Sports Law Outline



Sports Law Outline

Fall 2001 – Professor Gibbens

I. Knight Commission

- purpose was to examine NCAA athletics and make recommendations

A. Problems Identified

a. more pressure on athletics than academics

b. arms race – increasing costs of competition among schools

c. commercialization of NCAA athletics

B. Recommendations

“1 + 3 model”

1 ( coalition of presidents (task = reduce money in “arms race”)

+

3 ( a. academic integrity

b. b. fiscal integrity

c. c. certification

Amateurism in NCAA athletics

- one who plays sports and does not get paid

A. Two Types of amateurs

1. pure – little league, jogging

2. spurious – big-time athletics at colleges where athletics get benefits (scholarship, tickets, other gifts)

- “scholarships” ( room, board, books, tuition and fees

- scholarships are for 1 year and must be renewed each year for up to 5 years

B. Cases

1. Taylor v. Wake Forest University

a. if scholarship not renewed NCAA grants appeal hearing

b. if player sues school for breach of K in not renewing scholarship ( school gets Sum. Judgement

2. Ross v. Creighton University

a. “Failure to educate” is a valid claim for student against school

b. “Failure to educate” will survive a Sum. Judgement

3. LHSSA v. St. Augustine High School (5th Circuit)

a. only states can deprive Due Process of individuals

b. school must be state actor before can be ( in a DP claim

c. Sup Ct consistently finds state action in private organizations performing a public function

d. state action determined by weighing many factors

4. DeFrantz v. US Olympic Committee

a. after Congress vote to boycott 1980 olympics ( USOC voted not to send team

b. USOC decision not to send team to Olympics is NOT state action

5. NCAA v. Tarkanian

a. NCAA is not a state actor

b. NCAA cannot be sued for DP violations

6. Cureton v. NCAA

a. Congress cannot regulate NCAA under anti-discrimination statutes b/c NCAA does not take federal funds

b. GPA/SAT score minimums for scholarships are OK

i. eligibility # = SAT/ACT score + GPA (13 core classes)

7. NCAA v. Miller

a. state cannot impose Due Process Requirements on NCAA

8. Indiana High School Ath. Association v. Avant

a. NCAA “transfer rule” found not to violate Due Process

b. Not in student’s best interest to switch schools for athletic reasons

9. Conard v. Univ. of Washington

a. NCAA only grants scholarships for 1 year (not 4)

i. if you understand differently ( too bad

b. No Constitutional Right to have scholarship renewed

i. must show one of 3 factors to show DP violation

a. contract grants a property right

b. mutually explicit understandings

c. substantive procedural restrictions on part of decision maker

C. Amateurism in the NCAA Manual

1. Athlete Employment

a. student athletes are limited in amount they can work during school year

b. can only get paid for work they actually do

c. cannot be paid more than other employees just because they are an athlete

2. Promotional Activities

a. student athletes can only promote charitable and non-profit agencies

b. student athlete cannot be exploited

i. must have written permission from athletic director

ii. cannot be co-sponsored by commercial agency

iii. name and pic cannot be associated with commercial agency

iv. student-athlete cannot miss class

3. Ethical Conduct

a. NCAA rules bar unethical conduct on part of student-athlete (Rule 10.1)

i. gambling (Rule 10.2)

ii. use of banned drugs (Rule 10.3)

iii. can result in loss of eligibility for extent of career (Rule 10.4)

Coaches and their Contracts

A. Coach’s Contracts in the NCAA Manual

1. Rule 11.1

a. defines who coaches are

i. graduate assistants for D1 football only

ii. undergraduate assistant coaches

iii. volunteer coaches

2. Coaches Income

a. in contract coach can get salary and benefits

b. coach must file annual application showing what outside income he made

i. University President must approve of outside income

ii. Helps us see exactly what coaches are making

B. Cases

1. Monson v. Oregon

a. coach has a right to a contract and contract must specify a length of employment

2. Campanelli v. Bockrath

a. coach cannot have employability diminished by what is said by university after coach is fired

C. OU Athletic Coach Contracts (Guest Lecturer Larry Naifeh)

1. History

a. originally coaches were hired with a hand-shake agreement

b. coach received a letter of appointment

i. letter included greetings and a job offer

2. Current OU contract practices

a. much more specific contract used to hire coaches for OU

i. much more specific and usually for multi-year terms

ii. had to evolve after coaches started hiring agents and lawyers to negotiate contracts with school

b. contracts include “appropriation out clause”

i. lets OU drop a coach and sport if school does not have enough money

c. Contracts must include creative compensation packages

i. hard to justify a $2 million salary for coach when State Governor only makes $200,000

3. What coach can get compensated for

a. speaking engagements for school

b. radio/TV appearances

c. compensation for outside income a coach may earn

i. help coach get endorsements from shoe or apparel co.s

d. deferred compensation

i. money to be paid to coach at a later date

4. Terms in the contract

a. “what you must do”

i. list of “must do” has gotten a lot longer because if you are going to pay a coach to do something ( they should do it

b. “what you can do”

c. “what you cannot do”

d. “make them stay” or “golden handcuffs”

i. provides a severe penalty to coach if he breaches the contract and leaves the school

e. “let’em go” provisions

i. termination for cause (violation of NCAA Rules)

ii. usually have to pay coach for remainder of contact

Recruiting of Student Athletes

A. Who is regulated by the NCAA Rules

1. Student-athletes

2. Coaches and assistant coaches

3. Boosters

a. person having participated in organization promoting college’s athletics

b. made financial donations to athletics department

c. be assisting or requested to assist to help recruit

d. be assisting or provide benefits to prospective athletes and their families

e. having been involved in promoting college athletic program

i. holding season tickets is not enough

B. Violation of Rules

1. results in ineligibility for athlete

2. eligibility can be restored if approved by

Academics/Eligibility/Compliance Cabinet

3. if student violates rule himself ( permanent ineligibility

C. Official Visits

1. only one official visit (all expenses paid by school) allowed

per player

2. visit cannot last more than 48 hours

3. limits set on total number of visits a school can offer

D. Unofficial Visits

1. player can get 3 tickets to any athletics event

2. school cannot pay for anything but tickets

3. unlimited number of unofficial visits a player can make

E. Contacts and Evaluations

1. contact – any meeting between player and institutional staff member

2. evaluation – any visit to a prospect’s school to observe in practice or competition

3. contacts and evaluations can occur only in specified times

4. NCAA puts out calendars for each sport on when they can make contacts and evaluations

a. contact period – coach can make contacts

b. evaluation period – can make evaluations, no contacts

c. quiet period – can only talk to recruits on college campus

d. dead period – no contacts or evaluations allowed (very few dead periods on calendar)

F. Other NCAA Recruiting Rules

1. “Dallas Rule” – when team has a home game away from campus ( school can give 3 comps to a recruit

2. Boosters cannot call a recruit (§ 13.1.2.4(a))

a. can only speak to player if prospect initiates conversation and call is not about recruiting

b. booster must refer all questions to Athletic Department

3. Def. of Prospective Student-athlete (§ 13.02.9)

a. student who has started classes for the 9th grade

4. Phone calls from enrolled students to prospects

a. enrolled students cannot call a prospect at direction of coach until July 1 of prospect’s junior year

b. exception football ( allowed 1 call in May

5. University responsibility for Booster’s actions (§ 6.4.2)

a. burden is on school to prove school knew nothing about booster’s actions ( nearly impossible to do

b. OU seeks to educate boosters not to help recruit

6. Restrictions on printed materials sent to recruits (cannot give recruits anything not listed)

- restrictions placed on things for cost-saving ( levels the

playing field for all schools

a. correspondence

b. business cards

c. camp brochures

d. electronic transmissions

e. NCAA educational information

f. Pre-enrollment information

g. Programs ( not posters ( cannot be mailed

h. Publications (athletics) ( media guides

i. Publications (non-athletic) ( school stuff avaliable to anyone

j. Questionairres

k. Schedule cards ( one wallet-sized card per sport

l. Student athlete handbook

7. Publicity (§ 13.11)

a. no media during recruiting contact

b. no comments to media before signing from school

c. prospect can talk to press (if he wants to)

8. Tryouts (§ 13.12)

a. very limited tryouts

b. school cannot host a camp solely for “tryouts”

c. outside companies can hold camps and schools can go

II. Extra Benefits (NCAA Rule § 16.01.1)

A. Definition

1. benefit given by Athletics Department to student-athletes or their parents

2. benefits are not offered to non-athlete students

3. benefits must also be violation of rules

B. Violation of Rules

1. if student-athlete receives extra benefit ( school must declare student-athlete ineligible for competition and tell NCAA

C. Remedies

1. try to restore eligibility (§ 14.12)

a. student-athlete can appeal decision on eligibility

i. during appeal ( boosters can pay legal fees limited to representation on NCAA violations

ii. if benefit is less than $100 ( student-athlete won’t lose eligibility if he pays the amount back to a charity

2. school must forfeit games that ineligible player participated in

a. NCAA and Conference weigh several factors:

i. amount of participation by player

ii. contribution of player

iii. cause of ineligibility

iv. policies in place at school before incident

v. policies put in place after incident

D. Other NCAA Rules

1. Athletic awards

a. awards cannot exceed $300 in value (including rings)

2. Academic Support Services

a. academic benefits are not an “extra benefit”

3. Athletic Dorms

a. all athlete dorms are prohibited

i. dorm must be at least 51% non-athletes

ii. helps student-athletes be more like real students

4. Meal and Transportation expenses

a. student-teaching

b. booster luncheons within 30 mile radius

c. charitable/non-profit organization within 100 mi. radius

d. can get free tix to a pro-sports game if whole team goes

5. Meals with coaches and boosters

a. student-athlete can accept meals at coach’s or booster’s home

i. cannot be at a restaurant

ii. must only be occasional (not regular occurrence)

E. Two types of Eligibility

1. Initial eligibility (must be satisfied for player to enter school)

a. high school GPA in 13 core curriculum

b. SAT/ACT score

c. both factors combined onto a sliding scale

2. Continued eligibility (must be met so player can keep playing)

a. appropriate college GPA (usually around 2.0)

b. 24 hours completed in an academic year

c. complete certain % of degree requirements in degree program

i. % increases with each school year completed

Workers Compensation for Student-athletes

A. Two tests for determination if player is covered

1. nature of work test – is work related to employers business

2. right of control test – focus is on employers ability to manipulate effects of workers

B. Cases

1. Coleman v. Western Michigan University

a. student-athletes are not employees of university

b. court must weigh several factors

i. employers right to control and dictate activities of worker

ii. employers right to fire or discipline worker

iii. payment of “wages”

iv. whether or not task completed is “integral part” of employers business

C. State Statutes

1. determination of workers comp revolves around individual state worker’s comp statutes

a. every state has its own worker’s comp statutes

i. in OK statutes are under Title 5

ii. under OK Title 5 § 1 ( defines employee (does not fit description of student-athlete)

2. worker’s comp statutes have never been linked to student-athletes

a. no need for worker’s comp as long as athlete is insured

Title IX and Gender Equity

A. Definition of Title IX

1. Title IX requires that there be equal opportunity and equity for both men and women in NCAA athletics

a. prohibits gender-based discrimination by colleges receiving federal financial aid

b. prohibits exclusion from participation in (or) denied benefits of “an athletic program” based on sex

2. Equity is hard to achieve in sports

a. public wants to see male sports

b. to increase women’s sports participation you must lower men’s participation

c. there are physical differences between men and women

3. We don’t let men play women’s sports and women play men’s sports

a. only one woman has ever played in a NCAA football game

i. D1-AA Jackson State

B. Cases

1. Cohen v. Brown University

a. Main case dealing with Title IX

b. established three prong test (only need to fulfill 1)

i. athletic opportunities are offered in substantial proportion to the make-up of the student body

ii. Athletics Dep’t. is showing continuing practice of program expansion for disadvantaged sex

iii. Interests and abilities are effectively accommodated by current programs

2. Neal v. Bd. of Trustees of CA Univeristy

a. Title IX is a remedy for historic discrimination against women

i. designed to help bring women’s programs up to speed

b. schools can cut men’s programs and at the same time increase women’s scholarships

3. Hoover v. Meiklejohn

a. High school cannot deny girl an opportunity to play on boy’s soccer team

b. Fear of her injury is no basis for discrimination

4. Williams v. School District of Bethlehem

a. Case dismissed until PA court ruled on PA Equal Rights Amendment

b. If we let men play women’s sports ( opportunities for women decrease

5. Blair v. Wash. State Univ.

a. female athletes wanted to play football

b. women can try out for the team

c. women cannot be excluded per se

6. Stanley v. USC

a. women’s b-ball coach demanded equal pay as men’s coach

i. USC refused and started looking for new coach

b. when Stanley sued USC – court held for school

i. men’s coach is paid more because he has more duties as a revenue producer

c. coaches are paid depending on:

i. duties

ii. how many people attend games

iii. win/loss record

iv. importance to university

7. Bowers v. Baylor University

a. Bowers sues Baylor under Title IX for damages b/c she was fired b/c of her win/loss record

b. Court denied Sum Judgement b/c of a Supreme Court ruling allowing suits for damages under Title IX

c. Court held that Bowers was unfairly dealt with and has a cause of action

8. US v. Virginia

a. party seeking to uphold discrim action must show “exceedingly persuasive justification”

b. requires a higher standard of scrutiny for discrimination cases

C. Equity in Athletics Disclosure Act

1. Schools must create and distribute annual report showing proportions of males to females under Title IX

2. Report is sent to federal government and then made public by Congress

III. NCAA Rule Enforcement (Guest Speaker – Professor Swank)

A. Preliminary Investigation

1. NCAA receives information about a possible violation

2. Enforcement Staff begins preliminary investigation to see if tip is reliable

B. If tip is verified and reliable

1. case is assigned to an enforcement director

2. letter of “preliminary inquiry” sent to president of school

a. explains investigation and time-frame for investigation

b. institutions have an obligation to participate with NCAA

3. Letter of Official Inquiry sent to school

a. very similar to an indictment in a crim. proceeding

b. sets out rule that was violated and how it happened

c. school is reminded of duty to cooperate in investigation

C. the Hearing

1. hearing done before the Committee on Infractions

a. hearing done in front of 9 people

i. 2 people from public

ii. 1 athletic director

iii. 6 conference commissioners

2. School gets to participate in hearing

a. usually school president appears before committee

3. Hearing Process (can last from 1 to 3 days)

a. opening statements

i. NCAA

ii. School

iii. Any individual involved in case

b. NCAA puts on its case

i. No cross-examination

ii. Parties can ask committee to ask witness a question for them or about evidence

c. school and individual are then allowed to respond

i. again no cross-examination

d. closing arguments

i. NCAA

ii. School

iii. Individual

D. Summary Disposition

1. alternative to a hearing

a. school must admit all violations

b. NCAA certifies complete investigation

c. University suggests penalties

d. If committee agrees it adopts the report

i. if committee does not adopt penalties – then there is a hearing on the penalties only

ii. if committee does not accept report at all – full hearing process

E. Penalties

1. forfeit of games

2. loss of scholarships for particular sport

3. loss of bowl privileges or championships

4. voluntary firing of coach

5. monetary penalties

F. Appeal

1. school can appeal findings of committee

a. separate appellate body for each branch of NCAA

Antitrust Laws and Sports

A. Sherman Act of 1890

1. purposes of act

a. promotes competition in open markets

b. extends from Commerce Clause

i. antitrust laws must apply to interstate commerce

B. 2 sections of Sherman Act

1. § 1 – eliminates anti-competitive collusion

2. § 2 – preventing monopolistic and oligopolistic market structures

C. Cases

1. NCAA v. Board of Regents of OU

a. major antitrust case

b. US Supreme Court found NCAA in violation of Sherman Act

c. Restraint must be “unreasonable”

d. Court weighs justifications (procompetitve) vs. negatives of retsraint (anticompetitive)

i. used in § 1 analysis under Sherman Act

ii. balancing test used to determine if restraint is “reasonable”

e. per se violations – any restraint on availability or quantity of output

2. Law v. NCAA

a. NCAA passed restrictions on coach’s salaries as way to cut costs

b. Court sets out “Rule of Reason” analysis for § 1 analysis

i. ( must show anticompetitive effects

ii. ( must show procompetitive effects

iii. ( then must show that conduct is not reasonably necessary to achieve goals or that goals can be achieved in a less restrictive manner

3. Adidas America, Inc. v. NCAA

a. Adidas sued NCAA b/c of logo restrictions on uniforms

b. Court held that Adidas did not show “irreparable harm” and thus denied the injunction

4. Banks v. NCAA

a. player left Notre Dame to enter NFL draft early

i. after he was not selected – he sued NCAA b/c they would not let him rejoin Notre Dame team

b. Court held for NCAA

i. Banks did not show NCAA anticompetitive effects

ii. Must show an injury to identifiable market – not just injury to individual

iii. Court accepts policy reason – if we allow athletes to return it will open NCAA up to agents and make colleges a “farm system” for NBA and NFL

5. Hairston v. Pac-10 Conference

a. Hairston did not show antitrust standing

i. must suffer antitrust injury

ii. must show he is proper ( to sue

iii. ( must actually suffer the injury himself

6. St. Louis Conv. and Visitors Comm v. NFL

a. Court upheld NFL Rule 4.3 under Rule of Reason

i. Rule 4.3 allows owners to vote on team move and charge a moving fee

b. Court found that ( had not shown that 4.3 caused injury

i. ( only had deal with Rams – made no effort to see if other teams were interested

ii. when “rule of reason” applied jury (fact finder) decides if restraint is reasonable

7. NFL Properties v. Dallas Cowboys

a. suit filed b/c Cowboys were violating trust agreement

i. Jones was making agreements with other groups not licensed by NFL Properties

ii. Jones used stadium as a separate entity to make deals

iii. Everything stadium owns is not the same as what team owns

b. Court held that there was a cause of action under Lanham Act

i. cannot deceive people in using logos and slogans to make people think that your product is affiliated with another product

ii. even though deals with Nike and Pepsi were technically with Texas stadium – it was concievable to think that Nike and Pepsi were being sponsored by Dallas Cowboys

8. Chicago Pro Sports Limit Part v. NBA

a. Issue: whether NBA is single entity and can charge tax on Bulls games on TV

i. reason: to let other teams get a fair viewership on TV

b. Court holds that NBA not a single entity but a collection of clubs

i. if NBA not a single entity – harder to find § 2 violation

ii. Bulls can only win if they show injury to consumers

c. When dealing with a § 2 case we use the “Market Power” test

i. “market power” is the power that the league has to control the market

ii. if no “market power” – then only left with § 1 “rule of reason” analysis

D. Exceptions to the Antitrust Laws

1. Labor Law cases – exemption created by Congress

2. Professional Baseball Cases – Sup. Court held that antitrust laws do not apply to Major League Baseball

a. upheld by 3 US Supreme Court Cases

i. 1922 – Federal Baseball Club v. National League

ii. 1953 – Toolson v. NY Yankees

iii. 1972 – Flood v. Kuhn

b. what is exempted

i. “business of baseball” – marketing, team movement, buying and selling clubs

ii. reserve system – players are owned by team and can be sold or traded without player consent

c. Curt Flood Act of 1998

i. removes players from baseball exemption

ii. only refers to players and player transactions

d. Piazza Case

i. involved moving a team from San Fran to Tampa

ii. Judge says that case should apply exemption only to reserve system

e. MN Twins Case

i. MN Supreme Court holds that exemption should apply to moving of teams

ii. Court chooses not to follow Piazza

3. Current State of the Law

a. Pro baseball exemption still applies except as Curt Flood Act

b. But, there are lower court cases (MN Twins) that may be persuasive to other courts to narrow exemption

4. Baseball exemption and Minor Leagues

a. minor leagues completely supported by MLB

b. if baseball exemption is removed minor leagues will suffer

i. MLB will be forced to spend less on minor leagues

ii. MLB pays minor leagues player salaries, coach salaries, and equipment and travel expenses

5. Baseball Broadcasts

a. not covered by baseball exemption

i. broadcasting is a separate industry

ii. separate from “business of baseball”

E. Notes on Antitrust

1. “equal investment defense” - ( does not get treble damages if ( also involved in restraining trade

2. Stoutenborough v. NFL – “Blackout rule” does not violate Americans with Disabilities Act

a. claim was that hearing impaired not able to view game b/c they can’t utilize radio

b. Court upheld Rule 12(b)(6) and dismisses case for failure to state a claim

IV. Labor Relations in Pro Sports (Collective Bargaining Agreements)

A. National Labor Relations Act (NLRA) – 1947

1. 3 Rights for workers

a. right to organize, to form, join or assist labor organizations

b. right to bargain collectively through reps of their choosing

c. the right to engage in “concerted activities” for employees’ mutual aid or protection

d. bargaining limited to wages, hours and working conditions

B. National Labor Relations Board (NLRB)

1. administration is carried out by this board with help from fed courts

2. board requires that all bargaining be done in “good faith”

3. individual player contracts left to clubs – all other issues negotiated between unions and all clubs as a whole

C. Differences under NLRA for Sports

1. individual salaries not covered by CBA

2. labor market not open to all people (only select group- players)

D. Labor Law Exemptions

1. justifications

a. allows unions to strike and negotiate CBA’s

i. without exemptions – strikes would violate antitrust laws b/c they stop production of “goodies”

2. Statutory exemption

a. removes certain legitimate union activities favored by federal policy

i. secondary picketting removed

ii. boycotts removed

3. Non-statutory exemption (common law version)

a. excepts certain anticompetitive union-member activities

b. 3 requirements for a CBA to apply

i. restraint of trade primarily affects only parties to CBA

ii. agreement concerns a mandatory subject of collective bargaining (free agency and reserve clause)

iii. agreement is product of bona-fide arms-length bargaining

E. Labor Law Cases

1. Mackey v. NFL

a. Rozelle Rule violates § 1 of Sherman Act

i. restricted player movements between clubs

b. Non-statutory exemption does not apply b/c Rozelle Rule only meets requirements i. and ii.

c. Statutory exemption only applies to union activities

2. Silverman v. MLB, PRC

a. 2nd Circuit upholds NLRB injunction

b. NLRB oversees labor laws to make sure they are applied fairly

c. NLRB makes findings then petitions Dist. Ct. to issue injunction

3. Brown v. Pro Football, Inc.

a. once impasse occurs owners can implement their last offer without union consent

i. impasse – when parties bargain in “good faith” and cannot reach a deal

ii. must be reasonably comprehended w/in preimpasse proposals

iii. parties must be bargaining in “good faith”

4. Nordstrom v. NLRB

a. player cannot be released from team because of his union activities

i. court awards back-pay as a remedy

b. if destructive behavior is not related to union activities – player can be released

Baseball Blue-Ribbon Report

A. Findings

1. committee explored how money has made it hard for teams to compete with each other

2. found that varying payrolls are hurting baseball

B. Recommendations

1. Recommended both minimum and maximum payrolls

2. More competitive drafts

3. Franchise mobility – move team to a place where they can thrive

Grievance Arbitration

A. Background

1. Arbitration arises from Collective Bargaining Agreement (CBA)

2. Arbitration clause is written in every player contract

3. Each league has a different arbitration procedure

4. Labor Management Relations Act – governs arbitration in pro leagues

B. Cases

1. Dryer v. Los Angeles Rams

a. Court holds that once issue falls under the arbitration clause- it needs to be arbitrated

b. Inequality of bargaining power at arbitration meeting is acceptable

2. Morris v. New York Football Giants, Inc.

a. Court holds that clause in NFL contracts making commissioner the tie-breaker in on arbitration board must be stricken

b. Commissioner is biased because is closely tied to owners

C. Pro Baseball Salary Arbitration

1. Final Offer Process

a. player poses one salary and owner poses another

b. arbitrator must choose one salary or the other – no middle ground

c. policy – forces owners and players to pose more reasonable salaries that they feel they can justify

2. Eligibility Process

a. sets limits on which players can arbitrate their salaries

i. more than 3 years of experience – but less than 6 years ( player can arbitrate his salary

ii. more than 6 years experience ( player can qualify for “free agency” or arbitrate

Professional Agents

A. Certification

1. All professional agents must be certified by league player associations

2. League player associations can refuse to certify an agent

3. Protects best interests of players

B. Duties of a professional agents

1. player counseling

2. marketing of player

3. dispute resolution

4. career planning for after sports

5. hire financial planners and managers

a. lawyer cannot doe financial planning himself – viewed by bar as funneling money into practice

C. Agent Regulations

1. agents regulated by several schemes

a. state law

b. league player associations

c. federal law – Federal Investment Advisors Act of 1940

D. Federal Statutes on Agents

1. Uniform Agents Act

a. passed to protect against abuse of athletes by agents

b. a model act that attempts to bring uniformity to states with agent statutes

E. Oklahoma Statutes for Sports Agents (not enforced)

1. OK 70 § 821.62

a. agent cannot work in OK without registering with Sec. Of State

b. non-OK agents must pay annual fee of $1000.00

c. agent must pay surety bond of $100,000 with Sec. Of State

2. OK 70 § 821.63

a. Sec. Of State must approve all contract forms

i. for non-NCAA athletes

b. agent must file schedule of fees to be collected from non-NCAA athletes

3. OK 70 § 821.64

a. registered agents cannot contact NCAA athlete until after last NCAA contest

i. if athlete makes a K (written, oral or to take affect later) NCAA will strip eligibility

4. OK 70 § 821.65

a. agent can talk w/ athlete if school hosts on-campus agent interviews

i. done for 10 days in final year of eligibility

ii. NCAA rules authorizes Head Coach to meet with athletes and agent to discuss best interest of athlete

F. Cases

1. Collins v. National Basketball Association

a. Collins certified in 1986 by NBA

i. sued by Kareem Abdul Jabaar – suit settled in 1989

ii. NBPA decertified Collins b/c of Jabaar suit

b. Issue: can league not let Collins be an agent b/c of past bad deals

c. Labor Unions acting in self-interest and not in combination with non-labor group are statutorily exempt from Sherman Act

d. Collins loses – league summary judgement upheld

2. Team America v. Pickens

a. one agent suing another for breach of K

b. punitive damages awarded only if action is very egregious

3. Speakers of Sport v. Pro Serv

a. Pudge Rodriguez had K with Speakers that was terminable at will

i. Rodriguez terminated K with Speakers and signed K with Pro Serv

b. Speakers sued Pro Serv for stealing away Pudge

i. court holds that because K was terminable at will – no breach of K

4. Hagan v. Kassler Escrow, Inc., 635 P.2d 73 (Wash. 1981).

a. lawyers must be careful not to act in the “practice of law” in other jurisdictions

i. performing services in courts

ii. giving legal advice

iii. preparation of legal instruments

5. Detroit Lions, Inc. v. Argovitz (Billy Sims Case)

a. Argovitz owned team and then signed Sims to a contract with that team

b. Argovitz did not tell Sims of offer from Detroit Lions

c. Rule: if no conflict of interest – agent that acts as directed by player is not responsible for losses player incurs

i. rule does not apply here because of Argovitz’s extreme conflict of interest

6. Brown v. Woolf

a. constructive fraud – unjust enrichment achieved through fraud

b. punitive damages can be awarded if ( acts in reckless and oppressive conduct

G. Contracts between agents and players

1. 3 types of contracts between players and agents

a. contract for negotiation of player-team employment terms

b. financial services contract

c. contract for the marketing of the player for endorsements and public appearances

2. All contracts between agents and players must meet Statute of Frauds

a. all K’s for sale of goods or services over $500

b. must be in writing

c. signed by parties to be bound

H. Advice for those who want to be agents

1. Be prepared

a. have data on your player’s stats, and stats of others at his position

2. Be interested in player needs and player interests

3. Must fully understand your leagues Collective Bargaining Agreement

4. Tradition of your sport and its players

Negotiation of Sports Contracts

A. Categories of negotiations

1. two parties – one issue

2. two parties – multi-issue

3. multi-parties – multi-issue

B. “Zone of Agreement”

1. each party enters the negotiation with either an absolute high or absolute low figure

2. “zone of agreement” is area between two figures

3. final offer must be within the “zone of agreement”

C. Best Alternative To Negotiated Agreement (BATNA)

1. each party’s fall back position

Torts and Sports

A. Background on this area

1. sports causes injuries – leads to tort claims

a. negligence

b. assault

c. battery

d. recklessness

2. Assumption of Risk can bar recovery for negligence actions

3. Privileges are used to defeat claims of battery and assault ( consent

4. Only intent you must show to win is – “intent to contact” not “intent to hurt”

B. Cases

1. Bourque v. Duplechin

a. when one player is acting in an unexpected or unsportsmanlike way with reckless lack of concern for others participating – no Assumption of Risk

2. Nabozny v. Barnhill

a. players are charged with legal duty to every other player on the field to refrain from conduct proscribed by a safety rule

Claims of Defamation and Invasion of Privacy

A. Defamation

1. definition

a. intentional communication to a 3rd party a false statement about the plaintiff which tends to harm the reputation of the ( in the eyes of the community

B. Cases

1. New York Times Co. v. Sullivan

a. ( must show actual malice

i. knowledge that statement was false OR reckless disregard as to whether false or not

b. showing of simple “meanness” is not enough - ( must have had malice

2. Gertz v. Robert Welch, Inc.

a. (’s can be immune for slander of public figures under Amend. I

b. 2 types of public figures

i. achieve such pervasive notoriety or fame they become public figures for all pups and all contexts

ii. person voluntarily enters public controversy and becomes a public figure for limited range of issues

3. Dun and Bradstreet v. Greenmoss Builders, Inc. (plurality)

a. non-media entities do not get same protection from Amend I that media entities get

4. Milkovich v. Lorain Journal, Co.

a. when statement is one of opinion ( New York Times rule does not apply

b. ( not required to show “actual malice”

5. Time, Inc. v. Johnston

a. passage of time will not insulate one from New York Times Rule

b. publishers can still rely on the defense – even after the passage of time

6. Spahn v. Julian Messner, Inc.

a. publisher cannot purposely create a false past for someone and then publish it

b. New York Times rule does not apply to created false pasts

7. Abdul-Jabaar v. GM Corp

a. if one changes his name – he does not abandon the old name

b. Lanham Act covered the use of Jabaar’s old name (Lew Alcindor) as well as his new name

C. Oklahoma Statutes

1. Title 21 § 839.1 – 839.3

a. any use of a person’s name or picture for purpose of advertising without consent is guilty of a misdemeanor

i. subject to damages

ii. can get punitive damages if done “knowingly”

b. if person is dead – heirs can be (’s in the action and seek damages

c. EXCEPTION – photographers can show specimens of their work

i. if person complains – photographer must remove picture from portfolio

Health and Disability Issues in Sports

A. 2 Federal Statutes

1. Americans with Disabilities Act of 1990

2. Rehabilitation Act of 1973

B. Cases

1. Knapp v. Northwestern University

a. school won’t let Knapp play basketball because he has heart condition

b. Under Rehab Act of 1973 - ( must show

i. he is disabled [hampered from a “major-life activity” ( caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working]

ii. he is otherwise qualified for position

iii. he has been excluded from activity solely b/c of disability

iv. program exists as part of a program receiving federal funds

2. PGA Tour, Inc. v. Martin

a. Matin sued PGA Tour under ADA because Tour won’t let him ride a golf cart during tournaments

b. Sup Court holds that walking not fundamental to game of golf

c. PGA Falls under Title III of ADA b/c it is played on open courses and open to be viewed by the public

Drug Testing

A. Applicable Law

1. Amendments IV and XIV

a. courts must decide whether drug tests are “reasonable” searches or seizures under Amendment IV

B. Cases

1. Vernonia School District v. Acton

a. court will always look to facts to determine of search is reasonable

b. by voluntarily choosing to play sports – students subject themselves to level of regulation higher than that applied to other students

c. balancing test ( extent of intrusion vs. need for intrusion

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