LAW OF PRIVATE ASSICIATIONS/CONSTITUTIONAL INTRUSIONS Brentwood Academy v Tennessee Secondary School Athletic Assn ( TSSAA) Facts: Nonprofit organization tried to regulate interscholastic sports among the public and private high schools in TN. Some schools in the association were private and some public. 84% public schools. Most officials were public officials that worked in schools. There is a lot of Entwinement present. - But Showing entwinement is NOT ENOUGH - It’s just a start - Must be PERVASIVE entwinement Bottom pg 26 Issue: Is this association a state actor? What is the implication of them being a state action in this particular case? - 1st, 14th , 5th amendment would apply to them Holding: Yes, this association is a state actor. The association’s regulatory activity may and should be treated as state action because of pervasive entwinement -public officials governing association -by their service, they qualify for retirement benefits Big Question- when can I get at these Private Associations? Dissent: Thomas says there is no symbiotic relationship. Symbiotic would mean state funds the association. But here any school can join -private or public, State did not create the association -Pervasive entwinement= means you can’t tell one from the other. When it’s a Member suing Association there seems to be a less willingness to sue. - When it is athletes more inclination to sue Indiana High School Athletics Assn v. Avant 1995 Facts: Avant transfers from private school to public schools his last year of high school. His parents didn’t change residences. He wanted to play sports like he did in his old school but could not because the IHSAA Athletic assn didn’t let him play first 365 following transfer unless there was a change of residence. He later says it’s financial reasons but doesn’t say it at first. And also court found no change in parents’ financial status capricious. Purpose of Rule: To eliminate school jumping and recruitment Standard to see if association is violating: if rule is arbitrary and capricious (unpredictable) His Argument: He argues that his technical violation is arbitrary and capricious since he was not recruited by the new high school and the basis for his decision to transfer was financial and personal hardship rather than athletic -In administrative law, government can do just about anything it wants as long as it explains itself. Is judicial review available here? Courts will not ordinarily interfere to control the administration of voluntary association’s constitutions, by laws, or to enforce rights springing therefrom. -Haas Overruled the part saying that actions of private association are not judicially reviewable- under arbitrary and capricious standard. Holding: Court erred in not allowing IHSAA from rendering Avant ineligible to participate in sports. Court has jurisdiction to review the IHSAA’s decision concerning Avant’s eligibility but IHSAA did NOT ACT arbitrarily or capriciously Did not constitute a violation of privileges or immunities under the Indiana Constitution Court said NCAA was not a state actor 1 1. It was a coalition between all of the states 2. No due process State actor: You are a child of the state and have to be held to certain standards In reference to sport leaguesJust because you don’t like other choices, doesn’t mean you HAVE NO OTHER CHOICE. Walsh v Louisiana School Athletic Assn 1980 Facts: Plaintiffs are students that attended Lutheran elementary schools and then enrolled at the nearest Lutheran High School but were found ineligible to play interscholastic sports during first year of high school due to the LHSAA transfer rule they were violating. Transfer Rule: upon completion of elementary or junior high school, a student is eligible to participate immediately in interscholastic athletic competition only at a high school within his home district ( geographical areas ). They are ineligible to participate for one year if he goes to a high school outside his home district after completing elementary or junior high school. Problem is that Lutheran high School is the only high school in New Orleans operated by Lutherans and all the Lutheran elementary or junior highs are outside the Lutheran High school’s district. (Means that any student who wants to go to the Lutheran high school after Lutheran elementary or junior high, can’t play sports for one year) This case is good for proposition that even if you find they are STATE ACTOR there are still hoops to jump through Still need general deference unless the actor agrees that they are violating. - Arguments: Plaintiffs allege= in their complaint that the existence and enforcement of the LHSAA’s student transfer rule unduly burdened their first amendment right to the free exercise of religion and deprived them of their 14th amdt right to equal protection and due process Holding: RELIGION About freedom of religion, operation of the transfer rule did not violate first amendment. - Regulation is neutral on its face and motivated by legitimate secular concerns but does not burden the free exercise of religion - Enrolling in the school does place an indirect and incidental burden on the parents but not an Impermissible price to exact from the parents - Does not deny them from participating in Lutheran faith or from enrolling in Lutheran high school - Burden placed on exercise of religion is de minimis - Case by case basis doesn’t work, clear rule better DUE PROCESS -14th amendment does not protect mere expectations or lesser interests and a student’s interest in participating in a single year of sports amounts to a mere expectation rather than a constitutionally protected claim of entitlement. EQUAL PROTECTION - Plaintiff says two groups of students were created and two groups of schools are not being treated equally. - Court says that In equal protection analysis, classification must be rationally related to a legitimate state interest o Purpose here is related to state’s valid and legitimate interest in deterring or eliminating the recruitment of promising young athletes by overzealous coaches, fans, faculty members - Low threshold in analyzing this 2 Holding: There is a Rational relationship to a legitimate state interest Students don’t have property rights, just mere expectations Doesn’t place undue burden on Religion Letendre v. Missouri State High School Activities Assn 2002 Facts: Plaintiff, a 15 year old girl earning good grades wants to stop the MSHSAA from prohibiting students from competing on both a school and non school team in the same sport during the school team’s season because she would like to continue swimming in the Private Parkway Swim Club where she had been swimming for years and would like also to join the school Swim team. -Court only has power to review voluntary association’s “quasi-judicial actions” (judicial like actions such as granting waivers, etc) Rule: It is only upon the clearest showing that the rules have been violated by a decision of the association’s tribunal that courts should intercede Claire argues: it’s against public policy because it is arbitrary, capricious and violated her Constitutional rights to equal protection and free association as guaranteed by the 14th amdt and 1st amendment Issue: Whether the challenged rule bears a rational relationship to a reasonable goal of the MSHSAA Holding: there are reasonable grounds for the rule by law 235 because a reasonable person could believe that a legitimate goal of the association is furthered by the rule. The by law is rationally related to MSHSAA’s purpose of drafting rules that protect the welfare of the greatest number of high school athletes possible It does not impinge upon intimate human relationships nor core First Amendment freedoms. There is NO 1st amdt right for a high school student to associate simultaneously with both a school and a non school swim team -If state says that there’s a legitimate government interest, Judiciary says it’s okay as long as they have one. -Almost any interest will do!! (c) Good Conduct Rules Brands v. Sheldon Community School 1987 Facts: Plaintiff is a high school wrestler who hoped to attend college on a wrestling scholarship but received a letter on Feb 4th from his school principal giving him a period of ineligibility when he could not wrestle due to an alleged breach of discipline involving 1. bullying behavior 2. an assault on a young girl 3. injuring the girl by doing an unjustified act and 4. participating in multiple acts of sexual intercourse. These dates happen to be the days of the sectional, district and state wrestling tournaments. Plaintiff attempted to get a reinstatement to be able to wrestle before the sectional tournament on feb 14th. - Plaintiff appealed to Superintendent who affirmed principal’s decision - Plaintiff went to a close hearing before the board and they too affirmed the principal’s decision - Then plaintiff filed complaint and motion before the court on Feb 13. He was allowed to compete on Feb 14 with a temporary restraining order Plaintiff argues: violation of equal protection, substantive due process, procedural due process, cruel and unusual punishment, right to counsel Temporary Restraining order: 3 and arbitrarily when it failed to exercise its discretion in considering tiffany’s request for waiver (e) AGE REQUIREMENT DavenPort v Randolph County BD of Education 4 . threat of irreparable harm to the movant 2. capriciously. opportunity to explain. called witnesses) Holding: Plaintiff’s procedural due process rights were respected SUBSTANTIVE DUE PROCESS -FIRST: Test.FIRST: Test. The bylaws said though that the executive board of the AIA had discretion to waive the rule if the circumstances where beyond control of the student and parent and enforcing the rule would be an undue hardship on student. the state of the balance between this harm and the injury that granting the injunction will inflict upon other parties 3.1. Arizona Interscholastic Assn 1986 Facts: Plaintiff was not eligible to participate in athletics his senior year due to the fact that he turned 19 a month before school would begin and the AIA had a rule that: If a student turns 19 before September 1 of the school year. court found that likelihood that plaintiff can prove that his constitutional rights were violated is not great enough to warrant a temporary restraining order or preliminary injunction -This case is here Introducing idea of Temporary Restraining Order (d) Age Rules Tiffany v. public interest Court says only rights that could have been violated were: substantive or procedural due process rights PROCEDURAL DUE PROCESS .Rights denied if Board decision was arbitrary or capricious Holding. the discipline it provided etc but board denied the request. Court is satisfied that the plaintiff received all process due to him (notified of charges. Plaintiff went before the executive board of AIA and said how much he enjoyed playing sports. AIA has a policy of not making exceptions to 19 year old rule Constitutional Claims: Tiffany’s interest in participating in high school sports. Plaintiff’s substantive due process were not violated In conclusion. evidentiary hearing. did not reach the level of property interest and does not invoke protection of due process clause Holding: AIA did not violate plaintiff’s due process clause of 14th amdt when it refused to grant him a hardship waiver from its nineteen year old eligibility rule -But AIA acted unlawfully by failing to own bylaws in considering the request for waiver Failure to exercise discretion Board acted unreasonably. the probability that movant will succeed on the merits 4.Plaintiff must first be deprived of liberty of property by defendant Rule: The existence of a protected liberty or property interest does not depend upon the seriousness of the loss that the plaintiff would suffer as a result of the government’s action. counsel. but must look to the nature of the interest at stake and not the “weight” -RULE: There is no legitimate entitlement to participate in sports!! Even if there was a protected interest. he is not eligible to participate in interscholastic athletics. Post contract discrimination CHAPTER 6 Regulating Professional Athletics Charles v.Did make it pass pleading on Breach of Contract issue ( did not have evidence) . -Educational malpractice -Negligent admission Holding: Courts do not want to step into governmental administrators’ shoes.Regulating intercollegiate Athletes pg 103 Court’s have a trend of being unwilling to accept parole evidence to incorporate these types of promises into the contract. He sues the school saying they should have never admitted him in the first place and if admitted should have taken special care to educate him.Once discovery starts. O Finley & Co. asserting authority and compelling uniformity Holding: Denial of relief is affirmed CHAPTER 3. what you’re trying to get passed here is summary judgment Trying to establish that there is enough to get passed that and that this is an issue for the jury Taylor v. Post contract conduct on the part of Abatemarco Holding: Negligent misrepresentation and fraud charges Denied Motion for summary judgment granted for -Breach of Contract -Negligence . He had a contract with the school saying that he would have to play in order to keep his scholarship. it will be hard to get passed summary judgment because all they will have is testimony Jackson v. Holding: Court refused to look at anything but contract. Drake University 1991 Facts: University forced plaintiff to take easy classes in order for him to continue playing basketball for the University. Ross v. however. Got summary judgment. Counts-Breach of contract. Creighton University 1992 Facts: Plaintiff accepts scholarship to Creighton but is academically disadvantaged from everyone else. -This is a private owner not being able to sell his own thing because he joined this association. negligence. instilling discipline. Kuhn 1978 Facts: Owner of baseball team wants to sell off baseball players and the association tells him that he cannot do this.1984 Facts: 2 young plaintiffs brought suit because their football Coach barred them from playing football for a whole season due to their refusal to abide by the grooming policy by refusing to shave. Argument: Clean shaven policy is unconstitutional because it’s arbitrary and capricious Rule: grooming regulations are a reasonable means of furthering the school board’s undeniable interest in teaching hygiene. fraud. NO issue to material fact. v. . negligent misrepresentation. They do not want to open these doors. Issue: Is the Commissioner of baseball vested by contract with the authority to disapprove player assignments which he finds to be “not in the best interests of baseball” 5 . West Forest University 1972 Facts: Plaintiff was earning bad grades in college and wanted to do more studying than playing in the football team. He goes a little nuts. 6 .) -Relatively high degree of government concern is necessary in this case (nature of the concern is compelling) Holding: Search is reasonable. Kuhn 1977 Facts: Ted Turner. CEO of Braves. Holding: The court concluded that the commissioner's decision to deprive the club of its first round draft choice was void. relative unobtrusiveness of the search and the severity of the need met by the search Freedom of Speech and Association Wildman v. Because of the decreased expectation of privacy. Charges: plaintiff alleged violation of her 1st amendment rights. however. she wouldn’t be allowed to return to team. District Court denied the claims but appeals reversed. 7th grader signed up for football but denied because parents didn’t want to sign. Marshalltown School District 2001 Facts: Plaintiff is a high school student who played on the JV basketball and who was hoping to play on the varsity team after coach promised she would. epilepsy. He was protected by then there was a penalty not listed in bylaws. a major league baseball club and its owner. Summary judgment. CONSTITUTIONAL INTRUSTIONS Pg 74 Veronia School District v. Holding: Affirm. Charge: Violates 4th and 14th amendments -Reason to expect intrusion because voluntarily entering a highly regulated association -Tests look only for drugs (not pregnancy. the Commissioner of Baseball.first offense : 6 week program or suspension from sports current and next -Second offense: suspension current and next two . Letter reached coach and school principal told plaintiff if she didn’t apologize. the court concluded that the commissioner acted within the scope of his authority.independent laboratory checks . filed an action against defendant. Chapter 2. She wrote a letter and distributed it to her teammates in the school’s locker room. Now in Supreme Court. Acton 1995 Facts: Drugs policy adopted in OR which authorized random urinalysis drug testing of students who participated in sports -all students in interscholastic sports -sign form consenting to it . The letter mentioned things such as how team needed to stick together and that she wanted to talk to coach about who should be on the Vteam.Acton. diabetes. seeking to enjoin the commissioner from imposing certain sanctions against the club and the owner. With respect to the balance of plaintiffs' claims. etc.Holding: Not against the best interest of the game to do this Atlanta Braves v. Free exercise of religion does not mean costless exercise of religion. Illinois High School Assn. and the burden on the govt of extending the benefit to someone who fails to meet the usual requirement for eligibility. but the state must not make the exercise of religion unreasonable costly -Association didn’t provide an authenticated instance of a fall caused by a yarmulke but the ‘state need not await disaster’ to avoid safety. REGULATING INTERCOLLEGIATE ATHLETICS 7 . 1982 Facts: Plaintiffs are 2 orthodox Jewish boys bringing suit against the only private Illinois interscholastic sport association because of its rule forbidding basketball players to wear hats or other headwear. Holding: Doesn’t violate free exercise. Purpose was to prevent it from falling during game and a player tripping and falling since Jewish males are required by religion to cover their head at all times unless they are unconscious. alternatively 14th equal protection Rule: Comparison of two burdens is required: burden on the person who is seeking a government benefit of being denied the benefit as the price of observing his religion. Establishment Cases Sante Fe Independent School Dist v. Pre game invocations should not be regarded as “private speech” because it is speech over the school’s public address system.agreed that the letter did suggest that the team unite in defiance of the coach Free Exercise Issues Menora v. All plaintiffs have to do to obviate the state’s concern with safety is to devise a method of affixing a head covering which will prevent it from falling off during basketball play. in water. -Still don’t think safety concern is great enough to justify state’s placing a heavy burden on religious observance. Nothing in Constitution prohibits any public school student form voluntarily praying at any time before. student initiated prayer at football games violates the Establishment Clause? Holding: Yes. Supreme Court Facts: District had adopted a series of policies over several months dealing with prayer at school functions. or after school day but the religious liberty by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer CHAPTER 3. No violation of 14th amdt. and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a school events Reasoning: Difference between government speech endorsing religion and private speech. Issue: Whether petitioner’s policy permitting student led. -if even after this. then it will be on “constitutional quicksand” District court ruling for plaintiffs vacated and remanded. assn refuses to accommodate the religious beliefs.Rule: Right to express opinions on school premises is not absolute. by a speaker representing the student body. It it well within the parameters of school officials’ authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions . Charge:: violates free exercise of 1st amdt. during. it does. Doe 2000. under the supervision of school faculty and pursuant to a school policy that explicitly and Implicitly encourages public prayer. Policy is invalid on its face bc it establishes an Improper majoritarian election on religion. Students chose to allow a student to say a prayer at varsity football games and selected a student. or in imminent loss of death and this rule doesn’t allow them to wear anything even yarmulkes . 8 . a person clearly must have more than an abstract need or desire for it. state or federal action was involved 2. Charge: Deprived of Civil Rights (Property. or property must be threatened or infringed. -damage to Reputation by state official is not enough. def. Up to discretion of coach and fin aid. Hysaw v.adequate notice and a fair hearing. After missing one practice in protest of the treatment. FREE SPEECH INTERESTS Violated free speech by removing them from the team after they protested racial mistreatment Holding: Summary judge denied. BREACH OF K Reule: when a written K exists and its language is clear and unambiguous. PROPERTY RIGHTS -Rule: to have a property interest in a benefit. and free speech) and Breach of Scholarship K. needed to be a finding of serious misconduct but “serious misconduct” isn’t defined by any UW. Summary judge. NCAA. Reasoning: Facts need to be cleared if facts were to establish that Plaintiff were disciplined for protesting racial mistreatment. the party must be a person 3. U of Washington 1992 State Constitution can give more right than Federal Constitution Facts: Pl’s are football players recruited to play football for UW for 3 consecutive quarters. LIBERTY INTERESTS -Rule: Due process claim made out only if the liberty interest allegedly violated is protectable under the Constitution. Must have a legitimate claim of entitlement to it. liberty. an interest in life. Holding: Def met all obligations under K. and manner restriction because disruption did not infringe on the rights of other players. He must have more than unilateral expectation of it. Holding: Only interest created by their agreement are interests in receiving scholarship funds and they did. Granted. Summary judge granted. def may have infringed plaintiff’s first amdt rights not justified as a reasonable time.must be given. liberty. Need a protectable liberty right. In order not to renew student’s athletic financial aid. Players still received scholarship funds. the language controls Nothing in K about pl. or property by state or federal action. need tangible interest. Pl’s were involved in a series of arrests. liberty. told plaintiffs that they could keep scholarships and play if they followed some requirements which they did not and weren’t allowed to return to team. Conrad v. Must establish: 1. place. NO property right. some process. Pac-10 rule. Question is whether a property or liberty interest has been implicated. They felt white players were being favored and awarded better scholarships and expressed this to coach. only expectation. being allowed to play football-Only money. Washburn University of Topeka 1987 Facts: Plaintiffs are black football players who had scholarships to attend defendant University and recruited to play there. Summary judgment granted.Do Student athletes Possess Property or Liberty Interests? If person is deprived of life. incidents. Holding: No tangible interest Government employee defamation doesn’t equal football scholarship defamation. (procedural due processs) This process also provides a party with a means of determining whether a constitutionally protected substantive right has in fact been infringed.No other evidence other than “understandings” and “expectations. Just b/c it has a lot of power does not mean NCAA is acting under color of state law.Can’t create a protected property interest without some substantive standard and explicitly mandatory language . what remedy? A claim of entitlement to the renewal of plaintiff’s scholarships must have been created by the terms of the K to have due process protections. Invasion of privacy and Intentional Infliction of mental distress Facts: Plaintiffs are basketball players at U of M against publishers of a few newspapers bc they published information about their GPA’s and poor academic standings. no legitimate concern of public -“Reasonableness” under the facts presented is the determining factor Reasoning: Pl. which if continued would have likely caused their exclusion. Sup Ct.and unruly behavior between 1983 and 1985 and were given warnings by their coach each time that if they cont. NCAA v.For public figures requires actual malice (knowing falsity or reckless disregard for the truth . NCAA enjoyed no govt powers to help with investigation ( to subpoena witnesses. NCAA placed UNLV on probation for 2 yrs until UNLV severed all ties b/c school’s athletic program and Tarkanian. The Evening Star Newspaper Co. He brought suit alleging 14th amdt due process violations. would be highly offensive to reasonable person 2. Defamation . but concede it was true. During a great season. were public figures thru their membership in the Univ basketball team.Must prove reckless disregard with full knowledge of the harm that is likely to result from the publication Bilney v. U told him they were going to suspend him bc of a report from NCAA detailing 10 NCAA rule violations by him. coach did not recommend. reached the point of affecting their eligibility. Fudzie appealed and decision was affirmed. District Ct. looks into whether UNLV’s actions are in compliance w the NCAA rules and recommendations turned the NCAA’s conduct into state action.Cases where courts were reluctant to impose public law limits on Intercollegiate athletics NCAA v. Fin. contempt sanctions) -NCAA gave options besides supervision and UNLV could have withdrawn from assn.’s termination of petitioners’ athletic scholarship violated their due process rights and if yes. Facts: Tarkanian was the basketball coach at U of Nevada. Holding: Not state action. Holding: Duration of financial aid award precludes creation of a protected property interest and contract terms don’t create legitimate claim of entitlement to renewal of scholarship. After last incident.Since no protected interest. 1979 Counts. don’t need to address constitutionality of hearing. They say this was a purely private matter.NO property interest .the privacy status became more attenuated Holding: publications did not constitute a tortuous invasion of privacy Constitutional and Statutory Matters . said NCAA’s conduct was state action and that is decision was arbitrary and capricious. Sup Ct 9 . Smith 1999. Tarkanian 1988 Sup Ct.Difficult to prevail . One pl. . the behavior he would not recommend scholarship renewal. Issue: Whether the Univ. Aid decided not to renew. if matter 1. When their academic standing. Rule: One who gives publicity to a matter concerning the private life of another is subj to liability. Not arbitrary in its application of endorsement bc players wearing equipment doesn’t benefit any ONE student athlete. or without rational basis. Petitioner also failed to show that respondent acted arbitrarily. MPAA 1995 Facts: The movie producer asserted in his complaint that the trade association discriminated against it. capriciously." The court denied petitioner relief and dismissed the petition. as petitioner acknowledged that its film was not suitable for those under the age of 18. Holding: Drug tests were not flawed No privacy. MPAA 1990 Facts: Respondent industry rating board gave petitioner film company's film an "X" rating based on two sexually explicit scenes. Maljack Productions v. This was different from unpaid or single acting appearances. liberty or property interest in participating in intercollegiate athletics Miramax v. NCAA has a by law only allowing intercollegiate sports during undergraduate degree and NCAA refused to grant waiver and Smith sued alleging NCAA discriminates on the basis of sex by granting more waivers from restrictions to males postgrad student athletes. Plaintiff student brought an action against defendant university. Petitioner declined to delete or edit the objectionable scenes. when it assigned an "X" rating for violence to the movie producer's film. BD of Trustees for U of Louisiana Systems 1997 Facts: Alleged violation of Right to privacy and deprived pl of liberty and property interest without due process. Petitioner filed suit seeking a court-imposed modification of the rating from "X" to "R. and the rating was upheld by respondent's appeal board. or without rational basis in applying its AAP standard. Brennan v. the court found that petitioner failed to allege any bad faith in respondent's action. based upon the average American parent (AAP).Facts: Smith wanted to play intercollegiate volleyball during a post graduate program at Hofstra U and later at Univ of Pittsburgh. a non-member of the association. She claims they are state actor bc they receive federal financial assist thru dues. NCAA Facts: PL was recruited to play football at CU and requested waivers from CU to allow him to do student athletes endorsement and media activities since he had offers for it due to his Olympic and World Cup participation Holding: No abuse of trial ct’s discretion in failing to fault the NCAA for refusing to waive its rules. However. Petitioner also failed to present evidence of clear and intentional discrimination. The 19th District Court in and for the Parish of East Baton Rouge (Louisiana) granted the preliminary injunction. capriciously. arbitrarily. Rule: Entities that receive fed. While the court found fault with respondent's rating standard. Bloom v. -Bloom was not treated unfairly -No preliminary injunction bc no success on the merits satisfied. Holding: The petition was dismissed and the relief sought was denied because petitioner film company failed to show that respondent industry rating board acted in bad faith. Assistance whether directly or through an intermediary are recipients within Title IVetntities that only benefit economically from fed asst are not Holding: Dues not enough to make NCAA state actor. while more violent films 10 . or discriminated against it by giving petitioner's film an "X" rating. The court indicated that petitioner may have filed suit merely to draw attention to its film. without any professional input about the impact upon children. The university board brought an appeal. Reasoning: No allegations that NCAA members paid their dues with federal funds earmarked for that purpose. which sought to stop the university board from enforcing an order suspending the student from participating in intercollegiate athletic competition for one year due to positive drug tests results which he claimed were false positives. based on her alleged violation of a confidentiality agreement. He claimed the question was ambiguous. and then tried to conceal that fact. The defendant Stacey Stillman has appealed from the trial court's refusal to grant her motion to strike in its entirety. Finally. The contestant made no showing that the disagreement constituted extreme or outrageous conduct. network and production company.produced by companies belonging to the trade association were given "R" ratings. the court held that a document appellant signed was an agreement that if he failed to disclose a material fact. 11 . The court found that the contestant sufficiently pleaded the traditional elements of a contract. Stillman Facts: Involves a claim filed by the producer of the reality program Survivor for breach of contract against a former Survivor contestant. it refused to pay money won on a game show to appellant contestant. However. and denied it when confronted. but denied it as to SEG's cause of action for defamation. claiming that appellant misrepresented his eligibility. network and production company. or contrary to public policy. for breach of contract. failed to disclose that fact to respondents. he failed to specify what terms of the contract were breached. NBC Facts: Pursuant to respondent network's rules. Even in the absence of data to support the claim. There was no reasonable argument that the contract was oppressive. He was eliminated after he incorrectly answered a question. SEG inc v. which negatively affected the film's success. The district court dismissed the movie producer's complaint and denied leave to amend. the contract specifically prohibited tort actions. Inc. Stillman. Both the release and the rules contained clauses reserving final judgment to the producers and the network. and alleged that the trade association routinely assigned "R" ratings to the films of association members that were more violent than the movie producer's film. Thus. Stacey E. After being sued by the plaintiff SEG. The court also held that there were no triable issues of fact based on estoppel or waiver. but the producers declined to change their decision. he would then forfeit any prizes he won on the show. breach of the implied covenant of good faith and fair dealing and defamation. Winston v. The trial court granted the motion as to the first two counts. a game show contestant may make only three lifetime appearances on game shows. Appellant forfeited any right to winnings on the game show because of fraudulent misrepresentations made regarding his eligibility. The court found that appellant knew about his third prior show. He subsequently sued the producers and the network. Gelbman v Valleycrest 2001 FactS: The contestant signed a release and official game rules prior to appearing on a game show. the assertions were sufficient to survive a motion to dismiss. in plaintiff contestant's action to collect winnings on a game show. Holding: The motion to dismiss was granted. and then challenged the lower court's order granting summary judgment to respondents. The court affirmed the judgment. unconscionable. Holding: The court affirmed the lower court's judgment that granted summary judgment to respondents. The court reversed because it held that the complaint adequately alleged the sort of discrimination that could breach the implied covenant of good faith and fair dealing in the contract between the parties to rate the film. and the forfeiture provision in the subject contract was not a contract of adhesion and not unconscionable. she moved to strike the complaint . Because the trade association would not change the "X" rating. Holding: The court reversed the district court's order dismissing the original complaint and remanded the case for further proceedings. Stillman has appealed from that denial and SEG has cross-appealed from the trial court's grant of the motion as to its contract and bad faith claims. The court found that the complaint contained an assertion of discrimination in the rating because of the movie producer's non-member status. No duty was owed to the contestant. Appellant filed an action against respondents. the movie producer released the film as unrated. The court found that plaintiff had violated a rule that prohibited more than three appearances on a game show. it is clear that no evidence was presented by SEG demonstrating that Stillman had breached any express provision or implied covenant of her contract with SEG. US . the Supreme Court has said that schools and classrooms are nonpublic forums.Throes of idealogical war Facts: two writers of Motion pictures taken to House of Rep committee meeting. As noted above. national Broadcast Co ( NBC) Facts: A television camera crew had entered a home. The station later used the film on its nightly news without obtaining anyone's consent. the court must consider whether or not the defendants' decision bore a reasonable relationship to a legitimate pedagogical concern Reasoning: It is true that a private organization's rating system cannot be used to determine whether a movie receives constitutional protection. outside the general marketplace of expression. For instance. Borger’s summary judgment denied School can rely on R rating but govt cannot rely on MPAA for obscenity .School officials have abundant discretion to construct curriculum. when that action is motivated simply by the officials disapproval of the ideas involved. Asked if they were communists and they refused to answer Not a right to speak case. They can go far without saying it’s a crime. and they only violate the First Amendment when they limit access to materials “for the purpose of restricting access to the political ideas or social perspectives discussed in them. For the reasons discussed below. Borger by Borger v. After the station had received complaints from plaintiffs.Looking for Communist activities . in order to film the work of the paramedics. a city cannot rely on the rating system to determine which movies are “obscene speech” and thereby less protected. the station later used portions of the film in a commercial advertising a “mini-documentary” about the paramedics' work. the man's wife and their daughter. The grounds for school board curriculum decisions need only bear a reasonable relationship to their legitimate purpose.” RULE: Thus. Holding: affirm the trial court's order.Our review of the record in this matter persuades us that the trial court's ruling was correct in all respects. Lawson v. that does not mean that the School Board cannot choose to use the ratings system as a filter of films. without the consent of the residents. .All R movies are content neutral Miller v. accompanying paramedics called to administer life-saving techniques to a man who had suffered a heart seizure and who later died. FREE SPEECH IS NOT ABSOLUTE. and school boards have more discretion to censor within that environment than do bodies governing the public sphere. biscillia 1995 Facts: Students want to show Schindler’s list in school but it is Rater R and not allowed. Holding: School board decision stands.McArthur Era case . Students do not lose their First Amendment rights when they walk through the schoolhouse door. but SEG did demonstrate a prima facie case that Stillman's public statements and conduct constituted an actionable defamation of SEG. However. They don’t say Communism is a crime but that is a legitimate or grave legislative purpose. 12 . Plaintiffs appeal. FCC Facts: Cable television system operators and programmers brought actions against FCC. Zamora v. The lower court also denied CBS’s motion for reconsideration. Playboy Group Facts: Two sections. CBS filed a petition seeking permission to televise the trial. not to televise” People have a right to go to the trial. but court can’t hold everyone so it should be able to be broadcasted. CBS Facts: Appellees were involved in a court case that involved information and coverage of a war. CBS Facts: Involves a Claim of Negligence saying my child watched too much tv then went out and murdered . the District Court did not err in holding the statute violative of the First Amendment. so go after cable operators because they are a local business that received signal from national providers. who had shot and killed his neighbor. the court affirmed the judgment of the lower court because the broadcaster's status as a member of the press did not entitle him to televise the trial. One said that any sexually oriented programming must be scrambled blocked or limited to late night. “Right to attend. Specifically with cable operators because They know they can’t regulate the national industries or stations that carry NBC. Holding: Granted summary judgment for FCC 13 . but that’s it. Holding: Supreme court says no. Holding: Dismissed. the trial court granted defendants' motion for summary judgment. -The networks moved to dismiss the complaint and contended that to permit the claims as stated would abridge their First Amendment rights. subject to intermediate 1st amdt scrutiny. If you can’t totally do that then you can only show it from 10pm to 6am. The lower court denied CBS’s petition. “Tv has no duty to you or your children” Turner v. First amendment does not cover them. challenging constitutionality of must-carry provisions of Cable Television Consumer Protection and Competition Act that required carriage of local broadcast television stations on cable television systems. On further appeal. They knew that they couldn’t do that. You can attend and then write about it.Parents alleged that networks breached their duty by failing to use ordinary care to prevent their child. Capital Cities v. (applies to paparazzi) US v. Crisp Facts: Oklahoma says that there will be no broadcoast of alcoholic beverages in their state. (2) the imposition of the duty claimed would discriminate among television productions on the basis of content and not on the basis of any of the applicable 1st amdt limitations. Holding: Because the Government failed to prove § 505 is the least restrictive means for addressing a real problem. The must-carry provisions were content-neutral restrictions on speech. Westmoreland v. and infliction of emotional distress against all defendants. We affirm in part and reverse in part. invasion of privacy. and (3) the imposition of such a generally undefined duty would be an unconstitutional exercise by the court. alleging trespass. Holding: There is no right to broadcast from courtroom in civil cases. The court stated that (1) the standard demanded in the complaint was devoid of guidance and lacked legal cause. The networks also claimed that no duty of the type alleged existed by statute or otherwise and that the complaint failed to set forth a legal or factual basis to support proximate cause. they can’t do this. from being impermissibly stimulated and incited to duplicate the atrocities that he viewed on television.Brought action for damages. Holding: Must get consent especially when it is in the home. After considerable discovery and amendment of pleadings. a) The test for compliance is a comparison of the availability. and (c) whether the work. The Sheriff's brief denies any intention to put rap music to the test. The Court concluded that Congress drew reasonable inferences from the substantial evidence before it to conclude that in absence of the must-carry rules.That regulation itself is content based SPORTS GENDER DISCRIMINATION . but states “it is abundantly obvious that it is only the ‘lyrical’ content which makes “As Nasty As They Wanna Be” obscene. Rule: The basic guidelines for the trier of fact must be: (a) whether “the average person. This case is apparently the first time that a court of appeals has been asked to apply the Miller test to a musical composition. scientific. 1997 OzzFest ‘97 concert event at Giants Stadium. The judgments about how competing economic interests were to be reconciled in the field of television were for Congress to make. political. Although we tend to agree with appellants' contention that because music possesses inherent artistic value. which contains both instrumental music and lyrics. Stat and the US Constitution. denial of benefits. not the music. through the Constitution or through contract. the Miller test should be applied to the lyrics and the music of “As Nasty As They Wanna Be” as a whole. 14 . taken as a whole. taken as a whole. or discrimination under educational programs. applying contemporary community standards” would find that the work. or scientific value. The Sheriff's contention that the work is not protected by the First Amendment is based on the lyrics. The Giants Stadium performance of OzzFest ‘97 would include a performance by the rock band Marilyn Manson. appeals to the prurient interest. it’s the violence . but the only regulation they relied on was shows offensive to public morals. (b) whether the work depicts or describes. sexual conduct specifically defined by the applicable state law. Battle of the Experts.This one is a closer call Holding: State loses again but they are a little closer . opportunities and treatment afforded members of both sexes. . no work of music alone may be declared obscene. “must carry provisions” – cable must carry local channels Luke Records v. that issue is not presented in this case. i) The compared program components must be equivalent or equal in effect and identical benefits. A work cannot be held obscene unless each element of the test has been evaluated independently and all three have been met. significant numbers of broadcast stations would be refused carriage. literary or political value. . opportunities or treatment is not required. This test is conjunctive. provided the overall effect of any differences is negligible. Regulations only referred to morals and not violence.The Court concluded that the must-carry provisions were consistent with 1st amdt because they furthered important governmental interest and did not burden substantially more speech than necessary to further those interests. in a patently offensive way. quality and kinds of benefits.41) – a general statutory prohibition of sex-based exclusion from participation. lacks serious literary. artistic.That seems content neutral like it would work.” Assuming that music is not simply a sham attempt to protect obscene material. Holding: declaratory judgment that appellant record company's musical recording was obscene was reversed because the district judge misapplied the test for determining obscenity and the record was insufficient to determine whether the work lacked serious artistic.It’s not the CONTENT. Navarro Facts: record company sought reversal of the district court's declaratory judgment that a musical recording was obscene under Fla. to perform their previously scheduled June 15.and the one with more experts won Marilyn Manson Facts: The parties here dispute whether the plaintiffs have a right.GENERAL OUTLINE 1) Title IX (34 CFR § 106. contending that the district court misapplied the test for determining obscenity. d) Cohen v. (1) It requires an assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to warrant a new team or the upgrading of an existing team. ii) The institution must show a continuing practice of program expansion that is responsive to the developing interest and abilities of the underrepresented sex. (2) To fully accommodate the interests and abilities of the underrepresented sex is an extraordinarily high requirement. iii) The third benchmark’s purpose determine if a student has been excluded from participation in or denied the benefits of an athletic program based on sex. 15 . Cal State – Schools should take into account the nationally increasing levels of women’s interests and abilities and avoid disadvantaging members of an underrepresented sex. ii) The fact that the overrepresented gender is less than fully accommodated will not excuse a shortfall in the provision of opportunities for the girls. community and regional sports programs. (1) The regulation is not meant to promote athletics on college campuses and a school is not required to sponsor an athletic program of any size. sports at feeder schools. Brown University – the third prong demands full and effective accommodation of the underrepresented sex. (i) Club and intramural sports. (1) Prong three is implicated where a gender based disparity with respect to athletic opportunities has been shown to exist. (3) The mere fact that there are some female students interested in a sport does not ipso facto require the school to provide a varsity team. i) Race and gender conscious remedies are both appropriate and constitutionally permissible under a federal anti-discrimination regime. ii) Title IX operates to ensure that the gender-segregated allocation of athletics opportunities does not disadvantage either gender. vi) Unmet interest of the underrepresented sex must be completely accommodated before any of the interest of the overrepresented gender can be accommodated. i) It’s central aspect is to encourage women to participate in sports. i) The institution must ensure participatory opportunities to the extent there is sufficient interest and ability among members of the excluded sex to sustain a viable team.b) Unequal allocation of resources and its three prong test – A school is in compliance with the law if any of the following is met. (1) Institutions determine interest and abilities by nondiscriminatory methods of their choosing provided (a) The process take into account the nationally increasing levels of women’s interests and abilities (b) The methods are responsive to the expressed interests of students capable of intercollegiate competition (girls). and phys ed classes. c) Cohen v. iii) The institution must demonstrate the interests and abilities of members of the underrepresented sex have been fully and effectively accommodated by the present program. Brown – Title IX is an anti-discrimination statute and permits affirmative action and an inference that a significant gender-based statistical disparity may indicate the existence of discrimination. i) The intercollegiate levels of participation opportunities for male and female students are substantially proportionate to their enrollments. v) An academic institution may operate separate teams for members of each sex where selection of such teams is based upon competitive skill or the activity is a contact sport. (1) The test requires proportionate participation opportunities for both sexes (prong 1) unless one sex is simply not interested in participating (prong 3) e) Neal v. iii) Prong three requires evidence of interest in athletics and permits the use of statistical evidence in assessing the level of interest in sports. iv) A gender-conscious remedial scheme is constitutionally permissible if it directly protects the interests of the disproportionately burdened gender. where society has conditioned women to expect less than their fair share of the athletic opportunities women’s interest in participating in sports will not rise to a par with men overnight.Title IX envisions continuing progress toward the goal of equal opportunity for all athletes and recognizes that. 16 . the Supreme Court rejected the school's argument that safety was a legitimate reason for an exclusion to try out. Gender-Based Exclusion from a Particular Sport • Force v. 17 . a lower standard is applied and so it is ok to distinguish on gender grounds. OCR issued Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test. and Welfare (HEW) issued a set of proposed policy interpretations regarding application of Title IX to athletics. When a corresponding girls' team is not available. Pierce City R-VI School District (1983) – A girl wishing to try out for a junior high football team challenged that the school's all-male try-out policy. HEW organized the DOE’s Office of Civil Rights (OCR) which was charged with responsibility for enforcing Title IX.” Consequently. and the Equal Protection clause of the 14th amendment. The court determined that athletic opportunities had not been previously limited for boys. Education. Bell (1984) – Title IX only applies to programs that benefit directly from federal funds. Civil Rights Restoration Act of 1987 then basically overruled the Grove City decision and made all departments and programs of education institutions that receive federal funds be bound by Title IX. Title IX was implemented which required the promulgation of regulations to achieve gender equity in educational opportunities. the rules and regulations of the MSHSAA were held to be subject to the requirements of the Equal Protection clause. B. Franklin v. CIAW’s purpose was to increase participation by women in competitive sports. AIAW sued NCAA for anti-trust violation but lost and AIAW was disbanded. replacing CIAW. it would require blinders to ignore the motivation for promulgation of the regulation on athletics was the historic emphasis on boys’ athletic programs to the exclusion of girls’ athletic programs in high schools as well as colleges. the National Collegiate Athletic Association (NCAA) began offering national championships for women in all three of their divisions. allowing boys to try-out and participate on girls’ teams would serve to displace girls from those teams. All aspects of Title IX are fully applicable to all levels of both interscholastic and intercollegiate sports. Williams v. In 1994. • Notes: -Courts differ on whether or not Title IX precludes a constitutional claim. The court noted “that although Title IX and the regulation apply equally to boys as well as girls. “It is clear that MSHSAA’s actions amount to ‘state actions’ within the meaning of the Fourteenth Amendment. In 1978. which required federal funded institutions to disclose information regarding its athletics program. In 1996. School District of Bethlehem. and safety is not a legitimate concern. History There has always been gender inequity throughout history. Moreover. Association for Intercollegiate Athletics for Women (AIAW) was formed.CHAPTER 10 OUTLINE A. so there is no violation. Gwinnett County Public Schools (1992) – prevailing plaintiffs can recover monetary damages and attorneys’ fees for intentional violations of Title IX. In 1980. Intro Most claims and materials focus on Title IX of the Educational Amendments of 1972. C. Grove City College v. or strength could try out. the Department of Health.SPORTS GENDER DISCRIMINATION . this discrimination would not be allowed because court applies Strict Scrutiny test to racial discrimination – but with gender. 20 USC § 1092. In 1972. Title IX and the Equal Protection Clause require a school to provide equal treatment. Title IX was not applicable to athletics as long as the school did not use the federal money to directly fund athletics. simply the opportunity to make the attempt to qualify. as a tryout did not ensure a place on the team. size. In 1980. 1971. In the racial aspect. Congress passed Equity in Athletics Disclosure Act (EADA). In the 1960’s the first intercollegiate women’s basketball tournament was played in Pennsylvania and the Commission on Intercollegiate Athletics for Women (CIAW) was established. Opponents said that implementing Title IX was too expensive and a waste of funds . thereby decreasing “realistic athletic opportunities” for girls. PA (1993) –Plaintiffs brought suit challenging the exclusion of their son from the girls’ field hockey team. Since all males of any ability. 20 USC § 1681. Some consider Title IX to be like an affirmative action statute.” This case then bars a boy from trying out for a girls' field hockey team unless there is a history of discrimination against male athletes. led by plaintiff Amy Cohen. Boucher v.and two women's sports. Duke University (1999) – Woman wanted to join football team as a walk on. • Mercer v. It also noted the existence of formal policies to allow students to bring their interests and abilities to the school's attention. and formal policies to determine students' interests. However. Syracuse University (1999) – Boucher and seven other female athletes sued Syracuse University in U. . but awarded attorneys fees.S." he suggested.-Title IX’s regulations do not require that members of the opposite sex be permitted to try out for unisex contact sports. the Fourth Circuit reversed the trial court decision and remanded the case to the trial court for further proceedings. Because women's sports had only recently been added in numbers comparable to men's. Brown appealed the ruling.gymnastics and volleyball.two men's teams and two women's teams. The appeals court found that Brown was not in compliance with Title IX. for the other sex in a contact sport." the institution is subject to the general antidiscrimination regulations imposed by Title IX. -State constitutional law may provide a basis for remedying gender inequities in interscholastic or intercollegiate athletics. using surveys and consultants to ascertain interests in the feeder schools and surrounding competitive areas are also important. but then eventually excluded her from the team. -Private actors such as Duke are not state actors subject to federal constitutional rights claims. -Both the Equal Protection Clause and Title IX’s regulations permit “separate but equal” athletic teams in the same sport for both sexes. "once an institution has allowed a member of one sex to try out for a team operated . District Court for failing to accommodate the interests of female athletes and to provide equal athletic benefits to club team members. Therefore.S. sued the school claiming that it had violated Title IX by cutting support for women's teams. Equal Athletic Participation Opportunities. • Notes: 18 .in order to reduce costs. .water polo and golf. or (3) full and effective accommodation of the athletic interests and abilities of the school's female enrollment (must have a history and continuing practice of adding sports for the underrepresented gender). • Cohen v."a history and continuing practice of program expansion" by adding women's lacrosse and soccer as varsity sports after the suit was filed. Notes: -Fourth Circuit held in Mercer that punitive damages are unavailable in private actions brought to enforce Title IX. District court emphasized the importance of a paper trail of statistics to accurately portray a school's situation. District court in Providence ruled in the athletes' favor and ordered the college to reinstate the women's gymnastics and volleyball programs. female athletes felt that cutting equally from men's and women's teams was unfair. The First Circuit Court of Appeals in Boston upheld the lower court's decision and ruling that Brown violated Title IX and discriminated on the basis of sex when it eliminated four varsity sports teams -. arguing that Brown already offered ample opportunities for women to participate in varsity athletics. A university may choose not to permit a member of the opposite sex to try out for a contact sport team. or (2) history and continuing practice of program expansion. In March 1995. and Treatment 1. the U. not absolute equality. D. A group of female gymnasts and volleyball players. "Formal channels for students to report their interests. although state gender discrimination laws may apply to their conduct. Brown University (1997) – Brown had announced plans to eliminate two men's sports. These factors allowed Syracuse to find a "safe harbor" to defend itself against claims of ignoring women's interests. and they allowed her to attend try outs and practice with the team. Court held that Syracuse had satisfied the second prong of the three alternatives offered by Title IX's three-prong test . Benefits. Yet. Equal Athletic Participation Opportunities Compliance with Title IX's requirement of equivalent athletic participation opportunities for women requires that a school satisfy any one of the three alternatives presented by the three-prong test: (1) substantial proportionality. the standard should be one of comparability. Notes: -To determine the interests of the students. it need not have intended to violate Title IX. Lisa Ollar. The Fifth Circuit did: however. but need only have intended to treat women differently. etc. Equal benefits and treatment 19 . or to compete actively on such a team if selected. the regulation does not require institutions to integrate their teams not to provide exactly the same choice of sports to men and women. Louisiana State University (2000) – Beth Pederson. whereas intermediate scrutiny permits affirmative action in the context of gender discrimination. schools can conduct questionnaires. Contact sports – Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport. and 3) members of the excluded sex do not possess sufficient skill to be selected for a single integrated team. while athletic participation was only 29% female. -Schools can still comply with Title IX by cutting athletic programs so that men’s and women’s athletic participation rates become substantially proportionate to their representation in the undergraduate population.” a. where an institution sponsors a team in a particular sport for members of one sex. The court relied on statements made by university employees. Non contact sports – Effective accommodation means that if an institution sponsors a team for members of one sex in a non-contact sport. • Pederson v. have discussions. particularly LSU’s athletic director. Virginia. b.-A school can prove compliance with Title IX by independently fulfilling the requirements of any one prong from the three-prong test. to determine that LSU intentionally treated women differently. it must do so for members of the other sex under the following circumstances: 1) the opportunities for members of the excluded sex have historically been limited. -In the gender context. In doing so. The Fifth Circuit held that although LSU may have ignorantly violated Title IX. and 2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team. 2. Since LSU did not provide women with the same athletic opportunities as it did men. The court held that since the student population at LSU was 49% female. The 1979 OCR Title IX policy interpretation states: “In the selection of sports. -Sufficient proof of intentional discrimination enables a plaintiff to recover compensatory damages. the court applied intermediate scrutiny – determining whether the gender classification served important governmental objectives and that the discriminatory means are substantially related to achievement of those objectives. and Samantha Clark alleged that LSU violated Title IX by not establishing a women’s soccer team. a decision that the Fifth Circuit upheld. The state must also offer an exceptionally persuasive justification in support of its discriminatory policy (“intermediate scrutiny with a bite”). reverse the district court’s holding that LSU’s violation was not intentional. However. In United States v. the school intentionally violated Title IX. -Courts generally give a school some measure of discretion regarding which sports to offer. it must do so for members of the other sex under the following circumstances: 1) the opportunities for members of the excluded sex have historically been limited. 2) there is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team. there is a less restrictive test than in the racial context. -Strict Scrutiny in the racial context largely limits affirmative action by state actors. it may be required either to permit the excluded sex to try out for the team or to sponsor a separate team for the previously excluded sex. LSU was in violation of Title IX. interview students. the school intentionally treated women differently. district court held that a proportionality test could be used to determine whether LSU violated Title IX. an electronic scoreboard. FL – Daniels I (1997) – Daniels as next friend of his daughters. The court granted the athletes’ preliminary injunction and ordered the school board to propose a remedial plan. The school board was given an opportunity to submit a plan addressing how it would fix the inequities but was told if lights were not installed prior to the start of the season. the boys team would not be permitted to use the lights on their field. E. Board of Trustees of the California State Universities (1999) – At issue was the legality of roster size limits as a method of meeting Title IX proportionality. signs. District Court held that court held that the cumulative effect of the inequalities between the two athletic programs was significant enough to give the athletes a substantial likelihood of success on the merits in the Title IX and Florida Act claims. the Ninth Court of Appeals held that Title IX does not bar a university from reducing the proportion of roster spots assigned to a team. School Board of Brevard County. a women’s basketball coach claimed that the disparity between her salary and that of the men’s basketball coach and the difference in their office facilities violated Title IX. The court noted that the “School Board proposes not to spend any funds to remedy the inequities identified in the prior Order. • Deli v. F. McCormick and Geldwert sought an injunction requiring the school districts to move girls' soccer to the fall. FL – Daniels II (1997) – The court rejected the board’s plan and granted a permanent injunction against the school board. Howard University. Court said that its ok to cut rosters in order to comply with Title IX as opposed to having to increase women’s rosters for compliance. Notes: -Courts do not usually order a school to take a specific action to remedy gender based unequal treatment that violates Title IX. bathroom facilities. School District of Mamaroneck (2004) – Plaintiffs alleged that the decisions by the defendant Mamaroneck and Pelham School Districts to schedule girls' high school soccer in the spring of the academic year violated Title IX and its governing regulations. instead courts allow schools the flexibility to formulate their own compliance plan within certain parameters. In an overruling of a district court. if the lights were not installed.• McCormick v. Notes: -Courts have uniformly held that cutting men’s sports in an effort to achieve substantial proportionality in athletic participation opportunities does not violate Title IX or male athletes’ equal protection rights. The court subsequently entered a preliminary injunction ordering the school to take steps toward equalizing the facilities at the boys’ baseball field and the girls’ softball field. The girls team lacked lighting for night play. the Equal Pay Act. then the board proposed disallowing the lights for the boys’ field. Ninth Circuit vacated the injunction. Wrestling team brought suit and federal district court enjoined the reduction of rosters. Daniels v. Wage Discrimination -In Tyler v. The district court ruled that the school districts' nontraditional scheduling of high school soccer deprived girls but not boys of the opportunity to compete in the New York regional and state championships. USCA for Second District affirmed but modified the District Court's injunction to allow the School Districts to submit a plan that either alternates the fall soccer season between the girls and the boys or moves girls' soccer permanently to the fall. bleachers. etc. However. Gender-Based Employment Discrimination in Atheltics 1. CSUB was trying to cut back on budgets and working to achieve compliance with Title IX. CSUB limited the size of several male athletic teams. • • Daniels v. sued the school board under Title IX based on disparities between the girls softball and boys baseball programs. Adverse Effects of Title IX and Policy Implications • Neal v. a concession stand and press box. University of Minnesota (1994) – Plaintiff Deli was seeking to hold the University of Minnesota liable for emotional distress damages arising from its athletic director's breach of an oral promise not to view a 20 . and state law. The court determined that the girl players were entitled to injunctive relief under Title IX and directed the school districts to develop a plan to offer soccer to boys and girls in the same season. batting cage. Jessica and Jennifer. which had previously been approved. School Board of Brevard County. Plaintiff won the case and recovered for damages.” other than the installation of lights for the girls’ fields. Court ruled that the trial court erred in awarding emotional distress damages on Deli's contract-based claim because Deli failed to allege or prove the existence of an independent tort. the court held that Lowery could make a prima facie case of retaliation under Title IX because the evidence showed the university had reprimanded her for discussing her concerns about alleged Title IX violations with individuals outside the athletic department. 21 .videotape that contained both the University's gymnastics team performance at a 1992 Florida competition and Deli's sexual encounter with her husband in a Florida hotel room. the plaintiff must assert that the disparity is due to the gender of the team coached. Texas A&M University (1998) – Court dismissed P’s Title IX salary discrimination claim because the court said there is no private right of action under Title IX for employment discrimination but they allowed her retaliation claims and other salary discrimination claims to proceed. Notes: -When asserting a Title IX violation because of unequal pay. Notes: -Courts disagree on whether Title IX implies a private right of action for retaliation on behalf of employees of educational institutions who raise concerns regarding compliance with Title IX (although not victims themselves). rather than the coach’s gender! 2. Retaliatory Discharge or Punitive Action • Lowrey v. and demoted her thereafter. With the retaliation claims. the right to be free from compelled expression. Redgrave was ultimately rewarded damages in the amount of her stipulated performance fee plus damages for loss of future professional opportunities by potential employers. that the Wil-Helm Agency breached the performance contract and caused Lynn $178. thus releasing Lynn for any further performance under the contract. The appellate court held that the agent's conduct breached the performance contract. However. However. less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation. The court ruled that the BSO’s cancellation of the concert was itself an exercise of free speech. Wil-Helm Agency v. becoming extremely abusive. On the breach of contract claim. The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service. entered into a performance agency contract with Wil-Helm Agency. As compensation. The 10th U.000 for the part. Redgrave did not prevail on the MCRA claim. Big Man” for the same amount of money . Wil-Helm brought an action against Lynn for breach of contract. The Wil-Helm Agency sent Lynn a bill for $178. 20th Century Fox – Shirley MacLaine Parker contracted with 20th Century Fox to play the female lead in “Bloomer Girl. whereas the right to free speech traditionally applies only in relation to state action. Redgrave v. the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Wil-Helm Agency appealed. or substantially similar.The actress Vanessa Redgrave brought suit against the Boston Symphony Orchestra (BSO) for canceling a contract for her appearance as narrator in a performance of Stravinsky's "Oedipus Rex. and Violation of her civil rights under The Massachusetts Civil Rights Act (MCRA).000. When Lynn refused to pay this amount. McGraw Hill . Namely. Lynn notified the Wil-Helm Agency that it had breached the performance contract and that she would no longer be held to the contract. alleging that Wil-Helm breached the contract and owed her damages caused by the breach. He was more than 50 years old at the time.$750. the employer must show that the other employment was comparable. Parker refused. and that Wil-Helm's breach terminated the contract. The agreement is a bilateral contract wherein each party was obligated to the other to render certain performances.566 in damages. Minshall v.566. Parker then sought recovery of agreed upon compensation. Each party to the contract was under an implied obligation to restrain from doing any act that would delay or prevent the other party's performance of the contract.” Parker was to be paid $750.David Minshall had been an investigative reporter with Denver television station KMGH for 17 years when owner McGraw-Hill Broadcasting Company decided not to renew his contract in March 1997. Fox informed Parker that they would not be producing Bloomer Girl. The Court noted that the MCRA is an unusual statute because it creates a private cause of action for the suppression of speech by one private individual or entity of another.ENTERTAINMENT LAW CASES Shirley Maclaine Parker v. Doyle Wilburn (one of the partners) began to drink alcohol excessively. The conduct of Doyle Wilburn as the representative of the agency was entirely inconsistent with the duty owed the artist under the contract. Redgrave sought recovery for: Breach of contract for the cancellation of her performance. Fox offered Parker the lead in a dramatic western entitled “Big Country. giving Loretta Lynn the right to terminate the agency contract.S." BSO cancelled the performance in response to public protest over Redgrave's participation because of her support of the Palestine Liberation Organization. to that of which the employee has been deprived. the carrying out of which by each party was essential to the realization of benefits under the contract. Lynn – Country singer Loretta Lynn.556 for services rendered. Lynn filed a cross-complaint against WilHelm. Boston Symphony . Doyle was drunk on several occasions while acting as Lynn's agent which affected some of her opportunities. Circuit Court of Appeals upheld a jury's finding that a television 22 . The trial court held that Lynn owed Wil-Helm $178. II. but is not required to do so. B. such as work rules. and bonus payments -Hours-time spent on the job -Working conditions-factors influencing the work environment. o NLRA prohibits unfair labor practices by a labor union NLRB-National Labor Relations Board-administers and enforces federal labor laws by adjudicating claims of unfair labor practices -If NLRB cannot satisfy a claimant. and terms and conditions of employment. and safety. The jury could reasonably infer from the conflicting evidence that Minshall's contract was not renewed on the basis of age." but were connected to the adverse employment decision. the court found. §7 provides 3 basic rights for workers: o Right to form. join and assist labor organizations o Right to bargain collectively through representatives chosen by the workers and o Right to engage in ‘concerted activities’ such as picketing and strikes to advance and protect their interests. -Wages-pay. Mandatory Subjects of Bargaining include:-both sides must negotiate in good faith over these. it is either a permissive or illegal subject. CH 7-LABOR LAW & LABOR RELATIONS Topic Notes A. Permissive subject of bargaining:-nonmandatory lawful subject of bargaining. If an issue is not a mandatory subject of bargaining.station violated the Age Discrimination in Employment Act when it terminated a news reporter in the course of a program redesign aimed at appealing to younger viewers.S. fringe benefits. Illegal subject of bargaining-if one or more laws prohibit it from being implemented even if it were successfully negotiated. front pay and liquidated damages in excess of half a million dollars. seniority. The news director's comments about older employees were not irrelevant "stray remarks. the complaint goes onto federal courts NLRB determines which issues are subject to negotiation under the labor laws under the scope of bargaining: Scope of bargaining-includes all issues relating to wages. -A failure to bargain in good faith over mandatory subjects of bargaining is a violation of §8 of the NLRA. • Note: those persons who are not currently active players in a league are NOT members of the union and have no vote and little voice in union affairs. o §8a of the NLRA details prohibited employer conduct like domination ro interference with formation of a labor union. and upheld awards for back pay. Intersection of Antitrust & Labor Law 23 . Overview-p 513 • • • • NLRA-National Labor Relations Act enacted by Congress in 1935-(known as Wagner Act)-act provides basic legal structure for managing worker relations in U. hours.-->management may negotiate a union on the issue. the 10th Circuit said. an unfair labor practice. 1976 P-present and former NFL players D-Rozelle-Commiss. Ps-alleged that the D's enforcement of the Rozelle Rule constituted an illegal combination and conspiracy in restraint of trade denying pro football players the right to freely contract for their services. seeking injunctive relief and treble damages. Initial Judicial Development and Application of the Non-statutory Labor Exe Mackey v. a Collective Bargaining Agreement-CBA between a union and employers is exempt form antitrust challenges unless it violates certain criteria. 543 F. United Mine Workers) o Courts found the unions have a non-statutory labor exemption: 1. finding that the evidence offered in support of the clubs' contention that the Rozelle Rule is necessary to the successful operation of the NFL insufficient to justify the restrictive effects of the Rule. Alternatively.2d 606.) -Thus. NFl .• Combined effect of the Clayton Act and the Norris-LaGuardia Act has created a statutory exemption which provides labor unions with immunity from antitrust liability for its unilateral efforts to further its members’ economic interests. • • • See Mackey Case below-for the 3-factor test applied in most court cases-(note Clarett II decision distinguishes how to apply it. the court concluded that the Rozelle Rule was invlaid under the Rule of Reason Standard. The right to advance legitimate employee goals that restrain trade no more than is necessary to achieve those goals. Non-statutory labor exemption: Result of 3 Supreme Court decisions that relate to antitrust challenges against joint actions taken by employers acting in concert with unions (Allen Bradley. 24 . Dis. -The D's also alleged the Rozelle Rule was immune from attack because it had been the subject of collective bargaining agreements between teh club owners and the NFL Players Association (NFLPA) Reserve System-NFL History: The NFL has used reserve system where every player who signs a K with an NFL club is bound to play for that club and no other for the term of the K plus 1 additional year at the option of the club. Court held: D's enforcement of the Rozelle Rule was a concerted refusal to deal and a group boycott. Amalgamated Meat Cutters. 8th Cir. NFL. 1. and thus a per se violation of the Sherman Act.. and enjoining enforcement. member NFL teams FACTS: -Appeal by NFL and member clubs from a district court judgment holding the "Rozelle Rule" to be violative of §1 of the Sherman Act.-Implied labor exemption from antitrust laws to enter into K’s with multiemployer bargaining units 2. ISSUE: 25 ... after RC Owens played out his option with the 49ers and signed a K with the Baltimore Colts. any such decision by the Commissioner shall be final and conclusive. the availability of the nonstatutory exemption for a particular agreement turns upon whether the relevant federal labor policy is deserving of pre-eminence over federal antitrust policy under the circumstances of the particular case. 2) federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of collective bargaining. Antitrust: -The Defendants argue that the only product market arguably affected by the Rozelle Rule is the market for players' services.. rather than signing a new one.. Governing Principles: -Under the general principles surrounding the labor exemption. 3)The policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's length bargaining. Rozelle awarded compensation in the 4 remaining cases Labor Exemption Issue: -To determine the applicability of the nonstatutory exemption. -Prior to 1963. In 1963 . 34 signed w/other teams. the former club waived compensation. Reserve. a team signing a free agent who had previously been under a K to another club was not required to compensate the player's former club. then. but he is subject to a 10% salary cut during the year. he is bount to his team for at least 2 years. from the Active. the member clubs of the NFL unilaterally adopted the Rozelle Rule as an amendment to the League's Constitution and By-laws: Rozelle Rule: (p 520) . the clubs involved mutually agreed upon compensation. becoming a free agent in such manner. -In 3 cases. Court finds: 1)Labor policy favoring collective bargaining may potentially be given pre-eminence over the antitrust laws where the restraint on trade primarily affects only the parties to the collective bargaining relationship. From 1963-74: -176 players played out their options.-Once a player signs a Standard Player K. or Selection List-(including future selection choices) of the acquiring club as the Commissioner in his sole discretion deems fair and equitable. and that the restriction of competition for players' services is not a type of restraint proscribed by the Sherman Act. BUT he may become a free agent at the end of the option year by playing that season under a renewed K. -In 27 cases. unless mutually satisfactory arrangements have been concluded between 2 League clubs.-D's rely on §6 of the Clayton Act and the Apex Hosiery Case: in that case the employees themselves actually imposed the restraints on themselves. Commiss. -Of that number. the Commissioner may name and then award to the former club 1 or more players.Whenever a player. thereafter signed a K with a different club in the League. it must first be determined whether there has been any agreement between the parties concerning the Rozelle Rule. it actually does not want to drive any of its members out of business while competing with them.. Antitrust:§1 of Sherman Act: Players' Services As a Product Market -On the surface the language the D's use gives merit to their argument. Rule of Reason: -Evidence showed that the Rozelle Rule deflated players salaries but that without it there would be increased movement in interstate commerce of players from 1 club to another. APPLICATION: 1)-Applying the principles to the facts presented here. -Although the NFL is similar to a joint venture. hours. Bona Fide Bargaining: -Court finds substantial evidence to support the conclusion that there was no bona fide arm's length bargaining over the Rozelle Rule preceding the execution of the 1968. -Other pro sports have been held to the Sherman Act when the owner imposed restraints on competition for players services. Per se violation: -The district court applied the per se approach. and other terms or conditions of employment" BUT with inter-team compensation when a player's contractual obligation to 1 team expires and he is signed by another-viewed as this it would not indicate a mandatory subject of bargaining. 1970 agreements. BUT-§6 of the Clayton Act was enacted for the benefit of unions to exempt certain of their activities from the antitrust laws after courts had applied the Sherman Act to legitimate labor activities. and other terms and conditions of employment" -Whether an agreement concerns a mandatory subject depends not on its form. but this court disagrees. the restraints in this case on the players' services fall w/in the ambit of the Sherman Act. hours. thus inappropriate to mechanically apply the per se illegality rules here. BUT -the Rule operates to restrict a player's ability to move from 1 team to another and depresses player salaries. we think it clear that the alleged restraint on trade effected by the Rozelle Rule affects only the parties to the agreements sought to be exempted 2) Mandatory Subject of Bargaining. it might as well continue. -On its face the Rozelle Rule does not deal with "wages. The NFLPA stood in a weak bargaining position during those years (1974) and the Rozelle Rule was unilaterally imposed on the players.1) Whether the so-called labor exemption to the anti-trust laws immunizes the NFL's enforcement of the Rozelle Rule from antitrust liability? and 2) Whether the Rozelle Rule and the manner in which it has been enforced violate antitrust laws? RULE: Definition of Mandatory Subject of Bargaining:(p520) §8d of the NLRA. Thus. The Rule imposes significant restrictions on players Thus. Also the court has already undertaken a lengthy analysis. The D's argued that w/out the rule it would create an unbalanced league where all the star players would go to one 26 . the agreements between the clubs and the players embodying the Rule do no qualify for the labor exemption. pertain to "wages. this court holds that the Rozelle Rule constitutes mandatory bargaining subject w/in the meaning of the NLRA. Thus. but on its practical effect. a court found because there was a fair collective bargaining agreement made between the players association and the NFL.Powell and 8 other NFL players. First Refusal Right/Compensation System: -provided that a team could retain a veteran free agent by exercising a right of 1st refusal and by matchign a competing club's offer. Nat'L Basketball Assn. §§1-7.. CONCLUSION: -See Note 2-p 524: In Reynolds case. retirements. Sixers. 930 F. etc. 8th Cir. -The Players argue that the labor exemption to the antitrust laws expires when parties reach impasse in negotiations and that the First Refusal/Compensation system therefore may be challenged as an unlawful restraint on trade. the weak other arguments made. 1st round draft pick was only offered a 1 year $75. and that player continuity is already effected by trades.2d 1293. held that even players such as draft-eligible rookies who are not yet playing in the league are barred from challenging the terms of an existing collective bargaining agreement on antitrust grounds. 2. the Rozelle Rule is an unreasonabl restraint on trade. by reducing competition among league clubs for services of college b-ball players. which would create a better product for consumers. violating the Sherman Act. 1991 Case Brief P-M. See 524: Wood v. the restraints on trade were allowable. NFL . new draft picks.. The D's also asserted this rule would lead to greater comraderie by keeping teams together. this was the maximum allowable under the NBA collective bargaining agreement which the Sixers could offer that year. that the rule was necessary to protect the teams expenses in scouting players and player development costs.2d 954 (1987) -2nd Cir. Court finds that due to the unlimited duration of the rule. the players' collective bargaining rep.team.. 27 . 809 F. Wood claimed the NBA Salary cap violated antitrust laws. Judicial Extension of the Scope of the Nonstatutory Labor Exemption Powell v. the NFL players association D-NFL FACTS: The appeal focuses on the provision of the Players' collective bargaining agreement establishing a "Right of First Refusal/Compensation System"-the employment terms restrict the ability of players to sign with other teams-also called "free agency" The D-NFL contends the challenged practices are the product of bona fide arm's length collective bargaining and therefore are governed by federal labor law to the exclusion of challenge under the Sherman Act. Held: NO violation of antitrust due to NBA players' union collective bargaining agreement was made fairly. following Mackey.000 K because the Sixers had exceed the NBA salary cap. Wood's only claim for harm to his ecnomic interests was against the NBA's player union for breaching it duty of fair representation. initiated a strike over veteran free agency and other issues. w/out producing a new agreement. p 528-After impasse. 28 .-IF the old decided not to match the offer the old team would receive compensation from the new team in the form of additional draft choices. Before the parties reach impasse. The parties agree: the First Refusal System: 1)primarily only affected the parties in the collective bargaining relationship. including the First Refusal Right. -If an impasse occurs and the employer's unilateral terms were offered to the union. regardless of the lack of substantive influence of the union's proposals in the negotiations. the employer should be deemed not to have violated any labor law. there is a continuing obligation to bargain. NLRA §8a5 2. -The Players commenced this antitrust action claiming the 1982 Agreement expired. ISSUE: Whether the nonstatutory labor exemption in the NFL expired when a 1982 Agreement expired or whether this exemption continues to protect the league from potential antitrust liability even after an impasse? RULE: p 528-After a collective bargaining agreement has expired: -an employer is under an obligation to bargain with the union before it may permissibly make any unilateral change in terms and conditions of employment which constitute mandatory subjects of collective bargaining. The players. -Sept. an employer's continued adherence to the status quo is authorized. the League maintained the status quo on all mandatory subject of bargaining covered by the Agreement. IF-employers exceed their labor law rights in implementing employment terms at impasse. an employer may make unilateral changes that are reasonably comprehended w/in its preimpasse proposals. This system was substantially modified into a successor agreement in 1982. 1987. -p 528-Good Faith Bargaining must occur. At the same time. 1987. the employers are obligated to "maintain status quo" as to wages and working conditions. AFter impasse. -After the 1982 Agreement expired in Aug. the Players. even to the point of impasse. 3. After expiration of a collective bargaining agreement. 4. and 3)were the product of bona fide. employers become entitled to implement new or different employment terms that are reasonably contemplated w/in the scope of their pre-impasse proposals. --The strike ended in mid-Oct. once an impasse in bargaining is established. after intermittent negotiations on a successor collective bargaining agreement proved unsuccessful. argue that the court should accept the District Court's impasse test and conclusion as inherently balanced. BUT must examine labor law requirements first: (p 527) 1. 1987. arm's length bargaining. 2)concerned a mandatory subject of collective bargaining. the full range of labor law rights and remedies is available to unions. other NFL teams FACTS: -In 1987. the NFL adopted Resolution G-2. expired. Thus the parties may: 1. bargain further 2. the NFL and the Players are not at the point to permit an action under the Sherman Act.a plan permitting each club to establish a "developmental squad" of up to 6 rookies or 1st year players who as free agents had failed to secure a position on a regular player roster. Pro Football Inc. 231. It insisted that the club owners give the developmental squad players benefitis and protections similar to those provided regular players and that they leave individual squad members free to negotiate their own salaries.000 per week. the nonstatutory labor exemption extends in this case beyond impasse.S. based on the labor law requirements. . -The players never contended that the NFL's proposals were made in bad faith.. -National Labor Policy should sometimes override antitrust policy and we believe that this case presents that occasion. -The two parties began to negotiate a new contract. NFL Proposal: -The next month. during the negotiations. a collective-bargaining agreement between the NFL and the NFL Players Association. Thus. The Players Association disagreed. The may present claims to the NLRB -Until the NLRB has final resolution the labor relationship continues and the exemption applies. CONCLUSION: -The NFL and the Players have accepted this "level playing field" as basis for their relationship. result to economic force-lockout/strike 3.. (Squad members would play in practice games and sometimes in regular games as substitutes for injured players) Resolution G-2 provided that the club owners would pay all squad members the same weekly salary. 1996 Case Brief P-Brown and other NFL players D-Redskins. -2 months later: Negotiations on this issue reach impasse 29 . 518 U. Brown v. and court believes there is substantial justification for the parties to continue to fight on.APPLICATION: -Thus. -March 1989. this plan was presented to the NFL Players Association with the league proposing a squad player salary of $1. primary responsibility for policing the collectivebargaining process. which found for players. p 533-The labor laws give the NLRB. unique to this situaton: 1.respondent concedes that the employers imposed the wage restraint to force owners to comply with league wide roster requirement rules--->the league could have done this without influencing player salaries or limiting them. players claimed the G-2 Plan violated Sherman §1-restraint of trade. thus bargaining continues anyhow. not antitrust courts.of the antitrust laws. -Thus. but does not exempt concerted action or agreements between unions and nonlabor parties. permitted case to reach the jury. threatens to introduce instability and uncertainty into the collectivebargaining process. CONCLUSION: -Affirms Court of Appeals in favor of league. -District Court denied employers' claim of exemption form antitrust laws. ISSUE: Whether. some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions. Court of Appeals Reversed. Dissenting: The statutory labor exemption protects the right of workers to act collectively to seek better wages. -A month later this action was brought. 30 . APPLICATION: -p 533-IF the antitrust laws were to apply to employers per se after impasse. 2.-Player salaries are individually negotiated. Stevens. what would employers do once they have reached impasse? -Introducing antitrust liability here. -Impasses is temporary. what is the scope of the nonstatutory labor exemption? RULE: p 532-The implicit exemption recognizes that to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place.. because antitrust law often forbids or discourages the kinds of joint discussions and behavior that collective bargaining processes invite or may require. this began even before collective bargaining. J. at impasse an employers' agreement of salary terms can withstand antitrust liability and be implemented as the last best bargaining offer (yes-provided employer follows other labor requirements).NFL implements G-2 Plan: -unilaterally implemented this plan -threatened to fine teams and take draft choices if they did not follow G-2 plan. The last settlement. Stevens does not see why employers should be exempt from antitrust in this case. Supp. Decertifying as a Union Topic Notes *See p 530-McNeil v. Thus. 306 F. A. became part of a new collective bargaining agreemetn. Clarett v.. will sue the NFL or its teams relating to 31 . the employers refused to continue to bargain and unilaterally made this implementation. 2d 379. thus constituting a "group boycott" -under Sherman Act §1-(p 541) NFL & Collective Bargaining Agreement: -Current CBA took effect in 1993 and expired in 2007. w/out the collective bargaining agreement.. the NFL Players' Association chose to decertify as a union. and that there will be no change in terms and conditions without mutual consent. and settled in 1993." Article IV §2-"No Suit" -provides that neither the NFL players association nor any of its members..3. NFL Clarett I . the NFL had a rule preventing anyone who was not 3 years removed from high school from entering the Draft. NFL case: -After the Powell decision. However. after the players association recertified as a union. 2004 Case Brief P-Mo Clarett D-NFL FACTS: -After Maurice Clarett a star college football player was ruled inelgible for his sophomore season of college football he sought to enter the NFL draft. etc. NFL players won most of the class-action lawsuits for anti-trust violations against the NFL following decert. Once the Players' Union responded to the initiona G-2 proposal by the employers. This allowed the players to give up rights under the collective bargaining agreement at issue. particularly the Right of First Refusal system. Thus. there was no justification for the NFL's restrictive trade practices. Clarett alleged the Rule was an illegal restraint fo trade because the teams had agreed to exclude a broad class of players from teh NFL labor market. 2 provisions of the CBA are at issue in this case: Article III §1: which provides that the "Agreement represents the complete understanding of the parties on all subjects covered herein. allowing them file an antitrust lawsuit. APPLICATION: Scope of Nonstatutory Labor Exemption:(p541) Court cites the Brown Case that the labor exemption is limited to mandatory subjects of collective bargaining and it covers only conduct that arises from the process. -Notes. 9th Cir. Non-statutory labor exemption: NFL Argues: -that the Eligibility Rule is immune from antitrut scrutiny based on what has come to be known as the nonstatutory labor exemption. (only 6. 32 . ISSUE: 1.. 3)The policy favoring collective bargaining is furthered to the degree necessary to override the antitrust laws only where the agreement sought to be exempted is the product of bona fide arm's length bargaining..(542) -Those who are categorically denied eligibility for employment cannot be bound by the terms of employment they cannot obtain.the provisions of the CBA and the Constitution and Bylaws of the NFL Clarett and the NFL disagree on whether: the 2 provisions establish that the NFL and the Players' union actually bargained over the terms of the Constitution and Bylaws-->(which contained the elgibility rule) OR -whether the groups merely bargained away the NFLPA's ability to bargain voer or challenge the Bylaws' provisions. 8. The Eligibility Rule: -States only 3 full college seasons have elapsed since high school graduation are required in order to file an application to NFL to be drafted. the exemption can only cover actions that affect employees w/in the bargaining unit or those seeking to become employees and who will therefore be bound by those actions. Court cites Mackey for the legal principle of the 3-factored test to determine whether the exemption applies: (p541)-but not used in 2nd Cir.. 2) federal labor policy is implicated sufficiently to prevail only where the agreement sought to be exempted concerns a mandatory subject of collective bargaining.. Whether the non-statutory labor exemption applies to the NFL's age eligibility requirement for those entering the NFL draft?-NO RULE: -The labor laws and exemption cannot be used to shield anticompetitive agreements between employers and unions that affect only those outside of the bargaining unit. use this) 1)Labor policy favoring collective bargaining may potentially be given pre-eminence over the antitrust laws where the restraint on trade primarily affects only the parties to the collective bargaining relationship. Court states: it has never regarded the 8th Cir. NFL then filed emergency appeal in 2nd Cir. hours. rules governing the draft are protected.Rule Does Not address a Mandatory Subject of Collective Bargaining: -The Rule provides that for college players seeking special eligibility. NFL-Clarett II . Motion for stay is denied. Clarrett v. or conditions of employment. test in Mackey as defining the appropriate limits of the nonstatutory labor 33 . are able to act jointly in setting the terms and conditions of players' employment and the rules around these terms. 2004 Case Brief -overrules Clarett I in favor of barring Clarett from Draft FACTS: -P-Clarett argues NFL clubs are horizontal competitors for the labor of pro football and thus may not agree taht a player will be hired only after 3 years of full football seasons have elapsed following player's high school graduation. Williams case-(involved CBA about negotiating player salaries. -Court notes all 3 cases involve wages and conditions of employment and thus.3d 124. CONCLUSION: Thus. etc. are mandatory subjects of bargaining. which is provided for and promoted by federal labor law and that NFL clubs are a multi-employer bargaining unit. without risking violations of the antitrust laws. Nonstatutory Labor Exemption Cannot Apply to Those Who Are Excluded from the Bargaining Unit: -Exemption is inapplicable according to court because the Rule only affects players. Rule violates antitrust laws and Clarett is eligible for the 2004 draft.-p 542 It cites. like Clarett. hours. and Caldwell case-(P challenged his discharge of employment). the Wood case-(rookie for NBA was held to minimum rookie salary due to CBA). stating: "Clarett's eligibility was not the union's to trade away" NFL Fails to Show Rule Arose from Arm's Length Negotiations: The Rule was first adopted in 1925 and the Players' Association was not formed until 1956 and the first CBA was not adopted until 1968. NFL cited 3 cases to stand for that the draft itself is protected by nonstatutory labor exemption and thus." and that wages. who are complete strangers to the bargaining relationship. "at least 3 full college seasons must have elapsed since high school graduation"-->Court states: nowhere in this rule is there reference to "wages. -D-NFL argues that it is organized around a CBA relationship. 2d. 369 F. -Court distinguishe's Clarett's situation from Wood. affect only those who re employed or eligible for employment. -From these facts it seems clear that the Rule could not have arisen from the CBA process and the NFL offers no evidence that the Rule was addressed during the CBA negotiations in 1993. Prospective NFL players no longer have the right to negotiate directly with the NFL teams over the terms and conditions of their employment.--->thus the district court below erred. Thus. the union or the NFL could have forced the other to the bargaining table if either felt that a change was warranted.. 34 .. labor law prohibits Clarett from negotiating directly the terms and conditions of his employment with any Thus. the union or the NFL could have forced the other to the bargaining table if either felt that a change was warranted..) -The players union's representatives posseses "powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents. -Thus. *Clarett fails to contend that the NFL's draft eligibility rules work to the disadvantage of the NFL's competitiors in teh market for pro football or in some manner protect the NFL's dominance in that market.. -He challenges the eligibility rules only on the ground that they are an unreasonable restraint upon the market for players' services.and an NFL club would commit an unfair labor practice were it to bargain with Clarett individually w/out the union's consent. -Clarett next argues: because the rule excludes him from entering the market altogether. court need not decide whether the Mackey factors apply because Mackey factors characterize teh limits of the exemption in cases in which employers use agreements with their unions to disadvantage their competitors in the product or business market. -Simply because eligibility rules work a hardship on prospective rather than current employees does not render them impermissible . it constitutes a per se antitrust violation. ISSUE: -Whether subjecting the NFL's eligibility rules to antitrust scrutiny would "subvert fundamental principles of our federal labor policy"?-YES RULE: p 548-The reach of labor law policies extends as far as is necessary to ensure the successful operation of the collective bargaining process and to safeguard the "unique bundle of compromises" reached by the NFL and the players' union as a means of settling their difference. instead the CBA process with the players' union and the NFL governs this aspect.NFL club. 1. APPLICATION: --->Eligibility rules cannot be viewed in isolation because their elimination might well alter certain assumptions underlying the collective bargaining agreement between the NFL and its players union. (p546)-Because NFL players have unionized and have selected the NFLPA as its exclusive bargaining representative.exemption... (p546)-Eligibility rules are mandatory bargaining subjects -(p547)-(the union agreed to waive any challenge to the Constitution and Bylaws and thereby acquiesced in the continuing operation of the eligibility rules contained therein--at least for the duration of the agreement. 2) then the burden shifts to the D to offer evidence of the pro-competitive "redeeming virtues" of their combination.. 306 F. then the burden shifts back to P for it to demonstrate that any legitimate collaborative objectives proffered by the D could have been achieved by less restrictive alternatives.D. -The NFL represents an unparalleled opportunity for an aspiring football player in terms of salary.N. ISSUE: RULE: Quick Look Rule of Reason Analysis-is appropriate where the likelihood of anticompetitive effects can easily be 35 . courts employ a 3 step. NFL .Y. publicity. golf. Clarett's antitrust claim merits: Application of Rule of Reason:-p 551 -In evaluating a rule of reason case on summary judgment. Clarett v. P bears initial burden of showing the challenged action has had an actual adverse effect on competition as a whole in the relevant market. 3. because they generally are not unionized who engage in cba--->forming an athletes' association and entering into agreements with tournament organizers. S. etc. 3) if D can prove the redeeming virtues. endorsement opportunities and level of competition. boxing. (those less prejudicial to competition as a whole. 2004 Case Brief Merits of Clarett's antitrust claim from original decision -important for Rule of Reason procedural analysis FACTS: The average starting running back in the NFL amkes only slightly less than the average teams do in the CFL and the AFL.Supp.CONCLUSION: -p 548-To hold the eligibility rule in violation of antitrust laws would contradict prior decisions recognizing labor law policies that warrant withholding antitrust scrutiny are not limited to protecting only explicit terms contained in collective bargaining agreement§. 2d 379. does not generally constitute CBA activities. Continued Viability of Antitrust Litigation in Player-Management Conflicts Topic Notes • Courts generally hold that the nonstatutory labor exemption does not bar an antitrust challenge by nonparties to collective bargaining agreement terms that have anticompetitive effects outside the labor market for players' services (Philadelphia Wold Hockey Club Case) • Nonstatutorty labor exemption likely does not apply to individual-performer sports like tennis. burden-shifting test: -1)Under this test. 2)competition in the market in which the victim attempts to sell his services is injured. -Court also says the quick look rule of reason is appropriate in this case. blanket restriction based on time and age. CONCLUSION: See note 2-Single Entity Defense-p 555: Structure of MLS-prevents it from being subject to antitrust action under §1 of Sherman because it is legally defined as a limited liability corporation controlling player contracts. 1st Circuit-bottom p 556 disagrees. the MLS cannot violate §1 of the Sherman Act.-protecting younger players from injury 2.ascertained and an observer with even a rudimentary understanding of economics could conclude that the arrangements in ? would have an anticompetitive effect. established own private government. (similar to per se. protecting younger persons from injury has nothing to do with procompetitive benefits. protecting the NFL from costs entailed by such injuries. -Court says true in Clarett case that the NFL is a monopoly and is implementing a primary boycott. the individual members of a league have. because the restriction is blatant and Clarett has thus established a violation of Sherman Act §1. protecting from injury other adolescents who would over-train. Thus. the league could give individual potential players examinations and then determine if they were ready to go pro. Court says. All-Pro Management-where the court held the NBA's 4-year college rule constituted a "primary" concerted refusal to deal wherein the actors at one level of trade pattern (NBA teams) refuse to deal with an actor at another level (those ineligible under the NBA's 4-year college rule-->thus illegal and unreasonable restraint of trade Harm resulting from a "Primary" Boycott is 3-fold: 1)victim of the boycott is injured by being excluded from market he seeks to enter. thus even if the restraint on trade is unreasonable. *This is only true wehre the members of the combination possess market power in a degree approaching a shared monopoly. as a single entity. in effect. Less Restrictive Alternatives To the Eligibility Rule exist: -Court says instead of an arbitrary. as before.-protecting NFL's entertainment product from adverse consequences due to injuries 3. Rule Has No Legitimate Procompetitive Justification: -NFL offered 4 justifications for procompetitiveness of the eligibility rule 1. that the NFL has not appropriately defined its market under theory #2 and the NFL's desire to keep its own costs down is not a legitimate procompetitive justification. 4. but at a more intermediate level) APPLICATION: Eligibility Rule as Naked Restraint of Trade: -Court analogizes Clarett's case to Denver Rockets v. 36 . the Court found for Clarett. 3)by pooling their economic power. C. Union's Duty of Fair Representation Topic Notes p 581: • NLRA grant to a union exclusive negotiating and other rights to act on behalf of all members of the CB unit. • 1944-SCOTUS held that the NLRA implicitly required a union to fairly represent all members of the collective bargaining unit. • NLRB has determined that a union's breach of its duty of fair representation is an unfair labor practice. Miranda Fuel Co. case (1962) Hiring Hall Concept:-duty of union hs been extended to include incoming rookie players. Peterson v. Kennedy , 771 F.2d1244, 9th Cir., 1985 Case Brief p 581 P-J. Peterson D-NFL Players' Association and 2 of its attorneys. FACTS: James Peterson brought suit against the NFLPA alleging the union, through its attorneys, had furnished him with inaccurate advice upon which he detrimentally relied, pursuing a grievance against his ex-ballclub Tampa Bay Bucs. District Court-granted judgment notwithstanding the verdict for D's after the jury decided in Peterson's favor. Peterson appealed. P's breach of duty claim is based principally on allegations that the union, through its representative, erroneously advised him to file an injury grievance and that the union failed to rectify its error while it had time. -Viewed in a light most favorable to P, the evidence at trial established that one of the union reps, after being informed that Peterson's 1977 K contained an injury protection clause, advised Peterson's agent to file an injury grievance against the Bucs and advised Peterson to designate his claim as an injury grievance. The union failed to recognize its error w/in the 60 day grace period in which a non-injury grievance could have been timely filed. -Union reps assured Peterson on many occasions during the 60 day period that the union was handling everything for him. Thus, Peterson detrimentally relied on this advice and failed to file the necessary non-injury grievance. The district court concluded the evidence presented was legally insufficient to sustain the jury's verdict. ISSUE: RULE: p 582-The duty of fair representation is a judicially established rule imposed on labor organizations because of their status as the exclusive bargaining representative for all of the employees in a given bargaining unit. 37 A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is "arbitrary, discriminatory, or in bad faith" Mere negligent conduct on the part of a union does not constitute breach of the union's duty of fair representation. A union's conduct must be so egregious as to be arbitrary to give rise to a breach of duty claim. -A union acts arbitrary when: it simply ignores a meritorious grievance or handles it in a perfunctory manner... (ex: like failing to conduct a minimal investigation of a grievance that is brought to its attention..conduct is w/out rational basis) APPLICATION: -In Robesky-Held: union breached duty because its unintentional mistake was arbitrary if it reflected a "reckless disregard" for the rights of the individual employee... -Court has never held that a union has acted in an arbitrary manner where the challenged conduct involved the union's judgment as to how best to handle a grievance. -Union did not breach its duty of fair representation to Peterson as a matter of law.-->affirm district court's conclusion -Application of rule(-Because a union balances many collective and individual interests in deciding whether and to what extent it will pursue a particular grievance, courts should accord "substantial deference" to a union's decisions regarding such matters.) -The duty of fair representation is designed to ensure that unions represent fairly the interest of all their members without exercising hostility or bad faith toward any. CONCLUSION: -Sound policy reasons militate against imposing liability on unions for errors of judgment made while representing their members in the CBA. Arbitration and Alternative Dispute Resolution Sports Law p330-352, 612-655 Regulating Olympic and International Athletes: Court of Arbitration for Sport (CAS) 1. Doping Violations and Sanctions USA Shooting and Q. v. International shooting Union (ISU) (Quigley) p334 Facts: US shooter about to win gold. The night before the last event, he became extremely ill, and took some medication. In that medication, there was a banned substance. He ended up winning the medal the next day, and the ISU wishes to take his medal away. They wish to impose a strict liability test for banned substances. Holding: the language of the statute within the governing body does not include a strict liability test when it comes to banned substances. Therefore, shooter retains his medal, and International Shooting should change the language to strict liability, if that’s how they want to enforce it. Rule: The default rule will be intent, unless otherwise specified. There is no strict liability allowed without notice. 38 Federation Internationale De Natation Amateur (FINA) p339 Facts: Same case as above. Swimmer has banned substance and wishes to challenge stripping of the gold. Holding: FI has strict liability rules within their code. Therefore, she had notice and cannot get her medal back. Rule: If the rules contain notice for strict liability for banned substances, then the athlete may not get the medal back. 2. Disputed Competition results Yang Tae Young v. International Gymnastics Federation p348 Facts: In gymnastics they use a “code of points.” The judges gave Yang the wrong starting value for his routine. Holding: For the reasons below, the appeal was dismissed. Rules: For the score to be overturned there must have been some evidence of preference for or prejudice against a particular team or individual. You cannot review or arbitrate a referee’s call unless it is induced by fraud or corruption. There is a good faith premise when it comes to a referee’s call. The solution for a disputed call does not lie within arbitration, but within the sport’s own rules. Labor Law and Labor Relations: Labor Arbitration 1. Wide Impact Arbitration Introduction- In Baseball before free agency, a player was tied to one club through the Reserve Clause and the NSLE. Owners could perpetually renew a player’s option year. Until the 1970 CBA, the Commissioner was the final arbiter of disputes, but in that CBA, the players gained the right to go to binding, impartial arbitration. MLB- Players didn’t win free agency in the courts (Flood), but won it back in arbitration (Messersmith and McNally) NFL (and all pro sports) – Players won free agency in the courts (Mackey), gave it back in CBA, but won it again in the 1992 CBA. National and American League Professional Baseball Clubs v. Major League Baseball Players Assoc. p614 Messersmith and McNally (NALPBC v. MLBPA) Facts: These pitchers finished their contract years in 1975 and played out their option years in 1976 (pursuant to CBA clause 10A). The clubs tried to renew the option year, but the players balked and asked for arbitration. Issue: Is this dispute over the option year eligible for arbitration, and if so, is the perpetual renewal valid? Holding: 1) This clause should be arbitrated under S. CT’s holding in The Steelworkers’ Trilogy, which creates a heavy presumption of arbitrability - matters are excluded from arbitration only if the CBA explicitly provides. Here, the CBA did not discuss the reserve system, so it was a proper subject of arbitration. (2): The option year clause of the player’s contract does not create a perpetual reserve system. A contract must explicitly give the owner unlimited rights to renew. Here, the option year is for one year only, and Free Agency begins. 2. Defining the Scope of Judicial Review Kansas City Royals v. Major League Baseball Players Assoc. p618 -Good illustration of how grievance arbitration works in sports. Facts: Major league baseball team brought action against association of major league baseball players seeking to have award of arbitration panel in favor of the free agent status of two major league baseball players who had played out their renewal years set aside. The other 23 major league baseball teams intervened. The District Court ordered the award of the arbitration panel enforced and the baseball teams appealed. Holding: The Court of Appeals held that arbitration provision of agreement between the players' association and the team owners was broad enough to cover the dispute in question; that history of negotiations of the instant contract and prior contracts did not evince a sufficiently strong intent not to arbitrate grievances involving the reserve system as to overcome the presumption of arbitrability; that the documents in question were susceptible of the interpretation given to them by the arbitration panel; that the decree did not impermissibly operate against entities not party to the arbitration proceedings or the district court action; and that the decree was not vague and indefinite as to the act or acts which it enjoined. 39 Holding: The District Court ordered enforcement. Issue: Did the Court of Appeals err in reversing the District Court's denial of a baseball player's motion to vacate an arbitration award and in directing the arbitrator to enter judgment in favor of the player. on behalf of Player Latrell Sprewell and Warriors Basketball Club and NBA p638 Facts: NBA player attacked his coach. the Association and Clubs entered into an agreement. Shaw signed a one year contract with the Celtics. The Celtics filed action for enforcement of arbitrator's decision that player had to keep his promise to cancel his commitment to play for Italian basketball team so that he could play for domestic team instead. where the arbitrator denied the player's claim? Holding: The Court reversed the Court of Appeals' determination because it conflicted with the Court's cases limiting review of an arbitrator's award entered pursuant to an agreement between an employer and a labor organization and prescribing the appropriate remedy where vacation of the award is warranted. 40 . Rule: Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. the free agent market becomes the benchmark for all other player salaries. At the end of January 1990. The Court of Appeals held that: (1) arbitrator's decision had plausible basis. where. the arbitrator determined that Garvey did not receive a contract extension due to collusion and found that Garvey had not shown a specific offer of extension. Shaw signed a two-year contract to play with an Italian team. which provided funds and framework to resolve individual player's claims. Garvey p622 Facts: After the Major League Baseball Players Association filed grievances against the Major League Baseball Clubs. Even 'serious error' on the arbitrator's part does not justify overturning his decision. To cover damages. but allowed Sprewell to start the next season…so he shortened the suspension slightly. In 1989. the Association denied Garvey's claim. v. under the arbitration system. The player appealed the suspension. arbitrators found that the Clubs had colluded in the market for free-agent services in violation of the industry's collective bargaining agreement.the MLBPA didn’t want to flood the market and drive salaries down . Contract Dispute Arbitration a. The appellate court. (2) domestic team was entitled to preliminary injunction. under the Labor Management Relations Act." 3. Il Messaggero Roma. Steve Garvey. and player appealed. Shaw told the Celtics he planned to play for Il Messaggero during the 1990 season. submitted a claim alleging that the San Diego Padres did not extend his contract to the 1988 and 1989 seasons due to collusion. directed the arbitration panel to enter an award for Garvey because it concluded from the arbitration proceedings that an offer was made to Garvey and that it was withdrawn due to collision. Shaw signed a 5 year deal with the Celtics. In June of that year.Rule: There is a heavy presumption of arbitrability and of the correctness of an arbitrator’s award if it emanates from the CBA. 4. and (3) expedited procedures for enforcing arbitration agreement were proper. Holding: The Arbiter upheld the suspension for the remainder of the 97/98 season. b. Salary Arbitration Today: Free Agency with salary arbitration. as here. he is construing a contract and acting within the scope of his authority.also. Under the framework. this way. Major League Baseball Players Assoc. Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Failure to Honor Contract and Remedies for Enforcement Boston Celtics Limited Partnership v. In NALPBC v. Brian Shaw p634 Facts: In 1988. Ultimately. MLBPA (above) The owners and players agreed free agency after 6 years of service . Agreeing. a first baseman. the Court of Appeals reversed the District Court's denial of Garvey's motion to vacate the arbitrator's award. Club and League Power to Discipline NBA Players Assoc. The NBA commissioner suspended him for one year. Sprewell v. (2) arbitrator did not exceed scope of his authority in fashioning originative remedy. d. A panel consisting of two owner representatives and two player representatives convened. 41 .Rule: The only circumstances under which the penalty imposed by management maybe set aside are those where discrimination. Rule: Where it is not a breach of contract (here there was no breach. He started the requisite 30 games and was entitled to a 10000 bonus at the end of the season. is required to be in writing. Arbitration Between NBA (Chicago Bulls) and National Basketball Players Assoc. His skill/performance was judged to be unsatisfactory and he was released. The next week Pastorini signed with the Rams. (4) player failed to state cause of action under statute guaranteeing equal rights to make and enforce contracts. Holding: The Court of Appeals held that: (1) arbitrator's award upholding punishments drew its essence from collective bargaining agreement (CBA). of Frauds: An oral modification of a contract which itself. or capricious and arbitrary are proved…there must have been abuse of discretion. (3) California's public policy against race discrimination did not require vacatur of award. The GM denied it. (5) player failed to state cause of action for conspiracy to deprive of rights or privileges. the concept of offset by way of mitigation is not applicable e. (7) team and association did not violate player's common law right to fair procedure. The Raiders claimed that they were no longer liable for his contract. (James B. Each had two years left on their contracts. (Dante Pastorini) and NFL (Oakland Raiders) p651 Facts: There was a contract for the 80-83 seasons. the Raiders simply released him) or a case seeking damages. Golden State Warriors p644 Facts: A professional basketball player sued his former team and professional basketball association challenging punishments imposed on him for his physical attack on team's head coach. (Robert Love) p650 Facts: Love’s agent alleged that the general manager of the Bulls promised to renegotiate Love’s contract at the end of the season. 3) The Patriots had n obligation to renegotiate or extend the existing contracts. 2) The players violated their contracts. Rule: Ill. and (9) claim under California's Unfair Practices Act was not preempted by LMRA to extent it was premised on alleged instigation of media campaign designed to portray player in false and negative light. Then the Rams released him and he signed with the Eagles. Issue: Whether the Raiders is entitled to offset against its guaranteed salary obligations to Pastorini the amounts he received from other NFL clubs after his release by the Raiders in Sept. unfairness. Renegotiation of Contracts Arbitration Between NFL Management Council and John Hannah and Leon Gray p648 Facts: Two players staged a walkout because they wanted contract extensions. The Raiders must pay. Mitigation of Damages Arbitration Between NFL Players Assoc. He demanded his salary for the next three years. c. Holding: 1) There were contracts between the players and the team. The NFL filed a grievance. Issue: Whether the Chicago Bulls had an oral understanding to renegotiate its contract with Bob Love? Holding: The arbiter held that there had been no promise on the part of the GM. The Team did not pay. (8) claims for intentional interference with contract and business relations were preempted by Labor Management Relations Act (LMRA) only to extent they were based upon alleged violations of collective bargaining agreement (CBA). Stat. is unenforceable. Bonus Provision Arbitrations Arbitration Between Major League Baseball Clubs (Cleveland Indians) and Major League Baseball Players Assoc. 1981? Holding: The concept of offset by way of mitigation is not applicable in this instance. It argued that the “end of the season” language was ambiguous. Bibby) p653 Facts: Bibby and the Cleveland Indians entered into a two year contract that provided for bonuses based on the number of games he started or number of innings pitched. (6) California's Unruh Civil Rights Act did not apply to player's punishments. Entertainment Law Grammer v. seeking to vacate arbitration award upholding settlement agreement under which actor was released from his contractual obligations with respect to theatrical motion pictures in exchange for extension of his obligations with respect to his television and commercial obligations. Holding: The Court of Appeals found that Marino had waived his right to object to the arbitration proceeding by his failure to protest the proceeding before arbiters were selected and performed their tasks. Plaintiffs have also sued Defendants Frontier Insurance Company (“Frontier”) and NAC Reinsurance Corporation (“NAC”) for breach of payment bond that made 42 . The Agency sued for two million dollars in unpaid commissions on his television work. Marquez v. Majority vote decides. (3) organization did not act in bad faith by negotiating union security clause that tracked NLRA language. The DC found that because the directors performed work and labored on the telecast they were owed payment. (2) organization’s negotiation of union security clause with language derived from NLRA section authorizing such a clause was not arbitrary. Holding: The Court of Appeals held that (1) arbitrator reasonably determined that variances between collective bargaining agreement (CBA) and settlement agreement did not void settlement agreement. identification. He negotiated an interim deal where the Agency would continue to represent him for TV. misapplied. Rule: Actor may not cite Rule Violations on the part of Agencies when the actor has previously waived the rule. authorship or completeness of any literary material to be considered. Rule: The Court of appeals outlined the three stages of WGA Arbitration process: 1) a committee conducts a hearing to decide disputes as to “authenticity. The SAG had initially rejected the interim contract. Rule: The SAG does not have to notify actors of their specific rights. holding that SAG had not breached its duty of fair representation because (1) union’s mere negotiation of union security clause tracking NLRA language does not breach duty of fair representation. 3) A Policy Review Board hears concerns by writers that there had been a dereliction of duty by the arbiters that they have misinterpreted. DGA v. (2) arbitrator reasonably determined that valid contract existed between actor and agency from time of signing of settlement agreement to time when renewal contracts went into effect. The Artists Agency Facts: Kelsey Grammer was dissatisfied with his representatives at the Artist Agency because they did not get him roles in films. Holding: The US Supreme Court disagreed. Marino objected to the arbitration procedure. Marino got a hearing before the PRB (Policy Review Board).” 2) Three confidential arbiters read materials submitted by the writers and the film company to decide who is entitled to screen credit. or violated WGA policies. After one year. Grammer cited SAG Rule 16(g) “contracts … not complying with these regulations … shall be void. SAG Facts: Marquez alleged that SAG (Screen Actors Guild) breached its duty of fair representation under the National Labor Relations Act (NLRA) by negotiating and enforcing a flawed union security clause and by failing to truthfully notify her about her NLRA rights. Nick Marino v. Grammer ended all ties with the Agency. but eventually accepted when the Artist Agency faxed over the Agreement to prove it was in Grammer’s best Interest. WGA Facts: WGA told Marino that Coppola and Puzo would get sole writing credit for the Godfather II. Millennium TV Network Facts: The DGA (Directors Guild of America) sued Millennium TV Network when it failed to pay several directors for their work in a 1999 New Year’s Eve Telecast that was later cancelled. Now Bibby is no longer bound and he is a free agent. but he could seek other representation for films. and (3) arbitrator reasonably determined that agency could be awarded commissions on consulting fees paid to actor while he worked on television series.Holding: The club was in default. and (4) challenge to grace period provision of union security clause fell squarely within primary jurisdiction of National Labor Relations Board. The arbitration panel decided for the Agency. The Actor appealed and sued talent agent. Marques argued that SAG should have provided and notified her with a 30 day grace period following her new employment before she was required to pay her dues. Article XX of both agreements provides for arbitration of disputes. Copyright does not protect mere facts. a member of Local 819 and a 25-year employee at WTTG-TV. Live transmissions are protected if they are simultaneously fixed (on videotape. Metromedia. It is the award rather than the specific reasoning that is reviewed. etc. Must demonstrate a minimal degree of creativity. ii. by modifying the agreement. Local 819 Facts: In 1973. Fixation – § 102(a) – A work must be fixed in any tangible medium of expression. Protectable Subject Matter (§ 102) – Requirements: a. Blank form doctrine a form that conveys no information and serves only to provide blank space for recording information contains no expression or section of information that could possibly warrant copyright protection Creativity is a way to escape both blank form and merger c. I. II. and because his award clearly drew its essence from the agreement. Rule: The question of interpretation of the collective bargaining agreement is a question for the arbitrator. i. as long as it’s in stable form that is readable by man or machine. Copyrights Copyrights are available to original works of authorship that are fixed in tangible form. and by substituting his judgment for the business judgment of plaintiff. The Union takes the position. copyright vests initially in the author. Metromedia and Local 819 entered into a collective bargaining agreement covering three categories of employees-senior technicians. (Metromedia) seeks to vacate an arbitration award. a. Plaintiff alleges that the arbitrator exceeded his powers by ignoring bargaining history and the practice of the parties under the collective bargaining agreement. and has supported it with some authorities. Facts and Ideas NOT protected – § 102 (b) – Protects the expression of an idea. and technicians. Ownership Typically. Originality – A work of authorship must be original to the person claiming protection. Merger doctrine – in some cases there may be so few ways to express an idea that the mode of expression merges w/ the idea. and so far as the arbitrator's decision concerns construction of the contract. was demoted from technical director to technician for disciplinary reasons. Creator controls only the form in which the idea is expressed. It is the arbitrator's construction which was bargained for. Inc. Exclusive Rights granted to owner by § 106 – Copyright owner may exclude others from doing any of the following w/o his permission: 43 . Doesn’t matter how as long. Holding: The DC granted DGA’s motion for summary judgment and held NAC and Frontier liable. for example). companies or corporations who performed work on the telecast. unless: III. b. i. it must be enforced. The Court denies plaintiff's motion for summary judgment and grants defendant's motion for summary judgment. that when the contract does not retain the right to demote. Walter Anderson. idea in public domain. the Employer contracts away such right as such an action affects the seniority rights of the employee involved and other employees in the same category. the courts have no business overruling him because their interpretation of the contract is different from his. Once work is revealed. technical directors. Holding: The parties bargained for the arbitrator's construction. The author must not have copied from another ii. Metromedia v. Often found in utilitarian objects and games rules.the two companies liable as co-sureties to any and all persons. but not the idea itself. i. Public transmissions are also considered public performances. To reproduce by making copies or phonorecords – Such copies (and derivative works) must be “actual reproductions. To perform the work under certain circumstances – i. etc. but that property right disappears when the underlying information is in the public domain -The PGA Tour controls the right of access to the scoring information and can place restrictions on those attending the private event. Fair Use Four Factor Test found in § 107 i. The owner of a phonorecord may display or play it publicly w/o violating the rights of the owner of the copyright to the sound recording but still must get permission from owner of copyright to the musical composition underlying the sound recording. a. or lending. The nature of the copyrighted work – Fact-based works more susceptible to fair use than works of fiction. likelihood of future harm may be presumed -Although signal of “black-out” football game was received by satellite dish. ii. This right does not extend to sound recordings. Seemingly Most important factor. the buyer can dispose of it as he wishes. Owner of a copy may display it to people present at the place were the copy is. b. 3. To display the work – The showing of a copy of the work either directly or by means of a film. d. Need not be a % analysis. non-commercial use is more likely fair use than commercial use. iii. Traditional public performance right – Only the copyright owner may perform the protected work publicly. the more likely it’s fair use. ii. The purpose and character of the use – Private. 109(b). Not whether the sole motivation is monetary gain. and other non-profit uses. religious. §110. 2. COPYRIGHT (SPORTS) NBA v. The market effect on the copyrighted work – If market value is destroyed by fulfilling demand. To prepare derivative works – only copyright owner may make a transformed version of the original work (or license rights to do so to others) c. Motorola: -Athletic events are not copyrightable in themselves since they have no underlying script -The broadcast of athletic events can be copyrighted since the cameramen and director contribute creative labor to the telecasts Morris Communications v. e. Limited by the First Sale Doctrine (§ 109) Once a particular copy or phonorecord of a work has been sold. etc. McBee & Bruno’s: -If intended unauthorized use of copyright material is for commercial gain. taking the heart of work will not be fair use (unless it’s a parody).1. then no fair use. or any other device or process. rental. educational. iv. PGA Tour: -The PGA Tour has a property right (though not copyright) in the compilation of scores. To distribute copies or phonorecords of work – includes sales. § 114. This right does not extend to sound recordings. thus giving them a protectable property right in that information (not copyright) NFL v. § 114. slide. Exemptions for charitable. where only four people watched game 44 . . The amount and substantiality of the portion used – The less that’s copied w/o permission. a. lease.” not merely similar. there was no public performance in violation of Copyright Act. but whether user stands to profit from exploiting copyright without paying for it. does not apply to licenses. IV. television image. the Copyrighted Act is implicated and a district court possesses jurisdiction -Streaming copyrighted programs over the internet violates the copyright owner’s right to perform the works publicly and to authorize others to do so.NFL v. -Contributory Infringement: Helping others make copyrighted programs available to others over the internet with knowledge that third parties could and would further infringe owner’s copyrights COPYRIGHT (ENTERTAINMENT) LAW OF IDEAS Blaustein v. and an idea. Paramount: -In cases involving infringement. SCOPE OF COPYRIGHT PROTECTION Bleistein v. Anderson v. after voluntary communication to others. which compares the plot. highly delineated characters and dialogue -The second prong is the intrinsic test. and characters of the two works -The extrinsic prong has been expanded to include specific plot sequences. Donaldson: -Printing and engraving are not excluded from the useful arts. and a the actual motion picture in terms of form and manner of expression -Even if plaintiff’s ideas were used. TVRADIONOW Corp: -When an allegedly infringing act occurring without the United States is publicly performed within the United States. pace. -The first is the extrinsic test. sequence of events. -The intrinsic test is subjective and is based on the response of the audience to the look and feel of the two works. Columbia: -Courts will look at substantial similarities between a plaintiff’s submitted outline to a motion picture corp. Bradford Exchange: -Artistic originality is not the same thing as the legal concept of originality in the Copyright Act -A derivative work must be substantially different from the underlying work to be copyrightable -A picture created by superimposing one copyrighted photographic image on another is not “original” for copyright purposes 45 . Burton: -That a product of the mind has cost its producer money and labor and has a value for which others are willing to pay does not insure it protection as private property. theme. Gracen v. setting. mood. the use does not necessarily imply that the outline was protectable property. dialogue. less proof of similarity may suffice. is free to common use. -There is no individual property in abstract ideas Buchwald v. Mann v. Sylvester Stallone: -Two part test for determining whether an allegedly infringing work is substantially similar to the copyrighted work. The plaintiff must show that there is substantial similarity of expression between the two works in question. it has been held that an inference of copying may arise when there is proof of access to the material with a showing of substantial similarity -Where there is strong evidence of access. which congress is empowered by the constitution to promote by copyright laws -Pictoral illustrations are none the less within the protection of the copyright law because they are drawn from real life. Smashing Pumpkins: -Rock music performer was joint author of videotape of performance by his original band. but not its expression -Unconscious plagiarism is as actionable as deliberate plagiarism Willis v. Lee: -A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. oral non-exclusive copyright licenses are enforceable -A co-authorship claimant bears the burden of establishing that each of the putative coauthors (1) made independently copyright table contribution to the work. mutilation or alteration of his work even after transfer of copyright. C&C Entertainment v. there are separate copyrights: one in the musical composition.” -It is immaterial whether copyright owner anticipated all potential future developments of the above clause WORKS FOR HIRE Moran v. together with producer and editor -Musical content was of equal importance with visual elements Geisel v. intending that the defendant copy and distribute it. Lucasfilm: -A contract entered with owners of copyrighted songs for use in a motion picture and soundtrack can be sufficiently broad to encompass video disks and video cassettes if the agreement specifically gives the motion picture the right to exhibit. wherein he claimed to be beneficial owner. Diamond: -When a copyrighted song is recorded on a phonerecord. hands it over. and defendants have copied this development and not merely the broader outlines Goodman v. Poynter: -Owner of copyright upon entire contents of a magazine may validly assign copyright upon single picture or article in magazine -Moral rights (not part of American Law) provide the author with the right to object to any distortion. -Generally. MGM: -Fair use may permit copying of ideas or theme of copyrighted work. London: -Performance of announcer in dog food commercial was within scope of his employment and constituted a “work for hire” for purposes of announcer’s action alleging infringement. for copyright purposes. copyrights and all other rights pass with absolute and unconditional sale Newton v. exploit. HBO: -A stock character or basic character type is not entitled to copyright protection -No character infringement claim can succeed unless plaintiff’s original conception sufficiently developed the character. market and perform the motion picture perpetually throughout the world “by any means or methods now or hereafter known. Agee v. Paramount: 46 . and the other in the sound recording -A taking from a copyrighted work is de minimis if the average audience would not recognize the misappropriation Platinum Records v. and (2) fully intended to be co-authors Morrill v. Rios-Sanchez: -A non-exclusive license may arise by implication where the creator of a work.Nichols v. Universal: -Property of playwright by virtue of copyright is not extended to ideas Sheldon v. at a defendant’s request. McDonalds: -To determine copyright infringement. extent of hired party’s discretion over when and how long to work. in the form of a reproduction of the works. Additionally. skill required. Harrisongs: -Inasmuch as composer of song had access to an earlier successful song. irreparable injury is presumed. and the songs were the same with different words. there must be substantial similarity not only of the general ideas but of the expressions of those ideas as well MGM v. method of payment. Reuters: -Copyright Act does not apply extraterritorially -For the Copyright Act to apply. provision of employee benefits. and requires more than the making of a valuable and copyrightable contribution -Whether contributor may be deemed coauthor of a joint work will depend on criteria such as whether contributor exercised control over the work. Spike Lee: -A “joint work” requires each author to make an independently copyrightable contribution to the disputed work -Authorship is a statutory requirement for finding that a contributor has rights in a joint work. hired party’s role in hiring and paying assistants. whether hiring party is in business. took place in the United States Bright Tunes v. Aalmuhammed v. not just bare possibility -The more popular the copyrighted work (in terms of audience and geographic scope). or setting or basic plot premises are “scenesa-faire” -To demonstrate access to copyrighted work. incidents. Texas Television: -Factors relevant in deciding whether hired party is employee versus independent contractor for work-for-hire copyright purposes are: the hiring party’s right to control manner and means by which product is accomplished. American Honda: -Plaintiff who holds copyrights in film series acquires copyright protection as well for expression of any significant characters portrayed therein -Situations. whether putative coauthors made objective manifestations of shared intent to be coauthors. copyright was infringed even though composer did not deliberately use the music of the original song 47 . duration of relationship between parties. whether work is part of regular business of hiring party. tax treatment (no one factor is determinative) -Co-owner of copyright cannot be liable to another co-owner for infringement of copyright INFRINGEMENT Kroft v. there must be reasonable possibility to view plaintiff’s work. and whether audience appeal of the work turns on both contributions. source of instrumentalities and tools. whether or not reproduction involves synchronization -Merely transmitting sound recording to public airways does not constitute “distribution” in violation of copyright holder’s distribution rights. there must be ownership of the copyright and access to the copyrighted work. or events that naturally flow from common theme. such that share of each in its success cannot be appraised Quintanilla v. the stronger the presumption of access by a defendant -Once copyright holder has shown likelihood of success on merits based on access and substantial similarity.-Commercial entities may not reproduce sound recordings on sound tracks of audiovisual works. location of work. whether hiring party has right to assign additional projects to hired party. warranting preliminary injunction Los Angeles News Service v. at least one alleged infringement must be completed entirely within the United States -A copyright owner may recover damages for international distribution of the works based on the theory that an act of direct infringement. Acuff-Rose: -For purposes of determining whether parody of copyrighted work is “fair use. Houghton Mifflin: -Copyright does not immunize work from comment and criticism -A work is a “parody” for purposes of fair use analysis. Bolton: -Circumstantial evidence of reasonable access to a copyrighted work (for infringement purposes) is proven in one of two ways: 1) a particular chain of events is established between the plaintiff’s work and the defendant’s access to that work. such as through dealings with a publisher or record company. as opposed to scholarly or journalistic work -Fair use does not necessarily become infringing at the moment it does more than simply conjure up another work. MCA: -Absent evidence of access to allegedly infringed copyrighted work. repeated and exploitative copying of copyrighted works. like commercialism.” inquiry focuses on whether new work merely supersedes object of original creation or whether and to what extent it is “transformative” and alters original work with new expression. the parodic character of the work must be reasonably perceived Ringgold v. or 2) the plaintiff’s work has been widely disseminated -Under “inverse ratio rule” a court requires a lower standard of proof of substantial similarity on a copyright infringement claim when a high degree of access is shown FAIR USE SunTrust v. may constitute a commercial use -Uploading and downloading of digital audio files containing copyrighted music is not fair use because such use is not transformative. that might weigh against fair use -To be fair use. Napster: -Direct economic benefit is not required to demonstrate a commercial use. and their use could impair the market for the copyrighted work. “striking similarity” between two works may give rise to permissible inference of copying Three Boys Music v. how much more is reasonable will depend on (1) extent to which work’s overriding purpose and character is to parody original or. the less significant are other factors. A&M Records v. even if the copies are not offered for sale. or the future market if the owner decides to enter into the digital music download market. (2) likelihood that parody may serve as market substitute for the original. they were copied in their entirety. once enough has been taken to assure identification. rather. in copyright infringement case Kulik Photography v. if its aim is to comment upon or critize copyrighted work by appropriating elements of original in creating new artistic. the original works were creative in nature. Likelihood of Confusion Test 48 . TRADEMARKS a. Campbell v. in contrast.Baxter v. BET: -Copying that has occurred to such trivial extent as to fall below quantitative threshold of substantial similarity may be considered de minimis in copyright context -Concept of “de minimis” is inappropriate as component of fair use analysis. meaning or message -The more transformative the new work is. Cochran: -Attorneys’ use of copyrighted photograph in nationally televised criminal trial was fair use. i. offering for sale.C. or to cause mistake or to deceive TRADEMARKS (SPORTS) Indianapolis Colts v. the court might still consider P’s right to reserve that option in the future. Degree of similarity between P’s and D’s mark iii. counterfeit. Strength of P’s TM The stronger the mark. Sophistication of the buyers The more sophisticated. 3) In commerce. and Esso 3. those who make subsequent use may be required to take reasonable precautions to prevent confusion. Cyclone vs. D’s good faith in adopting the TM Did D intentionally copy just to cash in on P’s goodwill? Quality of D’s product or services / channels If use their ®s in same or related services. Only so much of the TM may be used as is reasonably necessary to ID the good/service 3. Dallas Cap & Emblem: -A cause of action for the infringement of a registered trademark exists where a person uses any reproduction. Similarity of Appearance – overall appearance 2. then there is a greater likelihood of confusion. vi. or to cause mistake or to deceive.S. The user must do nothing that would suggest sponsorship or endorsement. Similarity of Sound – sounds of words.g. ix. iv. Similarity of Meaning – Mental image evoked by TM may overpower any differences between them (e. 4) In connection with the sale.O. copy or colorable imitation of a mark. offering for sale. but highly persuasive. 1. in practice. Gato) Proximity of goods or services Goods likely to be sold in the same or same kind of store/area Likelihood that P will bridge the gap How likely P is to begin selling the stuff that D is trying to sell. § 1114) of a registered trademark exists where a person uses: 1) Any reproduction. Actual confusion Not necessary. The product/service in question must be one not readily identifiable without the use of the TM 2. viii. the more careful and exacting the purchasers will be. for example S. Cat vs. and less likely to be confused. because subsequent use of abandoned mark may well evoke continuing association with prior use. counterfeit. vii. 5) Where such use is likely to cause confusion. and the more costly the services.A. Board of Governors of University of North Carolina v. Metropolitan Baltimore Football Club: -Although in principle a trademark return to public domain when it is abandoned and it is appropriable anew. Helpingstine: -Fact that the public could no longer point to single source of the origin of goods bearing university’s trademarks did not establish that university had abandoned its marks NFL Properties v. Tornado. the more likely that consumer’s seeing the allegedly similar mark will be confused ii. Even if no immediate plans. especially where former owner of abandoned mark continues to market same product or service under similar name Boston Professional Hockey v. New Jersey Giants: 49 . 2) Without the registrant’s consent. distribution or advertising of any goods. The Nominative Use Test: 1. A cause of action for the infringement (under 15 U. distribution or advertising of any goods where such use is likely to cause confusion. copy or colorable imitation of a mark without the registrant’s consent in commerce in connection with the sale. v. a consumer need not believe that the plaintiff actually produced defendant’s merchandise and placed it in the market. there is no possibility that the marketing of a contest could have misled public into believing the defendant’s product was that of the plaintiff TORTS INJURY TO SPECTATORS • • • Spectators will not recover for injuries that result from ordinary and foreseeable risks inherent to a particular sport Spectators do not assume the risk of an arena/stadium operator’s failure to meet his duty of care Owners or operators are liable for conditions which cause harm to spectators if they knew (or should have known) condition existed which posed unreasonable risk Thurmond v.-In order to be confused as to the source or sponsorship of goods or trademark infringement. rather. Cincinnati Bengals (pgs 871/873) Facts > After an interception in a football game.877) Facts > Plaintiff suffers serious injuries in a triathlon when competitor cuts off her bike with his front tire and they crash Rule > Voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in 50 . Prince William Professional Baseball Club. NHL v. Pepsi-Cola Canada: -No infringement by defendants in their ambush marketing since plaintiffs’ sole product is hockey games while that of defendants is soft drinks. Thus. -In establishing the existence of a likelihood of confusion for the purpose of service mark or trademark infringement and unfair competition. Moser (p. a consumer’s belief that a plaintiff sponsored or otherwise approved the use of the mark satisfies the confusion requirement.863) Facts > Fan at a minor league baseball game gets hit in the face with a foul ball • Fan alleged negligence on part of stadium owners o Not enough warnings / protection from foul balls Rule > Assumption of Risk Doctrine > A person’s voluntary assumption of the risk of injury from a known danger operates as a complete bar to recovery for a defendant’s alleged negligence in causing that injury Application > A person attending a baseball game (even for a short period of time) understands the nature and extent of a known danger like being hit by a baseball INJURY TO ATHLETES Hackbart v. there is no requirement that incidents of actual confusion be shown and such evidence is unnecessary where other factors strongly suggest the likelihood of confusion. Inc (p. player who is kneeling on the field is struck in the back by opposing player • No intent to harm / acted out of frustration • Injured player did not complain to coaches or other players • Subsequently developed back problems and released by team Rule > Principles of law governing the infliction of injuries must not be disregarded simply because an injury is inflicted during a violent sport • Standard > Recklessness – choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man Application > Recklessness is distinguished from negligence in that the act is intended by the actor • Striking the player on his knees with his back turned was an intentional act which a reasonable man should realize the danger of serious injury • Departure from Assumption of Risk (to a small degree) for football Mark v. Louisville Municipal District (p.898) Facts > Student participating in a swim meet broke her neck when she dove into shallow end of pool • Alleged injury occurred because of failure by her coach to provide her with proper instruction on how to dive in shallow end Rule > In order to support a cause of action it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that his conduct was “totally outside the range of the ordinary activity” involved in teaching or coaching the sport • Duty > Coach or ports instructor owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student • Court applies Totality of the Circumstances standard Application > Risks are inherent in every sport.conduct so reckless as to be totally outside the range of activity involved in the sport Application > cause of action between co-participants “when players step outside of their roles as fellow competitors” and recklessly or intentionally inflict harm • No liability when injury causing action amounts to a tactical move that is reasonably foreseeable in the sport undertaken o Like in this case > trying to cut off other cyclist to gain advantage foreseeable LIABILITY OF EDUCATIONAL INSTITUTIONS HIGH SCHOOL Legal Duty of Care • • High school district not liable for injury to an apparently healthy athlete resulting from latent medical condition > Kerby v Elk Grove Union High To recover from school district > must prove tortuous conduct o Theory of negligence traditionally relied on o Duty owed to athlete by school district (in exercising reasonable care to protect student-athletes from injury) Giving adequate instruction in the activity Supplying proper equipment Making reasonable selection or matching of participants Providing non-negligent supervision Taking proper post-injury procedures to protect against aggravation of injury Policy > courts balance responsibility that emanates from custodial relationship between school and students with assumption of risk of injury on part of students • Kahn v.905) Facts > student who suffered a heatstroke during football practice sued the school district for negligence by the football coaches Rule > A government official will be immune from liability when the act being performed is discretionary as opposed to ministerial 51 . but coach has a duty not to increase risk • Coach reckless in this case o No instruction at all on shallow diving o Mortal fear to dive by student > coach told her she wouldn’t have to then pressured her right before the meet > would have dropped her from team Policy > Reckless standard appropriate to avoid ‘chilling’ of coaches role in pushing athletes Sovereign Immunity Prince v. East Side Union High School District (p. 105-157-166J (p. subject to the risk of carelessness on the part of the furnisher. further public goals of encouraging youth to participate in sports COLLEGE OR UNIVERSITY Kleinknecht v. and does not violate public policy it is valid Policy > Protecting volunteer coaches and managers from liability. court considers whether certain characteristics are present in the agreement > more of these characteristics in the agreement. not a contract of adhesion. 920) Facts > lacrosse player had cardiac arrest and died during practice • No trainers present / coaches didn’t know cpr • No communication device on field • Nearest training room 250 yards away • No history of medical problems Rule > A special relationship exists between a college and its intercollegiate athletes which imposes on the college a duty of reasonable care • Not required to guard against every possible risk. it’s invalid Policy > There are instances where public policy reasons for preserving an obligation of care owed by one person to another outweigh the traditional regard for the freedom to contract Sharon vs. 914) Facts > Cheerleader broke her arm after she and her dad signed a release • Release provided for option to purchase additional insurance through school Rule > If release is unambiguous. 911) Facts > Not many – looks like school required students to sign a waiver before participating in school sports Rule > Exculpatory agreement releasing school district from negligence is invalid if it violates public policy • In determining whether exculpatory agreement violates public policy. as well owners of land who permit their use for recreational purposes.Discretionary duties are those that call for the exercise of the public official’s judgment or discretion Ministerial duties is an act that is absolute and involving only the execution of a specific duty arising out of fixed facts Application > Coaches were exercising ordinary discretion in their supervision of practice The Validity of Liability Waivers • Determining the validity of liability waivers requires judicial reconciliation of a fundamental tension between contract and tort law • • Wagenblast v. but must take reasonable steps to guard against hazards that 52 . Odessa School District No. Gettysburg College (p. City of Newton (p. or at least any member coming within certain established standards o Party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the service because of the nature of the service/economic setting of the transaction o Party confronts the public with a standard adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence o Members of the public seeking such services must be placed under the control of the furnisher of the services. the likelier it violates public policy and is invalid o Agreement concerns an endeavor of a type generally thought suitable for public regulation o Party seeking exculpation is engaged in performing a service of great importance to the public (often a matter of necessity for some of the public) o Party holds itself out as willing to perform this service for any member of the public who seeks it. its employees or agents Application > These waivers essentially act as an expressed assumption of risk – but if release is against public policy per the characteristics. (2) for purposes of advertising. Appropriation of plaintiff’s name or likeness to defendant’s advantage.1034) Facts > Retired ballplayer’s likeness used in beer ad • Player is recovered alcoholic Rule > Elements of Commercial Misappropriation (common law) 1. Defendant’s use of plaintiff’s identity. BYU (p. did not see trainers for treatment • Continued to play after told by coaches to leave the game if pain increased • After tests revealed 3 herniated discs.927) Facts > Scholarship basketball player began experiencing knee pain • Coach kept playing him despite knowledge of condition Rule > College has a legal duty to exercise reasonable care towards its students • Duty encompasses the duty of college coaches to exercise reasonable care for the health and safety of student athletes Application > Playing a student athlete with a degenerative medical condition breaches the duty of a school to exercise reasonable care ATHLETES' PRIVACY. Resulting injury Application > the tricky prong is determining “likeness” (2nd) • A photograph must be “readily identifiable” as the plaintiff o When one views the photo with the naked eye can reasonably determine the person depicted in the photo is the same person complaining of the unauthorized use • Likeness is a visual image of a person other than a photo o Same “readily identifiable” standard as photo Case also cites CA civil code > (1) a “knowing” use.are generally foreseeable • Duty applies while student taking part in the sport Application > Foreseeable that an irreparable injury can occur to a student athlete if emergency measures inadequate Policy > University has a duty to provide a safe environment to participate in activity student was recruited to school for Orr v. and 4. and (3) a direct connection between the use and the commercial purpose 53 . Joe's College (p. 2. AND PUBLICITY RIGHTS ATHLETE'S RIGHT OF PUBLICITY Elements of Claim Newcombe v. Trustees of St. Lack of consent. commercially or otherwise.925) Facts > college football player hurt his back during practice • Despite orders from coach. REPUTATION. Adolf Coors (p. 3. player was referred to neurosurgeon who performed surgery • Player left after the season to play professionally in Finland • Alleged negligence in medical care Rule > The relationship between a college and its student athlete is not custodial in nature • Nature of the relationship is more contractual • Liability possible for negligent medical service Application > Failure by student to seek medical treatment in timely manner > not failure of school to provide proper medical care Searles v. . Christian Bros. and • With the intent to obtain a commercial advantage Application > the threshold legal question > whether the use of a person’s name and identity is “expressive” (fully protected) or “commercial” (generally not protected) • Different Tests o Relatedness test (restatement) > use of name and identity actionable only when the use is solely for commercial purposes and is otherwise unrelated to that person o Transformative test (CA) > use of celebrity status not actionable even if sole use is commercial if identity transformed or fictionalized o Predominant Use test (This case/MO) > determine if use is predominantly commercial or expressive to determine whether it is protected Policy > to prevent unjust enrichment by the theft of goodwill ETW Corp. and newsworthy matter in whatever form it takes Media’s right to report newsworthy events does not permit the unauthorized broadcast of a performer’s entire act. Inc. against deceptive and misleading use of words. v. Scripps Howard Broadcasting Doe a/k/a Tony Twist v. defendant company is misleading the public in that it is implying Mark Messier endorses their product 1st Amendment Limitations • • There is an inherent tension between the protection of an individual’s right to control the use of his likeness and the constitutional guarantee of free dissemination of ideas. Inc (p. symbols. • Without consent. or any combination thereof. which have been adopted by a merchant to identify his goods and distinguish them from those manufactured by others • 1st Amendment defense > Speech is protected even though it is sold for profit when it is expressive • Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighs the public interest in free expression Application > The presence of Wood’s image has artistic relevance to the work and it does not explicitly mislead as to 54 . threatening economic harm o Cannonball guy case > Zacchini v. names.Hillerich & Bradsby Co.1050) Facts > Tiger Woods sued an artist for false endorsement under the Lanham Act after he created a print using Woods and other past winners of the Masters golf tournament Rule > Lanham Act provides a right of action to persons engaged in interstate and foreign commerce. or devices. TCI Cablevision (p. and o Prove the message is likely to mislead the ordinary consumer Application > By putting Messier’s name on their blades. 1037) Facts > Company that had exclusive rights to use hockey player Mark Messier’s name on their hockey equipment sues another company using his name on their blade Rule > Lanham Act (sec. v. (p. Jireh Publishing. 43(a) • In order to succed in a claim that defendant is misleading the public o Prove what factual message or claim is conveyed to the ordinary consumer.1047) Facts > Hockey player called Tony Twist was known by fans as an “enforcer” or “goon” • The writer of the comic book Spawn created a character called Tony Twist that resembled the player’s attributes as a tough guy • Writer answered fan mail that it was based on Twist and many characters based on hockey players • Marketed the comic and other products to hockey fans o Spawn night at minor league hockey game > gave away Spawn products Rule > Elements of Right of Publicity action • Defendant used plaintiff’s name as a symbol of his identity. images. or disgrace.2d 514 Facts > Wrestling federation brought defamation suit against media monitor group who publicly blamed WWF for deaths of four children who died from wrestling moves Rule > 1st Amendment does not protect statements that are false and defamatory • A public figure may hold a speaker liable for damage to reputation caused by publication of a defamatory falsehood if statement was made with knowledge that it was false or with reckless disregard of whether it was false or not • Defamation claims based on commercial speech are not subject to the same rigorous constitutional scrutiny as other kinds of speech • Factors to consider in defamation cases o Whether statements are commercial or noncommercial o Whether statements were false o Whether statements were defamatory o Whether statements were made with malice • Defamatory Statement > one that exposes an individual/entity to public hatred.the source of the work ENTERTAINMENT CASES DEFAMATION Morrison v. shame.App 4th 798 Facts > A contestant on a reality show to marry a millionaire sued a radio station for defamation when a couple of morning dj’s called her a “local loser” and a “chicken butt”.Y. degradation. or induces an evil opinion of one in the minds of right-thinking persons 55 . Supp. NBC 19 N. and falsely claimed her ex-husband said she was a “big skank”. Bozell 142 F. defamation is defined in terms of the injury. ostracism. and not in terms of the manner in which the injury is accomplished. Rule > There can be no recovery for defamation without a falsehood • Plaintiff must present evidence of a statement of fact that is provably false o Statements do not imply a provably false factual assertion if they cannot reasonably be interpreted as stating actual facts about an individual o Rhetorical hyperbole / vigorous epithets / lusty expressions > all been accorded constitutional protection • Totality of the Circumstances used to ascertain whether statements in question are provably false factual assertions o look at the language to see if understood in a defamatory sense o look at context in which statement was made nature of communication and audience Application > “chicken butt” and “local loser” are statements of the speaker’s subjective judgment > rhetorical hyperbole > also too vague to be proven true or false (so is “big skank”) • Context of morning radio show > no listener could reasonably interpret these statements to be of actual fact WWF v. contempt. 2d 453 Facts > “Quiz show” case • Contestant on rigged tv game show alleges defamation because his reputation was ruined by the scandal Rule > A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. damage to reputation. aversion. • Communication > the fact that one person has brought an idea to the perception of another Seelig v. ridicule. Infinity Broadcasting 97 Cal. • Unlike most torts. 2d 562 Facts > Guy who claims George Costanza was based on him sues for invasion of privacy and being placed in a false light Rule > Written consent is required to use a person’s name or likeness for trade or advertising • Works of fiction or satire do not fall within the narrow scope of “advertising or trade” o The sort of commercial exploitation to be prohibited is solicitation of patronage Miller v. and • The confinement was not otherwise privileged Application > plaintiffs need not show that they physically tried to leave • Not required to incur the risk of personal violence by resisting until it is actually used • Defendant exercises requisite complete dominion over plaintiff when plaintiff submits to an apprehension of force reasonably understood from the defendant’s conduct INVASION OF PRIVACY Costanza v.2d 514 FALSE IMPRISONMENT Campoverde v. or acted in reckless disregard of its truth or falsity Application > Media group’s speech was commercial because it referred to specific products (wrestling) and used it in its ads and for fundraising • Statements were defamatory and false o Wrestling program aired hours after deaths o Statements that companies cancelled their advertising for WWF were false o Statements accused WWF of criminal irresponsibility • Statements were made with actual malice o Attributed death of children to shows even though happened before the show aired o Made false statements Trademark dilution / Lanham Act > whole other set of rules if anyone is inclined > 142 F. Supp. plaintiff must show: • Defendants intended to confine them. NBC 187 Cal. Seinfeld 181 Misc. Sony 2002 WL 31163804 Facts > client and attorney agree to appear on the Ricki Lake Show • Had an agreement beforehand • Upon arrival. 3d 1463 Facts > Wife of deceased sued a tv station for following paramedics into her home and filming the death of her husband which they aired live on the news Rule > Trespass is an unauthorized entry onto the land of another > intentional tort • Regardless of actor’s motivation > even if entered in good faith under mistaken belief • Liable for all direct consequences of any conduct engaged in while trespassing o Including emotional distress • 56 . were intimidated and coerced into signing new contract • Were not allowed to leave studio after many requests Rule > To establish a claim for False Imprisonment.Factors to consider when determining whether speech is commercial o Whether the communication is an advertisement o Whether the communication refers to a specific product or service o Whether the speaker has an economic motivation for the speech • Proving Malice in Defamation > must prove the defendant had a subjective awareness of either falsity or probable falsity of the defamatory statement. • Plaintiffs did not consent to the confinement.App. • Plaintiffs were conscious of the confinement. Right of Privacy is the right to live one’s life in seclusion. immunity is the exception Crown v. Kiedas 1992 WL 884644 Facts > College student sues Red Hot Chili Peppers’ manager after they sexually assaulted her after a concert on campus Rule > generally. unless: • A special relationship exists between the actor and the 3rd person which imposes a duty on the actor to control the 3rd person’s conduct o Parent/child o Master/servant Application > No special relationship exists between a manager and his band to impose a duty on him for the acts of the band • 57 . coliseum.E. and others for wrongful death after tragedy at the entrance of a Who concert • Long delays in opening stadium doors • Festival seating – first come. a person owes no duty to control the conduct of 3rd persons in order to prevent harm to another. without being subjected to unwarranted and undesired publicity o Right is not absolute o Is subject to the limitation that the intrusion would be highly offensive to a reasonable person o Unintended or mistaken foray into territory of another does not give rise to liability Application > Camera crew entering a home without consent to film a spouse’s death is considered highly offensive to a reasonable person and gives rise to liability NEGLIGENCE Zamora v. 199 Facts > Parents of a minor who killed someone sued the 3 major networks on theory that tv violence caused him to become addicted and desensitized to violence and cause him to kill Rule > (Florida) negligence unconnected with physical injury will not provide basis for mental or emotional injuries • Television is “press” > freedom guaranteed by 1st amendment Application > claim barred by 1st amendment Bowes v. Cincinnati Riverfront Coliseum 465 N.Supp. CBS 480 F. first serve Rule > judicially created doctrine of municipal immunity abolished • Municipal corporations subject to suit for damages suffer by individuals injured by the negligence or wrongful acts or omissions of their agents or employees o Regardless of whether agents engaged in proprietary or government functions o As far as municipal liability is concerned > liability is the rule. 2d 904 Facts > Estate of deceased sued city. 13 Cal. This contract is no subterfuge to evade the General Business Law. An employment agency could not circumvent the statute by putting its contract to procure employment for an artist in the form of an agreement for management. Wachs v. As a result. which requires persons who procure employment for artists in entertainment fields. which requires that talent agencies that procure employment for artists in entertainment fields. The statute is remedial in nature. the court ordered the agent to return all commissions earned pursuant to the contract since the defendant was not licensed.App. 1972 whereby plaintiff agreed to employ defendant as his sole and exclusive agent for a stated purpose or negotiating and securing engagements and to book. Superior Court.2d 347 Rule: California Law. The parties executed a contract on June 13. Application: Unlicensed manager of the group Jefferson Airplane argued that. Application: Plaintiff is a well-known Director. New York law requires that employment agencies be licensed and the court declared that agents were de facto employment agencies. 2. required artists’ Managers to be licensed. such as motion pictures. ENTERTAINMENT LAW 1. Since the clear object of the Act is to prevent improper persons from becoming artists' managers and to regulate such activity for the protection of the public. The agency argued that the law was unconstitutionally vague. is constitutional. substance trumps form. 85 F. Defendant is a well-known but unlicensed agent in the business of managing. directing and promoting lectures. Scholz.3d 774 58 .REGULATING AGENTS I. a contract between an unlicensed artists' manager and an artist is void.4th 616 Rule: State law. Buchwald v.” 3.2d 680 Rule: Agents are considered employment agencies and are therefore subject to state licensing requirements. The court is free to search out illegality lying behind the form in which a transaction has been cast for the purpose of concealing such illegality. Ahern v. and therefore. 254 Cal. Friedkin v. that the contract between the parties made clear that while he “managed” the group. and radio. Application: Talent agency that provided personal management services to artists and entertainers brought a declaratory relief action challenging the validity of the licensing provisions of the Talent Agencies Act. television. 4. the Artists' Managers Act. be licensed as an employment agency. manage and arrange all his lectures. Walker. and radio. that he was not a “manager” as defined by the statute.App. Curry. The court ruled that the phrase “occupation of procuring [employment]” is not “so patently vague and so wholly devoid of objective meaning that it provides no standard at all. to be licensed as talent agents by the labor commissioner. 90 Misc. such as motion pictures. television. amongst other things. talks and addresses. contract. Issue 1: Court ruled that a breach by Ahern on the 1st contract did not excuse Shultz’s subsequent breach of the 2nd. the context surrounding a contract of this nature (high risk of artist not being profitable) allowed for a contract that favorable to the recording company. with CBS. A contract between player and agent that requires the agent to provide a “good faith effort” duty of care is not breached if the agent fails in a task in which the agent utilized good faith. Croce v. contracts which significantly favor the production company are not unfair. and therefore negating any royalty that was due Ahern. the team offered Parrish 250. The court ruled that although Croce was in a weak negotiating position. Ahern was former manager of Boston. 884 Rule: Because of the uncertainty involved in the music business and the high risk of failure of new performers. 565 F. 644 F. Parrish’s reason. was shot down by the court. CBS sued Boston for breach and won. and 2) in the alternative. therefore Ahern did not rate any royalties. II. Zinn v. Application: Jim Croce’s widow claimed that the contract that her and her late husband entered was unconscionable. 5. and effect. Whether a contract or any clause of the contract is unconscionable is a matter for the court to decide against the background of the contract's commercial setting. Parrish. There was expert testimony that stipulated that this was not a common industry practice. Boston added the cost of the previous litigation to the “cost of recording:” this accounting led to a album’s bottom line to be in the red. independent. in that they received little benefit due to their weak negotiating position and naiveté. Shultz argued that 1) he did not breach because the album not profitable. 59 . Boston switched to MCA and CBS stopped paying Boston their royalties. Kurnit. Boston’s third album was successful and instead of paying Ahern his contractual royalties.Supp.Facts: Sholtz is songwriter of band Boston. purpose. Ahern. A “good faith” attempt to secure off-season employment does not require that off-season employment actually be attained. Parrish signed the deal and then fired Zinn and refused to pay Zinn the previously contracted 10%.2d 360 Rule: A contract to provide a “good faith effort” to secure the best terms for the player and off-season employment for the player is satisfied when the agent’s effort to complete these tasks were done with “good faith” regardless of the actual outcome. which paid royalties to Boston. Zinn handled Parrish’s NFL contracts for the first few years. that he only breached the second contract because Ahern breached the first one by stopping the royalty payments due Boston from the 1st two albums. After several years. that Zinn did not do enough to obtain a better offer from a competing football team.000 for 3 years. There was a contract from Boston’s first 2 albums. Application: Zinn was a sports agent and Parrish a professional Football Player. SPORTS LAW STANDARD OF CARE 1. Issue 2: Court ruled that it was improper for Shultz to include the litigation expense from the 1st lawsuit as a “recording expense” when accounting for the profits of the 3rd album. which resulted in a contract that paid royalties to Boston’s former manager. After a contractual disagreement during the production of the 3rd album. all of which were for modest amounts. Boston then switched to MCA and switched managers. claiming that Interpublic intentionally interfered with his contract by 1) sending out 60 . Interpublic. 1006 Rule: An agent owed a fiduciary duty to his client Application: Williams. The court found that CWI not only breached it’s fiduciary duty. The fraud claim stems from Speakers allegation that Proseve knew that it could not deliver on their promise to secure for Ivan several million dollars in endorsements. that is. The court ruled that Proserv’s promise was not tortuous. CWI then convinced Williams to invest a considerable amount of money in a company in which CWI had an interest. The Interpublic Group of Companies. Carr fired Bauer several days after signing him. Williams v. The contact was terminable at will.. 542 Rule: A fiduciary has the duty to inform his client when the fiduciary has an interest that is adverse to his clients. Argovitz led Simms to believe that the Lions did not want him. and instead of investing the money. Inc. a college football player that was about to be drafted. Argovitz then negotiated a deal between Simms. 3.. The Detroit Lions. Argovitz. Carr then underwent a process of finding new representation. Inc. 178 F. The 3rd agency then negotiated a $42 million dollar deal in Ivan behalf. signed with agent Bauer. and tax advise. and the USFL team that Argovits owned. Speakers sued Proserv and argued that Proserve induced Ivan to leave Speakers through fraud.2d 1086 Rule: In a suit for intentional interference with a contract. CONFLICTS OF INTEREST 1. Carr started to receive negative mailing about Carr. Ivan’s contract with Speakers was terminable at will. Bauer was the agent that Carr’s family picked for him. 580 F. as well as investment. Inc.3D 862 Rule: Ill. Inc. Argovits was also in the process of buying a USLF Team. unless it is one element of a pattern of fraudulent acts. contracted CWI to provide agent services. Ivan legally terminated his contract with Speakrs and signed with Proserv. Immediately following Bauer’s signing. 255 F. While acting as an agent. a young unsophisticated professional basketball player. Dissatisfied that he did not play a role in the chosing of an agent. his client. as planned. Law: Promissory fraud is not actionable unless it is part of a scheme to defraud. Inc.Supp. v. but also committed fraud. Bauer sued Interpublic. CWI. Proserv promised Ivan that if he signed with them.Supp. Speakers of Sport. used the money for its own purposes. 2.. Bauer v. The Court ruled that this was a violation of the agent’s fiduciary duty. financial management. the plaintiff must prove that the “act complained of was the proximate cause of the injury. while not disclosing the interest to Williams. CWI took the money. 777 F. Carr eventually signed with Defendant. Although the Lions were on the verge of signing Simms. that they would ensure that Ivan would receive millions from endorsements. Application: Argovitz was the Agent for a young NFL player named Simms. Proserve could not get the endorsements as promised and Ivan then signed with a 3rd party for further agency services. Proserv.” Application: David Carr. and Ivan chose to terminate the contract. v.2.Supp. Argovotz was negotiating a deal between Simms and the Detroit Lions. but an example of the acceptable methods of competition in the context of sports agency. Application: Speakers was Baseball Catcher Ivan Rodriguez’s agent. When it was discovered that Piggie had paid some players. 554 F. is grounds for decertification. The NCAA has strict rules prohibiting the players who are not true amateurs from playing. The players association then decertified Collings. The court dismisses both claims. Application: Collins was a certified agent and represented Kareem Abdul Jabar. and 2) within the right to regulate agents.. Due to the team defaulting.000 of the contract. The court also found that Carr had fired Bauer before he settled on a replacement agent and that Carr carried out an judicious search for representation. PLAYERS’ ASSOCIATIONS’ AUTHORITY TO REGULATE 1.3d 923 Rule: Agents are individuals involved in sports are also bound to follow non-agent-specific laws. lost revenues. alleging they had appropriated his ideas and were using them for a new movie. Brown v. collected the full $40. Amblin told Spinello that they would review his script if he signed and returned a standard submission agreement. 61 .000). It was not proved that Interpubic sent any tortuous mailings.Supp. 4 of his paid “amateur” players went on to receive scholarships to play at the University level. 976 F. Collins argued that his previous breaches of fiduciary duties unrelated to player contracts should not barr him from being certified as a player agent. Woolf. however. regardless of context. He devised a scheme by which he covertly paid the best players in order to bring prestige and monetary gain to himself and his team. Application: Piggie ran an AAU basketball team. While it is not a crime to pay kids to play basketball.000 form the signing bonus.2d 740 Rule: Player Associations have the right to regulate agents. Bauer has no claim. United States v. National Basketball Players Assn. The court ruled that 1) the players association has the right to regulate agents. through the postal service. how much) Application: Agent here had a fee of 5% on a $800. A scheme to deprive a university of its right to the honest services of college basketball players is within the definition if mail and wore fraud. Collins v. Piggie. several universities had to spend hundreds of thousands of dollars in investigations. Amblin Entertainment Facts: Spinello sued Amblin. therefore. NON-AGENT-SPECIFIC FEDERAL LEGISLATION 1. This is a demonstrative case that led to player association regulate the payment of agents. Contracts FORMATION: Spinello v. and was not enticed or induced by Interpublic. 303 F. this barring him from being a player agent. 2. that they have never revieved money to play basketball. Piggie was prosecuted using the RICO and mail fraud statutes. and lost scholarships. the association was reasonable in its determination that any breach of fiduciary duty. 1206 Rule: Player Associations may dictate the manner in which agents get paid (when. Spinello did. Jabar sued Collins for breaches of fiduciary duties unrelated to contract negotiations. the player was only paid $185. those kids then committed fraud by telling their respective universities. The agent. Carr’s firing of Bauer has not related to his subsequent signing with Interpublic and.libelous mailings and 2) courting Carr while he was signed with Bauer.000. 5 year contract ($40. Holding: The term and/or is inherently ambiguous. not for a promise but for an act. American National Theatre Facts: Defendant corporation authorized plaintiffs to offer to sponsors on its behalf a proposed tv program and agreed that plaintiffs should receive $1000 per show. whether exclusive or not. Payment was made to Mighty Wind. a trombonist for many years with the Symphony. thereby violating the contract. it can mean either or it can mean both. Corporations are separate legal entities. Our reading of the cold record indicates that the finding of the trial examiner is more plausible than the finding of the Board . or he could have done so himself. he did not do so. The contact was signed by Main Line and Mighty Wind and Mighty Wind was then to acquire Basinger’s acting services.000 per show if plaintiffs procured a sponsor. We conclude that the critical finding of the MERC Board is not supported by "substantial evidence. was at least an offer to pay the agreed $ 1. Holding: The grant of the authority to procure a sponsor. Chase. After negotiation on salary. Such personal service corporations are entitled to the same separability of identity as are other corporations. and according to the allegations of the complaint plaintiffs accepted the offer by actually procuring the sponsor. It gives rise to multiple meanings. and defendant's offer thereby became a binding promise. Basinger decided not to act in the movie after the contract was entered into by Main Line and Mighty Wind. the courts have concerned themselves with weighted contractual provisions which served to limit the obligations or liability of the stronger party. Burr v. the procurement of a sponsor. Main Line won a judgment of liability against Mighty Wind “and/or” Basinger. Rationale: Individual professionals incorporate for a variety of reasons. Chase rejected their offer by saying “Get yourself another boy. Mighty Wind and Basinger are not synonymous. was offered a one-year contract. Detroit Symphony Facts: Plaintiff. states that a reviewing court is entitled to consider the examiner findings. Chase argues that he was not hired as discrimination because of his affiliation with a union. he could have asked his agent to request deletion or modification or limitation of the arbitration provision. which lead to this appeal. and a valid contract resulted when plaintiffs performed that act. the weaker party lacks not only the opportunity to bargain but also any realistic opportunity to look elsewhere for a more favorable contract. Issue: Whether the MERC Board's conclusion that the Symphony's failure to rehire plaintiff Chase was motivated by anti-union animus is supported by substantial evidence Holding: No. Defendant asked. However. he must either adhere to the standardized agreement or forego the needed service. Holding: No Rule: In many cases of adhesion contracts. Michigan Employment Relations Comm. Rationale: Spinello had the opportunity to negotiate and simply failed to do so. our reading of the cold record is confirmed. Additionally.and the agreement contained an arbitration clause. the corporation is liable and the agent is not. Mighty Wind. I do not accept. Main Line Pictures v. Later. Rationale: It was not necessary that plaintiffs should give a verbal promise in advance to procure a sponsor or use their best efforts to procure one. Amblin later rejected his script and purchased another script to produce a movie which Spinello believed was based on his idea. When the agreement was submitted to him. Issue: Whether the agreement was a contract of adhesion. 62 . even if they had not promised to do the act. Where it appears on the face of the contract that it is entered into on behalf of the corporation by its agent. distinct from their shareholders and officers. specifically. He then stated that he accepted the offer only to learn that in the Symphony's view the offer had been withdrawn. Basinger Facts: Basinger entered into a contract with Main Line Pictures through her corporation. In all prior contract of adhesion cases. he had about 20 years of experience in the industry.” Chase later contacted the Symphony and at that point was informed that the Symphony was auditioning another trombonist for his position. Plaintiffs procured a named corporation to sponsor a series of programs in accordance with the agreement but corporate defendant refused to permit the sponsorship by the corporation the plaintiffs procured. Ascribing due weight to the unique opportunity of the trial examiner to weigh the testimony of witnesses. who then paid Basinger. Only if the options are synonymous is there no ambiguity. Board v.” Rule: The Federal "substantial evidence" test under the National Labor Relations Act. and upon his protest that he had been offered less than he deserved. in the absence of specific contractual provision. The provision states that Loren is to be given 100% size and type of the movie title and on the same line as used for the name of the lead male role. Columbia Pictures Corp. unrestricted to Republic in their ownership. Autry granted for valuable consideration all rights. Holding: Under established authority. Loren’s rights at this juncture are not so clear as to warrant such an injunction and the motion is denied. general in its terms. to prevent. has the right to the final cut and that the movie stations will ruin the movie with their commercial interruptions and so forth. 1968. He was offered a contract. The only difference was that the characters names were smaller than the title of the movie. reserved to the plaintiffs. Rationale: Under the contract. the parties will be deemed to have adopted the custom prevailing in the trade or industry. the right to 63 . is limited to the original or theatrical production of the picture. must yield to the specific clause with respect to television showing. Loren sought to remove the electric signs and changes in advertising for the movie. As far as this record reveals. giving plaintiffs the right to "finally" cut and edit as to the original production of the motion picture. Rationale: The judge said that there was a genuine question whether Loren is really in danger of suffering the loss of prestige and other damage attributed to its nonobservance.00 a week increase over the contract offer. Issue: Whether Republic should be enjoined from cutting Autry’s performances to approx. Autry v. MCA. Rationale: The clause in this contract. Facts: Preminger. Rule: Implicit in the grant of tv rights is the privilege to cut and edit Holding: In these circumstances the court is inclined to the view that the right to the "final" cutting and editing. and the usual breaks for commercials. Samuel Bronston Productions Facts: Loren brought an action against the producer of the movie “El Cid”. where those contain appearances of Autry. Loren was the lead female role of the movie and she claims she did not receive the advertising that her written agreement entitled her. which contained no such right. the general manager agreed and offered Chase a $ 10. as producer of “Anatomy of a Murder”. Republic was editing and using some of the shots of Autry in connection with sponsors to imply Autry as an endorser of the sponsor. at least for the past 15 years. Both Loren and the male role’s names were the same size and type and on the same line. 53 mins and showing them in connection with commercial advertising over the television. Inc. on February 29. and that as to such showings. that militates most heavily against the contention that the March 2 refusal to allow Chase to sign the contract was discriminatorily motivated. not the television stations. Republic Productions Facts: Autry brought an injunction to restrain Republic from exhibiting motion pictures in connection with commercially sponsored or sustaining tv broadcasts.Rationale: The record is devoid of any evidence of animosity toward Chase prior to March 2." TERMS: Sophia Loren v. "It is the absence of evidence of animosity toward Chase for any reason and the apparent willingness and anxiousness of the Symphony Orchestra to employ Chase on February 29. Issue: Whether a producer has a right. in the absence of specific contractual provision. minor cuts in his motion picture. Preminger now alleges that he. and not to showings on television. the Symphony Orchestra was anxious to have the services of Chase as first trombonist. Holding: Republic should not be enjoined from cutting Autry’s performances and showing them in connection with commercial advertising over the television. A review of the testimony demonstrates that. Under the injunction. as were all the musicians. Yerkovich alleged that MCA breached the Agreement by failing to account for net profits. entered into a contract with Colombia Pictures to show the movie on tv. when shown on television. Facts: Agreement between parties in which Yerkovich gave MCA rights to Miami Vice in return for up-front compensation and a percentage of net profits from the show. Yerkovich v. Holding: The court found that there was insufficient admissible evidence showing that Yerk was entitled to additional money. by injunction. Otto Preminger v. decide upon a value which falls within the range of the opinion testimony. it is clear that one who wilfully breaches the contract bears the risk as to the uncertainty or the difficulty of computing the amount of damages. however. objectionable. The jury could reasonably conclude from the evidence that Smithers suffered an economic loss by reason of MGM's failure to live up to its agreement. Rather. Smithers shall receive that compensation. Issue: Whether Neil is financially responsible for his loan out corporation Holding: In light of NY law that a guarantee must be strictly construed. Paramount Pictures Corp. However. This basically means that besides 3 named people. the jury was provided a reasonable basis upon which to calculate damages. Buchwald v. Facts: Buchwald and Bernheim contributed to the success of “Coming to America” and the court had to determine the value of their services Issue: Whether the court was entitled to establish compensation within the parameters established by the evidence of the parties Holding: Yes. Up to 10 or 11 actors were given up-front billing while Smithers remained the same. the Court was troubled by the apparent lack of wording specifying a financial guarantee. after balancing and reconciling the various opinions of the witnesses and their bases. Additionally. Rationale: In reaching this decision.000 people. GEM had Neil sign an Inducement Letter in order to ensure that he subscribes to the underlying obligations of the loan out company’s contract.interrupt the exhibition of a motion picture on television for commercial announcements and to make minor deletions to accommodate time segment requirements or to excise those portions which might be deemed. the trier of fact is not required to accept the testimony of any one witness in total. be clearly ascertainable as to their nature and origin. Rule: Damages for breach of contract must. for various reasons. MGM Facts: MGM casted Smithers in a role in their tv series “Executive Suite” under a “most favored nations” billing arrangement. Kass v. the Court concluded that summary judgment is no appropriate on this breach of contract issue Rule: NY law requires that the guarantee of an undertaking be in writing and that the language of the guarantee and indemnity agreement be strictly construed Rationale: Nowhere in the inducement letter does Neil appear to unequivocally guaranty his loan out corp’s financial obligations. the court is fully mindful of the fact that its task is to produce a fair and equitable result-neither a windfall to Bernheim nor unjust enrichment for Paramount. Smithers v. the words suggest that Neil is merely guarantying his own musical performance. MGM concedes that its contract with Smithers was breached. Assessing the plain language in light of the entire contractual sequence. Young 64 . Part of the inducement letter was a clause which is under interpretation because Neil did not play in front of the requisite number for fans. of course. it is permissible for the court to consider the success of “Coming to America” in determining what compensation should be awarded to Bernheim and Buchwald Rule: In assessing the opinions of the valuation witnesses. since the standard for an expert witness “is not mathematical exactness but only a reasonable approximation it is clear the trier of fact cannot be held to a stricter standard. BREACH: Great Entertainment Merchandise v. has consistently been considered a normal and essential part of the exhibition of motion pictures on television. Although witnesses were unable to estimate with precision how much Smithers had lost or how much he would earn in future years. if any other performer receives greater compensation than he. but takes the position that damages arising from such breach were speculative and incapable of ascertainment. GEM moved for summary judgment. but may instead. Vince Neil Facts: Neil’s loan out corporation and GEM entered into an agreement in which he was to perform a tour for at least 800. Holding: A number of witnesses established the relationship between billing and the actor's future negotiations for compensation. and was in turn promised specific compensation: the greater of $ 1. which requires NAC to answer for any “work or labor done . Millenium entered into a Bond with NAC which provided that NAC would pay DGA if Millenium fails to pay for any work or labor done. even though additional details remain to be finalized. Rationale: The parties to the agreements could have provided specifically for the contingency of loss due to the use of illegal drugs.. For the employer. Rule: Death renders a personal services contract impossible to perform.50 ticket price).000 or 85% of net proceeds from ticket sale. as they provided for other hazardous or life threatening contingencies DAMAGES: DGA v. The cancellation occurred prior to the time DGA was scheduled to work on the telecast. Issue: Whether MCP is entitled to offer evidence to support their claims Holding: Yes. the Court found that MCP has pled a viable claim for breach of contract upon which relief may be granted. CNA v. Bolton move to dismiss for failure to state a claim under Rule 12(b)(6).Facts: Kass was one of about 14. Kass alleges that Young terminated the contract by walking off stage before the purchasers of tickets received the consideration of a full concert performance. there is an implied condition that death shall dissolve the contract. And although defendants contend that plaintif fails to specify the terms of the oral contract in the complaint. Issue: Whether the terms of the bond executed by Millenium and NAC encompass the amounts owed to DGA pursuant to their arbitration award against Millenium Holding: Yes. plaintiff has in fact specifically described such terms -. CNA alleged that Phoenix deprived the parties of his services. the defendant would be subject not only to judgment in the purported class action but also to suits by individuals acting alone or in other asserted classes Michael Coppel Promotions v. the doctrine of impossibility of performance applies in this case. Phoenix Facts: Phoenix died from a drug overdose before the completion of two films in which he had contracted to appear. Rationale: Plaintiff has more than adequately stated a claim for breach of contract. In exchange. Millenium TV Network Facts: Millenium hired DGA to work on a live broadcast on New Years Eve 1999 but cancelled a week prior to the showing.of any kind” on the Telecast Rule: The “pay or play” principle reflects a bilateral promise between the employee and the employer that is integral to the entertainment industry. Issue: Whether the class action suit was proper Holding: No. the employee-director is required to remain available for the scheduled dates by foregoing other employment options. MCP alleges that the parties reached a binding oral concert agreement in March of 1996.000 (14. therefore breaching the contract Issue: Whether Phoenix’s estate was liable to CNA for Phoenix’s failure to perform Holding: No. and NAC is therefore liable under the terms of the surety agreement for the amount of the award. the “pay or play” principle requires the employer to honor its promise to pay the agreed salary for the term of the guaranteed period whether or not the program or film is actually produced. the Court finds that the Plaintiffs' arbitration award was based on “labor done” or “work performed” on the Telecast. By taking the drugs.000 patrons at a concert in which Young was the star performer.200. 65 . no notice had been given to the alleged class and no class had been certified Rule: Damages except when fixed by contract must be proved Rationale: Without determination of the proper class and of appropriate notice. Michael Bolton Facts: MCP claims that Bolton breach an agreement when he abruptly cancelled an eight concert tour just two weeks before the tour was scheduled to begin. MCP further alleges that industry practice permits the promotion of concerts once initial agreement has been achieved as to material terms. CNA attempted to state a cause of action for breach of contract against Phoenix’s estate because of an agreement which included an obligation not to do anything which would deprive the parties to the agreement of its benefits. To secure financing.Bolton would perform eight concerts at various Australian venues.000 ppl x $6. Millenium has failed to pay DGA any compensation due under the terms of the contract.This finding is supported by the broad language of the bond. Kass brings a class action against Young for $91. In such contracts. The requisite of mutuality of remedy has been satisfied in that Sanders had fully performed his obligations pursuant to the agreement. (3) the existence of a mutuality of remedies. the relationships among the producing parties and entities. Tamarind was to provide Sanders a screen credit entitled “A Film by Terry Sanders” but Tamarind did not comply. (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce. and were intended to impose the same obligations on each of the parties. and did not contemplate injury as a result of future exhibitions of the film by respondent.000 were each intended to be binding on all the same parties. New York law requires that all writings which form part of a single transaction and are designed to effectuate the same purpose be read together. the Court finds the substance of the claim to be without merit Rationale: If a screen credit is improperly denied to Winston by the defendants she has an action in damages. They claim that Winston is the architect of the screenplay and that suitable credit is to take the form of an acknowledgement “conceived by Helen Winston.. v. The need for our finding the contract to be reasonable and supported by adequate consideration is obviated by the jury's determination of respondent's breach of that contract. Issue: Whether the Actors' Equity run of the play contract. all writings forming part of a single transaction are to be read together.” Issue: Whether injunctive relief should be granted against Jacobs Holding: No. actress.000 pay or play guarantee. and the background assumptions furnished by the Equity rules--for the jury. These requisites include: A showing by plaintiff of (1) the inadequacy of his legal remedy. Sanders Facts: By agreement. through her personal services corporation. and (5) a substantial similarity of the requested performance to that promised in the contract Rationale: It is plausible that damages awarded Sanders were for harms already sustained at the date of trial. This is Me. It is manifest that the legal remedies available to Sanders for harm resulting from the future exhibition of the film are inadequate as a matter of law. screen credits have little or no significance and any resulting harm by failure to include her name in the credits will be minimal. we find the terms of the agreement sufficiently definite to permit enforcement of the respondent's performance as promised.Luster Enterprises v. Tamarind Lithography Workshop v. Jacobs Facts: Luster and Winston seek a temporary restraining order against Jacobs based on the play Doctor Doolittle unless suitable credit is given to Winston. to find that Taylor and Bufman were personally liable on the pay or play guarantee Rule: Under New York law. This is Me Inc. A jury determined that Tamarind breached the agreement and awarded Sanders 25 g’s in damages. agreed to undertake the lead role in a Broadway production of “The Corn is Green. Issue: Whether an award of damages is an adequate remedy at law in lieu of specific performance for the breach of an agreement to give screen credits Holding: The court finds that Sanders is entitled to relief consisting of the damages recovered and an injunction against future injury Rule: The availability of the remedy of specific performance is premised upon well established requisites. Outside of this small professional community. the cross-referencing of the agreements. without appropriate credit to Sanders. as properly instructed. the Actors' Equity security agreement and the contractual obligation to pay This Is Me $ 750. Similarly. (2) an underlying contract that is both reasonable and supported by adequate consideration. If the plaintiffs prevail in this action the attendant publicity and the subsequent damage award will make Helen Winston whole within her professional community. One of the forgotten functions of the damage remedy is to apprise members of the community of the rights which the court has adjudicated in the plaintiffs' favor." 66 . there was sufficient evidence--the drafting history and chronology. Taylor Facts: Tyson. even though they were set forth in different documents Holding: Yes.” There were several contracts at issue which she sued under for the unpaid portion of a 750. Rationale: The various agreements in this case all relate to a single transaction: Ms. Inc. the integral nature of the undertakings for the stage and video performance. even though they were executed on different dates and were not all between the same parties. Tyson's services as an actor in the production of "The Corn is Green. Case: Metropolitan Exhibition Co. the substitute "Big Country" offer proposed to eliminate or impair the director and screenplay approvals accorded to plaintiff under the original "Bloomer Girl" contract and thus constituted an offer of inferior employment. v. plaintiff's failure to accept defendant's tendered substitute employment could not be applied in mitigation of damages because the offer of the "Big Country" lead was of employment both different and inferior Rule: The general rule is that the measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service. Additionally. • 1890-Players league formed-notable for litigation it produced. 42 F. the employer must show that the other employment was comparable. Certain things were different between the two movies. Ewing. However. but did not play a major role until 1950's Labor relations and labor law weighed in heavily to team sports in late 1960s 1. OVERVIEW OF THE LEGAL FRAMEWORK • At the core of Sports Law: -3 substantive areas of law-Basic contracts. • 1884-Tony Mullane case-best known pitcher of the era was sued by the Union Association as a result of a K dispute.Parker v. antitrust. Big Man” for identical compensation. to that of which the employee has been deprived. such as the fact that “Bloomer Girl” was a musical and “Big Country” was a western. Fox informed Parker that it would not comply with their obligations under the written contract but offered to employ Parker as the leading actress in another film entitled “Big Country. 198 -Ewing court recognized the availability of a negative injunction in appropriate circumstances. before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation. Contract Law-guided sports law initially Antitrust law became an issue as early as the1910's. or substantially similar. Issue: Whether plaintiff's refusal of defendant's substitute offer of "Big Country" may be used in mitigation Holding: No. the employee's rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages. Following are 2 landmark cases: ? Raised in both was whether star ballplayers could escape their K's or to the contrary be enjoined from jumping to the nascent Players League?-In both cases. and labor law principles. Contract Law • 1st recorded case of contract dispute between team and a player was the Samuel Washington Wise case (1882)-refused to honor his K with the Cincinnati club of the American Association for baseball. 20th Century Fox Facts: Parker was to play the lead female role in Fox’s contemplated production of a motion picture entitled “Bloomer Girl. 67 . whereas "Big Country" was a straight dramatic role in a "Western Type" story taking place in an opal mine in Australia. less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. players prevailed. Rationale: The mere circumstance that "Bloomer Girl" was to be a musical review calling upon plaintiff's talents as a dancer as well as an actress. and was to be produced in the City of Los Angeles. III. demonstrates the difference in kind between the two employments. CHAPTER 6-REGULATING PROFESSIONAL ATHLETICS A. the female lead as a dramatic actress in a western style motion picture can by no stretch of imagination be considered the equivalent of or substantially similar to the lead in a song-and-dance production.” A month before production was set to begin. v. ANTITRUST: 68 . 9 N. v.-If granted-a player in breach of an existing K would be prohibited from playing for another club. Ward. (but. skill. Case: Metropolitan Exhibition Co. 9th Cir. Barry . Ltd.Y. 419 F. injunction can be oppressive) 4) the K must have mutuality or be founded on adequate consideration. 779 -Court also recognized the appropriateness fo granting injunctive relief in some cases. rights are fully assignable to successor. and -there was insufficient evidence of general custom and usage in the trade to define the K's terms. 1902 Rule: (It seems to court that a more just and equitable rule is…) “where 1 person agrees to render personal services to another which require and presuppose a special knowledge. v. Inc.2d 472.. Lack of mutuality: Court emphasized that the club could terminate the K almost at will while the player was potentially bound to play for the club as long as it wanted him. although the affirmative specific performance of the K is beyond the power of the court. 51 A. LaJoie . this evidenced a lack of required mutuality of contractual obligations at least sufficient to deny injunctive relief.--->thus. Philadelphia Ball Club. -Club's right to retain rights to the player at the end of the K was not adequately defined. Issue: Whether his rights under original team were assignable to the new purchasing team?-(YES) Whether Barry should be restricted by an injunction from playing for any team but the one which held his rights? Rule: When no fraud or illegality exists. B. Washington Capitals Basketball Club. Unclean Hands Doctrine: -occurs when the party seeking equitable relief has acted improperly. 973. BUT FOCUSED on the requirement that there be a likelihood that the club would succeed at trial on the merits on its breach of K claim against the player. 1969 P-Washington Caps D-Barry Facts: Barry signed another K during time when he was already restricted by a K w/ previous teams which moved to another city and was bought out by other owners. Pa. so that the court does not wish to endorse its behavior. -Court concerned with the player K's indefinited terms and its lack of mutuality.S. its performance will be negatively enforced by enjoining its breach…” -The damages for breach of such K cannot be estimated with any certainty and the employer cannot by means of any damages purchase the same service in the labor market.. and ability in the employee so that in case of a default the same service could not easily be obtained from others. This behavior does not have to be illegal or coercive. Also defines & applies unclean hands doctrine-see above. but only questionable enough for an injunction not to be granted. 5) the terms of the K must be definite Held: Subject player K was not sufficiently definite to warrant a negative injunction. The court enunciated 5 criteria that must be reviewed in determining if injunctive relief was appropriate: (following suggests that 1 side must clearly win) 1) the breach is one for which damages would be inadequate compensation 2) the party seeking the injunction must have "clean hands" 3) the injunction must not be unduly oppressive to the defendant. the defense does not have an opportunity to defend the offending agreement. maintaining. 3) The anti-competitive effects of the agreement outweigh the pro-competitive effects.) Per Se Analysis-(P’s prefer this.-some player K’s still give team unilateral right to renew player K’s but NOT for perpetuity. the court will not inquire into the business purpose or the actual effect of the offending practice. lowering. such as: • price-fixing • horizontal agreements • group boycotts • IF the conduct is found to be illegal per se. requires team signing a free agent player to compensate the former team by giving up draft picks. or stabilizing the prices charged for products or services have long been viewed as so destructive that they are automatically considered in violation of the act.(1)-Per se. • In cases where the per se analysis is used. 2) Draft-allows only 1 pro team to draft an eligible player and allows selected player to negotiate solely w/team that selected him. the P must prove 3 things: 1) There is an agreement between the 2 separate entities 2) The agreement adversely affects competition in a relevant market. players and/or money. • • Remember: For an agreement between 2 entities to be considered an antitrust violation. gave teams unilateral right to renew a player’s K in perpetuity. fixing. controlling. it must have anti-competitive consequences and be an unreasonable restraint on trade. ANTI-TRUST CLAIMS UNDER §1 OF SHERMAN ACT: -2 types of Analysis under this §. 2. *Thus. 3) Compensation system-still in effect in several leagues. 1) Reserve Clause-in player Ks until the mid-1970s. D’s dread this) • Practices deemed illegal per se are those that fall within a division of conduct that is inherently anticompetitive.I. The relevant inquiry is: Whether the challenged conduct unreasonably restrains competition? Principle purpose of the R of R standard: is to determine whether the challenged conduct has procompetitive results or anti-competitive results. the Defense must argue that the rule of reason analysis should be applied instead.--->without need to prove harm. The following 4 devices have been attacked on antitrust grounds in most of the major sports leagues-they restrict player mobility and bind players to certain teams: make argument if u see on exam. 4) The right of first refusal-allows a player’s prior team to match any competing offer 69 . raising. agreements. or (2) Rule of Reason 1. To successfully prove an anti-trust violation using the rule of reason standard.) Rule of Reason Analysis applies to conduct that is NOT manifestly anti-competitive. 4. If this Defense by the owners.and retain the player’s services. 2. the lawful operation of the bargaining process.) Grew out of. Pro-Football Inc. and was directly related to. The estoppels party was given a full and fair opportunity to be heard on the adjudicated issue. league officials. The estoppel party was a party or in privity with a party to the prior adjudication. *This can be an effective strategy because leagues are fearful of having courts decide whether their policies violate the Sherman Act. 802 F. NFL case. This Rule of Reason approach allows the Defendant to legitimize or argue its reasons for agreement. The issue is identical to 1 raised in a prior adjudication. etc. There is a final judgment on the merits. (As in certification election. 2. combination or conspiracy.) Involved a matter that the parties were required to negotiate collectively 4. 3. a) Labor Exemption after Decertification of a Union: *See McNeil v.) Decertification (of Union): To decertify a union is to break all formal ties with the union and give up the right to collectively bargain a CBA -Employs decert. ii. Attacks the plurality of actors requirement of §1 because a single entity is incapable of contract..-It is used when: 1. II. NFL under Ch. Supp. 3. 7 of Labor Laws Thus. is found to be valid. 1992) The doctrine of collateral estoppels may be used to get an injunction and demonstrates a likelihood of success on the merits.) Collateral Estoppel: Jackson v. 70 . 50% plus 1 is needed to pass) -This may also be used when the players are unhappy with their leadership of the union-that is the Union Representatives. against player claims of antitrust): The challenged conduct must: 1. DEFENSES TO § 1 SHERMAN ACT CLAIM OF RESTRAINT OF TRADE: 1) Non-Statutory Labor Exemption-Defense A) New 4-Pronged Test For Anti-Trust Immunity Under The Labor Exemptionto attack elements of Claim (used by owners. 2. 226 (D. the Players have the following Options: i. after decertification the exemption ceases because 1st prong of Mackey Test (labor ch. etc.Minn. and 2) New Leagues structuring themselves as a single entity so as to avoid anti-trust challenges.) Concerned only the parties to the collective bargaining relationship From: SCOTUS-Brown v. 7) cannot be met.) Single Entity Defense-attacks 1st element of §1 Sherman Act claim-plurality of actors • • • • Relevant in 2 areas of pro sports: 1) Traditional Leagues using the defense against specific anti-trust challenges. By voting in an election with the NLRB by secret ballot.) Take place during and immediately after a collective bargaining negotiation. This rule continues to exist in more moderate forms. 4. 4.S.) MLS enforces a salary cap. MSL (2002)-Major League Soccer Players challenged the MSL’s restrictive player constraints on 5 major grounds: 1. NFL (2nd Cir. Soccer. Single Entity Defense Cases: 1) NASL v. MLS approves all trades. *MLS-argued it was a single entity: 1. NFL (1984)3) Chicago Professional Sports Limited Partners v.) The MLS Standard Player Agreement denies players a fair share of group licensing rights. FIFA. because the league would have been protected by the labor exemption. NBA IV (1996)-NBA limited # of games that a “superstation” could televise. and the world governing body. struck down in other sports.• The NBA. the players did not unionize before the action.) Player salaries were unilaterally determined by a single person-the Dept. NBA argues it created a single product and was therefore immune to Section I challenges. 5. giving teams unilateral rights to renew their players’ K. 71 . *Players contracts have of MLS argued this structure was all a sham to get out of anti-trust violations.the NFL Lost the case 2) Los Angeles Memorial Coliseum Commission v.) That its profits and losses were shared in a manner similar to a corporation rather than like a traditional sports league. rules are only known to MLS and kept secret from actual MLS players. NFL. based on the above and note.- this argument has been Unsuccessful.) MLS. 2. 1982)-NFL raised this defense in its policy to bar NFL owners from owning soccer teams in the NASL. U.) MLS has the right to assign marquee players to certain teams. Commissioner.) Individual teams do not own the right to their logos. 2. 4) Fraser v. inserted a system of “transfer fees” into the Standard Player Contract which prevents MLS players from signing w/other teams in other countries even if their MLS expired. & NHL have alls argued this defense by stating they share broadcast and licensing revenues.) The Standard Player Agreement contains a “reserve clause”. 3. not teams. Court found: MLS was a single entity.) All players are employees of MLS rather than employees of the individual teams-Players receive paychecks from league. 3. -->(monopoly market power is different than market share) 2) the use of unacceptable means to acquire. entrench. ANTITRUST CLAIMS UNDER §2 OF THE SHERMAN ACT-Monopolization: -§2 prohibits unilateral monopolization and attempted monopolization. rather than less. -To prove that a monopoly exists. -BUT merely having a large market share or monopoly power does not violate §2 of the Sherman Act. 441 U. Most networks and businesses were buying blanket licenses at a fixed price from ASCAP & BMI SCOTUS is unwilling to say blanket licenses are a per se violation of antitrust laws. 1979 P-Columbia Broadcast System D-ASCAP and Broadcast Music Inc. 1.S. the monetary damages awarded are to be trebled (tripled).) V. the purpose of the practice are to threaten the proper operation of our predominantly free-market economy--->thus. competitive? Rule:General rule under finding of price-fixing: is that the remedy is an injunction against the price-fixing. Court notes Congressional intent under Copyright Laws. when a breach of the Sherman Antitrust Act has been proven. CLAYTON & TREBLE DAMAGES: • Remember: under the 1914 Clayton Act. VI.) Natural Monopoly.or instead one designed to "increase economic effiiciency and render markets more. Inc. FACTS: CBS brought this antitrust action for price fixing against ASCAP and BMI. as some consumers may prefer to purchase blanket licenses. U. -Under this defense. Issue: Whether the issuance by ASCAP and BMI to CBS of blanket licenses to copyrighted musical compositions at fees negotiated by them is price fixing per se unlawful under the antitrust laws? -Whether the effect. ANTITRUST & ENTERTAINMENT: Broadcast Music Music. a) Larger Relevant Market-(ej: relevant market is entire world v. *The objective of antitrust legislation as it pertains to monopolization is to: -ensure that companies which hold a natural monopoly in a given market do not actively discourage the rise of similar products in the market. east coast of b) No Power to Control prices or exclude competition OR 2. DEFENSES UNDER §2 OF THE SHERMAN ACT-Monopolization (2 Defenses): 1. IV.) The Entity is NOT a monopoly. which allow for blanket licensing. or maintain that market power. whether the practice facially appears to be one that would always or almost always tend ot restrict competition and decrease output and in what portion of the market. you argue you cannot help that you have a better product. .S. Ej: The WNBA is better than the ABA. Blanket licenses are to be examined under a heightened rule of reason analysis if illegal price-fixing is 72 .Columbia Broadcasting System . -Courts generally require at least a 70% market share to justify a monopoly power violation argument. 2 elements must be met: 1) the possession of monopoly market power and . v.III. -It is illegal restraint of trade to foreclose the scarce facility. 3) Players were not a commodity and thus "not related to production Flood v. Baseball's reserve system enjoys exemption from federal antitrust laws. Application: As the Appellate court noticed. VII. 259 U. but it does not completely remove baseball’s exemption. and therefore. v. BUT-blanket licenses are unique and they expedite economic uses. BMI and ASCAP over the years have made a market in which individual composers are inherently unable to compete fully and effectively. (existed in baseball and other sports until 1970s) Rule 1. et al. 1972 P-star baseball player-Curt Flood D-baseball commissioner-Kuhn reserve clause-in player K's gave teams the unilateral right to renew a player's K in perpetuity. 407 U. composed of 8 incorporated base ball clubs joined as D's. 2. member of Federal League of Pro baseball a corporation under the state laws of Indiana. *After this case. congress passed the Flood Act of 1998. 1922 D-National League of Pro Base Ball Clubs and American League of Pro Base Ball Clubs. giving baseball player’s nearly the same rights as other pro athletes. no interstate commerce exists. 2) Internal League Governance and Commissioner Authority in Antitrust Essential Facilities Doctrine: Essential Facility Doctrine (p 497)-AKA-"bottleneck principle"-taken from Hecht case states. "where facilities cannot practicably be duplicated by would-be competitors.alleged.S. MORE ANTITRUST & PRO SPORTS: 1) BASEBALL-Exception Sherman Act Federal Baseball Club of Baltimore Inc. has allowed previous decisions like Toolson and Federal Baseball to stand for so long. not the essential thing. has clearly evinced a desire not to disapprove them legislatively. it is sufficient if duplication of the facility would be 73 . those in possession of them must allow Rule: them to be shared on fair terms. To be essential: a facility need not be indispensable. National League of Pro Baseball Clubs . 200. ---Congress's positive inaction. Issue: Whether baseball contests between 2 different teams from 2 different states satisfy “commerce” under Sherman Act?-(NO) Rule: Sherman Act Cannot Be Used Against Baseball Because: 1) The business is giving exhibitions of baseball which are purely state affairs. Facts: P alleges D’s destroyed Federal League by buying its teams or inducing its teams to come to National League. the travel is a mere incident. this is an exception-an anomaly. P-Baseball club incorporated in Maryland.S. Baseball is a business and is engaged in interstate commerce. 2) That just because there was travel from state to state. 258. far beyond mere inference and implicaiton. Kuhn . 922 F.2d 1381. Issue:Whether the NFL Rule. -Antitrust laws do NOT require that an essential facility be shared if such sharing would be impractical or would inhibit the defendant's ability to serve its customers adequately.Y. Supp.. and L. N. 1974 Facts:Levin was a prospective buyer of NBA’s Boston Celtics and denied entrance by NBA policy to own team. 1996 Facts: Cowboys wore non-licensed apparel during non-NFL sponsor during and after national tv broadcast game. actual or potential.A. 149. NFL teams voted 22-0. 3d Cir. -Move to L. NFL (Raiders I) . Case: Levin v NBA . IssueRule-Denial of franchise ownership to Levins was not antitrust violation because there was no anticompetitive effect. w/5 abstentions to forbid relocation -Raiders and LA Coliseum brought antitrust action. -Relevant Market: In the antitrust context. therefore. . Dallas Cowboys Football Club.D. relevant market has 2 components: 1) product market 2) geographic market Franchise Relocation-Raiders: Los Angeles Memorial Coliseum Commision v. v. Case: Mid-South Grizzlies v. -The NFL made no showing that the transfer of the Raiders to LA would have any harmful effect on the League.D.. 385 F. 3) Broadcast and Sponsorship Restrictions Case: NFL Properties Inc.Y. Issue: Whether the P's allegations that D wore other non-sponsor apparel on the sidelines of a nationally televised game and made public press conferences alluding that non-NFL sponsors were supporting the D's club. If there was any injury to competition.A. 720 F. it must have been to intra-league competition. 74 .. 726 F. S. 1983 Issue-Whether the NFL has violated §§1 and 2 of the Sherman Act when rejecting an expansion franchise and placing unreasonable restraints on trade and monopolizing interstate trade and commerce? -(NO) RULE: 1) The Sherman Act liability requires an injury to competition. NFL . Coliseum D-NFL Facts: Raiders sought to relocate to LA. 1984 P-Raiders. is sufficient to state claims for violations of the Landham Act and breach of K? Rule: YES-The Lanham Act is read broadly§-43a of the Lanham Act. would promote competition rather than stifle it.2d 772. 2) The essential facilities doctrine is predicated on the assumption that admission of the excluded applicant would result in additional competition. which stated that unanimous approval of the relocation of the franchise was required by ownership. in an economic rather than athletic sense. Ltd. 9th Cir.ecnomically infeasible and if denial of its use inflicts a severe handicap on potential market entrants. S. was in violation of antitrust laws? (YES) Rule: Restriction on franchise movement is anticompetitive because it perpetuates local monopolies.N. 849.. -A factor in determining the reasonableness of an ancillary restraint is the possibility of less restrictive alternatives which could serve the same purposes.Supp. 15 USC 1125(a)-which prohibits unauthorized use of another's trademarks in a manner that creates a likelihood of confusion. 2d 124. 2d Cir. but the first comer is not required to surrender any or all of its desirable sites to the latecomer simply to enable the latecomer to compete more effectively with it. NBA said if they did. 4th Cir. *one of core ?’s in antitrust is the output-lack of an effect on whether the output (tv broadcast of games in this case)will be reduced means the restriction (fee per game in this case) does NOT have a antitrust significance.Chicago Professional Sports Ltd.Whether the NFL by placing expansion franchises was seeking to monopolize the pro football market?-(NO) RULE: Natural Monopolies do not violate antitrust laws. NBA is closer to a single firm than to a group of independent firms->meaning that P's cannot prevail without establishing that the NBA possesses power in a relevant market and that its exercise of power has injured consumers. 2 of which were considered by the AFL. 670 F.2d 1249. Restriction of Players 75 . Partnership v.. 95 F. 1982 Issue: 1)Whether an agreement between members of 1 league of professional sports teams to prohibit its members from making or retaining any capital investment in any member of another league of pro sports teams violates §1 of the Sherman Act?-(YES) 2)-Whether there is a separate market for sports capital and skill?-(YES) Rule: IF a sports league imposes restraint on trade it must demonstrate that any legitimate purpose cannot be achieved through less restrictive means in order to comply with §1 of the Sherman Act. NFL . Substantial market power is an indispensable ingredient of every claim under the full Rule of Reason analysis -IF NBA asks like a single firm-it can only be analyzed under §2 of the Sherman Act. 323 F. near leagued has geographically restricted itself to one location. American Football League v. unless the natural monopoly power is misused to gain competitive advantages.3d 593. NFL . 1996 Facts: Bulls wanted to broadcast as many games as possible on WGN local superstation. -IF the NBA acts like a joint venture-it can be analyzed under the rule of reason analysis of §1 of the Sherman Act. Thus when acting in broadcast market. NBA (Bulls IV) . there is no antitrust problem. 7th Cir. to the detriment of consumers. 4. Antitrust & Rival Leagues: * Case: North American Soccer League v. 1963 Facts: NFL placed expansion teams in certain cities. they had to pay a fee to the leaguel Issues: 1) Whether the NBA is a single entity. (p494) (p494)-It frequently happens that a 1st competitor in the field will acquire sites which a latecomer may think more desireable than the remaining available site. AFL brought a §2 Sherman Act violation for illegal monopoly ISSUE: 1-Whether the District Court properly determined the relevant market?(NO) 2. in order to determine whether a Sherman §1 violation occurred? And 2) Whether the NBA’s fee for the Bulls Broadcast is excessive and will reduce output? Rule: Unless a K reduces output in some market. 5. Relevant market was geographically the entire US because in locating franchises.. the NCAA announced it would discipline the schools and the schools subsequently brought antitrust suit. 1) claimed price fixing by NCAA and the threat of boycott by sponsors was violation of §1 of Sherman Act. rival of NHL. The court did not buy the NHL’s labor exemption defense. 76 . Board of Regents of the University of Oklahoma. 2) NCAA had monopolized market of college football-violating of §2. SCOTUS decided NCAA case which set precedent for future actions. Oklahoma and Georgia. not of the future 5 or 10 years. it was first successful challenge of NCAA based on antitrust theory 2. • Court observed sports is an industry in which horizontal restraints on competition are essential if the product is to be available at all and that the integrity of the product cannot be preserved except by mutual agreement. NCAA & Antitrust NCAA’s reduced power over Television-NCAA v. 3 important principles from outcome: 1. • Court noted need for uniform rule and a governing body to ensure fair and exciting on-field competition that is desirable to consumers. claiming rule was part of an earlier expired CBA. • SCOTUS established analytical framework for applying antitrust law to the sports industry. which was made before a players’ association. I Television Football Plan. members of College Football Association-which negotiated a larger # of tv contracts for its member schools. 468 U. 3. Holding: SCOTUS affirmed appellate court that NCAA plan had violated Sherman Act of §1 by unreasonable restraint of trade and illegal price fixing. challenged NHL’s reserve system from preventing it from obtaining the best “product”-star hockey players. A monopolist cannot excuse his present predatory practices because someday in the future his total domination of the market place may be lessened. Issue: Whether the reserve clause of the original (collective bargaining agreement) CBA was valid in the latter CBA? –(NO) Rule: -The relevant marketplace is the marketplace of today.Case: Philadelphia World Hockey Club v. it had significant impact on NCAA and athletics by initially reducing revenues for most institutions. Philadelphia Hockey Club (1972) Facts: WHA. *Rules and league regulatory activities that further this objective are deemed to be procompetitive for purposes of the antitrust laws. • Court recognized competition itself-->in form of athletic contests among teams is the product that sports leagues offer to consumers. limiting # of televised college football games. 6. 85 (1984): (p 419) Facts: NCAA operated D.S.