Sports Law Attack Outline Fall 2024 PDF

SPORTS LAW ATTACK OUTLINE–FALL 2024–PROFESSOR CONRAD Introduction to Sports Law the Sports Business Sports law = broad area → many different subjects → a lot of internal rules Debate on whether spots law should be unique brand of law or considered amalgam of different pieces ○...

SPORTS LAW ATTACK OUTLINE–FALL 2024–PROFESSOR CONRAD Introduction to Sports Law the Sports Business Sports law = broad area → many different subjects → a lot of internal rules Debate on whether spots law should be unique brand of law or considered amalgam of different pieces ○ Lex Sportiva → int'l law scholars → sports law = unique brand ○ US View → sports law = amalgam of different pieces MAJOR COURSE THEMES: (1) Public law and internal regulations applicable to professional, amateur, and int’l sports bodies (2) Role of antitrust law in sports governance (3) Contractual issues – coaching, sponsorship, endorsement, licensing, and stadium leases (4) inherent tension between antitrust and labor law (5) Professionalization of college sports LAWS SPECIFICALLY TARGETED @ SPORTS: (1) NIL laws (2) State NIL Laws (3) Broadcasting Indecency (4) Sports Betting Laws “Extra Law” = rules involving/enacted by private orgs (internal rules of sports organizations) → difficult to overturn unless they violate a statute or regulation, unconstitutional or violate pub. pol. → VERY RARE for extra law to be overturned b/c unconst or violate pub Pol. ○ RULE: The Bill of Rights (const) deals with state action, not private entities. When it’s a private entity and it’s not gov’t funded, there are no gov’t issues–EXCEPTION: Public Universities = public actor → there will be due process ○ Most sports issues are private → no const issue → courts give lots of leeway/difference to org on how org is run SPORTS STAKEHOLDERS: fans, leagues, teams, players, PAs, endorsers/sposoreres, media, cities & states, construction industry, colleges & Universities (including alumni & students), gambling companies, legislatures, etc. ETHICAL ISSUES IN SPORTS LAW: (1) Politics (2) Eligibility Rules (3) Social Justice (4) Transparency of Sports orgs (5) Governance of Sports Orgs (6) Doping (7) Rights of College Athletes? Dispute Resolution → many sports disputes are adjudicated by arbitration: (1) Court of Arb. for Sports (2) independent per CBA/Ks SPORTS LAW REGULATION: (1) power of gov’t to regulate, limit or ban sports (2) power of non-gov’t bodies by internal governance (3) Players’ Associations The Legal Structure of Professional Sports RULE: you need to have a governing document to form a league or org ○ NOTE: players do not get power from leagues const → they get power from CBAs ○ All leagues basically have a provision saying commissioner is like CEO of the league → “best interest” of the sport Commissioner has considerable powers and discretion to impose discipline and policy ○ COMMISSIONER ROLES: (1) to create a fair and impartial authority, to resolve disputes w/in the league, and to enforce independently a disciplinary process – these being essential to maintaining the game’s integrity and provide rudimentary due process protections necessary to avoid judicial oversight (2) to take action when needed to restrain the unwarranted exercise of power by the league’s owners to the detriment of fans and others, again to avoid judicial intervention (3) to serve as the centralized administrative authority to facilitate efficient decision making and league governance (4) to be a skillful mediator when owners cannot agree (5) to be the lead negotiator for league-wide contracts, such as the all-important TV deals (6) at times, to become involved in labor disputes between the owners and players → in some leagues (NBA & NHL) commissioner = lead negotiator on behalf of the owners ○ ON EXAM: review clauses in league’s const if given in Q and see how you can argue it to answer Q → if they are following const courts won’t get involved RULE: court will only intervene and provide relief generally when (1) the rules and regulations or judgment of the association are in contravention to the law of the land or in disregard of the charter or bylaws of the association; OR (2) where the association has failed to follow the basic rudiments of Due Process Law. OR (3) the decision making process is arbitrary or capricious, or is tainted by malice or bad faith, however leagues and associations are typically given wide latitude in rule making and enforcement → easiest way to challenge a league in court is to say they didn’t act in accordance w/ league const or acted in bad faith. COMMISSIONER POWER Q ANALYSIS: (1) look @ league’s governing document (const) very carefully and see if commissioner went beyond the power given to them. → RULE: as long as people in charge act w/in their powers, a court is not really going to second guess the determinations made by the people in charge. The court really only steps in if the person in charge acts beyond their power; (2) see if there is a “best interest” of the sport provision (very broad provision, comes from MLB const in 1920s) →RULE: commissioner has the power to make decisions based on things they think are not in the “best interest” of the sport (as long as commish acts in GF) (VERY BROAD PWR→ commissioner, in theory, can be investigatory, the judge, and jury) (Finley v Kuhn) New York Knicks v. Toronto Raptors (June 2024) –COMMISSIONER POWER//COMPELLING ARBITRATION–NBA const has broad arbitration clause that says commissioner has the power. RULE: court compels arbitration (commissioner should be the one w/ jurisdiction over issue) based on the board language and power in the league const. Did not matter whether commissioner was impartial or not b/c they could always revisit and vacate decision NFL v. Gruden –COMMISSIONER POWER//COMPELLING ARBITRATION–RULE: courts give great deference to sports leagues and tend to read provisions very broadly when dealing with sports cases. From reading it broadly, courts tend to infer things because they do not want to play the role of commissioner Finley v. Kuhn–COMMISSIONER POWER (MLB)//”BEST INTEREST” CLAUSE–RULE: in private orgs, there is going to be considerable leeway for the CEO (commissioner) to make determinations. What the judge thinks is not the standard. The standard is going to be whether the power violated the rules of the organization. Commissioner has broad investigative, remedial, preventative & disciplinary power to uphold honest athletic competition and to refrain from activities that harm the sports integrity TREND IN MAJOR SPORTS = Private Equity Closed vs. Open Sports Leagues → US has closed sports teams → own bodies & teams will always be there unless there’s a provision in  league’s const that ends teams → hard to sell to individual owners b/c teams are multi-billions of dollars Antitrust Law Antitrust law purpose = to promote market competition → market restraints = negative for both labor and consumer Antitrust laws address: (1) Monopolies: when a single company or entity creates and unreasonable restraint of competition in market (2) Monopsonies: market situations where there is only 1 buyer (labor restrictions) (3) oligopolies: limited competition in which markets share a small # of producers or sellers (groups working together to stifle competition) Sherman Act → Most sports cases center on §1 issues; §2 is sometimes a backup argument is sports litigation ○ §1: “[E]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or within foreign nations is hereby declared to be illegal” → very broad language; anything anticompetitive = illegal RULE: for §1 violation you need more than 1 entity because it addresses only “concerted” activity, as opposed to unilateral action of a single firm→ more applicable to sports b/c leagues consist of more than 1 entity ○ §2: “[E]very person who shall monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states, or with foreign nations, shall be deemed guilty of a felony…: Covers monopolistic conduct RULE: a single league may not violate §2 ○ RULE: single entities are exempt from antitrust law b/c §1 of Sherman Act requires 2 or more are involved in the anticompetitive activity ○ LA Mem. Coliseum v. NFL (Raiders I) – RULE: The NFL & its member teams are not a single entity shielding it from antitrust scrutiny under a rule of reason analysis of §1 of the Sherman Act (interests of teams can be in direct conflict/teams are in direct competition; teams are separate business entities each with different policies, teams compete economically) ANTITRUST ISSUES: Are wage rules restrictions violations? Draft? Non-tampering rules? Restrictive free agency? Salary Cap? Franchising? Change of Franchise? Group licensing/exclusive product licensing? → whether these agreements are in restraint of trade and whether the per se or rule or reason applies ESTABLISHING §1 SHERMAN ACT VIOLATION– §1 deals with agreements of 2 or more 3 tests: (1) Per Se Rule (2) Rule of Reason (3) Quick Look STEP 1: Does antitrust law apply [RULE: does not apply to baseball] STEP 2: if so, is the agreement anti competitive [for rule of reason cases, what’s the relevant market? (Product & Labor markets) ] STEP 3: if rule of reason applies: is there a procompetitive justification for the restriction (1) Per Se Rule → RARELY USED IN (2) Rule of Reason→ BIG IN SPORTS! (3) Quick Look – not as strict as per se, but SPORTS: applied when the practice facially Founded on the notion that some restraints not as onerous a rule of reason. Applies appears to be one that would almost always are necessary business practices. RULE: to where “an observer with even a rudimentary restrict competition and decrease output→ prevail, plaintiff must show: (1) there was an understanding of economics could conclude requires no further inquiry into the practice’s agreement between 2 or more persons or that the arrangement in question would have actual effect on the market or the intentions entities (2) it adversely affected competition an anticompetitive effect on customers and of those individuals who engaged in the in the relevant market (product, geographic, markets.” Cal. Dental. Ass’n v. F.T.C. practice; applied in few scenarios: (1) labor) (3) the anticompetitive effect exceeded horizontal price fixing (2) horizontal market the pro competitive effect AND (4) there was Essentially a quick glance at whether lack of fixing → NOT IN SPORTS no less restrictive alternative by which the competition is ok same pro-competitive benefits could be RULE: per se rule is the standard that courts achieved → burden shifts to D to say adopt in cases where the illegality is absolute, anticompetitive effects didn’t outweigh no matter how slight the anticompetitive procompetitive effects effect, how small the market share of the defendant, or how proper their motives “Procompetitive effect” → economic evidence must be presented, not general arguments(i.e., NFL Draft) EXAMPLES: competitive balance maintenance (ensure teams are competitive with one another/avoiding domination by a few wealthy teams) , revenue sharing (ensures smaller-market teams remain competitive & financially viable), player draft (helps distribute talent evenly among teams → foster league-wide competition); salary caps/Luxury taxes (limits teams spending on players salary to prevent wealthier teams from monopolizing talent & to promote a more competitive environment) Exclusive broadcasting agreements (generates significant revenue for leagues, which is then redistributed to teams, ensuring financial support for competitive balance & league-wide benefits); Regulation of player movement (free agency/franchise tags) (prevents small # of teams from hoarding top talent & to ensure all teams have fair chance to compete); Anti-tanking measures (prevents teams from  intentionally losing games to secure a better draft position → maintaining integrity of competition & ensuring teams play to win); Protect integrity of the game (prevent cheating or unethical behavior); League Structure or Market protection (restricting franchise relocations or market saturation to preserve financial stability & healthy competition within the league. Avoid market oversaturation) promote global competition; Joint Ventures or Collaboration for innovation (encourages teams or leagues to cooperate on project to improve the product, attract new fans, or enhance fan experience); CBA (necessary to promote stable and competitive market) ESTABLISHING §2 SHERMAN ACT VIOLATION– most cases involved new leagues challenging dominance of older leagues (interbrand competition) → typically leagues seeking to monopolies → REQUIRED: (1) relevant market: both product market and geographic market AND (2) Dominant group’s market share (over 70% market share = minimum) NCAA v. Board of Regents–RULE OF REASON ANALYSIS//VIOLATION OF §1–NCAA limited # of football games that could be broadcasted on TV to protect game attendance–HOLDING: NCAA’s college football TV plan was too anticompetitive and restricted trade → violation of §1 Sherman Act. TAKEAWAY: if this were a regular business court would have used per se (not weigh procompetitive justifications) – RULE: argument that NCAA (amateurism) is a unique product is not enough of a competitive justification. Horizontal price-fixing & limiting output = hallmarks of anticompetitive behavior that are hard to justify as permissible restraints on trade under RoR → horizontal price and content fixing are unreasonable restraints on competition ○ RULE OF REASON APPL.: NCAA & member universities market amateur athletic competition. There must be some rules agreed to by the members which define the nature of the competition that will be engaged in and marketed. Additionally, the “product” marketed is college football. To protect the “product” the NCAA and its members must reach a mutual agreement on best practices to promote it to the public (such actions can be viewed as pro competitive) However, NCAA may have gone too far w/ TV restrictions by fixing a price for TV rights to all cames, NCAA created an unreasonable, anti competitive price structure. NCAA claims that because it has no market power, its TV plan could not be anticompetitive. One is not necessary for the other → regardless,, NCAA does possess market power & its TV restrictions constitute a restraint on trade. NCAA’s claim that its TV plan produces efficiencies which were, in fact, procompetitive is unavailing. Although it is true that the NCAA’s goal is to preserve the integrity of amateur athletics, such goal does not justify the TV restrictions ○ Horizontal Restraint = agreement among competitors which controls how they will compete with each other ○ Horizontal Price Fixing = actions that preclude any price negotiations between parties Application of Antitrust & Labor Law BASEBALL’S ANTITRUST EXEMPTION: Federal Baseball Case of 1922– HELD: it is a misnomer to say that the SCOTUS said that baseball ≠ business. Business of baseball was much more intrastate than interstate → not subject to antitrust law Flood v. Kuhn–BASEBALL’S ANTITRUST EXEMPTION–RULE: applicability of pro baseball’s reserve system to fed. Antitrust laws is a matter of congressional action, not for judicial resolution → there’s still antitrust exemption for baseball bc Congress has not legislated it out Nostalgic Partners v. Comm’r-BASEBALL’S ANTITRUST EXEMPTION–RULE: antitrust exemption applies to minor league baseball as too How could baseball antitrust exemption end? → Congress can legislate it out; owners have strong lobbying power so Congress did not OTHER ANTITRUST EXEMPTIONS: Sports Broadcasting Act (SBA) of 1961: permits pro sports leagues to pool & sell or transfer “all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games” w/o antitrust liability → NCAA did not agree to this legislation → does not apply to high school or college sports LABOR ISSUES IN BASEBALL: Curtis Flood Act of 1998: RULE: as an exception to baseball’s antitrust exemption, MLB players (only major league players, not minor league players) can sue under federal antitrust laws for employment matters APPLICATION & IMPACT OF ANTITRUST & LABOR LAW IN PRO SPORTS: Multiemployer negotiations → not just negotiating w/ team, but negotiating w/ all teams in league; uniform CBAs for all the teams in the league. W/o collaboration between owners and players associations through CBA process, sports leagues may face antitrust liability for implementing a wide range of standards and rules critical to the success of the league and it’s players alike – RULE: imposing a salary cap could be a §1 violation; RULE: imposing a player draft could be a §1 violation → if a CBA has this it should be immunized from antitrust challenged b/c if it weren’t anything could face antitrust litigation→ lost of time/$ ○ Mandatory CBA Provisions: salaries, bonuses, discharge, drug testing, [sports only: free agency, restricted free agency, player draft, rule changes] → RULE: parties cannot just go through the motions but have to engage in active bargaining. Hard bargaining = OK; unilateral demands ≠ OK.  National Labor Relations Act (NLRA): gives employees 3 basic rights: (1) to join or assist unions and the right to not join or assist unions (2) to engage in collective bargaining through representation of their choosing (3) to engage in concerted activity for one’s own mutual aid & protection ○ Concerted Actions: 2 option: (1) Stikes (2) Lockouts → workers are NOT paid during strikes or lockouts (1) STRIKES – Workers have the right to strike @ concl. of the (2) LOCKOUTS – employers have the right to lockout at the conclusion of CBA – RULE: NLRA guarantees the right to strike. In most the CBA – RULE: owners have a right to impose a lockout on players; it cases, courts cannot enjoin strikes; RULE: if K expires or may coerce players back to the table or to compromise → sets time limit impasse occurs, players union = allowed to strike; RULE: on stoppage; lockouts = strategic in sports b/c timing! → creates leverage during the strike, parties may still negotiate in GF; RULE: in an for getting an agreement done as quickly as possible economic strike, strikers may be replaced; RULE: in a Advantage: happens @ beginning of szn → league leverage union-related strike, strikers cannot be replaced Generally favors leagues more than players The longer the strike/lockout → the more leverage/powerful the owner/company; weaker the players b/c potential replacement Most important unfair labor practice is not negotiating in good faith → RULE: must negotiate in good faith THE STATUTORY EXEMPTION FROM ANTITRUST: RULE: antitrust law prohibited agreements by 2 or more that “restrain trade in interstate commerce”, the Clayton Act of 1914 created the labor exemption: antitrust laws do not apply to labor organizations. The unionization process is except under the statutory labor exemption → Norris-LaGuardia Act: RULE: no injunctions may be issued in cases involving “labor disputes” → DO NON STATUTORY EXEMPTION ANALYSIS ON EXAM (more applicable in sports) THE NON-STATUTORY EXEMPTION (more applicable): judicially-derived expansion of the labor exemption that protects union activity from antitrust scrutiny– RULE: any union-mgt agreement that was the product of GF negotiation will receive protection from antitrust laws; RULE: the provisions of the agreement cannot be attacked as collusive or anti-competitive (i.e., salary cap negotiated in GF & agreed to by union & mgt cannot be challenged, nor age restrictions) DO MACKEY TEST ON EXAM! ○ Mackey v. NFL–EST. NON-STATUTORY LABOR EXEMPTION–NFL “Rozelle Rule” violated §1– RULE: to determine if there’s a non-statutory exemption you go through the Mackey factors: (1) does CBA primarily affect only the parties to the agreement? (2) Did the issue relate to a mandatory subject of bargaining under the labor laws? (3) Was this part of GF negotiation? → if yes to all 3, exempt! ○ Clarett v. NFL–NON-STATUTORY LABOR EXEMPTION–challenge to NFL eligibility rules in CBA RULE: if a rule is a condition of employment under a collective bargaining process, it falls under the protection of the non-statutory exemption from antitrust laws ○ Brown v. Pro Football–NON-STATUTORY LABOR EXEMPTION//IMPASSEE–RULE: when impasse occurs in labor law, mgt can impose a condition w/o antitrust viol. impasse = situation where parties tried to come to agreement in GF, but just don’t see eye to eye ○ PREWRITE: Overall, once you get into the labor law game, it will be hard to get back into the antitrust game unless you end the union or get to an impasse at a certain point after that. Once an impasse occurs you still need to negotiate or try to negotiation (See Mackey, Clarett, Brown) CBAs & Antitrust – RULE: Terms of CBA negotiated between labor union & mgt = exempt from antitrust law ○ Duration of exemption: RULE: as long as the parties are engaged in lawful and collective bargaining activities, the labor exemption continues to insulate the parties from antitrust liability. The labor exemption survives the expiration of the CBA. Only way to get rid of rule is to disclaim the union; when union doesn’t exist anymore antitrust law can come back Labor Agreements & Negotiations are not subject to Antitrust liability! – RULE: an agreement that is alleged to have restrained trade is shielded from antitrust liability if it primarily affects the parties to the agreement; concern conditions of employment that is a mandatory subject of collective bargaining; & is result of a bona fide arms length collective bargaining – w/o exemption, collective bargaining could be chilled Labor Arbitration: (1) matters deemed by mgt or players assoc. To be very significant (2) league-wide system for dealing w/ specific disputes that team & players are unable to resolve through individual negotiations (3) grievances arising out of a K dispute between player & his club SINGLE ENTITY STATUS ○ American Needle v. NFL– if NFL was a single entity they would be antitrust proof on §1 violation but they are not a single entity LABOR LAW & PRO SPORTS ○ National & American Leagues v. MLBPA–BEGINNING OF FREE AGENCY/K INTERPRETATION CASE– RULE: an arbitration award may be vacated if it is illegal or against public policy. An arbitration award violates public policy only if the underlying K calling for arbitration is illegal or against public policy, or if the award commands an action that is illegal or against public policy – RULE: there is universal free agency when the K is over → no salary cap in baseball; sky is the limit ○ NFL Management Council v. NFLPA (Brady)–COMMISSIONER AS NFL ARBITRATOR//NEW NFL CBA– deflate gate– RULE: in reviewing an arbitration award, a court may analyze only whether the arbitrate acted w/in the scope of authority authorized by the CBA – RULE: the arbitrator’s interpretation of an agreement or finding of the facts is controlling when parties bargained for the arbitrator’s views of those issues. So long as an arbitrator does not ignore the plain language of the agreement, courts must uphold arbitrator’s award ○ Deshaun Watson (ruling by NFL’s neutral disciplinary officer)–NFL’S PECULIAR APPL. OF ARBITRATION–NFL tried to impose a longer suspension than CBA provided for– RULE: any change in rules needs to go through the union & be approved to change it in the CBA. Owners cannot just impose that as the law SEE OUTLINE FOR MAJOR LEAGUES’S SPECIFIC CBA PROVISIONS Facilities & Franchises–Planning, Financing, Legal Ramification in Antitrust & K Law  Facilities: revenue driver, can attract talent, commercial real estate, changes clauses in K (cost overruns), partnerships w/ sponsors, fees (parking, transportation, upkeep), schedule or renovation, what events could be held @ facility, food, drink, etc. Elements of Stadium/Arena Construction deal: needs to be build for a team → (1) location/land (2) Financing (bond issuance = huge in building facilities) Why did Dodgers move from Brooklyn to LA? → stadium was falling apart Why are reams relocating nowadays? They can use the threat of facilities to do it (i.e., St. Louis Rams Relocation) Trend = to build stadiums to be part of a retail area, not in the middle of no where (i.e., Patriot Place in Foxboro, MA) Things to think about in terms of aspect of stadium → signage = big area of growth; agreements deal w/ where the signage will be put → Q = how you define those rights and carve them out → (i.e., “official water of the team” vs. “official pure water of the team”) LA Mem. Coliseum v. NFL (Raiders I)– RULE: NFL and its member teams are not a single entity shielding it from antitrust scrutiny under RoR analysis of §1 of Sherman Act → Court did not come up w/ a standard here, but they said not all relocation rules are anticompetitive, it was just anticompetitive in this case CLAUSES TO PUT IN A LEASE BETWEEN A TEAM & FACILITY: (1) Permitted Uses (2) Scheduling Priority (3) Option to Renew [the term] (4) Revenue Splits (5) Definitions Clause (6) Arbitration clause (7) Naming Rights (8) Subsidiary Tenants (9) Eminent Domain (10) Transportation (11) Indemnification Clause (12) Maintenance and Warranties (13) Intellectual Property (14) Termination Clause (15) Force Majeure Clause → SEE IN CLASS EXERCISE IN OUTLINE FOR MORE SPECIFICS Regulating Intercollegiate Athletics NCAA = voluntary private organization composed of the presidents of all the colleges and universities. It is a consent organizations ○ NCAA v. Tarkanian–RULE: NCAA is not a state actor because it is independent of the state university (which is a state actor) , therefore the US Const does not apply ○ NCAA v. Board of Regents–RULE OF REASON ANALYSIS//VIOLATION OF §1–NCAA limited # of football games that could be broadcasted on TV to protect game attendance–HOLDING: NCAA’s college football TV plan was too anticompetitive and restricted trade → violation of §1 Sherman Act. TAKEAWAY: if this wer a regular business court would have used per se (not weigh procompetitive justifications) – RULE: argument that NCAA (amateurism) is a unique product is not enough of a competitive justification. Horizontal price-fixing & limiting output = hallmarks of anticompetitive behavior that are hard to justify as permissible restraints on trade under RoR → horizontal price and content fixing are unreasonable restraints on competition RULE OF REASON APPL.: NCAA & member universities market amateur athletic competition. There must be some rules agreed to by the members which define the nature of the competition that will be engaged in and marketed. Additionally, the “product” marketed is college football. To protect the “product” the NCAA and its members must reach a mutual agreement on best practices to promote it to the public (such actions can be viewed as pro competitive) However, NCAA may have gone too far w/ TV restrictions by fixing a price for TV rights to all cames, NCAA created an unreasonable, anti competitive price structure. NCAA claims that because it has no market power, its TV plan could not be anticompetitive. One is not necessary for the other → regardless,, NCAA does possess market power & its TV restrictions constitute a restraint on trade. NCAA’s claim that its TV plan produces efficiencies which were, in fact, procompetitive is unavailing. Although it is true that the NCAA’s goal is to preserve the integrity of amateur athletics, such goal does not justify the TV restrictions Horizontal Restraint = agreement among competitors which controls how they will compete with each other Horizontal Price Fixing = actions that preclude any price negotiations between parties ○ O’Bannon v. Nat'l Collegiate Athletic Association–RULE: Antitrust laws apply in college sports. Rule of Reason test applies. NCAA must comply with the Sherman Act, which prohibits unreasonable restraint on trade; RULE: Amateurism rules limit student-athlete compensation to scholarships only and prohibit even small deferred cash payments ○ NCAA v. Alston–RULE OF REASON ANALYSIS//VIOLATION OF §1– NCAA restricted athlete compensation to educational and performance related payments. Athletes alleged this was anti competitive price fixing under §1 of Sherman Act. NCAA defended saying rules promoted amateurism and distinguished college from pro sports. HOLDING: NCAA’s rules created an unreasonable restraint and they could have adopted less restrictive rules while still promoting college athletes. TAKEAWAY: the scope of Alston on the facts is limited, but the potential of being an industry game changer = enormous b/c NCAA is caving a little and we have all these states passing NIL laws–RULE: labor is an exemption to antitrust law, so could come together an unionize → when there’s an agreement it becomes labor law and exempt from antitrust; RULE: full rule of reason analysis should be conducted unless practice is per se illegal or so obvious that quick look analysis is warranted CONCURRENCE: goes into the use of non-edu benefits; thinks whole system is faulty; he would have gone after restriction on non-edu related benefits too STUDENT-ATHLETE UNIONIZATION EFFORTS: Northwestern University and College Athletes Player Association (CAPA): Football players trying to unionize citing cases involving grad assistants seeking to unionize RULE: it does not further the policies of NLRA to promote stability in labor relations if NLRA board asserts jurisdiction over university scholarships RULE: labor laws do not apply to public employees, they only apply to private employees → NLRB punted on answering employment Q b/c Northwestern = private school that plays against public schools and state employees & state schools would be under different rules Dartmouth College v. Service Employees int'l Union–S/A ARE EMPLOYEES HERE//PRIVATE SCHOOL–court asserts jurisdiction here because Dartmouth is in ivy league, which is all private schools. RULE: A student athlete is an employee when there’s significant control and authority over them, and they are compensated → “swag” is not just a gift, it is compensation! → Darmouth appealed; we don’t know answer University of Denver v. Nemath–WORKERS COMP CASE//OLD CASE SAYING S/A COULD BE EMPLOYEES– football player worked a job for $50 a month @ tennis courts. He got injured playing football and sued for workers comp. HOLDING: player was awarded workers compensation because in order for him to keep his job he had to play football Johnson v. NCAA–IT IS POSSIBLE S/A ARE EMPLOYEES//DOES NOT DECIDE THEY ARE–RULE: amateurism is not enough on its own not to consider the athletes employees; under a multi-factor test (Glat Test) S/A could be employees → we didn’t read test part  TAKEAWAY: there is a lot of litigation and uncertainty in college sports… keep an eye on Corenio v. NCAA (recently filed in dist. of CO) Should there be an unfathered right to NIL for College Athletes? Complexities involved; certain schools could not allow certain things → could lead to students transferring to get better NIL deals Contract Law– Athletes, Coaches, Sponsorship, Endorsements Key topics: K enforcement, K negotiation, nature of sponsorships, sample K, business strategies (key clauses) Right to first negotiation; right of first refusal: has to bring back another offer to first employer for option to match it COACHES CONTRACTS: (1) duties and responsibilities (2) Term of employment (3) Rollover Provisions (4) Reassignment Clause (5) Compensation Clause (6) Provisions outside &/or supplemental income (7) Radio/TV show & appearances (8) Endorsements (9) Termination Clause (10) Buy-out provisions (11) Arbitration agreement (12) Covenant Not to Compete [SEE OUTLINE FOR DETAILS] ○ Options for schools when coaches try to go to a better school: (1) negative injunctive relief (2) damages (3) cancel K/allow coach to leave Factors that lead court to make determination on whether or not to grant a negative injunction: (1) $ damages not adequate to put victim in as good of a position as if the K was performed (hard to determine what the $ damages are when we’re dealing w/ unique talent @ that level) (2) Victim has to be in some form unique & extraordinary (really good & not replaceable easily → must be quite unique (3) irreputable damage/injury from the breach (4) Concept of mutuality (how one-sided or not one-sided a K is) Most schools will try to seek compensation under: (1) buyout or (2) liquidated damages provision → both usually paid by coach’s new institution ○ Vanderbilt University v. DiNardo–LIQUIDATED DAMAGES PROVISION– liquidated damages provision = enforceable here even in event of breach RULE: a liquidated damages provision is enforceable if it is reasonable in relation to the anticipated damages for breach of K, measured prospectively @ the time the parties entered into the K, and not grossly disproportionate to the actual damages ○ Philadelphia Ball Club, Ltd. v. LaJoie–NEGATIVE INJUNCTION GRANTED–Lajoie’s status = sufficiently special to merit injunctive relief to prevent his breach of K; court focussed on irreparable harm to Lajoie’s club if they lost him as player – RULE: a court will enjoying a pro baseball player’s breach of service K if it finds that the player possesses special skills & abilities not readily obtainable elsewhere & if the breach causes irreparable injury FOR EXAM → MORE RECENT RULE: it is required that a player has unique skills, not easily replaced in order to get an injunction (not necessarily irreplaceable)! ○ Winnipeg Rugby Football Club v. Freeman–NEGATIVE INJUNCTION (UNIQUE)–RULE:even if player ≠ unique by simply being a “good” NFL player, he might be unique in the Canadian Football league, where the quality of play = lower → player who breached was enjoined from playing in NFL ○ Dallas Cowboys Football Club, Inc. v. Harris––NEGATIVE INJUNCTION (UNIQUE)–RULE: today it’s probably a safe assumption that those who make the major leagues in any sport are almost certain to be characterized as “unique” → standard players K in all major leagues have provision stating that player acknowledges that he is unique and that an negative injunction can be obtained against him if he refuses to perform ○ Lewis v. Rahman (2001)–NEGATIVE INJUNCTION (IRREPARABLE HARM)//MODERN CASE– boxer case; injunction granted– KEY FACTORS in deciding duration of injunction: age, time, retirement & give him a chance → Lewis is going to retire in 2 years (doesn’t have a lot of fights left)... he wants to rematch, which he is entitled to under K… injunction would not pose significant burden on Rahman → The potential harm to Lewis should injunctive relief be denied greatly outweighs the relatively minor burden the injunction imposes on Rahman → An injunction for 18 months provides an effective remedy for Lewis’ irreparable harm and does not unfairly impede Rahman. ○ Duration & Scope of Injunction: RULE: if court finds the requested injunction will create an unreasonable hardship to the party sought to be restrained, the injunction will be denied or its scope may be limited. FACTORS CT CONSIDERS: (1) length of requested injunction (2) it’s geographical reach (3) the types of employment or activities prohibited under the injunction (4) it’s potential effects in preventing employment or other opportunities for the restricted party → factors balanced against resulting damages to P if no injunction COVID-19’S IMPACT → when events = cancelled b/c of natural disaster → 2 issues: (1) Basic K (2) Insurance K Force Majeure Clause = important! → force majeure event = event beyond the control of parties that prevents performance under K & may excuse non-performance. See Beardslee v. Infection Energy ○ Many FM clauses do not cover pandemics → few precedence out there on FM Clauses → issue whether “pandemic” = included Impossibility of performance = court made doctrine Force Majeure Clause > Impossibility of Performance b/c you don’t want to depend on judge → important to have Force Majeure Clause! Possible Ramifications of 2024 Presidential Election (Trump being in office) Areas to watch post election: (1) Q of athletes who are transgender – what are their rights to compete? Biden → transgender women have the right to compete in certain areas of sports Trump → going to propose to annul biden regulations & go back to original regulation → CT school case will be challenged (2) College Athletes as Employees – (a) litigation - FLSA (b) Johnson – fulfilled a test that they can be employees against FLSA → conflicts against other circuits, so there's still a good change that this will end up in SCOTUS (not Trump) Unionization under NLRA will be under trump administration (3) Change in Tax Laws If tax rate goes down or there are different tax issues → we don’t know what the affect will be on team sales If estate tax is going to be nullified of increased → might be less incentive for owners to sell their teams (4) NCAA has been lobbying Congress heavily to the tunes of millions of dollars asking for an antitrust exemption since there's this NIL stuff # of things have been proposed Some though that republican would be more sympathetic to NCAA antitrust exemption → may be better chance of some NCAA protection w/ Trump in office (5) Players’ special Visas to play in the US Prof. Conrad does not see Trump changing the special Visas that players need to play in the US Sports Gambling Not a lot of cases in this area of sports law → focused on the history of sports gambling laws Was never totally banned in US → traditionally viewed as a vice → leagues were against it → worried about integrity of the game NY is not the center of sports it once was because of betting (college basketball → series of scandals → will never fully recover) Late 19th Century → # of states ban lotteries & most other forms of gambling in their const; Congress banned distribution of lottery materials through interstate commerce (upheld by SCOTUS in The Lottery Case) → 20th Century: saw greater restrictions on gambling through federal & state laws → rise of organized crime → NV legalized gambling in 1931 → Federal gov’t imposed additional taxes on gambling winnings Why gambling is toxic to sports: tarnishes integrity of the sport, allows criminal elements to profit, undermines public confidence in sports, pressure on athletes, tempting to point shave → 2 major concerns w/ legalizing sports betting until 10 yrs ago: (1) integrity of sports (2) organized crime ○ Integrity of the sport: (1) “black sox” scandal (2) point shaving scandals: way to affect outcome on college sports; LEGISLATION STATE: Traditionally, states regulated FEDERAL: gambling Wire Act of 1961 [STILL GOOD LAW]: sports books must comply → only covers bets or wagers States define “gambling” different that are placed on sporting events.illegal to engage in sports betting to offer or take bets over phone SEE OUTLINE 4 STATE DEFN lines or through wired devices; bars anyone from engaging in betting when using wire EXAMPLES → clear that what we communications for transmitting bets or wagers → TAKEAWAY: restrictions on interstate betting would call sports betting is gambling still in tact! & states must legalize it → Daily 1960s LEGISLATION: Travel Act: criminalized interstate travel w/ intent to engage in unlawful fantasy sports are somewhat of a activity, including gambling business activity; Wagering Paraphernalia Act: made interstate different Q → traditionally focus is on transport of wagering materials, including bookmaking materials, a federal crime; Sports Bribery activities involving “games of chance,” Act: intended to give the federal gov’t a means to interrupt interstate match fixing; The Racketeer but different states define it differently Influenced and Corrupt Organizations act of 1970 (RICO): granted UP power to bring criminal → TAKEAWAY: gambling centers on charges for racketeering conduct, even where the underlying illegal acts occurred under state, rather a game based on “chance” rather than than federal law “skill” (i.e., lottery=chance) → most LATER LEGISLATION: Professional and Amatur Sports Protection Act states utilize a “predominance” or (PASPA)(1992)–OVERTURNED IN 2018 → prohibited states from decriminalizing or legalizing “dominant” factor over skill sports betting w/ exceptions of NV, OR, MT → See Murphy v. NCAA NEW JERSEY’S ATTEMPT TO LEGALIZE SPORTS GAMBLING → spearheading by Chris Christie Q of state v. federal power in regulating sports gambling → 2 series of cases challenging PASPA: (1) NCAA et. al. Governor of NJ (Christie I–NJ law was preempted by PASPA, which is a const. exercise of federal power) & (2) Christie II–new law passed in NJ → drafted differently → “deregulating” sports betting for race tracks and casinos → negated power of the state to “regulate” such activity, leaving that the particular facilities the freedom of engaging in sports gambling → get around “authorization” requirement of PASPA → league sued again – 3rd Cir. Affirmed, but there is a dissent because 3rd. Cir. had a rare En Banc Panel Ruling → Dissent saying PASPA leaves states w/ “no choice” → case appealed to SCOTUS → SCOTUS CASE: Murphy v. NCAA (Murphy was gov. Of NJ @ time)-Ruled PASPA Unconstitutional! → it violated 10th Amend. → states could not utilize the methods of repealing in any way their bans on sports gambling to get around PASPA “authorization” Requirement TAKEAWAY: the minute Murphy happened, NJ & other states had proposed laws ready to be passed & that’s what happened Daily Fantasy: whether it’s legal is state by state; exception for daily fantasy in Federal Unlawful Internet Gambling Enforcement Act (UIGEA) → UIGEA prosecuted pmt processing companies NY’s Position on Daily Fantasy Sports: NYS Attny General said it’s betting & violates NY law → shut down Fan Duel & DK immediately Post-Murphy Environment:look to state law → states define “gambling” & state law determines what constitutes illegal gambling → still of Q of NY State’s Const restrictions of gambling; Federal Wire Act– restrictions on interstate gambling still intact DETERMINING WHETHER ILLEGAL GAMBLING OCCURS: (1) Predominant Purpose Test (2) Any Chance Test (3) Gambling instinct Test RULE: under all 3 of these tests, sports gambling = illegal unless state formally legalizes it  Predominant Purpose Test [MAJ of Any Chance Test [NY]: Activity is based on Gambling Instinct Test: Looks to the nature states–CA & MA]: deems an activity to be chance if a particular game contains any of the activity to determine if it appeals to one of chance where “greater than 50%” of chance that influences the outcome of game one’s gambling instinct → this is a less the result is derived from chance. → So, an → More restrictive standard → means that a certain test activity could also employ skill, but still be game that is predominantly skill could still illegal gambling qualify as illegal gambling Key issues to consider when legalizing sports gambling: standard for licensing, regulatory function, where & how betting will be offered, what sports are covered (exemptions?), integrity/corruption, mobile betting?, thin profit margins, integrity fees (fees paid to “ensure” that statistical info is accurate, or a way for sports leagues to cash in on gambling, no states require them as of this date), licensing fees, state taxes, economic books through increased tourism, do these state laws violate the state’s const SEE CASE STUDY NO. 7 IN OUTLINE FOR EXAMPLE ON CREATING REGULATIONS FOR SPORTS BETTING! ADVERTISING REGULATIONS: RULE: advertising subject to intermediate or intermediate plus level of scrutiny under Central Hudson Test NY Rules: requiring notice for help problem gambling assistance by alerting such gamblers of help through phone line → prescribes font size requirements for signs, direct mail, billboards, & in case of TV, 2& of the image is presented; Assistance info should be same sides as MAJ of text used on webpage SEE OUTLINE FOR OTHER STATE EXAMPLES →General approaches states have taken: (1) compelled speech requirements = central to current regulation (2) other prohibitions (“false & deceptive” advertising Const guidelines for commercial speech regulation (1st Amendment Concerns) Central Hudson Test: 4 part test (subject to some elastic interpretation– has become an intermediate scrutiny test): (1) Restrictions against false & deceptive advertising are permitted with no constitutional limitation. However, if the restrictions involve “truthful” advertising, then they must be subject to the following: (2) gov’t must show that the restriction had substantial gov’t interest (3) restriction directly advances the state’s interest; AND (4) the restriction is not “more extensive than necessary” to advance the interest COURT EXPANDED PROTECTIONS IN THE 1990s: (1) Rubin v. Coors Brewing Co., (1994) – court nullified federal ban on listing the alcohol level of beer b/c the restrictions failed to “directly advance” the gov’t’s interest in preventing the advertising of the potency of the beer to avoid “strength wars” by the industry (2) 44 Liquormart v. Rhode Island (1996) – court unanimously concluded that state ban on liquor price advertising eas an unconst infringement on the liquor sellers’ First Amendment Speech Rights → plurality expressed skepticism about a complete ban on this type of sin advertising, noting that a “rigorous review” of such bans are necessary 1990s GAMBLING CASES: (1) United States v. Edge Broadcasting (1993) –law that allowed broadcasters to advertise state-run lotteries only if the broad cast station is licensed to a state which conducts state-run lotteries satisfies the 3rd & 4th prongs of Central Hudson Test (2) Greater New Orleans Broadcasting Assoc. V. United States (1999) – SEE OUTLINE (conrad said something about this rule raising red flags) TOBACCO BILLBOARD ADVERTISING: Lorillard Tobacco v. Reilly (2001) –bans on all signs of any tobacco ads w/in 1,000 feed of certain areas (trying to not promote it to minors) court rejected strict scrutiny test & applied Central Hudson Test– HOLDING: range of communications restricted = “unduly broad” → overbroad under (fails) 4th prong of Central Hudson Test LEGISLATION INTRODUCED: Betting on our Future Act → 1st attempt in congress = unconst. [SEE OUTLINE] American Gambling Association’s (“AGA”) Responsible Marketing Code for Sports Wagering → AGA members (generally casino operators) are recommended to uphold these standards → AGA Standards: (1) ads should be placed in places where at least 73.6% of audience is rsbly expected to be of legal gambling age (2) to support “responsible betting” ads should include: (1) “responsible gambling message” + toll-free help line # “where practical” & (2) messages should adhere to contemporary standards of good tase that apply to all commercial messaging, as suits the medium or context of the message [Digital media standards: (1) covers “3rd party internet & mobile sites, commercial marketing emails or texts, social media sites, & downloadable content, (2) link to site that provides info about responsible amin and responsible gaming services must be provided (3) include the legal age to bet, geolocation mechanisms to show where people can bet, & disclosure of privacy practices] PROBLEMS 1/ AGA Standard: Compliance review process w/ a board established to hear complaints from individuals → however no fines for penalties for entities that violated these standards except for w/d ad; no remedy for customers; does not deal with promotional some betting companies may not be AGA members; elusive & hard to quantify based on location, broadcast market & online usage; better approach is to create safe harbors found in the broadcast indecency standards; recommendation to ban promotions and advertising for sports betting on college campuses or owned news orgs Intellectual Property → MEDIA RIGHT IS NOT ON EXAM!!!!!!!!!! Most important areas of IP: misappropriation trademark & copyrights COPYRIGHTS [Title 7 of US Code]: Copyright = an original work of authorship fixed in a medium of expression (Fixed + tangible media) RULE: sports itself isn’t copyrightable. It’s the dissemination (EXCEPTION: esports is copyrighted, no other sport it) Copyright examples: broadcasts, books, highlight reels, photos, videogames → football ≠ copyrighted, football on ESPN is b/c it’s fixed & tangible media Copyright timeline: artist’s life + 70 years OR + 90 years (if work for hire) → lasts a lot longer than trademarks RULE: you cannot use copyrighted materials on your website for fee → serious fines for violations The Transformative Test: this is a doctrine that came from copyright law to see whether an infringement exists. It was adopted by any courts to right of publicity. The test deals with whether the use containing celebrity’s likeness is so transformative that it has become primarily the D’s own expression rather than celebrity’s likeness → TEST: is it a literal depiction, or one changed as to primarily artistic expression? When the work contains significant transformative elements, it is not only especially worthy of 1st Amendment protection, but it is also less likely to interfere w/ the economic interest protected by the Right of First Publicity RULE: if so, it becomes protected by 1st Amendment speech, commercial use or not, but it can be argued that commercial use or something approaching commercial use is inferred (See Tiger Woods case (ETW v. Jireh)–court inferred that the sale of the copies of the painting would be commercial)! (If transformative → protected by 1st amendment) TRADEMARKS: any work, name, symbol, or device or any combination thereof adopted and used by a manufacturer to identify his goods and distinguish them from those manufactured or sold by others Purpose = monetizing what you own/image/branding → brand identity & a reputation; to avoid customer confusion Common Law Trademark & Service Mark Rights: acquired by first usage of name, logo, or other symbol to identify one’s product or services, to distinguish them from those of others, & to denote a consistent level of quality of the product or service identified by the mark Trademark examples: LV Raiders’ Pirate, OSU “Brutus Buckeye”, distinctive helmet, uniform designs & color, etc. RULE: it must be markable & distinguishable to be able to be trademarked (i.e., name phrases, slogans, logo, package, design, sound & smalls not works (works are copyright!) Lanham Act: Federal trademark statute → legally protects federally registered trademarks & remedies for infringement by unauthorized usages that create a likelihood of condition; permits filing of “intent to use application” (allows for constructive use of mark… must use the mark in 2 years → enables sports teams to acquire marks before use to identify its team) ○ RULE: an athlete may use his or her name or other unique identifying characteristics as a trademark or service, & it may be federally registered under the Lanham Act after acquiring secondary meaning as the source or origin of goods or service ○ RULE: the unauthorized misappropriation of an athlete’s NIL or other aspect of his or her identity violates §43(a) of the Lanham Act, if it causes customer confusion regarding whether he or she endorsed or sponsored particular products or services ○ RULE: courts require that a person’s photo, image, likeness, or distinguishing characteristic actually function as a trademark to be protected by Lanham Act’s provision prohibiting trademark infringement ○ FALSE ENDORSEMENT [under Lanham Act]: prohibits false or misleading statements in commerce that are likely to cause confusion as to a person’s affiliation, approval, or sponsorship of someone else’s commercial activities Common Law Use: No registration, but you can still get some rights if you put ™ int'l Treatise: big issue in sports; different countries have different mark laws; try to prevent major league infringement in different countries Indianapolis Colts v. Metropolitan Baltimore Football Club Limited Partnership–TRADEMARK INFRINGEMENT–RULE: 5 or 7 standards depending on federal circuit: (1) strength of the mark (2) Actual confusion → the court uses TEST: whether the mark is likely to cause confusion to a substantial number of customers → case settled ○ RULE: to prevail on a trademark infringement case P must show: (1) protectable mark AND (2) likelihood of confusion as to the original affiliation ○ Defenses for infringement: no likelihood of confusion, fair use, non-commercial use, news reporting & commentary, descriptive use Dealing w/ trademark infringement is really a case-by-case basis  Mikebrownsucks.com (website selling t-shirts, bumper stickers, etc) → cease & desist letter from NFL for infringement → didn’t matter that they said they were not affiliated w/ NFL or teams → Defense in Trademark = just using it to illustrate how bad the team is, we are not making a dime on it or selling it for a dime RIGHT TO PUBLICITY: generally recognized property right of individuals (often prominent persons, such as pro athletes & entertainers), to control the commercial value & exploitation of their names or picture or likeness (protects celebrities’s economic & moral interest) → person’s identity or persona should be legally recognized as the person’s property (akin to a copyright or trademark) → ownership of one’s NIL & other identifying characteristics → the taking of such right is that commercial establishment in using the image for economic game → inherent economic value to human identity → derived from tort of commercial misappropriation (privacy) Evolved through common law, rather than federal statues → part of problem b/c different states have different laws ○ Trademark & Copyright are different from RTP b/c they have federal statutes ○ MAJ, if not all, states recognize right of publicity claim for unauthorized use of an athlete’s identity NY recognizes only statutory right of publicity Key Concepts: (1) property or pecuniary right (2) name, picture, voice, likeness (3) commercial purposes (4) 1st Amendment expressive rights by Ds (5) ebb & flow re: these concepts make right of publicity very, very challenging for courts to interpret & apply 1st Amendment Limitations on Right to Publicity: 1st Amendment limits the permissible scope of publicity rights under state law → RULE: the media may use an athlete’s name, photograph or other aspect of one’s identity in connection w/ truthful reporting; RULE: unauthorized use of MLB players’ Names & stats in online fantasy baseball games is protected by 1st Amendment → the info used is readily available in public domain & it would be strange law that a person would not have 1st amendment right to use info that’s available to everyone … it was not commercially based & didn’t hurt players income → RULE: if it’s public info → protected by 1st Amendment RIGHT TO PUBLICITY TESTS: (1) Restatement (relatedness) Test (2) Predominant Purpose Test (3) The Transformative Test Restatement (relatedness) Test: right to The Transformative Test: this is a doctrine that came from copyright law to see whether an publicity “may” extend beyond pure infringement exists. It was adopted by any courts to right of publicity. The test deals with advertising or commercial purposes, but it whether the use containing celebrity’s likeness is so transformative that it has become categorically notes that this is not an primarily the D’s own expression rather than celebrity’s likeness → TEST: is it a literal exception to the rule [most commercially depiction, or one changed as to primarily artistic expression? When the work contains based/narrowest] significant transformative elements, it is not only especially worthy of 1st Amendment Namath v. Sports Illustrated– use of a cover protection, but it is also less likely to interfere w/ the economic interest protected by the Right of magazine in ad to subscribe to magazine is of First Publicity RULE: if so, it becomes protected by 1st Amendment speech, commercial not violation of NY’s right of publicity law; use or not, but it can be argued that commercial use or something approaching commercial use RULE: right to publicity not protecting in is inferred (See Tiger Woods case (ETW v. Jireh)–court inferred that the sale of the copies of NY when it’s “incidental advertising” the painting would be commercial)! (If transformative → protected by 1st amendment) Montana v. San Jose Mercury News– Haelan Laboratories v. Topps Chewing Gum–SCOTUS recognized right of publicity for the poster-sized reproduction of actual newspaper first time pages w/ artistic rendition of NFL QB’s In re NCAA Student Athlete NIL Litigation–applied transformative use test → uses were not likeness & sale of such poster = protected by transformative & not protected by 1st Amendment. Transformative use defense: a balancing 1st amendment (relying on Nemath in part) test between 1st Amendment & the right of publicity based on whether the work in question adds significant creative elements as to be transformed into something more than a mere Predominant Purpose test: requires that a celebrity likeness limitation P’s name & likeness be used w/ the intent to Problem w/ test: makes art critics out of judges! → judge has to decide how transformative obtain a commercial advantage → RULE: if work it → real problem in copyright law b/c how transformative does it have to be predominant purpose is commercial rather than expressive it’s a violation of right to publicity Doe v. TCI Cablevision – “enforcer” character in a comic book that had similar !!!!!!!!!!!!!USE TRANSFORMATIVE USE TEST ON EXAM!!!!!!!!!!!!! attributes to pro hockey player well-known in St. Louis market as “enforcer” → court said predominant purpose was commercial rather than expressive in nature → character was used as a vehicle to sell comic books specifically relying on the alteration of the hockey player’s name → TAKEAWAY: 1st Amendment did no “always trump” commercial rights int'l & Olympic Sports – The Legal & Ethical Framework & Coaching Abuse & US Safe Sport US Pro Sports: leagues are autonomous, not subject to int'l federations, profit motive predominant Other Nations: (more holistic than US) More of a pyramid structure (including amateur & lower division clubs), success based on victoria, losing teams are regulation, pressure to create US-based teams is limited (Australia is similar to US) Lex Sportiva → movement to consider a common body of sports law that encompasses a series of consistent rules (int'l, NOT US) ○ In US: everything is statutory, common law, or philosophy, NO Lex Sportiva Sources for int'l sports law: int’l law norms, int’l arbitration rules, int’l treatise (human rights), Swiss law (CAS Arbitration), K law ○ Most sports federations are HQ in Switzerland → Swiss court give incredible deference to decisions of organization ○ Commonality between int’l orgs: they are not too fond of US Common law System, Justice dep’t, don’t wand direct business in US Big differences between US & general int’l sports: (1) less labor law int’l than in US (2) less reliance on domestic courts int’l (arbitration is a must int’l → Court of Arbitration for Sport) (3) tip-down structure of int’l federation & universal effect on rules promulgated by Int’l federations Ethical issues in sports → he ran through this quickly… mainly talked about doping → WADA (int’l) v. USADA (US) → they don’t get along ○ WADA list has drugs that are medications along w/ illegal drugs …WADA = really complicated & testing = totally random (any time, anywhere) Allegations that int’l athletes were caught by WADA & not suspended → criticism of WADA drug testing could be grounds to pull out of Salt Lake City Olympocs ○ RULE: If someone is caught doping (evidence of banned substance), there’s a presumption that they are liable unless the person can find a compelling argument to say no, they had no idea, it was an accident or that someone spiked it (not easy to show); default penalty = 2 years Int’l Sports Structure: 2 parallel structures → one side it’s the olympic movement w/ nat’l olympics committee who reports to International Olympics Commission (IOC); on the other side: you have the nat’l governing bodies that report to the Int’l Federations (goes sport by sport) European Model: quickly went through this → showed us FIFA governing document (“FIFA Statutes”) → loaded w/ committees ○ Controversial Qatar world cup → what could be bribery under US law has no jdx b/c FIFA = Swiss entity, not US entity US does not have integration of professional & non-professional sports w/in federations of organizations → int’l does OLYMPICS Olympic Movement → looked @ olympic charter in class → Olympics call themself a movement → defined “olympianism” (saying it’s cultural & educational, more than just entertainment) → in US sports is mainly just entertainment → int’l (olympics) feels they have social type of situation that’s inherent in sports → In US civil rights movements in sports are more tangential to the business at hand than in the olympics → in Olympics they have a sense to do the social movement Olympic Host K: doc signed by the city olympics is in; RULE: the only one who can cancel the olympics is the IOC; city cannot cancel w/o consent of IOC Athletes’ Rights–Olympic Charter Rule 50: (1) advertising limited to certain areas, but not in metal area b/c they don’t want conflict between sponsors (2) no kind of demonstrations of political, religious, or racial propaganda is permitted in any Olympic sites, venues or other areas → IOC argues if you allow one person to protest you have to allow other protests as well & it defeats the purpose of the olympus (good will & good faith) Olympic Boycotts → most say hurts athletes more than anyone else US Olympic System: mix of external 7 internal law → Ted Stevens Amateur Sports Act → USOPC has “exclusive jdx … over … all matters pertaining to US participation in the Olympic Games… including representation in the US in the games; chosen NGBs run & oversee their sport or group of sports & establishes criteria for competition & sanctioning competitions on a regional 7 nat’ level & recommend  athletes & teams to rep the US in Olympic Games, Paralympic Games & Pan-American Games & other int’l competitions; NGB have to fund themselves but get tax deductions (donations & sponsorships) COACHING ABUSE Safe Sports Authorization Act: one can report coaching abuse, goes through hearing & coach can be banned Empowering Athletes Act: congress can revoke charter of NGBs, creates new 16-member committee selection to monitor USOPC & NGBs, allows US jdx to drug testing in int’l jdx if there are US athletes & coaches there Where the line is between tough an abusive = hard Q that is debated CASES DeFrantz v. USOC (1980) – challenge by 25 athletes to USOC’s decision to send American team to participate inthe 1980 Summer Games in Moscow. Claimed constitutional violations → HOLDING: athletes lost b/c USOC = private actor and not subject to the Constitution Jordan Chiles Case – fight to get bronze metal back; has to do with timing of challenge → arbitration case → ongoing → briefs in German → TAKEAWAY: een though idea of int’l sports are very holistic, the rules employed are specific, long & coaches need to know them!!! → Arbitration Panel was unsympathetic t oChiles, but based on rules that exist it’s too late (video evidence was not known or brought at the time. Issue could be evidence going to light too late) RULE: the rules of the system is that Swiss federal court can only decide on procedural violation, they cannot go to the merits of judges’s decision or motivations Valieva Case – Minor russian figure skater → drug tested, took a long time → didn’t get results until after she skated in team event but before individual event → test came back positive → they allowed her to compete in the moment in the individual event because of her minor status, but after the fact it was found that she did indeed dope