EDPE 414 Final Review

League Commissioner

- 'independent' leader responsible for internal affairs of the league - owners hire/fire the commissioner - authority is contractual in nature and derived from association's constitution/bylaws - broad authority to act in best interest of the league, but is limited by the association's constitution/bylaws - cannot claim in best interest if conflicts with association's constitution/bylaws - Walks a fine line in doing what's best for the league and appeasing the owners

Sherman Antitrust Act of 1890

- 1890 Sherman Antitrust Act created because worried that mass accumulation of wealth and Standard Oil was swatting away competition, and capitalism loves competition - Federal legislation passed to break up business cartels, trusts, and monopolies - open-ended and subject to court interpretation

Entwinement

- A legal theory expounded by the Supreme Court to determine whether a private actor or association is sufficiently engaged in public activity or with government entities to be deemed a state actor for constitutional purposes - Is there a "close nexus between the state and the challenged action" that seemingly private behavior may be fairly treated as that of the state itself? - Court has treated nominally private entity as a state actor when controlled by an 'agency of the state' = when it has delegated a public function by the state (entwined) - facts-bound inquiry

Grooming Rules

- AA able to create grooming rules (tattoos, long hair, piercings) - Courts have generally deferred to AA because legitimate safety issue, but some conflict can arise with 1st Amendment right of expression and religion - must be careful adopting rules that are too broad or vague

Age Rules

- AA able to create rules prohibiting 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

Outside Competition Rules

- AA have broad authority to create outside competition rules that outlaw involvement in club sports - Courts have been deferential to high school athletic governing bodies and rules concerning outside competition

Good Conduct Rules

- AA have tons of latitude to create rules that discipline and action those who engage in conduct considered inappropriate - Courts have been deferential to high school athletic governing bodies and rules concerning good conduct

Professional Basketball Antitrust

- ABA founded in 1967 and produced more colorful and higher-scoring brand of basketball than NBA - started with 10 teams mostly outside of NBA market, but lacked TV contract even until 1975 - merged with the NBA in 1976 and cut ABA-NBA litigation short (When salaries started to rise, felt it was the right to merge) - Competition was good for consumers because brought teams to markets that were not initially represented and other methods of innovations (Today's NBA is more like the ABA than the old NBA) - NBA is subject to Sherman Antitrust Act via Chicago Professional Sports Limited Partnership v. National Basketball Association (1996)

Brentwood I - Brentwood Academy v. Tennessee Secondary School Athletic Association (2001)

- Brentwood I established that the TSSAA is a state actor and subject to constitutional requirements - In 1925, high school admin attending the TSTA organized the TSSAA to regulate athletics in the state (Help with creating schedules, playoff brackets, and conferences) - membership included BOTH public and private schools - TSSAA sanctioned Brentwood (private school) because sending letters to 8th grade boys about football was against TSSAA's rules prohibiting 'undue influence' in recruiting middle school students - Brentwood sued claiming enforcement of anti-recruiting rule was state action in violation of the 1st and 14th Amendments and the TSSAA flawed adjudication of its appeal deprived Brentwood of due process - brochures distributed touted athletic success - TSSAA learned of Brentwood's violation, notified Brentwood, investigated, had meetings and hearings during which Brentwood was represented by counsel and had the opportunity to provide evidence, which was fully considered - TSSAA found Brentwood in violation of the rule and place the athletics program on a 4-year probation, declared football and boys' basketball ineligible for the playoffs for 2 years, and imposed a $3k fine - Main issue is whether TSSAA is a state actor (if not, the case ends because TSSAA held to a lesser standard) - US Supreme Court held that TSSAA IS A STATE ACTOR and is subject to constitutional limitations - case returned to the trial court level (US District Court) to deal with the issue of the brochure, due process, 1st Amendment, and TSSAA sanctions

Brentwood II - Tennessee Secondary School Athletic Association v. Brentwood Academy (2007)

- Brentwood II - Does the TSSAA's anti-recruitment rules violate free speech clause of the First Amendment and the due process clause of the Fourteenth Amendment?

Antitrust Legislation

- Built to defeat monopiles within business (Morgan, Rockefeller, Carnegie) that came with industrialization and evolution of industries within America - Monopolies have the absolute authority in negotiations - competition gives us lower prices, innovations, and better products - meant to protect the consumer, not necessarily competitors

Curt Flood Documentary

- Compared to slavery cause one man is tied to the owner forever, unless owner trades him (Baseball player could quit if did not want to get sold, but could never play again) - Found political voice as he spoke with Jackie Robinson, his idol, and joined the NAACP - Although technically it was an anti-trust case, also a fight for civil rights - political struggle - A lot of other Black players did not speak out, was very afraid and financially invested (Concerned about supporting own families, and cannot put that at risk) - Federal court found in favor of MLB, Flood traded to Senators and signed contract while still suing - needed a paycheck and wanted to both play and fight in the court - Supreme Court found in favor of baseball, and that if reserve clause get rid of, must go through Congress instead of the court system

State (Governmental) Action

- Constitutional rights protected from unjustified government interference - participation does not receive significant legal protection as it is a PRIVLEDGE - Private vs. State Universities (easy to kick out vs first amendment protections)

Rule of Reason Analysis

- Court must determine if the rule is REASONABLE: - Initial burden is on the plaintiff to show there was an agreement between or among two or more parties. -Plaintiff must plead and prove that there is a relevant market by determining who are the buyers and sellers in the market -Plaintiff must then prove that the action by the parties has an anticompetitive effect (Shown by the actual demonstration of the anticompetitive effect or by proving the defendant's market power (Section II) -Burden then moves to the defendant to prove that the action is not anticompetitive or is pro-competitive -Plaintiff once again has the burden of presenting a substantially less restrictive alternative -similar to challenges in NFL games = burden of proof is "irrefutable evidence" which is a high standard (like beyond a reasonable doubt)

Legal View of Interscholastic Students

- Courts views a less mature and more impressionable than students on an intercollegiate level (less than 18 years old normally) Parental Role: students more dependent upon their parents and parents more involved in their student's lives

Van Horn v. Indus. Accident Comm'n

- Died during a plane crash while returning with team members from a game (death benefits claim denied by the Industrial Accident Commission) - California Court of Appeals held that student-athletes WERE "EMPLOYEES" covered by California Workers' Compensation - in 1965, 2 years after ruling, the California legislature amended the CWC statutes to explicitly exclude student-athletes as employees

Vernonia School District v. Acton (1995)

- Even if legal, this is one of the most invasive search and seizures that one can do - drug testing student-athletes for recreational and PEDs Established drug testing policy: - Random urinalysis test. - Parents agreed to implementation of drug testing policy, as well as drug education. - Student-athletes are tested at the beginning of season and randomly tested each week. - Students selected, notified, and tested the same day. - Tests are run blind and results reported to superintendent. If test is positive then a second test is run to verify the results. Possible sanctions included: 1. Six weeks in a drug program with weekly testing, or 2. Suspension from athletics for rest of season and the next season, with a random test prior to rejoining. 3. Second offense automatically triggers option 2. 4. Third offense is suspension for the rest of the season, and the next two seasons. - Plaintiff (7th grader) and parents did not sign the drug testing consent form and was barred from playing football - Issue concerns whether state-compelled drug testing for a student-athlete's participation in public school sports violates Fourth Amendment? 4th Amendment - state-compelled drug testing triggered 4th Amendment protections - Search unsupported by probable cause can be reasonable where there are special needs, beyond the normal need for law enforcement that make a warrant and probable cause impracticable. - Schools are authorized to search based on the special needs of schools to maintain order. Privacy interest in the 4th Amendment analysis - Children have limited liberty interests = they can't come and go as they please and they need a parent or guardian permission. - While children are in school, the school stands in loco parentis. - Students have less expectation of privacy than the general public, and student-athletes have even less legitimate privacy expectations (changing rooms, communal undressing inherent in athletic participation) - allowed level of privacy when giving sample - school demonstrated 'compelling need' to deter drug usage among student-athletes - strict scrutiny because fundamental right is involved (4th Amendment) - Court held that because of the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the district's compelling need in deterring drug use among student-athletes, the drug testing policy was a reasonable search and therefore NOT in violation of the Fourth Amendment

US Supreme Court Cases and Professional Baseball Antitrust

- Federal Base Ball Club of Baltimore, Inc. v. National League of Professional Base Ball Clubs, 259 U.S. 200 (1922). - Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953). - Flood v. Kuhn, 407 U.S. 258 (1972). - Andy Messersmith (1976). - Curt Flood Act of 1998, Pub. L. No. 105-297, 112 Stat. 2024. (15 U.S.C. § 26b).

Federal Base Ball Club of Baltimore, Inc. v. National League of Professional Base Ball Clubs (1922)

- Federal League was an upstart trying to lure players with higher salaries and NO RESERVE CLAUSES, with only a few players joining - Only a couple players joined, so sued National League for cornering players' market in violation of Sherman Antitrust Act Section 2 - United States Supreme Court Justice Oliver Wendell Holmes Jr. wrote that "professional baseball is a business but that it isn't interstate commerce in nature." - Very weird ruling, based on sentimental notion of baseball unique status = exempt from antitrust - Ruling viewed baseball as NOT interstate commerce = interstate travel was 'incidental' to the business of the game rather than essential to its nature - Ruling also saw that it is not interstate commerce and therefore exempt from antitrust laws (unique and special)

Charles O. Finely & Co. v. Kuhn (1978)

- Finley owned the Oakland Athletics in the 1970s - sold club contracts of multiple players to the Red Sox and Yankees, but Commissioner Bowie Kuhn halted the selling because he felt it was not in "the best interest of baseball" Court held that... - Function of Commissioner = to investigate, punish, and approve assignment of players - Arbitrary and Capricious = gave valid and reasonable explanations for refusal to approve assignments - Court give great deference to league commissioners, and Kuhn won this case

Interscholastic Students and the 1st and 4th Amendments

- Five freedoms of the 1st Amendment (press, petition the government, religion, speech/expression, and peacefully assemble) - 4th Amendment: protects from unreasonable searches and seizures by the government (not a guarantee against all searches and seizures, but just those unreasonable) - Bill of Rights applied to state governments through the 14th Amendment

Baseball Reserve Clauses

- Free agency didn't exist until 1970's - Baseball clubs could stop their players from ever playing for anyone else unless traded - Ted Williams and the Boston Red Sox - Need other club's permission to sign with other teams, no longer the case

Interscholastic/Youth Sport Regulation

- High School: regulated by state athletic associations (public) and higher judicial accountability because possible state involvement - Youth Sports: regulated by wholly private entities and less judicial accountability because they are private - State High School Athletics Associations: members schools (public, private, or both) vote on rules that regulate eligibility for competitions and competition

Indiana High School Athletic Association v. Carlberg (1997)

- IHSAA voluntary association of both public and private schools - transfer rule (Rule 19) prohibits student-athletes from immediately playing on varsity teams if a student changes schools without a change of permanent residence (must wait 365 days) but can still play on JV/Freshman teams (Helps stop star players move just to create a dream-team) - Jason Carlberg was transferred from private to public school for academic reasons - appealed decision to not be able to swim varsity through IHSAA, and then sued in court - Indiana Supreme Court held IHSAA was a STATE-ACTOR - Due Process: Carlberg was given due process by IHSAA - Equal Protection: Indiana Supreme Court applied rational basis review because there is no fundamental right or suspect class at issue as it related to transfer rule (Rule 19) - Court held that courts in Indiana will exercise limited interference with internal affairs and rules of a VOLUNTARY organization - Carlberg claimed IHSAA was ARBITRARY AND CAPRICIOUS by enforcing transfer rule against him when clear he transferred for academic reasons - Indiana Supreme Court held that a rule will be found to be arbitrary and capricious only where it is willful and unreasonable, without consideration, and in disregard for the facts or circumstances in the case, or without some basis which would lead a reasonable and ones person to the same conclusion - Arbitrary and capricious is a narrow standard of review and Indiana Supreme Court will not substitute their judgment for the judgment of the IHSAA - Court held that IHSAA had rational basis for adopting transfer rule and it was not overbroad because it would too burdensome for IHSAA and schools to determine motivation for every transfer student - Carlberg lost, even with dissenting opinion desiring a case-by-case basis instead of a hard and fast rule

NCAA Catastrophic Insurance Program

- In 1991, all NCAA athletic programs required to carry catastrophic insurance - uses revenue from MBB March madness to cover cost - Covers only serious injuries, with a $10k death benefit and maximum $20 million medical and disability, along with a $90k deductible

Deflategate

- In 2015, Brady is connected with footballs that were deflated below acceptable pressure in order for Brady to get a better grip on the football - Following an investigation, the NFL imposed a four-game suspension on Brady. - Brady requested arbitration (per NFL Collective Bargaining Agreement) and NFL Commissioner Roger Goodell, serving as arbitrator, entered an award confirming the discipline - The parties sought judicial review and the United States District Court for the Southern District of New York (where NFL Headquarters is located) vacated the award based upon its finding of fundamental unfairness and lack of notice (Brady won and no suspension) - NFL appealed to the US Court of Appeals, who reversed District Court's ruling and upheld the suspension - This case is similar to Charles O. Finley & Co., Inc. v. Kuhn in that it affirms the idea that the NFL Collective Bargaining Agreement gives the NFL Commissioner the authority to arbitrate disciplinary matters and the Commissioner had the sole power of determining what constitutes "conduct detrimental" to the game. - As long as the NFL Commissioner follows the rules and doesn't act arbitrarily or capriciously, the NFL Commissioner has broad authority.

Andy Messersmith and the Death of the Reserve Clause

- In the 1972 strike, they were able to convince the owners to accept binding arbitration for contract disputes. - Several players then tried to refuse to sign contracts, play through one season under the reserve clause, and then demand free agent rights in arbitration -The owners, understanding that the reserve clause was under threat, were able to convince several players to relent In 1975 both Dave McNally and Andy Messersmith played through the season without a signed contract (actually, McNally retired partway through the season, then refused to accept a proposed salary increase in order to see his case reach arbitration) - the arbitrator ruled for McNally and Messersmith on the basis that since owners had written the contract, their responsibility to spell out exact terms, and failure to explicitly state that reserve clause would be applied to season without a signed contract, had to accept players' argument that clause only extended for one season and NOT in perpetuity - Technicality allowed for the reserve clause to be overruled

Injury by Accident (Uhlenhake Case)

- Injury by Accident: Virginia Workers' Compensation Act provides that '''injury' means only injury by accident arising out of and in the course of employment'' and claimant must prove: - That the injury appeared suddenly at a particular time and place and upon a particular occasion; -That it was caused by an identifiable incident or sudden precipitating event; and - That it resulted in an obvious mechanical or structural change in the human body.

In Loco Parentis

- Latin for 'in place of parents' - legal doctrine describing relationship similar to parent to a child - assumed parental status and responsibilities for another individual without formally adopting (teacher-student)

Establishment Clause

- Limits the power of the government to endorse or approve religious activities - US 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 (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 (This action by teachers would be inappropriate, but really complicated and grey area)

Curt Flood Act of 1998

- MLB concerned about keeping their antitrust exemption -willing to agree with MLBPA on a joint request of Congress in support of Curt Flood Act - eliminate the baseball exemption for restraints directed at Major League players (very limited scope) - Act eliminates the exemption (reinstates the antitrust laws) for claims related to restraints on Major League players - Act does NOT affect scope of baseball exemption with anything other than restraints involving players - Franchise ownership, location, and expansion issues, matters between commissioner's office and clubs, marketing or sales, intellectual property licensing, and broadcasting issues affecting organized professional baseball are unaffected by the Curt Flood Act and outside the scope of antitrust laws

Sherman Act § 2

- Monopolies and attempts to monopolize - can be ONE INDIVIDUAL or ENTITY - •Unlawful to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states, or with foreign nations . . ." - Example: Apple purchases controlling share of stock in Samsung and/or LG

Practical Burden-Shifting Example

- Mr. Yellow makes a claim - Mr. Yellow must prove the claim - Mr. Green provides evidence it is not true - Mr. Yellow provides substantial facts in his favor

Professional Football Antitrust

- NFL formed in 1920 and existence shaky until post-WWII - 1945 All American Football Conference formed and operated 8 teams from 1946-1949 (Folded and 3 teams merged with NFL) -Through years, NFL eyed expansion in Southwest and other areas (By 1961 the NFL had 14 teams in 14 cities) -AFL formed in 1959 and started playing in 1960. It had 8 teams in 8 cities (Some in same cities as NFL - New York, Dallas, San Francisco/Oakland, and San Diego) -NFL and AFL played games in the fall, directly competed for an audience and players (merged in 1966) - American Football League v. National Football League (1963) court held NFL didn't have sufficient control of the relevant market (nationwide) to prevent AFL from competing with it -There was no conduct by the NFL that excluded AFL from the market by unfair or predatory means.

Cruz v. Pennsylvania Interscholastic Athletic Association (2001)

- PIAA had rule that allowed students to compete for 8 semesters and prohibited varsity competitions after they turned 19 - PIAA did NOT have a procedure for waiving age rules in specific circumstances (Somewhat a hard-fast rule because able to use 8 uniquely, but only 8 semesters) - Plaintiff was 19-year-old special education student-athlete in his 4th year of high school involved in the IEP under the Disabilities Education Act - Director of Special Education Services stated that plaintiff's participation in athletic was vital to his education and development - Court looks at purpose of the age rule (safety, prevent unfair competitive advantage, maintain uniform standards, provide opportunities to customary students) and held that the PIAA SHOULD have a wavier process as it would not be unduly burdensome (Plaintiff wins) - Not being deferential but acting like an activist and micro-managing

Wildman v. Marshalltown School District (2001)

- Plaintiff was sophomore on girls' basketball team - write a letter to teammates criticizing her coach for not selecting her for varsity team (included profanity and advocated the team should stand up for her) - Coaches met with plaintiff and gave her 24 hours to apologize to the team - plaintiff refused and sat out the remainder of the season, claims her free speech rights were denied - Court held that high school students do NOT shed their constitutional rights to free speech when enter school, but are NOT absolute and should not be treated as adults (Tinker case) - also held the Plaintiff's concern about team's performance does not rise to level of constitutional protection - Court ruled that school officials have the authority to prohibit public expression of vulgar and offensive comments, and to teach civility and sensitivity in the expression of opinion (included in the school/team handbook)

Bill of Rights and the Fourteenth Amendment

- Post-Civil War Amendments to the US Constitution (13th-15th) = relationship between federal government and state government - Fourteenth Amendment: incorporation of Bill of Rights to state governments

Fiduciary Duty Example: League Commissioner

- Prior to becoming commissioner, Bud Selig owned the Milwaukee Brewers - When appointed commissioner, transferred ownership to his daughter - has a fiduciary duty and had to act in the "best interest of the league" = cannot have conflicts of interest or self-dealings

Two Approaches to Sherman Antitrust Act Application

- Rule of Reason - Illegal Per Se

Workers Compensation

- STATE-mandated insurance program that provides benefits to employees who suffer job-related injuries and illnesses. Each state has its own laws and programs for workers' compensation - Help speed up the process of helping injured workers because the gears of justice grind slowly - Provide wage replacement benefits, medical treatments, vocational rehabilitation, etc. - can get compensation benefits no matter who was at fault (some exceptions) - a trade-off is that a claimant's tort claims for injury against workplace or employers are normally barred - Must carry workers' comp insurance, post rights, and provide claim forms within 24 hours of learning about the injury

Waldrep v. Texas Employers Insurance Ass'n

- TCU student-athlete was severely injured in football game in 1974 - 20 years later, under Texas Workers' Compensation statutes, sought benefits from injuries - looking whether "contract for hire" existed between college and student-athletes - Court of Appeals held NO and therefore student-athlete not an employee covered by TWC laws - Based decision only on laws, statutes, and life in 1974, but left the door open for future policy changes - Testimony of former executive athletic director was excluded and evidence that university failed to pay all medical bills was inadmissible as irrelevant

Fiduciary Duty

- The person with the duty must act in a way that will benefit someone else (usually financially) Primary duties are... - Duty of Care: inform themselves of all material information reasonably available before making a decision -Duty of Loyalty: to act without personal economic conflict

Tarkanian Case and State-Actor Status

- Those member institutions are NOT acting under the color of Nevada state law or any state's law - The source of legislation adopted by the NCAA is not Nevada but the collective membership, it is independent of any particular state. - Footnote #13: situation would be different if the membership consisted entirely of institutions located within the same state (leave open door for TSSAA) - ruling in Brentwood I actually cites Footnote 13 in the decision - No official authority has conferred upon the NCAA by any government. - agreeing to rules does not make NCAA state-actor because UNLV retains authority to withdraw from NCAA or work to change NCAA rules (bad choice is still a choice) - NCAA is a reactive organization, and changed rules to now afford some level of due process

Runnin' Rebels Documentary

- UNLV was tiny in this time period, wanted to make great basketball team to raise interest/academics within the university - Only sport in town, stars loved going to the games and even helped recruit for the team - Price of moving UNLV into primetime was NCAA probe on their program, including cash gifts and grade changing - 2-year ban on TV play and tournament and suggested UNLV should suspend - Stems back to his time at Long Beach State, had been investigated when UCLA doing the same - NCAA does not believe they were only investigating small schools (selective) - Had terrible graduation rates, loved recruiting players with low academic record (Exploitation vs. Saving Souls, impoverished environments, risk-reward) - Barely any boosters of the UNLV basketball program went to the school, didn't care academics - NCAA investigation was insanely specific, way too much made of minor infractions, microscope - After championship, UNLV banned from postseason play in 1992, but could defend in 1991 - UNLV players caught hanging out with sports fixer, connected to BC game fixing scandal - 1992 Coach Tarkanian sued NCAA for harassment and got a $2.5 million settlement with no admission of liability

NCAA v. Alston

- US Supreme Court upheld ruling that struck down caps on student-athlete academic benefits on antitrust grounds (voted 9-0 in favor) - Justice Kavanaugh even brought up the next up was non-academic financial benefits ($$$ to play) - using RULE OF REASON ANALYSIS, held that NCAA's actions were a SECTION 1 violation (NCAA is applicable to antitrust)

Pro-Football, Inc. v. Uhlenhake

- Virginia Workers' Compensation Commission awarded permanent partial disability benefits in favor of professional football player Jeffrey Uhlenhake - Had sustained injury to left foot, but the VWCC denied benefits for injury to his left knee - Washington Redskins contend that injuries to professional football players are not covered by Workers' Compensation statutes and evidence does not support award based on injury - Redskins cited that Uhlenhake assumed the risk of engaging in dangerous activity with a high likelihood of injury [Not tort law, but using tortious language (assumption of risk)] - went to the Virginia Court of Appeals - Knee injury was result of cumulative trauma which is not compensable. - Virginia Court of Appeals, affirmed the Virginia Workers' Compensation Commission's award - Properly rejected the misguided notion of assumption of risk as it doesn't matter nature of employment and foreseeability of a potential injury (Totally defeat public policy for making employers responsible for employees injuries when the job is hazardous)

United States Football League v. NFL (1988)

- affirmed lower court's jury decision of only nominal damages ($1 -- treble damages) to USFL - found NFL monopolized professional football market, but also USFL had self-destructive business decisions were primarily cause of inability to successfully compete against NFL (Tension between immediately wanting to compete and building up) - SECTION 2 VIOLATION - Court rejected USFL's proposed restructuring of professional football as a remedy for NFL antitrust violations (allow all USFL clubs membership in NFL, separation of NFL into two leagues with one TV contract, or prohibiting NFL from broadcasting more than one time slot on Sunday)

Rational Basis

- all other group classifications - law must be REASONABLY related to a LEGITIMATE government interest (least rigorous)

NIL

- allows the 98% that will not play professional to capitalize when in college - social media helps athletes from sports with little attention gain notoriety - Were able to have company and sell product before, but could not be based on their athletics reputation or ability - needed to file a waiver in order to operate a business (changed after 7/1/21)

Flood v. Kuhn (1972)

- another challenge to the reserve clause (Completely swayed power of negotiation to the owners of the clubs) - Flood traded to the Phillies from the Cardinals in 1969 and objected to the trade (wasn't a piece of property and demanded to be a free agent) US Supreme Court held: - "Professional baseball is a business and engaged in interstate commerce." - baseball antitrust exemption REMAINED because "a recognition and acceptance of baseball's unique characteristics and needs." Did not completely overrule Federal Base Ball case: - Congress silent for 50 years and allowed Federal Base Ball case to remain -Concerned about judicially overruling Federal Base Ball case - Curt Flood was basically blackballed from the league, but opened eyes about unfair position the reserve clause had put players in

NCAA v. Tarkanian (1988)

- 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. - After Committee on Infractions conducted investigation, NCAA placed UNLV on 2 year probation and ordered UNLV to show cause why the NCAA should not impose further penalties unless UNLV severed relationship between athletic program and Tarkanian - Tarkanian filed suit in NV state trial court and claimed NCAA (a state-actor) violated his due process - NV state trial court sided with Tarkanian and held that NCAA is a state actor and its decision to remove Tarkanian was without due process and arbitrary and capricious - appealed to the NV Supreme Court and the decision was affirmed - NCAA petitioned to the US Supreme Court to have it heard (issue of a state-actor relates to Brentwood I) - Question is not whether UNLV participated to a critical extent in the NCAA's activities, but whether UNLV's actions in compliance with the NCAA rules and recommendations turned the NCAA's conduct into state action - US Supreme Court held that NCAA is NOT a state-actor, but a private group composed of both public and private schools - without state-actor status, NCAA does not need to follow same constitutional guidelines and may use its own enforcement methods to imposes its punishments, even if they due not provide full due process of the law - decision also based on NCAA membership not only being located in NV - in 1998, NCAA settled with Tarkanian for $2.5 million dollars

American Needle Inc. v. NFL (2010)

- centered on NFL's 10-year exclusive licensing agreement to manufacture and sell trademarked headgear with Reebok - before this deal, had multiple non-exclusive deals, including one with American Needle Inc. - claimed there was a conspiracy in restraint of trade - NFL countered that incapable of conspiring because NFL was a SINGLE ENTITY compared joint venture (if a single venture, not subject to SECTION 1) - US Supreme Court rejected single entity theory and saw each NFL team was independently owned (Claimed they were 32 individual businesses) - Ruling that NFL is subject to Section 1 - Example of "exclusive marketing agreements" being a restraint of trade

Toolson v. New York Yankees (1953)

- challenge to reserve clause, which perpetually renewed players contracts and prevented players from reaching free agency (locked into team and could not leave unless traded) - Reaffirms Federal Base Ball Club ruling = baseball able to develop for more than 30 years without antitrust - Cited legislature did not overrule Federal Base Ball (by explicitly amending Sherman Act) which is evidence that organized baseball not covered by antitrust laws - Lack of Congress action = silent approval of baseball's antitrust exemption - perpetuated initial error, but also paved the way for US Supreme Court to hold that other sports were subject to antitrust laws because business activities WERE interstate commerce

Lemon Test

- comes from the US Supreme Court case Lemon v. Kurtzman (1971) 1. Whether the government's action has a secular or a religious purpose; 2. Whether the primary effect of the government's action is to advance or endorse religion; 3. Whether the government's policy or practice fosters an excessive entanglement between government and religion.; and 4. Whether the challenged governmental action constitutes an impermissible "endorsement" of religion. - Recent case does not explicitly say no longer use lemon test, but kinda

Upstart/New Leagues

- competition from other leagues challenges the established leagues popularity and profitability - tempted to react in uncompetitive ways which brings antitrust concerns - Upstart leagues often bring challenges under SECTION 2 because normally some type of unilateral conduct by rival league

Sherman Act § 1

- contracts, combinations, or conspiracies in restraint of trade - interstate commerce -requires MORE THAN ONE INDIVIDUAL or ENTITY - "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal." - Example: Apple, Samsung, and LG all agree to price phones at $500

High School Athletic Eligibility Issues

- courts very deferential to state interscholastic athletic associations with rules related to eligibility - courts will intervene if AA NOT following their own rules Potential Issues: - Transfer rules. - Outside competition rules. - Good conduct rules. - Age rules. - Grooming rules (potential for discrimination!) - No-pass, no play rules. - Exclusion of homeschooled students from athletic participation. - Drug testing rules. - First Amendment rights - Religious freedom issues and rules.

Evolution of Professional Sports Leagues

- evolution of sports into business = advances in transportation and ability to travel - unique nature of teams = need each other, sustain interest means cannot be one-sided, do not like to be perennial losers - Reasonable limits to prevent harmful effects of off-field economic competition are necessary to maintain league viability and the economic health of all teams - Consumers want close and exciting games and to get this, there needs to be rules and agreements among a league and its member teams

Academic Issues

- exist to better academic performance for student-athletes (based on GPA) - Courts have deferred to AA, but rules must be applied uniformly, fairly, and appropriately - CANNOT have lower required GPA for one sport than another

Bloom v. NCAA (2004)

- focus on relationship between student-athlete, university, and NCAA - Bylaw 12.4.1.1 prohibits student-athlete from receiving any remuneration because of publicity, fame, or personal following that he or she has obtained because of athletic ability (deals with extra benefits and interference with eligibility to play football) - endorsement deals showcase desire to mark clear line between intercollegiate and professional sports - concerns over commercial exploitation of student-athletes - Bloom lost and out of luck - important to keep in mind Keller v. Electronic Arts (use of name as a symbol of identity without consent and with intent to obtain a commercial advantage = "Transformative use" 1st Amendment right was denied)

Uniqueness of Professional Sports Leagues

- for long-term viability, mixture of competition and cooperation - each team is an individual business but economically interdependent in a league - need on-field competitive balance to preserve long-term viability - In effort to achieve this, league rules may require or prohibit certain conduct by individual teams/owners and the leagues. This is where you run into Antitrust (15 U.S.C. § 1) problems because these rules might be contracts or combinations in restraint of trade (drafts, salary restraints, franchise sale, territorial restraint, revenue sharing, etc.)

Strict Scrutiny

- fundamental right or suspect class (race, country of origin) - law must be NECESSARY to achieve a COMPELLING government interest (most rigorous) - If used a remedy, more likely to be accepted then just quotas

Intermediate Scrutiny

- gender and children born out of wedlock (quasi-suspect categories) - law must be SUBSTANTIALLY related to an IMPORTANT government interest (heightened scrutiny) - Example: Selective service requirements for men and not women

Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969)

- high school students wore black armbands protesting war in Vietnam - 1st Amendment right of high school students, even though minors have limitations on their rights in some settings - US Supreme Court held that silent, passive expression of opinion, unaccompanied by disorder or disturbance is protect speech or expression and schools cannot prohibit it (can't have overbroad or vague rules) - 1st Amendment allows us to wear political messages on our clothes - public school could ban ALL political shirts, but cannot pick and choose (total ban must be content-neutral) - creates ideas surrounding pre-game and in-game shirts and gear worn by athletes and whether protected under the 1st Amendment - Completely changes if the university or high school is private!!

Future of Workers' Compensation for Student-Athletes

- if student-athletes paid in the future, could be considered employees - if able to form unions under National Labor Relations Act (NLRA), could be considered employees - if state legislation passed including student-athletes under workers' compensation laws

Due Process

- included in both the 5th and 14th Amendments of the US Constitution - Prohibits the government from depriving individuals or groups right to liberty or property without due process - helped federal and state governments adopt fairness standards to ensure rights not violated

Equal Protection Clause

- included in the 14th Amendment and took effect in 1868 - No state will deny any person equal protection under the law - prevents state and local jurisdictions from passing laws that were discriminatory in nature - also makes it illegal for states to pass laws that benefit only certain groups - does NOT mean that need to be treated equally by the state in all circumstances (needing vision to obtain a drivers license) - Applies to both the federal and state governments (helped dismantle racial discrimination within the US)

Two Foundational Principles of the NCAA

- key purpose is to maintain intercollegiate athletics as integral part of the education program and to retain clear line between intercollegiate and professional sports - participation in NCAA athletics should be limited to those students motivated by the educational benefits of athletic participation (but make $1.2 billion dollars off of NCAA March Madness alone) NCAA Competing Issues: - pressure to win revenue-generating sports and academic interests of universities and individuals - safety of student-athletes - academics and amateur status -commercialism and revenue-generation

Labor Exemptions to Antitrust

- meant to prevent any contracts/combinations in restraint of trade - in theory, union's collective bargaining with management can be seen as an agreement in restraint of trade - In 1914, Congress enacted the Clayton Act to exempt organized labor acting in its own self-interest from antitrust liability - In 1932, Congress passed the Norris-La Guardia Act that restricted federal courts from granting injunctions against labor unions in labor disputes - Collective Bargaining Agreements (CBAs) also exempt because courts held that Congress wanted to have labor and management get together to achieve labor peace - Strikes and lockouts have happened throughout professional sports history - Not against the Sherman Antitrust Act to fire people making unions, but it IS against labor laws with America to do so

Commissioner as Disciplinary Authority

- must provide due process to party sanctioned - must let people know what they are being alleged to do - must provide notice of the allegations and a "fair opportunity to be heard" - must follow procedural safeguards established by the league constitution and/or bylaws. - Absent league rules, the commissioner must establish rules that satisfy minimum due process for disciplinary proceedings.

Private-Actor

- not the government - not required to afford individuals the protections of the US Constitution and the Bill of Rights (Gonzaga) - has to follow their own rules only

Major Themes of Interscholastic Athletics

- participation in high school athletics is a PRIVLEDGE, not a RIGHT - Courts give tremendous deference to HSAA, school systems, and administrators and coaches to run programs, but can still face scrutiny - Courts generally are not going to micro-manage interscholastic schools and treatment of student-athletes unless it is problematic

Brands v. Sheldon Community School (1987)

- plaintiff was a very successful high school wrestler hoping for an athletic scholarship - allegations of sexual misconduct linked to Brands - school principal investigated and sent letter declaring plaintiff ineligible for the remainder of the season for conduct "detrimental to best interests of the school district" - Has not been found guilty and has not been sued, did not kick him out of school, just cannot wrestle for the team - plaintiff appealed to the Superintendent of the School District, who affirmed the initial decision - School Board also affirmed the Principal's decision Plaintiff had two claims - Substantive Due Process: Plaintiff had a "property right" in a potential college wrestling scholarship and School Board deprived him of procedural due process during the proceedings - Procedural Due Process: Plaintiff contends School Board's decision was arbitrary and capricious - Brands was unsuccessful on both claims = School Board has legitimate interest in upholding code of conduct and future scholarship 'too speculative' to be a property right - Athletics is a privilege, not a right!

Illegal Per Se

- presumed to have no benefit to competition - rare application in sports cases because usually a business justification due to unique nature of the league

Internal League Governance

- private entity - operating under private law of associations -league or association constitutions, bylaws, and rules create contractual rights (Binds both the individuals participating and the overhead league) - Accorded considerable latitude in rule-making and enforcement in order to accomplish objectives (Will only step in if not following their own rules)

Procedural Due Process

- protects individuals during governmental proceedings, whether civil, criminal, or administrative May include: - 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.

Free Exercise Clause

- protects the rights of students, coaches, and others to act upon their religious beliefs - balance between free exercise right of student-athletes against the administration and disciplinary interests of school administrators (courts tend to defer to coaches and school admin)

Good Faith and Fair Dealing

- refrain from actions to injure the right of the other to receive the benefits of an agreement - each league member must exercise contractual right of (dis)approval or its discretionary power over interests of others in GOOD FAITH - in spite of individual franchise interests, team owners have a fiduciary duty to vote/act in best interests of the league as a whole

Substantive Due Process

- rights not listed specifically in the US Constitution, but which are recognized as an important part of an individual's liberty - voting, right to contract, privacy rights, and rights of children

Brentwood II and the 1st Amendment

- school has right to publish truthful information about athletics program and the right to persuade prospective students that athletics excellence is a reason to enroll at Brentwood However, free speech rights are NOT absolute: - Brentwood voluntarily joined TSSAA and agreed to follow their rules - Athletics league's interest in enforcing rules outweighs Brentwood's right to recruit potential students - high school athletics is a game, and games have rules - What if they didn't join? = would not be playing the same games and the same level of competition they currently are (If don't like it, don't join it!) -Brentwood's 1st Amendment argument LOSES

California Statute Chapter 383 (House Bill 206) - Fair Pay to Play Act

- signed into law by Governor Newsom in 2019 - allows student-athletes to receive compensation for NIL, be represented by agents and sign endorsements - NCAA cannot suspend/discipline student-athletes who engage in these actions - would have taken effect in the beginning of 2023

O'Bannon v. NCAA

- similar to Keller's case, was also filed in 2009 but targeted NCAA policy of amateurism as an antitrust violation - NCAA monopolistic behavior as it related to paying student-athletes - US District Court held amateurism rules violated antitrust laws and that colleges must reward men's basketball and football players up to $5k annually while enrolled for NIL (payments made after graduation) - appealed and court affirmed that NCAA's behavior was an antitrust violation, but reasoned that by allowing colleges to offer student-athletes additional compensation up to a full ride, NCAA cures the antitrust harm caused by otherwise UNLAWFUL amateurism rules

Rule of Reason

- some restraints necessary business practices - Pro-competitive effects are weighed against the anti-competition effects of the restraints - courts do this balancing - applied in many sports cases

The Creation of the NCAA

- started as Intercollegiate Athletic Association (IAA) in 1906 in response to President Roosevelt's concerns over college football deaths and injuries from the "flying wedge" formation (18 in 1905) - In 1903, first film of football made by Edison, which documented two injuries - currently 1100 member private and public colleges in NCAA, 67% of DI schools are public (Navy and Army are public schools, whereas Citadel is private)

Brentwood II and Due Process

- state-actor must provide due process before depriving person of a life, liberty, or property interest Process that TSSAA engaged in was sufficient: - Investigation. - Multiple meetings. - Exchanges of correspondence. - Adverse written determination from TSSAA's executive director. - Hearing before executive director and advisory panel. - Brentwood represented by lawyers. - Brentwood could submit evidence. Brentwood's Due Process argument LOSES

1st Amendment - Religion

- tension between Free Exercise Clause and Establishment Clause of the 1st Amendment Hypothetical Situations: - Captain of public high school team led her team in spontaneous 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

State-Actor

- the government (federal, state, or local and those acting on its behalf) - subject to US Constitution and Bill of Rights and must afford individuals those protections (EWU) - have own rules and government rules to follow

Exclusive Remedy Rule

- the inability to sue workplaces or employers for injuries because of the workers' compensation program - some exceptions (intentional acts, etc.)

Compensation Bargain

- trade-off between assured, limited coverage and lack of recourse outside of workers compensation - tries to solve the threat of employers becoming insolvent due to high damage awards - system of collective liability established requires individual immunity

Exclusion of Homeschooled Students

- varies by state, some allow homeschooled students the ability to participate in interscholastic athletics - if so, no issue arises - AA can create rules prohibiting homeschooled students from playing (CA, HI, MT) - disallow because of academic reasons and limited financial resources - allow because trying to socialize them and get them involved in the community

Professional Sports and Economic Viability

1. Franchise owners with financing and business acumen to successfully operate member clubs. 2. Teams in several large cities throughout the country with the population and economic base to support them. 3. Access to adequate playing facilities. 4. Major league quality players. 5. National television broadcasting contract.

CBA Exemption Requirements

1. injured party is a party to the CBA 2. subject contested on antitrust grounds is a mandatory subject for bargaining (wages, hours, benefits, etc.) 3. CBA reaching through bona fide good faith bargaining

NCAA History of Enforcement

1910 - changed name to NCAA 1929 - Carnegie Foundation for the Advancement of Education issued report about commercialism in college sports. Post Word War II - More students in colleges as result of GI Bill. 1948 - Sanity Code "alleviate the proliferation of exploitive practices in recruitment of student-athletes" - Constitutional Compliance Committee to enforce Sanity Code with only sanction of expulsion 1950s - Walter Byers becomes executive director of NCAA concerned about enforcement & NCAA gets first television contract ($1 million). 1984 - NCAA v. Brd. Regents of Univ. of Oklahoma, 468 U.S. 85 (1984), NCAA television plan for D-I violates antitrust laws - leads to BCS. 1989 - Knight Commission recommends more control and involvement by college presidents in NCAA - concerns about student-athlete graduation rates ("20-hour rule") and cost containment. 1990s to Present - College presidents gaining more control administrative and legislative processes within the NCAA. 2013 - Changes to enforcement structure. 2015 - NCAA autonomy legislation to give the "Power 5 Conferences" (Plus Notre Dame) more power to write their own rules. 2020 - Name, Image, and Likeness issues related to compensation for student-athletes. 2021 - NCAA v. Alston holds that NCAA violated antitrust laws (Sherman Act § 1) concerning to education-related benefits.

Jeremy Bloom

2002-2004 played WR and punt returner for Colorado Buffalos and maintained world cup skiing career. 2005 NCAA declared him permanently ineligible. 2005-2006 trained for and participated in 2006 Winter Olympics in Torino, Italy. 2006-2008 played in NFL with Philadelphia Eagles and Pittsburg Steelers.

Limited Judicial Review

Courts generally NOT intervene in internal governance unless: - league breaks own rules - breach of fiduciary duty - conflict of interest - decision making process is arbitrary and capricious (or in bad faith) - violation of applicable laws

Curt Flood Act and Coverage

Covered: - any claims related to restraints on players (reserve clause, mobility restraints, compensation restraints) No Covered - Franchise ownership, location, and expansion issues. - Matters between commissioner's office and clubs. - Marketing or sales, intellectual property licensing, and broadcasting issues affecting organized professional baseball.

Proving Workers Compensation

Employees must prove... - they were employed - injury occurred on the job - filed within time required by STATE statute - notified the employer Why? -allows employer to provide immediate medical diagnosis and treatment to injured party -facilitates earliest investigation into facts of the case - Temporary workers and independent contractors may not apply

State-Actor in Brentwood I

Majority Opinion - Yes, it is a state actor because: - 84% of TSSAA is public schools only 16% are private schools. - Interscholastic athletics is an integral part of public education in Tennessee and they spend money on it - TSSAA's legislative council and board are composed of public employees. - State Board of Education members are ex officio members of board of control and legislative council. They are members of the board and council because they are on the state board. - Employees of TSSAA are not paid by state but can take part in state retirement system. - State Board's regulations once freely stated that the TSSAA's official regulator of interscholastic athletics. That was officially changed in 1996, but that was in words only. Dissenting Opinion - No, it should not be considered a state actor because: - State of Tennessee didn't create it by statute or regulation. - State of Tennessee doesn't fund it or pay its employees. - Only 4% of its income comes from dues paying members, 96% comes from gate receipts. - State of Tennessee doesn't permit TSSAA to use state-owned facilities for a discounted fee and not exempt from state taxation.

Sherman Antitrust Act -- Section 2 Requirements

Monopolization requires proof that: - Defendant possess monopoly power in relevant market - Defendant willfully acquired or maintained that power rather than having grown or developed that power as a consequence of a superior product or business acumen Attempted monopolization requires proof that the Defendant behaved in predator/anticompetitive conduct with: - intent to monopolize -dangerous probability of achieving monopoly power - Multiple cases related to baseball and antitrust cases in US Supreme Court

Interscholastic Athletics and Limited Judicial Review

Struggle between: - hard and fast rules that interscholastic athletic governing bodies can apply in order to facilitate easy decision-making and - exercising discretion on the part of the interscholastic athletic governing bodies and handling waivers on a case-by-case basis (time-consuming and cumbersome) - Example: Mitchell Miller and the Bruins story - hard/fast rules would give no credence to Miller's situation vs understanding Miller was 14 - Easy for administrators to simply follow cut-and-dry rule, but also does not recognize the unique context of each situation