exam #4

the cause of action of negligence has four elements that must coexist for the plaintiff to go forward with the claim. they are:

- duty - breach of duty - causation - damages

legal issues related to participation in high school and college athletics:

- gender equity - discrimination based on race, disability, or religion - discipline issues - transfer rules - drug testing - social media - dress and grooming codes

what are some competitive advantage strategies with regards to participation in private clubs?

- if you're operating a club that is truly private, examine the cases that apply the LANSDOWNE factors and structure policies accordingly - avoid implementing restrictive policies - be aware that a truly private club may not be subject to legal challenge but is subject to negative publicity - plan for inclusion of athletes with disabilities in all programs and services, where feasible - educate staff

knapp v northwestern university

- knapp had been recruited to play bball at NU with grant-in-aid - when the school found out that he had a heart abnormality that triggered cardiac death and required him to have an implant, they refused to allow him to play - found that knapp was not disabled under the law so they didn't violate the ADA

what are the areas of possible discrimination?

- race - gender - sexual orientation - disability

selection of competent drivers

- record of the driver - length of obtaining drivers license - if they own a car - medical history - age

what are the expectations of coaches and instructors in the dissemination of safety rules and warnings?

- safety rules and procedures should be discussed and reinforced on a frequent basis - reason for the rules should be shared - every practice should have time devoted to safety - instructors should warn participants about the specific risks of each activity and discuss adverse consequences ****

student athletes subjected to dress and/or grooming codes have sometimes succeeding in challenging their constitutionality under what?

- the equal protection clause - the first amendment

proper training of drivers

- training on how to react in a different condition - safety orientations for different vehicles they will drive

kuketz v petronelli

- wheelchair racquetball player who was denied permission to play in a club's men's A level tournament against able-bodied competitors - asked for two accommodations (play in chair and get two bounces) -they said no because it fundamentally altered the game

as a manager, what should you be aware of in the selection and supervision of properly qualified instructors?

- whether the instructor has the appropriate competence to provide instruction - the responsibility to supervise instructors in a reasonable fashion remains, regardless of qualifications

elliott v delaware state university

- white plaintiff lived in a freshman dorm with a black non athlete who engaged in racially abusive verbal attacks on Elliott. - she told the school officials and her volleyball coach got mad that she didn't tell her first - volley ball coach then treated her like crap, benched her, punished her, took her out of group messages, and told others she was only on the team bc otherwise she would be called a racist - Elliott sued for race discrimination, racially hostile environment and retaliation against her for complaining of discrimination - only the last one got granted because of how the coach was acting

dennin v Connecticut interscholastic athletic conference

-dennin was 19 with down syndrome and a member of the swim team - sued under title III when they didn't grant him to complete 25% of schooling over the summer for the second year - court ruled that he was discriminated against

what 3 things must a plaintiff prove under section 504 and title II of the ADA? that she is..

.1. disable 2. otherwise qualified 3. excluded solely on basis of disability to be disabled she must prove that she has a 1. physical or mental impairment 2. which substantially limits 3. one or more major life activities

the court defined proper preparation of the progression of skill to include three things, what are they?

1. an explanation of basic rules and procedures 2. suggestions for proper performance 3. identification of risks

what are the 8 factors used for determining whether a club is truly private?

1. genuine selectiveness regarding membership 2. membership control over operations 3. history of the organization 4. nonmember use of the facility 5. purpose of the club's existence 6. advertisement for members 7. organization as a for-profit or nonprofit 8. formalities observed, such as by-laws, meetings, etc.

what are the four primary issues that must be addressed when an organization takes on the duty to provide transportation?

1. selection of competent drivers 2. selection of a safe mode of travel 3. proper maintenance of the vehicle 4. proper training of drivers

3 part accommodation test

1. was it necessary to provide the disabled person full and equal enjoyment of the services or facilities? 2. was it reasonable? 3. would it fundamentally alter the nature of the competition?

the federal government has allowed itself to be sued for some tort claims arising under what?

Federal Tort Claims Act

modified comparative negligence

a plaintiff's negligence will bar recovery completely if it is a specified proportion of the total fault

comparative negligence

any negligence by the plaintiff is compared to the degree of negligence by the defendant

when implementing rules for conduct, you have to make sure that the rules are not applied in an _________ and _________ manner

arbitrary and comprecious

contributory negligence

ask whether the plaintiff acted as a reasonably prudent plaintiff

cohen vs brown university

case where brown university--51% of undergrad was female but only 38% of athletes were female; they cut equal women and mens team for budgetary reasons, but the women were then under represented. - the court used the 3 part test from the 1979 Policy Interpretation issued by the OCR to find Brown guilty - holding: they had to put the two women's teams back

if a college athlete sues her public university claiming a Due Process Clause violation in the way a disciplinary proceeding was implemented, the majority rule that the court is likely to apply holds that student-athletes _____

do not have a protected liberty or property interest that generates a right to participate in school athletics

disability discrimination

does the individual have a covered disability? does that impairment substantially limit a major life activity? was the individual discriminated against solely on the basis of that disability?

t/f: negligence per se means that the plaintiff needs not establish causation.

false

t/f: primary assumption of risk means that a plaintiff has acted negligently in encountering the risks of an activity

false

t/f: sexual harassment that occurs in an educational institution may not be litigated under title IX

false

t/f: the Act of God defense will be upheld when a foreseeable natural disaster results in injury to plaintiff

false

t/f: the first prong of the current three-part test for compliance with title IX relative to participation opportunities is: participation opportunities should reflect the proportion of women who are currently athletes at the university

false

t/f: the intent of transfer rules at the high school level is to encourage student-athletes to freely transfer to the school that can provide them with the best athletics opportunities to prepare them or their college careers

false

t/f: the recreational use statutes provide that landowners who open their property to recreational use by the public for a fee enjoy some immunity for injuries of their property.

false

t/f: the third prong of the current three-part test for compliance with title IX is: the university must fully and effectively accommodate the interests and abilities of the underrepresented sex, unless doing so is simply too expensive given he huge cost of maintaining a football team.

false

in regards to social media posts, what can sport managers do to protect their organizations from lawsuits?

have social media policies only disrupt speech if it is substantially disruptive to the learning environment

proper maintenance of vehicles

history of vehicles if anything is wrong last oil change who worked on the car insurance provider specified mechanic

immunity

if a defendant is held to have this, it precludes a suit from being brought - means that even the defendant engaged in tortuous behavior and may escape liability

what does title II prohibit?

intentional discrimination on the basis of race, color, religion, or national origin in places of public accommodation. - to prevail on a title II claim, a plaintiff must prove discrimination on the part of a place of public accommodation.

what is an argument that supports the position that Casey Martin should have been granted an exception allowing him to ride in a cart?

making such an exception does not fundamentally alter the game of golf

secondary assumption of risk

means that a plaintiff deliberately chooses to encounter a known risk and in doing so acts unreasonably

explain quality of supervision

means that the person entrusted with this responsibility is competent to oversee the participants - competence of the supervisor

primary assumption of risk

means that the plaintiff understands and voluntarily agrees to accept the inherent risks of an activity

explain quantity of supervision

means that there are sufficient supervisors to fulfill the duty of care - whether the number of competent supervisors is sufficient relative to the number of participants

what does section 2000 of title VI say?

no person shall, on the ground of race, color, or national origin, be excluded from participation in or be subjected to discrimination under any program or activity receiving federal financial assistance

explain lack of supervision

person is competent to oversee the activity

place of public accommodation

places that affect interstate commerce and are facilities "principally engaged in selling food for consumption on the premises" as well as sports arenas, stadiums, and other places of exhibition or entertainment.

what is pure comparative negligence?

plaintiff's damages are reduced in proportion to the plaintiff's fault, so that even if the proportion of negligence is treated than the defendant's, the plaintiff will still recover something.

if a plaintiff understands and voluntarily agrees to accept the inherent risks of an activity, this is called ____________

primary assumption of risk

defense against sexual orientation

private club is engaged in expressive association under first amendment (boy scouts)

recreational use statutes

provides a level of immunity for landowners who open their property to recreational use by the public with no fees charged.

the gibbs-alfano v ossining boat and canoe club case is a

section 1983 civil rights act case

what is NOT a protected category under title II?

sex (gender)

what are the state statutes that protect outdoor activities by providing that participants in an activity assume the risks inherent in that activity?

sport safety acts or shared responsibility statutes

female plaintiffs have successfully challenged country clubs' places that excluded them from clubhouses or restricted their playing opportunities under what?

state public accommodation statutes

what is an objective standard that courts have developed to assist in ascertaining whether a breach of duty has occurred?

the reasonable prudent person

in cases where access to country clubs is denied on the basis of race, a plaintiff may sue under ___________

title II

student athletes who are sexually harassed by their coach may bring lawsuit under what?

title IX

when determining how to handle a disabled athlete who is asking for an accommodation, what is the strategy or best practice to keep in mind?

to make sure it is a REASONABLE accommodation,

t/f: a breach of duty has occurred if a defendant has failed to meet the required standard of care in a particular case.

true

t/f: in a sexual orientation court case, if discrimination occurs, a private organization must be able to show they are engaged in expressive association

true

t/f: plaintiffs may bring suit under title VI of the civil rights act

true

t/f: sports arenas and stadiums are typically considered to be places of public accommodation under title II of the civil rights act

true

t/f: the PGA Tour Inv. v Martin case is a title III ADA case

true

t/f: the defense of statute of limitations provides that claims must be filed in a timely fashion

true

t/f: the good samaritan statutes generally provide that persons who act in good faith to assist others in distress may not be sued for ordinary negligence

true

t/f: the second prong of the current three-part test for compliance with title IX is: the university must have a history and continuing practice of expanding opportunities for the underrepresented sex.

true

selection of a safe mode of travel

type of vehicle length of travel time carrying capacity

who specifically does the volunteer protection act of 1997 protect?

volunteers for nonprofit organizations or a governmental entity (only protects the volunteer, not the organization or governmental entity)

what is the major difference between the NCAA's ability to drug test athletes and the individual university's ability to drug test athletes?

with the university there is government action, and with the NCAA there is not.