Discussion (A++ work. Plagarism)

Mediation and Arbitration View Full Description

This week we are learning about the basics of sports law.  Please make sure to review the following slideshow:    http://www.slideshare.net/Vinceey/sports-law-15237676

As we read, sports law involves many different areas of law, such as torts, criminal law, intellectual property, etc.  This results in various aspects of the legal system to be utilized to resolve sports law disputes.  This week, please discuss the following:

1.  What is the difference between mediation and binding arbitration?

2.  Why might parties in a dispute choose alternative dispute resolution instead of litigating in court?  

3.  In what types of sports disputes might the parties prefer alternative dispute resolution?

Glenn M. Wong,  Essentials of Sports Law  (4th ed. 2010).  (All ebook readings will be found within the Lessons tab.

Respond to the write up:

Sports disputes might generally prefer alternative dispute resolution for one primarily large reason - a trial by jury is an unpredictable thing and restitution amounts can be considerably larger than potentially decided on in mediation or arbitration. A popular sports dispute involves helmets and trauma to the head, thus brain, causing traumatic brain injuries. Whether the dispute is between athletes and the companies that make the equipment or between the athletes and the coaches/team management for negligence, the likelihood of a jury awarding large sums of money to the plaintiff, usually an injured athlete or a group of injured athletes, is significant. During mediation or even arbitration, monies for punitive damages have the potential to be less because a 12-man jury is not out to "set an example" for other sports companies/teams. Arbitrators and mediators work towards an agreement where monies paid are directed towards medical care and treatment, etc, rather than "hitting a company/team where it hurts," ie. the pocketbook.

WRITING EXPECTATIONS

All written submissions should be submitted in a font and page set-up that is readable and neat. It is recommended that students try to adhere to a consistent format, which is described below.

Typewritten in 12-point font in Times New Roman style and submitted inside the electronic classroom (unless classroom access is not possible and other arrangements have been approved by the professor).

Page margins Top, Bottom, Left Side and Right Side = 1 inch, with reasonable accommodation being made for special situations and online submission variances.

Name, Student ID and date must be at the top of the first page.

Don’t create cover pages.

Note: DO NOT use Wikipedia as a reference/ source when course work. APUS has banned the use of Wikipedia by their students as a source in papers and other coursework because of reliability problems. Wikipedia acknowledges the problems and agrees students should not use it as a source for academic papers, primarily because Wikipedia can not control changes to its content.

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Week One Lesson

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.