Sport Law Final

Fifth Amendment

"no person shall ... be deprived of life, liberty or property without the due process of law" To activate the due process clause, employer, in the course of discharge must have made a statement that 1. seriously damages the employee's standing in his profession 2. the statements must be made public 3. employee must claim the charges were false

Employment at Will

common law doctrine that typically governs employment relationships

Substantive Due Process

concerns the actual rule or regulation in question, that is the substance of the rule. The person is challenging the content and application of the rule

Procedural Due Process

concerns the procedures used to enforce a rule or regulation. the primary distinction between substantive & procedural is that persons alleging violations of procedural due process are not challenging the rule's content, just the ways the rule was applied to them. Typically a person alleges that he was not given enough process

Descriptive Mark

only identifies a characteristic or quality of a good or service can only be given trademark protection if it obtains secondary meaning ex. Screech golf ball

Policy Interpretation of Title IX

part 1 deals with financial assistance and requires that such assistance be allocated equally to male and female athletic participants part 2 deals with equality in the other program areas provided in the regulations, such as facilities and equipment part 3 deals with effective accommodation of interests and abilities of both sexes to provide equal athletic opportunity for members of both sexes. This area has seen the most litigation

Arbitrary or fanciful mark

strongest mark an organization can have inherently distinctive serves as an indicator of the source of the good rather than describing what the good is Ex. NIKE

Equal Employment Opportunity Commission (EEOC)

the governmental agency that monitors the compliance with Title VII. If one of your applicants is qualified and believes they have been discriminated against in the hiring process, they would first file the claim with EEOC then decide to investigate and take action

Commerce

trade, traffic, commerce, transportation, transmission, or communication among several states; or between a state and any place outside there of

Fair Use or Parody

trademark protection is not absolute and does not bar ALL possible uses of a trademark by those who do not own the trademark, where a trademark is used fairly and in good faith only to describe the goods or services involved, there is no trademark infringement (ex. newscast) -Parody of a trademark typically will not be held to infringement

First Amendment Freedom of Expression

Free Speech Clause: provides us the right to say what we want without government intervention, but not all speech is protected. The government may impose restriction on time, place, and manner in which we express ourselves. Obscenity does not receive any protection Bethel School District v. Fraser: senior gave a speech filled with sexual innuendo "a democratic government cannot survive unless people can freely express their political views and opinions as well as criticize governmental policies and actions. Freedom of speech, especially political speech, is a very important right, and the courts have traditionally protected this right as much as possible" Commercial Speech: expression that is related to the economic interests of the speaker and his audience. This form of speech would include advertisements for a product or service. Protected by 1st amendment but afforded less protection than political speech

Protected Classes

Race, color, and national origin Gender Religion Age Disability

Fourteenth Amendment Affirmative Action

affirmative action: term given to programs designed to reverse the effects of past and current discrimination Controversy: white people getting mad that they are even having to be considered next to minorities, labeled as reverse discrimination Legal scrutiny: necessary: narrowly tailored

Fourteenth Amendment Intermediate Scrutiny

"actions substantially related to achieving an important governmental interest" "must" vs. "should"

Fourteenth Amendment

"no state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws" - also referred to as the equal protection clause Immutable Characteristics: characteristics with which people are born, such as race, ethnicity,a nd gender

Affirmative Action

proactive process whereby employers actively seek out, hire, and promote qualified people in protected groups. The approach is designed to reduce or eliminate discriminatory practices in hiring, promotion, and retention of employees and providing increased employment opportunities to people in protected classes, to ensure equal opportunity in employment `

Age Discrimination in Employment Act (ADEA)

prohibits employment discrimination on the basis of age for people at least 40 years old. The law applies to businesses with 20+ employees and who's activities influence interstate commerce

Suggestive Mark

provides a hint about a good or service requires some imagination to understand product it stands for ex. Hot Pockets

Collective Mark

refers to member of a cooperative, association, or other collective organization indicates membership in the particular organization ex. NBA, SEC

Generic Mark

refers to the name or class of the good or service so common that it does not clearly indicate the source of the good or service ex. Kleenex or Jello

Separate Teams

schools may sponsor teams for members of one sex IF selection is based on athletic skill and if the sport is a contact sport, HOWEVER there is no contact sport exception Contact sports, even if predominately male, are still taken into account under part 1 of the compliance test

Basis of Discrimination

1. They are a member of a protected class (ie. race, color, or national origin) 2. They are qualified for the job 3. The job remained open or was offered to someone not in the protected class

Trademark

-Any word, name, symbol, or device, or any combination thereof ... used by some entity to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown identifies a seller's goods and distinguishes them from those sold by others signifies that goods come from one particular source indicates that products are of a certain quality advertises, promotes and assists in selling particular goods

First Amendment Right of Association

-Individuals have the right to form associations, thereby choosing with whom they wish to associate and socialize -basic right is guaranteed by the 1st amendment provided the association does not commit criminal activities or violate an individual's civil rights related to race, gender, age, religion or national origin Equal Protection: contained in the fourteenth amendment, guarantees that laws will be applied in an equal and nondiscriminatory manner Due Process: contained in both the fifth and fourteenth amendments as well as in many state constitutions, guarantees that a person cannot be deprived of life, liberty, or property without a fair process or hearing

Intellectual Property Law

-Success is often defined by revenue -intangible sources: team & player likeness, sponsorship of arenas/events, what the logos represent -Difference between professional and university sports PRO: sponsorship/ticket sales/ merchandise UNIV: ticket sales focus Areas of Intellectual Property Law 1. trademark 2. copyright 3. right of publicity 4. patent

Three Part test of Title IX

1. Proportionality Test 2. History of Improvement Test 3. Effective accommodation of Interest

to determine if sexual harassment existed

1. Quid pro quo harassment: sexual favors ar demanded in exchange for better working conditions 2. Hostile work environment: intimidation and insult alter the work environment 3. The existence of sexual harassment policies and procedures: plans should be put in place to correct and prevent any sexually harassing behavior 4. Whether sexual harassment policies and procedures were followed: formal complaints must be taken seriously, and remedial actions should be taken as necessary against the supervisor

Federal Trademark Act of 1946

Also known as Lanham Act Purpose: to 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 as to the actual source of the mark

Fourteenth Amendment Rational Basis

Applies to all classifications not covered by strict or intermediate scrutiny, not suspect or semi-suspect or linked to fundamental rights Government needs to show a legitimate reason for classification proving that the basis for classification is rationally related to a legitimate governmental interest

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances' Establishment clause defined - Separation between church and state Free exercise clause - bans the government or its agencies from interfering with anyone's religious belief or practices

Business Necessity

Defense to EEOC asserts that a hiring practice with a discriminatory effect is a business necessity, for example the requirement to lift 200 lbs

Constitutional Law

First, Fourth and Fourteenth Amendments affect sports the most

Trademark Law: Federal Laws

How to create ownership rights--> -be the first to use the mark in trade -make continuous and uninterrupted use of the mark after the first use on its products or within its services -consumers should be able to identify and distinguish the owner's unique goods or services from those of others in the particular industry -federally register the trademark ---> must then register the mark every 10 years

Employer

a person engaged in an industry affecting commerce who has fifteen or more employees for each working day and each of twenty or more calendar weeks in the current or preceding calendar year and any agent of such person

Three tests to determine whether religious practices challenged under the First Amendment are unconstitutional

LEMON TEST: to be constitutional (1) the practice must be secular in purpose, (2) the practice's primary effect can neither advance nor inhibit religion, and (3) the practice must avoid excessive entanglement with religion ENDORSEMENT TEST: a test used to consider whether the government endorses a particular religion or disproves of any religion. The government cannot endorse, favor, or disprove any religion or practice COERCION TEST: a test that examines a religious practice to determine whether people are pressured or coerced to participate. The government may not coerce individuals to participate in religion or its exercise

ADA Cases

Martin v. PGA Tour Inc Anderson v Little League Baseball Inc

Title IX of the Civil Rights Act of 1964

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

Federal Employment Laws

Occupational Safety and Health Act (OSHA) Fair Labor Standards Act (FLSA) Family and Medical Leave Act (FMLA) COBRA Health Insurance Portability and Accountability Act (HIPPA)

Trademark Infringement

Other organizations using the marks without its permission to capitalize on its success Can cause direct harm to the proper owner of the trademark in several ways 1. money that might be spent on products produced by the sport organization itself is now spent on the infringing products, so the trademark owner loses revenues 2. trademark used in a format that the owner would not approve of, such as on lower quality goods, can reflect negatively on the quality of officially licensed merchandise HOW TO ESTABLISH -owner must show that he or she used and registered mark as required -owner must demonstrate that other party's use of the mark is likely to cause confusion or to deceive consumers about who is true source of trademark COURT FOCUSES 1. strength of the mark 2. similarity between the marks 3. evidence of actual confusion 4. consumer sophistication 5. quality of alleged infringer's products 6. similarity between products and the way they are sold 7. likelihood that owner will expend use of his own marks in future on other products 8. whether alleged infringer acted with good faith

First Amendment Religion Issues Cases

Santa Fe Independent School District v. Doe Adler v. Duval County School Board Menora v. Illinois High School Association

Fourteenth Amendment Strict Scrutiny

Scrutiny: the way in which court analyzes whether state action should be condoned or rejected Strict Scrutiny: most rigorous degree of scrutiny, after a court decides that strict scrutin is the appropriate standard, then the court will uphold the state action only if it is necessary to achieve a compelling governmental interest NECESSARY: no other way to accomplish government's objective COMPELLING: the objective sought through the state action must compel the court, the court must believe that 'something needs to be done'

Disparate-impact Discrimination

The employer's workforce does not mirror the percentage of those protected classes in the local labor market

Americans with Disabilities Act of 1990 (ADA)

Title I: employees who are disabled can demonstrate that they are otherwise qualified for the job "reasonable accommodation": any employer finds work responsibilities and environments that allow employees with disabilities to be successful in performing their job functions Title III: bars discrimination against disabled people "in the full and equal enjoyment of the goods,s services, facilities, privileges, advantages, or accommodations of any place of public accommodation..."

Civil Rights Act of 1964

Title VII and its amendments apply to governmental agencies, federal government employees, labor unions, and employers with 15 or more employees

Sexual Harassment

a. consists of unwelcome sexual advances b. is not desired by the employee (victim) c. creates a hostile or abusive work environment d. can arise from either verbal or physical conduct The key is to avoid a sexual harassment case in the first place: have a plan in place and treat employees with dignity and respect

Fourteenth Amendment Types of Discrimination

de jure discrimination: roughly translated 'discrimination by law' exists any time a law or policy has a discriminatory purpose. Ex. the rule that forbids black people from competing in high school sports with white people de facto discrimination: exists when the law or policy lacks a discriminatory purpose but has a discriminatory effect. Ex. high school sport association delineates districts in such a manner that the districts divide groups of people based on race

Bona fide occupational qualification (BFOQ)

defense to disparate-tratement discrimination defense arises when a particular trait necessary for a particular job (ex. only females are hired for the job of female locker room attendant) race is not considered BFOQ, but gender can be valid

Cutting Teams

eliminating mens teams to make proportion even and in compliance of Title IX cutting men's teams is allowed under prong 1 of the three part test not favored, 2003 further OCR clarification - men from cut teams have never won a law suit against a school - cutting women's teams is never allowed because women are typically the underrepresented sex -existence of women's teams is evidence of interest and ability

Employment Relationship

formed by contract between an employer and an employee. The contract spells out the nature of the employment along with the rights and responsibilities of parties (salary, work duty, benefits)

Service Mark

identifies and distinguishes services of one entity from another used in the sale of advertising or services EX> NCAA (as it stands for events and services)

Disparate-treatment Discrimination

intentional discrimination, the burden of proof rests on the business which must defend its actions