Sports Law—
I.
AT LAW—BASEBALL EXEMPTION:
a.
II.
Sarah Lewis
RESERVE SYSTEM AND RESTRAINT OF TRADE:
i. American League Baseball Club of Chicago v. Chase (1914)—baseball is not interstate
commerce, and therefore not subject to SA.
ii. Federal Baseball v. Nat'l League—although MLB players travel between states, they are not
the game, which is local, and therefore not subject to SA.
iii. Gardella Case (2nd Cir.)—baseball is interstate and intrastate commerce, so error for d.ct.
to dismiss AT case.
iv. Toolson (SC 1953)—business of baseball is not interstate commerce [creates baseball's
exemption from AT laws].
v. Flood v. Kuhn (SC 1972)—reserve system of baseball is exempt from federal AT laws.
vi. After Flood, the chipping away begins…
1. Piazza and Tirendi v. Major League Baseball (U.S. District Court, Eastern PA
1993)—baseball exemption only applies to reserve clause; so AT claim can exist
with sale of teams.
2. Butterworth v. National League—lining up with Piazza, AT application to would-be
team movement.
3. Flip side—
a. Morsani v. Major League Baseball (Fla.App. 1995)—followed Piazza and
ruled that baseball could not claim an exemption from action by FL group
who claimed that Major League Baseball had blocked their earlier efforts to
buy the Minnesota Twins in 984 and bring that team to St. Petersburg.
Held—baseball could not claim an exemption from this action under either
federal or state AT law.
b. McCoy v. Major League Baseball (W.D. Wash. 1995)—explicitly disagreed
with Piazza and used the exemption of "the business of baseball" as the
grounds for rejecting a class action AT suit filed against baseball owners on
behalf of Mariners' fans who were left with no games to watch when the
players went on strike.
4. Fall 1998—US C is slicing away judicially created AT exemption with the Kurt
Flood Act (took 3 C sessions to pass)—Bill makes clear that the AT exemption of
Flood is revoked only for L relations, not for relocation (does not affect Piazzo), or
major and minor league distinction.
a. Does not pertain to relocation, broadcasting, umpires, minor and major
distinction.
b. Puts MLB players in the same status as athletes in other sports, they have
AT laws as other players do.
5. Minnesota Twins Partnership v. State of Minnesota (Minn. 1999)—rejected Piazza
limitation of baseball's historic AT exemption to the player reserve system. Case
evolved from effort by then-owner to sell the team to NC group unless Minnesota
taxpayers built them a luxurious new baseball stadium. Legislature rejected the
option and threatened to file an AT suit against Twins' owners and MLB league
partners. Refused to allow civil investigative demand to be enforced, because
included that professional baseball is exempt from federal AT laws. Concluding
that sale and relocation of a baseball franchise, like reserve clause in Flood, is an
integral part of the business of professional baseball and falls within the exemption.
GENERAL AT:
a.
AT BACKGROUND:
i. Today = all other sports, other than baseball, falls under AT laws for all reasons; and
Baseball falls under AT laws with regard to player L issues.
ii. We have a draft, standard player K, waivers … because CB can trump AT law.
iii. Rule of Reason = an agreement is unlawful if the anticompetitive injury it causes outweighs
the procompetitive benefits it generates (Nat'l Society of Prof. Engineers).
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1.
b.
c.
d.
III.
= R of R mandated inquiry is whether the challenged agreement is one that promotes
competition or one that suppresses competition. An agreement is unlawful if the
anticompetitive injury it causes outweighs the pro-competitive benefits it generates.
The assumption that competition is the best way to allocate resources in the free
market, recognizes that all elements of a bargain—quality, service, safety and
durability—and not just immediate cost, are favorably affected by the free
opportunity to select among alternative offers.
2. Inherent in R of R standard is that consumers should benefit.
AT AND THE PLAYERS MARKET:
i. Smith v. Pro Football, Inc. (DC Cir. 1978)—draft is subject to R of R because of
procompetitive potential; draft as in 1968 was an unR restraint of trade.
1. Seems to be group boycott to have a draft. Is it per se illegal? Certain group
boycotts are but this one is not because of the interdependency of the teams in the
league, not so vial to be without any redeeming value.
ii. When no U, issues may be unR under R of R analysis. When the restrictions are the product
of arm-length, good faith bargaining they fall into the L exemption and they are not
scrutinized under AT laws.
SALARY RESTRAINTS:
i. Brown v. Pro Football, Inc. (Washington Redskins) (DC d. ct. 1992)—fixed salary of NFL
is unR under R of R.
VETERAN FREE AGENCY:
i. Mackey v. NFL (Part I) (8th Cir. 1976)—Rozelle Rule is an unR restraint of trade under R
of R analysis.
L EXEMPTION FROM AT:
a.
1ST PHASE—THE MACKEY CASE:
i. Mackey v. NFL (Part II) (8th Cir. 1976)—LL trumps AT law when (1) affects only the
parties to the agreement; (2) involves a mandatory subject of CB; and (3) is the product of g.f.
CB.
B. 2ND PHASE—WHEN THERE IS CBA:
i. McCourt v. CA Sports (6h Cir. 1979)—applies LL because BL 9A (1) involves parities
involved in bargaining; (2) a mandatory subject of CB; and (3) g.f. bargaining (not budging
counts, because is give and take with CB) [hockey].
ii. Zimmerman v. NFL (D.D.C. 1986)—non-statutory L exemption applied to supplemental
draft (USFL players wanting to join NFL), under Mackey.
iii. Leon Wood (Salary Cap Case)—upholds CB agreement; L applies to salary cap (in CB),
not AT because in CBA [MBA].
C. 3RD PHASE—AFTER AN AGREEMENT EXPIRES:
i. Bridgeman—after CBA expires, AT does not apply until Ees made it "unequivocally clear"
that they do not consent to the practice—because then Er's R belief cannot be that it was a
product of g.f. bargaining.
ii. Powell v. NFL—after CBA expires, AT law applies after the parties reach impasse.
iii. Powell II (8th Cir.)—L exemption applies (and AT law does not) as long as there is a CB
relationship.
iv. McNeil—AT applies because of U decertification; and Plan B is unR under R of R analysis.
v. Williams II—AT does not prohibit multi-Er bargaining; nor from implementing it in absence
of CBA; TEST = CBA relationship test.
vi. Brown v. Pro Football, Inc (1996)—need to be sufficiently far from bargaining process, CB
RELATIONSHIP = test for when AT law applies.
1. pro-management test.
vii. Mere U existence insulates management from AT.
viii. Fraiser—involves § 1 and § 2 suit. District Court throws out § 1 claim because cannot
combine and conspire with yourself—MLS is a single entity.
IV.
L LAW AND CB IN PROFESSIONAL SPORTS:
a.
FREE AGENCY VIA L ARBITRATION:
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b.
c.
d.
e.
f.
g.
h.
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i. Nat'l & Am. League Professional Baseball Clubs v. MLBPA (L Arbitration 1976)—
option year is not perpetual (not expressed with clarity that it is and court will not imply
perpetuality).
ii. Steelworkers' Trilogy = said that disputes in U industries with arbitration procedures are
arbtiratble unless it can be said with express certainty that a dispute is not arbirtrable.
iii. Kansas City Royals v. MLBPA = appeal for this case. Tells us that there is a presumption of
arbitratbility, and furthermore under Steelworkers, there is a presumption of correctness of
arbitrator's decision—as long as it derives its essence from a CB agreement it will not be
overturned.
iv. NFLPA v. NFL Management Council (Arbitration 1980)—holds players did not bargain for
unfettered free agency in their CBA (football).
APPLICATION OF THE NLRA TO SPORTS:
i. Am. League of Professional Baseball Clubs & Ass'n of Nat'l Baseball League Umpires
(NLRB 1969)—baseball is interstate commerce; umpires = appropriate CB unit.
U SUPPORT AND ER RETALIATION:
i. Seattle Seahawks v. NFLPA & McCullum (NLRB 1989)—to determine if Er/league
commits ULP in firing Ee/Player, (1) Ee must prove U activity is a "motivating factor" in
getting fired; (2) Er can defined by showing Ee would have been fired "but for" U activities.
CERTIFICATION OF THE PLAYERS' BARGAINING AGENT:
i. North Am. Soccer League (NASL) v. NLRB (5th Cir. 1980)—Bd. required to choose an
appropriate bargaining unit; upholds NLRB league wide soccer U unit as appropriate and R,
not arbitrary/capricious.
U's EXCLUSIVE BARGAINING AUTHORITY:
i. After NLRB certifies U as the majority choice of the Ees, the U becomes the "exclusive
representative of all the Ees in the unit for purpose of CB" (§ 9(a)). J.I. Case = CB
agreements take precedence over individually negotiated Ks; the very purpose of CB
agreement is to supercede individual K with terms that increase CB power of the U.
ii. Morio v. North American Soccer League (District Court 1980)—individual Ks between
League and Players after U certification are in violation of League's duty to bargain.
DUTY TO BARGAIN IN GOOD FAITH:
i. Once Ee bargaining agent selected, both Er and U have a statutory duty to bargain collectively
with each other under § 8(d)—which is "to meet at R times and confer in good faith with
respect to wages, hours, and other terms of employment, … but such obligation does not
compel either party to agree to a proposal or require the making of a concession."
ii. Duty to bargain = procedure, not substantive—as long as party is not just going through
motions with no intent to settle, parties can engage in hard bargaining.
iii. Silverman v. Major League Baseball Player Relations Comm. (District Court 1981)—
Public Comments made by owners about financial status (not made during actual bargaining)
are not statements of policy by Player Relations Committee.
iv. NFLPA won a ULP for failure to produce information when NFL Management Council
refused to produce its TV and radio Ks, depriving U of information needed to represent the
players whose working conditions may be affected by league or club obligations contained in
the Ks—because the information was relevant to a bargaining issue.
COLLUSION IN BASEBALL:
i. Collusion cases.
ii. Silverman v. MLB Player Relations Comm. (District Court 1995)—ULP when MLB
Player Relations Committee unilaterally changed to free agency and salary arbitration,
because are mandatory subjects of CB.
ECONOMIC CONFLICT IN SPORTS L RELATIONS:
i. LL—Er has right to hire replacement workers during Ee strike, and even to give these
replacements priority over the strikers in jobs available when the strike ends. Mackay Radio.
1. Er can hire temporary replacements even when Er initiated the work stoppage
through a lockout. Harter Equipment.
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ii. NFL Management Council and NFLPA (NLRB 1992)—Wednesday deadline rule
discriminates against striking players because replacements allowed to play if showed up
later in the week and no legitimate justification for rule.
ADMINISTRATION OF THE L AGREEMENT:
i. Steelworkers Trilogy—lower courts must defer to the parties' choice of arbitration—the
court should presume arbitrability, unless the K language makes it clear that no such claim of
this type was meant to be arbitrated. AND courts may issue injunctions to preserve the status
quo pending arbitration's outcome. Once arbitrator renders a decision, the court must enforce
the decision as long as the award appears to draw its essence from the CB agreement.
ii. Kansas City Royals v. MLBPA (8th Cir. 1976)—arbitrator award for MessersmithMcNally upheld because drew its essence from CBA (no express provision that option year
perpetual and players believed otherwise).
U SECURITY IN SPORTS:
SALARY CAPS AND TAXES:
FRANCHISE, LEAGUE, AND COMMUNITY:
a.
b.
c.
NATURE OF THE LEAGUE: A PRELIMINARY LOOK:
i. is it a single-entity, (San Fran. Seals, Levin, or MLS) or is it a collection of competitors (LA
Memorial Coliseum) or is it a hybrid (North American Soccer League, Chicago Bulls)—
which is frequently an outcome determinative answer.
ii. § 1 of SA = common to K, combination, or conspiracy is that it takes two to tango—cannot
K, combine, or conspire with oneself.
iii. § 2 of SA = every person who shall monopolize, attempt to monopolize, or shall combine or
conspire to monopolize, may be subject to legal liability with treble damages.
1. Does not necessarily take two to tango with § 2—can have § 2 violation with one or
two or more entities.
FRANCHISE OWNERSHIP RULES:
i. San Fran Seals v. NFL (1974)—no § 1 violation for denying Seals franchise movement
because NHL and Seals are a single-entity cooperating to produce NHL product.
ii. NASL v. NFL (2d Cir. 1982)—cross-ownership ban of NFL unR under R of R analysis.
iii. Sullivan v. NFL (1st Cir. 1994)—upholds finding of unR restraint of trade for rule against
public ownership because of jury deference.
iv. LOOK CLOSELY AT SULLIVAN V. NFL, PARTICULARLY RAMIFICATIONS OF
MID SOUTH GRIZZLIES, AND COPPERWELD, AND HOW IT TIES IN LEVIN—IN A
POST-COPPERWELD WORLD IT SHOWS NFL AS CLOSER TO SINGLE ENTITY.
v. Fraser v. MLS (D.C. Mass. 2000)—MLS is a single-entity; it can not violate § 1 by acting
unilaterally with itself.
ADMISSION AND RELOCATION OF SPORTS FRANCHISES:
i. L.A. Memorial Coliseum Comm'n. v. NFL (Raiders I) (9th Cir. 1984)—(1) NFL not a
single entity; (2) enough evidence that Rule 4.3 unR'ly restrains competition.
1. Competitive harms of Rule 4.3 are plain = because …
ii. Copperweld (SC)—parent corporation and its wholly-owned subsidiaries cannot violate § 1.
iii. Raiders II—applied offset rule to damages finding in Raiders I.
iv. NBA v. San Diego Clippers Basketball Club (9th Cir. 1987)—[filed after Raiders I, but
before Raiders II; Appeal after both] Raiders did not hold that as a matter of law franchise
regulations are illegal; NBA has legal opportunity to show R'ness of its rules under R of R.
v. League Expansion—Levin v. NBA (S.D.N.Y. 1974)— summarily dismissed claim on
ground that case did not present AT concerns, as reason for P's rejection was not an
anticompetitive reason; P wanted to join with those unwilling to accept him, not to compete
against them; and no anticompetitive effect nor an effect on public interest when P excluded
(Celtics continued to operate as club and are champs this year). Well established that it is
competition, not individual competitors, that are protected by the AT laws.
vi. Decisions have said if want to use AT laws, start your own league.
vii. Mid-South Grizzlies v. NFL (3d Cir. 1983)—no § 1 claim for NFL not admitting Grizzlies
as a new team (exclusion procompetitive).
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Sports Law—
VI.
LEAGUE-WIDE TV Ks:
a.
b.
c.
d.
e.
f.
VII.
Sarah Lewis
Sports Broadcasting Act (SBA) of 1961 = AT exemption in sports by federal G—to permit pooling for
sponsored televising for professional football, basketball, and hockey. (had to get there with…United
States v. NFL).
United States v. NFL (E.D.P.A. 1953)—R restraint to prevent TV outside games at home when
playing at home; unR restraint to present TV outside games when home team playing away game.
i. Mini-cartels college sports cartels are not protected by SBA because College Football is not
professional.
Chicago Professional Sports Ltd. & WGN v. NBA (7th Cir. 1992)—20-game rule is unR under
"quick look" because no procompetitive justification and no free riding (because NBA could charge
Chicago a fee for each extra game)
Chicago Professional Sports & WGN v. NBA (7th Cir. 1996)—NBA is sufficiently integrated that
its superstation rules cannot be condemned without full R of R analysis—affirms d.ct. quick look
(league had not yet made Copperweld argument).
1. NBA has characterizations of both a single firm and a joint venture (NBA has no existence
independent of sports; NBA also "makes teams"; but clubs, unlike GM plants, have the right
to secede and rearrange into multiple leagues; teams are distinct because human capital of
players I not readily transferable to other sports)—since there is no clear principle of whether
NBA is a single entity when selling broadcast rights to a network, remands for consideration.
2. NBA is sufficiently integrated that its superstation rules require full R of R analysis—which
requires proof of market power.
3. Market power is relevant only if NBA is treated as a single firm under Copperweld—but
difficulty of issue, court remands for straight R of R with inquiry into market power, and if
market power, evaluate competitive effects.
Note on Merchandising Rights:
Note on Revenue Sharing:
MONOPOLY IN PROFESSIONAL SPORTS:
a.
b.
c.
MONOPOLY POWER AND THE RELEVANT MARKET:
i. § 2 SA = prohibits firms from "monopolizing [or attempting to monopolize] commerce" and §
7 CA = forbids mergers that may tend substantially to "lessen competition or tend to create a
monopoly."
ii. Monopoly Requirements = (1) possession of monopoly power and (2) use of unacceptable
means to acquire, entrench, or maintain that power.
iii. AFL v. NFL (4th Cir. 1963)—no violation of § 2 because NFL did not have power to
monopolize (had 11/31 desirable cities in market—31 large metro areas in U.S.; national
market = players and coaches).
STADIUMS:
i. Whether once an established team has secured a stadium through either full ownership or an
exclusive long-term lease, a newcomer team can demand access to this "essential facility".
ii. Hecht v. Pro-Football (DC Cir. 1977)—(1) relevant stadium market for starting team in DC
is metro DC; (2) trial court erred in not giving "essential facility" claim—remands [Redskin
defense would have been = RFK not an "essential facility" because there are other stadiums
surrounding DC (U MD)].
iii. Weinberg v. Chicago Blackhawk Hockey Team (Ill. App. Ct. 1995)—enough evidence for
monopoly leverage by Blackhawks in denial of press access and for essential facility for press
access to W's unofficial program.
TV Ks:
i. USFL v. NFL (2d Cir. 1988)—NFL guilty of monopoly in football (national market = now in
31/31 metro areas) with $1 damages trebled; but no monopoly in TV sub-market.
VIII. COMMISSIONERS AND OTHER GOVERNING AUTHORITIES:
a.
b.
EXAM = POWER OF COMMISSIONERS MAY INVOLVE AT, ASSOCIATION LAW…SO
ALWAYS TAKE MULTIPLE ANGELS ON A Q.
Pete Rose v. Bart Giamatti:
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c.
d.
Sarah Lewis
LEGAL SCOPE OF THE COMMISSIONER'S AUTHORITY:
i. Strong power—
1. Milwaukee Am. Ass'n. v. Landis (N.D.I.L. 1931)—commissioner has wide
discretion in determining whether something is detrimental to the "interests of
baseball."
2. As time progresses, have CB with U—U takes a big slice of the pie.
3. Charles O. Finley v. Bowie Kuhn (7th Cir. 1978)—Commissioner acted in g.f.,
after investigation, when he determined it was in "best interest" of BB to void sale of
Rudi-Fingers-Blue.
ii. Strong power—
1. Art. I, § 2 of MLA—Commissioner authority "to investigate … any act, transaction
or practice … not in the best interest of the national game of Baseball … [and] to
determine … what preventive, remedial or punitive action is appropriate … and to
take such action….
2. Art. VIII of MLA—empowers Commissioner to decide "all disputes and
controversies related in any way to professional baseball between clubs … other than
those whose resolution is expressly provided for by another means in this Agreement
… in the constitution of either ML or the Basic Agreement between the ML and the
MLBPA."
3. MLB Commissioner Authority—expanded to include financial as well as moral
issues.
4. Atlanta National League Baseball Club & Ted Turner v. Bowie Kugh (N.D.Ga.
1977)—Commissioner exceeds authority when penalty not specifically mentioned in
the agreement.
5. CUBS v. Vincent (N.D. IIl. 1992)—Commissioner unilateral realignment exceeds
Commissioner powers because NL constitution specifically does not allow
realignment without Club's consent.
iii. 1994 changes to MLA—
1. Art. 1, § 5—The powers of the Commissioner to act in the best interests of Baseball
shall be inapplicable to any matter relating to subject of CB between the Clubs and
the MLBPA.
2. Art. 1, § 4—Commissioner shall take no action in the best interests of Baseball that
(i) requires the Clubs to take, or to refrain from taking join League action on any of
the matters requiring a vote of the Clubs at a joint Major League meeting, or (ii)
requires the member Clubs of either League to take, or to refrain from taking,
League action on any matter to be voted upon by Member Clubs of the League
pursuant to their League Constitution; provided, however, that nothing in this § 4
shall limit the Commissioner's authority to act on any matter that involves the
integrity of, or public confidence in, the national game of Baseball.
3. Art. VII, § 1—empowers the Commissioner to arbitrate all disputes between clubs
or club personnel; had added to it—the procedure set forth in this section is
separate from and shall not alter or affect either the procedure set forth in Art. V
governing the role of the Commissioner at Joint Meetings of the two ML or the
Commissioner's power to act in the best interests of Baseball under Art. I.
4. Baseball—significantly increase the Commissioner's disciplinary authority, restore
his ability to act in the "best interest of the game" and to take such action as he
deems appropriate to ensure LT competitive balance. Has power to redirect revenue
from central fund, and to require high revenue Clubs to share revenues with low
revenue funds, but any attempts to change the system will require the approval of the
Player's Association.
5. "Best Interest of Game' = allows Commissioner to fine teams up to $2 million; and
can label "not in best interest of BB" or take "such other action as he deems
appropriate".
CHALLENGES TO THE BEST INTEREST OF THE SPORT:
i. GAMBLING:
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Sarah Lewis
1.
Molinas v. NBA (S.D.N.Y. 1961)—no AT violation to refuse to readmit M to NBA
because R (R to conclude gambling conduct could not be tolerated and must be
eliminated).
ii. DRUG USE:
1. MLBPA and Commissioner of MLB (Steven Howe) (Arbitration, 1992)—
lifetime ban of player (after 7th drug violation) not in interest of deterrence/fairness
b/c new evidence of ADHD, which was not treated (not known) before.
IX.
AMATEURISM:
a.
b.
X.
DP:
i. Amateur = one that plays the sport for the love of the game.
ii. Amateur Athletics is a dual-faceted animal: there is an amateur aspect, which is not subject to
AT, but is subject to other laws; and a business component, which is subject to AT.
iii. NCAA = voluntary association, with around 900 members; a self-regulatory agency that
establishes rules and procedures for amateur athletics in America.
iv. In analyzing a question on this topic, consider: (1) the athlete’s rights (PDP, contract, etc.); (2)
the possible causes of action; (3) the appropriate areas of law; and (4) whether “state action”
is involved.
v. NCAA v. Tarkania (1988)—NCAA's actions in events leading to public U Ee's suspension is
not state action, therefore, no DP requirements by NCAA.
vi. NCAA v. Miller (9th Cir. 1993)—invalidates State PDP statute as per se violation of CC, as
applied to NCAA.
OTHER LAW:
i. NCAA v. Hoarung—H loses tort claim because failed to show "improper" interference with
his K claim; good faith with K law, and NCAA must adhere to its own rules.
ii. California State-Hayward v. NCAA—association law, NCAA must adhere to own bylaws or
constitution, if does not court can intervene.
iii. Hall v. NCAA—plaintiff's right in going to university is a property right requiring DP
(ECONOMIC REALITY TEST).
iv. Gulf South Conference v. Boyd—tort and K claim, college athlete has property right in
scholarship (because present economic value); GSC misinterpreted application of ineligibility
rule to Boyd (Hayward).
v. Ross v. Creighton University—educational malpractice (tort and K law), no tort of education
malpractice, but remands for reconsideration of K claim (relationship between student and
school is a K'ual one).
vi. Fortay—oral promise to be starting QB; case settled.
vii. Jackson v. Drake University—N educational malpractice, breach of K, N misrepresentation
in recruiting and fraud—no educational malpractice in Iowa; K claim fails because not a
written K; N misrepresentation in recruiting and general fraud went to trial.
AMATEURISM AND AT:
a.
b.
c.
d.
With AT—NCAA can be viewed as a two-headed monster—(1) benign administrative rule making,
concerned with eligibility and the playing of games and rules; (2) big fire breathing money making
business-related AT head (e.g., coaching salary caps and CFA TV contracts).
NCAA v. CFA—NCAA TV agreement restraint violates R of R analysis; breaking up cartel helps
consumers.
U.S. v. Brown University—Ivy Overlap Group agreement comparing individual financial aid packages
declared unR under R of R.
Antitrust Scrutiny of NCAA Rules—Coaching Market:
i. Hennessey v. NCAA—coach reduced to PT status because of NCAA regulations; sued,
applied R of R—but no case because H did not show R of R burden.
ii. Justice v. NCAA (DAZ, 1983)—(pre-CFA) Justice sued over certain sanctions imposed on
the University of Arizona for recruiting violations - summary judgment was granted for the
NCAA. Issue is this business head or regulatory head.
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1.
e.
f.
Held—Restriction limiting schools ability to play in post-season tournament,
emanates from NCAA's concern for amateurism, and is not in this case, part of the
NCAA rulemaking that has a discernable economic purpose (ala TV deal).
iii. Law v. NCAA—pertained to the restricted earnings of basketball cases, companion case of
Hall applies to all other restricted earning cases, and a 3rd applies to restricted earnings of
baseball players. NCAA passed a restricted earnings rule recommended by the Cost
Reduction Committee
1. Effect = stabilize and restrict competition of the coaches, and finds that restricted
earnings rule violates the SA.
2. NCAA offered no evidence that the restricted earning rule furthers competitive
balance between the schools nor that it achieves overall reduction in costs. The 1st
coach can still make a lot of money, while coaches under them who are assistants are
the only ones effected  no evidence that overall effect restricts it.
Athlete Market:
i. McCormack v. NCAA (CTA-5, 1988)—M (SMU alumnus) sues (on behalf of alumni,
cheerleaders and athletes) over the NCAA's imposition of the "death penalty" on the SMU
football program.
1. Held—Assuming, arguendo, that he has standing, the court wants to say something –
NCAA v. CFA says that AT applies to some aspects of NCAA conduct (business
aspects). Here, NCAA argues here that despite the CFA, AT does not apply here
because eligibility rules have non-commercial objectives (benign head)- assuming.
Arguendo, that the eligibility rules ARE subject to ROR analysis, they are reasonable
and do not violate AT. Holds that the eligibility rules are Reasonable.
2. Court did not say that the AT laws do not apply here.
ii. Braxston Banks v. NCAA (CTA-7, 1992)—Banks was a running back at Notre Dame who
tried to go pro. He retained an agent, but a knee injury prevented him from performing well
at the scouting combine, and he was neither drafted nor signed as a free agent. He tried to
return to ND. Under NCAA rules, Banks is ineligible because he retained an agent. So
Banks sues for an AT violation. D.ct held—His case was dismissed under Rule 12(b)(6),
because he failed to allege an anticompetitive effect on an identifiable market.
1. Holding (7th Cir.)—Braxton's eligibility falls under the benign rulemaking
fostering competition side and is not properly scrutinized under the AT laws. The
no-draft rules are just another means of regulating the game.
Gender Equity and Gender Discrimination Law:
i. TITLE IX—all reasonable TITLE IX provisions applicable to intercollegiate sports;
amounts spent on athletic scholarships are required to be based on a "substantially
proportional basis to the number of male and female participants in the institution’s athletic
programs" (disparity is acceptable as long as it is legitimate and based on non-discriminatory
factors).
ii. 1984—Grove City College v. Bell—TITLE IX governs only those specific college programs
that receive Federal assistance.
iii. 1987—Civil Rights Restoration Act of 1987 (20 U.S.C. § 1681)—explicitly extends TITLE
IX to ALL programs at schools that receive Federal assistance, including intercollegiate
sports—this has led to an explosion of litigation.
iv. Blair v. Washington State University—Trial court abused its discretion by excluding the
football team. Such an exclusion perpetuates gender inequality.
v. Haffer v. Temple University (EDPA, 1987)—Held—Regardless of revenue production, to
determine discrimination, compare the student sex ratio to the athlete sex ratio. Women's
teams must be funded proportionately, regardless of their money making potential
(profitability may be used as one criterion, but it CANNOT be dispositive).
vi. Cohen v. Brown University—Test: Three prong test to measure effective accommodation
by a school (must comply with at least ONE):
1. (1) Safe Harbor: Are intercollegiate-level opportunities provided in numbers
substantially proportionate to the student body ratio? Fairly easy to prove. 5%
point variance is acceptable.
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2.
(2) If members of one sex are (and has been) under-represented, can the university
show a history and continuing practice of program expansion which is
demonstrably responsive to the developing interest and abilities of the members of
that sex? They must show there is movement being made to expand opportunities to
the under-represented gender.
3. (3) If a school has disproportionate gender representation and can’t show a
continuing practice of program expansion, can the school show that the interests
and abilities of the under-represented gender are being effectively accommodated
by the existing program? That is, they must show that the disparity is due to a lack
of interest.
vii. Reverse TITLE IX Cases—Suits by Men—
viii. Non-Gender-Specific Teams—Women on men’s teams (and vice versa)—
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