Aerosmith drummer Joey Kramer didn’t want to miss a thing at the Grammy awards on Sunday: the band are one of the night’s most anticipated performers, reuniting with Run DMC to perform the original rap-rock crossover, Walk This Way.

But the 69-year-old has not played since an ankle injury ruled him out of a chunk of the band’s Las Vegas residency last year. And when they demanded he re-audition if he wanted to rejoin, Kramer sued, arguing this was a breach of contract.

On Wednesday night a judge in Massachusetts denied Kramer’s request to order the band he named and co-founded 50 years ago to let him participate.

“Given that Kramer has not played with the band in six months and the dearth of available rehearsal time before the upcoming performances, Kramer has not shown a realistic alternative course of action sufficient to protect the band’s business interests,” said Massachusetts superior court judge Mark Gildea.

Kramer expressed disappointment at the decision. “I knew filing a lawsuit was a bit of an uphill battle,” he said. “I can hold my head high knowing that I did the right thing – to fight for my right to celebrate the band’s success that I have dedicated the better part of my life to helping build.”

He had previously said he was “being deprived of the opportunity to be recognised along with my peers, for our collective, lifetime contributions to the music industry” and that his lawsuit was “not about money”.

In his filing, Kramer detailed the “insulting and upsetting” demands for him to audition again for the band. He said he was asked to play a series of solo rehearsals to prove he could play at “an appropriate level”, an “artificial, made-up and undefined” requirement that had no precedent in the band’s history. He was then deemed, he said, to lack the required rock’n’roll “energy”. Kramer said the other members of the band had all had their own recent injuries and illnesses, and were not asked to re-audition afterwards.

Aerosmith countered that they had actually invited Kramer to rejoin the band, but he had accepted too late for him to fully rehearse for the Grammys. “Joey Kramer is our brother; his wellbeing is of paramount importance to us,” a statement read. “However he has not been emotionally and physically able to perform with the band, by his own admission, for the last six months. We have missed him and have encouraged him to rejoin us to play many times but apparently he has not felt ready to do so. Joey has now waited until the last moment to accept our invitation, when we unfortunately have no time for necessary rehearsals during Grammys week.”

Kramer is not the first rocker to be sidelined on health grounds. Jon Anderson, singer with prog rockers Yes, was diagnosed with respiratory illness in 2008 and advised to avoid touring for six months. The band did not wait, and hired new vocalist Benoit David. Anderson said he wished the band had handled it “in a more gentlemanly manner”.

Hirsute US rockers Styx, meanwhile, replaced frontman and songwriter Dennis DeYoung with Lawrence Gowan after DeYoung suffered from chronic fatigue in 1999. DeYoung sued them for the rights to the Styx name, though the settlement meant he could not use the name outright.