Sport Law Test 2 Review

NCAA Selective Enforcement

"The NCAA is so mad at Kentucky it will probably slap another two years probation on Cleveland State.'' Tarkanian uttered the famous quip after Kentucky and Kentucky coach Eddie Sutton found themselves in the NCAA crosshairs. But the line has stood the test of time, emblematic of not only Tarkanian's battles with the organization but also of the long-held belief that the NCAA practices selective enforcement.

4 Property Interest Theories from Student-Athletes

1) Economic Rationale 2) Educational Rationale 3) Scholarship Per Se Rationale 4) Contract Rationale

Excuses for non-performance of a Contract

1) Impossibility & Impracticability 2) Frustration of Purpose

4 Areas of NCAA Infractions

1) NCAA Extra Benefits 2) Amateurism 3) Ethical Conduct 4) Academic Integrity Rules

Competing Interests in NCAA

> Safety of Student-Athletes > Academics - Student-Athletes - Amateurs > Commercialism - Revenue There is both a pressure to win in revenue-generating sports (football/basketball) and academic interests of institutions/students.

Promise

A commitment to do (or not do) something in the future. A mere promise alone is not legally enforceable.

Frustration of Purpose

A contract will be frustrated where an event occurs after the formation of the contract not due to the fault of either party "which so significantly changes the nature of the outstanding contractual right that it would be unjust to hold the parties to the contract.

Promissory Estoppel (Exception)

A promise may be enforceable if the promisee justifiably relied on the promise. Promisor makes an unambiguous promise. Foreseeable that the promisee is likely to rely on the promise. Promisee justifiably relies on the promise. It would be unjust not to enforce it. Promise is now binding, as if there was a contract.

Infractions and Appeals Committee (COI Findings)

Abuse of discretion in the imposition by COI of an NCAA penalty occurs if the penalty: Was not based on a correct legal standard. Was based on a clearly erroneous factual finding. Failed to consider and weigh material factors. Was based on a clear error of judgment (arbitrary, capricious or irrational). Was significantly based on one or more irrelevant or improper factors.

No Pass, No Play

Academic eligibility rules exist to better academic performance for high school student-athletes. Court have been very deferential to academic eligibility rules. Rules have to be applied fairly and appropriately. Cannot be discriminatory.

Acceptance

Act of voluntarily receiving something or of a voluntary agreement to certain terms or conditions; consent to the terms of an offer which creates a contract. Must mirror the offer as to the offer's essential terms.

Evolution of Sports to a business

Advances in transportation - ability to travel. Advances in communications - ability to increase audience.

Rational Basis

All other group classifications. (Law must be reasonably related to a legitimate government interest. Least rigorous.)

14th Amendment

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

NCAA Compliance with Federal Laws

All private and public universities receiving some federal funds must comply with federal civil rights statutes such as Title IX and the Rehabilitation Act of 1972.

Washington Legislature HB 1084 in 2019-2020 Washington Legislature

Allows for student-athletes to receive compensation for services provided. Allows for student-athletes to be represented by agents. NCAA cannot suspending or disciplining student-athlete. Makes it a Washington Consumer Protection Act violation in restraint of trade.

Contract

An agreement, oral or written, that can be enforced in court. Must contain offer, acceptance, and consideration.

NCAA Extra Benefits Violation

Any special arrangement by an institution employee or a representative of the institution's athletic interest ("booster") to provide a student-athlete a benefit that is not generally available to other students or is not expressly authorized by the NCAA legislation.

Educational Rationale

Because athletics is an integral/substantial part of the student-athletes educational experience, it should not be revoked without due process. ((Courts have rejected this theory.))

National Letter of Intent & Statement of Financial Assistance

Both are part of the contract between the student-athlete and the university. Not necessarily a 4 year contract. Can be a 1 year renewable contract. Since 2015, school's cannot choose not to renew a student-athlete's scholarship for athletic reasons.

Committee on Infractions (COI)

COI was created in 1954 to interpret NCAA rules and impose penalties on member institutions for rules violations. Jerry Tarkanian was very critical of COI in the Tarkanian case. Claimed it did follow basic due process. It has the authority to impose penalties on NCAA member institutions for violations by institutional personnel (athletic admin, coaches, boosters) and student-athletes.

Establishment Clause Scenarios (1st Amendment)

Captain of public high school team led her team in prayer without the participation or knowledge of coach? Likely OK Coach selects a team chaplain? NO Team elects a person to pray or motivates team before games? NO Coach invites a team representative to join a religious group (Fellowship of Christian Athletes) for the prayer? NO Athlete was injured and his teammates spontaneously knelt in prayer around him? Likely OK Coach asks teammates to join him in moment of silent reflection or prayer? MAYBE

1st 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.

State (Government) Action

Constitutional rights are protected from unjustified gov. interference. Participation in HS athletics is not a right and therefore doesn't receive significant legal protection.

Interscholastic Students

Courts view interscholastic students as "less mature and more impressionable" than students at the intercollegiate level. One reason is they are generally under 18 years old and not adults. Student-athletes in college are given broader expressive rights at the intercollegiate level than the interscholastic level.

Limited Judicial Review

Courts will not intervene unless the rule, application, or enforcement is: Arbitrary and capricious or abuse of discretion. Violates a federal or state statute. Violates a constitutional law provision (assuming state action). Violates public policy.

Athletic Scholarships

Division 1 and Division 2 schools are providing $2.7 billion in athletic scholarships annually, but: Only 53% of all Division 1 athletes are receiving some level of athletic aid. Ivy League Division 1 don't give athletic aid. Only 56% of all Division 2 athletes are receiving some level of athletic aid. 0% of all Division 3 athletes are receiving athletic aid; however, they may be receiving academic aid.

Equal Protection (Not for all)

Does not specify that all people have to be treated equally by the state under all circumstances. (For instance, states may require people to pass a vision as a condition of receiving a driver's license. However, states cannot deny a person a driver's license because of their race, gender, or other minority considerations.)

Slippery Slope

Don't want every school to start suing when they're not happy with official's mistakes.

Due Process (facts)

Due process must be given if a state actor deprives a person of a life, liberty, or property interest. Due process requires sufficient governmental justification for infringing on a person's life, liberty or property interests (in addition to the procedural requirements): Examine whether infringement of a constitutionally protected substantive right is fair or unfair (constitutionally permissible or not). Requires application of strict, intermediate, or rational basis review based on the interest at stake.

Leagues Single Economic Entities or Joint Ventures

Each team is an individual business but they are economically interdependent. Need on-field competitive balance among the member teams to preserve the long-term viability of each club.

Impossibility & Impracticability

Extreme and unreasonable difficulty, expense, injury, and loss involved.

Academic Progress Rate (APR)

Failure to reach certain numerical benchmarks may lead assessment of penalties including scholarship and recruiting restrictions.

Defenses that render a contract Unenforceable

Fraud. Misrepresentation. Undue influence & Duress. Mistake. Illegality. ((Statute of Frauds)) - Certain types of contracts must be in writing, signed by the parties. **Lack of capacity of one or both parties: Mental Incompetence - disabled or suffering from dementia. Minor - under 18 years of age.**

5 Freedoms of 1st Amendment

Freedom of press; Freedom of petition the government; Freedom of religion; Freedom of speech/expression; Freedom to peacefully assemble.

Strict Scrutiny

Fundamental right or suspect class (race or country of national origin). (Law must be necessary to achieve a compelling government interest. Most rigorous.)

Intermediate Scrutiny

Gender and legitimacy/children born out of wedlock (quasi-suspect categories). (Law must be substantially related to an important government interest. Heightened scrutiny.)

Outside Competition Rules

High school athletic governing bodies have broad authority to create outside competition rules that prohibit student participation in competitive club sports as a condition of participating in interscholastic athletics. Courts have been deferential to high school athletic governing bodies and rules concerning outside competition.

Good Conduct Rules

High school athletic governing bodies have lots of latitude in creating rules that discipline and sanction student-athletes that engage in conduct that is considered inappropriate. These include drug and alcohol consumption, violations of the law, and conduct that violates community norms of appropriate behavior. Courts have been deferential to high school athletic governing bodies and rules concerning good conduct.

Age Rules

High school athletic governing bodies have lots of latitude in creating rules that prohibit student-athletes of a certain age from participating. Courts have been deferential to high school athletic governing bodies and rules concerning age because there is a legitimate interest in limiting participation by older, stronger, and more physically and mentally mature athletes.

Grooming Rules

High school athletic governing bodies used to have lots of latitude in creating rules that related to grooming. (For example: Rules prohibiting tattoos or require them to be covered up. Rules prohibiting cornrows or really long hair. Rules prohibiting piercings.) Courts have been deferential to high school athletic governing bodies and rules concerning grooming rules because there is a legitimate interest for safety purposes; however, they conflict with some First Amendment speech and expression issues. Schools must watch out about adopting rules that are overbroad or vague.

Infractions and Appeals Committee (IAC)

IAC was created in 1991 to review COI findings and sanctions and make sure they were done fairly. This made sure that the NCAA operated in a more timely, fair and consistent manner. It has the authority to impose penalties on NCAA member institutions for violations by institutional personnel (athletic admin, coaches, boosters) and student-athletes.

HS Athletic Eligibility Issues

Issues: Transfer rules. Outside competition rules. Good conduct rules. Age rules. Grooming rules. No-pass, no play rules. Exclusion of homeschooled students from athletic participation. (If a state interscholastic athletic association is NOT following its own rules then courts will intervene. If a interscholastic athletic association is following its own rules then the courts are reluctant to intervene.)

14th Amendment meaning

It incorporated the Bill of Rights to State Governments

National Letter of Intent

It is a contract and it is null and void if: Recruit does not attend any institution of higher learning for a full year. Recruit serves active duty in the armed forces for 12 months. Recruit serves an official church mission for 12 months. The institution discontinues the recruit's sport. The institution violates recruiting rules which require reinstatement.

Due Process

It prohibits the Gov. from depriving a person of their right to liberty, or property without due process. It has helped the federal and state gov. adopt fairness standards to ensure people's rights are not violated. It is included in both 5th and 14th Amendments to the US Constitution.

In Loco Parentis

Latin "in the place of the parents" - In loco parentis is a legal doctrine describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. The best example is that of teachers/school administrators and students.

Establishment Clause

Limits the power of the government to endorse or approve religious activities. U.S. Supreme Court held that a school district's policy of permitting student-led, student-initiated prayer at football games violated the Establishment Clause. Santa Fe School District v. Doe, 520 U.S. 290 (2000). Court reasoned that it established a majoritarian election on religion and creates the perception of encouraging the delivery of a prayer at important school events.

Entwinement

Looks at if there is a "close nexus between the state and the challenged action" that seemingly private behavior may be fairly treated as that of the state itself. (Fact-Bound Inquiry). Court has treated a nominally private entity as a state actor when it is controlled by an "agency of the state"...when it has delegated a public function by the state, when it is "entwined with governmental policies" or when the government is "entwined in its management and control."

Scholarship Per Se Rationale

Loss of scholarship creates financial hardship. ((Courts recognize a scholarship as a property right, but do not extend that right to a right to play.))

State HS Athletic Associations

Member schools (public, private, or combo), vote on rules that regulate eligibility for competition and rules of competition.

NCAA Structure

NCAA an association of colleges and universities that develops rules and regulations for the governance of intercollegiate athletics among those member institutions. Those rules and regulations are the product of legislation created by member institutions and committees (made up of representatives from member institutions) within the NCAA. Full-time employees of the NCAA assist in executing and enforcing those rules.

Judicial review of Referee Decisions/Game Results

No precedent allowing a court to fix a referee's mistake on the field. Replay would not be fair because the conditions during the game could not be replicated. Slippery Slope - Don't want every school to start suing when they're not happy with official's mistakes.

Elements of a Contract

Offer, Acceptance, Consideration. (Can also contain a Counter-Offer).

Implied Contract

Offer, acceptance, and consideration are determined by the conduct of the parties.

Express Contract

Offer, acceptance, and consideration exchanged in words or in writing.

HS Athletic Themes

Participation in HS Athletics is a privilege not a right. Courts give tremendous deference to HS athletic associations, admin/coaches to run their programs.

Substantive Due Process

Pertains to those rights not listed specifically in the US Constitution, but which are recognized as an important part of an individual's liberty. It is often related to areas such as voting, right to contract, privacy rights (contraception/abortion) and rights of children.

National Labor Relations Board (Formal Hearing Process)

Petition filed with NLRB Regional Office, then an investigation, withdrawal or dismissal, then a formal procedure such as hearing, request for review and rule on request.

Property & Liberty Rights (EX)

Players argued a property interest in playing football and liberty interest was infringed when called troublemakers by coach and both required due process. (Hysaw vs Washburn University of Topeka case)

Local HS boards/district officials

Principal, athletic director, coaches

NCAA is NOT a State Actor

Private organizations are not constitutionally required to provide due process nor barred from denying equal protection. NCAA later changed their rules and now afford some level of due process. A very reactive organization. Challenge is that NCAA performs government functions, but lacks compulsory process. and confidentiality.

Offer

Promise to do (or not do) something condition on the other party's promise to do something in return.

Economic Rationale

Property interest in participation as preparation for a professional career. ((Courts have rejected this and held that it is too speculative.))

Contract Rationale

Property right to athletics eligibility is created by the contractual provisions of the athletic scholarship. ((Courts look to terms of the contract.))

Procedural Due Process

Protects individuals during gov. proceedings, whether civil, criminal or administrative.

Free Exercise Clause

Protects the rights of students, coaches, and others to act upon their religious beliefs. (1st Amendment (Religion)) Balance between free exercise rights of student-athletes against the administrative and disciplinary interests of school administrators. Courts tend to defer to the coaches and school administrators.

Equal Protection

Put in place to prevent state and local jurisdictions from passing laws that were discriminatory in nature, thus making it illegal for states to pass laws that benefit only certain groups of people. (It applies to federal and state governments) It took effect in 1868 specifying that no state will deny any person equal protection under the law. Is part of the 14th Amendment.

Student Athlete Unionization

Regional NLRB Director decides scholarship student-athletes are employees and can unionize. NLRB (full panel) decides that the NLRB does not have jurisdiction over this issue. Ruling cannot improve "labor relations."

High School Sports

Regulated by state athletic associations (public). Higher judicial accountability because of possible state action

Youth Sports

Regulated by wholly private (nonpublic) entities. Less judicial accountability because they are private entities.

Modification

Requires mutual assent and additional consideration. It is like another contract within the contract.

Promissory Estoppel (Example)

Research Assistant and professor scenario. Professor says he wants student to be RA for summer for an unpaid position but professor didn't know if he was going to be teaching in Florence, Italy for the summer. Student turned down an offer to be a paid intern at a place to be the Professor's unpaid RA. If the Professor reneges on the promise then student has a claim for promissory estoppel.

Exclusion of Homeschool Students from HS Athletics

Some states allow homeschooled students to participate but that is a different issue. Can high school athletic governing bodies have rules prohibiting homeschooled children from participation in competitive sports? Reasons for disallowing homeschooled students: Academic Limited financial resources

Consideration

Something of value given in return for a performance or a promise of performance by another for the purpose of forming a contract; a bargained for exchange of value. Both parties are giving up something of value and they receive something of value. (Something is sought by the promisor in return for making the promise and is given by the promisee in exchange for that promise.)

Intercollegiate Athletic Association (IAA)

Started as Intercollegiate Athletic Association (IAA) in 1906 in response to President Teddy Roosevelt's concern about college football deaths. In 1905, there were 18 college football deaths resulting from flying wedge. Concerned about safety. Rules Committee of IAA formed

3 Levels of Judicial Scrutiny

Strict, Intermediate, Rational Basis

Limited Judicial Review problem

Struggle between: Hard and fast rules that interscholastic athletic governing bodies can apply in order to facilitate easy decision-making. Exercising discretion on the part of interscholastic athletic governing bodies. Handling waivers on a case-by-case basis is time consuming and cumbersome.

NCAA Drug Testing Programs

Student-athletes provide written consent to random drug testing during the season and in post season championship events. Member institutions may implement their own drug testing programs. Overriding Theme - Deferential judicial review avoids unwarranted judicial micromanagement of NCAA.

Uniqueness of Pro Sports

Teams need other teams. Sustain interest on-field competition cannot be one-sided. Team owners, players, and fans don't like to be perennial losers (except the pre-2016 Chicago Cubs).

NLRA (rights)

The National Labor Relations Act provides 3 major rights: 1) Right to organize 2) Collective Bargaining 3) Collective Bargaining Agreement

Institutional Control

The control and responsibility for the conduct of intercollegiate athletics shall be exercised by the institution itself and by the conference(s), if any, of which it is a member. Administrative control or faculty control, or a combination of the two, shall constitute institutional control.

Breach of Contract

The failure of a party to the contract to uphold the terms of the contract.

Procedural Due Process (Examples)

The right to an unbiased trial/hearing. The right to be given notice of the proposed trial/hearing and the reason for it. The right of the individual to be aware of evidence against him. The right to cross-examine witnesses for the opposition. The right to present evidence and call witnesses. The right to be represented by counsel.

Percentage of Colleges

There are 1100 member colleges and universities in the NCAA, both public and private. (67% public DI and 33% private DI).

Power-5 Conferences

They were given more power to write their own rules in 2015 due to NCAA autonomy legislation.

4th Amendment

This protects people from unreasonable searches and seizures by the government; however, it is not a guarantee against all searches and seizures, but only those that are deemed unreasonable under the law.

Damages (Breach of Contract)

Usually money damages. Specific performance: Court order to perform. Generally not in an employment contract situation.

HS Conferences

Voluntary or assigned

Counter-Offer

When an offer is put forward and the offeree, though interested, chooses to vary some of its features; a rejection of the original offer which when modified becomes a new offer of its own.

Probably Cause

When facts and circumstances known to the officer provide the basis for a reasonable...

Bill of Rights

applies to state governments via the Fourteenth Amendment and "incorporation doctrine."

NCAA Rules (laws)

by joining the NCAA, each member college or university agrees to abide by and enforce the rules of the organization.

NCAA Bylaws

can impose appropriate penalties on member institutions but is not authorized to sanction a member institution's employees directly.

Common Law definition of Employee

generated lots of revenue for university and they were under contract with the university because school controlled their daily activities. They weren't temporary because they didn't have uncertain tenure.

National Labor Relations Act (NLRA)

guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Statement of Financial Assistance

in exchange for the assistance, the student agrees to remain academically eligible to play, comply with the rules and regulations of the university, athletic conference, and athletic association. (Full and partial scholarships. Not a even contract to even play.)

Parental Role of HS Students

on interscholastic level, student are more dependent upon their parents and parents are more involved in their student's lives.

Participation in NCAA Athletics

should be limited to those students "motivated primarily by education and by the physical, mental and social benefits" of athletic participation.

Key Purpose of NCAA

to "maintain intercollegiate athletics as integral part of the education program ...and ... retain a clear line of demarcation between intercollegiate athletics and professional sports."