Sport and Legislation

Title I of the ADA states

"[N]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment" (42 U.S.C. 12112(a)).

Trademark Strength: Inherently Distinctive

"arbitrary or fanciful" and "suggestive" marks

False Endorsement Claims developed the following eight factor test

(1) strength of the plaintiff's mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant's intent in selecting the mark; (8) likelihood of expansion of the product lines

Internet

In the 1990s, organizations began to establish websites to promote their products and services; many found that someone else had already registered their preferred domain name. The Latham Act outlawed the act of registering, with the bad faith intent to profit, a domain name that is confusingly similar to a registered or unregistered mark or dilutes a famous mark.

Trademark Strength: Three Levels of Strength:

Inherently Distinctive Secondary Meaning Generic

three main pathways to enforce Title IX:

Internal: Office for Civil Rights (OCR): Filing of a federal lawsuit

Trademark Infringement: the courts use a two-pronged analysis:

1. Does the plaintiff have a protectable property right in the name or mark it seeks to defend? 2. Is the defendant's use of a similar mark likely to cause confusion, mistake or deception in the market as to the source, origin, or sponsorship of the products on which the marks are used?

FOUR TYPES OF INVASION OF PRIVACY

1. Intrusion upon an individual's seclusion or solitude, or into his or her private affairs; 2. Public disclosure of embarrassing private facts about an individual; 3. Publicity which places an individual in a false light in the public eye; and 4. Appropriation of an individual's name or likeness"

Categories of Copyright Protection

1. Literary works 2. Musical works 3. Dramatic works 4. Pantomime and choreographic works 5. Pictorial, graphic, and sculptural works 6. Motion pictures and other audiovisual works 7. Sound recordings 8. Architectural works (Copyright Act, 1994).

Fair Use: There are four tests to ascertain fair use:

1. The purpose and the character of use, whether it is for commercial or for nonprofit educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the material used in comparison with the whole 4. The effect of the use on the potential market or value of the work.

Consumer Confusion: Eight Factors for Consideration:

1. The similarity of the marks 2. The similarity of the goods 3. The relationship between the parties' channels of trade 4. The relationship between the parties' advertising 5. The classes of prospective purchasers 6. Evidence of actual confusion 7. The defendant's intent in adopting its mark 8. The strength of the plaintiff's mark

Two Criteria for Copyright Protection

1. The work must be original 2. It must be in some tangible form, which can be reproduced (Copyright Act)

Levels of Scrutiny Strict/High

Necessary to accomplish a compelling state interest.

Music and Performance

Performance of music is legal without paying royalties if it is for nonprofit and all money goes to charity.

The Supreme Court has adopted three approaches to determine if there has been a violation of the Sherman Act.

1. Under the "rule of reason" test, if the defendant can prove the conduct, which restrains trade, is a legitimate business practice and is the least restrictive means for the defendant to achieve that business practice/objective, the rule of reason is a defense. 2. Illegal per se activities are presumed to have no benefit to competition in the industry. 3. The Court focuses solely on the effect a challenged practice has on consumer welfare has emerged.

Coaching and Administration

Although many people still associate the term gender equity in sports with participation opportunities for student athletes, the term also applies to the equitable selection and treatment of coaches and athletic administrators. This chapter examines the issues associated with coaches and athletic administrators.

Civil Rights Act of 1991

Amended the 1964 Civil Rights Act to allow jury trials and compensatory and punitive damages in addition to back pay for intentional discrimination under

Peer Sexual Harassment in Athletics

An educational institution is liable for peer harassment when the harassing conduct is reported and the administration fails to reasonably respond.

Disclaimer-

Some companies place disclaimers alerting consumers that the product or service is not the same, and that it is not from a certain source organization. They do this because they think it protects them from liability for infringement.

Americans with Disabilities Act Amendments Act of 2008

The determination of whether a person has an impairment that substantially limits a major life activity, a "disability" under legal terms, must be made, with a few exceptions, without regard to the beneficial effects of a mitigating action.

Title I of the Americans with Disabilities Act

This chapter examines Title I of the Americans with Disabilities Act (ADA) and its' requirements as they relate to selection criteria, application accessibility, job application and interview inquiries, medical exams and inquiries, reasonable accommodations, and essential job functions.

Age Discrimination in Employment Act (ADEA)

This chapter examines the Age Discrimination in Employment Act (ADEA), which prohibits employment discrimination on the basis of age. substantive provisions from Title VII stating that a person cannot be discriminated against on the areas of hiring, firing, compensation, or privileges of employment based on age -Applies to workers over the age of 40 and to employers with 20 or more employees working 20 or more calendar weeks a year and whose organization impacts interstate commerce

OPPORTUNITIES TO PARTICIPATE FREE FROM HARASSMENT

Title IX is specifically applicable to sexual harassment of both students and their teachers and coaches. Title VII applies only in the workplace, and thus does not protect students, but Title VII has been the fountain from which much of Title IX's strength in the area of sexual harassment has flowed.

Sexual Harassment in the Schools

Title IX prohibits discrimination on the basis of sex by any educational institution receiving federal funds. Sexual harassment is discrimination based on sex that is prohibited by Title IX because it disrupts and deprives students of equal access to education.

Trademark and Service Marks

Trademark -"any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish goods . . . from those manufactured or sold by others.

Principles of Trademark Law

Trademark law affords protection to the owner of a name or emblem and precludes another from palming off goods or business as the goods or business of the original source. This chapter focuses on issues involving the definition of trademarks and service marks, trademark infringement, protectable property interest, trademark strength, consumer confusion, and defenses/bars to recovery.

Disparaging Marks

Trademark protection can also be denied if a mark is shown to be immoral, deceptive, scandalous, or disparaging.

Protectable Property Interest

While registration of a mark confers procedural advantages, it does not enlarge the registrant's proprietary interest in the mark, for ownership of a mark rests on adoption and use, not on registration.

Copyright and Patent Law

both forms of intellectual property. Copyright law protects artistic endeavors while patent law safeguards inventions, designs, and ideas. This chapter focuses on copyright protection, rights of the copyright owner, fair use, music and performance, public performance restrictions, television and radio broadcasting, and patent law.

Title IX Filing of a federal lawsuit

by someone with legal standing

Antitrust Law Applied to Baseball

by virtue of its exemption from the antitrust laws. The exemption results from the 1922 Supreme Court decision, Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball

Internet

continue to be in the forefront of copyright issues because of complaints of possible laws limiting Internet freedom.

trademark performs a variety of functions

designating the source or origin of a particular product or service, even though the source is unknown to the consumer; denoting a particular standard of quality which is embodied in the product or service; identifying a product or service and distinguishing it from the products or services of others; symbolizing the goodwill of its owner and motivating consumers to purchase the trademarked product or service; representing a substantial advertising investment; protecting the public from confusion and deception, ensuring that consumers are able to purchase the products and services they want; and, enabling courts to fashion a standard of acceptable business conduct.

Abandonment -

discontinued use of a trademark with the intent not to resume such use. A trademark owner must still actively use the mark in order for it to remain valid. An abandoned mark may be claimed and used by the public at large.

Individual Disparate Treatment-

discrimination against one person.

Title IX Internal:

each institution must have a designated Title IX officer, who must educate faculty, staff, and students about the rights and responsibilities imposed by Title IX.

Copyright Protection

gives the owner of the work the exclusive right to copy, reproduce, distribute, publish, perform or display the work.

Title IX Office for Civil Rights (OCR):

if a complaint is filed, OCR investigates and negotiates a "letter of resolution" with the institution in which the institution agrees to a time frame and list of changes to be made.

Title IX of the Education Amendments Act of 1972

illegal for any educational institutions receiving Federal financial aid to discriminate on the basis of sex. Sex discrimination involving state action is allowed if it is necessary to achieve important governmental objectives. Otherwise it is prohibited under the Equal Protection Clause and Section 1983 provides a remedy for such violations.

Quid Pro Quo Harassment

involves the employer's granting or denying an employment benefit based on the employee's response to the employer's sexual advances.

Right of Privacy -

it became illegal for a person or corporation to use for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person.

Bona Fide Occupational Qualification

it is not legal to discriminate on the basis of religion, gender, or national origin if the employer can show the classification is a bona fide occupational qualification (BFOQ). Race and color are never BFOQ

Exemptions: "Home-Use" -

limits the exclusive rights granted copyright owners under §106(4) to perform and publicly display their copyrighted work.

Title IX Recreation Program Application

often under the jurisdiction of Title IX. As long as all three elements (federal money, allegations of sex discrimination and education program) are met, recreation programs are included in the jurisdiction of Title IX.

Licensing

permit given by the trademark owner that allows another company to associate their business and/or product with the name, logos, symbols and designs of the trademark owner. By paying some form of compensation, the company that receives the license can then use the trademark of the licensor to sell its own products.

Disparate Impact-

plaintiff is challenging a neutral employment practice, which regardless of intent has a discriminatory effect upon a protected group.

Affirmative Action

practice of giving preference to individuals under-represented in the work place to rectify past discrimination. It is legal if: - The discrimination results from a former, systemic program - The program is temporary - The program does not bar the hiring/promoting of non-minorities - The program does not force the employer to hire unqualified workers.

Trademark Strength: Generic -

primarily denotes a product, and not the product's producer

14thAmendment to the Constitution

prohibits discrimination

The purpose of copyright is to

protect those who have put much time and energy into some creative project. These creators deserve to reap the financial benefits of their work. The law is economically motivated, designed to protect the rights of those who provide the many creative endeavors we hear and see daily.

Ambush marketing -

refers to the direct efforts of one company to weaken or attack a competitor's official association with a sports organization or event by using advertising and promotional campaigns designed to confuse consumers and to misrepresent the official sponsorship of the event.

Image Rights

relates to a person's name or likeness, such as photograph or other visual representation of the person.

Retaliation-

retaliation against an employee who has flied a complaint is illegal.

Business Necessity

serves as a defense to a disparate impact discrimination claim, where a particular practice causes a protected class to face discrimination.

Trademark Strength: Secondary Meaning -

the mark has become primarily indicative of the source of goods or services, rather than the goods or services themselves

Disability: According to the Preface and Part I.

the term "disability" means: a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; b) a record of such impairment; or c) being regarded as having such an impairment. The ADA does not specifically define "major life activities.

Employer: According to Title I,

the term "employer" means "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person."

Trademark and Service Marks Use and Registration

the trademark owner must be the first to use the mark in trade and use it continuously from that point on. Consumers rely on trademarks to ensure that the good or services that they are purchasing are truly those of the companies that they think they are buying.

Public Performance Restrictions

A performance or display is public if it is open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. For public performances, a license must be obtained

Patent

A person can obtain a patent for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement." Patents have begun to be used on sport moves:

Title IX Athletics Application

According to the Policy Interpretations, an institution has effectively accommodated the interests of its students if it satisfies any ONE of the following three benchmarks: - Participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or - The institution can show a history and continuing practice of program expansion demonstrably responsive to the developing interest and abilities of the members of the under represented sex; or - The institution can show that it is fully and effectively meeting the interests and abilities of the under represented sex.

Coach/Athlete Sexual Harassment

Administrators and coaches must measure whether the conduct (touching, keeping track of athlete's life, nicknames, etc.) is harassing by its impact on the athlete, not just by the intent of the coach.

False Endorsement Claims

False Endorsement Claims

Reasonable Accommodation/Undue Hardship According to Title I of the ADA, a "reasonable accommodation" may include:

(a) Making existing facilities used by employees reasonably accessible to and usable by individuals with disabilities; and (b) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. According to Title I, §12111 [sec. 101] (10)(a) of the ADA, an undue hardship is "an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (b)": (b) In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include: (i) The nature and cost of the accommodation needed under this Act; (ii) The overall financial resources of the facility or facilities involved in the provision of reasonable accommodation; the number of persons employed at such a facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) The overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; the number, type and location of its facilities; and (iv) The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

The Commission stated that the EEOC is: "Aware of the following justifications that have been advanced as factors other than sex in order to justify pay differentials in coaching:

(a) the male coach produces more revenue for the school than the female coach; (b) the male coach must be paid higher wages in order to compete for him; (c) salary is based on prior salary; (d) salary is linked to the sex of the student-athletes rather than the sex of the coach; (e) the male coach has superior experience, education, and ability; and (f) the male coach has more duties"

Trademark and Service Marks Categorized by strength:

- Arbitrary - bear no direct relationship to product itself - Suggestive - hint at the characteristics of the goods or services - Descriptive - identify a characteristic or quality of a good or service

Title IX jurisdiction to be triggered. The elements are:

- Gender discrimination - Federal funding - Education program

Defenses under the First Amendment of the United States Constitution :

- Newsworthiness Doctrine - The Incidental Use Exception - Parody Defense - Transformative Use Defense

Equal Pay Act of 1963

- The equal pay act prohibits an employer from discriminating between employees on the basis of sex except where such payment is made, pursuant to: - A seniority system, - A merit system, - A system, which measures earnings based of quantity or quality of production, - A differential based on any other factor than sex. In order to succeed under the EPA, the plaintiff must prove that the employer paid different wages to an employee of the opposite sex for equal or "substantially equal" work.

establish a prima facie case under the ADEA, the plaintiff must establish the following elements by a preponderance of the evidence:

- The plaintiff is an employee or applicant for employment with the employer - The employee is a member of the protected class - The employer has twenty or more employees - The plaintiff was qualified for the job or was performing the duties and responsibilities of the job satisfactorily - The plaintiff suffered some adverse condition with respect to their employment - The employer hired someone outside the protected class or replaced the plaintiff with someone outside the protected class In addition to the theories of liability (See chapter 7.13), it is unlawful to retaliate against someone for filing an age discrimination charge, participating in an investigation, or testifying in a proceeding or lawsuit filed under the ADEA.

Rights of the Copyright Owner: A copyright gives its owner certain rights to the work, including

- The right to reproduction - The right to preparation of derivative works including translation from language to language and from one form to another (i.e., from book to movie, from movie to play) - The right to public distribution - The public performing rights, which include live renditions that are face to face on recordings, broadcasts, and retransmissions by cable - The right to the public display, specifically written or art work (Copyright Act, 1994).

Federal Trademark Act of 1946/the Lanham Act

- protects consumers and competitors from a wide variety of misrepresentations of products and services in commerce, including the unauthorized use of an individual's image rights.

Right of Publicity - Three goals behind the right:

- recognizes the economic value of an individual's identity - incentive for creativity - prevents unjust enrichment of those who usurp the identity of another (Cardtoons v. MLBPA 1993).

Theories of Liability Courts applying Title VII have established four theories of liability

-individual disparate treatment \ -systemic disparate treatment -disparate impact -retaliation.

Title VII of the Civil Rights Act of 1964 (See chapter 7.13) It shall be an unlawful employment practice for an employer:

1) To fail or refuse to hire, or discharge an individual or to discriminate with respect to terms, compensation, conditions, or privileges of employment because of individual's race, color, religion, sex or national origin; or 2) To classify an employee or applicant in any way which would deprive he/she opportunities or adversely affect his status as an employee, because of race, color, religion, sex, or national origin.

Hostile Environment Determining whether or not there is a hostile environment is a three-step approach:

1) totality of the circumstances 2) whether a reasonable person in the same or similar circumstance would find the conduct sufficiently severe or pervasive to create an intimidating, hostile or abusive work environment (objective test) 3) whether the plaintiff perceived the environment to be hostile or abusive (subjective test).

Force-

Attempted rape or assault, rape, assault, stripping, extreme forms of hazing, stalking, sexual abuse, physical abuse, vandalism

Antitrust Law: Professional Sport Applications

Because the professional sport industry employs such restrictive rules and policies, antitrust litigation has become a big part of the business of professional sports. This chapter examines how the Sherman Act has been applied to professional baseball and other professional sport in the areas of broadcasting, competitor leagues and player relations.

Defenses/Bars to Recovery

Beyond establishing that the plaintiff has no proprietary interest in the challenged mark or that its use by the defendant is not likely to cause consumer confusion, other defenses may also bar a plaintiff's infringement claim.

Title VII.

Classes Protected Under which makes it unlawful to discriminate on the basis of: - Race - Color - National origin - Sex - Religion

Equal Employment Opportunity Commission (EEOC) issued guidelines

Discrimination in the Compensation of Sports Coaches in Educational Institutions in an effort to clarify the Commission's position on the application of the Equal Pay Act and Title VII to sex discrimination claims. The largest part of the EEOC Guidelines focused on the affirmative defenses typically utilized by defendant institutions.

Opportunities to Participate

Fourteenth Amendment of the United States Constitution Title IX of the Education Amendments of 1972.

Older Workers Benefit Protection Act (OWBPA)

In 1990, Congress amended the ADEA with the enactment of the OWBPA, which specifically prohibits employers from denying benefits to older workers.

Common Law Misappropriation-

In order to establish a cause of action for common law misappropriation the courts have generally held that an individual must demonstrate: 1. the defendant used the plaintiff's identity; 2. the appropriation of plaintiff's name or likeness provided the defendant some advantage, commercially or otherwise; 3. lack of consent; and 4. resulting injury

Title IX Requirements

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Threats -

Quid pro quo demands, conditioning evaluations or references on sexual favors, retaliation for refusal to comply with requests

Levels of Scrutiny Mild/low

Rationally related to a legitimate state interest.

Constitution Law and Civil Rights Act - Section 1983 of the Civil Rights Act of 1871

Section 1983 provides a vehicle for obtaining a remedy for violations of federally protected rights. It is utilized to enforce rights governed under the Equal Protection Clause of the

Television and Radio Broadcasting:

The Copyright Act protects any original works of authorship fixed in any tangible medium, including motion pictures and other audiovisual works. The broadcast, by radio or television, of a live sporting event is eligible for protection.

Lilly Ledbetter Fair Pay Act of 2009

The gender wage gap in the U.S. in 2007 was about 22.2 percent, which translates to women earning about 78 cents for each dollar that a man would earn in the same circumstances. This Act allows victims of pay discrimination to assert their rights under the Equal Pay Act and Title VII for full compensatory and punitive damages.

Consumer Confusion:

The key issue in determining the outcome of most infringement cases is whether or not an alleged infringement creates a likelihood of market confusion

Equal Protection clause of the Fourteenth Amendment guarantees that

The no state actor such as a federal, state, or local governmental agency, can gratuitously classify people and treat them differently based on those classifications without having a defensible reason.

Pregnancy Discrimination Act of 1978

The physiological difference of women being able to bear children has contributed to bias against women in hiring, promotion, and salaries. This difference has historically been used to justify differential treatment between the sexes in a variety of situations. The Act prohibits employers from negatively impacting employment or benefits on the basis of pregnancy and childbirth.

Title VII

Unlike Title IX, which only protects against sex discrimination, Title VII protects against age, disability, race, gender and other forms of discrimination. Title VII's protections, however, are limited to the workplace (employees and applicants).

Sexual Harassment

Whether it is a health club owner promising to promote an instructor in exchange for sexual favors, baseball players waiting to take batting practice make comments about track athletes' bodies while they are completing their workouts, or a coach initiating inappropriate conversations, touching, or engaging in sexual relationships with athletes, sexual harassment is a major problem in the sports and recreation industry

Qualified Individual with a Disability: According to Title I

a "qualified individual with a disability" means: "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or desires." The courts have recognized a distinction between termination of employment because of misconduct and termination because of a disability.

Systemic Disparate Treatment-

a pattern of discrimination.

Levels of Scrutiny Intermediate

an evolving middle ground (more than rationally related to state interest.

Title VII of the Civil Rights Act of 1964

unlawful to discriminate on the basis of race, color religion, gender or national origin in any employment activity. This chapter examines Title VII and the EEOC, the administration agency charged with the enforcement of Title VII. Title VII applies to employers with 15 or more employees working at least 20 weeks whose organizations' impact interstate commerce. Excludes: U.S. Governmental Agencies, Some Departments of the District of Columbia, Native American Tribes, and bona fide membership clubs.

Exemptions: Fairness in Music Licensing Act of 1998

was passed providing business establishments with the right to use radio, television, and cable transmission on a limited basis without infringement