PART I
—
AMATEUR SPORTS AND THE LAW
A.
Intro:

Difference between Amateur and Pro is that amateurs don’t get paid

True amateur receives nothing

Spurious (like athletes at major universities) receives benefits, exposure,
scholarships,
etc.

Athletes at major universities also generate revenue for schools

Subject to participation rules and eligibility regulations
B.
Administration of Amateur Athletics and Role of Athletic Associations:

Makes rules and regulations

Amateur engages in “avocation” no
t “vocation” (job)
C.
NCAA Overview:
1
General
o
Voluntary association of about 1200 colleges/universities
o
Regulates athletic competition among members
o
Sets rules for eligibility
o
Establishes restrictions/guidelines for recruitment
o
Conducts championship events
o
Ent
ers TV/promotional K’s relating to championship events
o
Enters into licensing agreements (NCAA name and logos)
2
Structure
o
Separate divisions for members (Div. I, II, III)
o
I
A and I
AA for regulating football
o
Members govern through establishment of rules
o
Day
to
day operation by governance hierarchy led by 20 member executive
committee
o
Exec. Committee
chief officers ensure operation with purposes, policies, and
principals of the association
o
Also has permanent NCAA staff
3
Jurisdiction and Responsibilities:
o
I
nclude eligibility, enforcement, recruiting, championships, rules
o
Prohibits athletes from receiving benefits (also that athlete’s family and friends)
o
Amateur status forfeited when player retains an agent or declares eligible for draft
o
Restrictions on promo
tions specifically based on athlete’s status/abilities
o
Restrictions on employment for athletes on full scholarship
o
NCAA allows access to funds for personal and family emergencies
o
Sets guidelines for test scores and satisfactory progress toward a degree
o
4y
ears of eligibility must be completed within 5 years
o
Also strict bylaws about pre
enrollment recruiting (limits number and time of year
for visits)
o
Once athlete has enrolled, restrictions on number of hours set for practice, time
for competition, number of
contests
o
Conducts/regulates postseason play
Institutional control: control program in manner consistent with rules and
regulations of NCAA (this is an NCAA bylaw)
o
CEO of institution ultimately responsible for maintaining control (includes
supervising coac
hes, faculty, athletic administrators, etc.)
o
****MOST SERIOUS VIOLATION a university can commit is “failure to
maintain institutional control” ****
Ch. 1-Legal Relationships in Amateur Sports:
A. Athletes’ Rights
1.Arising from scholarship
- Taylor v. Wake Forest: even though K allows for limitation of athletic
activities to extent necessary to assure reasonable academic progress, the
reasonableness is not to be determined by the athlete and athlete has
contractually agreed to maintain eligibility by keeping up
with his grades as well as participating in athletics
-Ross v Creighton: no COA for negligent admission, nor for educational
malpractice. Breach of K only exists for failure to deliver on a specific
promise (not just that the education received was “not
good enough”)
However, in this case the court remanded to determine not whether the
educational services (as promised in the agreement) provided was
adequate, but whether these services were provided at all (in the case that
they weren’t provided at all,
there would be a COA for breach of K)
2.
Worker’s Compensation
o
Must determine whether there is “employer/employee” relationship
o
Two different tests:
1
Nature of work
whether worker’s efforts are inextricably linked to significant
aspect of employer’s business
2
Right of control
whether employer had ability to manipulate efforts of worker
o
Next, look for causal connection (causation test met when employment brings
worker into the orbit of risk that in fact resulted in injury)
o
Basic elements of recovery:
1.
Medical ex
penses
recovered if reasonably incurred
2.
Lost earnings
percentage of weekly wage prior to injury
o
Disability categories: temporarily total, temporarily partial, permanently total,
permanently partial
Waldrep v. Texas Employers Insurance Association
: employ
er/employee
relationship must be created by K. Because it was intended that Waldrep
remain an amateur he was not “hired” to play football and attend school.
Financial aid was not treated as “pay” and even if K was for “hire” the
establishment of practice
and meeting times doesn’t mean TCU had “right
to control” all aspects of players’ activities
B.
Coaches and Institutional K’s
1.
Coaches K’s
Rodgers v. GA Tech
: relieved of duties “not for cause”. Damages growing
out of breach of K. In order to form basi
s for recovery, must be such as
can be traced solely to breach, must be capable of exact computation, must
have arisen naturally and according to usual course of things from such
breach and must be such as parties contemplated as probable result of
breach.
Also, profits of subcontracts are recoverable if knowledge of
subcontract is within contemplation when entering original contract
O’Brien v. OSU
:
court need only find that plaintiff had reasonable cause to
believe that he committed an infraction (NCAA ru
le). Because plaintiff’s
failure to perform was not material, defendant had no cause for
termination. Defendant breached contract by not paying plaintiff. Section
5.1b= violation of rules will not justify termination for cause unless that
violation has
some independent significance which prevents future
performance
Ch. 2
-Amateur Sports Associations: Rules, Procedures, Eligibility
A.Threshold Constitutional Issues:
oAlthough many amateur athletic organizations are “private” in the sense that they
are not
formal creatures of the state, they arguable perform state
like functions
and state is inevitably somehow involved in operation by providing money,
services, facilities, permission, or encouragement
o
Merits of claim will not even be reached unless it can be
shown that government
has acted
DeFrantz v. USOC
: 2 guidelines to define “State action” 1) whether state
has so far insinuated itself into position of interdependence with private
entity that it must be recognized as a join participant in the challenged
activity, and 2) whether there’s a sufficiently close nexus between state
and challenged action of regulated entity so that the action of the latter
may be fairly treated as that of the state itself. (necessary to show more
than pressure, government must exercise some form of control over
actions)
Three part test tp determine if there is a state actor:
1. To what extent is the business subject to state regulations
2. Is there a sufficiently close nexus between the state and the challenged action
of the private entity so that the action of the entity may be fairly treated as that
of the state itself?
3. Does the private decision involve such coercive power or significant
encouragement, either overt or covert, by the state that the choice must in law
de deemed to be that of the state?
NCAA v. Tarkanian
:
NCAA doesn’t act on behalf of states. Universities
can withdraw from NCAA and enact own policies. NCAA is not an agent
of state because it acts not on behalf of any state but on behalf of all i
ts
members who are in many different states. NCAA is properly viewed as a
private actor at odds with the state when it represents interest of its entire
membership in an investigation of one public university. Public university
conducts its athletic prog
ram under color of policies adopted by NCAA,
rather than that those policies were developed and enforced under color of
state law
Brentwood Academy v
. Tennessee Secondary School Athletic Association
:
state action may be found if, though only if, there is s
uch a “close nexus
between the state and the challenged action” that seemingly private
behavior “may be fairly treated as that of the state itself.” Challenged
B.
Coaches and Institutional K’s
1.
Coaches K’s
Rodgers v. GA Tech
: relieved of duties “not for cause”. Damages growing
out of breach of K. In order to form basi
s for recovery, must be such as
can be traced solely to breach, must be capable of exact computation, must
have arisen naturally and according to usual course of things from such
breach and must be such as parties contemplated as probable result of
breach.
Also, profits of subcontracts are recoverable if knowledge of
subcontract is within contemplation when entering original contract
O’Brien v. OSU
:
court need only find that plaintiff had reasonable cause to
believe that he committed an infraction (NCAA ru
le). Because plaintiff’s
failure to perform was not material, defendant had no cause for
termination. Defendant breached contract by not paying plaintiff. Section
5.1b= violation of rules will not justify termination for cause unless that
violation has
some independent significance which prevents future
performance
Ch. 2
Amateur Sports Associations: Rules, Procedures, Eligibility
A.
Threshold Constitutional Issues:
o
Although many amateur athletic organizations are “private” in the sense that they
are not
formal creatures of the state, they arguable perform state
like functions
and state is inevitably somehow involved in operation by providing money,
services, facilities, permission, or encouragement
o
Merits of claim will not even be reached unless it can be
shown that government
has acted
DeFrantz v. USOC
: 2 guidelines to define “State action” 1) whether state
has so far insinuated itself into position of interdependence with private
entity that it must be recognized as a join participant in the challenged
a
ctivity, and 2) whether there’s a sufficiently close nexus between state
and challenged action of regulated entity so that the action of the latter
may be fairly treated as that of the state itself. (necessary to show more
than pressure, government must ex
ercise some form of control over
actions)
NCAA v. Tarkanian
:
NCAA doesn’t act on behalf of states. Universities
can withdraw from NCAA and enact own policies. NCAA is not an agent
of state because it acts not on behalf of any state but on behalf of all i
ts
members who are in many different states. NCAA is properly viewed as a
private actor at odds with the state when it represents interest of its entire
membership in an investigation of one public university. Public university
conducts its athletic prog
ram under color of policies adopted by NCAA,
rather than that those policies were developed and enforced under color of
state law
Brentwood Academy v
. Tennessee Secondary School Athletic Association
:
state action may be found if, though only if, there is s
uch a “close nexus
between the state and the challenged action” that seemingly private
behavior “may be fairly treated as that of the state itself.” Challenged
activity may be state action when it results from state’s exercise of
“coercive power”, when st
ate provides “significant encouragement”, or
when a private actor operates as a “willful participant in joint activity with
the state or its agents. Nominally private entity treated as state actor when
it is controlled by an “agency of state” when it has
been delegated a public
function by state, when it is “entwined with governmental policies” or
when government is “entwined in its management or control.”
Entwinement will support a conclusion that an ostensibly private
organization ought to be charged wi
th a public character and judged by
constitutional standards.
B.
NCAA Enforcement and Eligibility Issues
1.
Enforcement:
o
When member institution is alleged to have violated rules, the association’s
enforcement staff commences an investigation (frequently these
investigations are
a result of self
reporting, while some are from opposing schools)
o
Investigations are confidential until announcements are made according to
prescribed procedures
o
If enforcement staff has reasonably reliable info indicating an institution
has
violated a rule, it serves a Notice of Inquiry on the CEO of the school
o
Notice details potential violations, sport, and individuals involved
o
Following the preliminary investigation, process can go one of three ways: 1) case
may be closed for lack of e
vidence, 2) major violation may be found and
summary disposal discussions begin with school; and 3) less or secondary
violations found and appropriate penalties are then discussed and imposed
o
If enforcement staff has “sufficient info to warrant” a Notice o
f Allegations will
be issued to CEO of school (with more specificity than notice of inquiry)
o
School will then conduct its own investigation utilizing outside counsel and
investigators
o
Counsel advises school to cooperate with NCAA and that adversarial clima
te
found in most torts cases will not be tolerated in the NCAA process (failure to
cooperate is itself a violation of rules)
o
Following investigation, Committee on Infractions will conduct hearing to
determine findings and any penalties, then issue its repo
rt
2.
NCAA Eligibility Issues:
NCAA v. Yeo
: student has no interest in participating in extracurricular
activities. Whether an interest is protected by due process depends not on
its weight but on its nature. Claimed interests in future financial
opportunities are too speculative for due process protection. There must
be an actual legal entitlement. While student
-
athletes remain amateurs
their future financial opportunities remain expectations.
Bloom v NCAA
:
a person not a party to an express contract may bring an
action on the contract if the parties to the agreement intended to benefit
the nonparty, provided that the benefit claimed is a direct and not merely
incidental benefit of the contract. While the i
ntent to benefit the nonparty
need not be expressly recited in the contract, the intent must be apparent
from the terms of the agreement, surrounding circumstances, or both.
NCAA’s constitution, bylaws, and regulations evidence a clear intent to
benefit s
tudent
athletes. However, third party has rights no greater than
that of the contracting parties. Clear impact of Bylaws is that while some
students have the right to be professional athletes, they do not have the
right to simultaneously engage in endors
ement or paid media activity and
maintain their eligibility to participate in amateur competition. (bylaw
discussing endorsements is not sport
specific)
C.
General Eligibility Issues
Indiana High School Athletic Association v. Avant
: rule prohibiting males and females from competing on the same team or against
each other denied equal protection as guaranteed by the 14th Amendment. School
did not act arbitrarily in deciding not to allow student to qualify for financial
hardship relief. Student transferred toschool and lost a year of eligibility.
It was determined that there was not a change in the student’s
circumstances which would cause an undue hardship. While NCAA is not
a state actor because it acts on behalf of schools in all states, IHSAA is a
state actor because all of its members are secondary schools in Indiana.
Court adopted two requirements to be met by legislation granting unequal
privileges or immunities in order to withstand constitutional scrutiny: 1)
classification must be based upon distinctive, inherent characteristics
which rationally distinguish unequally treated class, and the disparate
treatment accorded by legislation must be reasonably related to such
distinguishing characteristics and 2) classification must be open to any and
all p
ersons who share the inherent characteristics which distinguish and
justify classification, with the special treatment accorded to any particular
classification extended equally to all such persons. Basically: if student
transferring without change in residence by parents does not fit into one of
thirteen listed exceptions or qualify as an “undue hardship” then the
student is ineligible for varsity athletics
Tiffany v Arizona Interscholastic Athletic Association, Inc
.
: while an
opportunity to participate i
n extracurricular activities it not by and in itself
a property interest, total exclusion from participation in that part of the
educational process designated as extracurricular activities for a lengthy
period of time could, depending upon particular circ
umstances, be a
sufficient deprivation to implicate due process.
Ch. 3
Gender Equity in Amateur Athletics
A.
Intro
Beginning in early 1970s suits by women alleging sexual discrimination (in
violation of 14
th
Amendment) began to emerge. Title IX of
the Educational Amendments
was passed in 1972. Language: “No person in the US shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving fe
deral financial
assistance.” While Title IX has substantially increased the number of women’s
programs, this comes at a loss of certain men’s programs.
B.
Constitutional Issues
Hoover v. Meiklejohn
: Constitutional inquiry to test government denials of
equal
opportunity should weight and balance the following elements: 1)
importance of opportunity being unequally burdened or denied, 2) strength
of state interest served in denying it, and 3) character of the groups whose
opportunities are denied. Constitutio
n does not permit the use of
governmental power to control or limit cultural changes or to prescribe
masculine and feminine roles.
Williams v Bethlehem
:
While sex is no longer accepted as an exclusive
classifying tool...the ERA (PA equal rights amendment) do
es not prohibit
differential treatment among the sexes when that treatment is reasonably
and genuinely based on physical characteristics unique to one sex.
C.
Title IX
Dept. of Education is responsible for enforcement of Title IX. Policy
interpretation eval
uates these areas: 1) athletic financial assistance, 2) equivalency in
other athletic benefits and opportunities, and 3) effective accommodation of student
interests and abilities. Interpretation also directs investigators to evaluate the
following
factor
s within athletic programs when attempting to determine compliance:
1.
Whether selection of sports and levels of competition effectively accommodate
interests and abilities of members of both sexes
2.
Provision of equipment and supplies
3.
Scheduling of games and
practice time
4.
Travel and per diem allowance
5.
Opportunity to receive coaching and academic tutoring
6.
Assignment and compensation of coaches and tutors
7.
Provision of locker rooms, practice and competitive facilities
8.
Provision of medical and training facilities
and services
9.
Provision of housing and dining facilities and services
10.
Publicity
Also, courts have set out a three part test to determine compliance (the three ways
schools
can be found to be in compliance): 1) whether intercollegiate level participation
opp
ortunities for male and female students are provided in numbers substantially
proportionate to their respective enrollments, 2)where members of one sex have
been and
are underrepresented among intercollegiate athletes, whether the institution can
show a
hi
story and continuing practice of program expansion which is demonstrably
responsive
to the developing interest and abilities of the members of that sex, or 3) where the
members of one sex are underrepresented among intercollegiate athletes, and the
institu
tion cannot show a continuing practice of program expansion, whether it can be
emonstrated that the interests and abilities of the members of that sex have been
fully
and effectively accommodated by the present program
Cohen v Brown University
: Applying s
ection 1681(b): “Title IX does not
mandate strict numerical equality between the gender balance of a
college’s athletic program and the gender balance of its student body.”
Title IX was passed with two objectives in mind: to avoid use of federal
resources
to support discriminatory practices and to provide individual
citizens effective protection against those practices. If there is sufficient
interest and ability among members of the statistically underrepresented
gender, not slaked by existing programs,
an institution necessarily fails
this prong (prong 3) of the test. Three
part test (three prong test) is
consistent with section 1681(b) because the test does not require
preferential or disparate treatment for either gender. Court assessing Title
IX com
pliance may not find violation solely because of a disparity
between gender composition of educational institution’s student
constituency, on the one hand, and its athletic programs, on the other hand.
Title IX requires plaintiff to show not only disparit
y between gender
composition of institution’s student body and its athletic program, but also
that a second element (unmet interest) is present, meaning that the
underrepresented gender has not been fully and effectively accommodated
by institution’s prese
nt athletic program. Also, Title IX’s remedial focus
is not on the overrepresented gender (not to punish this group) but on the
underrepresented gender (assisting this group).
Pederson v LSU
:
As a matter of law, a Title IX violation may be shown by
proof
of a substantial violation in any one of the three major areas
(prongs) of investigation set out in the Policy Interpretation. If an
institution makes a decision not to provide equal athletic opportunities for
its female students because of paternalism an
d stereotypical assumptions
about their interests and abilities, then that institution intended to treat
women differently because of their sex. Need not have intended to violate
Title IX, but need only have intended to treat women differently.
Kelley v B
oard of Trustees of University of Illinois
:
if the percentage of
student
athletes of a particular sex is substantially proportionate to the
percentage of students of that sex in the general student population, the
athletic interests of that sex are presume
d to have been accommodated.
Policy Interpretation does not mandate statistical balancing, merely creates
a presumption that a school is in compliance with Title IX and applicable
regulation when it achieves such statistical balance. Title IX’s stated
ob
jective is not that athletic opportunities for women increase, but rather
to prohibit educational institutions from discriminating on basis of sex.
D.
Employment Discrimination
Stanley v USC
: Equal Pay Act: no employer...shall
discriminate...between employees on
the basis of sex by paying wages to
employees...at a rate less than the rate at which he pays wages to
employees of the opposite sex...for equal work...which requires equal
skill, effort, and responsibility, and which are performed under similar
working conditio
ns. Two
step “substantially equal” analysis: 1)whether
jobs to be compared have a common core of tasks and (when this is met)
2) whether any additional tasks, incumbent on one job but not the other,
make the two jobs “substantially different.” Where empl
oyer
demonstrates that a pay differential was based on a factor other than sex,
the employer may use this to explain the differential, but the employee
may prevail by showing that the employer’s proffered nondiscriminatory
reason is a “pretext for discrimi
nation.”
Bowers v Baylor University
:
Because Title IX neither expressly nor
impliedly excludes employees from its reach, we should interpret the
provision as covering and protecting these “persons” unless other
considerations counsel to the contrary. Afte
r all, Congress easily could
have substituted “student” or “beneficiary” for the word “person” if it had
wished to restrict the scope of Title IX.
Ch. 4
Amateur Sports and Antitrust Law
A.
Intro
Sherman Act passed in 1890. Under section 1 of Act, every
contract, combination,
or conspiracy which restrains trade is prohibited. General objective of antitrust law
(promotion of competition in open markets) can be thwarted in two ways:
1)economic
rivals can act collusively to reduce competition and 2) market
structure itself can be such
that competition is restricted. Antitrust law aims at eliminating anti
competitive market
collusion and preventing monopolistic and oligopolistic market structures. Section 2
declares that “every person who shall monopolize,
or attempt to monopolize, or combine
or conspire to monopolize” is guilty of an offense. Threshold requirement for
application
of Sherman Act is that the activity must involve or affect interstate commerce.
B.
Collegiate Sports Antitrust Issues
NCAA v Board
of Regents of University of Oklahoma
: Horizontal price
fixing and output limitation are ordinarily condemned as a matter of law
under an “illegal per se” approach because the probability that these
practices are anticompetitive is so high; a per se rule is
applied when the
practice facially appears to be one that would always or almost always
tend to restrict competition and decrease output. Per se rules are invoked
when surrounding circumstances make the likelihood of anticompetitive
conduct so great as t
o render unjustified further examination of the
challenged conduct. Under the Act, the criterion to be used in judging the
validity of a restraint on trade is its impact on competition. A restraint that
has the effect of reducing the importance of a cons
umer preference in
setting price and output is not consistent with this fundamental goal of
antitrust law (consumer welfare protection). Restrictions on price and
output are the paradigmatic examples of restraints of trade that the
Sherman Act was intende
d to prohibit. As a matter of law, the absence of
proof of market power does not justify a naked restriction on price or
output. To the contrary, when there is an agreement not to compete in
terms of price or output, no elaborate industry analysis is req
uired to
demonstrate the anticompetitive character of such an agreement.
Law v NCAA
:
Two analytical approaches are used to determine whether
conduct unreasonably restrains trade: 1)per se rule and 2) rule of reason
analysis. Rule of Reason analysis: 1. Whether challenged restraint has a
substantially adverse effect on competition and 2.
Whether pro
competitive virtues of alleged wrongful conduct justifies otherwise anti
competitive impacts. Exception: when case involves industry in which
horizontal restraints on competition are essential if product is to be
available at all. Cost
cuttin
g by itself is not a valid precompetitive
justification.
Worldwide Basketball and Sports Tours v NCAA
:
quick
look approach is
when no elaborate industry analysis is required to determine whether
effects are anticompetitive. Also quick
look is used when an
observer
with even a rudimentary understanding of economics could conclude that
the arrangements in question would have an anticompetitive effect on
customers and markets. Can only be done where contours of the market
and submarket are sufficiently well
known or defined to permit court to
ascertain without aid of extensive market analysis whether challenged
practice impairs competition. Reasonable interchangeability may be
gauged by 1) product uses (whether substitute products can perform same
function)
and/or 2) consumer response. Within a product market, well
defined submarkets may exist which in themselves constitute product
markets for antitrust purposes. Boundaries of such submarket may be
determined by examining such practical indicia as industry
or public
recognition of submarket as a separate economic entity, product’s peculiar
characteristics and uses, unique production facilities, distinct customers,
distinct prices, sensitivity to price changes, and specialized vendors.
Failure to identify a
relevant market is proper ground for dismissing a
Sherman Act claim.
Ch. 12 Torts and Sports
A.
Liability of one participant to another
generally an athlete can base action for recovery
on three theories: 1)intentional tort, 2)negligence, and 3)recklessnes
s
o
Privilege is used to denote the fact that conduct which, under ordinary
circumstances, would subject actor to liability, under particular circumstances
does not subject him to such liability
o
Privilege may be based upon a)consent of other affected by acto
r’s conduct or b)
fact that its exercise is necessary for protection of some interest of actor or of the
public which is of such importance as to justify harm caused or threatened by its
exercise
o
Intent
denotes that actor desires to cause consequences of h
is act or that he
believes that consequences are substantially certain to result
o
Character of intent necessary:
1.
If an act is done with intention of inflicting upon another an offensive bt not a
harmful bodily contact or of putting another in apprehension o
f either a
harmful or offensive contact, and such act causes bodily contact to the other,
actor is liable for battery even though act was not done with intention of
bringing about bodily harm
2.
If an act is done with intention of affecting a third person in
manner stated in
(1) above but causes a harmful bodily contact to another, actor is liable to
such other as fully as though he intended so to affect him
o
Where an act is one which a reasonable man would recognize as involving a risk
of harm to another, risk
is unreasonable and act is negligent if risk is of such
magnitude as to outweigh what law regards as utility of the act or of the particular
manner in which it is done. When negligent conduct proximately causes harm, a
prima facie case is established.
o
Ma
in defenses to negligence based claims are: contributory negligence and
assumption of risk. Also, most states have comparative negligence schemes
o
Recklessness
conduct that creates a higher degree of risk than simple negligence
o
Vicarious liability
when e
mployee is acting within scope of employment, can sue
employer (also respondeat superior
principle and agent theory lets principal
answer for acts of agent)
o
Negligent supervision
when employers are liable for their own tortious conduct
by acting in such a
way as to create an atmosphere in which players believed that
violence was an acceptable if not desirable mechanism to ensure winning
o
Availability of punitive damages: main purpose is to punish
Bourque v Duplechin
: A participant in a game or sport assumes
all of the
risks incidental to that particular activity which are obvious and
foreseeable. A participant does not assume risk of injury from fellow
players acting in an unexpected or unsportsmanlike way with a reckless
lack of concern for others particip
ating. Assumption of risk is an
affirmative defense which must be proven by a preponderance of the
evidence.
Nabozny v Barnhill
:
when athletes are engaged in an athletic competition,
all teams involved are trained and coached by knowledgeable personnel; a
recognized set of rules governs the conduct of the competition; and a
safety rule is contained therein which is primarily designed to protect
players from serious injury, a player is then charged with a legal duty to
every other player on the field to ref
rain from conduct proscribed by a
safety rule. A player is liable for injury in a tort action is his conduct is
such that it is either deliberate, willful, or with a reckless disregard for the
safety of the other player so as to cause injury to that playe
r, the same
being a question of fact to be decided by a jury
Hackbart v Cincinnati Bengals
:
recklessness exists where a person knows
that the act is harmful but fails to realize that it will produce the extreme
harm which it did produce. Intent to cause h
arm requires substantial
certainty that the action will cause the harm.
Gauvin v Clark
:
showing of willful or reckless disregard of safety is
required for the action to stand.
B.
Spectator as plaintiff
Owner of a venue owes duty of care to those upon his pr
operty.
Three different ways to categorize person on land of another: trespasser, licensee,
invitee.
Trespassers enter without permission and the owner only owes them a duty not to
intentionally harm them. Licensees are on the property only by virtue of
owner’s
consent, and owner owes them a duty to warn of known dangers. Public invitees
are
invited to enter or remain on land for purpose which the land is open to visitors.
Business
invitee is invited for the purpose of business dealings with the owner.
The duty to
invitees is greatest. The owner must keep premises in a safe condition and warn of
dangers.
o
Assumption of risk is important in these cases.
o
Various Rules of Law:
Fans assume the risk of being struck by foul balls (i.e., general risks
involved with watching games) but do not assume risks of unforeseeable
events (such as a racecar leaving the track and entering the stands)
When a ball club provides protective screens in the most dangerous areas,
this can shield club from liability, but i
f ball breaks through the screen
there is no assumption of the risk and the club/owner will be liable.
However, if the ball flies over or around the screen there is generally no
liability on the theory of assumption of risk, contributory negligence, or
la
ck of proximate cause.
In hockey, there is liability for getting hit with a puck. Courts explain that
this is because hockey is not as widely known as baseball and the dangers
are not as obvious yet.
Owners of sports complexes have a duty to supervise the
conduct of
spectators: Obligation of reasonable care extends to everything that
threatens the invitee with an unreasonable risk of harm. Occupier must
not only use care not to injure visitor by negligent acts, and to warn of
latent dangers, but also mus
t take reasonable precautions to protect invitee
from dangers which are foreseeable from arrangement or use. Obligation
also extends to original construction of premises where it results in a
dangerous condition.
Waiver issue: one policy highly favors the
freedom to contract, but the
other expects individuals to be liable for consequences of their negligence
(cases on both sides)
Recently, negligence
based liability (even in absence of dram shop act)
has been imposed on sellers of alcohol when sale results
in harm to
interests of a third person as a result of the intoxication of the buyer.
o
Auto Racing: Because risk in these events is high, standard of care must likewise
be high. One who conducts or sponsors such an event is negligent unless he uses
a high
degree of care to provide adequate safeguards against reasonably
foreseeable dangers to spectators and enforces the observation of such safeguards
and precautions both by participants and spectators.
o
Golf: three situations in which golf suits arise
1
Golfer
who hits ball in the intended direction is held to two duties: make sure
no one is within area toward which he is aiming and to give an audible
warning prior to hitting the ball (warning given after hitting ball is often
insufficient)
2
When golfer’s shot
“hooks” or “slices” in a completely unanticipated direction
and strikes someone on the course (when defendant gives warning as soon as
the shot begins to deviate from intended direction, he is not liable and injured
plaintiff is said to have assumed the ri
sk)
3
Golf ball injures person who is not on course, such as on an adjoining
roadway (defendant owner is exposed to liability)
o
Wrestling: an invitee at a place of amusement ordinarily assumes risk of an
obvious danger or one that is of common knowledge; conv
ersely, such a person
does not assume the risk of a hidden or undisclosed danger, not of common
knowledge, in the absence of warning or personal knowledge.
o
Vicarious liability: in practically all jurisdictions the law is now settled that a
master is liable
for the willful and malicious acts of his servant when done within
the scope of his employment. Also, if defendant had good reason to apprehend
that such a thing (attack, assault, etc.) would probably happen, then it should have
exercised reasonable care
to prevent the occurrence, but it was not required to
anticipate the improbable, nor take measures to prevent a happening which no
reasonable person would have expected.
o
Spectator who is denied admission: Ticket does not create a property right and is
no
t a conveyance of an interest in the race track (or complex).
o
Stampedes/Duty to control crowds: Totality of circumstances test: court considers
all of the circumstances surrounding event, including nature, condition, and
location of the land, as well as pr
ior similar incidents to determine whether a
criminal act was foreseeable.
o
Medical assistance to spectators: Failure to provide adequate emergency medical
assistance to an injured spectator provides a viable cause of action to the injured
spectator, at lea
st to the extent it can be shown that the injuries were aggravated
by lack of such care
o
Contemporary changes in spectator viewing patterns: Courts have recognized that
spectators assume inherent risks of attending a sporting event so long as the
owner of t
he ballpark does not unduly enhance those risks. Also, an increase in
sports complex distractions will likely lead to a greater risk of owner liability.
Also, the chance of being struck by a foul ball was a risk inherent in baseball and
that it would pla
ce undue hardship on stadium owners to ensure the safety of
every spectator.
C.
Medical Malpractice in Athletics: Generally, the reasonableness of the medical care
provided is measured against the minimum common skill of members of good
standing
of the profes
sion. Modern courts have translated the “informed consent” concept into
negligence terminology, thus cases turn on whether reasonable doctors would have
disclosed certain risks.
Rosensweig v. State
: Doctor who examined boxer prior to fatal fight was
not l
iable because he did not violate any rule which required him to
“bench” the boxer after a head injury. Also, claimant must prove that the
blow that inevitably caused the boxer’s death would not have done so
alone. Additionally, boxer is said to have assu
med the risk of injury as he
knew what risks were involved (knocking out opponent being a goal) in
boxing.
Colombo v Sewannaka Central HS
:
Doctor’s denial to deem deaf student
able to play is not arbitrary because: a)there exists the risk of danger of
inju
ry to the ear in which there is only partial hearing and to which further
injury could result in irreversible and permanent damage (total deafness),
b) aside from risk of injury to his partially good ear, there also exists the
possibility of injury to othe
r parts of john’s body by reason of his failure to
perceive the direction of sound and c)there is possibility of risk o injury to
other participants.
Stineman v Fontbonne College
:
In finding negligence based on
inadequacy of medical attention, court used K
ersey elements: 1)defendant
must have been able to appreciate the severity of the plaintiff’s injury
2)determination that one or more of the defendants had the skill to provide
adequate medical treatment 3)whether provided medical attention would
have avo
ided the injury’s ultimate harm
D.
Products Liability for Defective Athletic Equipment
o
Negligence COA’s occur in three forms: 1)pertaining to quality control
(unreasonable failure to inspect for defects or test product is alleged) 2)design of
product is
unreasonably unsafe 3)manner in which product is marketed (likely
allegation is that there is a negligent failure to warn about dangers associated with
use of product) Contributory negligence and assumption of risk are available as
defenses.
o
UCC
warran
ty of merchantability accompanies sale of goods by a merchant.
Assures goods are of fair average quality and fit for ordinary purposes for which
such goods are used. Additionally, warranty of fitness for a particular purpose is
created if buyer relies on
seller’s judgment to furnish goods for a special purpose
even if seller is not a merchant. Warranties may be disclaimed by seller or lost by
buyer who fails to notify seller of breach within a reasonable time. Moreover,
assumption of risk, misuse of pro
duct, and failure to follow directions can defeat a
breach of warranty claim. Finally, UCC does not extend warranty to all those
who might foreseeably be expected to be affected by goods. Rather, defines class
of person to whom warranty extends as “to hi
s buyer, members of buyer’s family,
and guests in buyer’s home.” To show breach of express warranty, plaintiff must
show misrepresentation of material fact regarding nature or quality of product.
Assumption of risk and misuse of product are available def
enses.
o
Strict liability
commercial supplier who sells product in “defective condition
unreasonably dangerous to user or consumer” is subject to liability for harm
caused, even if seller has exercised all possible care and even though user or
consumer has
no contractual relation with seller. Determination of whether
product is defective is made with reference to what a reasonable consumer would
expect. Assumption of risk and misuse are defenses.
McCormick v. Lowe & Campbell Athletic Goods
: Manufacturer of
a
product is under a duty to exercise ordinary care to test the product to
determine whether or not it has a defect which would render it unsafe
when applied to its intended use; that a failure to perform such duty
renders manufacturer liable to a person
injured in consequence of such
failure while using such article in ordinary and usual manner. Plaintiff
assumed ordinary risk involved with pole vaulting but did not assume risk
of defendant’s negligence.
Dudley Sports Co v Schmitt
: a vendor who holds him
self out as
manufacturer of a product and labels the product as such must be held to
the same standard of care as if he were in fact the manufacturer. In cases
dealing with a manufacturer’s liability for injuries to remote users, the
stress has always bee
n upon the duty of guarding against hidden defects
and of giving notice of concealed dangers. The fact that a particular
product meets or exceeds the requirements of its industry is not conclusive
proof that the product is reasonably safe. In fact, stand
ards set by an entire
industry can be found negligently low if they fail to meet the test of
reasonableness.
Law requires supplier of imminently dangerous chattel to
warn ALL who may come in contact with chattel of any concealed danger
regardless of privi
ty of K
Hauter v Zogarts
:
If defendants’ assertion of safety is merely a statement
of opinion they cannot be held liable for its falsity
. Q
uestion is not what
seller intended by statements but what c
onsumer reasonably believed.
R
ule is one of strict liab
ility for physical harm to consumer, resulting from
misrepresentation of character or quality of chattel sold, even though the
misrepresentation is an innocent one, and not made fraudulently or
negligently
.I
nto every mercantile contract of sale the law in
serts a
warranty that the goods sold are merchantable, the assumption being that
the parties themselves, had they thought of it, would specifically have so
agreed
. D
isclaimer/modification of warranties must be strictly construed
against seller, and must b
e a clear agreement between the parties,
otherwise words of disclai
mer give way to warranty words. A
unilateral
nonwarranty cannot be tacked onto a product with a warranty (consumer
must be placed on fair notice of any disclaimer or modification and must
f
reely agree to seller’s terms)
.
Nissen Trampoline Company v Terre Haute First National Bank:
Product,
although virtually faultless in design, material, and workmanship, may
nevertheless be deemed defective so as to impose liability upon
manufacturer for p
hysical harm resulting from its use, where manufacturer
fails to discharge a duty to warn or instruct with respect to potential
dangers in use of product. Generally, duty to warn arises where supplier
knows or should have known of the danger involved in t
he use of its
product, or where it is unreasonably dangerous to place product in hands
of user without a suitable warning (however when danger is known or
should be known to user, duty does not attach). Where warning is given,
seller may reasonably assume
that it will be read and heeded.
Ch. 15 Drug Testing
Board of Education v. Earls
: While school children do not shed their
rights upon entering the school, fourth amendment rights are different in
public schools than elsewhere. The reasonableness inquiry
cannot
disregard the schools’ custodial and tutelary responsibility for children. In
particular, a finding of individualized suspicion may not be necessary
when a school conducts a drug test. Must consider the nature of the
privacy interest compromised.
Students have a limited expectation of
privacy. Securing order in the school environment sometimes requires
that students be subjected to greater controls than those appropriate for
adults. Also must consider character of intrusion imposed by Policy.
Minimally intrusive searches are not a significant intrusion into students’
privacy. Finally, court must consider nature and immediacy of
government’s concerns and efficacy of Policy in meeting them.
Ch. 16 Olympic International Sports Rules and Procedur
es
C.
Adjudication of Olympics
Related Disputes
Reynolds v. International Amateur Athletic Federation
: Personal
jurisdiction arises from certain minimum contacts with the forum such that
maintenance of the suit does not offend traditional notions of fair play
and
substantial justice. Can be either general or specific jurisdiction. Three
part test for determining whether specific jurisdiction may be exercised: 1)
defendant must purposefully avail himself the privilege of acting in the
forum state or causing a
consequence in the forum state, 2) cause of action
must arise from the defendant’s activities there, 3) acts of defendant or
consequences caused by defendant must have a substantial enough
connection with the forum to make exercise of jurisdiction over th
e
defendant reasonable. A contract with an out
of
state party alone is not
sufficient to establish minimum contacts. Instead to determine whether
party purposefully availed itself court must evaluate prior negotiations and
contemplated future consequence
s along with the terms of the K and the
parties’ actual course of dealing. A party waives the right to contest
personal jurisdiction by failing to raise the issue when making a
responsive pleading or a general appearance. However, courts have
generally h
eld that defects in personal jurisdiction are not waived by
default when a party fails to appear or respond.