injury to his right hand approximately 20 years ago. His right ring finger was amputated just above the last knuckle, and that finger is stiff and virtually useless. He also suffered nerve damage to his middle finger that reduces its function. Also, over the last several years, also, Blubaugh's vision in his right eye has deteriorated, especially his peripheral vision. Blubaugh contends that his hand injuries cause his shuffling of cards to be clumsy and awkward and not very effective in mixing the cards of the deck, but that his restricted vision keeps him from actually seeing the face of any card when he shuffles. Blubaugh vehemently denies that he knew the positions of any cards in the shuffled decks or that he knowingly gave his partner any particular cards.

  Before the hearing, Blubaugh's counsel attempted to obtain the equivalent of pretrial discovery from the ACBL, including the identities of witnesses and the substance of any expert witness testimony. The ACBL rules make such pre-hearing disclosures optional rather than mandatory. The ACBL provided only a Page 12 copy of the surveillance videotape before the hearing, without explanation or expert commentary.

  A committee composed of members of the Ethical Oversight Committee convened to hear evidence on November 17, 2000. Blubaugh did not try to have any members removed for cause. Witnesses in the hearing were not under oath, nor was a complete record of the hearing made. The Recorder of the ACBL presented evidence against Blubaugh, including the videotape as narrated and explained by Norman Beck, who was presented as an expert in cards and their manipulation. The written reports of Beck, Chiszar and others who had observed Blubaugh's conduct during the tournaments were also introduced into evidence. Blubaugh's counsel cross-examined the witnesses against him. Blubaugh's counsel did not ask those witnesses any questions about Blubaugh's hand injury or its effects. After the ACBL presented its evidence, the committee took a prolonged recess to play bridge, then reconvened late that same night and heard evidence from Blubaugh and witnesses he called. Both sides indicated they were through presenting evidence. At 4:30 a.m. on November 18th, the committee announced its ruling against Blubaugh and the sanction of a four month suspension. Page 13

  Blubaugh appealed that decision to the ACBL's Appeals and Charges Committee. The suspension was stayed pending that appeal. After the Ethical Oversight Committee's decision but before the decision of the Appeals and Charges Committee, "D" Magazine, a local Dallas/Fort Worth magazine published an article profiling Norman Beck, the expert on card manipulation who had testified against Blubaugh at the disciplinary hearing. In the article, Beck was quoted at length discussing the Blubaugh case, although neither he nor the article mentioned Blubaugh by name. The article also contained a brief description of the surveillance videotape, which Beck apparently had shown the author.

  On Blubaugh's appeal, the ACBL's Appeals and Charges Committee decided to sustain the finding of a violation and to increase the suspension to eighteen months, to take effect in March 2001. In conjunction with the decision, the ACBL published a notice of Blubaugh's suspension in its news bulletin. Blubaugh filed this action on March 15, 2001. After this court denied a temporary restraining order, the suspension took effect as scheduled.

  The parties have stipulated to the admission of a copy of surveillance videotape showing Blubaugh shuffling and dealing several hands of bridge. When it was presented to the ACBL's Ethical Oversight Committee, witness Page 14 Norman Beck provided a narration and explanation, as well as a written report. At the request of plaintiff, the court has watched the videotape. Without commentary, explanation, and questioning by those expert in the game of bridge, however, the videotape was not enlightening. The task of this court is not to try de novo the case against Blubaugh before the ACBL's Ethical Oversight Committee.

  Both the videotape and Blubaugh's testimony show that, before Blubaugh shuffles a deck, he habitually holds the entire deck of cards face-up in a fan-like arrangement that allows him to see all the cards, including the cards that will be at the very bottom of the deck before it is shuffled. Blubaugh testified that he views the cards this way to ensure that all the cards are facing the same way. If a card is dealt face-up, the dealer must reshuffle the deck and start over. (Blubaugh has not explained why he could not make that same determination by holding the cards face-down, without seeing which cards would be at the bottom of the deck. Also, the court is left to wonder why bridge players do not "cut" a shuffled deck before a deal to prevent precisely the sort of problems that arose here.)

  Lest there be any misunderstanding, for purposes of deciding the ACBL's motion for summary judgment, the court assumes that Blubaugh did not actually Page 15 cheat in his shuffling and dealing, even though ACBL officials believed that he did. Nonetheless, the evidence here would not allow any reasonable jury to find that any ACBL officials who reviewed the evidence in the case and made a decision at any stage — the initial charging decision, the initial hearing, or the appeal — subjectively believed that Blubaugh was innocent of cheating.

  Other facts are noted below as needed, keeping in mind the standard for a ...


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