1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Schulz v. US Boxing Assn" (1997). 1997 Decisions. Paper 18.

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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 
2

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 
3

detailed requirements. The last of these is entitled "AntiDoping" 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 
4

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. 
5

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 
6

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 
7

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. 
8

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). 
9

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. 
10

 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 
11

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 profitmaking 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 
12

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). 
13

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). 
14

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. 
15

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 
16

 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). 
17

"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."). 
18

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). 
19

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 
20

 

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. 
21

. . 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 
22

accordance with its own rules, to disqualify Botha. 

 For the reasons stated, the judgment of the district court 

is affirmed.