Term
|
Definition
The Collegiate Athlete – a “Student”
The Professional Athlete – an “Employee”
Distinction Effect –
“Students” get protection of school, conference and league rules.
“Employees” covered under state and federal labor laws. |
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Term
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Definition
Common Law Employee (definition used): “a person who performs services for another under a contract of hire, subject to the other's control or right of control, and in return for payment.
Ruling held that scholarship football players are under a contract for hire, are subject to ER control, in return for compensation, and therefore are employees for NLRA purposes.
(1) Services for Benefit of ER, for which ER receives compensation: $235 Million during nine year period. Increase in good will to ER. Scholarship football players are sought out and receive scholarships for their prowess on the field: as much as 76k for calendar year. School tenders an employment contract every year.
(2) Subject to ER Control in the performance of their duties as football players: itineraries for players; 50-60 hours per week on football during training camp; 40-50 during weeks before school; control over travel and lodging; monitored by coaches and NCAA and disciplined; must obtain consent to do a number of things; football prevails in conflicts with class schedules; study hall.
(3) They are Employees: not walk ons;
(4) Brown University not applicable: Four factors: (1) status as graduate assistants as student; (2) role of the grad assistantships in grad education; (3) the grad student assistants relationship with the facility; (4) the financial support they receive: Difference: (a) sholarship players not “primarily students”: brown grad assistants spent only limited time on assistantship compared to academics – 50-60 hours per week in this case, 20 hours attending classes (b) northwesten football players athleti duties do not ocnstitute a core element of their edu degree requirements: no academic credit for football; © academic faculty members don't oversee football duties: Brown-they oversaw assistantship duties, here no overseeing by academic faculty, only by football coaches; (d) scholarship is not financial aid, it is compensation: cancelled if football players leave team.
Solution: try to give academic credit for football activities: credit for weightlifting class; credit for football evaluation. Make football part of academics. |
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Term
| Major League Baseball “Fanfest” Decision |
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Definition
| Argument: Not an employee, only a volunteer, so not entitled to wages under FLSA. Even if he is considered an EE, not entitled to wages because he worked for an “amusement or recreational establishement” that is exempt from the FLSA minimum wage requirement: IF...(a) does not operate for more than 7 months in any calendar year. (b) meant to cover such seasonale recreational amusement activities as amusement parks, carnivals, circuses, sport events, parimutel racing,..or other similar related activites. Burden of proof on ER: (1) it's typically an amusement park type exception; and (2) it's an establishment: a distinct physical place of business. |
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Term
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Definition
Body of Labor Law – set of rules to protect the sometimes “antagonistic” relationship between management and organized employees.
In Sports – The League/Member Club vs. the “Players Association” |
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Term
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Definition
Outlines Rights of Employees vs. Employers
Contrast to Employment at Will and Federal and State Discrimination Laws.
Cornerstone of modern United States Labor Laws is the CHOICE to join/not join a union. |
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Term
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Definition
Union is a “trade organization” that represents employees in a particular work site.
Primary Responsibility – Negotiate the collective bargaining agreement ( “CBA”)
Example – the NHLPA |
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Term
| Collective Bargaining Agreement |
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Definition
A Contract
Sets minimum standards in areas such as:
Wages;
Benefits;
Health & Safety;
Defines a Dispute Resolution Procedure – “Grievance Procedure” |
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Term
| National Labor Relations Act (NLRA) |
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Definition
Covers most employees working in private companies
Exclusions:
Employees of Federal, State or Local Governments
Airline or Railroad Employees (Railway Labor Act)
Spouses and Children of Employees
Independent Contractors
Supervisors and Managers |
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Term
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Definition
Known as the “Right to Organize Provision”
Assures “workers” of certain rights:
Right to form and organize a labor organization (the PA)
Right to join or refuse to join
Right to Collective Bargaining
Right to engage in Concerted Activity (strikes) |
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Term
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Definition
Defines what constitutes an unfair labor practice
Under Section 8 – Employer forbidden to:
Impede upon employees Section 7 rights (Bankruptcy);
Dominate, interfere with formation of or support a union (MLPA Director selected by MLB);
Discriminate based upon union membership;
Retaliation (firing for joining)
Employers must bargain in good faith |
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Term
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Definition
Back Pay
Reinstatement
Bargaining Order (come to the table)
Re-run Election
Cease and Desist Order
Injunctive Relief |
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Term
| NLRA – Section 8 – Employer Protections |
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Definition
Section 8 also protects Employers from – Unfair Union Activities:
Coercion of Employees – the “strong arm”
Actions that cause employer to discriminate against an employee for the purpose of encouraging or discouraging union membership
Union must also bargain in good faith |
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Term
| NLRA Section 8 Employer Remedies |
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Definition
Remedies for Employers Include:
Injunctive Relief;
Bargaining Order;
Cease and Desist Order;
Damages;
Disestablishment of the Union/withdraw of recognition |
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Term
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Definition
Unfair Labor Practice Procedure
Filing of the Charge – within 6 months of “conduct” with NLRB local
Investigation – looking for merit; similar to discovery. Merit found = complaint issued
Hearing – before an ALJ – no jury
Decision |
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Term
| Duty to Bargain In Good Faith |
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Definition
| A party that makes NO concessions and rejects the proposals of the other side outright has refused to bargain in good faith. |
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Term
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Definition
Goal – Agreeing upon the terms of the CBA
Union factors that impact what will be asked for include:
Maturity of Union – Is this the first CBA?
Bargaining Leverage – Ability to Disrupt Business (Play)
Stability of Company- League |
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Term
| Mandatory Subjects of Bargaining |
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Definition
Mandatory – must be discussed.
Wages;
Hours;
Terms and Conditions of Employment
Not Discuss? = Strike or Lock-out
Permissive Subjects are those where mutual agreement. |
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Term
| Mandatory Issues in Professional Sports |
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Definition
College Draft
Salary Cap
Limitation on Roster Size
Health and Safety Issues |
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Term
| Ratification vs. Decertification |
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Definition
League would have right to enact “new rules”
Why decertify? Suit on antitrust grounds. |
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Term
| Collective Bargaining In Professional Sports |
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Definition
Remember the Hierarchy of Contracts
Players can negotiate their own SPC terms
CBA sets MINIMUM salaries and in some instances a CAP |
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Term
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Definition
Origin based upon players frustration with the LEAGUE treatment
Can assist/support players with grievances under the CBA |
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Term
| The CBA in Professional Sports |
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Definition
Focus not on salary (individual players negotiate) BUT on “terms and conditions of employment”
Interplay with the SPC = Player (agent) may negotiate anything into the SPC as long as not conflict with the CBA |
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Term
| Labor Disputes in Professional Sports |
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Definition
Players “Strike” – Owners “Lockout”
Types of “Strike” = ULP (discharge of NFL player for joining PA) or Economic Strike being over wages, hours, working conditions.
The Economic Strike occur when Players seeking new CBA |
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Term
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Definition
Used by League to Preempt a Strike
Defensive Lockouts – employer fears a strike (off-season)
Offensive – apply economic pressure (in-season) during CBA negotiations. |
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Term
| How Do Strikes and Lockouts Occur? |
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Definition
The Impasse!
Breakdown of negotiations over such issues as:
Good Faith,
Length of Negotiations,
Importance of the Issue (the DEAL BREAKER) |
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Term
| Selected “KEY” CBA Provisions In Sports |
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Definition
Commissioner Discipline
SPC Changes
Grievance Procedure
College Draft |
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Term
| Ability to Enter the United States for Recruiting |
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Definition
Jean-Luc has accepted to go on the recruiting trip for consideration of an offer of scholarship. How does he do that?
Consider use of the Visa Waiver Program (including the use of ESTA).
Jean-Luc limited in what he can do while in the United States. Cannot receive any payment for his visit. |
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Term
| Acceptance at United States College |
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Definition
After formal acceptance at the United States college, how can Jean-Luc enter the country to attend school?
Apply for an “F” Visa in cooperation with the college FSO. (See 8 CFR §214.2(f) )
keep in mind that if hockey team becomes Employees under Northwestern, F-Visa won't work
DS Forms and SEVIS Compliance
Can Jean-Luc work to support himself?
Watch out for NCAA Compliance (Go to class!!) |
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Term
| Post Visa “Approval”- Immediate Entry to US? |
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Definition
Once “F” Visa is “approved” by the college, can
Jean-Luc enter the United States to start hockey training camp?
Embassy Interview Requirement
Proof of Ability to Pay (Scholarship)
Issues of Inadmissibility? |
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Term
| Issues of Inadmissibility |
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Definition
“Innocent” acts that can bar an athlete from entry (admission) to the United States.
Inadmissibility generally covered by INA §212
Inadmissibility for Health Related Grounds
Inadmissibility for Criminal and Related Grounds
Drugs
Multiple Convictions
Moral Turpitude Crimes (Broadly Defined) |
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Term
| Inadmissibility (Continued) |
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Definition
Fraud on Visa Application or in obtaining a Visa
Visa Overstay
Unlawful Employment (Payment to play in a charity hockey tournament?)
Waivers available? See INA §212 (h) for waiver of inadmissibility for certain crimes.
Simple possession of 30 grams or less of marijuana |
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Term
| nadmissibility (Continued) |
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Definition
hemes?
For the attorney: Interview your client. No issue to small!
For the aspiring athlete: Stay out of trouble! Be cognizant of social media use (athletes as public figures)
Visa refusals can void your scholarship |
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Term
| Player after Drafted from College (Immigration) |
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Definition
Player drafted by a member club of the NHL. What next?
Signing of one-way or two-way SPC (Standard Player Contract)
Role of member club/agent in the now “professional athlete” visa process
Obtainment of the “P” visa |
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Term
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Definition
See generally INA §101(a) (15) Governing regulations are 8 CFR §214.2 (p) P-1 Visa status generally made available to professional or internationally known athletes
(15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—
(ii) upon a basis of reciprocity, other officials and employees who have been accredited by a foreign government recognized de jure by the United States, who are accepted by the Secretary of State, and the members of their immediate families; and
(iii) upon a basis of reciprocity, attendants, servants, personal employees, and members of their immediate families, of the officials and employees who have a nonimmigrant status under (i) and (ii) above; |
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Term
| “P” Visa process for the Professional Hockey Player |
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Definition
NHL and MLB have a streamlined process
Qualification for the P-1 generally established by the presentation of the SPC
File the application with the Vermont Service Center (reserved for the adjudication of P-1 applications from the major sports leagues)
Amateur/D-leagues? |
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Term
| “P” Visa Hypothetical – What about the individual sport athlete? |
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Definition
No supporting “League”
PGA and LPGA
Can an agent sponsor a player for a P- 1 visa? |
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Term
| Standard for Individual Sport Athlete |
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Definition
Regulations at 8 CFR §214.2 (p) and 9 FAM 41.56
Aliens must be performing at an “internationally recognized” level
Look at collegiate record of play
Look at playing opportunities/accolades with player ’s National Team
Document! Document! Document! |
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Term
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Definition
Validity period – 10 year cap lifted
Player trades – 30 day rule
P-1 visas available to Coaches? Scouts?
Nexus to P-1 players |
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Term
| Significant Professional Club Immigration Issue |
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Definition
What about my Family?
Immediate relatives
Girlfriends
Legacy Policy of INS
Post 9/11 Policy
2011 USICS Policy Memo for Cohabiting Partners |
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Term
| Refresh – Issues of Inadmissibility |
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Definition
Can USCIS/ICE take away my Visa?
Removability – Acts Performed Post Issuance of Visa
Athletes are public figures (social media)
The bar fight
Gambling
Role of member clubs, agents, attorneys in athlete Visa preservation |
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Term
| The “Seasoned” Professional Athlete – What’s Next |
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Definition
Player demotion issues/trade issues
Player injury issues
Family and accumulation of significant assets in the United States as career begins to twilight
“I will just coach or go into broadcasting” |
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Term
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Definition
Consider filing for an EB-1 Green Card Aliens of Extraordinary Ability INA §203 (b)(1)(A) Seek cooperation of the member club that “employs” the athlete
(A) Aliens with extraordinary ability
An alien is described in this subparagraph if—
(i) the alien has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation,
(ii) the alien seeks to enter the United States to continue work in the area of extraordinary ability, and
(iii) the alien’s entry into the United States will substantially benefit prospectively the United States. |
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Term
| Two “Standard” EB-1 Examples |
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Definition
The “All-Star”
Look to One Time Achievements and Major Awards
Document, Document, Document
The “Role Player”
Look to body of work, player
The journeyman hockey player; the enforcer |
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Term
| Collateral EB-1 Green Card Issues |
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Definition
Family included
US Citizenship?
Tax on worldwide income
Dual nationality issues
Salary Cap
Player Mobility – Free Agency |
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Term
| Employment Law Issues In Sports |
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Definition
Contract Negotiation and Separation
Wage and Hour Matters
Immigration
Crisis Management Advice
Workplace Violence, Sexual Harassment and Civility Training
NCAA Investigation Defense
Title IX Training
Litigation Defense |
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Term
| Employment at Will vs. Contract |
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Definition
Employment at Will – “I can fire you for good cause of no cause at all!”
Public Policy overlay – Do Not discriminate
Contract of Employment – Generally need “cause” for termination |
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Term
| Employee Termination Gone BAD |
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Definition
Consider the Release
“The CHARGE”
Beginning of employment pre-litigation
The Administrative Process
EEOC and State Filing – The “DUAL Filing” |
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Term
| The Administrative Process of the Charge Phase |
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Definition
The Issuance of Charge
Response
Fact Finding
Non-Binding Arbitration
Settlement or Right to Sue Letter
LITIGATION! |
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Term
| Employment Discrimination Statutes |
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Definition
Equal Pay Act of 1963 (EPA)
Forbid employer to pay different salaries to members of the two sexes for “equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions.” |
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Term
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Definition
EPA Case Analysis
STEP 1 – Look to comparators so that their jobs can be analyzed. Must be specific (i.e. a plaintiff must show a specific employee of opposite sex earned higher wage for substantially equal job |
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Term
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Definition
Second Step –
Review if the two jobs are “substantially equal”
Case by case
Look at core tasks
If jobs are similar – does employer have approved exception
Exceptions to equal pay ----- seniority, merit, production, and non-sex factors (needs of business) |
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Term
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Definition
Court held that the divergence in pay was justified under the approved exception of seniority and experience and therefore no violation of EPA
Note the back and forth between plaintiff and school in trying to reach a settlement |
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Term
| Equal Employment Opportunity Commission |
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Definition
Enforcement Guidance on Sex Discrimination in the Compensation of Sports – Notice No. 915.002
Guidance for EPA Action
Enforces EEOC premise that compensation does not have to be the SAME, but disparity CANNOT be based on gender |
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Term
| EEOC (Continued) Equal Skills |
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Definition
Notice No. 915.002 valuable guidance on analysis of whether jobs are “substantially similar” for purposes of the EPA
Factors
EQUAL SKILLS? (look to education, training, ability)
Example? |
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Term
| EEOC (Continued)Equal Effort |
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Definition
EQUAL EFFORT –
Look at the “actual job requirements”
Training, recruiting, travel.
Size of team matter?
Complexity of sport matter?
Example? |
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Term
| EEOC (Continued)QUAL RESPONSIBILITY |
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Definition
Look to actual duties.
Team size.
Who do you supervise. |
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Term
| EEOC (Continued): Exceptions if Equal |
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Definition
Merit
Seniority
Factors other than Sex (needs of business, gender of athletes) |
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Term
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Definition
itle VII of the Civil Rights Act of 1964
“Unlawful for employer to hire or discharge or otherwise discriminate because of race, color, religion, sex or national origin” |
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Term
| Title VII (Continued): EPA vs. Title VII |
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Definition
There is considerable overlap in the coverage of the EPA and Title VII, although the two statutes are not identical. Principally, Title VII prohibits wage discrimination, not just unequal pay for equal work.
Thus, an employment practice that would violate Title VII would not necessarily violate the EPA. Any violation of the EPA, however, is also a violation of Title VII. |
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Term
| Title VII (Continued): Protections |
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Definition
Protects against discrimination in:
Hiring and Firing
Compensation
Promotion
Use of company facilities |
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Term
| TITLE VII: Types of Discriminatory Practices |
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Definition
Harassment
Retaliation
Denying Employment Opportunities |
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Term
TITLE VII (Continued)
Burden of Proof of Plaintiff |
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Definition
STEP ONE -MEMBER OF PROTECTED CLASS?
Examples – race, color, religion, sex, national origin
STEP TWO – Employee Qualified for the Position? - Include Reasonable Accommodation
STEP THREE – Despite Qualification, Treated Less Favorably
STEP FOUR – Circumstances Gave Rise to Inference of Discrimination |
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Term
TITLE VII (Continued)
DEFENSE |
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Definition
“Employer can demonstrate a legitimate non-discriminatory reason for the disparate treatment”
Consistent policies
Performance Reviews |
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Term
|
Definition
| Court held:Inference of discrimination was NBA policy/circumstantial evidence of NOT hiring female referees. On appeal, damages reduced |
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Term
| Medcalf v. University of Pennsylvania |
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Definition
Key to the case?
“We will find a woman as equally qualified as you.” |
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Term
|
Definition
Focus in Sports is Equal Participation
Reduction of Sports Programs, Dropping to Club |
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Term
| Age Discrimination in Employment Act of 1967 |
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Definition
Similar to a Title VII Act
OVER 40 Protection
Key is essentially discharged or replaced due to age
Employer can defend on non-discriminatory business reason or non-ability to perform job |
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Term
| Sexual Harassment In Sports |
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Definition
Actions of Players can bind the team.
What constitutes Sexual Harassment?
Direct requests or conditions that create a “hostile environment”
Management and the “blind eye” |
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Term
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Definition
Antitrust – any contract or “conspiracy” that illegally restrains trade and promotes anti-competitive behavior.
THINK : Anti-competitive rather than antitrust |
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Term
| Antitrust Traditional “antitrust” challenges in sports: |
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Definition
Player and Union challenges to restrictive player rules i.e. the draft, the reserve system:
New competing leagues challenges to league monopoly:
Owners challenges to league rules on expansion and/or relocation. |
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Term
Antitrust
Antitrust and Collegiate Athletics: |
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Definition
Antitrust and Collegiate Athletics:
Perceived MONOPOLY power of the NCAA
Can the NCAA restrict coaches salaries, broadcasting deals, player eligibility? |
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Term
|
Definition
Exclusive control by one group of the means of producing or selling a product.
To monopolize is to dominate or exclude others. |
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Term
| Sherman Act vs. State Antitrust Legislation |
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Definition
In sports, most applicable is Sherman Act because of the interstate travel of teams and the television and broadcasting across state lines.
SA – prohibits agreements or contracts that restrain trade |
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Term
Sherman Act
This Act prohibits: |
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Definition
conspiracy by two or more persons to unreasonably restrain trade (i.e., to unreasonably limit competition);
An unlawful monopoly or an attempt to monopolize an industry; and
Price fixing. |
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Term
Sherman Act – Section 1
Do not “Restrain Trade” |
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Definition
Violation requires proof of:
Agreement between two or more distinct persons or entities (show a combination, that acted in concert),
The activity unreasonable restrains trade (anticompetitive purpose outweighs any procompetitive results),
The activity affects interstate commerce.
Per Se = price fixing vs. Rule of Reason (or Business Need Defense) |
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Term
Sherman Act - Section 2
No Monopoly |
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Definition
Prove –
Possession of Monopoly power and Means to maintain, entrench that power.
Not simply market share
AFL vs. NFL case – market share was 30 not 17 potential sites |
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Term
|
Definition
Violation of Sherman Act = Triple the Damages
Is that a deterrent to prevent Leagues from violating antitrust? See. Los Angeles Memorial Coliseum v. NFL. Triple damages more than 30 million. NFL settled for 18 million and allow team to move from Oakland to LA. |
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Term
| Clayton Act Statutory Labor Exemption: |
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Definition
Labor Unions are NOT combinations or conspiracies in restraint of trade.
Protects Unions to engage in concerted activity – strikes.
Professional Leagues have not generally used Section 6 as a defense to Sherman Act violation as assumption of Section 6 is protection of labor unions. |
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Term
| Antitrust and Professional Sports |
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Definition
Generally Antitrust cases fall into two categories:
Challenges against a League by its players (player restraints)
Rival league challenges |
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Term
| Antitrust and Player Restraints |
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Definition
FEDERAL BASEBALL decision (1922)
Professional sport of baseball was not a business involved in interstate commerce, and therefore was not in violation of the antitrust laws. Baseball exempt from antitrust laws. |
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Term
| Shift Away from Federal Baseball |
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Definition
United States v. International Boxing Club (1955) – promotion of boxing across state lines constituted trade or commerce to satisfy the Sherman Act
Viewpoint towards sports as a “business”. Run like a business (player contracts, radio and television contracts, vendor contracts, goal of making a profit). |
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Term
| If Sports a Business, How Can Players Associations Challenge Leagues? |
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Definition
Each team considered a business so if two of more teams decided to enact and follow certain rules (draft), acting in concert, combination and conspiracy element of Sherman Act violation satisfied
Remember basis that agreement considered to be antitrust violation if anticompetitive consequences have unreasonable restraint on trade. |
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Term
| Player Restraint actions by the PA |
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Definition
League Devices to “Bind” Players
Reserve Clause – unilateral right of team to renew a player contract in perpetuity,
The Draft – only one team can draft the eligible player and that player can ONLY negotiate with team that selected him/her
Compensation System – requires a team signing a free agent player to compensate the former team in players, draft picks or $$$
Right of First Refusal – prior team can match |
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Term
|
Definition
Prevent players from offering services to highest bidder?
Violations of antitrust laws in preventing player ability to earn a fair market salary?
Defenses of Leagues and Owners – “Maintaining a Competitive League is REASONABLE restraint on trade.
(Prevent one team from getting all the good players, fan loyalty and brand issues) |
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Term
| Player Restraints – Key Decisions |
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Definition
Kapp v. NFL (1974) – draft and reserve clause in SPC = restraint on trade. Result – draft modified.
Philadelphia World Hockey Club v. Philadelphia Hockey Club Inc. (1972) – NHL reserve clause case. Reserve Clause was per se violation? |
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Term
| Ownership Restraints and Antitrust |
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Definition
League rules that regulate owners:
Do not disparage officials,
Rules to prohibit formation of new franchise in same geographic location as existing franchise,
Franchise re-location restrictions.
Remember need for acting in concert, combination (league and other owners) and conspiracy.
Remember balance of procompetitive benefits and reasonable restraint on trade (fan loyalty) versus anticompetitive restraint (increase of profit). |
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Term
| Owners vs. Owners and Antitrust |
|
Definition
Relocation of franchise: Raiders case (Los Angeles Memorial Coliseum v NFL) : Court found that rule requiring unanimous approval by the ownership was violation of antitrust.
The rule of reason standard – move promoted competitiveness of League and not stifle
Ultimately, NFL settled and team permitted to move.
Remember, MLB protected under Federal Baseball as affirmed by Curt Flood in 1998 (only permitted players to assert antitrust theory) |
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Term
| Other “Antirust” Arguments |
|
Definition
Age Restrictions by WTA (Women’s Tennis Association)
Tennis racquet restrictions by USTA
Golf club restrictions by PGA |
|
|
Term
| Defenses to Antitrust Challenges |
|
Definition
Federal Baseball Decision – baseball not engaged in interstate commerce
Affirmed in Line of Cases
Curt Flood Act of 1998:
Carve out, players can sue under antitrust theory
For non-player areas, MLB exemption still exist. |
|
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Term
| Reinforce the Nonstatutory Labor Exemption |
|
Definition
Protects the CBA
Unions have exemption from antitrust laws to be able to enter into negotiations and the CBA
Right to engage in concerted activity to advance employee rights
So, CBA advanced under collective bargaining does not constitute a conspiracy between union and League |
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Term
| Example – Philadelphia World Hockey Case |
|
Definition
World Hockey Association (WHA) challenged NHL reserve system under theory created monopoly by NHL to “handicap new league and keep all the top hockey players for themselves”
NHL cited labor exemption noting reserve system was collectively bargained.
Contrast Mackey decision – the Mackey test on when League can use the exemption |
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Term
|
Definition
Can use the exemption when:
1. Restraint affects only parties to the CBA;
2. The issue must concern a mandatory issued of collective bargaining (wages)
3. Must have been arms-length bargaining.
CBA provisions survive if pass the test. |
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Term
|
Definition
Traditional defense, college athletics are not commerce or trade as defined by Sherman Act
1984 – Board of Regents decision : NCAA cannot restrict all broadcasting markets,
Tournaments - NCAA limits on number of games teams/players can participate. Use the rule of reason balance. Not a per se violation. |
|
|
Term
| Agency Law and Sports - Role of Agent? |
|
Definition
Negotiate the contract;
Marketing;
Crisis Management;
Off the field issues? |
|
|
Term
Agency Law
Who are sports agents? |
|
Definition
Lawyers and Non-Lawyers.
Licensure
Who needs an agent outside of players?
Coaches
Managers |
|
|
Term
Agency Law
Agent as “Counselor” |
|
Definition
- Provide realistic guidance on career prospects
- Be aware of rules, regulations (NCAA compliance concerns of eligibility and payment) |
|
|
Term
|
Definition
Fiduciary Responsibility (agent to act for and under direction of the principal)
Elements of the agency relationship are:
Consent
On behalf of
Subject to the control of |
|
|
Term
| Agency Law Defined: Consent |
|
Definition
Does not have to be a contract
Relationship has to be consensual |
|
|
Term
| Agency Law Defined: On Behalf of: |
|
Definition
Negotiations are for the benefit of the principal.
Negotiations are “for the profit” of the player |
|
|
Term
| Agency Law Defined: Subject to the control of: |
|
Definition
| Agent must act under the direction of the principal |
|
|
Term
| Duties of Principal to Agent |
|
Definition
Compensate
Reimburse
Indemnify
Liable on contracts where agent had authority to enter |
|
|
Term
|
Definition
The “Player Representative”
Authorized by the player to act in his/her name
Promise of compensation not required to establish this relationship, but presumed. |
|
|
Term
|
Definition
Negotiate the Contract for the Player
Marketing
Endorsements
Can the attorney do better?
Can the agent do it all? Business partners. |
|
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Term
|
Definition
Agency conglomerates (IMG, CAA) vs. the “little guy”
Fees: max percentage on fee for salary contract (NFL is 3% of total contract) vs. open ended on endorsements (10%-25%)
Cutting of fees to get business?
CAN THE ATTORNEY DO BETTER? Hourly rate. |
|
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Term
|
Definition
Traditional percentage
Set fee
Hourly rate
Incentives to sign early (high school?) |
|
|
Term
| Role of Agent – Salary Arbitration |
|
Definition
Agent role in salary arbitration may be limited.
Prudent to seek outside assistance for “statistics”
Final offer arbitration (baseball) vs. latitude arbitration.
Role for attorneys in arbitration?
SEE ARBIRTATION DOCS |
|
|
Term
| Franchise Representation in Arbitration |
|
Definition
How can the lawyers help?
Counseling on how to use the arbitration process to secure either the optimum negotiated settlement or an arbitration award in favor of the franchise.
-Analyzing case law to better understand its precedential value in achieving the franchise’s desired outcome.
Analyzing the impact of any decision on the franchise’s salary cap position. |
|
|
Term
| Role of the Player Association |
|
Definition
Refresher – The PA and the CBA – “terms and conditions of work”
Working with players in grievance arbitration (PA attorney generally has lead role)
Agent given “rights” by the PA to act on behalf of player. BUT, watch the CBA for minimums
Tangibles can be negotiated. |
|
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Term
|
Definition
PA sets license requirements
The PA can deny certification for certain behaviors. See PA regulations
PA can provide standard player/agent contracts
PA settles player/agent disputes (fees) through arbitration
PA (before litigation) can settle agent/agent disputes |
|
|
Term
| Government Regulation of Agents |
|
Definition
Uniform Athlete Agent Act – 38 states adopted.
Standard set of rules to unify player agent relationships and agent governance
Individual state law governance (common requirement is state licensure for a fee) |
|
|
Term
| UAA and State Agent Laws – Do they work? |
|
Definition
| AP – On August 17, 2010 reported a study that “more than half of the 42 states with sports agent laws have yet to revoke or suspend a single license” |
|
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Term
|
Definition
NCAA Manual – “An individual shall be ineligible for participation in an intercollegiate sport if he or she has ever agreed to be represented by an agent……..”
Contrast – “Securing advice from a lawyer concerning a proposed professional sports contract shall not be considered contracting for representation…… |
|
|
Term
|
Definition
Average career of professional athlete 3-5 years (agent must know how to place client in most favorable draft position)
Must know the SPC and the minimums
Refresh the SPC
NFL Draft most restrictive of the Big 4 (must exhaust or waive remaining college eligibility to enter)
END |
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Term
| Torts in Sports: Vicarious Liability |
|
Definition
major defense I sovereign immunity – you cant touch me because im a public institution
Assumption of Risk: when you play sports, you know you might get hurt – classic defense to any negligence claim
this area of law is changing
sports are now more of a business – pockets are getting deeper
players are different as well – litigation back in the day was unheard of
when something is outside what is expected in a game situation, liability may exist.
May cancel assumption of the risk if its outside the scope of the game. |
|
|
Term
| Who are the people who could potentially fall into liability situations: |
|
Definition
bring in coaches and teachers?
Qualified? I know how to put a training plan together, rules,
changes when you're dealing with minors – can't bring in comparative and contributory negligence because they are minors. |
|
|
Term
| How does tort law apply? -if youre client is a coach |
|
Definition
know how the coach could be sued
failure to provide adequate supervision
ex. Captain's practices injury
ex. those acts which would otherwise fall outside of the normal scope of someone's job
failure to provide proper instruction and training
coaches must be qualified for the job in which they perform
coaches should make sure thatt hey always keep good training records – keep logs, attendance, check in with athletes
build a record to show qualification
failure to provide prompt and capable medical assistance
ex. making the wrong call, or do nothing and rely on parents etc. Putting player back on the field when they're injured, sick.
Difference between high school situations and professional team:
difference between employees and independent contractors:
independent contractors: the doctors who take care of players.
if coach is working for a public institution, they may raise sovereing immuntiy |
|
|
Term
|
Definition
carious Liability
when its outside scope of employment these types of cases come up – litigants trying to get at university's deep pockets. |
|
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Term
| Amusement Exemption to FLSA |
|
Definition
Start with flsa – employees must be paid minimum wage, but there is an amusement exemption
****plaintiff tried to tie mlb into it because it runs 12 months a year – should not be able to avail exemption
****if they exemption had failed, and they were able to tie the fanfest to major league baseball, can we say that these fans are actually employees
read page 4-5
these pages frame the argument on whether these volunteers are truly volunteers, or are they really employees
swing is always whether or not there is control. |
|
|
Term
| Torts Framework applied to sports |
|
Definition
youre at wells fargo – had 7 beers – slip and fall
fans are called business invitees – arena expects you to be there |
|
|
Term
| Difference between patent and latent defects |
|
Definition
atent defects an obvious flaw in a product or a document
latent defect is a fault in the property that could not have been discovered by a reasonably thorough inspection before the sale. - can get out of things under this concept |
|
|
Term
|
Definition
– protect facility for those who buy a ticket, maintain facility, guard against egregious acts of employees.
Best practices: checklist of things to worry about with this.
if they were building the wells fargo center – construction worker – standard of care is very different for that person than the one above |
|
|
Term
| Torts: Duty in Sports Cass |
|
Definition
reasonable care necessary to avoid creating riss that may result in ijuries to players and spectators.
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|
|
Term
| Duty: Ordinary Participation in A game |
|
Definition
| no duty to protect a player from the ordinary risks of participation in the game |
|
|
Term
| Duty: Special Relationship |
|
Definition
| where there is a special relationship, like that between a university and a member of a team, this relationship imposes an affirmative duty of care on the university to provide for the athlete's safety during practice. |
|
|
Term
|
Definition
| No duty on part of university to control athlete's off duty actions |
|
|
Term
| Duty of care to recruited athletes who become injured in sports. |
|
Definition
| University has a greater duty of care to recruited athletes who become injured during participation in their sports, than to students under normal circumstances. |
|
|
Term
| (2) Reasonable Person standard in sports |
|
Definition
| how a a person exercising regular prudence and carefullness would react under similar circumstances. |
|
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Term
|
Definition
| when the reasonable person standard entails a degree of skill or knowledge higher that that of a judge or layperson sitting on a jury |
|
|
Term
| Reasonable care in hockey |
|
Definition
| Owners took reasonable care to prevent injury to fans by installing high plastic barriers around the arena. |
|
|
Term
| Reasonable care in high school sports |
|
Definition
| high schools and their employees must exercise ordinary and reasonable care for the safety of their students. |
|
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Term
|
Definition
| defendant violated duty by imposing an unreasonable risk of harm on the plaintiff |
|
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Term
| How to establish breach (3 ways) |
|
Definition
(1) direct evidence of negligence
(2) violation of statute
(3) Res ipsa loquitur |
|
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Term
|
Definition
| eye witness testimony usually |
|
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Term
| Negligence per se: violation of a statute |
|
Definition
| if violation of statute, then a conclusive presumption of negligence. Must establish (1) statutory violation causally related to P harm and (2) the statute protects against the particular harm for which plaintiff seeks to recover. |
|
|
Term
|
Definition
| "the thing speaks for itself" - permits fact finder to infer both negligence and causation. Defense: D must establish that there is another, equally believable explanation of the injury to the plaintiff. |
|
|
Term
| Three Requirements for res ipsa loquitur to apply |
|
Definition
(1) event ordinarily does not occur except through the negligence of someone
(2) P must show that the instrument which caused plaintiff's injury was in the exclusive control of the D at that relevant time
(3) P must show that his or her injury was not due to P own inaction. |
|
|
Term
| (3) Causation: Actual andProximate Cause |
|
Definition
(1)Must prove actual cause in fact: if harm would not resulted "but for" D actions, then
(2) proximate cause: whether D's negligent act is sufficiently closely related to P's harm that liability should attach---INJURY REASONABLY FORESEEABLE.
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|
|
Term
| Contributory Negligence Causation: Substantial factor test and alternative causes approach |
|
Definition
(1) substantial factor: precludes liability for inadvertent or minor causation factors when two or more D's
(2) alternative causes: two acts, only one of which caused the injury. BOP on D to prove she didn't cause. |
|
|
Term
| Proximate Cause Example: Janitor waxes floor with slippery substance before game. Player slips and hurst himself. |
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Definition
| Janitors actions are proximate cause because slipping was a foreseeable result. |
|
|
Term
|
Definition
| one that comes into existence after the defendant's negligent action and contributes to that negligence in bringing about the P's injury. Will relieve D of liability if D could not have foreseen that intervening cause might occur or that P would suffer such great harm. |
|
|
Term
|
Definition
| monetary comp given to anyone who suffers an injry through the unlawful act, ommission, or negligence of another. |
|
|
Term
| Damages for Negligence: Compensatory or Punitve. No Nominal |
|
Definition
(1) Compensatory: money given to the injured player measured by the amount of actual injury incurred.
(2) Punitive: awarded to injured party to punish D for intentional, reckless, willful, or wanton conduct. |
|
|
Term
| Losses for COmpensatory Damages |
|
Definition
(1) economic loss (medical, diminished earning capacity_
(2) physical pain: pain and suffering
(3) Mental Distress: depression , humiliation, etc.
(4) Spouse: loss of consortium: right to spouse's companionship.
|
|
|
Term
|
Definition
(1) No Negligence
(2) Contributory Negligence
(3) Comaprtive Negligence
(4) Assumption of Risk
(5) Statute of Limitations
(6) Immunity and Good Samaritan Statutes |
|
|
Term
|
Definition
attack elements of negligence or by proving that reasonable care was exercised.
Ex. player sues coach after injury for failure to provide proper training. Coach shows evidence of training regiment and how it is what others use. |
|
|
Term
|
Definition
| plaintiff who is negligent and whose negligence in any way contributes to the proximate cause of his or her injury is totally barred from recovery |
|
|
Term
|
Definition
Majority (46 states): provides a basis for recovery to an injured plaintiff while still apportioning fault to each side for the determination of damages.
Some states: total negligence of defendants > 50%
Ex. Damages 100k, P 40% responsible, owed 60k
|
|
|
Term
|
Definition
P has voluntarily consented to take chances that harm will occur. Must prove (1) P knew of risk and (2) voluntarily chose to assume it.
General rule in sports: Players assume the normal and reasonable risks of activities in which they participate, where those activities don't rise to level of recklessness.
(1) no assumption of risk when not normal and reasonable
(2) no -when P is unaware of the risk |
|
|
Term
| Two types of Assumption of Risk |
|
Definition
(1) Express AOR: when P gives advance consent to relieve D of a legal duty and to take his chances from known risk.
(2) Implied Assumption of Risk: arises when a P's reasonable conduct in encountering a known risk creates an inference that he or she has agreed to relieve the D's duty of care.
Only a full defense in contributory negligence states. In comparitive negligence states partial recovery still allowed. |
|
|
Term
| Som States: Primary and Secondary Assumption of Risk |
|
Definition
(1) Primary: Regular assumption of risk
(2) where P is aware of somebody else's negligence but chooses to take part in activity anyway (no total bar in recovery-comparitive negligence) |
|
|
Term
|
Definition
| Sovereign immunity: university is a public institution: NOT FOR EE'S ACTING WITHIN SCOPE OF EMPLOYMENT (usually only for intentional torst, discretionary acts at the planning or decision making level, and independant contractors who gov has legal authority and control and substantial supervision) More than half have abolished municipal tort immunity. |
|
|
Term
|
Definition
| provide charitable orgs with immunity |
|
|
Term
|
Definition
| preclude negligence liability for one who sees and attempts to aid another person who has been placed in imminent and serious peril due to the negligence of a third person. |
|
|
Term
|
Definition
| provide a cause of action in favo of decedent's beneficiaries against the person who negligently caused death |
|
|
Term
| Reckless Misconduct/Gross Negligence |
|
Definition
(1) When P intentionally performs an act while disregarding the risk known to him, and that risk is so great as to make the harm highly probable.
(2) Conscious disregard of the circumstances.
Sports: a player is charged with a legal duty to every other player on the field torefrain from conduct proscribed by a safety rule. Failure to do so is a reckless disregard for safety of other players. |
|
|
Term
|
Definition
(1) Act that creates reasonable apprehension of immediate harmful or offensive contact
(2) Intent by D to cause harm or cause P apprehension
(3) Causation: D's act brought about the apprehension.
Words not enough. Apparent ability to carry out athreat.
Apprehension must be reasonable under reasonable person standard. |
|
|
Term
|
Definition
| intentional harmful or offensive contact with another person |
|
|
Term
|
Definition
| No need for actual harm to prove the tort. |
|
|
Term
|
Definition
| High school baseball. Batter intentionally threw bat at P, the bat missed. Pitcher could sue for assault. |
|
|
Term
|
Definition
(1) harmful or offensive act by D towrd P
(2) INTENT BY D to bring about the harmful or offensive contact to P.
(3) Causation: D's action brought about the harmful or offensive contact. |
|
|
Term
|
Definition
| On player pushed another from bhind then punched him in the head when the basketball player was trying to catch a pass.No assumption of risk because they are not the type of actions you'd expect in basketball (maybe in hockey). Action for battery, not assault b/c no apprehension. |
|
|
Term
| Defenses to Assault and Battery |
|
Definition
(1) Consent: consent to degree of contact commonly allowed within rules of sport. Usually limited to actions in normal conduct of game.
(2) Privilege: when person acted in defense of his or her person or property. Force can't be excessive or unreasonable. Self defense common in sports, maybe defense of third parties. |
|
|
Term
| Tortious interference with contractual relations |
|
Definition
| when a third party, without justification, intentionally induces one person not to perform a contract with another person. Protects right of a party to contract free from third party interference. Must either be prvented or made difficult. D must have actual knowledge of the contract or pending contract and had to intervene to interfere. BOP on P. D can rebut by saying conduct was not improper. |
|
|
Term
| Tortious interference in sports |
|
Definition
| try to sign a player or coach under contract. |
|
|
Term
| Intentional Infliction of ED |
|
Definition
(1)PROVOKING CONDUCT MUST BE OUTRAGEOUS: (2) D's intention to cause sever emotional distress or D recklessly disregards high probability that it would ocur
(3) D conduct caused emotional distress
(4) Damages for only severe distress. |
|
|
Term
| Possibilities in Sports for IIED |
|
Definition
(1) coach's statements about playing abilities of a student athlete, including pro career aspirations
(2) administrators statement about employment tenure of a coach
(3) a trainer;s announcement about the playing ability or injury of a student athlete
(4) sports information director's comments about student athletes and coaches |
|
|
Term
| Damages in intentional torts |
|
Definition
(1) compensatory
(2) punitive: to penalize D who acted willfully or outrageously. |
|
|
Term
|
Definition
(1) False statement concerning P
(2) communication of the false statement by D to persons other than P
(3) fAULT AMOUNTING TO AT LEAS Negligence on part of D
(4) Damage or injury to the reputation of the P
(5) Two categories: (a) libel (b) slander |
|
|
Term
|
Definition
publication of defamatory statement in writing. Three classes
(1) libel per se: includes materials that are obviously defamatory by community members
(2) materials that could be taken as defamatory
(3) materials that are not themselves defamatory but when combined with other facts become libelous
D had burden of proving truth.
Compensitory and punitive damages. |
|
|
Term
|
Definition
publication of a defamatory matter through spoken word.
BOP: on P to prove the statment was heard and understood by a third person.
P must rove special damages. |
|
|
Term
|
Definition
where an injuy to the reputation is presumed without proof of special damages:
(1) it accuses P of crime involving moral turptitude
(2) adversely affect P's abilities in his or her profession, business, or trade.
(3) accuses p OF HAVING A LOATHSOME Disease
(4) accuses P of sexual misconduct. |
|
|
Term
|
Definition
Freedom of speach vs. protecting reputation of an individual
public officials and public figures only, and figures must prove actual malice: knowing it was false or in reckless disregard of truth. |
|
|
Term
|
Definition
| Publishing companies, sports news, etc. |
|
|
Term
|
Definition
Ways to prove: (1) intrusion by D upon P's affairs or solitude
(2) Publicly disclosing private facts about P by D (3) publication by D of facts that put P in a false light in the public eye; (4) appropriation by D of P's picture or name for D's commercial gain.
intrusion must be substantial and in an area where there is an actual expectation of privacy
First amendment: constitution protects reporting of newsworthy matters. |
|
|
Term
|
Definition
(1) intent (2) negligence (3) strict liability (4) and breach of implied warranty of merchantability and fitness.
P must prove that a defect existed at the time the product left the control of the D and that injury was caused by the defect (unreasonably dangerous to user - beyond what would be contemplated by ordinary consumer who purchases it) |
|
|
Term
| Products Liability: Intent |
|
Definition
| if P intended the consequences or knew with substantial certainty they would occur |
|
|
Term
| Product liabiliyt: negligence |
|
Definition
dUTY, Breach, causation, damages
Reasonable care in both manufacture and design of the product to ensure its reasonably safe when used in manner intended.
If dangerous even when properly used: duty to warm products users of the haxard.
comparison to similar products will be used to help determine a reasonably safe product.
Manufacturers, suppliers, sellers, and advertisers and marketers could be liable. |
|
|
Term
| Products Liability: strict tort liability |
|
Definition
one who sells a product which is unreasonably dangerous to the user or consumer because of a defect whether in design or manufacture is held liable for any physical harm to the ultimate user or consumer, or that person's property, procimately caused by the product.
Seller must be engaged in business of selling such a product, not casual seller.
If defect was actual cause of harm then strict liability. |
|
|
Term
| Products Liability: implied and express warranties |
|
Definition
| (1) p must establishe that there was an implied (statutory protection in place without express warranty) or express warranty (affirmation of fact concerning the nature and fitness of a particular product upon which the buyer might reasonably rely). |
|
|
Term
|
Definition
liability for a tortious act upon a person who is not personally negligent but held liable bc of relationship between the parties.
Respondeat Superior: employerresponsble when exercises control and direction over employee, and employee was negligent while acting with scope of employment, if within scope of employees employment. Even if ER did everything it coudl to prevent such actions.
Intentional torts beyond scope of authority or control |
|
|
Term
| Vicarious Liability in sports |
|
Definition
Coach helld liable for actions of players.
school district held liable for actions of coach
admin held liable for actions of coach.
P will usually sue both. |
|
|
Term
| Exception to Vicarious Liability |
|
Definition
independant contractors: not under employer's control.
Ex, Doctor on sidelines hired by high school for football game.
Ex. officials and referees are independant contractors in most cases. |
|
|
Term
|
Definition
injury on the job - statute governs. Gives EE greater protection than in tort.
college athletes: most applications for benefits have led to a ruling that scholarships differ from employment contracts. Could change after northwestern.
Injury must occur within course of employment.
NCAA enacted catastrophic injury protection available to schools. |
|
|
Term
|
Definition
Standard or reasonable coach or teacher
lower standard if coach or teacher placed in position of the parents of the student athlete
higher standard of care for young children
sovereign immunity generally protects coach and teacher of school district. |
|
|
Term
| Coaches and teachers should be aware of |
|
Definition
(1) safety issues
(2) careful with punishment type drilsl
(3) admin needs to know actions of coaches and teachers
(4) coaches and teachers need to be aware of liability issues.
(5) coaches and teachers must be aware of school district and association rules. |
|
|
Term
| Potential negligence claims against coaches and teachers |
|
Definition
(1) failure to provide adequate supervision
(2) failure to provide proper instruction and training
(3) failure to provide prompt and capable medical assistance
(4) |
|
|
Term
| Liability of Schhols, admins, and athletic orgs |
|
Definition
(1) failure to proved supervision of athletic activities and to hire qualified personell
(2) medical assistance
(3) failure to provide safe equipment |
|
|
Term
|
Definition
(1) is it a governmental entity?
governmental activity: performed only by the state and as such is commonly protected from lawsuits on the grounds of sovereign immunity (ex. education is covered, sp public schools)
proprietary activity: one that is done by the state but that could be undertaken by the private sector and is therefore not given protection of sovereign cummunity (ex. leasing football field for private event)
If proprietary then case continues and possible recovery for damages. If governmental then dismissed,
School using its own athletic facilities - usually governmental so sovereign immunity |
|
|
Term
| Civil Liability Immunity Legislation |
|
Definition
liability for sports coaches, admis, and officials especially in regard to youth sports associations.
Federal Volunteer Act: protects volunteer coaches
Recreational Use Immunity: landowners who offer property for public use with no expectation of financial benefit should enjoy immunity |
|
|
Term
| Liability of Facilities, Owners, and Professors: |
|
Definition
two types of persons:
(1) licensees: one who enters the property of another with owners consent for the licensee's own purposes: only a duty of ordinary care owed-to warnd when a risk is known or should have been known by the occupier under reasonable person standard, and when licensee is unaware of the danger
(2) someone who is invited onto the property and whose presence benefits the occupant. owwed a greater degree of care by owners operator supervisor or occupier. Affirmative duty to make safe both known defects as well as those defects that should have been discovered by reasonable inspection. Must be invitation (advertisement is enought) which applies that reasonable care has been exercised for the safet of the invitee.
business invitee: a visitor who brings a monetary benefit to the person in possession of the property |
|
|
Term
| Patent v.s Latent defects |
|
Definition
(1) Patent: defect that is plainly visible that could easily be discovered upon inspection
(2) latent: hidden or concealed defect that could not be discovered by reasonable inspection. Generally no liability for latent defects.
When leasing property, musti nform of patent defects. |
|
|
Term
| Duty to exercise reasonable care in maintaining the premises and in supervising conduct of others |
|
Definition
they are entitled to assume that visitors will obeye the rules and that employees will not be negligent.
Doesn not include protection against unreasonable risks: where probability of injury outweighs the burden of taking adequate precautions. |
|
|
Term
| Facility Owners Checklist to protect from possible litigation |
|
Definition
(1) anticipate any potential injurious conditions
(2) ensure adequate maintenace and regular inspection
(3) safety a top concern of architects
(4) have a safety expert
(5) develope a clear written policy concerning safet of facility and have a procedure for dealing with problems
(6) develop policies for crowd management including alcohol consumption
(7) clear written guidelines for managment of crises
(8) train all personell in safety prcoedures |
|
|
Term
| Liability of medical personell |
|
Definition
consider quality and speed of treatment
generally considered independant contractos even though paid. Consider degree of control exercised by supervisor over actual medical decisions. |
|
|
Term
| Liability of official referees and upires |
|
Definition
(1) personal injury: failure to inspect premises, fails to keep playing area free of equipment or spectators; weather conditions; equipment; did not properly enforce rues of game
(2) neglience:
Independant contractor or EE for vicarious liability |
|
|
Term
| Liability checklist for officials |
|
Definition
(1) ispect playing surface
(2) weather conditions
(3) inspect game equipment
(4) ensure wearing of safety equipment required by rules
(5) make sure no potetnially dangerous jewelry or accessories |
|
|
Term
|
Definition
get inusrance
could still be liable under subrogation |
|
|
Term
| Waiver and Release of Liabilty |
|
Definition
waivers and releases enforceable unless they frustrate an important public policy goal or unless the party getting the waiver is unfairly dominant in the bargaining process (fraud, misrep, or duress)
Waivers and releases generally upheld for competent adults n sports activities unless violates public policy.
Minor can repudiate any signed waiver. |
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Term
|
Definition
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