Sport Law Final

First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Contains Establishment Clause (wall of separation between church and state) and Free Exercise Clause.

The Fourth Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

To analyze schools in court, we would ask ...

"Was the athlete recruited to come to this institution to play the sport?". If recruited, the organization takes on this higher obligation. That's how we distinguish varsity sport from intramural.

Agent must use reasonable care when acting on behalf of the principal. (Duty of care, competence, and diligence)

- A special relationship exists between agent and principal that gives rise to duty of care in negligence. - Duty is breached when agent exposes the principal or the principal's property or reputation to unreasonable risks of harm - Reasonably prudent professional (agent) standard

Duty to act in Good Faith and Provide Information

- Agency is a contractual relationship and all contracts require good faith - Agent must disclose to the principal all matters coming to the agent's notice or knowledge concerning the subject that is material - If you retain it, it can be a breach.

Duty Regarding Property - Segregating, Record-Keeping, and Accounting

- Agent must not deal with the principal's property so that it appears to be the agent's property - Agent must not mingle principal's property with anyone else's - Agent must keep and render accounts to the principal of money or or other property received or paid on the principal's account - The agent must account for all money/property earned or lost through agency

Duties of the Principal

- Duty to Indemnify -- In accordance with terms of contract -- When the agent makes a payment within scope of employment that is beneficial to the agent -- When agent suffers loss that fairly should be borne by the principal - Duty to act in good faith

Agency Terminated by...

- Manifestation of revocation by either principal or agent(KEY ONE) - Effective upon notification (You communicate, if you are a agent or principal, that you want to terminate with each other.) - Death of agent or principal - Principal's loss of capacity - By terms of agency agreement covering change of circumstance - Law

Formal Education

- No formal education is needed to become a sports agent - Traditionally, there hasn't even been a certifying exam - However, the NFLPA now requires agents to have a degree from a 4-year accredited college and graduate degree - In practice, most agents are lawyers

Breach of Fiduciary Duty

- Use of property or information without principal's consent - Self-dealing transactions - Competition with principal during agency relationship

Merchantability, product must:

- pass without objection in the trade under contract description - be fit for ordinary purpose for which such goods are used - be adequately contained/packaged/labeled - conform to promises or affirmations of fact made on container

Unilateral promise

1 promise, In unilateral, the promise is in the OFFER. The acceptance is not through a promise, but through performance. Brooklyn bridge, you promise to give me $100 dollars, I just walk across the bridge.

Waivers do not violate public policy unless...

1. They pertain to a service important to the public. 2. The parties are not of equal bargaining power (contract of adhesion) 3. There is an employer-employee relationship 4. They attempt to preclude liability for extreme forms of conduct (i.e. gross negligence, recklessness)

Steps to affirmative action

1. We have to use strict scrutiny, but court called it benign discrimination (not harmful) if done properly. If it is a improper use, it is not benign, but a malignant (harmful) form of discrimination. 2. - court has to see that they have compelling purpose, but did you do what is necessary and only what is necessary for affirmative action?

Assumption of risk relieves the defendant of liability if... (3)

1. the risk is inherent to the sport or activity (inherent risk - cannot be removed without altering the nature of activity) 2. participant must voluntarily consent to risk exposure (no minors can consent) 3. participant must know, understand, and appreciate the inherent risks of the activity Inherent concept works with recklessness standard.

Bilateral contracts

2 promises. The acceptance is by promise. Ex. Brooklyn bridge, I promise to walk across the bridge. You promise to give me $100 dollars.

Offer

A conditional promise to do or refrain from doing something in the future.

Assumption of risk (purest form, a defense to negligence in the US)

A legal theory by which a plaintiff may not recover for an injury when the plaintiff voluntarily exposed himself or herself to a known and appreciated danger. You ASSUME the risk of injury.

Affirmative Action

A recognition that there's groups of people treated differently under the law for long periods of time, and how do we construct it in a way to overcome our past wrongs so that they have the same opportunities, equalities, etc., as someone who does not have these problems would have. Goal: reverse the effects of past discrimination

Merchants acceptance

Additional terms and conditions can be added after acceptance. Can modify too. The new additional terms must not be "material" (materially alter the relationship and fundamentally shift the risks).

What is agency

Agency is the fiduciary relationship that arises when one person (a "principal") manifests assent to another person (an "agent") that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. Restatement of Agency 3rd. Must have mutual assent. Produces both inward and outward-looking consequences.

Actual Authority

An agent acts with actual authority when, at the time of taking action for the principal, the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act

The Fruit of the Poisonous Tree Doctrine - Extension to Exclusionary Rule

Any evidence obtained as a result of an illegal search and seizure is tainted and inadmissible as well.

Exclusionary Rule to 4th Amendment

Any evidence obtained illegally by invalid search and seizure, it inadmissible in criminal court.

How must you accept the offer?

Any reasonable means will survive. Reasonable means of communicating acceptance are less than what they are now because of technological advances. Key: you have to effectively communicate to the other side that you have accepted the offer. You can say how you would like to set the terms of the acceptance as the offeror (via email, snail mail, phone call, etc.)

The principal will be on the hook if they did something to create the ____________________ (you introduce them as your agent, you tell someone to talk to this person/agent, etc)

Appearance of authority

US sport product manufacturers must warn participants of all risks associated with their products

Both systems put the burden on the manufacturer, who is in the best position to warn of risks and recall defective products

Public actor defamation

Celebs or important people. Receive the least protection. For these cases, public actors have to show actual malice - the person that uttered the false rumor, that person either knew the info was false or acted with a reckless disregard for the truth (they should have known the info was false, if they could have done some digging about whether the info was true or not, then it was recklessly disregarded; running with info that is suspect).

Contracts law involves 2 courts

Court of Law and Court of Public Opinion

Failure to warn defect

Deals with warning labels. Manufacturers must warn towards INHERENT RISKS related to the USE and even the MISUSE of products. We use warning labels on the products and within the documentation that accompanies the product so that we can show the user of the product has been warned the inherent dangers of the use and misuse of the products. Have to use clear language.

3 types of product defects

Design defect, manufacturing defect, failure to warn defect

Defenses to breach of warranty

Disclaiming: you can disclaim, say we do away with it, and you have to put it in the contract, like a waiver, you the consumer that give up legal rights. Problem: you can disclaim express and warranty of particular purpose, but not the warranty of merchantability, so you can limit it to one year (have to use merchantability in the contract with one year warranty) happens when you open up your product and see the warranty. You are contractually waiving your product, and they will give you the warranty back with the extended warranty.

Invitee/Licensee distinction isn't important anymore because there's a new rule to premises liability that occupiers of land owe a duty of reasonable care to all lawful visitors. 62 American Jurisprudence 2nd Premises Liability § 81, 2003. The duty now consists of...

Duty requires reasonable care in dealing with others Duty to inspect for hidden dangers Duty for construction defects...even those that existed before bought property Duty to warn of obvious or known dangers (increases your responsibility)

Consideration

Easiest element - bargain for exchange

School Prayer

Endorsement Test. In most cases, non-sectarian, non-proselytizing student-initiated prayer is a safe haven (exception!!)

Exception to the statute of frauds

Equity. Courts of equity - courts of fairness. Today, we don't have court of equity, we have equitable remedies. Courts don't have to grant equitable remedies. `

Pure comparative fault

Even if plantiff is 99% to blame, they still get 1% of the amount to take home

Equal Protection

Every person, not citizen, in the US should be treated equally under the law. Post civil war amendment.

Non-public forums

Ex. A classroom. Places in where speeches can be regulated based on time, place, and manner.

Public forums

Ex. Tate. Government owned place/property where it is a public forum for anything. You cant regulate based on content.

State action

Except for the Thirteenth Amendment's prohibition on slavery, the USSC generally does not regulate the affairs of individuals and private entities. Nonstate actors generally cannot violate the constitution because there is no obligation on their part to uphold the constitutional rights of others.

Written Requirement

Exception: no written document is needed unless the agent has the authority to perform an act that is not enforceable unless it is in written form. Exception: principal may not rely on rule when a third party has detrimentally relied on belief that agent had authority. Same policy for apparent authority.

2 types of assumption of risk

Express Implied

2 categories of warranties

Express and Implied

Scope of Authority

Express authority, Inherent authority

In ___________, the offer expressed will detail how long you have to accept an offer.

Expressed Duration

___________ is the standard to who is responsible for reasonable care.

Foreseeability

The baseball rule

Foul balls at baseball games (hockey pucks at hockey, footballs flying in football, etc.). What is the responsibility of the sport organizer? You have a duty to warn of those dangers. You may have a duty to prevent them. Waivers on back of ticket, put signs throughout the facility that this is a danger, so now participants know, understand, and appreciate the danger. So it shields the sport org from liability based on assumption of risk and quasi waivers. Since you've been warned, you assume the risk of the foul ball. Exceptions - fan was struck by foul ball, but the mascot was in the stands and the fan claims that they were distracted by the mascot and the fan won. They didn't assume the risk of being distracted.

Consideration must be mutual (money for exchange for product). These things are not mutual.

Gifts are not valid means of consideration. Illegal consideration and exchange for past services won't suffice.

Rational basis standard

Government only needs a rational (rather than arbitrary) reason for the classification. Easiest to overcome.

Key to effective waivers

Having them reviewed by lawyers with experience in writing and enforcing waivers

Some states have __________________________that immunize public entities and employees from liability for injuries incurred on public properties

Hazardous recreational activity statutes

Mistake

If both parties were mistaken, there is no agreement because there was no mutual consent. If one party is mistaken, they can be out of luck in getting out the agreement.

Courts enforce defamation. Have to see if information is true or false.

If info is true, no matter how harmful it is to reputation, then oh well. If false, then what type of person is harmed by this communication? Are they a public, non-public, or limited public actor?

Fitness for a particular purpose

If manufacturer is selling goods for particular purpose, they are specialty goods, so these goods must meet that specialization for the consumer that wants them for the particular purpose.

Contributory Negligence (Fault)

If the plaintiff is remotely to blame for his or her OWN harm (played a substantial factor in bringing about the harm) THEN the plaintiff has contributed to the harm and the plaintiff gets nothing (totally barred from recovery). ALL OR NOTHING APPROACH. Harsh approach. Only 13 states have retained this method. most have moved to comparative fault standard.

Ratification

If the principal says you the agent were probably not allowed to do that but you did good work

Key to Products liability

In order to sue an individual based on a product injury, you have to have privity of contract

Classifications in premises liability

Invitees, Licensees, Trespassers

Statutory Defenses

Judicial reluctance to impose a duty for inherent risks. Legislative acts for several states also shield recreational sport providers, coaches, and officials with immunity for inherent risks

Strict liability theory (liability regardless of fault)

Jurisdictions stared removing the fault component for product liability cases, instead if suing under this liability, you just need to show that there's a defect with the protect that existed at the time at the manufactures' release of the product, and it was a substantial factor to your injury. Relationship inherent. Stems from ultrahazardous activities. Example - Demolition: person doing demo is responsible for preventing injury

Defenses to Contract formation - Vices of consent

Lack of Capacity Misrepresentation Undue Influence Duress Mistake

Duration of offer

Lapse, Revocation, Rejection

Examples of agents

Lawyers Sport agents Managers Accountants Real estate

Example of assumption of risk.

Lebron tries to shoot from beyond the board, Dr baker comes down hard with the rebound and pops lebron in the nose. But lebron has a photo shoot tomorrow, and lebron sues Dr Baker. Lebron assumed the risk in a jump down rebound risk. This happens in basketball. Lebron voluntarily consented to play basketball with Dr Baker, Lebron knew that getting hit in the elbow in basketball was a risk. It's going to be hard for Lebron to explain that he didn't know the risk because he plays the game for a career

Establishment Clause: 3 Tests

Lemon Test Coercion Test Endorsement Test

Premises Liability

Liability related to property and direct user statues. A special relationship exists between the owner of real property and those who are on said property. Scope of duty historically depends on classification of property user. (Without the past statutes, we lie back on this premises liability.)

If either party loses capacity, mental capacity, the offer is lost. Minors do not have the mental capacity. Mentally impaired may not have the capacity to enter into contract depending on impairment. ________________, someone had mental capacity, then lost it. You can lose capacity if you die.

Lose of capacity

Example of recreational user statutes

Made for private landowners (like cities). Applies to all of us. You own a lake, people want to wakeboard on your lake. You say yes, someone gets injured and they sue you. You may have protection because we want people to be cool. We don't want these beautiful lands to be used by no one and we want people to use are property. So you have protection that you are allowing people to use your property. (as soon as you organize an activity OR you use your property for a for-profit context, you will not be protected under the statutes)

Lack of Capacity

Minors - under 18 cannot consent Mentally Incompetent - if declared by judge or physician to be mentally incompetent For minors and mentally incompetent - the contract is voidable, not automatically void Intoxicated - if you know that they're intoxicated and you still enter an agreement with them, you are taking advantage, and it can be voided by the intoxicated person.

Example of Contributory Negligence

Mommy and Daddy pick up kids in minivan. Kids are restless and want snacks and is crying. Mom unbuckles her seatbelt while dad is driving the van. Mom leans back and tries to find the snacks. Unfortunately, a drunk driver runs a red light and crashes into the minivan. Mom goes through window, and she dies. The family may recover nothing for the mom's loss of life because she unbuckled her seatbelt.

Suspect Classifications (strict scrutiny)

Most difficult of all legal standards. Only applied in situations where there's been some differential treatment of people to where the law says they don't want that. State actors need a good reason to do what has been done. Government must show that it's acts were necessary (interpreted to mean narrowly tailored) and nothing more. Very similar to the less restrictive alternative test. Race and Origin. Classifications and Fundamental Rights - voting, criminal appeal, interstate level. The scrutiny is necessary for compelling government interest

The Agent/Lawyer

Must follow the Model Code of Professional Conduct Regulates the lawyer's ability to: - Solicit clients - Advertise - Other conduct (i.e. split fares/fees with non-lawyers)

Courts need more than the 3 contract formation requirements. They need evidence in order to find what the parties intended. So we need _____________. Given to the term that involves the meeting of the minds that is manifested by offer and acceptance.

Mutual assent

Regulation by Players Associations/Unions

NFLPA, MLBPA, NHLPA and NBPA all restrict agents to some degree. Some require only certification while the NFLPA makes agents take a written exam and prevents solicitation of clients (just like the Model Code).

Inherent Authority (implied) 2 ways

Necessary or incidental Reasonable interpretation

3 legal theories that apply to products liability

Negligence doctrine Strict liability theory Breach of warranty

Waivers

Negligence release agreements (far more powerful than participation agreements) removes possibilities of negligence that the defendant would normally have against the plaintiff (or user of a service). The participant agrees to relinquish the right to pursue legal action against the service provider in the event that negligence of the provider results in an injury to the participant.

Private Actors: 2 theories

Nexus/Entanglement Public Function theory

Are ministerial acts protected by governmental immunity?

No, ministerial acts are not protected and includes 1) acts performed based on orders and 2) acts necessary to the completion of the activity. The line between discretionary decisions and ministerial acts can sometimes be blurred.

What happens when a breach of contract happens?

Non breaching party has the right to expect that the contract will be honored and benefits will be provided. Non breaching party is able to rely on the agreement and the EXPECTATION and RELIANCE together can provide interest that can be compensated. RESTITUTION to be compensated (you do something in the contract, and you should be restored for that, be made whole, and you should be given what you are promised).

NCAA, USOC, Professional Sport Leagues/Teams are ______________.

Not state actors

Example of 3rd party violence in sports

Notre Dame, sued and lost a case, didn't have netting in their stadium and the ball flew into the stands, fans fought for the ball, woman was harmed by men fighting for ball, she sued and she won against Notre Dame.

Other contractual requirements

Offer Acceptance Consent Capacity

3 primary requirements of contract formation

Offer Acceptance Consideration

Lapse

Offer is no longer after the time period has ended. Time period depends. (expressed duration, reasonable time, loss of capacity)

Misrepresentation

One party misrepresented material facts, risk-shifting term (meaningful to the bargain) If misrepresented a key term or condition (intention is fraud) unintentionally, it voids out the contract

Oral Contracts

Oral contracts are common and enforced all the time. Even when there's a written agreement, in reality, that is not the contract, but evidence of the contract. The CONTRACT is the meeting of the minds as evidence of mutual consent. Ripping up contracts don't do anything unless there's a condition saying that if you rip up a contract, its void.

Parental waivers

Parents waiving the rights for their minors to sue. Controversial. Enforceable in some states.

Licensees

People you allow to be on your property, social guests. Lesser standard of care, but still have the OBLIGATION to warn of any known danger! You do not have the obligation to inspect the property under the traditional view. Still applies to the rec users statute.

Non-public actor defamation

Persons like me and you, non-celebs. We receive the most protection, if we prove the info is false, then we win. Running with false story, I will sue because if I do a press conference, no one will care what I have to say. Lets say Kirby has a rumor about him, he calls press conference, people will show up for that! Kirby is in a position to rebut the rumors and address it. That's why they receive less protection 1) they put themselves in the spotlight and 2) they can correct their problem.

Trespassers

Persons not allowed on the property. Intentional torts. Generally no legal obligation is allowed.

Invitees

Persons who are invited by the owner for business purposes, or persons invited to use the property. Owed the HIGHEST standard of care, and the owner must do a sweep to make sure there is no risk or dangers for their invitees. Facilities are trying to protect the patrons. Ex. Fans going to a Atlanta Braves baseball game. They have been invited by Atlanta braves to attend the games.

Example of Comparative Negligence

Plaintiff and defendant are to blame. Plaintiff is 30% to blame for their injuries. Amount is $100,000. plaintiff gets $70,000.

Modified rule (comparative negligence)

Plaintiff can't be as to blame or more to blame as the defendant. So the plaintiff must be at the most 49% at fault. If parties are 50-50, there's equal blame and plaintiff gets nothing.

Other First Amendment Issues

Political Speech Speech and Expression Freedom of the Press

Design defect

Problem with design (not construction). All products off the assembly line are defected. Designed defects are NO STRICT LIABILITY. Risks outweigh usefulness of the product. We have a risk utility test (analysis) - balance the UTILITY/USEFULNESS of the product with the RISK of the product. (balancing test)

Waivers cannot be enforced if they violate ________.

Public policy

2 forms of comparative negligence by state

Pure comparative fault states vs. modified rule states

If the offer does not set an expressed time period, then ______________ is imposed and the court will have to determine what will be a reasonable amount of time for the offeree to accept (context driven).

Reasonable Time

A warrant and probable cause are only needed to search those areas in which a person has a ___________________________.

Reasonable expectation of privacy

Exception to Warrant Reqirement

Reasonable suspicion: defined as the existence of reasonable circumstances, reports, information, or reasonable direct observation leading to the belief that a crime has been committed (or drug use has occurred). Ex. drug testing

To hold rec sports legally responsible, they have to be ___________. To hold someone like Coach Smart at a university responsible, he has to be _________.

Reckless Negligent

_______________immunize those who allow their property to be used for recreational activities

Recreational user statutes

Offer can be ____________. "Will you marry me?" "No." offer is dead and it goes away. Any alleged acceptance that does not mirror the terms and conditions of the offer is a ___________. The acceptance must match the offer.

Rejected, Rejection

Comparative Negligence (Fault)

Rejects all-or-nothing approach, instead attempts to divide liability between plaintiff and defendant. Compare fault of plaintiff with fault of the defendant and we will reduce the recoverable amount by the percentage of fault born by the plaintiff.

Agency Formation

Relationship by contract evidenced by manifestation of assent A person manifests assent (intention) through written or spoken words or other conduct

Offer can be ___________. You have the power of ____________as the offeror. "Will you marry me... well.. Nevermind." Power exists anytime BEFORE acceptance. After acceptance, no.

Revoked, revocation

Problem with Privity of Contract (example)

Samsung phones were blowing up, if my phone were to blow up, the privity of contract would hurt me and my action against Samsung. I bought my Samsung phone from Sprint, not Samsung. My contract was with the sprint dealer, so I would be after the owner of the Spring store because I don't have a contractual relationship with Samsung!

Why aren't schools protected based on statutory defenses?

Schools are NOT protected based on these statutes because we found that, especially colleges and universities, we impose a greater responsibility on colleges athletic department legally than a youth sport setting, like little league. Unlike the little league organization, schools take on a responsibility to protect students - in loco parentis.

Defamation

Slander (spoken) or Libel (written)

Why was privity of contract extended?

So that manufacturers can no longer hide behind 3rd parties because the contractual relationship between the merchant and the dealer that sold the product is extended. Now manufacturers can't rely on their 3rd party dealers anymore for security. The privity of contract is now to go to the consumer to the manufacturer!

Consequential damages

Sometimes allowed, such as warranties. Typically in contracts, people are economically harmed, but in product liability, they can be physically harmed. If it is foreseeable result of breach of contract, you can be compensated by contract for that harm.

Waivers in sports can provide strong defenses to cases involving __________ and ________ because a lot of times, these waivers can be found on the back of tickets, as long as they come with other types of risk.

Spectator liability, Participant liability

Exception to Oral Contracts

Statutes of Frauds. Any contract for sale, mortgage,lease of land, marriage, service agreements that require more than a year, or the sale of goods more than $500 must have a written contract.

Treated same sex marriage as a ______________ because of same sex marriage being a fundamental right.

Strict Scrutiny

In Loco Parentis

TO STAND IN THE PLACE OF THE PARENT (has been relaxed a bit, no corpal punishment but still imposes responsibility)

Necessary or incidental

The authority to do B is necessary to do A, then it is necessary or incidental.

Sport Product Liability

The ballistic nature of most sport activities makes participants vulnerable to defective products (ex. safety equipment that does not work)

Contractual Risk Management, You should seek legal consultation concerning a contract when...

The contracts need to be grounded in state law (always). The written requirement - written agreements are more beneficial. The contract should properly represents the relationship.

Warranty of merchantability

The goods are merchantable. With consumers, we want perfection. When merchants buy in bulk, it is a warranty that is generally good enough to be sold as new. Warranty varies per product. General market use.

Vernonia v Acton - Reduced expectation of privacy

The students consented to the test. The school district didn't test all students, but students that wanted to. The school district had authority of these people. The male athlete was at the urinal, and someone was behind them. Female athletes were in the stall, someone was outside the stall. School district didn't look at anything else besides banned drugs. District did not turn in these urines to the police, they just told the athletes who failed the test to not play.

Fiduciary Duty of Loyalty

The term "fiduciary" signifies that an agent must act in the principal's Best Interests in all matters connected to the agency relationship. Consequences are available if the duty is breached

Example of hazardous recreational activity statues

There was a period of time where activities like skateboarding were forced into sidewalks and malls because there were no skate parks because no one wanted to operate the skate park because it was a hazardous sport. So eventually, they wanted to protect public entities, as long as they build it and protect it in a safe way, we will have the skaters skate at their own risk. (has been cases of people trying to apply this to youth sport settings, even intramural settings. But some states (only states that passed them) will say hazardous statutes don't exist for organized sport.)

Lemon Test

This is a disjunctive three-part test. Under this test, a government practice is unconstitutional if: - it lacks a secular purpose; - its primary effect either advances or inhibits religion; or - it excessively entangles government with religion (Lemon v. Kurtzman)

Endorsement Test

This test seeks to determine whether the government endorses religion by means of the challenged action. The government endorses a religion when religion is favored, preferred, or promoted over other beliefs.

Vernonia v. Acton - balancing test

This test works with the privacy interests of the athletes against the states interests in the tests. The government wanted to protect their athletes from health problems and possible death from drugs. They wanted to curve drug use from the community. To ensure fair competition. On the other side, the athlete's privacy rights. Supreme court noted there are a few things more private then going to the bathroom. Supreme court said that this is private info. The students have the right to choose their own treatment and medication.

Breach of Warranty

This theory is contractual and involves a breach of the contract of sale due to the product's failure to live up to either express or implied warranties. Found when product is defective.

Express warranties

Those in which the manufacturers has communicated the warranty to the purchaser. Specifically, it is an affirmation of fact or promise that goes to the quality of the good made to induce purchase. Can be demonstrated, written, spoken. Key: fact or promise component - factual statements about the quality of the good. Affirmation is key too.

State Actors

Those who act in furtherance of their positions as employees of governmental agencies. Examples:public school teachers, police officers, IRS employees, county government employees, staff at the Department of Motor Vehicles, and athletic directors at state run universities.

Speech can be regulated by context/content of speech (speech that provokes violence or defamation is not protected). We can regulate these contexts by ________, ________, and __________.

Time, place, manner

The doctrine of respondeat superior

To hold the person above responsible!! Any harm caused by the employee is contributed to the employer (the company, not necessarily managers)

Duty to mitigate

To make less. I have a leak, plumber comes, doesn't fix leak, bathroom is flooded, you say I want new hardwood downstairs, and I allow it to grow and grow. Court will say where were you positioned to prevent further harm? You have a duty to prevent certain breaches from escalating.

Semi-Suspect Classification (intermediate Scrutiny)

Treated differently but not as poorly as persons based on race or national origin. Classifications linked to gender or illegitimacy (born outside a marriage - probably not a concern anymore) Gender - we know that gender is a social construct. The law might say gender equity or treating people based on gender fairly, but they really mean sex. This scrutiny is substantially related to important government objective

Contract law has some statutory reglation

U.C.C. regulates the sale of consumer goods, secured transactions, and negotiable instruments

Duress

Use of wrongful (illegal) force to compel someone into a contract that they otherwise wouldn't enter into. Ex. Blackmail, Manipulation

Suspicion-less Drug Testing in Public Schools

Vernonia v. Action. School district that had drug problem, athletes were center of drug culture. Community wanted to test the athletes. School district said if you play sports you have to agree to randomized testing. There's never a suspicion with randomize testing. You're just collecting a group of people to see what you're doing. Supreme Court was cool with it.

2 types of implied warranties

Warranty of merchantability, Warranty of fitness for a particular purpose

Means of acceptance - Mailbox rule

What if I say as offeror, I set the terms and conditions to be accepted by mail notifying me of the acceptance. Offeree does it, puts mail in envelope and is properly addressed and stamped. Puts it into a mailbox (dispatch letter). Then on the way home, I the offeror call that person and say I am exercising the power of revocation. The offeree says you can't do that because I already mailed the mail properly. The law will treat the offer as ACCEPTED once the mail is properly addressed, stamped, and dispatched.

Self-Dealing transaction

When the agent has a financial interest with a company with whom he or she is negotiating with on behalf of the principal (athlete). Is a conflict of interest. We prefer ourselves over others, in order to get around this, the agency requires agents to disclose the self-dealing action and interest of this company.

Apparent Authority

Where there is no actual authority, but principal leads third party to reasonably believe that the agent does have the power. Apparent authority binds the principal to the third party, but the principal can turn around and sue the agent. Agent is acting ultra vires, agent might not even be an agent.

Governmental (sovereign) immunity

Will protect public sport providers and employees for discretionary decisions, provides statutory protection. If you're a government employee, you are protected by this immunity.

Several states (including Georgia) have laws protecting coaches, officials, and volunteers.

Youth sport, non-profit settings, etc. we want to protect volunteer coaches, personnel, officials, etc. and we do so because we don't want them sued out of existence, so we will protect them from ordinary negligence or a heightened degree or negligence (i.e. recklessness)

Merger Clause

a clause in contract that says if not stabled or apart of the agreement is apart the agreement. Anything not found within that collection of documents is not apart of the agreement.

Participant liability example

a gymnast is harmed during a gymnastic competition because the spotter was in the wrong location

Spectator liability example

a spectator is harmed by a foul ball during a baseball game or a car during a Formula 1 race

Attractive nuisance exception to trespassers

an aspect of a property that appeals to children and children trespass on the property because of the attractiveness of that aspect and they get injured. You say you are a trespasser so I owe you no responsibility. But you NOW have the obligation to keep the children out from trespassing (i.e. signs, security, fences, etc)

Contract law is based primarily in...

common law

Condition precedent

contractual condition that must arise before the contract is triggered/activated

Nexus/Entanglement

examines whether the state's involvement or entanglement with a private actor's conduct is sufficient to transform the private conduct into state action, and thus subject to constitutional review.

Participation agreements

forms that go home with children or adults, form that meets 2 requirements 1) to warn risks to activity 2) to provide evidence of expresses assumption of risk. Do not assume risk of negligence, just risks that are natural and normal there, forcing people to think beyond the risk that is assumed or beyond negligence (beyond the scope of play).

Limited Purpose public forums

forum that is generally not public, but it has been opened up for a limited purpose (problem: content can be regulated in non public forums, viewpoints can never be regulated because it is the most protected. Whatever matches that purpose in limited purpose public forums would be viewpoint regulation.)

Reasonable expectation of privacy

if someone doesn't have an expectation of privacy, then you can search them. Ex. Going downtown with kilo of cocaine in passenger seat, next to a cop, waving a gun, etc. police sees him, police can get him because of the plain view doctrine, right in front of the cop therefore there's no reasonable expectation of privacy.

Prior similar incidence test

if you had prior similar incidence anywhere in the area, you are on notice and aware for you to know about the possibilities of injury

Contract law always considers

industry standards, norms, prior courses of dealing, and understanding the intents of the parties.

3rd party violence

it is a hazard that comes to the property. 3rd party coming to the property and dangering other people. If your own staff are creating the danger, then they are under a doctrine called the doctrine of respondeat superior.

Probable Cause: to Seize

it must be more likely than not that a violation of the law has been committed and that the person to be arrested committed the violation. There's something worth seizing and you have to identify where you think this item is.

Probable Cause: to Search

it must be more likely than not that the specific items to be searched for are connected with criminal activities and that these items will be found in the place to be searched. There's expectation to warrant and probable cause requirement based on reduced expectation of privacy.

Condition precedent activate Parole Evidence rule, which is...

law of contracts. once agreement is put in written form, you cannot introduce into evidence anything that contradicts the terms and conditions in the written signed contract.

Liquidated damages clauses

legally enforceable as long as they don't serve as a penalty. In sport, we call them Buyouts.

Reasonable interpretation

look at totality of situation, and can see that we can read into some authority, it is just natural that it be there in the contract, the principal interpreted as such. Who makes this decision whether something is necessary or reasonable? The court.

Ledtka vs. Kuhn

reporter was denied access to NY Yankees locker room following world series win, sued based on equal protection challenge, yankees defended them saying that they're not state actors so they cant do that. District court said that they were state actors because of their negotiations with the city. Case did not get appealed. Not a good application of nexus/entanglement theory. In this case, was an example of bad legal analysis that worked out for a good reason. At least one district court was able to say that one team is a state actor.

Negligence doctrine

same negligence, duty, breach, causable effect, actual harm. Breach component requires that the defendant must had acted unreasonably. Most manufacturers have safety protocols in place, so these protocols establish a degree of reasonableness. Can be difficult to establish that a manufacturer has acted unreasonably (to blame for the injury, at fault). Can be very difficult burden for plaintiffs in product liability cases

Limited purpose public actor defamation

someone who has opened him or herself up to the public for a specific content area. Era of 15 mins of fame. Trending things. Becoming a celebrity for a very limited purpose because it caught the attention of the public. Do have to prove actual malice like a public actor. Example of limited purpose public actor turning to public actor - Kim Kardashian

HS Athletic Associations are usually identified as _________.

state actors

Defense to design defect

state of the art defense: if you can show that your product use state of the art (the best) designs and technology, you might be defended.

Foreseeable threats

student section issues (fighting, netting, putting rival teams close together in stadium, etc.), terrorism (is a foreseeable threat to sporting facilities, not just persons with religious interests and foreign lands, but persons like the shooting in Las Vegas)

Chain amend factor

the design of product to the consumption of product, entities like parts, distributors, sellers, etc.

Coercion Test

the government directs a formal religious exercise in such a way as to obligate the participation of objectors.

Defense to failure to warn defect

the inherent danger is open and obvious: if the risks are open and obvious, then you don't have to warn! Very similar to implied assumption of risk.

Express assumption of risk

the participant uses words or some form of communication that they have willingly assumed those inherent risks (like participation agreements that plaintiff must sign in order to participate in an activity, it explains the risk)

Sports Agency

the sports agent advocates and represents the legal and business affairs of professional athletes. This could include: - Dealing with the media - Negotiating contracts - Marketing the athlete - Handling legal matters involving the athlete - Maybe even managing the athletes assets

Implied warranties

those that exist as a matter of law. They are there and they're automatic. You can only control for them.

Manufacturing defect

those that only one or a few products off the entire product line are flawed. No defect for all the products off that line. But one out of 10,000 is defected (human error, machine not working, etc). Defect found in manufacturing the product. What evidence? Fact based evidence. You compare your product that defective with another product off assembly line that's not defective. Simple.

Ultra vires

to act outside the scope of authority. If agent is doing something outside scope of authority, the principal is probably off the hook.

Respondeat superior

to hold the superior responsible. If someone is acting on your behalf and it harms another person, then that harmed person can sue you because that person/agent was representing you

Public Function Theory

under this theory, a court can find state action in the activities of a private party if that party undertakes functions or assumes powers that the government ordinarily performs or exercises.

Some products may actually work too well, resulting in an ______________.

unreasonable risk of harm (ex. a baseball bat that reduced response time)

Totality circumstances incidence test

we look at all the facts and ask if there is enough evidence for people to know about the possibilities of injury (Incidences are based on jurisdictions)

(assumption of risk)If we are organizing a sport team, we don't want to make our participants think that we have no risk, so...

we make our participants sign a consent form.

Implied assumption of risk

you can imply from the scenario that the risk is assumed. It is evident by the conduct or actions of the participant that they have voluntarily taken part in an activity that involves inherent or well-known risks.