Sports Law Teacher’s Guide and Resources

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Sports Law

Teacher’s Guide and Resources

June, 2005

TEACHER’S GUIDE INDEX

Sports Law Overview 3


What is Sports Law? 4
Understanding the Difference between what a Sport is and what is

not a Sport. 4

Sports Contracts 6
Classification of Sports 8

Amateur Sports 8

Title IX 9

Penalties for violation of eligibility for recruitment 10

Letter of Intent 11

Unethical Conduct 12

Contract to Participate in Sports 13 Endorsements 13

Contractual Right to an Education 14

Contractual Right to Academics and Sports 14

Duty of Care 15

Drug Testing 15


Professional Sports 16

Contract to participate in sports 17

Conduct 17

Antitrust Law 19

Morality Clause 19

Breach of Contract – Prohibitive Substances 20

Unique Issues with Long Term Sports Contracts 21

Common Torts and Crimes in Sports 23

Betting/Gambling 23

Liability of One Participant to Another 24

Vicarious Liability 25

Stadium Safety against Fans (No-duty Rule) 26

Negligence 28

Duty of Care-Doctor/Trainer-Player Circumstance 29

Drug Testing 29

Reverse Discrimination 32

Health and Disability Issues 32

International Sports – Committees 35

Resources 36

OVERVIEW


Sports Law is a relatively new field beginning in the 1970’s. Lawyers in this growing field hold many sport manager leadership positions. Though it is not necessary to be a lawyer to hold these positions, it certainly helps when you deal with legal issues.
The following information has been compiled as a tool to guide you in setting up a sport law course, to be used in conjunction with a sports marketing course, or designed to augment a current law course where you want to implement information on sports law.
Various areas of the law are applied to the sports industry with the most common being antitrust, contracts, and torts. A variety of cases are highlighted, terminology explained, and resources listed to assist you in your course.

WHAT IS SPORTS LAW?


Sports Law is the application of a variety of legal doctrines to a range of sporting activities. Areas of the law included but not limited to are contracts, labor law, collective bargaining, discrimination, employment, torts, crimes, constitutional, and common law. New issues arise on a daily basis due to court decisions, new legislation, and regulations.

UNDERSTANDING THE DIFFERENCE BETWEEN WHAT IS A SPORT AND WHAT IS NOT A SPORT


Dictionary Definition of Sport: An activity involving physical exertion and skill that is governed by a set of rules or customs and often undertaken competitively. An active pastime; recreation.

Case: Davis v. Commonwealth

564 S.W.2d 33 (Ky. Ct. App. 1978)

Issue: Mr. Major Davis was convicted of complicity (involvement as an accomplice in a questionable act or a crime) and theft by deception and tampering with or rigging a sports contest. Mary Crumes was indicted and convicted of theft by deception and conspiracy to rig a sports contest. The sports contest in question is the Miss Black USA beauty pageant and how and if the money received was misappropriated. This case is important because it asks the court to decide whether or not this contest can be categorized as a "sport".

Rule: A person is guilty of tampering with or rigging a sports contest when, with intent to influence the outcome of a sports contest when tampering is with other things involved in the conduct or operation of a sports contest in a manner contrary to the rules governing the sports contest. A sports contest is defined as any professional or amateur sport, athletic game or contest, or race or contest involving machines, persons, or animals that is viewed by the public.
Application: The court rules that the pageant is not a sport and therefore the defendant(s) cannot be convicted of tampering with the outcome of a sports contest.
Conclusion: Judgment reversed.
Sports Law, Cases and Materials, Robert Jaravis, Phyllis Coleman ppgs. 2-6

Case: Newman Importing Co. v. United States

415 F. Supp. 375 (Cus. Ct.1976)


Issue: Newman Importing Co. was seeking a lower tariff on their imported goods due to the fact that their backpacks were sporting goods. Defendant argues that backpacking is not a sport and tents should be excluded from sporting goods thus increasing the tariff.
Rule: A tent is considered a necessity for backpacking not just textile material.
Application: Court ruled that backpacking is a sport and does so by declaring a sport as "… the element of enjoyment or recreation arising from the development or practice of individual skills, different from those involved in routine daily activities, is a better indication of a sport than competitiveness. In short, the common meaning of the word "sport" is not limited to competitive activities, a fact which can be generally confirmed by reference to the dictionary definitions."

Conclusion: Backpacking is a sport and the tents are equipment specifically designed and even necessary for use in the sport and should have been classified as tariff purposes as sport equipment.

SPORTS CONTRACTS

Definition: A contract is an agreement that courts will enforce. Contracts between two parties are the basis for all economic activity.





  1. There are six major requirements that must be satisfied before courts will treat transactions as contracts:



  • Offer and Acceptance: There must be a serious, definite offer to contract. The party to whom it was communicated must accept the terms of the offer.




  • Genuine Assent: The agreement (offer and acceptance) must not be based on one party’s deceiving another, on an important mistake, or on the use of unfair pressure exerted to obtain the offer or acceptance.




  • Legality Purpose: What the parties agree to must be legal. To agree to pay someone to commit a crime or tort cannot be a contract.




  • Consideration - is a central concept in the common law of contracts. It is often called the thing that is exchanged, no matter how minuscule. Consideration can take the form of money, goods, a promise to do something, or anything else that changes the legal position of the promisor. A contract cannot exist without consideration being given by both sides. Something of value given up for something else of value, esp. in contract context. A contract is not valid without valid consideration.

The legal definition of consideration is "the legal value, bargained for and given in exchange for an act or promise." In a credit environment consideration may be an agreed price for material on credit terms in exchange for payment within a specified time frame (promise). Consideration takes place when the customer takes possession (i.e. signs a delivery ticket) of the material and he is billed through an open account.


  • Capacity: To have a completely enforceable agreement, the parties must be able to contract for themselves rather than being obligated to use parents or legal representatives.




  • Writing: Some agreements must be placed in writing to be fully enforceable in court.




  1. Discharge of Contract is the termination of duties that ordinarily occurs when the parties perform as promised.




  • Substantial Performance: When all the duties are performed by a minor duty under the contract remains. A minor breach does not discharge the duties.

  • Mutual Agreement: A contract will terminate on a specified date or upon the expiration of a specified period of time, the happening of a specified event, upon the failure of the event to happen, or at the free will of either party upon giving notice.




  • Impossibility of Performance: Refers to external conditions rather than an obligor’s personal inability to perform.




  • Breach of contract is the failure to provide performance.




  • Bankruptcy trustee - a person appointed to take charge of the debtor’s estate and assets during a bankruptcy proceeding.




  • Operation of law - a change or transfer which occurs automatically due to existing laws and not an agreement or court order.

CLASSIFICATION OF SPORTS
Amateur Sports

Definition of Amateur Athlete: An athlete who has never accepted money, or who accepts money under restrictions specified by a regulatory body, for participating in a competition. Someone who pursues a study or sport as a pastime.

A. Role of National Collegiate Athletic Association (NCAA)

http://www.ncaa.org



  1. The colleges, universities and conferences make up the NCAA. The members appoint volunteer representatives that serve on committees which introduce and vote on rules called bylaws. The members also establish programs to govern, promote, and further the purposes and goals of intercollegiate athletics.

  2. Many believe the Association rules college athletics; however, it is actually a bottom-up organization in which the members rule the Association.

  3. The NCAA serves as a governance and administrative structure through which its members and will:

  • Enact legislation to deal with athletics problems when the problems spread across regional lines and when member institutions conclude that national action is needed.

  • Interpret legislation adopted by the membership.

  • Combine to represent intercollegiate athletics in legislative and regulatory matters on the state and Federal levels. This involvement includes such areas as Federal taxes affecting college athletics, anti bribery and gambling laws, television, international competition, and Federal aid to education affecting sports and physical education.

  • Provide financial assistance and other help to groups that are interested in promoting and advancing intercollegiate athletics.

  • Promote their championship events and all intercollegiate athletics through planned activities of the NCAA national office. In addition to general public relations activities, the Association publishes The NCAA News and dozens of other publications on behalf of its members.
  • Compile and distribute football, basketball, baseball, ice hockey, men's and women's lacrosse, and women's softball and volleyball statistics. Regular-season records are maintained in women's volleyball, football and basketball; championship records are maintained in all sports in which the members sponsor NCAA championship competition.


  • Maintain committees to write and interpret playing rules in 13 sports.

  • Conduct research as a way to find solutions to athletics problems. These efforts include surveys about academics, television, postseason events, athletics and recreational facilities, sports injuries and safety, recruiting, financial aid, playing seasons, the cost of intercollegiate athletics, and the effects of participation on the student-athlete.

  • Annually produce, in conjunction with NCAA Productions, special programs for television along with television coverage of NCAA championships not carried by a national network. This operation includes a library of films and videotapes of more than 100 titles available for purchase and rental, plus the NCAA Television News Service, which supplies information to television and cable networks.

  • Maintain a compliance services program that assists members in conducting institutional self-studies through a central resource clearinghouse and counseling agency to answer questions about intercollegiate athletics and athletics administration.

  • Administer insurance programs, including a lifetime catastrophic injury insurance program, to ensure that member institutions can provide protection for student-athletes during competition, practice and travel. The Association also arranges disability insurance protection for elite student-athletes.

  • Promote and participate in international sports planning and competition through membership in the U.S. Olympic Committee, USA Basketball, the United States Collegiate Sports Council, The Athletics Congress (track and field), the U.S. Volleyball Association, and the U.S. Baseball, Gymnastics and Wrestling Federations.
  • Sanction postseason competition and certify certain non-collegiate contests to protect their institutional interests and those of their student-athletes.


  • Support several community service programs, including NYSP (National Youth Sports Program), and offer Youth Education through Sports (YES) Clinics at numerous NCAA championship locations.

  • Administer national and international marketing and licensing programs to enhance intercollegiate athletics and to expand youth development programs.


Resources: www.buffacademics.com/docs/ncaa.htm

www.LLLaw.com/a_amateur.html

B. Title IX Discrimination

Definition: Title IX requires educational institutions receiving federal funds to provide equal opportunities to their students without discrimination on the basis of sex. Schools must demonstrate one of three things to comply: The number of male and female athletes is proportional to the overall student body; the school has a track record of expanding opportunities for women; or the school is fully accommodating the interests of its female student body.

Criticism of Title IX –Many opponents believe the law has turned into a quota system and has contributed to the systematic destruction of male sports programs.

Case: Brown University v. Cohen

101 F.3d 155 (1st cir. 1996)


Issue: Preferential treatment for female athletes. The First Circuit ruled that Brown violated Title IX and discriminated on the basis of sex when it eliminated four varsity sports teams -- two men's teams and two women's teams. Washington League Foundation argued that the First Circuit's decision directly conflicts with Supreme Court precedent prohibiting affirmative action and quotas.

Rule: Title IX requires educational institution receiving federal funds to provide equal opportunities to their students without discrimination on the basis of sex. Title IX has changed from an equal opportunity and anti discrimination law to a rigid and arbitrary quota system. Title IX expanded the opportunities for women to participate in college sports


Tests and Fundamentals- Test 1: Substantial Proportionality – Is an institution providing participation opportunities for women and men that are substantially proportionate to their respective rates of enrollment as full-time undergraduate students. Test 2: History of Expansion of Women’s Programs – Has an institution demonstrated a history and continuing practice of program expansion for the underrepresented sex? Test 3: Full and Effective Accommodation of Women’s Interests – Has an institution fully and effectively accommodated the interests and abilities of the underrepresented sex?

Application: Ruling was made on behalf of the quota of the student body men to women percentage.

Conclusion: Trial court held that Brown failed the three tests under Title IX.

C. Penalties for Violation of Eligibility for Recruitment

(Eligibility and Recruitment requirements - visit http://www.NCAA.org)
Case: Cureton v. NCAA

No. 99-1222 (3d Cir. Dec. 22, 1999


Issue: Four African-American women sued the NCAA under Title IV of the Civil Rights Act of 1964 stating that Proposition 16 has a disparate impact on African-American athletes
Rule: “To qualify for full eligibility, student-athletes must have a 2.0 grade-point average (GPA) in 13 approved academic "core" courses and an SAT of 1010 or a combined ACT of 86. Students with lower test scores need higher core course GPAs”.
Application: More recent NCAA research shows that the test score requirement disqualifies African American student-athletes at a rate 9-10 times the rate for white students.

Conclusion: The court found that the grade requirement was a legitimate educational goal but was concerned about how to apply that; and, if it’s a valid goal then it can be overcome by offering equally effective alternative practices. NCAA – Division I – eligibility standards invalid and a recipient of federal funds.

Resources:

http://www.fairtest.org/facts/prop48.htm

http://www.usdoj.gov/crt/briefs/cureton.htm

http://www.ncas.org/releases/miscellaneous/1999/1999030902ms.htm

D. Letter of Intent

www.national-letter.org/overview/


The terms of this Letter of Intent require a parent or legal guardian and an institution's athletics director to sign along with the prospective student-athlete. The Letter of Intention basically says that the student is enrolled at the school and what kind and how much financial aid will be provided.

Case: Fortay v. University of Miami (1994)

Issue: Fortay was a high school quarterback who signed with University of Miami. He claims that he was promised the starting quarterback position. He viewed his college opportunity as a stepping stone to the NFL. He signed a Letter of Intent after meeting with coaches. However, when Coach Johnson left, Fortay tried to get released from his Letter of Intent. After meeting with the new coach, Fortay decided to stay after he was told he would not be released from his Letter of Intent. Ultimately the school and coaching staff reneged on their promise and passed Fortay over for the job. He then transferred to Rutgers, losing a year of eligibility. He eventually got into trouble with financial aid, and sued the school on a 25 count complaint in search of actual, compensatory and punitive damages for the broken promises of stardom at UM and in the NFL, and the injury, humiliation and embarrassment for the Pell Grant scandal.

Rule: Letter of Intent obligations

Application: The Letter of Intent is between the student-athlete and an institution. This agreement provides that in exchange for the student-athlete’s services in their sport, the student shall have tuition, room and board, and books paid for by the institution. (page 59 Epstein)


Conclusion: Case was dismissed.

Case: Taylor v. Wake Forest University

191 S.E.2d 379 (N.C. App. 1972)


Issue: Taylor went to play football at Wake. He received terrible grades and told his coach he would miss practice so he could study. His scholarship was terminated. Taylor sued for recovery of education expenses after his scholarship was terminated.
Rule/Application: Taylor knew his scholarship was awarded for academic and athletic achievement. In consideration of this scholarship, Taylor agreed to maintain his athletic eligibility both scholastically and physically. Taylor could keep his scholarship as long as his grades were exceeded or maintained. Taylor had to attend and participate in practice. Taylor broke the agreement when he did not come to practice in order to study.
Conclusion: Case found for Wake Forest
Resource: http: www.hartley.com/edu/malp.htm
E. Unethical Conduct
Case: Conrad v. University of Washington

834 P.2d 17 (Wash. 1992)



Issue: Two football players on scholarships signed their Letter of Intent. Their scholarships were revoked because of various bad acts. Both players didn’t request a hearing after they were kicked off the team, and counsel didn’t represent them. Players sued for breach of contract and interference with contract relations.

Rule/Application: Showing sportsmanship and positive behavior. The offer of assistance can be revoked if you engage in conduct detrimental to the university

Conclusion: Court of Appeals affirmed decision that these were violations, but only for the player that requested the hearing. Washington Supreme Court ruled that the players did not have a protected property interest in the scholarship that would result in a due process violation when revoked without a hearing.

F. Contract to Participate in Sports

Case: Mike Williams v. NCAA and NFL
Issue: Mike Williams, star wide receiver for the University of Southern California (USC), dropped out of school, and signed with an agent in hopes of being eligible for the April, 2004 draft.
Rule/Application: His decision to hire an agent followed the Maurice Clarett case which initially made college football players eligible for the draft despite not being three years out of high school.
Conclusion: The ruling that allowed Clarett and Williams to be eligible for the draft was then overturned. Following a long investigation, Williams’ appeal for reinstatement to the NCAA was refused, despite taking summer classes and paying back all monies originally paid to him. That left Williams unable to play at the college level or the professional level.
Resource: http://www.210west.com/archives/sports/000204.php
G. Endorsements
Case: Jeremy Bloom v. NCAA

No. 02CA2302, 2004 WL 964322 (Colo. App., May 6, 2004).


Issue: Jeremy Bloom wants to play for the Buffaloes while simultaneously accepting endorsements to fund his ski training. He is also a standout freestyle skier.
Rule: According to NCAA bylaws, a student athlete is restricted from engaging in paid entertainment and commercial endorsement work. NCAA bylaw 12.1.2 states that “[a] professional athlete in one sport may represent a member institution in a different sport.
Application: CU petitioned the NCAA for a waiver of its rules contesting that Bloom’s endorsements, modeling and media activities were necessary to support his professional skiing career.

Conclusion: In a recently issued opinion, the Colorado Court of Appeals, Fifth Division, denied a preliminary injunction sought by a state college football player seeking relief from the NCAA bylaws, which restrict him from engaging in paid entertainment and commercial endorsement work in connection with his professional skiing career.

The court ruled that there would “be no way to tell whether he is receiving pay commensurate with his … football ability or skiing ability.” The court also noted that Bloom’s agent has marketed him as a multi sport athlete and that his media activities were related to his athletic ability and prestige, which could not be separated from his participation in CU’s football program. The Appellate Court agreed with the trial court and upheld that Bloom failed to demonstrate a reasonable possibility of success on merits, and denied his preliminary injunction. Bloom is still eligible to appear on television while participating in skiing; however, he is unable to engage in paid entertainment and commercial endorsement work while he remains a student-athlete at CU.

H. Contractual Right to an Education


Case: Ross v. Creighton University

(7th Cir.1992) 957 F.2d 410


Issue: Ross was recruited to play sports. The coach at Creighton University knew that Ross was not able to perform academically at college level and enrolled him in undemanding courses. When his eligibility was used up he had a D average and not enough credits to graduate. In Ross, the plaintiff alleged that Creighton, failed to provide him with an adequate education, claimed educational malpractice and a “wrong admission” to the Creighton.
Rule/Application The doctrine of "negligent admission, if given status as a legal principle, occurs whenever a sports program recruits an athlete with full awareness that he or she is incapable of doing college-level work.

Conclusion: Theories of education are not uniform. A student’s attitude, motivation, temperament, past experience and home environment plays an essential role in learning. A university has academic freedom and autonomy and courts should not be overseeing day to day operations of schools. “Failure to educate” is a valid claim for student against school

Resource: http://www.hartley.com/edu.malp.htm

I. Contractual Right to Academics and Sports


Case: Jackson v. Drake University

778 F. Supp. 1490 (S.D. Iowa 1991


Issue: Case involved an athlete who quit his basketball team due interference with his academics, basketball, and threat of losing his scholarship.
Rule: Grades must be maintained as structured by the university.
Application: Jackson sued the school for interference with his academics as well as with his participation in basketball. Jackson’s contract claims were based on financial aid agreements between him and the school.
Conclusion: The court granted Summary Judgment to Drake saying that the language of the agreement was unambiguous and that Drake had filled it obligations.
J. Duty of Care
Case: Pinson v. State

No. 02A01-9409-BC00210 (Tenn. App. 1995)


Issue: Michael Pinson alleges negligence against UTM for failing to have the trainer report the examination results of the blow to the head when Pinson was sent to the hospital. Pinson was left with permanent brain damage.
Rule: In the event of an injury, the coach, activity instructor or trainer has a legal duty to take proper post injury procedures to protect an injury.
Application: The trainer did not do as to what he was trained and authorized to do by passing all of the information on to the emergency room doctors.
Conclusion: State held liable for injuries.
I. Drug Testing
Case: Veronia School District v. Acton

515 U.S. 646, 115S Ct. 2386

Issue: James Acton refused to fill out the consent form for drug testing stating that is violated his fourth and fourteenth amendment—right against unreasonable searches and searches by public school officials. James was denied a sports membership.

Rule: The Policy applies to all students participating in interscholastic athletics. All students that wish to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport and, in addition, students are randomly chosen to test.
Application: When a student tests positive, a meeting is held with the parents and the student is given an option – participating in an assistance program or being suspended from the sport.
Conclusion: U.S. Supreme Court upholds school policy

Professional Sports
1. Standard Player Contract for Team Athletics can be found at (http://www.nbpa.com/cba/articleII.html)
2. Definition of a Collective Bargaining Agreement is a negotiated contract between a legitimate labor organization and the employer concerning wages, hours of work and all other terms and conditions of employment in a bargaining unit, including mandatory provisions for grievance and arbitration machinery.
3.Components of a Collective Bargaining Agreement


  1. Salary

The Salary Cap: the maximum amount a team may spend on player's salaries (many websites are devoted to explaining the salary cap in each professional sport; this is a very confusing topic. Presently, the NHL and their NHL players union are is disagreement about a salary cap in professional hockey)

NBA Salary Cap Info: http://www.nbpa.com/cba/articleVII.html

b. Signing Bonus or Performance Bonus

c. Option to Renegotiate

d. Factors Effecting Player Contracts


  1. Other common contracts for Athletes

Endorsement Contracts

Appearance contracts



  1. Common Reasons for Termination of a contract

Morality and conduct clauses

Most standard professional athlete contracts, as well as endorsement contracts, contain "morality" clauses. Section 11 of a standard NFL player's contract provides as follows:

"if player has engaged in personal conduct reasonably judged by club to adversely effect or reflect on club, then club may terminate this contract."

A uniform player contract for the National Basketball Association also has similar provisions. Sections 5 (Conduct) provides as follows:

(a) The player agrees to observe and comply with all team rules, as maintained or promulgated in accordance with the NBA/MPBA collective bargaining agreement, at all times whether on or off the playing floor. Subject to the provisions of the NBA/NPBA collective bargaining agreement, such rules shall be part of this contract as fully as if herein written and shall be binding upon the player.

(b) The player agrees.... not to do anything that is materially detrimental or materially prejudicial to the best interest of the team or of the league.

(c) For any violation of team rules, any breach of provision of this contract, or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the player, the team may reasonably impose fines and/or suspensions on the player in accordance with the terms of the NBA/NPBA collective bargaining agreement.


Resources: http:/asp/usatoday.com/sports/basketball

http://asp.usatoday.com/sports/football for any player's contract compensation and bonus information

A. Contract to Participate in Sports
Case: Clarett v. National Football League

No. 03 Civ. 7441, 2004


Issue: Maurice Clarett wants to play National Football but is ineligible because of a ruling.
Rule/Application: There is a 1990 NFL rule that states that football players may not be eligible for the NFL draft until they are at least three years out of high school. The rule was established because league officials did not think that the younger athletes were not physically ready for the NFL. He then challenged the NFL eligibility rule, stating that it violates antitrust laws.

Conclusion: Judgment for Clarett and then later overturned.

Resource: www.nfl.com/com/news/story/706549

www.findlaw.com – opinion and order

B. Conduct

Case: Curtis C. Flood v. Bowie K. Kuhn

407 U.S. 258, 92 S.Ct. 2099 (1972)


Issue: Curtis Flood, a professional baseball player "traded" to another club without his previous knowledge or consent, brought this antitrust suit after being refused the right to make his own contract with another major league team, which is not permitted under the reserve system.
Rule/Application: Reserve System. The rule applies to all players and to all clubs in both the major and minor leagues of organized baseball. The effect of this system is to restrict a player throughout his baseball life to negotiate with only one club at any one time; that club being either the one with which he begins his career or the club to which his contract is assigned.

Rule 3 of the Major League Rules and Professional Baseball Rules [**4] requires that each club contract with its players only pursuant to the Uniform Players Contract and specifically that "no club shall make a contract . . . containing a non-reserve clause." The Uniform Player's Contract provides in part that if in the year of expiration of the contract a player and a club do not reach agreement on a new contract by a certain date, the club may unilaterally renew the existing contract subject to certain salary controls. Such renewal contract would itself contain this renewal clause. The club with which a ballplayer initially signs thus has a right to his services for as long as it wishes to renew his contract, subject only to his right to retire from baseball.


Another section of this same Uniform Contract provides that a player's contract may be assigned, without his approval, to any other major league club in accordance with the baseball rules.

Conclusion: Ruling in favor of Bowie


Case: Sprewell v. Golden State Warriors and NBA

99-15602 11/07/00


Issue: Spewell had four different coaches. Spewell took offense at criticisms and physically attacked the coach. Spewell threatened the coach and told him to trade him.

Rule: Golden State Warriors voided the balance of his contract under paragraph 16(a)(i) of the Uniform Player Contract which prohibits a player in engaging in "acts of moral turpitude”, the player agrees not to do anything that is materially detrimental or materially prejudicial to the best interest of the team or of the league and for any violation of team rules, any breach of provision of this contract, or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the player, the team may reasonably impose fines and/or suspensions on the player in accordance with the terms of the NBA/NPBA collective bargaining agreement.

Application: What happened to Carlesimo and Sprewell happened at practice. This is not considered on-court behavior and not subject to arbitration.

The contract that Sprewell lost was to pay him $32 million dollars over the next four years. On top of losing his contract, Sprewell also received the longest suspension ever handed out by the NBA. The league's commissioner banned Sprewell from the sport for one year. To add to his problems, Sprewell also lost his endorsement deal with a shoe company.

For any violation of team rules, any breach of provision of this contract, or for any conduct impairing the faithful and thorough discharge of the duties incumbent upon the player, the team may reasonably impose fines and/or suspensions on the player in accordance with the terms of the NBA/NPBA collective bargaining agreement.

Conclusion: The results of this suspension have yet to be determined.

Resource: www.sportslawnews.com/

C. Antitrust Law


Case: Denver Rockets v. All-Pro Management

325 F. Supp. 1049 (C.D. Calf. 1971)


Issue: Spencer Haywood was drafted by Seattle before four years had passed since his high school graduation. The NBA threatened to void the contract and implement various penalties against the Seattle basketball club.
Rule/Application: A player can not make himself available to be drafted by a NBA team unless he has waited four years after high school graduation. He did not have to attend college. There are no age restrictions on players entering the NBA
Conclusion: Ruled in favor of Haywood granting him an injunction, which allowed him to play in the NBA. This ruling also prohibited the NBA from placing penalties on Seattle. The NBA’s policy violates anti-trust laws.

D. Morality Clause



Case: North Texas Toyota Dealer Association v. Michael Irvin
Issue: Michael Irvin was sued for not returning a Toyota Land Cruiser given to him in exchange of endorsements and in addition was suing for $1.4 million in damages.
Rule: Violated the morality clause of the contract.
Application: Sometimes athletes are viewed to have a substantial amount of money and people tend to try to take advantage.
Conclusion: The lawsuit was later settled out of court.
Resource: http://www.aaml.org/issuefor.htm

E. Breach of Contract – Prohibitive Substances


Case: Miami Dolphins v. Ricky Williams


Issue: The team followed with a lawsuit to recover money for breach of contract after Williams failed a drug test.

Rule: If players test positive, a four game suspension for first offense, a six-game suspension for a second offense and a minimum of one year suspension for a third positive test.

Application: The clauses in Williams’s contract enable the club to recoup incentive money and part of his signing bonus if he did not finish out the remainder of the deal.
Conclusion: The deal would have had Williams serve a four-game drug suspension this year and return next season. Williams declined the reinstatement and will remain retired.
Case: Jason Giambi and NY Yankees
Issue: Jason Giambi acknowledged using steroids and human growth hormone.
Rule: If a player tests positive for steroids for the first time, he/she will be suspended for five games and attend a treatment program. The penalties gradually increase up to a one-year suspension or up to $100,000 in fines.
Application: A standard player's contract cites how teams can terminate a contract if a player doesn't "keep himself in first class physical condition or obey the club's training rules" The union would argue that all drug related offenses would be referred to an Article which states first time offenders aren't named or disciplined but merely sent for treatment.
Conclusion: Contract cannot be voided.
Resource:

http://www.usatoday.com/sports/2004-12-02-giambi-steroids-report_x.htm http://newsfindlaw.com/legalnews/sports/drugs/policy/basketball/index.htm




F. Unique Issues with Long Term Sport Contracts


Case: Marriage of Anderson

811 P.2d 419 (Colo. App. 1990)


Issue: Richard Anderson had a three year contract with the Portland Trail Blazers and had only received one year of payment. The issue is about whether or not marital property is subject to division.

Rule/ Application: The rule is that compensation that is either received or fully earned during a marriage is marital property subject to equitable distribution.

Conclusion: Money received along with any further earnings was not marital property. An appeal resulted in money received was marital property, future income not.
In reviewing these cases, two general conclusions appear evident: 1) courts are more likely to construe cash in hand as divisible marital property; and 2) if an athlete must perform services post-divorce, courts are inclined to view the contract as not divisible at divorce.
Case: Chambers v. Chambers

840 P.2d 841 (Utah App., 1992)


Issue: Thomas Chambers had a five-year contract with the Phoenix Suns. He had completed two years of his contract.
Rule/Application: The rule is that compensation that is either received or fully earned during a marriage is marital property subject to equitable distribution.
Conclusion: The three years left were post-marital income and not subject to division. The Court of Appeals focused on when the right to salary would accrue. They decided that his future income would be derived from his playing basketball rather than from some past effort or product produced during the marriage. The Court of Appeals also based their ruling on the fact that the payment were not certain to occur.

Case: Sewell v. Sewell

817 P.2d 594 (Colo. App. 1991)
Issue: Mrs. Sewell was awarded a share of his earnings for the final regular season game and the ensuing playoff bonus before the final season began.
Rule: The rule is that “compensation that is either received or fully earned during a marriage is marital property subject to equitable distribution."
Application: The player still had to perform after the date of the divorce. Future income is not a vested right.
Conclusion: Money not awarded

Resource: Texas Entertainment and Sports Law Journal. Vol. 7, No 1, Spring 1998, pg. 7-8.

COMMON TORTS AND CRIMES IN SPORTS

NOTE: Difficult to recover damages since physical contact is a part of the activity.
Terms
Assault – intentional creation of a reasonable apprehension (intent to cause harm) of an imminent and offensive contact without the person’s consent.
Battery – intentional, unpermitted, unprivileged, offensive touching
Negligence – consists of falling below the standard of care required in the circumstances to protect others from the unreasonable risk of harm and is regulatory in nature.
Discrimination – Treatment or consideration based on class or category rather than individual merit; partiality or prejudice: racial discrimination; discrimination against foreigners.
Recklessness – high degree of carelessness that most courts view the harm to the plaintiff as intentional.
Vicarious Liability – an employee who commits negligence while working – the employer and employee can be held negligent.

A. Betting



Case: Molinas v. Podoloff

133 N.Y.S. 2d 743 (Sup.Ct. 1954)


Issue: Jack Molinas has been suspended due to wagering and wants the suspension set aside.
Rule: All leagues prohibit their members from wagering on their own sport. Molinas signed an agreement with the club.
Application: Any player who directly or indirectly bets money or anything of value will be expelled from the NBA until a hearing. Molinas admitted that he had wagered.
Conclusion: Case dismissed. Judgment is favor of the defendant.

Participant Gambling for Professional Baseball. Any player, umpire, or club official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has no duty to perform shall be declared ineligible for one year.

Any player, umpire, or club or league official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has a duty to perform shall be, declared permanently ineligible.
Case: Rose v. Giamatti
Issue: Pete Rose denied to illegally betting on baseball games.
Rule: Under Major League 21, any player, umpire, or club official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has no duty to perform shall be declared ineligible for one year. Any player, umpire, or club or league official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has a duty to perform shall be, declared permanently ineligible.

Application: When betting on your own team, you are putting your financial interest ahead of your team’s financial interest. There is a conflict of interest and potentially a creation of an enormous debt. The agreement also said that Rose acknowledged that Giamatti had treated him fairly, that Giamatti had a factual basis for imposing the penalty, and that Rose could not challenge the agreement in court or otherwise.

Conclusion: Rose was given a lifetime suspension from baseball

B. Liability of One Participant to Another


Case: Bertuzzi v. Colorado Avalanche
Issue: Todd Bertuzzi, forward for the Vancouver Canucks, punched Steve Moore, of the Colorado Avalanche, causing a broken neck, concussion, and other various injuries. Bertuzzi slugged and jumped on Moore from behind, driving him headfirst into the ice. Moore also suffered deep cuts on his face and two broken vertebrae.

Rule: Whether in the course of a professional football game an intentional infliction of an injury by one player upon another, constitutes a tort action? All players are prohibited from striking on the head, face, or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.

Application: Outrageous conduct.
Conclusion: The NHL suspended Bertuzzi for the rest of the season and the playoffs, which cost him just over $500,000 US in salary. He was charged with assault on June 24. In December 2004, Bertuzzi was handed a conditional discharge, one-year probation and 80 hours of community service after the player pleaded guilty to assault causing bodily harm. Bertuzzi will not have a criminal record.
The only other stipulation in Bertuzzi's sentencing was that he isn't allowed to play in any hockey game involving Moore during his probation, which may be a moot point since Moore hasn't played since the incident.


Case: Hackbart v. Cincinnati Bengals

US Ct. App. 1979
Issue: A football player was injured in a game when the player of the opposing team struck him in the head with his forearm.
Rule: Whether in the course of a professional football game an intentional infliction of an injury by one player upon another, constitutes a tort action? All players are prohibited from striking on the head, face, or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.
Application: Voluntarily participating in professional sports, where it is inherently dangerous, does not allow one player to strike another player out of frustration and anger. Player hit another player after play was over.
Conclusion: Trial Court dismissed the action as a question of social policy. Reversed and remanded the player. Hackbart loses his initial case but does win on appeal.

C. Vicarious Liability


Case: Tomjanovich v. California Sports, Inc.
Issue: Rudy Tomjanovich is severely injured by Los Angeles Laker Kermit Washington while attempting to break up an on court fight.

Rule: The attack on Rudy was tortuous and that the Lakers were vicariously liable under Respondeat Superior

Application: Liability of one participant to another.
Conclusion: Case was settled for $2.13M before the appeal went to court.
Resource: www.stel.edu/students/sba/Amateursports.htm

Case: Manning v. Grimsley

643 F.2d 20 (1st Cir. 1981)
Issue: Dave Manning, a ball that was thrown at 80 mph by Ross Grimsley (Baltimore Orioles) struck a spectator. The ball was pitched directly toward the hecklers in the stands.
Rule: The foregoing evidence and inferences would have permitted a jury to conclude that Grimsley committed a battery against Manning. This case falls into the scope of Restatement (Second) of Torts section 13 (1965), which provides:

An actor is subject to liability to another for batter if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful contact with the person of the other directly or indirectly results.



Application: The whole rule permits recovery by a person who was not a target of the wrongdoer including obedience to the criminal law by imposing an absolute civil liability to anyone who is physically injured as a result of an intentional harmful contact or a threat thereof directed either at him or a third person.
Conclusion: Verdict for Grimsley. Judgment reserved in favor of Manning.

D. Stadium Safety against Fans (No-Duty Rule)


Case: Telegra v. Security Bureau Inc.

719 A. 2d 372 (Pa. Super. 1998)

Issue: Spectators brought a negligence action against the security service provider arising from a disturbance among fans seeking a souvenir ball in the end zone. The plaintiff caught the football and when he sat down, aggressive fans tried to take the ball away.

Rule: There are certain inherent risks assumed by spectators when viewing sporting events against which the venue has no duty to protect.
Application: Ticket Terms and Conditions; usually being hit by a ball is a reasonable hazard.
Conclusion: The no duty rule applies. A later reversal reinstated that the fans caused injuries not the football. The injuries were unforeseeable and that the venue had a duty to protect the spectators.
Resource: Sports Law, Cases and Materials pages 103-108
Note: Cases - involving fans being hit by flying objects—rarely footballs, usually baseballs. Injuries not usually caused by the ball but by the crowd. Wayward balls are considered one of the hazards fans submit to according to ticket terms.
Case: Gary Teneyck v. Roller Hockey Colorado



Issue: Gary Teneyck was injured when a puck that left the playing area and flew into the seating area struck him.
Rule: The “No Duty” Rule is applied to bar a plaintiff’s claims for injuries suffered as a result of risks that are common, frequent, and expected.
Application: When jurisdictions follow the “No Duty” Rule, and if the risk encountered is not common, frequent, or expected, then the ordinary rules of negligence would apply in which provides the sole means of recovery for a plaintiff against a landowner caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known."
Conclusion: Summary reversed for Gary Teneyck.

Case: Indiana Pacers vs. Ron Artest

Issue: A cup thrown by a fan in the stands hit Ron Artest. Artest and five Indiana Pacers went into the stands and began a fight. Ron Artest and five Indiana Pacers received numerous game suspensions.

Rule: Article XXXI, section 8 of the league's collective bargaining agreement establishes the Commissioner as the complete and final authority on discipline for what happens on the court.
Application: The definition of bounds of acceptable conduct for fans attending games and how to permanently exclude those who use unacceptable behavior. The security procedures must be uniform in all facilities. Rules must be in place to eliminate any future problems.
Conclusion: The union is appealing the suspensions and filing a grievance. The fans are charged with violating a local ordinance that prohibits fans from entering the court and banned from the stadium

E. Negligence


Case: Benejam v. Detroit Tigers

246 Mich App 645; 635 NW2d 219 (2001)




Issue: Alyssia Benejam was injured when a flying piece of a broken bat damaged her fingers.
Rule: Under Michigan law, and the limited duty rule, a stadium owner is not responsible if safety screening has been provided behind home plate for a sufficient number of seats.
Application: The stadium had the required safety screening. Benejam entered into a situation with knowledge that the owner could not protect her against future risks.
Conclusion: Rule in favor of the Detroit Tigers.
Resource: www.courtofappeals.mijud.net/D

Sports Law, pgs. 70-76


Case: Greenberg v. Sterling Doubleday Enterprises

240 AD2d 702 (1997)


Issue: Plaintiff was injured when attempting to obtain an autograph.

Rule: “When a plaintiff’s negligence claim is premised on the theory that her injuries were caused by overcrowding and inadequate crowd control, the plaintiff must establish that she was unable to find a place of safety or that her free movement was restricted due to the alleged overcrowding conditions.”

Application: “The team could have done a better job of getting fans to and from where the players were standing.”
Conclusion: The court ruled against the plaintiff stating that she put herself in the line of danger, even though she did her best to get out of the way.
Resource: Sports Law Cases and Materials pg. 110-113

Case: Fish v. Los Angeles Dodgers Baseball Club

56 Cal. App. 3d 620 (Cal. Ct. App. 1976)


Issue: Alan Fish’s 14 year old son died after being struck by a line-drive foul while watching a Dodger baseball game.
Rule: Safety screening must be provided behind home plate for a sufficient number of seats.
Application: There was a failure to provide a safe place to witness the ball game, and emergency medical services were in a negligent manner.
Conclusion: Judgment in favor of Dodgers reversed.
Resource: online.ceb.com/calcases/CA3/56

F. Duty of Care Doctor/Trainer – Player Circumstances


Case: Hendy v. Losse

(1991) 54 Cal.3d 723, 1 Cal. Rptr.2d 543: 819 P. 2nd 1


Issue: John Hendy received a knee injury and was treated by Gary Losse, Club physician. He was advised to continue playing even though he received numerous injuries to the knee.
Rule: According to the collective bargaining agreement, Hendy, in order to continue to receive salary and medical care at the expense of his employer, Hendy must use the Club physician.
Application: Losse took reasonable care not knowing that the risk of injury was foreseeable
Conclusion: Ruling in favor of Losse.

G. Drug Testing

The NBA, NFL, MLB have their own drug policies in their Collective Bargaining Agreements.

Case: Shoemaker v. Handel

(795 F. 2d 1136 [3rd cir. 1986)

Issue: Five well-known jockeys brought action challenging New Jersey Racing Commission regulations that subject all official jockeys, trainers, or grooms to submit to breathalyzers and urine testing. The jockeys argued that such testing was unreasonable --and thus unconstitutional--absent of individualized suspicion
Rule/ Application: The right of the people to be secure in their persons, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.
Conclusion: The first major appellate court ruling approving mass urinalysis procedures in the public workplace through this administrative.
Resource: http://www.rowan.edu/business/faculty


Case: Schulz v. US Boxing Association

105 F.3d 127; 1997


Issue: This case involves a court's authority to order a private organization that sponsors prizefights to strip a champion of his title. Defendant Francois Botha defeated plaintiff Axel Schulz in a fight for the International Boxing Federation (IBF) heavyweight championship. Botha then tested positive for use of steroids. Botha admits to taking the drug but claims he did not know it was a steroid.
Rule: The IBF number. Rule 20, entitled "Anti-doping," requires boxers to provide a urine specimen after each fight to be tested for, among other substances, anabolic steroids and pain killers. This rule adds that should that specimen prove positive, “disciplinary action will follow."
Application: Anyone that is found in violation of the rules and regulations of the IBF or USBA by any Committees may be subject to fine, forfeiture of monies, vacation of title or any other discipline directed by the Committee and approved by the President for the good of the organization.

Conclusion: Schulz wins the showing that the court can overturn a sport’s governing body.

Resource: http://caselaw.lp.findlaw.com

Case: Hill v. NCAA

Cal.4th 1, 865 P.2d 633, 26 Cal.Rptr.2d 834 (1994)
Issue: Case involved challenges to the NCAA’s drug testing program under the right of privacy clause of the California Constitution. Counsel argued in support of the NCAA’s program.
Rule: The NCAA’s rules contain the following advance notice to athletes of testing procedures with written consent, random selection of athletes engaged in competition, monitoring of collection of the sample, procedures to safeguard the confidentiality.
Application: Under NCAA’s rules student athletes are randomly selected to submit samples of urine for drug testing.
Conclusion: California Supreme Court found the program to be lawful and constitutional.
Resource: http://www.fenwick.com/services/2.7.1.asp?s=1041

Privacy Seminar Reading Materials – Part II. Informational Privacy, Professor Dorothy Glance, Fall 2000


Case: University of Colorado v. Derdeyn

863 P.2d 929, 936 (Colo.1993)


Issue: A challenge was given to the state university for random urine testing of student athletes being replaced by rapid eye examination.
Rule: A drug-testing program must comply with due process standards.
Application: The university programs generally share the NCAA’s interests in protecting the health and safety of athletes. If you did not perform well under the REE, this provided sufficient suspicion of drug use. (Brian Lee – Drug Testing and the Confused Athlete)

Conclusion: Court holds that the testing program was unconstitutional since the rapid eye exam did not bear a relationship to drug testing; it was deemed unreasonable under the Fourth Amendment.


Case: O'Halloran v. University of Washington

No. 87-2-08775-1 (Wash. Sup. Ct., 1987


Issue: Athlete challenged drug testing based on privacy right.
Rule: Urine sample is a “search” for purposes of Fourth Amendment Analysis.
Application: Private matters other than drug testing would be revealed - such as pregnancy, use of birth control, diseases, and the like. The “search” is unreasonable because the state’s interest in testing does not outweigh the privacy rights of the student.
Conclusion: Court said that there is a diminished expectation of privacy in intercollegiate athletics and that it is being administered to a group (not a particular individual) that has had a problem, thus the state’s interest in the health of students and preserving equity in competition does outweigh the student’s limited interests.




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