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Bilney v. Evening Star Newspaper Co.

Decided: October 15, 1979.

JOHN D. BILNEY ET AL.
v.
THE EVENING STAR NEWSPAPER COMPANY ET AL.



Appeal from the Circuit Court for Prince George's County; Bowling, J.

Thompson, Wilner and Weant, JJ. Wilner, J., delivered the opinion of the Court.

Wilner

Appellants are six young men who, in 1977, were undergraduate students at the University of Maryland (College Park Campus) and members of the University's varsity basketball team. Feeling aggrieved by articles appearing in the November 1, 1977, editions of the Washington Star and the student publication, the Diamondback, they sued the publishers of those newspapers and a number of individuals who allegedly participated in the writing and editing of the articles for invasion of privacy and intentional infliction of mental distress. The Circuit Court for Prince George's County entered summary judgment in favor of all defendants save one, which it dismissed on motion raising preliminary objection; and this appeal followed.

A few basic facts will put the issues raised here in the proper perspective. College basketball, particularly at the University of Maryland, is a "big time" sport. It generates a great deal of interest and excitement, not only among the students but among sports enthusiasts in most of the

Baltimore-Washington megalopolis and, indeed, because of the team's frequent national ranking, among sports-minded people throughout the country. It also generates a lot of money -- legally for the University and the Atlantic Coast Conference, of which the University is a member, and illicitly for those who wager on college sporting events. Newspapers in the area follow the team's prospects and achievements with great interest and regularity.

The interest in the team, of course, spills over to the individual players. Their recruitment by the University and their individual performances as team members are given wide publicity, much of which is initiated or controlled by the University and its officials. Appellants, in their brief, concede that, by virtue of their status as members of the basketball team, they were "public figures" -- that, as team members they were the subject and object of widespread public interest.

Pursuant to certain regulations adopted by the National Collegiate Athletic Association and the University of Maryland, students at the University who have completed 45 credits must maintain a grade-point average of 1.95 or above (essentially equivalent to a C-) and must earn at least 24 "quality points" per semester.*fn1 Failure to meet these standards will cause a student to be placed on academic probation; and, of central importance in this case, if a student is on academic probation in two consecutive semesters, he is subject to dismissal from the University. If dismissed, of course, he becomes ineligible to play on the school basketball team.

Each of these appellants was the recipient and beneficiary of an athletic scholarship, awarded by the University, that defrayed all or a major part of his college expenses. Academic success of a University athlete is encouraged and given wide publicity. The University publicly posts a list of all of its athletes earning a grade point average of 3.0 or better, and

it gives special publicity to those who achieve more notable success.

Thus it is that the academic prowess of these appellants, and their colleagues, was of significant public interest and concern not only in terms of the University's policy of encouraging scholastic success, but also from the perspective of their continuing eligibility to play varsity basketball.

On the morning of November 1, 1977, the Washington Post published an article quoting the University's basketball coach, "Lefty" Driesell, as admitting that four of the team's eight returning players were on academic probation for failing to meet grade requirements in the previous semester, and that two others had recently been taken off such probation. Although not directly identifying the four players, the article proceeded to permit their easy identification by a process of elimination. It named the eight veterans, stated that two -- appellants Boston and Davis -- had recently been taken off probation, and noted that two others, not involved in this case but who were named, were on the Atlantic Coast Conference honor roll. That, of course, left the four remaining appellants -- Bilney, Bryant, Gibson, and Hunter -- as those who were currently on probation. No action has been filed with respect to this article.

Later that morning, the Star printed two articles concerning appellants Bilney, Bryant, Gibson, and Hunter. Prominently displayed on page one were photographs of the four players, under which appeared their names and the statement: "The University of Maryland's basketball program is in danger of collapse because of poor schoolwork. The Star has learned that four of eight returning players -- Larry Gibson, Jo Jo Hunter, Billy Bryant and John Bilney -- are on academic probation and in danger of flunking." The full story appeared on the first page of the sports section. Under the by-line of appellee Dick Heller, identified as a Star "Staff Writer", the article recited that the Star had learned "from university records" that the four named players were "on academic probation and in danger of flunking" at the end of the fall semester. It went on to quote comments from Coach Driesell, Chancellor Gluckstern, Athletic Director

Kehoe, other University officials and faculty members, and former University basketball stars, all dealing either with appellants' particular dilemma or the general problem of satisfying minimum academic requirements. At the end of the article, it was noted that appellees Kram, Burke, and Blum "also contributed to this report." The second article in the Star was a column also under Heller's by-line that dealt primarily with Coach Driesell.

The third newspaper to comment on this matter was the Diamondback. On that same day -- November 1 -- in an article written by appellees Burke and Kram, it was again reported that Bilney, Bryant, Gibson, and Hunter were on probation and "in danger of being academically dismissed." More specifically, this article stated that "[a]ccording to records, Bilney finished last semester with a 1.5 grade point average, Bryant with a 1.24, Gibson with a 1.88 and Hunter with a 1.1". It said also that appellant Boston had been "academically dismissed" the previous spring, but had been reinstated, and that appellant Davis, while having a 2.2 grade point average, had been temporarily placed on probation for a quality point deficiency which was subsequently corrected.

Appellants named as defendants in their action the publishers of the Star and the Diamondback (appellees Evening Star Newspaper Company and Maryland Media, Inc.); the editor and sports editor of the Star (appellees Bellows and Beitchman); Richard Heller (the Star staff reporter); Eric Blum, a "stringer" for the Star; and the two authors of the Diamondback article who also were credited with contributing to the Star story (appellees Burke and Kram). The gravamen of their complaint, both in terms of the invasion of privacy and intentional infliction of mental distress counts, was that appellees wilfully, wrongfully, and maliciously invaded appellants' confidential University records and published private and privileged facts about their private lives. Both torts rested upon the unlawful obtention of confidential school records and the unlawful publication of such records.

Maryland Media, Inc. sought and obtained preliminary dismissal under Maryland Rule 323 on the basis of

eleemosynary immunity. For reasons shortly to be explained, it is not necessary for this Court to consider the propriety of that decision, although appellants have raised it as an issue in their appeal. After extensive discovery and the filing of voluminous affidavits, deposition transcripts, and other assorted documents, all other parties moved for summary judgment. Following a recorded oral argument, the court, as noted, denied the motion filed by appellants and granted those filed by appellees.

Appellants contend that this action was wrong for four reasons. As to appellees other than Maryland Media, Inc., they assert that summary judgment was inappropriate because (1) "there are genuine disputes as to material facts under [the] pleadings, affidavits and depositions", (2) the record did not support the court's conclusion "that appellees did not intentionally invade a private area of appellants' lives, which intrusion was unreasonably offensive", and (3) appellees had no right to publicize appellants' academic standing, even if appellants were public figures. The fourth issue is that of Maryland Media's charitable immunity.

(1) Genuine Dispute of Material Fact

As noted, both appellants (collectively) and appellees moved for summary judgment, all asserting in support of their respective motions that there was no genuine dispute of material fact. Both sides filed answers in opposition to the other's motion, but neither answer asserted, as a defense to the opponents' motion, that there was a dispute of fact sufficient to require a trial of the issue.

At oral argument on the cross motions, appellants' counsel reiterated his contention that there was no genuine dispute as to any material fact and that no additional evidence was necessary, or would be forthcoming, with respect to the pending motions. It was agreed that the case was ripe for summary judgment, the only dispute being as to which side should be favored with the judgment.

Notwithstanding these assertions and concessions in the lower court, appellants claim here that there was indeed a

genuine dispute of fact sufficient to make summary judgment inappropriate. The dispute, they contend, is not with respect to any underlying or basic facts but rather in the inferences to be drawn therefrom. This, they say, is apparent from the memorandum opinion filed by the circuit court.

The uncontradicted evidence before the court, in the form of depositions and affidavits, was that (1) the poor scholastic showing on the part of a number of the varsity basketball squad members had been the subject of wide rumor around the Campus for some time; (2) Burke and Kram had heard these rumors and had reported them to the Star; (3) the Star indicated interest in the story if there was any foundation to it, and asked the two student reporters to check it out; (4) the ultimate information with respect to appellants' scholastic status was gratuitously given to Burke and Kram by a volunteer source whose identity, under the aegis of the Maryland Shield Law, Courts Article, ยง 9-112, they declined to reveal; and (5) Burke and Kram passed this information along to the Star and used it in their story in the Diamondback. Each of the appellees specifically denied under oath that he or it invaded the University records in order to obtain this information or solicited, employed or paid anyone else to do so. No direct evidence to the contrary -- not even a conclusory averment under oath -- was offered by appellants. From this uncontradicted evidence, therefore, it would seem clear that the information, though perhaps emanating ultimately from confidential University records, was not obtained by any personal act of invasion or intrusion on the part of any of these appellees.

The countervailing inference sought to be raised by appellants emanates from (1) the assertion in the Star article that the information was learned "from University records" and (2) the fact that Burke, Kram and Blum were paid a standard fee of $125 for their contribution to the story. These facts, they contend, permit an inference that the Star, through its employees, ...


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