Sports Law Outline
Fall 2001 – Professor Gibbens
I.
Knight Commission
- purpose was to examine NCAA athletics and make
recommendations
A.
Problems Identified
a. more pressure on athletics than academics
b. arms race – increasing costs of competition among schools
c. commercialization of NCAA athletics
B.
Recommendations
“1 + 3 model”
1  coalition of presidents (task = reduce money in “arms race”)
+
3  a. academic integrity
b. fiscal integrity
c. certification
II.
Amateurism in NCAA athletics
- one who plays sports and does not get paid
A.
Two Types of amateurs
1. pure – little league, jogging
2. spurious – big-time athletics at colleges where athletics get
benefits (scholarship, tickets, other gifts)
- “scholarships”  room, board, books, tuition and fees
- scholarships are for 1 year and must be renewed each year for
up to 5 years
B.
Cases
1.
Taylor v. Wake Forest University
a. if scholarship not renewed NCAA grants appeal hearing
b. if player sues school for breach of K in not renewing
scholarship  school gets Sum. Judgement
2.
Ross v. Creighton University
a. “Failure to educate” is a valid claim for student against
school
b. “Failure to educate” will survive a Sum. Judgement
3.
LHSSA v. St. Augustine High School (5th Circuit)
a. only states can deprive Due Process of individuals
b. school must be state actor before can be  in a DP claim
c. Sup Ct consistently finds state action in private
organizations performing a public function
C.
d. state action determined by weighing many factors
4.
DeFrantz v. US Olympic Committee
a. after Congress vote to boycott 1980 olympics  USOC
voted not to send team
b. USOC decision not to send team to Olympics is NOT
state action
5.
NCAA v. Tarkanian
a. NCAA is not a state actor
b. NCAA cannot be sued for DP violations
6.
Cureton v. NCAA
a. Congress cannot regulate NCAA under antidiscrimination statutes b/c NCAA does not take federal
funds
b. GPA/SAT score minimums for scholarships are OK
i.
eligibility # = SAT/ACT score + GPA (13 core
classes)
7.
NCAA v. Miller
a. state cannot impose Due Process Requirements on NCAA
8.
Indiana High School Ath. Association v. Avant
a. NCAA “transfer rule” found not to violate Due Process
b. Not in student’s best interest to switch schools for athletic
reasons
9.
Conard v. Univ. of Washington
a. NCAA only grants scholarships for 1 year (not 4)
i.
if you understand differently  too bad
b. No Constitutional Right to have scholarship renewed
i.
must show one of 3 factors to show DP violation
a. contract grants a property right
b. mutually explicit understandings
c. substantive procedural restrictions on part of
decision maker
Amateurism in the NCAA Manual
1.
Athlete Employment
a. student athletes are limited in amount they can work
during school year
b. can only get paid for work they actually do
c. cannot be paid more than other employees just because
they are an athlete
2.
Promotional Activities
a. student athletes can only promote charitable and nonprofit agencies
b. student athlete cannot be exploited
i.
must have written permission from athletic director
ii.
iii.
3.
III.
cannot be co-sponsored by commercial agency
name and pic cannot be associated with
commercial agency
iv.
student-athlete cannot miss class
Ethical Conduct
a. NCAA rules bar unethical conduct on part of studentathlete (Rule 10.1)
i.
gambling (Rule 10.2)
ii.
use of banned drugs (Rule 10.3)
iii.
can result in loss of eligibility for extent of career
(Rule 10.4)
Coaches and their Contracts
A.
B.
C.
Coach’s Contracts in the NCAA Manual
1.
Rule 11.1
a. defines who coaches are
i.
graduate assistants for D1 football only
ii.
undergraduate assistant coaches
iii.
volunteer coaches
2.
Coaches Income
a. in contract coach can get salary and benefits
b. coach must file annual application showing what outside
income he made
i.
University President must approve of outside
income
ii.
Helps us see exactly what coaches are making
Cases
1.
Monson v. Oregon
a. coach has a right to a contract and contract must specify a
length of employment
2.
Campanelli v. Bockrath
a. coach cannot have employability diminished by what is
said by university after coach is fired
OU Athletic Coach Contracts (Guest Lecturer Larry Naifeh)
1.
History
a. originally coaches were hired with a hand-shake
agreement
b. coach received a letter of appointment
i.
letter included greetings and a job offer
2.
Current OU contract practices
a. much more specific contract used to hire coaches for OU
i.
3.
4.
IV.
much more specific and usually for multi-year
terms
ii.
had to evolve after coaches started hiring agents
and lawyers to negotiate contracts with school
b. contracts include “appropriation out clause”
i.
lets OU drop a coach and sport if school does not
have enough money
c. Contracts must include creative compensation packages
i.
hard to justify a $2 million salary for coach when
State Governor only makes $200,000
What coach can get compensated for
a. speaking engagements for school
b. radio/TV appearances
c. compensation for outside income a coach may earn
i.
help coach get endorsements from shoe or apparel
co.s
d. deferred compensation
i.
money to be paid to coach at a later date
Terms in the contract
a. “what you must do”
i.
list of “must do” has gotten a lot longer because if
you are going to pay a coach to do something 
they should do it
b. “what you can do”
c. “what you cannot do”
d. “make them stay” or “golden handcuffs”
i.
provides a severe penalty to coach if he breaches
the contract and leaves the school
e. “let’em go” provisions
i.
termination for cause (violation of NCAA Rules)
ii.
usually have to pay coach for remainder of contact
Recruiting of Student Athletes
A.
Who is regulated by the NCAA Rules
1.
Student-athletes
2.
Coaches and assistant coaches
3.
Boosters
a. person having participated in organization promoting
college’s athletics
b. made financial donations to athletics department
c. be assisting or requested to assist to help recruit
d. be assisting or provide benefits to prospective athletes and
their families
B.
C.
D.
E.
F.
e. having been involved in promoting college athletic
program
i.
holding season tickets is not enough
Violation of Rules
1.
results in ineligibility for athlete
2.
eligibility can be restored if approved by
Academics/Eligibility/Compliance Cabinet
3.
if student violates rule himself  permanent ineligibility
Official Visits
1.
only one official visit (all expenses paid by school) allowed
per player
2.
visit cannot last more than 48 hours
3.
limits set on total number of visits a school can offer
Unofficial Visits
1.
player can get 3 tickets to any athletics event
2.
school cannot pay for anything but tickets
3.
unlimited number of unofficial visits a player can make
Contacts and Evaluations
1.
contact – any meeting between player and institutional staff
member
2.
evaluation – any visit to a prospect’s school to observe in
practice or competition
3.
contacts and evaluations can occur only in specified times
4.
NCAA puts out calendars for each sport on when they can
make contacts and evaluations
a. contact period – coach can make contacts
b. evaluation period – can make evaluations, no contacts
c. quiet period – can only talk to recruits on college campus
d. dead period – no contacts or evaluations allowed (very
few dead periods on calendar)
Other NCAA Recruiting Rules
1.
“Dallas Rule” – when team has a home game away from
campus  school can give 3 comps to a recruit
2.
Boosters cannot call a recruit (§ 13.1.2.4(a))
a. can only speak to player if prospect initiates conversation
and call is not about recruiting
b. booster must refer all questions to Athletic Department
3.
Def. of Prospective Student-athlete (§ 13.02.9)
a. student who has started classes for the 9th grade
4.
Phone calls from enrolled students to prospects
a. enrolled students cannot call a prospect at direction of
coach until July 1 of prospect’s junior year
b. exception football  allowed 1 call in May
5.
6.
7.
8.
V.
University responsibility for Booster’s actions (§ 6.4.2)
a. burden is on school to prove school knew nothing about
booster’s actions  nearly impossible to do
b. OU seeks to educate boosters not to help recruit
Restrictions on printed materials sent to recruits (cannot give
recruits anything not listed)
- restrictions placed on things for cost-saving  levels the
playing field for all schools
a. correspondence
b. business cards
c. camp brochures
d. electronic transmissions
e. NCAA educational information
f. Pre-enrollment information
g. Programs  not posters  cannot be mailed
h. Publications (athletics)  media guides
i. Publications (non-athletic)  school stuff avaliable to
anyone
j. Questionairres
k. Schedule cards  one wallet-sized card per sport
l. Student athlete handbook
Publicity (§ 13.11)
a. no media during recruiting contact
b. no comments to media before signing from school
c. prospect can talk to press (if he wants to)
Tryouts (§ 13.12)
a. very limited tryouts
b. school cannot host a camp solely for “tryouts”
c. outside companies can hold camps and schools can go
Extra Benefits (NCAA Rule § 16.01.1)
A.
Definition
1.
benefit given by Athletics Department to student-athletes or
their parents
2.
benefits are not offered to non-athlete students
3.
benefits must also be violation of rules
B.
Violation of Rules
1.
if student-athlete receives extra benefit  school must
declare student-athlete ineligible for competition and tell
NCAA
C.
Remedies
1.
try to restore eligibility (§ 14.12)
a. student-athlete can appeal decision on eligibility
during appeal  boosters can pay legal fees
limited to representation on NCAA violations
ii.
if benefit is less than $100  student-athlete
won’t lose eligibility if he pays the amount back
to a charity
2.
school must forfeit games that ineligible player participated in
a. NCAA and Conference weigh several factors:
i.
amount of participation by player
ii.
contribution of player
iii.
cause of ineligibility
iv.
policies in place at school before incident
v.
policies put in place after incident
Other NCAA Rules
1.
Athletic awards
a. awards cannot exceed $300 in value (including rings)
2.
Academic Support Services
a. academic benefits are not an “extra benefit”
3.
Athletic Dorms
a. all athlete dorms are prohibited
i.
dorm must be at least 51% non-athletes
ii.
helps student-athletes be more like real students
4.
Meal and Transportation expenses
a. student-teaching
b. booster luncheons within 30 mile radius
c. charitable/non-profit organization within 100 mi. radius
d. can get free tix to a pro-sports game if whole team goes
5.
Meals with coaches and boosters
a. student-athlete can accept meals at coach’s or booster’s
home
i.
cannot be at a restaurant
ii.
must only be occasional (not regular occurrence)
Two types of Eligibility
1.
Initial eligibility (must be satisfied for player to enter school)
a. high school GPA in 13 core curriculum
b. SAT/ACT score
c. both factors combined onto a sliding scale
2.
Continued eligibility (must be met so player can keep
playing)
a. appropriate college GPA (usually around 2.0)
b. 24 hours completed in an academic year
c. complete certain % of degree requirements in degree
program
i.
% increases with each school year completed
i.
D.
E.
VI.
Workers Compensation for Student-athletes
A.
Two tests for determination if player is covered
1.
nature of work test – is work related to employers business
2.
right of control test – focus is on employers ability to
manipulate effects of workers
B.
Cases
1.
Coleman v. Western Michigan University
a. student-athletes are not employees of university
b. court must weigh several factors
i.
employers right to control and dictate activities of
worker
ii.
employers right to fire or discipline worker
iii.
payment of “wages”
iv.
whether or not task completed is “integral part” of
employers business
C.
State Statutes
1.
determination of workers comp revolves around individual
state worker’s comp statutes
a. every state has its own worker’s comp statutes
i.
in OK statutes are under Title 5
ii.
under OK Title 5 § 1  defines employee (does
not fit description of student-athlete)
2.
worker’s comp statutes have never been linked to studentathletes
a. no need for worker’s comp as long as athlete is insured
VII.
Title IX and Gender Equity
A.
Definition of Title IX
1.
Title IX requires that there be equal opportunity and equity
for both men and women in NCAA athletics
a. prohibits gender-based discrimination by colleges
receiving federal financial aid
b. prohibits exclusion from participation in (or) denied
benefits of “an athletic program” based on sex
2.
Equity is hard to achieve in sports
a. public wants to see male sports
b. to increase women’s sports participation you must lower
men’s participation
c. there are physical differences between men and women
3.
We don’t let men play women’s sports and women play
men’s sports
a. only one woman has ever played in a NCAA football
game
i.
D1-AA Jackson State
B.
Cases
1.
Cohen v. Brown University
a. Main case dealing with Title IX
b. established three prong test (only need to fulfill 1)
i.
athletic opportunities are offered in substantial
proportion to the make-up of the student body
ii.
Athletics Dep’t. is showing continuing practice of
program expansion for disadvantaged sex
iii.
Interests and abilities are effectively
accommodated by current programs
2.
Neal v. Bd. of Trustees of CA Univeristy
a. Title IX is a remedy for historic discrimination against
women
i.
designed to help bring women’s programs up to
speed
b. schools can cut men’s programs and at the same time
increase women’s scholarships
3.
Hoover v. Meiklejohn
a. High school cannot deny girl an opportunity to play on
boy’s soccer team
b. Fear of her injury is no basis for discrimination
4.
Williams v. School District of Bethlehem
a. Case dismissed until PA court ruled on PA Equal Rights
Amendment
b. If we let men play women’s sports  opportunities for
women decrease
5.
Blair v. Wash. State Univ.
a. female athletes wanted to play football
b. women can try out for the team
c. women cannot be excluded per se
6.
Stanley v. USC
a. women’s b-ball coach demanded equal pay as men’s
coach
i.
USC refused and started looking for new coach
b. when Stanley sued USC – court held for school
i.
men’s coach is paid more because he has more
duties as a revenue producer
c. coaches are paid depending on:
i.
duties
ii.
how many people attend games
C.
iii.
win/loss record
iv.
importance to university
7.
Bowers v. Baylor University
a. Bowers sues Baylor under Title IX for damages b/c she
was fired b/c of her win/loss record
b. Court denied Sum Judgement b/c of a Supreme Court
ruling allowing suits for damages under Title IX
c. Court held that Bowers was unfairly dealt with and has a
cause of action
8.
US v. Virginia
a. party seeking to uphold discrim action must show
“exceedingly persuasive justification”
b. requires a higher standard of scrutiny for discrimination
cases
Equity in Athletics Disclosure Act
1.
Schools must create and distribute annual report showing
proportions of males to females under Title IX
2.
Report is sent to federal government and then made public by
Congress
VIII. NCAA Rule Enforcement (Guest Speaker – Professor Swank)
A.
Preliminary Investigation
1.
NCAA receives information about a possible violation
2.
Enforcement Staff begins preliminary investigation to see if
tip is reliable
B.
If tip is verified and reliable
1.
case is assigned to an enforcement director
2.
letter of “preliminary inquiry” sent to president of school
a. explains investigation and time-frame for investigation
b. institutions have an obligation to participate with NCAA
3.
Letter of Official Inquiry sent to school
a. very similar to an indictment in a crim. proceeding
b. sets out rule that was violated and how it happened
c. school is reminded of duty to cooperate in investigation
C.
the Hearing
1.
hearing done before the Committee on Infractions
a. hearing done in front of 9 people
i.
2 people from public
ii.
1 athletic director
iii.
6 conference commissioners
2.
School gets to participate in hearing
a. usually school president appears before committee
3.
Hearing Process (can last from 1 to 3 days)
D.
E.
F.
IX.
a. opening statements
i.
NCAA
ii.
School
iii.
Any individual involved in case
b. NCAA puts on its case
i.
No cross-examination
ii.
Parties can ask committee to ask witness a question
for them or about evidence
c. school and individual are then allowed to respond
i.
again no cross-examination
d. closing arguments
i.
NCAA
ii.
School
iii.
Individual
Summary Disposition
1.
alternative to a hearing
a. school must admit all violations
b. NCAA certifies complete investigation
c. University suggests penalties
d. If committee agrees it adopts the report
i.
if committee does not adopt penalties – then there
is a hearing on the penalties only
ii.
if committee does not accept report at all – full
hearing process
Penalties
1.
forfeit of games
2.
loss of scholarships for particular sport
3.
loss of bowl privileges or championships
4.
voluntary firing of coach
5.
monetary penalties
Appeal
1.
school can appeal findings of committee
a. separate appellate body for each branch of NCAA
Antitrust Laws and Sports
A.
Sherman Act of 1890
1.
purposes of act
a. promotes competition in open markets
b. extends from Commerce Clause
i.
antitrust laws must apply to interstate commerce
B.
2 sections of Sherman Act
1.
§ 1 – eliminates anti-competitive collusion
2.
C.
§ 2 – preventing monopolistic and oligopolistic market
structures
Cases
1.
NCAA v. Board of Regents of OU
a. major antitrust case
b. US Supreme Court found NCAA in violation of Sherman
Act
c. Restraint must be “unreasonable”
d. Court weighs justifications (procompetitve) vs. negatives
of retsraint (anticompetitive)
i.
used in § 1 analysis under Sherman Act
ii.
balancing test used to determine if restraint is
“reasonable”
e. per se violations – any restraint on availability or quantity
of output
2.
Law v. NCAA
a. NCAA passed restrictions on coach’s salaries as way to
cut costs
b. Court sets out “Rule of Reason” analysis for § 1 analysis
i.
 must show anticompetitive effects
ii.
 must show procompetitive effects
iii.
 then must show that conduct is not reasonably
necessary to achieve goals or that goals can be
achieved in a less restrictive manner
3.
Adidas America, Inc. v. NCAA
a. Adidas sued NCAA b/c of logo restrictions on uniforms
b. Court held that Adidas did not show “irreparable harm”
and thus denied the injunction
4.
Banks v. NCAA
a. player left Notre Dame to enter NFL draft early
i.
after he was not selected – he sued NCAA b/c they
would not let him rejoin Notre Dame team
b. Court held for NCAA
i.
Banks did not show NCAA anticompetitive effects
ii.
Must show an injury to identifiable market – not
just injury to individual
iii.
Court accepts policy reason – if we allow athletes
to return it will open NCAA up to agents and make
colleges a “farm system” for NBA and NFL
5.
Hairston v. Pac-10 Conference
a. Hairston did not show antitrust standing
i.
must suffer antitrust injury
ii.
must show he is proper  to sue
6.
7.
8.
iii.
 must actually suffer the injury himself
St. Louis Conv. and Visitors Comm v. NFL
a. Court upheld NFL Rule 4.3 under Rule of Reason
i.
Rule 4.3 allows owners to vote on team move and
charge a moving fee
b. Court found that  had not shown that 4.3 caused injury
i.
 only had deal with Rams – made no effort to see
if other teams were interested
ii.
when “rule of reason” applied jury (fact finder)
decides if restraint is reasonable
NFL Properties v. Dallas Cowboys
a. suit filed b/c Cowboys were violating trust agreement
i.
Jones was making agreements with other groups
not licensed by NFL Properties
ii.
Jones used stadium as a separate entity to make
deals
iii.
Everything stadium owns is not the same as what
team owns
b. Court held that there was a cause of action under Lanham
Act
i.
cannot deceive people in using logos and slogans to
make people think that your product is affiliated
with another product
ii.
even though deals with Nike and Pepsi were
technically with Texas stadium – it was
concievable to think that Nike and Pepsi were
being sponsored by Dallas Cowboys
Chicago Pro Sports Limit Part v. NBA
a. Issue: whether NBA is single entity and can charge tax on
Bulls games on TV
i.
reason: to let other teams get a fair viewership on
TV
b. Court holds that NBA not a single entity but a collection
of clubs
i.
if NBA not a single entity – harder to find § 2
violation
ii.
Bulls can only win if they show injury to
consumers
c. When dealing with a § 2 case we use the “Market Power”
test
i.
“market power” is the power that the league has to
control the market
if no “market power” – then only left with § 1 “rule
of reason” analysis
Exceptions to the Antitrust Laws
1.
Labor Law cases – exemption created by Congress
2.
Professional Baseball Cases – Sup. Court held that antitrust
laws do not apply to Major League Baseball
a. upheld by 3 US Supreme Court Cases
i.
1922 – Federal Baseball Club v. National League
ii.
1953 – Toolson v. NY Yankees
iii.
1972 – Flood v. Kuhn
b. what is exempted
i.
“business of baseball” – marketing, team
movement, buying and selling clubs
ii.
reserve system – players are owned by team and
can be sold or traded without player consent
c. Curt Flood Act of 1998
i.
removes players from baseball exemption
ii.
only refers to players and player transactions
d. Piazza Case
i.
involved moving a team from San Fran to Tampa
ii.
Judge says that case should apply exemption only
to reserve system
e. MN Twins Case
i.
MN Supreme Court holds that exemption should
apply to moving of teams
ii.
Court chooses not to follow Piazza
3.
Current State of the Law
a. Pro baseball exemption still applies except as Curt Flood
Act
b. But, there are lower court cases (MN Twins) that may be
persuasive to other courts to narrow exemption
4.
Baseball exemption and Minor Leagues
a. minor leagues completely supported by MLB
b. if baseball exemption is removed minor leagues will
suffer
i.
MLB will be forced to spend less on minor leagues
ii.
MLB pays minor leagues player salaries, coach
salaries, and equipment and travel expenses
5.
Baseball Broadcasts
a. not covered by baseball exemption
i.
broadcasting is a separate industry
ii.
separate from “business of baseball”
Notes on Antitrust
ii.
D.
E.
1.
2.
X.
“equal investment defense” -  does not get treble damages if
 also involved in restraining trade
Stoutenborough v. NFL – “Blackout rule” does not violate
Americans with Disabilities Act
a. claim was that hearing impaired not able to view game b/c
they can’t utilize radio
b. Court upheld Rule 12(b)(6) and dismisses case for failure
to state a claim
Labor Relations in Pro Sports (Collective Bargaining Agreements)
A.
B.
C.
D.
National Labor Relations Act (NLRA) – 1947
1.
3 Rights for workers
a. right to organize, to form, join or assist labor
organizations
b. right to bargain collectively through reps of their choosing
c. the right to engage in “concerted activities” for
employees’ mutual aid or protection
d. bargaining limited to wages, hours and working
conditions
National Labor Relations Board (NLRB)
1. administration is carried out by this board with help from fed
courts
2. board requires that all bargaining be done in “good faith”
3. individual player contracts left to clubs – all other issues
negotiated between unions and all clubs as a whole
Differences under NLRA for Sports
1. individual salaries not covered by CBA
2. labor market not open to all people (only select group- players)
Labor Law Exemptions
1. justifications
a. allows unions to strike and negotiate CBA’s
i.
without exemptions – strikes would violate
antitrust laws b/c they stop production of “goodies”
2. Statutory exemption
a. removes certain legitimate union activities favored by federal
policy
i.
secondary picketting removed
ii.
boycotts removed
3. Non-statutory exemption (common law version)
a. excepts certain anticompetitive union-member activities
b. 3 requirements for a CBA to apply
i.
E.
XI.
restraint of trade primarily affects only parties to
CBA
ii.
agreement concerns a mandatory subject of
collective bargaining (free agency and reserve
clause)
iii.
agreement is product of bona-fide arms-length
bargaining
Labor Law Cases
1. Mackey v. NFL
a. Rozelle Rule violates § 1 of Sherman Act
i.
restricted player movements between clubs
b. Non-statutory exemption does not apply b/c Rozelle Rule
only meets requirements i. and ii.
c. Statutory exemption only applies to union activities
2. Silverman v. MLB, PRC
a. 2nd Circuit upholds NLRB injunction
b. NLRB oversees labor laws to make sure they are applied
fairly
c. NLRB makes findings then petitions Dist. Ct. to issue
injunction
3. Brown v. Pro Football, Inc.
a. once impasse occurs owners can implement their last offer
without union consent
i.
impasse – when parties bargain in “good faith” and
cannot reach a deal
ii.
must be reasonably comprehended w/in preimpasse
proposals
iii.
parties must be bargaining in “good faith”
4. Nordstrom v. NLRB
a. player cannot be released from team because of his union
activities
i.
court awards back-pay as a remedy
b. if destructive behavior is not related to union activities –
player can be released
Baseball Blue-Ribbon Report
A.
Findings
1.
committee explored how money has made it hard for teams to
compete with each other
2.
found that varying payrolls are hurting baseball
B.
Recommendations
1.
Recommended both minimum and maximum payrolls
2.
More competitive drafts
3.
XII.
Franchise mobility – move team to a place where they can
thrive
Grievance Arbitration
A.
Background
1.
Arbitration arises from Collective Bargaining Agreement
(CBA)
2.
Arbitration clause is written in every player contract
3.
Each league has a different arbitration procedure
4.
Labor Management Relations Act – governs arbitration in pro
leagues
B.
Cases
1.
Dryer v. Los Angeles Rams
a. Court holds that once issue falls under the arbitration
clause- it needs to be arbitrated
b. Inequality of bargaining power at arbitration meeting is
acceptable
2.
Morris v. New York Football Giants, Inc.
a. Court holds that clause in NFL contracts making
commissioner the tie-breaker in on arbitration board must
be stricken
b. Commissioner is biased because is closely tied to owners
C.
Pro Baseball Salary Arbitration
1.
Final Offer Process
a. player poses one salary and owner poses another
b. arbitrator must choose one salary or the other – no middle
ground
c. policy – forces owners and players to pose more
reasonable salaries that they feel they can justify
2.
Eligibility Process
a. sets limits on which players can arbitrate their salaries
i.
more than 3 years of experience – but less than 6
years  player can arbitrate his salary
ii.
more than 6 years experience  player can qualify
for “free agency” or arbitrate
XIII. Professional Agents
A.
Certification
1.
All professional agents must be certified by league player
associations
2.
League player associations can refuse to certify an agent
3.
Protects best interests of players
B.
Duties of a professional agents
1.
2.
3.
4.
5.
C.
D.
E.
F.
player counseling
marketing of player
dispute resolution
career planning for after sports
hire financial planners and managers
a. lawyer cannot doe financial planning himself – viewed by
bar as funneling money into practice
Agent Regulations
1.
agents regulated by several schemes
a. state law
b. league player associations
c. federal law – Federal Investment Advisors Act of 1940
Federal Statutes on Agents
1. Uniform Agents Act
a. passed to protect against abuse of athletes by agents
b. a model act that attempts to bring uniformity to states with
agent statutes
Oklahoma Statutes for Sports Agents (not enforced)
1.
OK 70 § 821.62
a. agent cannot work in OK without registering with Sec. Of
State
b. non-OK agents must pay annual fee of $1000.00
c. agent must pay surety bond of $100,000 with Sec. Of
State
2.
OK 70 § 821.63
a. Sec. Of State must approve all contract forms
i.
for non-NCAA athletes
b. agent must file schedule of fees to be collected from nonNCAA athletes
3.
OK 70 § 821.64
a. registered agents cannot contact NCAA athlete until after
last NCAA contest
i.
if athlete makes a K (written, oral or to take affect
later) NCAA will strip eligibility
4.
OK 70 § 821.65
a. agent can talk w/ athlete if school hosts on-campus agent
interviews
i.
done for 10 days in final year of eligibility
ii.
NCAA rules authorizes Head Coach to meet with
athletes and agent to discuss best interest of athlete
Cases
1.
Collins v. National Basketball Association
a. Collins certified in 1986 by NBA
G.
i.
sued by Kareem Abdul Jabaar – suit settled in 1989
ii.
NBPA decertified Collins b/c of Jabaar suit
b. Issue: can league not let Collins be an agent b/c of past
bad deals
c. Labor Unions acting in self-interest and not in
combination with non-labor group are statutorily exempt
from Sherman Act
d. Collins loses – league summary judgement upheld
2.
Team America v. Pickens
a. one agent suing another for breach of K
b. punitive damages awarded only if action is very egregious
3.
Speakers of Sport v. Pro Serv
a. Pudge Rodriguez had K with Speakers that was
terminable at will
i.
Rodriguez terminated K with Speakers and signed
K with Pro Serv
b. Speakers sued Pro Serv for stealing away Pudge
i.
court holds that because K was terminable at will –
no breach of K
4.
Hagan v. Kassler Escrow, Inc., 635 P.2d 73 (Wash. 1981).
a. lawyers must be careful not to act in the “practice of law”
in other jurisdictions
i.
performing services in courts
ii.
giving legal advice
iii.
preparation of legal instruments
5.
Detroit Lions, Inc. v. Argovitz (Billy Sims Case)
a. Argovitz owned team and then signed Sims to a contract
with that team
b. Argovitz did not tell Sims of offer from Detroit Lions
c. Rule: if no conflict of interest – agent that acts as directed
by player is not responsible for losses player incurs
i.
rule does not apply here because of Argovitz’s
extreme conflict of interest
6.
Brown v. Woolf
a. constructive fraud – unjust enrichment achieved through
fraud
b. punitive damages can be awarded if  acts in reckless and
oppressive conduct
Contracts between agents and players
1.
3 types of contracts between players and agents
a. contract for negotiation of player-team employment terms
b. financial services contract
H.
c. contract for the marketing of the player for endorsements
and public appearances
2.
All contracts between agents and players must meet Statute of
Frauds
a. all K’s for sale of goods or services over $500
b. must be in writing
c. signed by parties to be bound
Advice for those who want to be agents
1.
Be prepared
a. have data on your player’s stats, and stats of others at his
position
2.
Be interested in player needs and player interests
3.
Must fully understand your leagues Collective Bargaining
Agreement
4.
Tradition of your sport and its players
XIV. Negotiation of Sports Contracts
A.
Categories of negotiations
1.
two parties – one issue
2.
two parties – multi-issue
3.
multi-parties – multi-issue
B.
“Zone of Agreement”
1.
each party enters the negotiation with either an absolute high
or absolute low figure
2.
“zone of agreement” is area between two figures
3.
final offer must be within the “zone of agreement”
C.
Best Alternative To Negotiated Agreement (BATNA)
1.
each party’s fall back position
XV.
Torts and Sports
A.
Background on this area
1.
sports causes injuries – leads to tort claims
a. negligence
b. assault
c. battery
d. recklessness
2.
Assumption of Risk can bar recovery for negligence actions
3.
Privileges are used to defeat claims of battery and assault 
consent
4.
Only intent you must show to win is – “intent to contact” not
“intent to hurt”
B.
Cases
1.
Bourque v. Duplechin
2.
a. when one player is acting in an unexpected or
unsportsmanlike way with reckless lack of concern for
others participating – no Assumption of Risk
Nabozny v. Barnhill
a. players are charged with legal duty to every other player
on the field to refrain from conduct proscribed by a safety
rule
XVI. Claims of Defamation and Invasion of Privacy
A.
Defamation
1.
definition
a. intentional communication to a 3rd party a false statement
about the plaintiff which tends to harm the reputation of
the  in the eyes of the community
B.
Cases
1.
New York Times Co. v. Sullivan
a.  must show actual malice
i.
knowledge that statement was false OR reckless
disregard as to whether false or not
b. showing of simple “meanness” is not enough -  must
have had malice
2.
Gertz v. Robert Welch, Inc.
a. ’s can be immune for slander of public figures under
Amend. I
b. 2 types of public figures
i.
achieve such pervasive notoriety or fame they
become public figures for all pups and all contexts
ii.
person voluntarily enters public controversy and
becomes a public figure for limited range of issues
3.
Dun and Bradstreet v. Greenmoss Builders, Inc. (plurality)
a. non-media entities do not get same protection from
Amend I that media entities get
4.
Milkovich v. Lorain Journal, Co.
a. when statement is one of opinion  New York Times rule
does not apply
b.  not required to show “actual malice”
5.
Time, Inc. v. Johnston
a. passage of time will not insulate one from New York
Times Rule
b. publishers can still rely on the defense – even after the
passage of time
6.
Spahn v. Julian Messner, Inc.
7.
C.
a. publisher cannot purposely create a false past for someone
and then publish it
b. New York Times rule does not apply to created false pasts
Abdul-Jabaar v. GM Corp
a. if one changes his name – he does not abandon the old
name
b. Lanham Act covered the use of Jabaar’s old name (Lew
Alcindor) as well as his new name
Oklahoma Statutes
1.
Title 21 § 839.1 – 839.3
a. any use of a person’s name or picture for purpose of
advertising without consent is guilty of a misdemeanor
i.
subject to damages
ii.
can get punitive damages if done “knowingly”
b. if person is dead – heirs can be ’s in the action and seek
damages
c. EXCEPTION – photographers can show specimens of
their work
i.
if person complains – photographer must remove
picture from portfolio
XVII. Health and Disability Issues in Sports
A.
2 Federal Statutes
1.
Americans with Disabilities Act of 1990
2.
Rehabilitation Act of 1973
B.
Cases
1.
Knapp v. Northwestern University
a. school won’t let Knapp play basketball because he has
heart condition
b. Under Rehab Act of 1973 -  must show
i.
he is disabled [hampered from a “major-life
activity” ( caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning and working]
ii.
he is otherwise qualified for position
iii.
he has been excluded from activity solely b/c of
disability
iv.
program exists as part of a program receiving
federal funds
2.
PGA Tour, Inc. v. Martin
a. Matin sued PGA Tour under ADA because Tour won’t let
him ride a golf cart during tournaments
b. Sup Court holds that walking not fundamental to game of
golf
c. PGA Falls under Title III of ADA b/c it is played on open
courses and open to be viewed by the public
XVIII.
A.
B.
Drug Testing
Applicable Law
1.
Amendments IV and XIV
a. courts must decide whether drug tests are “reasonable”
searches or seizures under Amendment IV
Cases
1.
Vernonia School District v. Acton
a. court will always look to facts to determine of search is
reasonable
b. by voluntarily choosing to play sports – students subject
themselves to level of regulation higher than that applied
to other students
c. balancing test  extent of intrusion vs. need for intrusion