Matthew J. Mitten - Sports Law_ Governance and Regulation-Aspen Publishers (2016).pdf

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Unformatted text preview: 2 3 Copyright © 2016 CCH Incorporated. Published by Wolters Kluwer in New York. Wolters Kluwer Legal & Regulatory Solutions U.S. serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. ( ) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at , or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Attn: Order Department PO Box 990 Frederick, MD 21705 eISBN 978-1-4548-7481-2 Library of Congress Cataloging-in-Publication Data Names: Mitten, Matthew J., 1959- author. | Davis, Timothy, 1954- author. | Smith, Rodney K., author. | Shropshire, Kenneth L., author. | Osborne, Barbara, author. Title: Sports law / Matthew J. Mitten, Professor of Law and Director, National Sports Law Institute Marquette University Law School; Timothy Davis, John W. & Ruth H. Turnage Professor of Law Wake Forest University School of Law; Rodney K. Smith, Professor of Practice and Director, Center for Sports Law and Policy Thomas Jefferson School of Law; Kenneth L. Shropshire, David W. Hauck Professor Wharton School, University of Pennsylvania; Barbara Osborne, Associate Professor University of North Carolina at Chapel Hill;. Description: Second edition. | New York : Wolters Kluwer, 2016. | Series: Aspen college series | Includes bibliographical references and index. Identifiers: LCCN 2015046483 | ISBN 9781454869788 (alk. paper) Subjects: LCSH: Sports--Law and legislation--United States. | LCGFT: Casebooks. Classification: LCC KF3989 .M58 2016 | DDC 344.73/099–dc23 LC record available at 4 About Wolters Kluwer Legal & Regulatory Solutions U.S. Wolters Kluwer Legal & Regulatory Solutions U.S. delivers expert content and solutions in the areas of law, corporate compliance, health compliance, reimbursement, and legal education. Its practical solutions help customers successfully navigate the demands of a changing environment to drive their daily activities, enhance decision quality and inspire confident outcomes. Serving customers worldwide, its legal and regulatory solutions portfolio includes products under the Aspen Publishers, CCH Incorporated, Kluwer Law International, ftwilliam.com and MediRegs names. They are regarded as exceptional and trusted resources for general legal and practice-specific knowledge, compliance and risk management, dynamic workflow solutions, and expert commentary. 5 To Bob Berry, our friend and colleague 6 Summary of Contents Contents Preface CHAPTER 1: CHAPTER 2: CHAPTER 3: CHAPTER 4: CHAPTER 5: CHAPTER 6: CHAPTER 7: CHAPTER 8: CHAPTER 9: CHAPTER 10: CHAPTER 11: CHAPTER 12: CHAPTER 13: CHAPTER 14: An Introduction to the Study of Sports Law Regulating Interscholastic (High School) and Youth Athletics NCAA Internal Governance of Intercollegiate Athletics and Legal Limits Legal Relationships Between the University and Student-Athletes Gender Equity Issues in Athletics Racial Equity Issues in Athletics Health, Safety, and Risk Management Issues in Sports Sports Medicine, Concussions, Compensation, and Impairment In Sports Intellectual Property Issues in Sports Coaches’ Contracts and Related Issues Professional Sports League Governance and Legal Regulation Professional Sports Labor Law and Labor Relations Representing Players and Teams:The Athlete-Agent Industry Olympic and International Sports Issues Glossary Table of Cases Index 7 Contents Preface Chapter 1: An Introduction to the Study of Sports Law What Is Sports Law? A. The Traditional View: “Sports Law” Does Not Exist B. The Moderate Position: “Sports Law” May Develop into a Field of Law C. “Sports Law”: A Separate Field of Law Fundamentals of the Legal System Jurisdiction and the Federal and State Court Systems A. Federal Courts B. State Courts C. Tax and Other Specialized Courts Civil Procedure Using the Case Method to Study Law A. Common Law 1. Precedent 2. How to Brief a Case Savino v. Robertson Questions Chapter 2: Regulating Interscholastic (High School) and Youth Athletics Introduction: The Rise of the Regulation of Interscholastic and Youth Athletics at the State, National, and International Levels A. Historical Overview B. Interscholastic and Youth Athletics Regulatory Structure, Governance, and Administrative Processes Judicial Regulation of Interscholastic and Youth Athletics A. State Action Brentwood Academy v. Tennessee Secondary School Athletic Association Questions 8 Notes Tennessee Secondary School Athletic Association v. Brentwood Academy (Brentwood II) Questions B. Eligibility Issues 1. Transfer Rules Indiana High School Athletic Association v. Carlberg Notes Problem 2-1 2. Outside Competition Rules Question 3. Good Conduct Rules Brands v. Sheldon Community School Questions Notes 4. Age Rules Cruz v. Pennsylvania Interscholastic Athletic Association, Inc. Questions Problem 2-2 5. Grooming Rules 6. No-Pass, No Play Rules Questions 7. Exclusion of Homeschooled Students from Athletic Participation Questions Note C. First and Fourth Amendment Issues 1. Drug Testing Vernonia School District 47J v. Acton Questions Notes Problem 2-3 2. Freedom of Speech and Association Wildman v. Marshalltown School District Questions 3. Freedom of Religion a. Free Exercise Issues Questions 9 Note Problem 2-4 b. Establishment Clause Issues Questions Problem 2-5 D. Review of Game Results Questions E. Health and Safety Issues in Youth and Interscholastic Sports Questions Chapter 3: NCAA Internal Governance of Intercollegiate Athletics and Legal Limits Introduction A Brief History: NCAA Governance of Intercollegiate Athletics Questions NCAA Regulatory Authority and Processes A. NCAA: History of Regulation and the Rules Infractions Process B. Institutional Violations of NCAA Rules and Sanctions University of Southern California Infractions Appeals Committee Report No. 323 Questions The Penn State University Case Questions The University of Miami Case Questions The University of North Carolina Case Questions C. Individual Responsibility for NCAA Rules Violations and Sanctions Former Head Men’s Basketball Coach University of Minnesota, Twin Cities Public Infractions Appeals Committee Report Questions Other Cases Involving Coaches Questions Notes Problem 3-1 Legal Limits on NCAA Regulatory Authority A. Federal and State Civil Rights Law 10 NCAA v. Smith Question B. Drug Testing and Privacy Questions C. Contract and Private Association Laws Bloom v. NCAA Questions D. Federal Antitrust Law 1. Nature and Scope of Antitrust Limits on NCAA Regulatory Authority 2. Case Law NCAA v. Board of Regents of the University of Oklahoma Questions Smith v. NCAA Notes O’Bannon v. NCAA Questions Chapter 4: Legal Relationships Between the University and Student-Athletes Contractual and NCAA Regulatory Dimensions A. Introduction 1. Contract Formation and Consideration a. Mutual Assent b. Consideration and Promissory Estoppel 2. Modification 3. Express and Implied Contracts 4. Performance, Breach, and Remedies a. Breach b. Excuses for Nonperformance 5. Damages B. Contractual Aspects of the Student-Athlete and University Relationship 1. Statement of Financial Assistance 2. National Letter of Intent Questions C. Student-Athlete Financial Aid and Other Benefits 1. NCAA Regulations Governing Contracts and Scholarships Questions 11 Note 122 D. Defining the Scope of Institutional Obligations to Student-Athletes Taylor v. Wake Forest University Questions Ross v. Creighton University Questions Notes E. NCAA Academic Reform Initiatives 1. NCAA Academic Reform Legislation 2. Academic Progress Rate Questions F. Limited Scope of Constitutional Protections 1. General Principles: What Is a Property Interest? 2. A Property Interest in Athletic Participation? Hysaw v. Washburn University of Topeka Question Notes Problem 4-1 G. Student-Athletes as Employees: Workers’ Compensation 1. Workers’ Compensation: General Principles 2. Student-Athletes and Workers’ Compensation: Waldrep v. Texas Employers Insurance Association Questions Note 3. Student-Athlete Unionization Questions Note First Amendment Rights in Intercollegiate Athletics A. Introduction B. The First Amendment and the Media Questions C. Religious Liberty Issues Questions Problem 4-2 Chapter 5: Gender Equity Issues in Athletics 12 Introduction Historical Perspective Gender-Based Exclusion from a Particular Sport Force v. Pierce City R-VI School District Questions Problem 5-1 Equal Athletic Participation Opportunities, Benefits, and Treatment A. Accommodation Cohen v. Brown University Questions Problem 5-2 B. Equal Benefits and Treatment Questions Reverse Discrimination Claims and Title IX Neal v. Board of Trustees of the California State Universities Questions Title IX and Sexual Harassment A. Coach-Athlete Sexual Harassment B. Peer Sexual Harassment Questions Gender-Based Employment Discrimination in Athletics A. Employment Discrimination Deli v. University of Minnesota Questions B. Retaliatory Discharge or Punitive Action Chapter 6: Racial Equity Issues in Athletics Introduction Historical Perspective A. Racial Segregation: Intercollegiate Athletics 1. Formal Rules of Exclusion 2. Informal Rules of Discrimination B. Racial Segregation: Professional Sports C. The Reintegration of Professional and Amateur Sports Race and Racial Equity in Modern Sports: An Evolving Debate 13 A. College Sports Coaching and Administrative Opportunities 1. Coaching 2. Athletic Administration B. Professional Sports C. Intersections 1. Race and Gender 2. Race and Economic Exploitation 3. Race and Globalization Questions Case Law A. Academic Racism and Marginalization: NCAA Initial Eligibility Rules Questions Problem 6-1 B. Employment Discrimination Jackson v. University of New Haven Questions Problem 6-2 C. Stereotypes Racially Stereotyped Mascots—Racism or Pride? Questions Problem 6-3 D. Racially Hostile Environments and Conduct Problem 6-4 Chapter 7: Health, Safety, and Risk Management Issues in Sports Introduction Liability for Athletics-Related Injuries A. Injury to Athletes 1. Co-Participant Tort Liability Shin v. Ahn Questions Note Problem 7-1 2. Co-Participant Criminal Liability People v. Schacker Regina v. McSorley 14 People v. Hall Questions Note Problem 7-2 Liability of Educational Institutions (and Organizations) A. High School Kahn v. East Side Union High School District Questions Notes B. Colleges and Universities Orr v. Brigham Young University Question Notes Problem 7-3 C. Injury to Spectators Thurmond v. Prince William Professional Baseball Club, Inc. Questions Notes Problem 7-4 Tort Immunities Question Problem 7-5 Validity of Liability Waivers Wagenblast v. Odessa School District No. 105-157-166J Sharon v. City of Newton Questions Chapter 8: Sports Medicine, Concussions, Compensation, and Impairment in Sports Introduction Sports Medicine Malpractice Liability A. Team Physicians B. Athletic Trainers C. Athlete's Contributory Negligence D. Concussion Injury Compensation for Professional Athletes Pro-Football, Inc. v. Uhlenhake 15 Question Note DePiano v. Montreal Baseball Club, Ltd. Participation Rights of Athletes with Physical or Mental Impairments A. Rehabilitation Act of 1973 B. Americans with Disabilities Act of 1990 Questions Notes Problem 8-1 Chapter 9: Intellectual Property Issues in Sports Introduction Trademarks, Logos, and Other Identifying Sports Insignia A. Trademark Infringement and Unfair Competition 1. Name of Sports Team or Event 2. Unauthorized Affixation of Sports Team Mark to Merchandise National Football League Properties, Inc. v. New Jersey Giants, Inc. Question Notes B. Trademark Dilution C. Anticybersquatting Consumer Protection Act of 1999 D. Olympic Marks Problem 9-1 Ambush Marketing Problem 9-2 Real-Time Game Accounts and Broadcasting Rights A. Historical Background B. Nature and Scope of Copyright Law Protection C. Copyright Infringement of a Sports Broadcast NFL v. TVRadioNow Corp. Question Note D. Misappropriation of Real-Time Game Accounts and Scores Problem 9-3 Athletes’ Lanham Act and State Law Privacy, Reputation, and Publicity Rights 16 A. Lanham Act B. State Laws 1. Defamation 2. Right of Privacy 3. Right of Publicity a. Nature and Scope of the Right of Publicity b. First Amendment Limitations Problem 9-4 Chapter 10: Coaches’ Contracts and Related Issues Introduction Is There a Property Interest in Athletic Employment? Questions Problem 10-1 A. Termination 1. Constitutes Termination for “Cause”? Questions 2. Termination for Rules Violations and Non-Sports-Related Indiscretions Questions Problem 10-2 3. Termination for Abusive Conduct Question Problem 10-3 4. Free Speech and Retaliation Issues B. Compensation and Other Financial Matters Question Questions Termination, Breach, and Liquidated Damages Vanderbilt University v. DiNardo Questions Note Exploring Other Contractual Relationships A. Sponsorship Agreements B. Venue Agreements Chapter 11: Professional Sports League Governance and Legal Regulation 17 Introduction Origin and Evolution of Modern North American Professional Sports Industries A. Evolution of Sports into a Business and Profession B. Unique Features of Professional Team Sports C. The Principal “Players” in the Professional Sports Industries 1. Leagues 2. Clubs or Teams 3. Commissioners 4. Players 5. Players Associations 6. Player Agents 7. Other Industries Integral to Modern Professional Sports Internal League Governance and Commissioner Authority A. Legal Limits on Internal League Governance B. League Commissioner’s “Best Interests of the Game” Authority and Legal Limits Charles O. Finley & Co., Inc. v. Kuhn Note Problem 11-1 Federal Antitrust Law Limits on League Rules and Governance A. Overview B. Baseball’s Antitrust Exemption Flood v. Kuhn Question Note C. Application of Sherman Act §1 1. Concerted Action Requirement 2. Unreasonable Restraint of Trade a. Acquisition, Ownership, and Sale of a Franchise Levin v. NBA Note b. Franchise Relocation c. Restrictions on Intellectual Property Rights Licensing and Sales D. Application of Sherman Act §2 Problem 11-2 Chapter 12: Professional Sports Labor Law and Labor Relations 18 Introduction Contract Law Questions Problem 12-1 Labor Law A. Collective Bargaining in the Professional Sports Industries B. Professional Team Sports Drug-Testing Programs Questions Problem 12-2 C. Unfair Labor Practices 1. League Interference with Players’ Rights to Unionize 2. League Refusal to Recognize Union as Exclusive Bargaining Representative 3. Retaliation Against Union Activists 4. Breach of Duty to Bargain in Good Faith or Provide Relevant Information Concerning Mandatory Subjects of Collective Bargaining Silverman v. Major League Baseball Player Relations Committee, Inc. (Silverman I) Note 5. Discrimination Against Striking Players Questions D. Union’s Duty of Fair Representation E. Labor Arbitration National & American League Professional Baseball Clubs v. Major League Baseball Players Association Notes The Intersection of Antitrust and Labor Law Questions Chapter 13: Representing Players and Teams: The Athlete-Agent Industry The Nature of the Athlete-Agent Relationship A. The Agent’s Basic Duties B. The Agent’s Standard of Care Zinn v. Parrish Questions C. Agent Financial Improprieties Questions 19 Problem 13-1 D. Agent Conflicts of Interest with Athletes The Detroit Lions, Inc. v. Argovitz Questions Problem 13-2 Competition for Clients: Conflicts Between Agents A. Introduction B. Consolidation C. Termination NFLPA Standard Representation Agreement D. Disparagement E. What Is Permissible Competition? Questions F. The Issue of Race Question An International Perspective External Regulation and Legislation A. Federal Legislation 1. SPARTA 2. General Federal Laws Questions B. State Regulation: The UAAA Uniform Athlete Agents Act (2000) Problem 13-3 C. Players Associations 1. Authority to Regulate Question 2. Regulating the Athlete-Agent Relationship a. Sanctions: Suspensions and Decertification b. Fees/Agent Compensation c. NFLPA Amendments d. MLBPA Amendments e. Excerpts of Players Association and NCAA Regulations NFLPA Regulations Governing Contract Advisors Questions NCAA Bylaw, Article 12 20 Problem 13-4 Chapter 14: Olympic and International Sports Issues Introduction A. Origin, History, and Objectives of the Olympic Games B. Organization, Governance, and Structure of the Olympic Movement Regulation of Olympic Sports Within the United States Question Limits on the Use of National Law to Regulate Olympic and International Athletic Competition Question Problem 14-1 Court of Arbitration for Sport A. Overview B. Disputed Competition Results Yang Tae Young v. International Gymnastics Federation Note Problem 14-2 C. Doping Violations and Sanctions 1. Strict Liability Standard, Clear Notice Requirements, and Proportionate Sanctions Question 2. Interpretation and Application of the World Anti-Doping Code Guillermo Cañas v. ATP Tour Questions Notes Developing International Issues Notes Glossary Table of Cases Index 21 Preface Second Edition To provide users of our book with the most current and comprehensive sports law and governance text available, we have revised and updated the second edition of our book to include discussions of the most recent legal and governance developments affecting youth, interscholastic, intercollegiate, Olympic, and professional sports that have occurred since our first edition was published in 2012. The sports industry, at all levels, has experienced significant and rapid change in that time period. That change is captured in this text. This edition includes a number of recent legal decisions and new materials regarding developments in governance that reflect the increasing complexity of problems arising in the sports industry. This edition, therefore, includes materials reflecting changes in governance at the professional level (e.g., issues like “Deflategate” and governance within the National Football League (NFL)) and the new governance structure of the National Collegiate Athletic Association (NCAA). We have updated historical sections of the book as well, to give students a feel for the magnitude of those changes. The Second Edition also includes refined problems and notes that are designed to encourage students to wrestle with the kinds of legal and governance problems that are arising and will hereafter arise within the industry. With input from thoughtful users of the First Edition, we have been able to add new material without unduly expanding the length of the text. As such, the text can still be effectively used in either a two- or three-credit course. With users’ comments and based on our own use of the text, we have reorganized and, where necessary, consolidated materials. We trust that you will find this Second Edition to be an excellent text for the study of sports law and governance. We welcome your continuing comments regarding the text. Please feel free to contact any of us with your comments and suggestions for improving the book: Matt Mitten ([email protected]), Tim Davis ([email protected]), Barbara Osborne ([email protected]), Ken Shropshire ([email protected]), and Rod Smith ([email protected]). First Edition This book, which is adapted from three of the authors’ widely used law school text, is designed to introduce undergraduate and graduate students to the various and often differing legal frameworks regulating high school, college, professional, and Olympic sports competition along with important, contemporary topics such as gender and racial equity; health, safety, and risk management; and intellectual property issues in spo...
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