SPM4723 Exam 3 UF

Rozelle Rule

An NFL rule that required a team signing a veteran free agent to provide compensation to the team that was losing the player. required a team signing a veteran free agent to provide compensation to the team that was losing the player Stayed in place until 1975 Players sued the NFL saying the rozelle rule was a violation of the Sherman act

Flood v. Kuhn

baseball case, challenged reserve clause, court used stare decisis to rule against flood. Too much money at stake. Ruling in favor of flood would have put mlb at risk. exempt from antitrust laws. Fair = no, economically justified = yes. Courts said don't want to get involved, this is a problem for congress (is there any legal way to keep the status quo) CASE SYNOPSIS Certiorari was granted in order to review the decision of the United States Court of Appeals for the Second Circuit, in plaintiff baseball player's action against defendants seeking a ruling that professional baseball's reserve system fell within the scope of the federal antitrust laws. DISCUSSION The Supreme Court found that plaintiff baseball player could not bring an antitrust claim challenging the sport's reserve system against defendant Commissioner of Baseball, the presidents of the two leagues he was traded between, and the major league clubs. Although baseball was a big business engaged in interstate commerce, precedent dictated that the reserve system was exempt from federal antitrust laws. In this regard, baseball was anomalous among professional sports, but Congress had the power to change the nature of the sport through legislation. Plaintiff's state law claims failed because granting the relief sought would conflict with federal policy and national uniformity. CONCLUSION The Supreme Court affirmed the lower court judgment against plaintiff, based on precedent exempting baseball's reserve system from antitrust laws; Congress had multiple opportunities to end baseball's exemption from the antitrust laws.

economic weapons

boycotts, embargoes, divestment or refusing to invest in another country, freezing assets and withholding foreign aid. tools set forth by the NLRA that either side can use in collective bargaining to gain concessions from the other side in negotiations

Exemptions

provide a league, club, or other entity with immunity from scrutiny for conduct that might otherwise be found to be illegal Most common exemption is in MLB

Sports Broadcasting Act

"Enables clubs to put their separate rights together into one package so that the league can sell the package to one purchaser, such as a TV network, in an effort to protect their home game ticket sales and to allow clubs to share television revenues." exemption from Sherman Act, section 1; allows professional hockey, football, baseball, and basketball to pool and sell their rights in game telecasts

patent

(n.) exclusive rights over an invention; copyright; (v.) to arrange or obtain such rights; (adj.) plain, open to view; copyrighted document provided by the federal government that gives the owner the right to exclude others from reproducing the patented invention for 20 years Patent law is designed to advance science and inventions by providing protection to those who create new things

Olympic Marks

- special level of protection under federal law - covers the interlocking rings, the word Olympic - no proof of likelihood of confusion; improper use is enough strongest trademark protection in the US

Curt Flood

12 year player for St. Louis, hurt his arm and was on a decline, Cards wanted to trade him to philly, flood doesn't want to play there, argued he wasn't a piece of property and could not be bought or sold, didn't report to camp. Challenges reserve clause, which was essentially a lifetime contract at the time. Works with miller, knows he will lose ~300k and not be able to play ball. Supreme court says it is not an interstate business and allowed the reserve clause allows baseball players to sue MLB if they believe that some condition of their employment may violate the antitrust laws

Sherman Antitrust Act

1890 law banning any trust that restrained interstate trade or commerce every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states or foreign nations is declared to be illegal To prove a violation - 1. Plaintiff must show the two parties have an agreement 2. The plaintiff must show that the parties' conduct taken under the agreement unreasonably restrains trade because the conduct is anticompetitive 3. Activity must affect interstate commerce

Single Entity Defense

A defense to an antitrust claim; a party using this defense must demonstrate that instead of being an organization made up of separate business entities, it is a single business entity and therefore cannot be a combination or conspiracy in restraint of trade as required to violate the antitrust laws. instead of being an organization made up of separate business entities (teams) it is one business entity itself and the teams merely buy into that entity in someway or another NFL has used this more than any league

labor law

A set of laws that govern relationships between employees and employers. governs relationships between employers and employees by specifying what both are allowed to do in these relationships and tells what kinds of actions both sides are prevented from engaging in under the law

infringement

A violation, as of a law, regulation, or agreement; a breach when another company uses the first organizations marks without its permission to capitalize on its success

Parody

A work that closely imitates the style or content of another with the specific aim of comic effect and/or ridicule. not held to infringement

Union

A worker association that bargains with employers over wages, benefits, and working conditions organized group of employees that uses their collective strength to protect the rights and interests of the group's members

Brown v. Pro Football

After their collective-bargaining agreement expired, the National Football League (NFL) -- a group of football clubs -- and the NFL Players Association -- a labor union -- began to negotiate a new contract. The NFL presented a plan that would permit each club to establish a "developmental squad" of substitute players, each of whom would be paid the same $1,000 weekly salary. The union disagreed. When the negotiations reached an impasse, the NFL unilaterally implemented the plan. A number of squad players brought an antitrust suit, claiming that the employers' plan unfairly restrained trade. The District Court awarded damages to the players, but the Court of Appeals reversed that decision. Question Are several employers immune from a union anti-trust suit when these employers, bargaining together, unilaterally impose terms on the union if the collective bargaining process reaches an impasse? Conclusion Yes. In affirming the Court of Appeals decision, the Supreme Court held that federal labor laws protect professional football franchises from anti-trust actions brought by their players when those franchises unilaterally impose terms after the collective bargaining process breaks down. Labor laws stabilize, encourage, and protect the collective bargaining process. When that process breaks down, labor laws provide adequate remedies. Employee suits under the Sherman Anti-Trust Act, by contrast, might undermine the integrity of collective bargaining and preempt unnecessarily the labor laws.

Monopoly

Complete control of a product or business by one person or group organization that possesses exclusive control over the means of selling and producing a product

collective marks

a trademark or service mark that identifies members of a union, cooperative, or other collective organization. no trademark protection; they refer to the name or class of the good or service and are so common Ex. Jell-O, Band-Aids

Federal Trademark Act of 1946 aka Lanham Act

Governs the law of trademarks and their registration and provides causes of action that protect trademark rights from infringement Protect the owner of a mark by preventing others from using the owner's mark without permission or in a way that will cause confusion about the actual source of the mark

League Structure

Leagues are structured as an umbrella organization for franchises to cooperate in business while competing on playing field • A crucial question for antitrust analysis is whether a sport league is one entity or entity composed of different, separate owners • If it is a single entity, then its decisions do not constitute section 1 violations (since it applies to two or more entities) • Fraser v. MLS (2000)

Copyright Law

Makes it illegal to copy and distribute protected works without the permission of the author or the author's representative. protects ideas or other items that can be identified on tape, on paper, or on screen

Workplace rights through the passage of the NLRA

Right to form, join, or assist labor organizations Right to bargain collectively with an employer Right to engage in concerted activities

Descriptive Marks

Marks that describe the product or service and leave little a consumer's imagination and that must attach a distinctive meaning to the product or service (called secondary meaning) to be trademarked only identify a characteristic or quality of a good or service Ex. Screech golf ball

strike

Nonviolent refusal to continue to work until a problem is resolved. economic weapon that employees are given; employees collectively refuse to work in an effort to obtain concessions from their employer on terms being negotiated through collective bargaining

collective bargaining

Process by which a union representing a group of workers negotiates with management for a contract negotiation process through which employers and employee union representatives have mutual obligations to meet at reasonable times and confer in good faith with respect to the three mandatory terms of collective bargaining (wages, hours, and conditions of employment)

Right to Control Test

Test done by courts to see whether an agent is an independent contractor or employee considers the degree of control that an employer has over a worker under 11 factors

Fair Use

The ability to use a small amount of copyrighted work without permission, but only in certain ways and in specific situations (schoolwork and education, news reporting, criticizing or commenting on something, and comedy/parody). when a news company uses the term "Boston Marathon" to describe the broadcast of the event this is not trademark infringement some copyright materials can be used without the copyright owner's permission News reporting, teaching, scholarship, research

Right of publicity

The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission. the right of any person to control the commercial use of their identity

Reserve clause

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. if a player did not automatically sign a new contract with the team for the next season, all the provisions of his present contract would be automatically renewed No free agency - players could not negotiate with other teams for their services Reserve clause was in place until 1975

Boston Athletic Assoc. v. Sullivan

Trademark Infringement Mark Sullivan sold T-shirts and other merchandise with the mark "Boston Marathon". BAA sued claiming that Sullivan's use of the marks infringed on BAA's trademark rights. In analyzing BAA's complaint, the court focused on whether consumers would be likely to mistake Sullivan's T-shirts for the BAA's. In looking at the eight factors (refer to book) the court found that Sullivan clearly infringed on BAA's marks and that his infringement through the sale of inferior products had the potential to negatively affect the perception of the quality of the products produced by BAA.

Trademark Infringement

Unauthorized use of another's mark. The holder may recover damages and other remedies from the infringer. when a person uses a properly registered trademark of another without the owner's consent

Patent Infringement

Unauthorized use of another's patent. A patent holder may recover damages and other remedies against a patent infringer. someone else made, used, offered to sell or sold, or imported into the US the patented material without permission

unfair labor practices

Unlawful acts made by either unions or management interfering with, restraining or coercing employees in the exercise of their section 7 rights; dominating or interfering with the formation or administration of a labor organization; discriminating against employees in hiring, tenure, or conditions of employment to discourage labor organization membership; discharging or discriminating against an employee who files and unfair labor practice charge or testifies before the NLRB; refusing to collectively bargain

Lockout

When management closes the doors to the place of work and keeps the workers from entering until an agreement is reached economic weapon given to employers; employers stop work and deny employment to employees In response to a lockout, employers can file an antitrust lawsuit under the Sherman Act

Salary Cap

a maximum amount that a team can spend on players' salaries

injunction

an authoritative command or order court order requiring someone to perform or refrain from performing a certain activity

If a group of employees is unionized

an employer may not collectively bargain with employees individually or outside of the union's presence Only employees in the US can unionize

Trademark

any word, name, symbol, or device or any combo thereof Identifies a seller's goods and distinguishes them from those sold by others

per se and rule of reason

court analyzes the nature of conduct (when violating section 1) using this; conduct that is inherently anti-competitive (price fixing and group boycotts) is illegal per se and automatically violate the Sherman Act Sherman antitrust act, section 2 - regulates entities that exhibit some form of monopoly power Review of franchise relocation rules, television contracts and competition among leagues

copyright infringement

illegally copying or distributing copyrighted material unauthorized use of copyrighted material in a way that violates one of the owner's exclusive rights in the copyright Subject to a strict liability standard so the owner needs to show only that his protected copyright was copied to sustain his claim

concerted activity

in labor law, actions by employees, such as a strike or other mutual activity that furthers their employment interests, protected by the National Labor Relations Act. an activity two or more employees engage in to aid or protect the terms and conditions of their employment Ex. Two or more employees approaching their employer to discuss increasing their wages

Clayton Antitrust Act

law that weakened monopolies and upheld the rights of unions and farm organizations when a plaintiff proves that a breach of the Sherman Act has occurred, the damages that the plaintiff can recover are tripled

antitrust laws

laws aimed at eliminating collusion and promoting competition among firms implemented to promote competition and efficiency in the marketplace and to protect consumers from the monopoly power of big businesses High level of competition among producers Most prominent in professional sports - player restraints, franchise relocation, ownership issues, and disputes between leagues

Dilution

lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of either the presence or absence of competition between the parties or a likelihood of confusion, mistake, or deception Blurring - party uses or modifies a mark in such a way that the use creates the possibility that the original mark will lose its ability to serve as a unique identifier for the trademark owner Tarnishment - mark is used in association with unwholesome or shoddy goods and services

NCAA v. Board of Regents

n 1981, the National Collegiate Athletic Association (NCAA) entered into negotiations with ABC and CBS regarding televising the NCAA football games. Each of those companies had the rights to air 14 live games per season as well as to negotiate individually with the competing schools, and they were required to pay a "minimum aggregate compensation" to the participating schools. The goal of the plan was to televise games in such a way as to not drastically decrease live attendance at the games. The NCAA did not permit any of the schools to negotiate outside of this plan. The University of Oklahoma and the University of Georgia are both members of the College Football Association (CFA), a group within the NCAA that was formed to represent and promote the interests of the major football schools. These schools, along with the other schools in the CFA, negotiated a separate contract with NBC that would allow for more televised games and greater revenues for the schools in question. The NCAA then announced that it would take disciplinary action against any school that complied with the CFA plan as opposed to the NCAA one. The respondent schools took the issue to the District Court for the Western District of Oklahoma, which found that the NCAA contract violated the Sherman Act. The Court of Appeals for Oklahoma affirmed the judgment of the lower court. Question Does the NCAA plan for televised football games impose a restraint on the free market and thus violate the Sherman Act? Conclusion Yes. Justice John Paul Stevens, writing for a 7-2 majority, held that the NCAA plan creates a structure in which the market cannot be responsive to viewer demands in terms of price and output. Since the viewers of college football games can be defined as a distinct market, a plan that places the NCAA in complete control of the broadcasts that reach this market creates the type of monopoly that the Sherman Act was meant to prevent. By limiting the number of live broadcasts, the Court found that the NCAA was attempting to artificially increase the value of live tickets, in the same way that a monopolist seeks to manipulate the market by limiting output. In his dissent, Justice Byron R. White argued that the Court erred by treating the NCAA as a purely commercial and profit-oriented organization. Because the NCAA is uniquely linked to both amateur athletics and higher education, it has been allowed a great deal of leeway in regulation that would be condemned in a purely business environment. He further argued that the NCAA plan "reflects the NCAA's fundamental policy of preserving amateurism and integrating athletics and education." Justice William H. Rehnquist joined Justice White in the dissent.

Trademark Law

name, logo or other defining characteristic that the public can recognize and associate with the organization

License

permits the licensee to associate its goods, services, or business with the logos, names, and mascots of the licensor Contractual relationship between the licensor and licensee Licensor seeks to gain additional public exposure, expand its business, and generate income by granting permission to licensee to use its various images Licensee hopes to increase public's demand for its business, goods, or services by linking with a popular local, national, or international entity

Suggestive Marks

provide some suggestion as to a quality or characteristic of the goods or services associated with the mark, but require some mental exercise to connect the mark with the product hint at the characteristics of the goods or services but require some imagination to understand the product they stand for Ex. Hot pockets (warm food item but it would be a stretch that someone could guess it was pizza)

National Labor Relations Act (NLRA)

provides several important rights to American workers; specifies what types of actions workers and employers are prohibited from engaging in Applies only to private employers and their workers National Labor Relations Board (NLRB) is responsible for overseeing and enforcing the NLRA

Cyber-squatting

registering, selling, or using a domain name to profit from someone else's trademark act of registering, with bad faith intent to profit, a domain mane that is confusingly similar to a registered or unregistered mark or that dilutes a famous mark

service marks

similar to ordinary trademarks but used to identify the services or intangible activities of a business rather than a business's physical product sale or advertising of services to identify and distinguish the services of one entity from the services of others NCAA

Confusion

strength of the mark, similarity between the marks, evidence of actual confusion, consumer sophistication, quality of the alleged infringer's products, similarity between the products and the ways they are sold, likelihood that the owner will expand the use of her own marks in the future on other products, whether the alleged infringer acted with good faith

Ambush Marketing

the practice by which a rival company attempts to associate its products with an event that already has official sponsors advertising or promotional campaign that confuses consumers and wrongly implies that the company is an official sponsor of an event

Decertification

the process by which workers take away a union's right to represent them the vote of union members to discontinue a union's representation or to be represented by another union Cannot go to court if you have a union so they have to decertify

treble damages

three times the damages actually sustained injured party is awarded three times the amount of damages they incurred

interstate commerce

trade between two or more states commerce that takes place between two or more states

Arbitrary or fanciful marks

trademarks that are inherently distinctive because they describe the source of a good and not the actual good itself no direct relationship to the product itself; inherently distinctive because they indicate the source of the goods rather than describe the goods themselves Ex. Nike for sports apparel

Labor Exemption

when employers and employees have agreed to a collective bargaining agreement in good faith, neither can bring an antitrust challenge related to the terms of the agreement Three part test The restraint of trade affects only the parties to the collective bargaining agreement The restraint is a mandatory subject of collective bargaining The collective bargaining agreement is the product of arms-length bargaining

Secondary meaning

widespread use and public recognition so that it indicates the source of the good or service instead of the good or service itself Ex. Team colors and logos

Generic marks

words that are common and do not refer to products from a specific producer no trademark protection; they refer to the name or class of the good or service and are so common Ex. Jell-O, Band-Aids

Player Restraints

• Assuming leagues are not single entities, then the following labor issues have antitrust implications: • Player drafts • Restrictions on free agency • Reserve clause • Rozelle rule • Salary caps

Non-statutory Exemption

• Defense to challenges under antitrust law • Who can use the exemption? • Powell v. NFL • When does the exemption end? • Brown v. Pro Football

O'Bannon v. NCAA

• In 2014, a california district court found that the NCAA violated antitrust by limiting student compensation • Marked the first time a district court applied rule of reason analysis to NCAA regulation of student compensation

Antitrust Review of the NCAA

• Rules that affect commercial activity have been found to violate the antitrust laws • NCAA football television plan that set limits on number of games that could be televised was found to violate antitrust laws (NCAA v. Board of Regents, 1984) • Rule restricting coaches' salaries was found to violate antitrust laws (Law v. NCAA, 1998) • Rules that are not commercial in nature have been found to not violate the antitrust laws • NCAA argues that eligibility rules and academic standards are needed to preserve amateurism of NCAA athletics • NCAA no-draft, no-agent rules barring athletes who are drafted by a professional sport league or sign with an agent do not violate antitrust laws (Banks v. NCAA, 1992)