SPORTS SCIENCE (Quality Work, No Plagarism, A++)

· Week 1

Welcome to the course!  This week we will be reading Chapters 1 & 2 of our ebook, regarding the U.S. legal system in the world of sports.  

Legal System & Sports Law

Sports Law is an interdisciplinary subject and it encompasses all types of law from criminal law to contract law.  

All sporting activities are fraught with the risk of injury to spectators and competitors.  For example, often athletes are often hurt during sporting competitions.  Other times, spectators get hurt viewing a sporting event.  As we will learn in our readings, the role of a sports professional is to mitigate, but not completely eliminate, risk.   

In the first week, we will briefly explore the legal system in the United States and then we will spend a good amount of time exploring tort law and product liability.  

Before we explore the basics of the United States legal system, it is important to define “tort law.”  Tort law is the sub-field of law that addresses the monetary payment of injuries to one person caused by the civil wronging of another person.  A classic example of a tort is a car accident where one person has to pay another person for his or her negligence that caused injuries.   

US Legal System

With that definition out of the way, let’s briefly explore the United States legal system.

The United States legal system is based on common-law.  As a common law country, the primary sources of law derive from the “common law,” the United States Constitution, various statutes, and administrative law.    In the United States, all primary sources of law must comply with the United States Constitution.

Can you provide an example of each type of primary source of law?  What administrative agencies promulgate rules and regulations that impact the sports world? 

In the United States, law is dived into two broad areas, i.e., civil and criminal law.   Criminal law is a category of law that identifies and labels certain behavior as “criminal” and then provides penalties for such behavior.  In contrast, civil law assesses monetary damages for injuries caused.   In this class, we will primarily focus on civil law and how various injuries may be compensated by civil law.

The United States Supreme Court is the highest court in the United States legal system.  The United States judicial system is very complex and composed of state and federal courts as well as a large number of administrative courts.   At the lowest level of both the federal and state court systems, there are trial courts.  After a decision has been rendered by a trial court, the decisions of these trial court can be appealed to an appellate court.  In the federal system, the appellate courts are called “Circuit Courts.”  After being reviewed by state appellate court, a decision of a trial court can appealed to the state Supreme Court.   In certain limited circumstances, an order of a state trial court can be reviewed by the United States Supreme Court 

Did you know that each year that state and federal trial courts render thousands of decisions and issue thousands of orders? However, only a handful of decisions of state and federal trial courts are reviewed by the United States Supreme Court each year.  

It is important to understand that the federal court system is one of limited jurisdiction and that federal courts can only hear certain types of cases.  For example, a federal court can only hear cases that arise under federal law or that arise out of diversity jurisdiction.  As defined by our textbook, federal courts can hear certain disputes between citizens of different states when the amount in controversy is over $75,000.00 in damages.  For example, let’s say that you were a citizen of Alabama and you were on vacation in Florida when a resident of New York struck your car with his car.   Assuming your medical costs and damages were over $75,000, this type of dispute would likely be filed in a Florida federal court. 

Risk Management & Sports Law

Please consider the following fact pattern:

Because there have been a number of accidents and fights at New York Mets baseball games, you have been hired by the New York Mets as a risk assessor.  Your investigation reveals that many, but not all, of the accidents and fights involve spectators that had consumed several alcoholic beverages during the game.   Because each incident potentially exposes the New York Mets to millions of dollars of liability, the New York Mets want you to provide them with a detailed plan on how to mitigate their potential liability from these accidents and fights.   After reading your text book, what are the options available to the New York Mets? Please provide the New York Mets with a detailed plan of action.

Risk Management Process

As we learned from our textbook, risk mitigation is an essential part of the sports professional’s responsibilities as all sporting activities involve some degree of risk to participants and spectators.  Because many sporting events invite and charge spectators to attend sporting events, sporting organizations must insure the safety of spectators or face civil liability for any injuries that spectators incur.   As we learned last week, some sporting organizations include waiver and release language on their tickets in an attempt to shield themselves from liability.  For example, it is very common for baseball stadiums to warn spectators of the dangers of foul balls on their tickets.  However, sporting organizations cannot completely shield themselves from liability by using release and waiver language on tickets.  Instead, sporting organizations must employ a series of risk management techniques.  

As we learned from our fact pattern, risk management involves first recognizing a safety problem and a risk of loss.  For example, in our fact pattern, the New York Mets identified a potential risk of loss caused by accidents and fights among spectators.   

Next, risk management involves analyzing and evaluating the risk.   As we learned from our fact pattern, research and analysis of the accidents and fights revealed that many, but not all, of the accidents and fights involved spectators who had drank alcoholic beverages at the game.

Finally, after a sports professional has recognized the risk and evaluated the causes of the risk, it must develop a plan of action among four options. 

These options include: 

Retention- Keeping the situation as it is. 

For example, the New York Mets may decide to do nothing.  Doing nothing sometimes is the best option if other options are very expensive and if the risk of loss is low.  However, in our situation, retention or doing nothing does not seem like a viable option.

Avoidance-Involves completely eliminating the risk of loss by closing down the facility or sporting event. 

In our example, avoidance of the risk would involve either barring all spectators from games or selling the New York Mets so that the risk of loss would be completely eliminated.  Clearly, barring spectators from baseball games or selling the team are not viable options here.  However, avoidance must be considered as sometimes cancelling a sporting program or barring spectators from an event may be the only way to prevent loss.  In the past, many colleges and high schools eliminated contact sports like ice hockey and football to avoid liability for injuries caused during games.

Transfer-Involves placing the risk of liability onto another entity. 

The most common transfer method involves purchasing an insurance policy. When an entity or individual purchases an insurance policy, the entity or individual is agreeing to make premium payments in exchange for coverage if an accident or loss occurs.  For example, most states require automobile drivers to purchase automobile insurance to cover any damages caused by accidents.    

In our example, the New York Mets may purchase or consider amending their insurance coverage to address fights and accidents.

While insurance is the most common transfer method, there are many other transfer methods.  For example, the inclusion of release and waiver language on an admission ticket is another form of transfer method. 

Treatment-Involves taking some type of action to mitigate the risk.

In our example, the New York Mets may consider eliminating or reducing the amount of alcoholic beverages as a treatment measure if it believes that there is a relationship between the number of accidents and fights and the consumption of alcoholic beverages.  Other treatment measures may include the use of additional security personal or other employees to monitor the crowd. 

Risk Management Applications

There are a number of risk management applications in the sports world that include:

1)      Emergency Action Planning-This involves comprehensive planning to address any medical emergencies that may occur at sporting events. 

To return to our example, the New York Mets should have an emergency action plan to address any injuries that occur. For example, the New York Mets should have plans in place to address various types of injuries that may occur, i.e., slip and falls, fights involving cuts, etc.

2)      Crisis Management Planning-This involves planning for a crisis, i.e., a significant event that possesses a significant risk to a sporting organization.  

For example, after the tragic events of 9/11 and recent mass shootings at public places, many sporting organizations like the New York Mets have implemented crisis  management plans  to address possible terrorist attacks and gun violence.

3)      Lightning Management Planning-Because many sporting events are outdoors, sporting organizations must develop plans to deal with lightning.

Sporting organizations have developed complex plans to address what happens if lightning strikes.   For example, many sporting organizations have postponed games or events to avoid injuries and deaths due to lightning.   This may include hiring a weather expert and developing a plan of action to take if and when lightning strikes.

Where does law come from?

Law comes from a variety of sources, such as statutes, administrative regulations and case opinions.

It is important to understand the difference between primary and secondary sources of law.  Primary sources of law are “original sources” of law like case, statutes, Constitutions, and administrative decisions.  In contrast, secondary sources of law are sources that interpret primary sources of law.  For example, a law review article interpreting a recent United States Supreme Court decision is a secondary source of law.  However, the United States Supreme Court decision itself is a primary source of law.

If you would like to explore some further secondary and primary sources dealing with Sports Law, you can find such sources in Nexis Uni. 

Alternative Dispute Resolution in Sports

Resolving Legal Conflicts in Sports:

There are various ways that legal conflicts can be resolved in any field of law, such as sports.  These include litigation, negotiation and alternative dispute resolution.  Often, many legal conflicts in sports law are resolved by using alternative dispute resolution methods, such as mediation and arbitration. 

Mediation:

Mediation is the alternative dispute resolution method whereby parties that have a legal conflict voluntarily choose to appoint a mediator to assist them in resolving their legal issues.  This process is utilized both before and during litigation.  Mediation can be used at any time by the parties, as long as all parties voluntarily choose to enter into the agreed process.  Mediators are picked by the parties.  Either one or all parties will pay the mediator they have hired to resolve the legal conflict.  Typically, all parties will independently submit mediation briefs to the mediator prior to the mediation, which state their sides and the legal propositions which support their claims and/or defenses.  Mediation is non-binding.  Even if a mediator provides a resolution to the matter and suggest an outcome, the parties are not required to obey the mediator’s ruling.  There must be a written agreement/contract signed by the parties agreeing to be bound by the mediator’s decision after the fact for it to have any force.

Please review the below law review article regarding Mediation and NFL employment contracts.  You will need to obtain it inside Nexis Uni in the APUS Library tab.

Timothy J. Bucher, Inside The Huddle: Analyzing the Mediation Efforts in the NFL's Brady Settlement and its Effectiveness for Future Professional Sports Disputes, 22 Marq. Sports L. Rev. 211 (2011).

Arbitration:

Arbitration is similar to mediation, except it is binding.  It may also occur before or during litigation.  If it occurs during the course of litigation, then the legal conflict is removed from Court and the Arbitrator’s decision will be final.  If it occurs through the course of mediation, it will be governed by a separate set of rules and statutes which explain its process and the rules surrounding the alternative dispute resolution method.  An arbitrator will be appointed by the Court and the parties will be required to each pay half of their fees.   Arbitration may also occur prior to and instead of litigation, where the matter has been contracted to by the parties.  For example, a dispute over an employment contract may have terms inside the contract which specifically state that the matter is bound by binding arbitration and the parties may not litigate on the matter.  Additionally, parties may legally contract to a binding arbitration even where no requirement exists for them to do so.  In this case, the written agreement/contract will be entered into prior to the arbitration, where they agree to be bound to whatever the arbitrator decides on the matter.  This process is similar to mediation, but the results are binding.  Should a party fail to meet the ruling set by an arbitrator, then the opposing party will have a completely separate cause of action to bring a claim to court that the other party failed to meet its duties under the ruling.  The original matter will not be litigated, only the new issue of a breach of a party’s duties will be examined by the Court. 

Please review the below law review article regarding Arbitration and the Olympics.  You will need to obtain it inside Nexis Uni in the APUS Library tab.

Jason Gubi, The Olympic Binding Arbitration Clause and the Court of Arbitration for Sport: An Analysis of Due Process Concerns, 18 Fordham Intell. Prop. Media & Ent. L.J. 997 (2008).

Please make sure to also review the following lessons:

Chapter 1 – Introduction

Chapter 2 – The Court and Legal System of the United States

· Week 2

Welcome to week 2 of the course!  This week we will be reading Chapters 3 & 4 of our ebook regarding tort law.  

Tort Law and Products Liability

Please consider the following fact pattern:

James, an avid New York Mets fan, decides to take his friend Dmitri from Moscow to a New York Mets game.  Dmitri has never been to a baseball game before and does not understand the rules of the game.  Specifically, Dmitri did not know that a batter can hit a foul ball into the stands.   James and Dmitri arrive at the game in the third inning after drinking heavily at a local pub. Dmitri, who is quite the lady’s man has little interest in the game and starts up a conversation with a young lady sitting next to him.  During his conversation, a batter for the Pittsburgh Pirates hits a foul ball into the stands, striking Dmitri square in the forehead.  Because the ball struck Dmitri in the forehead, Dmitri falls into a comma due to the blunt trauma.  After recovering from his injuries, Dmitri, who is also unfamiliar with the American legal system, sues the batter who he hit the ball, the New York Mets, and James for damages.   Do you believe that Dmitri possesses any viable claims against these parties?   What defenses are the parties that Dmitri sued raise in their defense?

To understand this fact pattern, we must start by exploring a concept called negligence.   As set forth in the facts, none of the parties intentionally wanted Dmitri to get hit by a foul ball.  Therefore, Dmitri’s theory of liability must be based on a negligence theory.  Negligence is a theory of liability that posits that individuals may be held liable for their unintentional actions if those unintentional actions cause injury to another person.   However, for a person to be held liable under negligence theory, certain elements must be present and proved by a plaintiff.  Simply put, the party alleging that another person was negligence bears the burden of proving that the presence of a number of elements.  

Four Elements of Negligence

First, the plaintiff must allege and prove that the person sued, i.e., the defendant owed the plaintiff, a standard of care.  Simply put, the plaintiff must demonstrate that the party sued had some responsibility to insure his or her safety.  For example, if you go into a supermarket, you would assume that the supermarket is free of hazards.  Similarly, if you pay admission to see a sporting event, you would assume that the seats in the stadium are not hazardous.  

In our fact pattern, do you think that James, the batter who hit the ball, or the New York Mets were responsible in any way for Dmitri’s safety as a spectator?

Second, the plaintiff must demonstrate and prove that any party who owed him or her a duty of care breached that standard of care.  Let’s return to our example of the supermarket, a supermarket would breach their standard of care by failing to insure that the alleys are free from spills.

Third, a plaintiff must demonstrate that he or she was injured and suffered damages as the result of the defendant’s breach of its duty of a standard of care.  For example, a person, who only saw, but was not actually injured by the wet floor in a supermarket, could not sue the supermarket for damages as there was no injury.  However, if a person did fall and was injured by a hazardous condition, such a person could seek various types of damages for his or her injuries.  For example, a person may seek compensatory damages to recover for the value of the injuries. Let’s say that a person suffered a broken leg caused by slipping and falling on a wet floor.   Compensatory damages would pay for the medical expenses incurred in treating the broken leg.

Finally, a plaintiff must demonstrate that the negligence of the defendant was the proximate cause of his or her injury, i.e., there must be a link between the negligent act and the injury suffered.  In order to hold a party liable, the injury caused must have been foreseeable.   For example, if one were to leave a wet floor in a supermarket it is foreseeable that someone would slip and fall on a wet floor.

Negligence Defenses

Assumption of the Risk

Even if a plaintiff proves and pleads all four elements, a defendant may raise certain defenses.   For example, a defendant can argue that the plaintiff assumed the risk of injury.   For example, a defendant can argue that the plaintiff understood the inherent risk of a sport and voluntarily consented to be exposed to the risk. 

In our prior example, do you believe that Dmitri assumed the risk of being hit by a foul ball?   While it is likely that Dmitri did not personally understand the risk of being hit by a foul ball, warnings are often printed on tickets warning spectators of the risk of foul balls and the possible injuries may occur.  Assuming such warnings were printed on Dmitri’s ticket, would the warnings printed on his admission tickets provide those parties sued with any defense to his claims?

Contributory and Comparative Negligence

In some states, the negligence of the plaintiff may reduce the damages awarded to the plaintiff.  For example, some states use a system of comparative negligence wherein the percentage of the plaintiff’s own negligence reduces his or her recovery.   For example, if a jury determines that a plaintiff’s own negligence contributed 40% to the accident, the plaintiff’s damages would be reduced by the plaintiff’s own negligence, i.e., 40%, under a comparative negligence scheme.  Similarly, a handful of states completely bar plaintiffs from recovery if the plaintiff played any role in the accident under a contributory negligence scheme.

Intentional Torts

In contrast to negligence, there is a sub-class of torts that address intentional actions done by a party to people and/or property including:

A)      Battery

B)      Assault

C)      Defamation

D)     False imprisonment

E)      Intentional Infliction of Emotional Distress

F)      Invasion of the Right to Privacy

G)     Trespass to Real Property

H)     Trespass to Personal Property

 

Products Liability Claims

There are times when the manufacturers of certain goods can be liable for defects in goods sold to the public.   For example, let’s say that a school system purchased a dozen baseball helmets to protect its baseball players from being injured when hit by a ball or a bat in the head.  If one of these helmets shattered on impact causing injury to one of the team’s players, the school may have a potential products liability claim against the helmet maker.

Products liability claims can arise under several theories including negligence, strict liability, and breach of a warranty.

Like other negligence claims, a plaintiff asserting a products liability claim based on negligence must allege and the prove that the four elements of negligence.  In contrast, a products liability based on strict liability need only prove that a product had a design or manufacturing defect.   Furthermore, a breach of warranty claim is a contract claim, wherein a consumer seeks a refund of any monies made for the merchandise.

Let’s now apply the three theories of products liability to the above fact pattern.

If the school sued under a negligent theory, the school would have to allege and prove that the manufacturer of the helmet owed wearers of the helmet a duty of care, that the manufacturer breached that duty by committing a negligent act, that the customer was injured, and that the customer’s injuries were proximately caused by the helmet manufacturer’s negligent act. 

If the school sued under a strict liability theory, the school would only have to allege and prove that the helmet was manufactured with a design defect.  While a plaintiff under a strict liability theory need only prove that the good had a design or manufacturing defect, many customers have a difficult time locating or identifying a product defect that caused the injury.

Finally, the school under a breach of warranty claim would have to assert that the helmet maker breached an implied or express warranty, i.e., that a helmet could withstand being struck by a ball.  As a remedy for the breach of a warranty, the school would seek a return of any monies paid for the helmets. 

Products Liability/Strict Liability

Historical Background

1) From “No Liability” to Negligence

- If Defendant negligently manufactures a product they are liable for any personal injuries proximately caused by his negligence

- Even if Plaintiff is an injured bystander, as long as they can show they were a foreseeable Plaintiff, they can recover for negligence

Strict Liability Rule:  (Rest. § 402a):

1)  Liable if you sell any product in a defective condition unreasonably dangerous to ultimate user/consumer IF:

a) seller is engaged in business of selling such a product

b) it’s expected to reach customer w/out substantial change

2) Applies even if:

a) seller exercised all possible care in preparation and sale of their product

b) user has not bought product from or entered into any contractual relation w/ seller

3) Retailers:  strict liability also applies to any other person in the business of selling such products (ex-helmet maker defective helmet even if they didn’t know and were completely careful)

4) EXCEPTION:

1)  no strict liability if product is unavoidably unsafe and its benefits outweigh its dangers  ex) prescription drugs,

2)  selling through service:  blood banks, pharmacies, electric co.

3)  if danger is very obvious and commonly known to consumers in general, the product won’t be found defective or unreasonably dangerous, ex) knives

5) Notes:

·         Seller is NOT liable if they deliver product in safe condition and mishandling or other causes make it harmful by the time it is consumed

·         Unreasonably dangerous:  dangerous beyond what would be contemplated by an ordinary customer w/ ordinary knowledge of its characteristics

·         Plaintiff  has burden to prove that product was defective when it left the hands of the seller and that the defect proximately caused their injury

 Manufacturing and Design Defects

Manufacturing Defects are when the defect is different from the way it was intended to be built.  Strict liability only for manufacturing defects.

1)      Plaintiff must prove that the Defendant negligently constructed product and injury was caused by defect

2)      Causes: improper workmanship, defective materials, mishap in production

3)      Design Defects: design itself was incorrect and unreasonably dangerous, and harm is foreseeable

·         Negligence, Π must show that Δ acted negligently by designing the product a certain way

·         Compliance w/ regulations governing the design does not absolve liability

Failure to Warn

Rule:  Defendant has duty to warn if a product properly designed and manufactured has a non-obvious risk of personal injury, and must give instruction concerning correct use if a reasonable consumer might misuse the product in a foreseeable way.  Warning should:  1) get people’s attention; 2) after getting attention, inform user of what the risk is; and 3) inform the use of how to avoid or minimize the risk.

Exceptions:     

a) Defendant did not know or should’ve known of a danger at time of sale

b) Defendant complied w/ labeling requirement the warning may be adequate

c) Rest. 3rd Edition:  when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, the safer design is required over a warning that leaves a residual effect of such risks

Defenses

Rule: Comparative negligence is a valid defense in strict liability cases

1)  State-of-the-Art

RULE:  if manufacturer did not and could not have reasonably known of the danger at the time of the manufacture, it will not be strictly liable. 

2)  “Misuse” and other Plaintiff Misconduct

a.  Misuse:  only a defense if it was not foreseeable that Plaintiff would misuse the product in that particular way, or if Plaintiff confronts a known and obvious danger, or Plaintiff uses misconduct in changing the product (Plaintiff’s use must be voluntary and unreasonable):

- if product has a defect this doesn’t apply

-  if Plaintiff failed to inspect the product this doesn’t apply

3)  Pre-emption by Federal Law

a.        if a labeling requirement is imposed by federal government, compliance w/ federal standard is a complete defense to Defendant’s “failure to warn” claim

Employer Liability for Employees:

1) Worker’s Compensation

a. Employee loses right to sue under this

b. Employer is liable for on-the-job(arising out of and in the course of employment) injuries (even though they may occur completely w/out fault)

2) Respondeat Superior

RULE:  If an employee commits a tort during the scope of his employment his employer will be liable (jointly w/ employee)—applies to all torts

a. Employee is one who works subject to the close control of the person who has hired him (independent contractors don’t normally fall under this) (such as food and beverage from outside companies at the stadium)

b. Employee must act within the scope of his employment.  This means acting with an intent to further his employer’s business purpose, even if the means he chose were indirect, unwise, or forbidden.

3) Employers can also be sued for failing to properly supervise, train or hire employees.

Premises Liability:

Premises liability is a limited duty tort.  It encompasses the legal liabilities that occur when a person is injured on another’s premises.  Some examples of premises liability actions include slip and falls (most common), falling objects that are part of the premises’ structure and cause injury, broken seating, exploding pipes, lack of exit doors for size of crowd during an emergency, or dangerous conditions that are not remedied or watched to prevent injury (such as construction).

There are three (3) types of parties in premises liability:  Trespassers, Licensees, and Invitees 

1.  Trespassers:  persons present w/out a privilege or the consent of the possessor (afforded least protection)

2.  Licensees:  present w/ consent, but there for their own purposes (entitled to somewhat greater care)

3.  Invitees:  person’s present on the land at the possessor’s invitation and for possessor’s benefit (owed reasonable care under circumstances)

Most sports fans are considered invitees.  They have been invited to attend sports games as a spectator.  A trespasser that snuck into a game will still be afforded protection, but the owner has less liability, since they could not have known the trespasser was there.  

1. Trespassers:

RULE:  landowner owes no duty to a trespasser to make her land safe, to warn of dangers on it, to avoid carrying dangerous activities on it, or to protect the trespasser in any other way

EXCEPTIONS:

a) Constant trespass on a limited area: if owner has reason to know that a limited portion of their land is frequently used by various trespassers, they must use reasonable care to make the premises safe or at least warn of dangers

b)  Discovered Trespassers:  once an owner has knowledge that a particular person is trespassing, the owner is then under a duty to exercise reasonable care for the trespassers safety

c) The Attractive-Nuisance Doctrine

1) Knew or should’ve known kids would frequent the place and play about it

2) Condition involved unreasonable risk of harm or death to kids that defendant knew or should’ve known

3) Child would not realize risk 

4) Utility of eliminating danger was slight as compared to probability of injury resulting there from

For example – If a child snuck into a game, while unsupervised since the lifeguard had left his post, and jumped in one of the new pools at the NFL Jacksonville Jaguars stadium and drowned, this would be considered an attractive nuisance.  

2.  Licensees:

Licensee:  person who has owner’s consent to be on the property, but has NO business purpose of being there, or anything else entitling them to be on the land other than consent for owner (family, social guests)-NO special precautions

RULE: owner does not owe any duty to inspect for unknown dangers, although if they know of a dangerous condition they must warn the licensee of it

3.  Invitee:  persons who are invited by Owner onto land to conduct business with Owner, and also those who are invited as members of the public for purposes for which the land is open to the public

RULE:  Owner owes a duty of reasonable inspection to find hidden dangers, and Owner must  use reasonable care to warn, take affirmative action to fix dangerous conditions, or exercise control over third persons

Note:   Torts § 332:  land is not held open to public just because the owner permits members of public to use land for their own purposes –owner must indicate in some way that the public is encouraged to use the land.  

Note: If visitor’s use of premises goes beyond the business purpose or beyond the part of the   premises held open to the public, the person changes from invitee to licensee

Other types of policies that sports stadiums employ for the safety of the fans and athletes include:

-Clear plastic bags (no more purses) at NFL games

-Colleges preventing any liquids to enter a stadium

-No straws at certain arenas

-No caps provided to fans if they purchase a bottled beverage

Alcohol Liability & Stadiums:

Liability of Stadium Owners

1) If a host who serves liquor knowing that both the guest is intoxicated  and that he will soon after be operating a motor vehicle, is liable for injuries inflicted on another party as a result of the negligent operation of a motor vehicle by the adult guest.  

a. Although most states don’t hold this today, since statutes are in place instead, social hosts, such as stadium owners, are not held liable today, because of the implications and expenses that would be created.

2) Hard to sue providers of alcohol so try to find other reasons to sue the Stadium Owners: entrustment, assumed duty, duty to invitees, public duty, intentional tort, respondeat superior(employers responsible only when employee is acting w/in the scope of your employment)

3) Since employers exercise control over an employee, they have a duty to take such action as a reasonably prudent employer under same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others

a. This means that the Stadium Owner has a duty to properly train and supervise employees regarding serving beverages and placing policies in place and having security to protect fans against improper alcohol consumption that could have dangerous consequences.  

Please read the below law review journal article that discusses premises liability and the liability concerns for stadium owners where fan-on-fan alcohol fueled violence occurs. You will need to obtain the article from Nexis Uni in the APUS Library tab.

Bridget Fitzpatrick, Broken Bats And Broken Bones: Holding Stadium Owners Accountable For Alcohol-Fueled Fan-On-Fan Violence, 22 Jeffrey S. Moorad Sports L. J. 663 (2015).

Please read the below law review journal article regarding risk management strategies for stadium owners and protecting fans from terrorism in a post 9/11 world. You will need to obtain the article from Nexis Uni in the APUS Library tab.

Thomas A. Baker, III, Perceived Risk of Terrorism and Related Risk Management Practices of NCAA Division 1A Football Stadium Managers, 17 J. Legal Aspects of Sport 27 (2007).

Stadium Owner Liability in Spectator Injury Cases

Please review the law review journal article at the below link, regarding stadium owner liability when a fan gets injured as a result of the game.

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1170&context=sportslaw

Please make sure to also review the following lessons:

Chapter 3 – Legal Principles in Tort Law

Chapter 4 – Application of Tort Law to Sports

· Week 3

In Chapter 5, we will examine athletic associations.  In Chapter 6, we will read about the student athlete and constitutional law.  This chapter is organized by type of rule or law.  In the case of NCAA and high school rules, you will review a historical background and reasoning for why certain rules were adopted in the first place. This week you will learn about the regulatory and administrative law side of sports. We will be examining both state and federal laws as they apply to professional sports, the Olympics, as well as high school and collegiate athletics.

Regulations in the NCAA

The NCAA was formed in the early 1900s in response to the rugged nature of football.  People were concerned with the injuries, including death, which occurred.  In early December 1905, Chancellor Henry M. MacCracken of New York University brought thirteen institutions together to propose changes in football playing rules.  At a subsequent meeting held on December 28, the Intercollegiate Athletic Association of the United States was founded.  It adopted its present name, NCAA, in 1910.

During a special summer convention, the NCAA enacted harsher enforcement and penalties for schools in violation of NCAA regulations.  The “death penalty” was created to suspend universities from play for up to two years if they violate a major NCAA rule twice in five years.  The “death penalty” has only been used once—against Southern Methodist University.  SMU was found guilty of serious recruiting violations, specifically that boosters had paid athletes during 1986 season.  NCAA suspended football for 1987 season and SMU voluntarily sat out 1988 season.

The NCAA Manuals are important tools to use in conjunction with this week’s lesson.  You may view all NCAA manuals available online at: http://www.ncaapublications.com/

Regulations in the Olympics

Please review the below website regarding the various regulatory agencies of the Olympics. You should also explore the information regarding The International Federations (Ifs), before beginning this week's Forum post.

https://www.olympic.org/about-ioc-institution

Regulating Professional Sports

Please read the below law review article that discusses the regulation of the four major professional sports leagues in America. You will need to obtain the article from Nexis Uni in the APUS Library tab. 

Nathaniel Grow, Regulating Professional Sports Leagues, 72 Wash. & Lee L. Rev. 573 (2015).

Youth Sports & PED's

Please review the below law review journal article regarding the regulation and federal laws surrounding performance enhancing drugs (PEDs) and the youth of America. You will need to obtain the article from Nexis Uni in the APUS Library tab.

Steven M. Silverberg, Safe At Home? Assessing U.S. Efforts To Protect Youths From The Effects of Performance Enhancing Drugs In Sports, 35 Brooklyn J. Int'l L. 271 (2010).

Please make sure to also review the following lessons:

Chapter 5 – Athletic Associations

Chapter 6 – The Athlete and Constitutional Law

· Week 4

Welcome to week 4!  This week we will be reading Chapter 7 & 8 of our ebook and completing the Midterm Exam.  

In Chapter 7, we will read about drug testing and policies.  Some key concepts we will examine include: 1) the difference in drug policies in a collective bargaining situation vs. a non collective bargaining situation; and 2) when constitutional law arguments can be used and when they cannot (state actors, non state actors).

The six legal principles involved in drug testing cases are as follows:  state action, due process, equal protection, invasion of privacy, unreasonable search and seizure, and self-incrimination.

The constitutional safeguards of the 5th and 14th amendments of the U.S. Constitution apply only when state action is present.  Any action taken directly or indirectly by a state, local, or federal government is state action for constitutional purposes.  In addition, action by any public school, state college, or state university or any of their officials is construed as state action.  In order to subject a voluntary, private association to constitutional limitations, some degree of state action must be present.  Public functions that are done by private actors are considered state action.

To succeed on a federal constitutional claim, one must show:  (1) that state action exists, (2) that the claim is not frivolous, and (3) that the claim concerns a right of sufficient importance to be litigated in federal court.

The right to participate in sports is not a fundamental right, and therefore, athletes are not afforded substantive due process rights.  However, if an athlete is likely to play professionally, and therefore earn a substantial salary, the athlete may be able to say he or she has a property interest in playing sports.

Equal protection is the constitutional method of checking on the fairness of the application of any law.  This governs government laws which classify individuals or which impact on individual rights.  Equal protection requires that no person be singled out from similarly situated people, or have different benefits bestowed or burdens imposed, unless a constitutionally permissible reason for doing so exists.

Strict Scrutiny – the rule challenged will be invalidated unless the defendant can demonstrate that the rule is supported by a compelling state interest.  The burden of proof is on the defendant.  Used for classifications involving race, alienage, and national origin and also for fundamental rights.  Intermediate Scrutiny – requires that rules classifying certain groups satisfy and important but not necessarily compelling interest.  Burden of proof is on the defendant.  Used for classifications of gender and legitimacy.  Rational Basis – requires only that the rule have some rational relationship to a legitimate organizational purpose.  Burden is on the plaintiff to prove that there is not a rational relationship.  Used for all other classifications – age, non-fundamental rights (welfare payments, housing, government employment, and education).

Overinclusiveness means that the legislative class includes many people to whom the rule in question lacks a rational relationship.  Underinclusiveness exists when a class does not contain all the members necessary to effectuate the rule’s purpose.

Due process protects life, liberty and property and the process used to deprive people of these three things.  Equal Protection ensures that people are treated fairly in relation to other similarly situated people -- for classifications.

A random mandatory drug test is conducted at random and it is mandatory for the athlete.  The probable cause drug test, on the other hand, is conducted when officials have reason to believe that the athlete is using drugs.

Critics of the NCAA’s drug testing program claim that it does not:  (1) safeguard student-athletes’ procedural rights, especially in regard to the appeal process for a positive test, (2) safeguard the student’s privacy rights, especially when the media become aware of a test result, (3) give the student-athletes sufficient information before they sign the mandatory consent form, and (4) ensure that the school will represent the student-athlete’s interests and rights when an athlete tests positive.

How does World Anti-doping Agency treat an athlete who does not appear for a drug test? The athlete is immediately suspended for two years.

What are the key components of the USOC drug education program?

The key components of the USOC drug education program are:  (1) the education of athletes, coaches, and administrative and medical personnel about appropriate uses of medications and the problems associated with misuse and abuse, (2) periodic drug testing of athletes for banned substances to deter tempted athletes from resorting to these substances, and (3) support of selected research that would allow more effective educational and testing programs.

The USOC seeks to identify the use of drugs in the following major categories:  stimulants; anabolic steroids; narcotics and certain painkillers; tranquilizers, sedatives, beta-blockers, and alcohol, in certain sports; diuretics; and peptide hormones, and analogues.

In Chapter 8, we will read about gender discrimination in athletics.  The chapter is divided into two sections.  The first part of the chapter is organized by legal theory, while the second part of the chapter is organized by fact situation (i.e.-contact vs. non-contact, whether there are male and female sports, etc.).   The three primary legal theories used to challenge gender discrimination in athletics are Title IX, Equal Protection, and State Equal Rights Amendments.

The courts apply the intermediate test to claims of gender discrimination under the equal protection clause.  (8.1.3)  Gender-based classifications must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.

The Office of Civil Rights evaluates the level of competitive opportunities in one of three ways:  (1) are intercollegiate competitive opportunities provided in numbers substantially proportionate to the respective enrollments of each gender; (2) is the institution’s current and historical practice of program expansion responsive to the athletic interests of the underrepresented gender; and (3) does the institution accommodate the abilities and the interests of the underrepresented gender in the current program.

Under Title IX, the programmatic approach provides that only the specific program that receives federal financial assistance is subject to Title IX.  The institutional approach provides that if any program at an institution receives federal financial assistance, the entire institution is subject to Title IX.  The Civil Rights Restoration Act of 1987 overruled the Supreme Court’s decision in Grove City College, where the Supreme Court held that Congress intended the programmatic approach.  Currently, the institutional approach is used.

What are the three main areas involved in Title IX compliance? (8.1.1.3) The three main areas involved in Title IX compliance are as follows:  financial assistance, benefits and opportunities, and accommodation of student interests and abilities.

The significance of Cohen v. Brown University (8.2.2):

Brown University dropped four varsity sports – two men’s and two women’s.  Brown’s student-athlete population was 39 percent female, and remained so after the four sports were dropped.  The court ruled that Brown failed to accommodate the interests and abilities of females.  The court said it was clear that interests and abilities were not being accommodated because there were two sports where females had the ability to play and were interested in playing – the two dropped women’s sports.  The court granted an injunction ordering Brown to reinstate the two women’s sports to varsity status.

What is Title IX?  Was it designed specifically for athletics? (8.1.1)  Title IX was not designed specifically for athletics.  It was part of a 1972 Education Amendment saying that no person in the United States should be denied opportunities based on sex.  Decisions linking Title IX to athletics in education came later.

Title IX and Sexual Harassment in Sports

Consider the following situation.

Jersey Shore College is a co-ed private institution that participates in the federal loan program as well as numerous other federal programs.  Historically, the student body of the school has been around 50/50 men to women.  However, in recent years, women make up around 60% to 70% of the student body due to the lower rates of high school graduation from male students.  Because of budget concerns, Jersey Shore College funds only three sports: male and female basketball teams, male and a female soccer teams, and a male wrestling team.  The male wrestling team is composed of five team members.   A member of a student group called “Gender Equity” writes an op-ed into the student newspaper calling “gender equality” on campus.  The op-ed writer highlights the fact that men make up only 35% of the student body, but make up more than 60% of the student athletes.   To promote gender equality, the op-ed writer advocates for either the creation of female wrestling team, the creation of a another team sport for women, or the elimination of the wrestling and the men’s basketball team to reflect the male/female ration of the student body.  In response to the op-ed, the school eliminates all sports citing budget concerns.  Does the complete elimination of sports comply with Title IX’s intent and guidelines?  

Title IX

To understand this week’s fact pattern, a little history lesson is needed.  

Title IX of the Civil Rights Act of 1964 states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

In part, Title IX of the Civil Rights Act of 1964 was enacted to prevent gender discrimination at colleges and universities including in the distribution of funds for male and female sporting teams.  Prior to the enactment of Title IX, few colleges and high schools financially supported female sports teams and activities.   Title IX, in part, sought to rectify the disparity between male and female sporting activities.  

To determine whether a school whether a school is compliance with Title IX, judges have established a three part test:

1.  The first part of the three part test looks at whether participation opportunities for male and female students are provided in numbers substantially proportionate to the school’s undergraduate enrollment.

2.  The second test focuses on whether the institution can show a history and continuing practice of program expansion responsive to the developing interests and abilities of the members of the underrepresented sex.

3.  The third test looks to whether an institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.  To determine whether these interests have been accommodated, schools must survey their students to determine their interests and abilities.

Courts have held that schools can comply with Title IX by comply with any part of the three part test.  Specifically, judges have held that schools can comply with the first test of the three part test and be in compliance with Title IX.  The first part of the test is called the safe harbortest.

So to return to our fact pattern, the school could have complied with Title IX in a number of ways. First, the school could have eliminated the wrestling team and then the school would have had an equal distribution of men and women participants.  Likewise, the school can comply with the safe harbor test by creating a new women’s team that is equal in size to the male wrestling team.

Next, the school could comply with Title IX by satisfying any of the other part of the three part test.   For example, the school can comply with Title IX by demonstrating that it has a long history of expanding opportunities for women, i.e., that it has developed a number of sports teams for women.  In this fact pattern, the school does not have a history of creating female teams to address former gender disparity.  Thus, this prong of the three part test does not seem appropriate.

Third, the school can comply with Title IX by conducting a survey of its students to gauge interest in female sports.  For example, it is possible that female interest in sports is very low and that the disparity between the student body male to female ration is acceptable given the low interest in sports by women. 

If sports are completely eliminated for both men and women, it also possible that this remedy would satisfy Title IX’s requirements as women and men would be treated equally.

Just remember that there are multiple ways that a school can comply with Title IX.

Sexual Harassment

Every sporting organization must guard against sexual discrimination in employment decisions.   In addition to discrimination in employment, sexual harassment or the unwelcome conduct of a sexual nature remains an issue that sporting organizations must address. 

Consider the following  two situations to illustrate the difference between two different types of sexual harassment.

Kim, an attractive young lady, obtained a job as a personal  athletic trainer at a local gym.   Because of her position as an athletic trainer, she wears close fitting clothing.  One of her co-athletic trainers James is attracted to Kim.  On several occasions, James asks Kim out on a date.  However, Kim, who is married to another woman, rejects James’ advances.  Later, James finds out that Kim is in a lesbian relationship.  One day, James tell a number of female clients of the gym about Kim’s sexual orientation and states, “You better watch out Kim may make the move on you.”  As a result of James’ actions,  Kim losses several  female clients who feel uncomfortable working  with a lesbian personal athletic trainer ask the gym for a new trainer. 

This is a potential example of hostile work environment harassment. However, Jim is likely to argue that his comments to the female clients were not severe or pervasive enough as to constitute hostile work environment harassment.   Moreover, James is likely to argue that the gym did not take any adverse action citing the gym’s clients made the decision to switch personal trainers based on the client’s preferences.

Next consider an example of quid pro quo sexual discrimination.

George is the manager of the local gym.  He possesses the ability to hire and fire employees.  One day, George asks out Kim.  George states that Kim would go out on a date with him that this would help her situation.  George further states that dating him would “quell rumors floating around about her.” Kim states that she is uncomfortable with George’s proposal and that she is a lesbian.  A few days later Kim gets fired from the gym.   When she inquires in the reason why she was terminated, George states, “You just don’t fit here.  Good luck.”  

If Kim were to sue the gym,  Kim would have to demonstrate that her termination was linked to George’s proposal.   Also, Kim would have to demonstrate that the gym should be liable for George’s actions, i.e., that the gym either knew about George’s inappropriate behavior or the gym was deliberately indifferent to his behavior.  Deliberate indifference occurs when an employer or another party with the ability to make adverse decisions knows about an instance of sexual harassment and does not take any actions to address or remedy the situation.

Employment Discrimination

Let’s consider the following situation.

Molly is the head coach of woman’s basketball at Jersey Shore College.   James is the head coach of the male’s basketball team at Jersey Shore College.   James is paid $150,000 per year, while Molly is paid $75,000 per year.   For the past five years, the female basketball team possesses a winning record, while the men’s team possesses a losing record.   At their annual reviews, both James and Molly ask for pay raises citing the salaries of other college head coaches in the area.  James receives a raise of $50,000.  Molly receives a raise of $10,000.  After she receives her raise, Molly complains that she has been discriminated against.  Specifically, she argues that she is paid differently because of sex.  The school responses that she is paid differently from James because the male basketball team generates almost ten times more revenue for the school in comparison to the women’s team.  Molly responses that the amount of revenue generated by the male basketball team is irrelevant. Instead, of focusing on the amount of revenue generated by the men’s team, Molly argues that the school should be focused on her performance and the tasks that she completes.  Again, the school replies that James is often asked to obtain sponsors for the team and such efforts have resulted in almost one million dollars of sponsorship deals. 

Who do you agree with the school or Molly?   Do you think that the jobs are substantially similar?  Do you think that it is relevant that the men’s team generated more revenue than the women’s team as a matter of law when evaluating the two positions?  Also, is it relevant that James has been asked to obtain sponsorship funds for the school?

If you were Molly’s attorney, would you recommend that she bring a claim under Title VII or under The Equal Pay Act or both?

Title VII requires a showing of an adverse action.  In the above fact pattern, Molly is likely to argue that paying her less than Molly is an adverse action taken and that this action was taken because she is a woman. 

In contrast to Title VII, the Equal Pay Act requires a showing that a person performing a similarly situated occupation was paid less than another similarly situated employee because of his or her sex.  Here, Molly will likely argue that she completed the same tasks and functions as James and should have been paid equally under the Equal Pay Act.

Do you think that Molly would prevail under either the Equal Pay Act or Title VII?   What legal defenses would the school likely raise? 

--------------------------

Please review the below law review article regarding Title IX.  You will need to obtain the article from Nexis Uni in the APUS Library tab.   Deborah, Brake, Revisiting Title IX's Feminist Legacy: Moving Beyond The Three-Part Test, 12 Am. U.J. Gender Soc. Pol'y & L. 453 (2004).  

Please make sure to also review the following lessons:

Chapter 7 – Drug Testing & Policies

Chapter 8 – Gender Discrimination in Athletics

· Week 5

Welcome to week 5 of the course!  This week we will be reading Chapters 9 & 10 of our ebook, regarding contract law and antitrust law.

CONTRACT & EMPLOYMENT LAW IN SPORTS

Consider the following fact pattern:

Desmond James aged twenty-two is a top college running back from the University of Alabama.  In the 2014 college season, Desmond James rushed for over 1,000 yards and scored more than a dozen touchdowns.  Because of his performance in college, the Green Bay Packers drafted Desmond James with their number one pick in the 2015 draft.   Thereafter, the Green Bay Packers offered Desmond James a “rookie contract.”   The rookie contract provided Desmond James with a guaranteed salary of $250,000 for his first year, $350,000 for his second year, and $500,000 for his third year.    The salary amounts contained in this “rookie contract” were the product of extensive dealing with the National Football League, the owners of each individual teams, and the union that represented the players’ union.   Prior to the implementation of the standardized “rookie contracts,” pay for rookies varied widely with some first year players getting paid much more than $250,000 for their first year.   Upon the advice of his agent, Desmond James signs the “rookie contact.” Relying upon an arbitration clause contained in the “rookie contract,” Desmond James challenges the “rookie contract” arguing that the contract is unconscionable, i.e., that it is unfair.   According to Desmond James, the free market should determine how much he should be paid.   Moreover, Desmond James argues that he would have been able to negotiate a higher salary if his agent were allowed to represent his interests.  In response, the league, the Green Bay Packers, and the players’ union argue that all current and future rookies were represented during the multi-year discussions over the salary contained in the “rookie contract” that Desmond James signed.  Additionally, these parties argue that the “rookie contract” contained a number of protections, including guaranteed pay for three years that should not be overlooked. 

Do you believe that Desmond James’ challenge to the “rookie contract” will be successful? 

The Elements of A Contract

To understand the fact pattern, one must understand the basic elements of any contact.   

In order to have a valid contract, there must be an agreement among the parties regarding the terms of a contact.  

In the above fact pattern, the Green Bay Packers offered Desmond James a contact that contained certain terms including salary provisions.   Here, in the salary provisions of the contract, the Green Bay Packers agreed to pay Desmond James a certain salary.   By agreeing to pay Desmond James a certain salary, the Green Bay Packers made Desmond James an “offer.”  An offer is the promise to do something or refrain from doing something.

Also in the fact pattern, Desmond James signed the contact.   The act of signing the contract may be interpreted as an “acceptance” or an agreement of the terms of the contact.   While Desmond James objected to the salary under the dispute resolution clause of the contract, some may argue that Desmond James’ arguments related to salary should have be raised prior to his signature on the contract.

In addition to an “offer” and “acceptance,” any valid contract must contain “consideration.”   “Consideration” is an exchange of value for an exchange of promises.   For example, in our fact pattern, the salary that the Green Bay Packers promised to pay Desmond James and the work that Desmond James promised to provide to the Green Bay Packers is the “consideration” in the fact pattern.

Furthermore, any contract must be legal and the parties to a contract must contain the legal capacity to enter into the contract.  In our fact patter, there is no indication that Desmond James lacked the legal capacity to enter into his contract due to his age,  mental capacity, or competence.

Thus, it would appear that the elements of contract were present in the fact pattern including offer, acceptance, consideration, and the ability of the parties to enter into a contact were present. 

However, it would appear that Desmond James is challenging one of the clauses or provisions of the contract, i.e., the salary provision.

The Parts of a Contract

As set forth in our readings, a sports contract contains a number of provisions including:

1)      The designation of the parties

2)      The terms of the agreement

3)      Certain warranties and representations

4)      The obligation and duties of the parties

5)      The termination provision

Different Types of Contracts in the Sports World

As set forth in our readings, there are a number of types of contracts in the sports world including:

1)      Student-Athlete Contracts

2)      Employment Contracts

3)      Endorsement Contracts

4)      Contracts between Agents and Athletes

5)      Contracts between Sports Teams and Venues

6)      Lease Agreement between Teams and Stadiums

7)      Lease Agreements between Teams and Fans for Seats

Waiver Clauses

One of the main clauses found in many sports contracts is a waiver clause.   A waiver clause is a clause between a party and a sports organization, wherein the participant agrees to absolve the sports organization of liability if any injuries occur during the sporting event.

Below is an example of a waiver clause:

Release and Hold Harmless: I, in consideration of the University of Alabama at Birmingham and UAB Outdoor Pursuits permitting my rental and usage of the equipment, agree to hereby release, discharge defend and hold harmless the University of Alabama Board of Trustees and its trustees, officers, agents, and employees from any claims, expenses, damages, or loss to person or property arising from my participation in any activities, including but not limited to travel accidents or equipment failure incidental to the activity.

As set forth in our readings, sometimes waiver clauses are challenged under two grounds.  First, waiver clauses are often challenged under fairness grounds, i.e., that there was a disparity between the negotiating power of the parties.   Second, some parties challenge the wording of the waiver agreements, arguing that the clause was written in confusing manner.

What Happens if Something Goes Wrong

Let’s return to our fact pattern dealing with Desmond James.  Assume that Desmond James was so upset with his contract that he refused to show up to work?  What type of damages could the Green Bay Packers pursue?

As discussed in our reading, there are various types of remedies.   Clearly, the Green Bay Packers would like Desmond James to fulfill his contract.   Where a party wants another party to act or refrain from acting, this is referred to as specific performance.

But, let’s say that Desmond James does not perform.  Can the Green Bay Packers get any other damages?

The Green Bay Packers may seek compensatory damages, consequential damages, or liquidated damages. 

Liquidated damages are damages that are set forth in the contract for a breach of the contract.  

Let’s return to the Desmond James example.  Desmond James’ contract is likely to include a clause that states that if Desmond James breaches that he is liable to pay the Green Bay Packers a certain amount.   This is an example of a liquidated damages clause.

In addition to liquidated damages, the Green Bay Packers may seek compensatory and consequential damages.   Compensatory damages are amount of damages equal to the amount of money that the team lost as the result of Desmond James’ breach.  In contrast, consequential damages are those economic damages caused by a breaching party’s actions.  For example,  the Green Bay Packers may seek consequential damages for any lost ticket sales. 

However, it is important to understand that the party who is subject to the breach must reduce his or her damages and cannot allow his or damages to accumulate needlessly.   This is referred to as the duty to mitigate damages.  Thus, if Desmond James breached his contract with the Green Bay Packers, the Green Bay Packers would have to take measures to reduce their damages.

Negotiating Sports Contracts:

Please watch the following video located at the link below.

Sports Law: Rules of the Game, by Steve Baker, Esq. (courtesy of cce-mcle.com)

*Please note - closed captioning is available.*

Please make sure to also review the following lessons:

Chapter 9 – Contract Law

Chapter 10 – Antitrust Law

· Week 6

Welcome to week 6 of the course!  This week we will be reading Chapters 11 & 12 of our ebook, regarding labor law and agency law.

In Chapter 11, we will evaluate how labor law in America has affected the sports industry. 

Employment Law & Sports

While most employment in the United States is at-will, i.e., that an employment relationship may begin and end for any reason, sports professionals such as coaches, owners of gyms, and other professionals charged with making employment decisions encounter a complex regulatory environment that prohibits discrimination against people who possess certain characteristics.   For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, national origin, gender, or religion.   In addition to Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act prohibits discrimination based on age and the Americans With Disabilities Act of 1990 bars discrimination based on an applicant or an employee’s disability or perceived disability.

Race Discrimination

First, it is important to understand that discrimination based on race is prohibited.  However, it is not sufficient to merely allege that a person was discriminated against based on race to win a racial discrimination claim.  Instead, a person alleging racial discrimination must also allege and ultimately prove that he or she was qualified for the job and that the job was offered to some in the unprotected class.

But, let’s remember that Title VII of the Civil Rights Act of 1964 does not apply to employers of less than 20 employees.  Thus, a claimant must also prove that the employer has more than 20 employees.  

Even is a Plaintiff cannot make out a viable Title VII claim, they may still have a racial discrimination claim based on state or local anti-discrimination law. 

Gender Discrimination

As set forth above, it is not legally sufficient to allege that one is a member of a protected class to win a discrimination claim.  Instead, a person alleging sex discrimination, like race discrimination, must also allege and also prove that they were qualified for the position and that a person outside of the protected class was hired.  

Age Discrimination

The Age Discrimination in Employment Act prohibits discrimination with regard to age.  However, like Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment only allies to employees with 20 or more employees.   

Assuming that a judge found that the employer possessed 20+ employees, the candidate would still have to demonstrate that she was qualified for the position.  As set forth in our reading, the business necessity defense holds that a requirement of a job may exclude a candidate even though a job requirement may have a discriminatory effect.   Therefore, you may argue that business necessity defense is a defense to any claim of age discrimination. 

Disability Discrimination

Pursuant to the Americans with Disabilities Act of 1990, it is unlawful to discriminate against people because of a disability. In the sports context, the Americans with Disabilities Act often address how to accommodate spectators with disabilities.    For example, many stadiums and sporting venues have had to make amendments to comply with the requirements of the Americans with Disabilities Act, including building ramps, lowering counters, and rearranging other amenities to accommodate individuals with disabilities.   However, it should be noted that certain facilities built before the enactment of the Americans with Disabilities Act may be exempt from some, or all of, the requirements of the Americans with Disabilities Act if doing so would be burdensome or excessively costly.  

Sex Discrimination Claims of the Male Candidate

Now, let’s turn to the potential claims of the male candidate.

Can a male candidate bring a sexual discrimination claim?  From a plain reading of Title VII of the Civil Rights Act of 1964, discrimination based on gender is prohibited.  However, white men are not considered a protected class.  In our reading, a concept is discussed that is relevant to our discussion of sexual discrimination.  In certain limited circumstances, an employer may intentionally discriminate against a candidate based on gender or sex.  This defense is commonly referred to as the bona fide occupational qualification (BFOQ defense).  In order to raise this defense, an employer must prove that a certain qualification is necessary, for example, a female attendant who is working in a female locker room.  Because requiring a candidate or an employer to possess a certain characteristic may discriminate against a certain class of people, this type of defense is limited and can never be used to exclude someone based on race.  

Sexual Harassment

Having discussed the various types of discrimination claims under federal law, we can now turn to a form of sexual discrimination claim called sexual harassment.  Sexual harassment is defined as conduct sexual in nature that creates a hostile or abusive work environment.  There are various types of sexual harassment claims including quid pro quo claims (where the harasser promises something of value in exchange for sexual favors or a romantic relationship) and hostile work environment claims (a series of sexual insults and intimidation due to the sex of the victim).

Other Federal Laws Impacting Sport Professionals

A)      Occupational Safety and Health Act-a federal law that deal with various health and safety issues at the workplace.

B)      Fair Labor Standards Act-addresses child labor and overtime pay.

C)      Family and Medical Leave Act-provides for 12 weeks of leave for employees with family issues.

D)     Consolidated Omnibus Budget Reconciliation Act-Provides that terminated employees must be allowed to continue their health insurance benefits for a certain time after being terminated from their employment.

E)      Health Insurance Portability and Accountability Act-sets forth several requirements for employers that provide health and other retirement benefits must provide certain protections to those employees. 

Please also review Section III of the below law review article regarding the new laws concerning the unionization of student athletes. You will need to obtain the article from Nexis Uni in the APUS Library tab.

Anthony Caruso, Collegiate Collisions on the Field and in the Courtroom: Will Labor Peace Save Student-Athletes from Further Injury?, 10 J. Bus. & Tech. L. 15 (2015).

 

Please also review the MLB CBA here:  http://www.mlbplayers.com/ViewArticle.dbml?DB_OEM_ID=34000&ATCLID=211078089

 

Please also review the NFL PA here:  https://www.nflpa.com/

 

Please also review the NBA PA here: https://nbpa.com/

 

In Chapter 12, we will review the concept of agency in sports and the laws concerning agents. 

Sports Agents

Please watch the following video produced by Forbes, interviewing Scott Boras, the leading sports agent in the world:

How Scott Boras Became The World's Most Powerful Sports Agent  - by Forbes

*Please note that closed captioning is available*

Agency

One of the main areas of sports law deals with the relationship between a sports agent and his or her client.  To understand the relationship between an agent and his or her client, one must understand agency law, i.e., the relationship between a principal and an agent.  In the sports world, the athlete is the principal or the individual who authorizes another person to act on his or her behalf.  The person that the athlete hires to act on his or her behalf is referred to as an agent.    In the sports world, a sports agent predominately negotiates contracts on behalf of an athlete. Also, a sports agent can assist an athlete with financial planning, estate planning, marketing, and a host of other tasks.

How Does One Enter into an Agency Relationship?

There are a number of ways that an agent and principal relationship can enter into a relationship. The most common way is by written or oral agreement.  Second, a person may act without a principal’s express permission or agreement and a principal may ratify his or her actions.   For example, an eager individual may want to prove his or her worth to a potential client and secure a lucrative contract or sponsorship deal on behalf a potential client without his or her express permission.  If the potential client accepts the contract or sponsorship deal, he or she has ratified the agent’s actions.  

Apparent Authority is Really Not a Form of Agency

Sometimes, a third-party improperly believes that a person is acting on behalf of another person.   For example, sometimes this confusion can be an innocent mistake.  Other times, the confusion be caused by fraud by the third party.   For example, sometimes a third-party may act like he or she represents an athlete to receive special treatment from certain merchants. This confusion of third parties of someone’s authority is called apparent authority.

The Various Methods of Entering Into an Agency Relationship

It is important to understand that an agency relationship can be created by either written or oral agreement.  However, a party must be capable to enter into an agency agreement in order for an agency agreement to be valid.   Remember that a minor (someone under the age of majority in a state) cannot enter into an agency agreement. 

The Difference Between Actual and Apparent Authority

There are two major types of authority under agency law.   As discussed above, an agent can possess either:   (1) actual or (2) apparent authority.  

An agent with actual authority possesses formal authority to act on behalf of a principal.  An agent’s actual authority can be either express or implied.   If an agent’s authority is express, an agent can only act in the manner and to the extent set forth by his or her agreement with the principal.  In contrast, an agent with implied authority can act with broader authority and take reasonable steps necessary to carry out the agent’s express authority.  

In contrast to actual authority that can be either express or implied, an agent with apparent authority does not possess any authority to act on behalf of a principal. Instead, apparent authority is the misunderstanding held by third-parties of a purported agent’s authority.

What Types of Duties Does An Agent Owe a Principal?

No Double Dealing

First and foremost, an agent must not take advantage of his or her position as an agent.   For example, the agent must place the interests of the principal over his or her own self-interest.   Let me give you an example, an agent cannot use his or her position as an agent to engage in what is referred to as double-dealing.   Double-dealing takes place when an agent places the interests of a third-party over the interests of his or her principal.   Double-dealing often takes place when an agent represents multiple athletes or principals in the same industry. 

Here is an example of double-dealing.

Marty is a high powered sports agent who represents multiple professional baseball players.  Marty has two clients who are both free agent outfielders and who are both being wooed by the New York Mets.   Through his dealings on behalf of one of these outfielders, Marty learns that the New York Mets are willing to play one of his clients substantially more than his other client.  Because he wants to place both of his clients, he advocates that the client who the New York Mets are going to pay less to sign with another team.  Based in large part on Marty’s advice, the outfielder whom the New York Mets wanted to pay less signs a five year deal with the New York Yankees for 10 million dollars per year, i.e.,  more than 8 million dollars more per year than the New York Mets were willing to pay the outfielder.  Soon thereafter, Marty’s remaining client signs with the New York Mets for a reduced rate.   Without the presence of the other outfielder in the market, the New York Mets are unwilling to pay Marty’s remaining client a high salary.  So, Marty’s second client (the outfielder whom the New York Mets were willing to initially pay a higher rate) gets paid less than 2 million per year the sum that the New York Mets were originally winning to pay.  

This is a classic example of double dealing where one client is harmed when another client benefits from an agent’s dual representation of two or more clients in the same industry.

Duty of Loyalty and Obedience

In addition to not double-dealing, an agent must be loyal to a principal.   Simply put, an agent must follow a principal’s instructions and not place the interests of others over the principal’s interest. 

What does a Principal Owe an Agent

Because a sports agent is fulfilling a number of important tasks for his or her principal, an agent needs to be paid for his or her work.   This compensation should be reasonable.   Additionally, an agent’s reasonable expenses should be reimbursed.   For example, sports agents often travel and incur expenses in their representation of a client and these expenses should be reimbursed by a client, if possible.   Moreover, a principal should deal with the agent fairly.    With this said, a principal can terminate an agency relationship if he or she believes that his or her interests would be better served by another agent.

Regulation of Sports Agents

Regulation of agents who represent athletes takes place at many levels.

Professional Athletes versus College/Student Athletes

It is important to understand that agents that represent professional athletes are highly regulated by the professional leagues. 

State Regulation of Agents Who Represent Student/College Athletes

Due to a series of scandals and perceived abuses in the past dealing with student-athletes,  a prominent group of lawyers recommended the adoption of a Uniform Athlete Agents Act to provide uniformity in the registration and certification of agents that deal with student-athletes.  To date, many, but not all, states have adopted the Uniform Athletes Agents Act.  Without getting into an extended discussion of the Uniform Athletes Agents Act, the model act spends a great deal of time outlining the responsibilities of an agent as well as how an agent will get paid.  Also, the model act provides the student-athlete with a warning that he or she may lose eligibility to play college sports if he or she signs with an agent or takes certain actions while a student. 

Federal Regulation of Agents Who Represent Student/College Athletes

In 2004, Congress enacted the Sports Agent Responsibility and Trust Act.   Like the Uniform Athlete Agents Act, the federal Sports Agent Responsibility and Trust Act requires agents to warn student athletes of the possible risks of signing with an agent.  Also, the Sports Agent Responsibility and Trust Act requires student athletes and their agents to inform the student athlete’s athletic director when and if a student athlete enters into an agreement with an agent.   While the Sports Agent Responsibility and Trust Act imposes new requirements on agents and student athletes, the federal law does not impose any registration or licensing requirements on agents.  Therefore, the states remain responsible for the registration and licensing of sports agents that deal with student athletes.

Professional Unions

In addition to regulation by the professional leagues, agents that represent athletes in the four major professional sports leagues, i.e., the National Football League, Major League Baseball, the National Basketball Association, and the National Hockey League, are regulated by the unions that represent professional athletes.   Each of the unions of the professional athletes impose a number of requirements on sports agents.  For example, agents that would like to represent professional football players need to complete extensive background check, pass an exam, and be college graduates with advanced degrees. Specifically, agents representing football players must possess a graduate or a law degree.  Additionally, agents that represent professional football players must attend an annual training conference each year.   Given the requirements set by professional unions, a relatively small number of individuals are certified by the professional unions.

Consolidation 

As we have learned this week, the agents that represent athletes, either student-athletes or professional athletes, operate in a highly regulated industry.  Because of the high level of regulation and the costs involved, a number of major sporting agencies have emerged as dominate players in the agency industry.

Disputes Between Agents and Athletes

As we discussed above, representation of multiple athletes poses a significant risk of double-dealing.  In addition to double dealing, agents and athletes often find themselves in disputes over fees and expenses as well as over the terms of the agent’s contract.   In addition to contract disputes, disputes often arise between agents and athletes over certain verbal or written representations made by an agent. 

Please make sure to also review the following lessons:

Chapter 11 – Labor Law

Chapter 12 – Agency Law

· Week 7

In Chapter 13, we will read about intellectual property law.  In Chapter 14, we will read about broadcasting and multimedia in sports.  In Chapter 15, we will read about business law in sports. 

IP Law & Sports

Consider the following situation:

At the last World Cup in Brazil, the Olympic Committee reviewed and approved a number of official sponsors.  Each official sponsor contributed at least one million dollars to the Olympic Committee. Because of the high costs involved in sponsoring, many local Brazilian companies were prevented from sponsoring the event.  One local company had a novel idea.  The owner of the local Brazilian company directed his employees to post hundreds of banners and posters around town welcoming visitors to town for the Olympics. The posters and the banners included an Olympic symbol. The posters and banners were printed in English and gave the appearance that the local company was associated in some way with the Olympics. 

Do you believe that the local company’s actions violated the Olympic Committee’s intellectual property rights? 

Trademark Law

To understand this fact pattern, we need to understand what intellectual property is.   As set forth in our readings, intellectual property law addresses a wide array of topics including trademarks, copy rights, the right to privacy, and patent law.

Let’s briefly explore each of these concepts. 

In our fact pattern, the Olympic symbol is a trademark.  A trademark is a word or symbol that an organization uses to identify and distinguish its services.   Another example of a trademark would be the logos of Coca-Cola or the McDonalds.   

In our readings, we explored how trademarks can be fanciful, descriptive, collective, suggestive, generic, or a service mark. 

In our fact pattern, the Olympic symbol can be either a collective or a service mark.   A collective mark is a symbol that represents an organization, while a service mark identifies and distinguishes the services of one entity from another.

In contrast, the symbols commonly associated with McDonalds and Coca Cola are arbitrary marks because the golden arches and the name Coke do not describe the products that are being offered for sale.

In contrast to the golden arches used by McDonalds and the use of the term Coke with cursive script by Coca Cola, companies that use marks that include descriptions of the product being sold are referred to as descriptive marks.  For example, a golf company that uses a logo that includes a golf ball would be an example of  the use of a descriptive mark.

In addition to arbitrary, descriptive, collective, and service marks, some companies use suggestive marks.  A suggestive mark is a mark that provides a hint about the goods or services being offered for sale.  For example, a company that uses a logo that includes a man carrying a box with the word “Pizza” would provide any potential consumers that pizza is being offered for sale by the company. 

Finally, some companies use logos and trademarks that become so linked with a particular product that they become associated with the good or service.  For example, the mark Spandex has become associated with all tight fitting, black athletic pants. 

To return to the above fact pattern, the Olympic Committee is likely to argue that the local Brazilian company infringed its mark.   Trademark infringement involves the unauthorized use of a trademark holder’s mark without express permission.  It is also likely that the Olympic Committee will argue that the Brazilian company’s use of the Olympic logo dilutes its brand.  Dilution occurs when a mark loses its ability to become associated with the good, service, or organization.  For example, by using the Olympic symbol many customers may have falsely believed that the Brazilian company was somehow associated with or endorsed by the Olympic Games. 

If the Brazilian company did not have enough of money to sponsor the games, it could have entered into a limited licensing agreement with the Olympic Committee.  A license agreement is an agreement between a license holder and a company or individual that would like to use the trademark in an approved manner.

In addition to trademarks, intellectual property law also addresses:

Copyright law 

Protects the ownership interests of the creators of literary and artistic works like books, movies,  and recordings.   For example, the NFL owns the rights to replay and broadcast its games. 

Patent law

Protects the property ownerships of the inventors.   For example, an inventor who created a new invention and then registers that patent with the appropriate authorities the inventor would be entitled to protection.

Does Fantasy Sports Constitute a Copyright Violation?

In the past, many of the sports leagues argued that the use of statistics and the names of professional sports players constituted copyright violations. However, in recent years, many of the professional leagues have embraced fantasy sports. This is beginning to be heavily regulated or banned in many states.  We will have to watch for the new regulatory law as it is developed. 

Misappropriation of a Player’s Likenesses and Team Logos

In addition to protecting trademarks, patents, and copyrights, intellectual property protects professional athlete’s likenesses from being improperly infringed.  For example, a local store could not use a professional player’s image or likeness in its advertisements without permission. Similarly,  a local restaurant cannot use the logos of the local professional sports teams in their advertisements without obtaining permission from the professional sports team. 

Broadcasting Rights Can Be Infringed By Unauthorized Airing of Games

While the professional sports leagues have embraced fantasy sports leagues, the professional sports leagues vigorously guard against the unauthorized use of the broadcasts of their games.   For example, the National Football League and Major League Baseball have contracts with the cable and major television forth billions of dollars annually for the broadcast of games.  In addition to broadcasting games, professional leagues like the National Football League also produce movies and documentaries and these products are also protected by copyright law as well.  For example, many restaurants and bars have televisions and many of these restaurants and bars air sporting events.  However, these restaurants and bars may be violating copyright law if they have failed to purchase the public viewing rights to broadcast these games.  Each year, bars and restaurants are sued for violating the copyright rights of the sports leagues.

Negligent Marketing in Sports

Please review the below law review journal article regarding negligent marketing in the NFL. You will need to obtain the article from Nexis Uni in the APUS Library tab.

Richard M. Southall, The National Football League and Its "Culture of Intoxication:" A Negligent Marketing Analysis of Verni v.Lanzaro, 16 J. Legal Aspects of Sport 121 (2006).

Please review the article at the below link regarding a recent court case involving deceptive marketing and trade practices by a fantasy sports website.

http://fortune.com/2017/09/07/draftkings-fanduel-settle-accusations-deceptive-practices/

 

Please make sure to also review the following lessons:

Chapter 13 – Intellectual Property Law

Chapter 14 – Broadcasting and Multimedia

· Week 8

Welcome to week 8!  This week we will be reading Chapter 16 of our ebook and completing the Final Exam. While many sport managers may be fortunate enough to have little direct involvement in the issues of athlete violence, gambling or athlete discrimination, all three topics in this chapter are current issues with considerable impact on the world of sports.

Athlete Violence On and Off the Field:

What is the purpose of criminal law?

The broad aim of criminal law is the prevention of injury to the health, safety, morals, and welfare of the public.  It is also designed to uphold society’s broader notions of morality.

What are the 3 rationales behind criminal punishment? 

Prevention theory – punishment will keep a criminal from becoming a repeat offender; aim is to rehabilitate the offender. 

Deterrence theory – exacting punishment for bad conduct deters others from committing crimes, lest they suffer the same fate. 

Education theory – the publicity that surrounds a criminal trial and the subsequent punishment of criminals serves to educate the public as to the nature of right and wrong.

What are two most common criminal defenses in sports law? 

Consent – consent is not normally a defense to a criminal act.  The general rule is that one cannot consent to be the victim of a crime, and this rule is true except for certain specific exceptions.  Those exceptions are crimes in which a lack of consent forms one of the elements of the crime. 

Self-defense – the non-aggressor in a violent incident may use a reasonable amount of force against the aggressor, when there is reason to believe that an immediate danger of harm is imminent and that the use of force is required to avoid this danger.

What are some of the issues that sport managers must deal with pertaining to off-the-field conduct?

Can or should an organization punish an athlete before he is convicted of the crime?  If they do not punish the athlete, is the organization condoning criminal conduct and just interested in winning games?  If the athlete is punished and forced to miss games, what does that do to the notion of innocent until proven guilty?

Two possible solutions for off-the-field conduct include:  1) League control and 2) Governmental regulation

Gambling in the World of Sports:

Why does the NCAA prohibit participation in any form of legal or illegal sports gambling?

Because of its potential to undermine the integrity of sports contests and jeopardizes the welfare of the student-athlete and the intercollegiate athletics community.

Sports Betting:

In 1999, the proposed Internet Gambling Prohibition Act would make it a violation of federal law to accept bets over the Internet from the U.S.  While it failed, the later 2006 SAFE Port Act adopted a similar portion of the bill and made internet gambling illegal in Title VIII.  See, (found at 31 U.S.C. §§ 5361–5367.  While gambling in NV is legal, the code prohibits anyone located in a territory or state from gambling over the internet with a company where gambling is legal.  For example, if internet gambling is illegal in NY, a person in that state would not be permitted to create an account and gamble on one of the casino gambling apps owned by one of the main casinos in Las Vegas.  However, if you are physically located in the state of NV, you would be permitted to gamble on an App (such as those owned by Stations Casinos or MGM Resorts), which are based in Nevada.  IP Addresses are used to monitor all gamblers. 

While Nevada has legally allowed sports betting for many years, in 2018 this industry expanded through the court case of Murphy vs. NCAA case (previously known as Christie vs. NCAA), striking down the law prohibiting sports betting in the United States and deeming PASPA unconstitutional.  Initially passed in 1992, the law, known as the Professional and Amateur Sports Protection Act (PASPA), which was aimed at curbing the spread of sports betting and match-fixing.  However, many believed that PASPA instead increased black-market gambling, since it prevented legalization in states that already had permissible gambling on horse racing.  This 2018 court case did not immediately allow gambling and sports gambling to be run across America.  Instead, it permits state legislators to allow it if they wish.  As of August 2018, NJ, DE and MS have joined Nevada in legalizing sports betting.  NY, RI, PA and WV have also recently passed sports betting bills in their legislatures and are likely to start permitting sports betting at various Native-American owned casino properties by the end of 2018.  Additionally, the NBA has entered into a contractual partnership with MGM Resorts in Las Vegas.  For continuing updates on the legalization of sports betting, please click here:  http://www.espn.com/chalk/story/_/id/19740480/gambling-sports-betting-bill-tracker-all-50-states

Here is another excellent resource for up to date information of sports betting:   https://www.legalsportsreport.com/

Disabled Athletes:

The Rehabilitation Act:

The purpose of the Rehabilitation Act is to provide individuals with disabilities the opportunity to participate in physical education and athletic programs or activities without being discriminated against due to their disability.

The purpose of the IDEA:

It is designed to increase the educational opportunity available to disabled children and to secure the right of all handicapped children to a free and appropriate public education, which emphasizes special education and related services, designed to meet their unique needs. 

What effect does the Amateur Sports Act (ASA) have regarding disabled athletes?

The USOC was named as the coordinator of amateur athletics in the U.S.  As the coordinator of amateur athletics, one of the goals of the USOC is to encourage and provide assistance to amateur athletic programs and competition for disabled individuals, including, where feasible, the expansion of opportunities for meaningful participation by disabled individuals in programs of athletic competition for able-bodied individuals.

What are the 3 sections of the ADA, and to what areas does each section apply?

Title I, which covers Employment

Title II, which covers Public Services

Title III, which covers Public Accommodations and Services operated by Private Entities.